THIS IS A LEGALLY BINDING AGREEMENT (“AGREEMENT”) BETWEEN DATAFY LLC (THE “COMPANY”), THE DEVELOPER AND OWNER OF THIS SOFTWARE PROGRAM (THE “PROGRAM”) AND YOU. PLEASE READ THIS AGREEMENT AND THE ASSOCIATED TERMS CAREFULLY BEFORE ACCESSING AND USING THE PROGRAM. BY SELECTING “I AGREE” BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ THIS AGREEMENT AND ALL ASSOCIATED TERMS, THAT YOU UNDERSTAND THEM, AND THAT YOU AGREE TO BE BOUND BY THIS AGREEMENT. YOU WILL USE THE PROGRAM IN ACCORDANCE WITH THE TERMS AND CONDITIONS AND PRIVACY POLICY FOUND ON THE COMPANY’S WEBSITE AT WWW.DATAFY.HEALTH, PROVIDED THAT, TO THE EXTENT SUCH TERMS ARE INCONSISTENT WITH THIS AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL CONTROL. IN THE EVENT YOU ARE ACCESSING AND USING THE PROGRAM ON BEHALF OF A CORPORATION OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH CORPORATION OR OTHER ENTITY. IN THE EVENT THAT YOU AGREE TO THESE TERMS ON BEHALF OF A CORPORATION OR OTHER ENTITY, THE TERMS “YOU” OR “YOUR” ARE MEANT TO INCLUDE SUCH CORPORATION OR OTHER ENTITY.

 

1.         Your Access and Use of the Program.  The Program involves an assessment of your compliance and security programs in connection with a corporate assessment requested of you by a third-party subscriber (the “Subscriber”) of the Programs with the Company. This assessment provides the Subscriber with an objective, systematic tool for scoring technology operations, analyzing risk, establishing benchmarks, and allows the Subscriber to gather information about you and the Subscriber’s other vendors’ compliance and security programs. You agree that the scoring and information provided by the Company to Subscriber is subjective and unbiased. The Company has no obligations to provide you or any third party with a score, advice, or analysis of your choosing or liking. Nor will the Company adjust its score, advice, or analysis upon request. To the extent permitted by the Program, and at the sole discretion of the Company, you are allowed to temporarily download one copy of all unscored analysis and inquiry-related material (the “Materials”) for personal, non-commercial transitory viewing only. You may not sell, transfer, or otherwise distribute the Materials. Except where otherwise agreed by the Company in writing, you may not “mirror” the Materials on any server, and you agree not modify or copy the Materials. You agree that the Subscriber is entitled to view the Materials as set out above. You agree not to decompile or reverse engineer any software contained in the Program.

 

2.         No Confidential, Proprietary or Protected Health Information. The Program may provide you with the ability to upload documents, materials, data and other information in response to the Subscriber’s requests or inquiries. You should not, through or by use of the Program, upload, transmit or otherwise disseminate any of your financial information, technical information, trade secrets, product development, service development or other proprietary information (“Confidential Information”) or any Confidential Information of any third-party known by you or in your possession. Further, you should not, through or by use of the Program, upload, transmit or otherwise disseminate any third-party Protected Health Information as defined in 45 CFR Part 160 and Subparts A and E of Part 164 of the Health Insurance Portability and Accountability Act of 1996 and any regulations promulgated thereunder (collectively, “HIPPA”). Neither the Company nor the Subscriber shall be responsible for any liability, harm, injury, wrongdoing, damages or the like as a result of such other party’s unauthorized use, uploading transmission or dissemination of any Confidential Information or Protected Health Information as defined by HIPPA, through or by use of the Program.

 

3.         Amendments of Terms and Conditions.  The Company reserves the right to amend its Terms and Conditions and Privacy Policy at any time in its sole discretion. It is your responsibility to review the current Terms and Conditions and Privacy Policy in force when using the Program. Amendments to the Terms and Conditions and Privacy Policy become effective upon posting anywhere on the Program.

4.         Intellectual Property.  The Program and the source code and algorithms behind the Program, and all associated material and works of authorship are protected by copyright and other intellectual property and proprietary laws, and may not be copied, reproduced distributed, republished, uploaded, posted, or transmitted in any way. All trademarks, service marks, trade names and other identifying names used in connection with the Program are the sole and exclusive property of the Company and may not be used by you. No license is granted to you with respect to any of these intellectual property rights.

 

5.         No Unlawful Purpose.  The Program is provided for lawful purposes only, and may not be used for any unlawful purposes. You agree that under some circumstances the Company may be legally obligated to disclose information obtained or collected from you to the appropriate authorities. You agree to release the Company and its employees from all claims, demands, or actions arising out of such disclosure by the Company

 

6.         No Liability; Program Provided “As Is”.  The Company is not liable for any damages, harm, or injury that relate to, arise out of, or result from your use of, or access to, or the inability to use, any aspect of the Program. THE PROGRAM IS PROVIDED “AS IS,” AND WITHOUT WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED.

 

7.         Restrictions on Access to Program.  We may restrict, suspend or terminate your access to the Program at any time if we believe that you have breached this Agreement. Any such restriction, suspension or termination will be without prejudice to any rights which we may have against you in respect of your breach of this Agreement.

 

8.         Accuracy of Assessment Criteria.  The criteria and inquiries (“Assessment Criteria”) presented by way of the Program have been compiled by the Company from internal and external sources, or provided by the Subscriber and its authorized users. No representation is made or warranty given as to the completeness or accuracy of such Assessment Criteria. The Company reserves the right to make changes to the Assessment Criteria presented by the Program or update such Assessment Criteria at any time, without notice, but the Company makes no commitment to correct or update the Assessment Criteria.

 

9.         Indemnification.  You hereby agree to indemnify, defend, and hold harmless the Company, its directors, officers, members, employees, agents, representatives, licensors, licensees, attorneys, independent contractors, providers, subsidiaries and affiliates from and against any and all claims, damages, losses, expenses, or demands of liability, including attorney’s fees and costs incurred in connection with (i) your use or inability to use the Program; or (ii) any information submitted by you or collected about you on the Program, including, without limitation, your submission of any Confidential Information or Protected Health Information. The Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to your indemnification. You will not, in any event, settle any claim or matter without the written consent of the Company.

 

10.       Disclaimer of Warranties.  THE INFORMATION, SERVICES, PRODUCTS, AND MATERIAL CONTAINED IN THE PROGRAM, INCLUDING WITHOUT LIMITATION, INFORMATION, RATINGS, SCORING, ANALYSIS, TEXT, GRAPHICS, VIDEO, AUDIO, AND HYPERLINKS, ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF SATISFACTORY QUALITY, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW. YOU ACKNOWLEDGE, BY YOUR USE OF THE PROGRAM AND ACCEPTANCE OF THIS AGREEMENT, THAT YOUR USE OF THE PROGRAM IS AT YOUR SOLE RISK, AND THAT YOU ASSUME FULL RESPONSIBILITY FOR ALL COSTS ASSOCIATED WITH ANY USE OF THE PROGRAM.

 

11.       Release and Limitation of Liability.  The Program is a system to assist the Subscriber and their users in assessing the proficiency of the compliance and security programs involved in your business. The quality of the analysis and reports provided in the Program are dependent on the information provided by you. You therefore agree to release the Company its directors, officers, members, employees, agents, representatives, licensors, licensees, attorneys, independent contractors, providers, subsidiaries and affiliates from all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, related to the inquiries, analysis and reports in the Program. You further agree to release the Company and its directors, officers, members, employees, agents, representatives, licensors, licensees, attorneys, independent contractors, providers, subsidiaries and affiliates from any claims, liability, costs or expense, of every kind and nature, known or unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with (i) your use of the Program, or (ii) reliance by any party on the analysis provided by the Company to the Subscriber. You agree that neither the Company nor its directors, officers, members, employees, agents, representatives, licensors, licensees, attorneys, independent contractors, providers, subsidiaries and affiliates has any liability for any (i) indirect, special, incidental, or consequential damages, (ii) loss of profits, (iii) business interruption, (iv) loss of or damage to reputation, or (v) loss of information or data. Without limiting any other provision in this Agreement, the Company’s maximum aggregate liability to you for any provable losses or damages you suffer in connection with the Program is limited to one hundred dollars ($100.00 USD). Your only right and remedy in case of dissatisfaction with the Program or any other grievance shall be your termination of your access to or use of the Program.

 

12.       Waiver of Class Action.  You hereby agree to irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claims arising out of, relating to, or connected with the Program or this Agreement must be asserted individually.

 

13.       Use of Your Information.  The Company may collect information when you utilize the Program, including information about your technological proficiency, information security, operational practices and other processes. You agree that the Company may use this information to provide the services to Subscriber as requested, you agree that the Company may use this information to improve and personalize your experience on the Program, and to allow the Company to better respond to the Subscriber’s needs. You agree that the Company may use the information to process transactions. You agree that the Company may use the information for internal marketing analysis. You agree that the Company may use the information, stripped of personal identifiers, in providing services to others.

 

14.       Security.  No transmission of data over the internet is guaranteed to be completely secure. It may be possible for third parties not under control of the company to intercept or access transmissions or private communications unlawfully. While we strive to protect your information, neither the Company nor any of our service providers can ensure or warrant the security of any information you transmit to us over the internet. You agree that any such transmission is done at your own risk.

 

15.       Arbitration.  All disputes arising out of or relating to this Agreement, the Terms and Conditions, the Privacy Policy (including their formation, performance, or alleged breach), or your use of the Program, will be exclusively resolved under confidential binding arbitration administered by the American Arbitration Association in accordance with it applicable commercial rules, provided, further, that any arbitrator shall be either an attorney or retired judge having significant and recognized experience with and knowledge of privacy issues and information technology. The arbitration panel shall apply New Jersey law, without regard to its conflict of law principles. In addition, the exclusive location for such arbitration shall be Essex County, New Jersey. All decisions of the arbitration panel shall be final and binding on the parties, which waive any right to further appeal the arbitration award, to the extent an appeal may be lawfully waived. To the fullest extent permitted by applicable law, no arbitration under this Agreement will be joined to an arbitration involving any other party subject to this Agreement whether through class arbitration proceedings or otherwise. Notwithstanding the above, the Company will have the right to seek injunctive relief in state or federal court located in New Jersey to enforce these terms or prevent an infringement of a third party’s rights. In the event equitable relief is sought, each party hereby irrevocably submits to their personal jurisdiction of such court.

 

16.       Governing Law.  This Agreement shall be governed by the laws of the State of New Jersey, without regard to its conflict of law provisions. You consent and submit to the exclusive jurisdiction of the state and federal courts located in the State of New Jersey, in all questions and controversies arising out of your use of the Program and this Agreement. To the extent allowed by applicable law, any claim or cause of action arising from or relating to your access or use of the Program must be brought within one (1) year from the date on which such claim or action arose or accrued. The Company controls and operates the Program from its headquarters in the United States of America and the Program may not be appropriate or available for use in other locations. If you use the Program outside of the United States of America, you are responsible for following applicable local laws.