Terms of Use

Protecdiv, Inc. User Agreement and Terms of Use

This Protecdiv, Inc. User Agreement and Terms of Use is made and entered into by and between You and Protecdiv, Inc., a Delaware corporation (“Protecdiv”). This User Agreement and Terms of Use contains the terms of use and your agreement for use of this Website and any Services, whether or not purchased, provided by Protecdiv and its vendors. You understand and agree that access to, your visit of and use of this website is your manifestation of assent to be bound by the terms and conditions found within this User Agreement and Terms of Use, Registration Terms of Service, and Privacy Policy , for this Website and any Services used by You and Authorized Users.

You agree that this User Agreement and Terms of Use and the Registration Terms of Service, and Privacy Policy (collectively, this “Agreement”) govern both your legal rights with regards to Protecdiv the business, as well as your legal rights and obligations with regard to the use of the Protecdiv website (the “Website”) and the Protecdiv Software Systems Platform and Protecdiv Applications (the “Software”) and any third party data and/or content for which you have subscribed to . You explicitly and implicitly agree to be bound by the terms and conditions of this Agreement each time you visit, access and/or use this Website or the Services. By visiting this Website, you have agreed to and accepted this Agreement. If you do not wish to be bound by the terms of this Agreement with regards to the Software or the Services, please do not register for, use and/or access the Website, the Software, or the Services.

We may amend this Agreement from time to time and at any time by posting the amended terms on our Website. We may, however we are under no obligation to do so, post notices on the homepage of the Website when such changes occur. Such changes become effective at the time the amendment is posted. It is your responsibility to monitor this Agreement for updates and revisions.

 

1. Definitions
   1. “Authorized User(s)” means those users identified by name and type of user access who will receive an invitation code associated with their User ID and password in order to access the Service online.
   2. “Authorized Purpose(s)” means Authorized Users purposes for accessing and using the Service and third party data and/or content with Yours and Authorized Users’ business data and content for risk analysis of business assets. Authorized Purposes may be modified on a per company basis upon negotiation and execution of an addendum to this Agreement.
   3. “Confidential Information” means: (i) information of or relating to Protecdiv or its respective affiliates, subsidiaries, vendors, suppliers, or licensors, that is competitively sensitive material not generally known to the public, including without limitation, Protecdiv information that relates to past, present or future research and development, trade secrets, know-how, products and services, search parameters, pricing, marketing, financial matters, or business affairs (including without limitation, policies, procedures, plans, methods of operation, specifications, manuals, programs, documentation, guidelines, procedures, forms, and report formats), systems, networks, computer equipment and software proprietary to or licensed by a party, including without limitation, object or source code, custom software modifications, software documentation and training aids, and all data, code, techniques, algorithms, methods, logic, architecture, and designs embodied or incorporated therein; and (ii) Personally Identifiable Information.
   4. “Content” means all text, photographs, images, graphics, audio, video and other content provided to Protecdiv by You and the Authorized Users for use in the Service or otherwise to perform Services under this Agreement.
   5. “Data” means all information, records, files, and data entered into, received, processed, or stored by or for You and Authorized Users using the Service, including without limitation.
   6. “Data Privacy and Security Laws” means all applicable federal, state, regional, territorial and local laws, statutes, ordinances, regulations, rules, executive orders, of or by any United States federal or state government entity, or any authority, department or agency thereof governing the privacy, data protection and security of Personally Identifiable Information and security breach notification relating to Personally Identifiable Information and any other laws in force in any jurisdiction (regulatory or otherwise) in which the Service is being utilized, including without limitation Title V of the Gramm-Leach-Bliley Act of 1999 (Public Law 106-102, 113 Stat. 1338), as may be amended from time to time, and its implementing regulations, and the “Interagency Guidelines Establishing Standards for Safeguarding You Information” (Exhibit B to 12 CFR Part 364) (collectively referred to herein as “GLBA”).
   7. “Invitation Code” means a unique user access code assigned to an Authorized User for access to the Service.
   8. No Liability for Access by Minors Protecdiv is not responsible for determining the age of its users and has no liability whatsoever should a minor use the Website or any other part of the Service, regardless of whether the minor’s use of the Service would otherwise be prohibited due to the minor’s age.
   9. “Personally Identifiable Information” means all individually identifiable information provided to the Service by You or the Authorized Users or otherwise accessed by You or the Authorized Users through the Services that is subject to the protection of applicable Data Privacy and Security Laws including, without limitation, (i) any “Non-Public Personal Information” as such term is defined in GLBA, (ii) any individually identifiable information (including demographic information) relating to a person’s health, to the health care provided to a person, or to payment for health care (collectively, “Personal Health Information”), (iii) information subject to Section 628 of the Fair Credit Reporting Act (15 U.S.C. § 1681 et seq) and any interpretive regulations issued by the Fair Trade Commission (“FCRA”) and any regulations or guidelines adopted thereunder including, (iv) “Sensitive You Information” as that term is defined in the Interagency Guidance on Response Programs for Unauthorized Access to You Information and You Notice, 70 Fed. Reg. 15736 (March 29, 2005) (“Guidelines”), (v) any “personal information” (or its equivalent) subject to the protection of applicable security breach laws and (vi) any “personal data” subject to applicable data protection laws.
   10. “Public Forum” means an area, site or feature offered as part of this Website or the Services that enables registered users, Authorized Users, or visitors of the website to provide submissions for viewing by one or more users or visitors to this Website, through a social community environment social media, conversation page, chat area, message board, instant messaging, mobile messaging, profile page, blog, or email function.
   11. “Service” means access and use of Protecdiv Software Systems Platform and Protecdiv Applications, including but not limited to services capable of searching, retrieving, and storing Protecdiv, third party, and your data and/or content on behalf of You, Authorized Users, and as further described in User Materials.
   12. “Services” means the Service, Support Services, training and associated services provided by Protecdiv to You under this Agreement, but Services does not include third party data and/or content whether or not subscribed to by You through Protecdiv or this Website.
   13. “Support Services” has the meaning set forth in Section 4.
   14. “Third Party Data and/or Content” means information obtained from third parties (including third party subscription offerings, for which You have subscribed to through Protecdiv or this Website) by the Services based on or related to data, including but not limited to import, export, calculation, analysis, storage, usage, manipulation, and/or modeling; and searches, including but not limited to links, posts and excerpts, and data derived thereof, such as reports, summaries, graphs and charts.
   15. “Update” means any improvement, enhancement, modification and/or changes to the Service offered or provided by Protecdiv, including any customizations and other developments made for You.
   16. “User Materials” means any on-line help files or written instruction manuals regarding the use of the Service.

2. Service

2. 1. Access. If Protecdiv chooses to in its sole discretion, Protecdiv grants to You and Authorized Users a nonexclusive, not for resale, business use and nontransferable right to access the Services during the term of this Agreement for the Authorized Purposes and solely for Your internal business use. Your use of the Services is limited to the terms of this Agreement and the parameters defined herein, including but not limited to the type of account, whether free or paid, trial, pre-release, and/or subscription, the number of Authorized Users and Authorized Purposes. Your access and use of the Service is subject to Your and Your Authorized Users’ compliance with (i) the terms and conditions set forth in this Agreement; (ii) all Protecdiv, Protecdiv affiliates, and Third Party Service terms and conditions governing use, data analysis, data feeds, and other content or services as provided by the respective Protecdiv, Protecdiv affiliates and Third Party agreements and (iii) all applicable local, state, federal and international laws, including without limitation all Data Privacy and Security Laws. You understand and agree that by registering for an account, Protecdiv, Protecdiv affiliates, and Protecdiv vendors are under no obligation to provide you access to certain areas of this Website or the Services, regardless of the type of account you have registered for or purchased. Further, if granted access and the above license to use, You give Protecdiv the necessary license and permission to use Your and Authorized User Data, Content, and other materials provided by Your or Authorized Users for performing the Services, including but not limited to, hosting your Data or Content or sharing them at Your discretion. This includes design choices made by Protecdiv to technically administer the Services, for example how we redundantly backup data to keep it safe. You give us the license and permission we need to perform the Services. This license and permission also extends to Protecdiv vendors and trusted third parties Protecdiv works with to provide the Services, for example Microsoft Azure and Amazon, providing storage space to provide the Services.

2. 2. Restrictions. You may only use the Service to upload Your business data and content, search for, organize, analyze and review Your business data and content using the Service in combination with any third party data and/or content You have subscribed to, solely through the Protecdiv Software System Platform and Protecdiv Application(s) which you have subscribed for. You will not, in whole or in part, (a) copy the Services or User Materials or distribute copies of the Services or User Materials to any third party; (b) modify, adapt, translate, reverse engineer, make alterations, decompile, disassemble or make derivative works based on the Service or User Materials except as otherwise permitted by law; (c) rent, loan, sub-license, lease, distribute or attempt to grant any rights to the Services to third parties; (d) use the Services or User Materials to act as a service bureau or application Protecdiv, or to permit access to the Services or User Materials of any kind to any third party; or (e) use the Services if You are a Direct Competitor, unless expressly authorized by prior written consent from Protecdiv. “Direct Competitor” shall be determined in Protecdiv’s sole discretion.

2. 3. Right to Suspend or Terminate the Services. Protecdiv reserves the right to immediately suspend or terminate Services, remove Protecdiv content, remove Your business content and/or remove third party data and/or content you have subscribed to, if Protecdiv has reason to believe that You, , Your business content and/or third party data and/or content You have subscribed to is or is likely to become non-compliant with any applicable law, regulation or policy, or is likely to become the subject of a lawsuit or material dispute. Protecdiv shall not be responsible for Your use of the Services , Your business content and/or third party data and/or content you have subscribed to and Protecdiv’s action or inaction shall not be deemed review or approval of such use or of such Content.

3. Authorized Users.

3. 1. Authorized Users. The number of Authorized Users granted access hereunder is set forth in the subscription billing plan You selected for your account.

3. 2. Additional and Reassignment of Authorized Users. Unless otherwise specified: (I) Services may be accessed by no one other than the Authorized Users; (ii) additional subscriptions may be purchased for additional Authorized Users fees during the term of this Agreement; (iii) additional Protecdiv Application subscriptions may be purchased for additional Authorized User fees; (iv) additional third party data and/or content subscription may be purchased for additional authorized user fees; and (v) any such additional Authorized User account shall terminate on the same date as the pre-existing Authorized User accounts terminate. Authorized User account subscriptions are for designated Authorized Users only and cannot be shared, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of the Services only by providing written notice to Protecdiv of such changes. You shall designate at least one (1) Authorized User to act as an administrator who will be responsible for requesting set-up, modification and removal of Authorized User accounts and for other administrative tasks related to Your use of Services.

4. Support Services, Training and Scheduled Maintenance.
   1. Support Services. Protecdiv will provide reasonable support efforts by Protecdiv that does not require code changes and upgraded support, if available and if purchased by You.

4. 2. Scheduled Maintenance. Protecdiv reserves the right to take down applicable servers hosting the Services to conduct routine maintenance checks (“Scheduled Maintenance”). Protecdiv will use commercially reasonable efforts to perform Scheduled Maintenance outside of regular business hours, Eastern Standard Time (EST). Protecdiv will not be responsible for any damages or costs incurred by You, if any, for Scheduled Maintenance.

5. Additional Services. If requested by You and agreed upon by Protecdiv, You may purchase training services, consulting services, systems services, development services including interface development or other services at Protecdiv’s standard rates at the time of request. Upon Protecdiv’s request, You will deliver a written services request to Protecdiv for the additional services requested by You. Protecdiv will have no obligation to provide additional services prior to its receipt of a properly completed services request and acceptance thereof by Protecdiv as provided through an executed Professional Services Agreement and/or Schedule of Work. However, in cases where You fail to provide a services request and services have been provided by Protecdiv prior to execution of a Professional Services Agreement and/or Schedule of Work, You acknowledge and agree You are still responsible to pay for the services.

6. Free Trial Accounts. Protecdiv may offer pre-release and/or free trial license(s) where you may use certain Services free of charge for a specified time period of time. Upon expiration of this time period, your access to the Services will be terminated unless you pay the applicable subscription fee and become a Subscriber. You understand that only a single user free pre-release and/or trial license will be granted for a given corporate email address. Protecdiv has no duty to provide pre-release and/or free trial licenses and has no liability to you if you cannot obtain such license, or if we terminate your pre-release and/or free trial license prior to the expiration of the given time period of your existing pre-release and/or free trial license. Protecdiv may, without notice or liability to You, stop offering free license to you in the sole discretion of Protecdiv.

7. Public Forums and Communication through Social Media Platforms. You acknowledge that Public Forums and features offered using this Website through social media platforms are for public and not private communication. You understand and agree that whenever you give out public information online through a Public Forum, that information can be collected and used by people You do not know. Protecdiv cannot guarantee, and is neither responsible nor liable for, the security or privacy of any information You choose to disclose through this Website for Protecdiv. You understand and agree that you make such disclosures at your own risk. You are solely responsible for the submissions You distribute and communications you engage in trough the Public Forums. Neither Protecdiv, nor Protecdiv vendors (including third party data and/or content providers), are responsible for, and do not endorse, the opinions, advice or recommendations posted or sent by users in any Public Forum, and Protecdiv disclaims any and all liability in connection therewith. Protecdiv reserves the right to screen, refuse to post, remove or edit submissions at any time and for any reason in Protecdiv’s sole discretion. Protecdiv may have questions about your submission including, without limitation, the copyright, and Protecdiv may contact you for further information. By participating in Public Forums, you grant Protecdiv a royalty free, worldwide, perpetual use license to use, copy, distribute, publish, archive or share any submissions made by You or Your Authorized Users with your corporate affiliation.

8. Rules of Conduct . By using this Website, the Services, and Public Forums, You agree that You and your Authorized Users will not distribute any submission that is: a) defamatory, abusive, harassing, threatening or an invasion of a right to privacy of another person; b)is bigoted, hateful, or racially or otherwise offensive; c) is violent, vulgar, obscene, or pornographic; d) otherwise harms any person or entity, is illegal or encourages or advocates illegal activity or the discussion of illegal activities; e) is commercial or business-related that advertises or offers to sell any products, services or otherwise (whether or not for profit)which are in direct competition with Protecdiv products, solutions and service, or solicits others; or f) contains a virus or other harmful component, or otherwise tampers with, impairs or damages the website, the Services or any connected network. Protecdiv cannot and does not assure that other users are or will be complying with this section and You may be exposed to submissions that re inaccurate, offensive, indecent or otherwise objectionable. As between You and Protecdiv and Protecdiv vendors, You and your Authorized Users hereby assume all risk of harm or injury resulting from any such lack of compliance.

9. Fees and Payment.
   1. Fees. Fees for the initial term of this Agreement are set forth in the subscription plan You selected for your account. Protecdiv reserves the right to modify its subscription fees upon thirty (30) days prior written notice to You.

9. 2. Payment Terms. You agree to pay Protecdiv the monthly fee based on the subscription plan(s) you selected, the number of Authorized Users, and the number of credits You selected for your account. The monthly fee will be invoiced monthly in advance. Payment will be due net thirty (30) days of the invoice date prior to the commencement of the month for which You are being invoiced for. Any other charges that may occur, such as monthly credit limit overage will also be invoiced monthly. Upon such credit limit overage, you will have the option to either upgrade your subscription for the month in which you incurred the overage and carry forward the upgrade or pay the overage. All such sums will be payable, will be due, and will be charged to the payment card information You provided on or before each contract month or calendar month as Protecdiv selects, time being of the essence. By becoming a Subscriber to and using the Services, , you authorize Protecdiv to store your payment card information and to charge the billing source you have provided for your account according to the subscription plan you selected for your account. You authorize Protecdiv to charge each month the billing source you have provided without further authorization, until your account is terminated.

9. 3. If your billing source is declined, Protecdiv will notify you at the email address you provided in your account registration. If you do not provide us with a valid billing source within 3 business days of this notice, we will terminate your access to the Services. Failure of payment shall render due and payable all sums, and an automatic termination of service shall occur until the account is brought up-to-date After your access to the Services is terminated, you will still have access to the Website, and you will still be able to access your account information to restore your access to the Services by providing a proper billing source. . In the event your access to the Software is terminated, we will keep your current Protecdiv Software Systems Platform and Protecdiv Application(s) settings on file for 90 days at Your expense. After that time, Protecdiv reserves the right to remove such settings from our servers without penalty to Protecdiv and with no liability or notice to you, also at your expense.

9. 4. Credit Card Charge-Backs. Protecdiv has a zero-tolerance policy for credit card fraud and charge-backs. You agree that any monetary dispute shall be brought in writing to the attention of Protecdiv. If you use a credit card to purchase a subscription to the Services we offer, then start a charge-back process regarding such purchase, Protecdiv reserves the right to immediately terminate your account, in which case, the credit card number will no longer be accepted in our systems. Furthermore, you will be prohibited from using and denied access to use that account, associated email addresses to create a new account, and credit card with Protecdiv.

9. 5. Taxes. The fees do not include taxes. You will be responsible for and reimburse and hold Protecdiv harmless against the payment of all taxes associated with this Agreement (other than taxes based on Protecdiv’s gross receipts or net income).

10. Your Responsibilities.

10. 1. Registration Information. You will promptly provide to Protecdiv the name, contact information and other information requested of You to register each Authorized User (collectively, the “Registration Information”) to use the Service. You and each Authorized User will not use a false name or false email account, nor impersonate another person and/or company with regards to use of the Services and this Website. You and each Authorized User will not impersonate any person and/or entity or misrepresent your identity or affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness. Corporate emails are required for registration and/or access to certain portions of this Website and use of any Services; personal emails will not be accepted for registration to use the Services.

10. 2. User IDs. Each Authorized User will have a unique User ID and password for his or her access to the Service. You will ensure that Authorized Users will use only their respective assigned User IDs and passwords and will never use another’s User ID and password to access the Services. You will adopt and maintain such security precautions for User IDs and passwords to prevent their disclosure to and use by unauthorized persons and will promptly notify Protecdiv if the security or integrity of a User ID or password has been compromised, but always within one business day of such unauthorized disclosure.

10. 3. Access and Compliance. You are (a) responsible for all obligations under this Agreement arising in connection with Your use, including those of Authorized Users, of the Services; (b) You are liable for any act or omission by any of Authorized Users of the Services, which, if performed or omitted by You, would be a breach of this Agreement; (c) any such act or omission of any Authorized User will be deemed to be a breach of this Agreement by You; (d) You will use commercially reasonable efforts to prevent unauthorized access to or use of the Services and third party data and/or content which You have subscribed to; and (e) You will only access and use the Services and third party data and/or content You subscribed to in accordance with this Agreement, User Materials, third party Agreements and applicable laws.

10. 4. Charges. We may make the Protecdiv Software Systems Platform, Protecdiv Applications and certain third party data and/or content available on this Website for You to subscribe to, license and download. When purchasing a license to download and use the Protecdiv Software Systems Platform, Protecdiv Application(s), and/or third party data and/or content, charges in addition to the standard Protecdiv subscription charges may apply. Any additional charges will be advised to you clearly through either Protecdiv or third party vendors You subscribe to through Protecdiv. The fees for charges are subject to change.

10. 4. 1. Protecdiv may offer certain data and/or content free of additional charges or at reduced additional charges, for which you will be required to participate in surveys, case studies, or marketing campaigns before or after You use such data and/or content. You understand and agree you have no legal rights against Protecdiv or Protecdiv vendors in the event you do not receive such offers.

10. 5. Computer System. You will: (a) cooperate and consult with Protecdiv in the set-up and activation of the Services for You, (b) provide and maintain, in good and working order at all times your own Internet access and all necessary communications equipment, software and other materials necessary for You and Authorized Users to access and use the Services. You are responsible for the security of your own computer systems, mobile devices, and mediums from which you use or access the Services and the security of your access to and connection with the Services. Implementation and support services will be provided at the Protecdiv standard professional services rates at the time services are provided.

10. 6. Mobile Devices. All fees and costs incurred when using the Services and this Website from your mobile device are charged and collected by your network provider and have nothing to do with Protecdiv. When you access the Services and the website from your mobile device, your network provider’s messaging, data and other rates and fees may apply. In addition, downloading, installing or using certain Services, even those third-party data and/or content providers you have subscribed to through Protecdiv, may be prohibited or restricted by your network provider, and not all Services may work with all network providers or devices. You should check with your mobile provider to find out if the Services are available through your mobile device, and what restrictions, if any, may be applicable. Protecdiv will not be liable for interrupted use of the Services using a mobile device or for any charges from your network provider.

10. 7. Authorization; Noninfringement; Delivery of Data. You are responsible for obtaining all authorizations, consents, releases, and permissions all necessary or desirable to use the Service and the re-use and/or or the dissemination of any third party data and/or content. You and Your Authorized Users will not re-use, disseminate, copy, or otherwise use the Services and third party data and/or content You subscribed to in any way that infringes, misappropriates, or violates any trademark, copyright, patent, trade secret, publicity, privacy or other right of any third party or violates any applicable local, state or federal laws, statutes, ordinances, rules or regulations or any judicial or administrative orders. Protecdiv shall not be liable for the accuracy, completeness or authenticity of Data furnished by You or any other third party, even if the third party data and/or content was subscribed to through Protecdiv, and shall have no obligation or responsibility to audit, check or verify the Data. You shall transmit Data and receive reports by means of a secure network connection. You shall be responsible for acquiring at your own expense all equipment needed for such transmission. If equipment is not purchased through and provided by Protecdiv, then Your equipment shall conform to Protecdiv specifications and requirements. You shall bear all costs associated with the method of transmission used, including without limitation line rentals, installation charges, required deposits, long-distance charges, and/or related hardware, software and internet connectivity costs including those from Your mobile network provider. Any transmission method used must conform to Protecdiv specifications and requirements. Protecdiv shall not be liable or responsible for any loss or delay of Data, reports or any other information that pertains to You or the Services during any period of transit or electronic transmission to or from the Protecdiv facility or other agreed delivery location if through no fault of Protecdiv.
    8. Copyright . You agree to present Protecdiv trademark and a copyright notice at the beginning of any information presented, regardless of the medium on which the Protecdiv information is being presented. The presentation of information provided by or produced by Protecdiv or the Services must be presented with an explanation that the information appears pursuant to Protecdiv, Inc., and that it is unlawful to copy or redistribute the information. In the case of on-line presentation, You agree to include a hyperlink to the Protecdiv website.

10. 9. Third Party Data and Content. You agree that Protecdiv has no ownership or control rights in or to Public Forums, third party subscriptions, or data and/or content being used in the Services. You represent, warrant and covenant that Your access and use of Public Forums, third party data and/or content, (whether alone or in combination with other third party data and/or content), shall be in compliance with applicable laws and the terms of service of the third party data and/or content subscription, including, without limitation any terms as may be set forth at www.clearviewecm.com. Some third party data and/or content may be indecent, offensive, inaccurate or otherwise objectionable or unlawful, and Protecdiv has no obligation to preview, verify, flag, modify, filter or remove any third party data and/or content. Protecdiv may remove any third party data and/or content in its sole discretion, but is not responsible for any failures or delays in removing any third party data and/or content, including such content that may be harmful, inaccurate, unlawful or otherwise objectionable. YOUR USE OF THE SERVICES, PUBLIC FORUMS AND THIRD PARTY DATA AND/OR CONTENT IS AT YOUR SOLE RISK AND Protecdiv HAS NO RESPONSIBILITY TO YOU OR ANY THIRD PARTY IN CONNECTION WITH ANY USE OF THIRD PARTY DATA AND/OR CONTENT BY YOU.

10. 10. No Interference with Service Operations. You will not take any action that: (a) interferes or attempts to interfere with the proper working of the website or the Service or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of the website or the Service; (b) circumvents, disables, or interferes or attempts to circumvent, disable, or interfere with security-related features of the website or the Service or features that prevent or restrict use, access to, or copying of any data or enforce limitations on use of the Service or Data; or (c) imposes or may impose, in Protecdiv’s sole discretion, an unreasonable or disproportionately large load on the Service infrastructure.

10. 11. Your Review and Responsibility. You are prohibited from providing services to others involving the use of the Services or Data, however You will be solely responsible for any services that You do provide to others involving the use of the Services or Data. Protecdiv makes no representations concerning the completeness, accuracy, or utility of any Data or Content in the Service or concerning the qualifications or competence of any Authorized User that may place Data in the Service. You shall be solely responsible for ensuring accuracy, completeness and compliance of any services, including services that include Data, it provides to any third party, and all liabilities and responsibilities in connection with such services, and Protecdiv shall not be responsible for the accuracy, completeness, or compliance thereof. Except as provided herein, neither You nor any other person will have any claim or cause of action against Protecdiv as a result of any professional or other services rendered or withheld in connection with the use of the Data or Services.

11. Term and Termination.

11. 1. Term of Agreement. The term of any subscription is for one (1) year from the date the subscription was purchased and will automatically renew for successive one (1) year periods. You may terminate your subscription(s) with Protecdiv prior to the expiration of any such one (1) year period by providing thirty (30) day prior written notice; however, unless Protecdiv is in breach of this Agreement and does not cure said breach within thirty (30) days of receiving written notice from you of the breach, identifying specifically the nature of the breach, you are not entitled to any refunds. We may terminate your account without notice or refund to you if you violate this Agreement. If your account is terminated, Protecdiv reserves the right to remove your account information along with any software settings from our servers with NO liability or notice to you.

11. 2. Effect of Termination. Protecdiv may destroy any of Your Data, Content and settings still residing on Protecdiv’s systems ninety (90) days after the termination of this Agreement without further notice to You. It is Your responsibility to contact and request Protecdiv for any Data, Content and settings retrieval. Such Data, Content and settings storage charges accrued during such ninety (90) day period, and any retrieval services provided by Protecdiv will be at Your expense.

12. Proprietary Rights.

12. 1. The Services. Protecdiv is and will remain the exclusive owner of all right, title and interest in and to the Services, Protecdiv Data, Protecdiv Content, Updates, User Materials, Protecdiv’s Confidential Information, and all other Protecdiv work product and/or other materials provided or accessible to You in connection with this Agreement, including all intellectual property rights therein.
       1. Protecdiv retains and remains the exclusive perpetual ownership rights, including without limitation, all proprietary information, patent, copyright, trademark and trade secret rights with respect to the website and the Services. Proprietary information shall also include all documents, data and other information of any kind including, incorporating, based upon or derived from the feedback, reports and notes made or prepared by You and your authorized users for Protecdiv. The Proprietary information shall be the property of Protecdiv and may not be used by Your or Authorized Users for any purpose, unless expressly consented to by Protecdiv.
       2. You understand and agree that Protecdiv is the exclusive owner of all rights in the Services, programs, specifications, source code, documentation and other materials and intellectual property of Protecdiv in existence prior to your acceptance of this Agreement and used or developed by Protecdiv in the course of Protecdiv performance of its obligations under this Agreement.

12. 2. Third Party Data and Content. Third party data and/or content for which you have subscribed to or use will remain the property of the respective third parties in accordance with the terms and conditions on the applicable third parties.

12. 3. Your Data. You grant to Protecdiv a non-exclusive license, during the term of this Agreement, to use your Data for the purposes of performing its obligations under this Agreement. Subject to the foregoing license, You will retain all intellectual property and other rights that You may have in your Data.

12. 4. Your Content.You grant to Protecdiv a non-exclusive license, during the term of this Agreement, to use, reproduce, modify, display and distribute Content forthe purposes of performing its obligations under this Agreement. Subject to the foregoing license, You will retain all intellectual property andother rights that You may have in your Content.

12. 5. Feedback.To the extent that Protecdiv receives from You or any of your Authorized Users any suggestions, ideas, improvements, modifications, feedback, error identifications or other information related to the Services or any other Protecdiv affiliated products or services (“Feedback”), You hereby grant to Protecdiv an irrevocable, perpetual, non-exclusive, transferrable, fully paid, worldwide license (including license to subcontract)to use,disclose and exploit such Feedback without restriction, including to improve the Services and to develop, market, offer, sell and provide otherproducts and services.

13. Confidential Information; Privacy and Security.

13. 1. Obligations.The parties acknowledge and agree that the Services require disclosure by each party to the other party of certain Confidential Information. Withrespect to the disclosure of Confidential Information, the receiving party shall:
       1. maintain and protect the confidentiality of the information with the same care and measures to avoid unauthorized disclosure or access as thereceiving party uses with its own Confidential Information, but in no event less than a reasonable standard of care;
       2. use the information solely to carry out the purposes for which the information was disclosed; and
       3. limit access to the information to: (i) employees of the Receiving Party, or of its subsidiaries or affiliates, who have a need to know tofacilitate, monitor or review the delivery, receipt or performance of the Services; (ii) employees of the Receiving Party’s suppliers orlicensors who have a need to know the information solely for the purpose of facilitating the performance, delivery or use of the Services; and(iii) the Receiving Party’s external attorneys and auditors. Any of the foregoing individuals to whom the Receiving Party discloses informationmust be under a legally binding obligation to maintain the confidentiality of the information. The Receiving Party shall remain responsible tothe Disclosing Party for acts or omissions of such individuals that if committed by the Receiving Party would constitute a violation of theReceiving Party’s confidentiality obligations hereunder. Notwithstanding the foregoing, (i) nothing herein shall be construed to authorize thedisclosure of Personally Identifiable Information if such disclosure will violate any Data Privacy and Security Laws or any other federal orstate law or regulation and (ii) You shall not disclose the terms and conditions of this Agreement to any third party without Protecdiv’s priorwritten consent.

13. 2. Except to the extent disclosure would be in violation of any Data Privacy and Security Laws, the Receiving Party shall not be in violation of this Agreement for:
       1. disclosing Confidential Information of the Disclosing Party that (i) is or becomes publicly available other than as a result of a breach of this Agreement, (ii) is disclosed to the Receiving Party by a third party not subject to any obligation of confidentiality, (iii) was already known by the Receiving Party prior to the date of this Agreement (unless disclosed in connection with negotiations and discussions related to this Agreement or associated transactions), or (iv) was independently developed by the Receiving Party without reference to Confidential Information received from the Disclosing Party; or
       2. disclosing Confidential Information of the Disclosing Party when required to do so by (i) the Receiving Party’s federal or state regulatory agencies, or (ii) a federal or state law or regulation, or a subpoena or court order or agency action that requires disclosure, provided, however, that, if disclosure of Confidential Information is required by any of the foregoing, the Receiving Party shall, unless prohibited by law, regulation or court or agency order, promptly notify the Disclosing Party and, at the Disclosing Party’s request and expense, cooperate with the Disclosing Party’s efforts, if any, to prevent or limit the disclosure.

13. 3. Return of Confidential Information. Nothing in this Section shall be construed as a grant or assignment of any right or license in the Disclosing Party’s Confidential Information. The Disclosing Party’s Confidential Information shall at all times remain the property of the Disclosing Party. At any time the Disclosing Party reasonably requests, and in any event upon the termination or expiration of this Agreement, the Receiving Party shall, at the election of the Disclosing Party, promptly return to the Disclosing Party all Confidential Information of the Disclosing Party in the Receiving Party’s possession or control, or certify in writing to the Disclosing Party that the Confidential Information has been destroyed, subject to any provisions in this Agreement regarding return of Your Data or as otherwise agreed between the parties for the transfer of Your Data to a third party.

13. 4. Ownership. All Your Data, Content Confidential Information that are used with or integrated with the Services are and shall remain the sole property of You. You understand and agree such Data, Content, and Confidential Information DOES NOT include Protecdiv, Protecdiv vendor, or third party owned Data, Content and Confidential Information. All Protecdiv Confidential Information, specifications, manuals, tapes, programs, documentation, reports, report formats, systems and software (including without limitation, relating to the Services) and other tangible or intangible material of any nature whatsoever used, developed or produced by Protecdiv in connection with the Services and/or this Agreement (the “Protecdiv Materials”), and any modifications to the Protecdiv Materials, are and shall remain the sole property of Protecdiv. You hereby acknowledge and agree that the Protecdiv Materials, including without limitation, its Confidential Information, constitute and contain valuable proprietary products, know-how and trade secrets of Protecdiv, embodying substantial creative efforts and confidential information, ideas, and expressions. You acknowledge that this Agreement in no way limits or restricts Protecdiv or any Protecdiv affiliates from developing or marketing on their own or for any third party software or services, as from time to time constituted (including, but not limited to, any modification, enhancement, interface, upgrade or change, and all software, source code, blueprints, diagrams, flow charts, specifications, functional descriptions or training materials relating thereto) without payment of any compensation, or delivery of any notice, to You.

13. 5. Remedies and Responsibilities. The Receiving Party acknowledges that the Disclosing Party has the right to take all reasonable steps to protect the Disclosing Party’s Confidential Information, including without limitation, seeking injunctive relief and/or any other remedies that may be available at law or in equity, all of which remedies shall be cumulative and in addition to any rights and remedies available by contract, law, rule, regulation or order. Any requirements for a bond in connection with any such injunctive or other equitable relief are hereby waived by both parties.

13. 6. Compliance with Laws. You agree to comply with the Data Privacy and Security Laws in connection with performing its obligations under and exercising its rights under this Agreement (including, without limitation, accessing and using the Services and third part data and/or content for the Authorized Purposes).

14. Limitations and Disclaimer.

14. 1. Service Limitations. The Services may be temporarily unavailable, without notice, from time to time due to required maintenance, improvements, telecommunications interruptions, or other disruptions. Protecdiv will not be responsible for any damages that You may suffer arising out of use, or inability to use, the Service. Protecdiv will not be liable for unauthorized access to or alteration, theft or destruction of Your data files, programs, procedures or information for any reason. It is hereby acknowledged that it is Your responsibility to validate for correctness all Data and Content and to protect Your Data and Content from loss by maintaining back-ups of all Data and routinely updating such back-ups. You hereby waive any damages occasioned by lost or corrupt Data, Content or incorrect data files resulting from a programming error, operator error, Your equipment or software malfunction, or from the use of third-party software.

14. 2. Disclaimer of Warranties. THE INFORMATION, DATA, CONTENT AND SERVICES ARE PROVIDED “AS IS” AND Protecdiv GIVES NO REPRESENTATIONS OR WARRANTIES THAT THE FUNCTIONS CONTAINED IN THE INFORMATION, DATA, CONTENT AND SERVICES (INCLUDING WITHOUT LIMITATION PUBLIC FORUM SUBMISSIONS) ARE ACCURATE, COMPLETE OR CURRENT, THAT DEFECTS WILL BE CORRECTED, OR THAT THE WEBSITE, SERVICES, OR SERVERS OR ANY SOFTWARE OR OTHER DEVICE THAT MAKES SUCH INFORMATION, DATA, CONTENT AND SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Protecdiv DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OF OR THE RESULTS OF THE USE OF ANY INFORMATION, DATA, CONTENT AND SERVICES CONTAINED ON OR OFFERED, MADE AVAILABLE THROUGH, OR OTHERWISE RELATED IN ANY WAY TO THE WEBSITE OR THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY THIRD PARTY SITES, THIRD PARTY DATA AND/OR CONTENT, OR THIRD PARTY SERVICES LINKED TO FROM THE WEBSITE OR THE SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, COMPLETENESS, RELIABILITY, SAFETY OR OTHERWISE. FURTHERMORE, Protecdiv MAKES NO WARRANTIES RELATED TO THE SERVICES PROVIDED BY Protecdiv HEREUNDER, AND HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. YOU ASSUME TOTAL RESPONSIBILITY FOR THE SELECTION OF THE SERVICES TO ACHIEVE YOUR INTENDED RESULTS AND FOR ITS USE OF THE RESULTS OBTAINED FROM THE SERVICES. Protecdiv DOES NOT WARRANT THAT THE SERVICES MEET YOUR REQUIREMENTS OR WILL BE UNINTERRUPTED OR ERROR FREE.
       

 

Protecdiv and Protecdiv affiliates make no express or implied warranties, guarantees or affirmations that the information will occur (events including weather or otherwise) or has occurred as the reports, forecasts, data, or information state, represent or depict and Protecdiv shall have no responsibility or liability whatsoever to You, your Authorized Users or any third parties alike, for any inconsistency, inaccuracy, or omission for weather or events or otherwise, predicted, depicted, occurring or occurred. You and your Authorized Users hereby irrevocably waive any claim against Protecdiv and Protecdiv vendors (including third party data and/or content providers) with respect to information, content and materials contained on the website, on third party sites or in any third party data and/or content, and any information, content and materials you provide to any third party sites including, without limitation, credit card and other personal information. Reliance on any information obtained through your use of the Services is strictly at your own risk. You understand and agree that by visiting the Website, registering for the Website or the Service, using the Services, purchasing on the Website or purchasing in relation to the use of the Services, You and your Authorized Users waive the right to bring or be part of a class action related to that use.

14. 3. Limitations of Liability. IN NO EVENT WILL Protecdiv (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES UNDER THIS AGREEMENT OR IN CONNECTION WITH ANY SERVICES PROVIDED BY Protecdiv HEREUNDER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICES OR DATA, EVEN IF Protecdiv HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF AVAILABLE REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THE TOTAL LIABILITY, IF ANY, OF Protecdiv (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS VENDORS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) IN THE AGGREGATE OVER THE TERM OF THIS AGREEMENT FOR ALL CLAIMS, CAUSES OF ACTION OR LIABILITY WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE ARISING UNDER OR IN ANY WAY RELATED TO THIS AGREEMENT AND/OR THE SERVICES PROVIDED HEREUNDER (COLLECTIVELY, “CLAIMS”), SHALL BE LIMITED TO THE LESSER OF: (A) ONE THOUSAND (1,000) U.S. DOLLARS, OR (B) THE TOTAL FEES PAID BY YOU TO Protecdiv IN THE MOST RECENT THIRTY (30) DAY PERIOD. NOTWITHSTANDING THE FOREGOING, Protecdiv’S SOLE OBLIGATION IN THE EVENT OF AN ERROR BY Protecdiv IN THE PERFORMANCE OF ANY SERVICES UNDER THIS AGREEMENT SHALL BE LIMITED TO REPROCESSING APPLICABLE DATA OR REPERFORMING THE SERVICES. Protecdiv (INCLUDING ITS SUBSIDIARIES, ITS PARENT AND SUBSIDIARIES OF ITS PARENT, ITS VENDORS AND LICENSORS, AND THE EMPLOYEES, OFFICERS, DIRECTORS AND AGENTS THEREOF) SHALL HAVE NO LIABILITY, EXPRESS OR IMPLIED, WHETHER ARISING UNDER CONTRACT, TORT OR OTHERWISE, FOR ANY CLAIM OR DEMAND: (A) RESULTING DIRECTLY OR INDIRECTLY FROM YOUR INTERNAL OPERATIONS, EQUIPMENT, SYSTEMS OR SOFTWARE OWNED OR LICENSED BY YOU; OR (B) BY THIRD PARTIES, EVEN IF Protecdiv WAS ADVISED OF THE POSSIBILITY OF SUCH CLAIMS OR DEMANDS, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE HEREIN.

14. 4. Events Beyond the Control of Protecdiv. Protecdiv, Protecdiv affiliates, Protecdiv vendors and third party data and/or content provider shall not be held responsible for any failure or malfunction in power or communications nor the failure or refusal of Protecdiv affiliates, Protecdiv vendors or third party data and/or content providers to perform, continue or renew their contractual obligations with Protecdiv nor inability to perform by events beyond the control of Protecdiv. The unavailability of data from Protecdiv affiliates, Protecdiv vendors or third party data and/or content providers shall not be considered a disruption of service and shall not affect Your obligations hereunder. YOU AND YOUR AUTHORIZED USERS ARE ADVISED AND INFORMED THAT THE GOVERNMENT ISSUES OFFICIAL WATCHES, WARNINGS, ADVISORIES, BULLETINS AND OTHER COMMUNICATIONS AND YOU AND YOUR AUTHORIZED USERS SHOULD KEEP ADVISED OF THE SAME. YOUR, YOUR AUTHORIZED USERS AND YOUR AFFILIATED THIRD PARTIES ARE SOLELY RESPONSIBLE FOR ACTING OR LACK OF ACTION TAKEN TO PRESERVE LIFE OR PROPERTY. You, your Authorized Users and third parties agree to indemnify and hold Protecdiv and Protecdiv affiliates harmless for any and all claims arising from any source.

15. Indemnification.

15. 1. Indemnification. You agree to defend, indemnify and hold harmless Protecdiv, its members, affiliates and/or partners, and its officers, directors, partners, shareholders agents, licensees and employees from and against all claims, actions, liabilities, losses, expenses, damages and costs, including but not limited to attorney’s fees, that may, at any time, arise out of or relate to Your authorized, unauthorized, lawful or unlawful use of the Services, including but not limited to Your breach of this Agreement, Your inability to access the Services and/or third party data and/or content, and Your reliance on any errors or omissions on the Services and third party data and/or content, violation of applicable laws (including, without limitation, Data Privacy and Security Laws) and violation of any third party rights.
    2. Performance. You hereby agree that You will well and truly indemnify and save harmless Protecdiv and Protecdiv affiliates from all manner of suit actions, damages, charges and expenses, including attorney and counsel fees. Any manner of suite, action or claim of any nature or any kind against Protecdiv or Protecdiv affiliates by You or your Authorized Users shall be brought within one (1) year from the occurrence of the earliest event giving rise to such suit, action or claim. Protecdiv and Protecdiv affiliates shall have no responsibility to retain records of transmissions by or between either Protecdiv or Protecdiv affiliates and Your or records of forecasts, data, graphics or products in whatever form or nature, that may have been produced or supplied under this Agreement and Protecdiv and Protecdiv affiliates shall not be required to produce the same by any adverse party.

16.
Audit Rights.

 

i. You agree to and will keep and maintain complete and accurate records relating to Your use of the Services and third party data and/or content (including the Authorized Users’ names, usage types and amount of each Authorized User accessing the Services and third party data and/or content). Protecdiv may, from time to time, either directly or through an independent certified public accountant which it selects, examine and audit Your records relating to this Agreement to verify compliance with the terms and conditions of this Agreement. Each audit shall be conducted during normal business hours, with reasonable, with advance notice of the audit provided to You. Each such audit shall be conducted at Protecdiv’s expense, unless such audit reveals noncompliance by You in excess of three percent (3%) of any of Your payment obligations to Protecdiv pursuant to the terms of this Agreement, in which case such audit shall be at Your expense. You will promptly remit to Protecdiv any amounts that any such audit reveals are due to Protecdiv in order for You to comply with the terms of this Agreement.

 

17.
Site Access. You shall provide Protecdiv with access to your website or interface containing the Services for the purpose of reviewing Your and Authorized Users’ compliance of Protecdiv, Protecdiv affiliates, and third party data and/or content providers Services and offerings. Protecdiv shall be responsible for all communication charges for access to Your website or interface, unless such review reveals breach by You or Authorized Users of this Agreement, Protecdiv affiliates agreements or third party data and/or content provider agreements.

18. General.

18. 1. Assignment, Successors. No right or license under this Agreement may be assigned or transferred by You, nor may any duty be delegated by You without the prior written consent of Protecdiv. Any assignment, transfer or delegation in contradiction of this provision will be null and void. Subject to the foregoing, this Agreement will bind and inure to the benefit of the successors and assigns of You and Protecdiv.
    2. Subcontracting. Protecdiv may freely subcontract its duties and obligations under this Agreement. In the event that Protecdiv subcontracts any of its duties and obligations, Protecdiv agrees that: (i) the third party shall execute a confidentiality agreement consistent with the terms of this Agreement and (ii) any such permitted subcontracting shall not release Protecdiv from any of its obligations under this Agreement.
    3. Force Majeure. Notwithstanding any other provision of this Agreement, no party to the Agreement shall be deemed in default or breach of this Agreement or liable for any loss or damages or for any delay or failure in performance (except for the payment of money) due to any cause beyond the reasonable control of, and without fault or negligence by, such party or its officers, directors, employees, agents or contractors.
    4. Governing Law. This User Agreement and Terms of Use shall be governed by the laws of the State of Delaware, USA and shall supersede any conflicting choice of law rules. You agree to submit to the State Courts of Delaware, County of New Castle only with regards to any dispute arising out of this User Agreement and Terms of Use.
    5. Dispute Resolution. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be decided by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules, and judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Each party shall bear its own costs, fees and expenses incurred in connection with this arbitration proceeding, including attorneys’ fees and expenses and witness costs and expenses. The arbitrator(s) shall apportion the fees, expenses and compensation of the American Arbitration Association and the arbitrator(s) between the parties in such amount as the arbitrator(s) determine is appropriate. Arbitration shall take place in the State of Delaware, USA, County of New Castle. Notwithstanding the foregoing, a party may, without waiving any remedy under this Agreement, seek from any court with jurisdiction, interim or provisional equitable relief necessary to protect such party’s rights or property. Any civil action seeking injunctive relief, challenging an arbitration proceeding or award or otherwise related to this Agreement will be instituted and maintained exclusively in the federal or state courts of the State of Delaware, USA, County of New Castle.

BY ENTERING INTO THIS AGREEMENT, WHICH CONTAINS THIS ARBITRATION PROVISION, THE PARTIES ARE WAIVING THE RIGHT TO A JURY TRIAL AS TO ANY CLAIMS EACH PARTY MAY CLAIM TO HAVE AGAINST THE OTHER.

18. 6. Notice. Any notices which are required to be sent to Protecdiv hereunder must be addressed to Protecdiv, Inc., Attn: Chief Operating Officer, 1760 Market Street, Suite 1111, Philadelphia, PA 19103, or such other locations as Protecdiv may from time to time update or direct in writing. Notices addressed to any other person, entity or location shall be considered of no effect whether actually received or not.
    7. Independent Contractor. Protecdiv is acting as an independent contractor in its capacity under this Agreement. Nothing contained in this Agreement or in the relationship between You and Protecdiv shall be deemed to constitute a partnership, joint venture, or any other relationship between the You and Protecdiv.
    8. Entire Agreement. This Agreement, constitutes the entire agreement between Protecdiv and You with respect to the subject matter hereof. There are no restrictions, promises, warranties, covenants, or undertakings other than those expressly set forth herein. This Agreement supersedes all prior negotiations, agreements, and undertakings between the parties with respect to such matter. Protecdiv reserves the right, in its sole discretion, to change, modify, add, or delete portions of this User Agreement and Terms of Service at any time on both a permanent or temporary basis. It is Your responsibility to check this User Agreement and Terms of Service for any such amendments.
    9. Headings. No provision of this Agreement shall be construed against or interpreted to the disadvantage of any party hereto by any court or arbitrator by reason of such party having or being deemed to have structured or drafted such provision. The headings in this Agreement are for reference purposes only and shall not be deemed to have any substantive effect.
    10. Severability. The invalidity of any paragraph, subparagph or portion of this User Agreement and Terms of Use shall not affect the validity of any other paragraph, subparagph or portion thereof.
    11. Use of Name. Protecdiv and Protecdiv affiliates and may reference and use Your, Your corporate, business, or D.B.A. name and logo and identify You as a client of Protecdiv in advertising, publicity, and marketing materials. Use of Name by third party data and/or content providers shall be regulated by the terms and conditions of such third parties.
    12. Waiver. The failure of either party at any time to require performance by the other party of any provision of this Agreement shall not affect in any way the full right to require the performance at any subsequent time. The waiver by either party of a breach of any provision of this Agreement shall not be taken or held to be a waiver of the provision itself. Any course of performance shall not be deemed to amend or limit any provision of this Agreement.