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TERMS OF SERVICE

IMPORTANT: READ THIS AGREEMENT (THIS “AGREEMENT”) WITH PERSON CENTERED TECH INCORPORATED CAREFULLY BEFORE CONTINUING REGISTRATION. BY CLICKING THE “I ACCEPT” BUTTON, OR OTHERWISE ACCEPTING THIS AGREEMENT THROUGH AN ORDER THAT INCORPORATES THIS AGREEMENT (THE “ORDER”), YOU AGREE TO FOLLOW AND BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST SELECT THE “I DECLINE” BUTTON AND MAY NOT USE THE SERVICES.

1. Definitions

a. “You” and “Your” refers to the individual or entity that has ordered services or products, including but not limited to classes, software as a service (“SaaS”), other software tools, or workbooks, or any other products or services (as defined below in Section 1.b), from Person Centered Tech Incorporated (“PCT”) or an authorized distributor, by executing the Order that accompanies and incorporates the Product (collectively, the “Agreement”).

b. The “Services” consist of system administration, system management, and system monitoring activities that PCT performs, through the deployment of software programs as set forth in an Order (defined below), as well as any other Software that PCT develops in accordance with this Agreement.

c. “Software” refers to the software products owned or distributed by PCT to which PCT grants you access as part of the Services, including any Software updates provided as part of the Services.

d. “User(s)” shall mean those individuals authorized by you or on your behalf to use the Services, as defined in the Order.

e. “Your Data” refers to the data provided by you that resides in your services environment.

f. “Order” refers to the ordering and payment document signed by the parties that accompanies and incorporates this Agreement.

2. Rights Granted

a. Upon PCT’s acceptance of your Order and for the duration of the Services Term defined in the Order, you have the nonexclusive, non-assignable, royalty free, worldwide limited right to use the Services solely for your internal business operations and subject to the terms of this Agreement. You may allow your Users to use the Services for this purpose and you are responsible for your Users’ compliance with this Agreement. The Services are provided as described in, and subject to, the Order.

3. Ownership and Restrictions

a. You retain all ownership and intellectual property rights in and to Your Data. You grant PCT the right to use Your Data, anonymized without reference to you or your agents, for marketing purposes and improvement of the Services. PCT or its licensors retain all ownership and intellectual property rights to the Services. PCT retains all ownership and intellectual property rights to anything developed and delivered under this Agreement.

b. Third party technology that may be appropriate or necessary for use with some Software is specified in the Program Documentation or Order as applicable. Your right to use such third party technology is governed by the terms of the third party technology license agreement specified by PCT and not under this Agreement.

c. You may not:

(i)         remove or modify any identifying markings on any Software, or any notice of PCT’s or its licensors’ proprietary rights;

(ii)        make the Software or materials resulting from the Services available in any manner to any third party for use in the third party’s business operations or otherwise (unless such access is expressly permitted for the specific program license or materials from the Services you have acquired);

(iii)       modify, make derivative works of, disassemble, reverse compile, or reverse engineer any part of the Software or the Services (the foregoing prohibition includes but is not limited to review of data structures or similar materials produced by programs), or access or use the Software or Services in order to build or support, and/or assist a third party in building or supporting, products or services competitive to PCT;

(iv)       license, sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose, permit timesharing or service bureau use, or otherwise commercially exploit or make the Services or materials available, to any third party other than, as expressly permitted under the terms of this Agreement.

d. The rights granted to you under this Agreement are also conditioned on the following:

(i)         the rights of any User licensed to use the Services (e.g., on a “named user” basis) cannot be shared or used by more than one individual (unless such license is reassigned in its entirety to another authorized User, in which case the prior authorized User shall no longer have any right to access or use the license, or, the Order has specified the purchase of multiple licenses);

(ii)        except as expressly provided herein, no part of the Software or Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means; and

(iii)       you agree to make every reasonable effort to prevent unauthorized third parties from accessing the Software or Services.

4. Warranties, Disclaimers and Exclusive Remedies

a. PCT warrants that the Services will perform in all material respects in accordance with the Services policies referenced in the Order. If the Services provided to you for any given month during the Services term did not perform as warranted, you must provide written notice to PCT as specified in the Order no later than five business days after the last day of that particular month or within such other period stated in the Order. PCT DOES NOT GUARANTEE THAT THE SERVICES WILL BE PERFORMED ERROR-FREE OR UNINTERRUPTED, OR THAT PCT WILL CORRECT ALL SERVICES ERRORS. YOU ACKNOWLEDGE THAT PCT DOES NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. PCT IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.

b. FOR ANY BREACH OF THE ABOVE WARRANTIES, PCT WILL REMIT A SERVICES FEE CREDIT TO YOU CALCULATED AT TEN PERCENT (10%) OF NET MONTHLY FEES FOR THE APPLICABLE SERVICES FOR THE MONTH IN WHICH THE BREACH OCCURRED. THE CREDIT WILL BE PROVIDED ONLY TOWARDS ANY OUTSTANDING BALANCE FOR SERVICES OWED TO PCT, AND THE REMITTANCE OF SUCH CREDIT WILL REPRESENT YOUR EXCLUSIVE REMEDY, AND PCT’S SOLE LIABILITY, FOR ALL BREACHES OF ANY WARRANTY SPECIFIED IN THIS AGREEMENT.

c. EXCEPT AS SPECIFICALLY STATED IN THIS AGREEMENT AND TO THE EXTENT NOT PROHIBITED BY LAW, ALL SOFTWARE IS PROVIDED “AS IS”, AND ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF QUALITY, DURABILITY, FITNESS FOR PARTICULAR PURPOSE, MERCHANTABILITY, CONTINUOUS USE, DESIGN, COMPLIANCE OF DATA OUTPUT WITH APPLICABLE LAW, PERFORMANCE OR ERROR-FREE OPERATION (INCLUDING ANY CREATED BY ANY INTERNATIONAL SALE OF GOODS CONVENTION) ARE DISCLAIMED IN THEIR ENTIRETY. THE FOREGOING DISCLAIMERS INCLUDE, WITHOUT LIMITATION, ANY WARRANTY, DUTY, OR CONDITION THAT: THE SOFTWARE WILL BE UNINTERRUPTED, RELIABLE, AVAILABLE AT ANY PARTICULAR TIME, SECURE, ERROR-FREE, VIRUS-FREE, OR CORRESPOND TO ANY CONDITION; THAT MESSAGES OR REQUESTS WILL BE DELIVERED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE SOFTWARE OR SERVICES, ANY CONTENT, SYSTEMS, SERVERS AND INFORMATION THAT IS IN OR UTILIZED BY THE SOFTWARE WILL BE FREE OF HARMFUL ASPECTS. ALSO, THERE IS NO WARRANTY OF TITLE OR AGAINST INTERFERENCE WITH ANYONE’S ENJOYMENT OF THE SOFTWARE OR SERVICES OR AGAINST INFRINGEMENT.

5. Trial Use of the Services

If specified in the Order, you may order certain services for trial, nonproduction purposes subject to the terms and conditions of this Agreement and for the length of time specified in the Order. Services acquired for trial purposes are provided “as is” and PCT does not offer any warranties for such services.

6. Indemnification

a. If a third party makes a claim against either you or PCT (hereinafter “Recipient” and which may refer to you or PCT depending upon which party received the Material (defined below)), that any information, design, specification, instruction, software, service, data, or material (“Material”) furnished by either you or PCT (hereinafter “Provider” and which may refer to you or PCT depending on which party provided the Material), and used by the Recipient infringes its intellectual property rights, the Provider, at its sole cost and expense, will defend the Recipient against the claim and indemnify the Recipient from the damages, liabilities, costs and expenses awarded by the court to the third party claiming infringement or the settlement agreed to by the Provider, if the Recipient does the following:

(i)         notifies the Provider promptly in writing, not later than 30 days after the Recipient receives notice of the claim (or sooner if required by applicable law);

(ii)        gives the Provider sole control of the defense and any settlement negotiations; and

(iii)       gives the Provider the information, authority, and assistance, the Provider needs to defend against or settle the claim.

b. If the Provider believes or it is determined that any of the Material may have violated a third party’s intellectual property rights, the Provider may choose to either modify the Material to be non-infringing (while substantially preserving its utility or functionality) or obtain a license to allow for continued use. If these alternatives are not commercially reasonable, the Provider may end the license for, and require return of, the applicable Material and refund any unused, prepaid fees the Recipient may have paid to the other party for such Material (if applicable). If such return materially affects PCT’s ability to meet its obligations under the relevant order, then PCT may, at its option and upon 30 days prior written notice, terminate the Order. The Provider will not indemnify the Recipient if the Recipient alters the Material or uses it outside the scope of use identified in the Provider’s user documentation or services policies or if the Recipient uses a version of the Materials which has been superseded, if the infringement claim could have been avoided by using an unaltered current version of the Material which was provided to the Recipient. The Provider will not indemnify the Recipient to the extent that an infringement claim is based upon (i) any information, design, specification, instruction, software, data, or material not furnished by the Provider, or (ii) any Material from a third party portal or other external source that is accessible to you within or from the Service (e.g., a third party Web page accessed via a hyperlink). PCT will not indemnify you to the extent that an infringement claim is based upon the combination of any Material with any products or services not provided by PCT. PCT will not indemnify you for infringement caused by your actions against any third party if the Services as delivered to you and used in accordance with the terms of this Agreement would not otherwise infringe any third party intellectual property rights. PCT will not indemnify you for any infringement claim that is based on: (1) a patent that you were made aware of prior to the effective date of this Agreement (pursuant to a claim, demand, or notice); or (2) your actions prior to the effective date of this Agreement. This section provides the parties’ exclusive remedy for any infringement claims or damages.

7. Termination

a. Services provided under this Agreement shall be provided for the period defined in the Order unless earlier terminated in accordance with this Agreement. The term of the Services and any renewal years are collectively defined as the “Services Term.” At the end of the Services Term, all rights to access or use the Services shall end.

b. If either you or PCT breaches a material term of this Agreement and fails to correct the breach within 30 days of written specification of the breach, then the breaching party is in default and the non-breaching party may terminate the applicable Order under which the breach occurred. If PCT terminates the Order as specified in the preceding sentence, then within 30 days you must pay all amounts which have accrued prior to such termination, as well as all sums remaining unpaid for the Services ordered under this Agreement plus related taxes and expenses. If PCT ends the Services under the Indemnification section 6 above, you must pay within 30 days all amounts remaining unpaid for Services plus related taxes and expenses. The nonbreaching party may agree in its sole discretion to extend the 30 day period for so long as the breaching party continues reasonable efforts to cure the breach. You agree that if you are in default under this Agreement, you may not use the Services ordered.

c. In addition, PCT may immediately suspend your password, account, and access to or use of the services (i) if you fail to pay PCT as required under this Agreement and do not cure within the first ten days of the 30 day cure period, or (ii) if you violate any provision within Section 6(b) of this Agreement. PCT may terminate the services hereunder if any of the foregoing is not cured within 30 days after PCT’s initial notice thereof. Any suspension by PCT of the Services under this paragraph shall not excuse you from your obligation to make payment(s) under this Agreement

d. At your request, and for a period of up to 60 days after the termination of the applicable Order, PCT may permit you to access the Services solely to the extent necessary for you to retrieve a file of Your Data then in the Services environment. You agree and acknowledge that PCT has no obligation to retain Your Data and that Your Data may be irretrievably deleted after 60 days following the termination of the Order.

e. Provisions that survive termination or expiration of this Agreement are those relating to limitation of liability, infringement indemnity, payment, and others which by their nature are intended to survive.

8. Fees and Taxes

a. You agree to pay for all services ordered as set forth in the applicable Order. All fees due under this Agreement are non-cancelable and the sums paid nonrefundable. You agree to pay any sales, value-added, or other similar taxes imposed by applicable law that PCT must pay based on the services you order, except for taxes based on PCT’s income. You will reimburse PCT for reasonable expenses related to providing any on-site portion of the Services. Fees for Services listed in an Order are exclusive of taxes and expenses. All amounts invoiced hereunder are due and payable within 30 days of the date of the invoice.

b. You agree that you have not relied on the future availability of any services, programs, or updates in entering into the payment obligations in the Order; however, the preceding does not relieve PCT of its obligation to deliver Services that you have ordered per the terms of this Agreement.

9. Nondisclosure

a. By virtue of this Agreement, you may gain access to information that is confidential to PCT (“Confidential Information”). You agree to disclose and use only information that is required for the performance of obligations under this Agreement and for the use of the Services. You may receive information and data about PCT and its business and may develop valuable ideas, strategies, concepts, plans and other tangibles related to the business of PCT (collectively “Confidential Information”). As used in this Agreement, the term “Confidential Information” also refers to any information about PCT that may have actual or potential economic value to PCT and is not publicly available on our websites or in promotional literature. Examples of such information would include but not be limited to all software provided through the Services, manufacturing, engineering, and technical information, claims, product liability information, bank account numbers and records, sales data, customer data, pricing information, manuals of any kind, names of suppliers and consultants, and product information and specifications, including future products. PCT’s Confidential Information does not include information that: (a) is or becomes a part of the public domain through no act or omission of you or your employees or agents; (b) was in your lawful possession prior to the disclosure and had not been obtained by you either directly or indirectly from the disclosing party; (c) is lawfully disclosed to you by a third party without restriction on the disclosure; or (d) is provably independently developed by you.

b. You agree to hold PCT’s Confidential Information in confidence unless otherwise agreed to by PCT in writing. Also, you agree to disclose any Confidential Information only to those employees or agents who are necessary, and only so long as such employees or agents also agree to protect Confidential Information against unauthorized disclosure in a manner no less protective than under this Agreement. PCT will protect the confidentiality of Your Data residing in the services environment in accordance with PCT security practices specified in the services policies referenced in the Order. Nothing shall prevent either party from disclosing the terms or pricing under this Agreement in any legal proceeding arising from or in connection with this Agreement or from disclosing the Confidential Information to a governmental entity as required by law.

10. Entire Agreement

You agree that this Agreement (including the information which is incorporated into this Agreement by written reference (including reference to information contained in a URL, Software, referenced policy, or Order), is the complete agreement for the Services ordered by you, and that this Agreement supersedes all prior or contemporaneous agreements or representations, written or oral, regarding such Services. If any term of this Agreement is found to be invalid or unenforceable, the remaining provisions will remain effective and such term shall be replaced with a term consistent with the purpose and intent of this Agreement. It is expressly agreed that the terms of this Agreement, including any PCT Order, shall supersede the terms in any purchase order or other non-PCT document and no terms included in any such purchase order or other non-PCT document shall apply to the Services ordered. This Agreement may not be modified and the rights and restrictions may not be altered or waived except in a writing signed or accepted online through the PCT Store by authorized representatives of you and of PCT.

11. Limitation of Liability

NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF REVENUE OR PROFITS (EXCLUDING FEES AS SET FORTH UNDER THIS AGREEMENT), DATA, OR DATA USE, WHETHER OR NOT THEY KNEW OR SHOULD HAVE KNOWN ABOUT SUCH POSSIBILITY. PCT’S MAXIMUM LIABILITY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR ORDER, WHETHER IN CONTRACT, TORT, OR OTHERWISE, SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE TOTAL AMOUNTS ACTUALLY PAID TO PCT FOR THE SERVICES UNDER THE ORDER THAT IS THE SUBJECT OF THE CLAIM IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. ANY DAMAGE IN YOUR FAVOR AGAINST PCT SHALL BE REDUCED BY ANY REFUND OR CREDIT RECEIVED BY YOU UNDER THIS AGREEMENT AND ANY SUCH REFUND AND CREDIT SHALL APPLY TOWARDS THE LIMITATION OF LIABILITY.

12. No Professional Advice

The information provided through the Service is neither professional advice, nor is it a substitute for professional advice where the facts and circumstances warrant. If you require legal advice or other professional assistance, you should always consult your own legal or other professional advisors and discuss the facts and circumstances that apply to your specific situation.

13. Miscellaneous

a. PCT is an independent contractor and you agree that no partnership, joint venture, or agency relationship exists between us. We each will be responsible for paying our own employees, including employment related taxes and insurance.

b. You shall obtain at your sole expense any rights and consents from third parties necessary for PCT and its subcontractors to perform the Services under this Agreement

c. This Agreement is governed by the substantive and procedural laws of Oregon and you and PCT agree to submit to the exclusive jurisdiction of, and venue in, the courts in Multnomah County in any dispute arising out of or relating to this Agreement.

d. If you have a dispute with PCT or if you wish to provide a notice under the Indemnification section of this Agreement, or if you become subject to insolvency or other similar legal proceedings, you will promptly send written notice to: Person Centered Tech Incorporated, PO Box 42494, Portland, OR 97242. PCT may give notice of changes by means of a general notice on the PCT website for the Services if applicable as a global change, and notices specific to you by electronic mail to your e-mail address on record in PCT’s account information or by written communication sent by first class mail or pre-paid post to your address on record in PCT’s account information.

e. You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity without the prior express written consent of PCT.

f. Except for actions for nonpayment or breach of PCT’s proprietary rights, no action, regardless of form, arising out of or relating to this Agreement may be brought by either party more than two years after the cause of action has accrued.

g. PCT may audit your use of the Services. You agree to cooperate with PCT’s audit and provide reasonable assistance and access to information. Any such audit shall not unreasonably interfere with your normal business operations. You agree to pay within 30 days of written notification any fees applicable to your use of the Services in excess of your rights. If you do not pay, PCT can end your Services and/or this Agreement. You agree that PCT shall not be responsible for any of your costs incurred in cooperating with the audit.

h. The Uniform Computer Information Transactions Act does not apply to this Agreement or orders placed under it. You understand that PCT’s business partners, including any third party firms retained by you to provide computer consulting services, are independent of PCT and are not PCT’s agents. PCT is not liable for, nor bound by, any acts of any such business partner, unless the business partner is providing services on behalf of PCT, as a PCT subcontractor on an engagement ordered under this Agreement.

i. The failure by any party to exercise any of their rights under this Agreement in the case of a breach shall not be deemed a waiver of such rights or a waiver of any subsequent breach.

14. Your Data

a. In performing the services, PCT will comply with the PCT Services Privacy Policy, which is available at http://personcenteredtech.com/privacy-policy and incorporated herein by reference. The PCT Services Privacy Policy is subject to change at PCT’s discretion; however, PCT policy changes will not result in a material reduction in the level of protection provided for Your Data during the period for which fees for the Services have been paid. The Services policies referenced in your Order specify our respective responsibilities for maintaining the security of Your Data in connection with the Services.

b. You agree to provide any notices and obtain any consents related to your use of the Services and PCT’s provision of the Services, including those related to the collection, use, processing, transfer, and disclosure of personal information. You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and ownership of all of Your Data.

15. Statistical Information

PCT may compile statistical information related to the performance of the Services, and may make such information publicly available, provided that such information does not incorporate Your Data and/or identify your Confidential Information or include your company’s name. PCT retains all intellectual property rights in such information.