Terms of Use

Updated and Effective from: January 1, 2023

NOTICE TO ALL CLIENTS:  BEFORE YOU SIGN AN ORDER FORM OR CLICK ON THE “PLACE ORDER” BUTTON ON THE OSTENDIO SIGN-UP PAGE, AS APPLICABLE, AND ACCESS AND/OR USE ANY SERVICE (AS DEFINED BELOW) ON THE OSTENDIO INC. (“OSTENDIO”, “WE”, OR “OUR”) ONLINE SOFTWARE PLATFORM AND/OR ANY PROFESSIONAL SERVICES (AS DEFINED BELOW), AS APPLICABLE, PLEASE CAREFULLY READ THESE TERMS OF USE (THESE “TERMS”).  THESE TERMS GOVERN THE TERMS AND CONDITIONS UNDER WHICH CLIENT (SOMETIMES ALSO REFERRED TO AS “YOU” OR “YOUR”) AND ALL USERS (AS DEFINED BELOW) MAY ACCESS AND USE THE SERVICE, PROFESSIONAL SERVICES (IF APPLICABLE), AND RELATED OSTENDIO INFORMATION, MATERIALS, AND/OR DOCUMENTATION.  THESE TERMS, INCLUSIVE OF EXHIBIT A IF CLIENT PURCHASES ANY PROFESSIONAL SERVICES, AS WELL AS THE BILLING AND SUBSCRIPTION PAGE WITHIN CLIENT’S INSTANCE OF THE OSTENDIO ONLINE SOFTWARE PLATFORM (“OSTENDIO PLATFORM”) OR ANY ORDER FORM SIGNED BY CLIENT, AS APPLICABLE, COLLECTIVELY FORM A LEGALLY BINDING WRITTEN AGREEMENT (COLLECTIVELY, THIS “AGREEMENT”) BETWEEN CLIENT AND OSTENDIO, EFFECTIVE AS OF THE DATE CLIENT CLICKS THE “PLACE ORDER” BUTTON BELOW.

THE AGREEMENT IS LEGALLY BINDING ON THE LEGAL ENTITY ON WHOSE BEHALF THIS AGREEMENT IS BEING ENTERED INTO (“CLIENT”) AND ON EACH USER. BY CLICKING THE “PLACE ORDER” BUTTON AS DESCRIBED BELOW OR SIGNING AN ORDER FORM, CLIENT ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, AND AGREES TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT. THIS AGREEMENT IS ENTERED INTO BETWEEN OSTENDIO AND THE COMPANY OR OTHER LEGAL ENTITY ON WHOSE BEHALF YOU ARE ACCEPTING THIS AGREEMENT. IF CLIENT DOES NOT AGREE WITH ANY OF THE TERMS AND CONDITIONS OF THE AGREEMENT, DO NOT ACCESS OR REGISTER TO ACCESS OR USE THE SERVICE.  THE PERSON CLICKING THE “PLACE ORDER” BUTTON OR SIGNING AN ORDER FORM REPRESENTS AND WARRANTS THAT HE/SHE HAS FULL AUTHORITY TO LEGALLY BIND CLIENT TO THESE TERMS AND THE AGREEMENT.  IF SUCH PERSON DOES NOT (i) AGREE TO ALL OF THE TERMS AND CONDITIONS OF THE AGREEMENT AND (ii) HAVE THE AUTHORITY TO LEGALLY BIND CLIENT TO THESE TERMS AND THE AGREEMENT, DO NOT CLICK THE “PLACE ORDER” BUTTON , SIGN AN ORDER FORM, OR ATTEMPT TO ACCESS OR USE THE SERVICE.

1. The Service.

(a)   Acceptance, Access, and Availability.  By clicking the “PLACE ORDER” button on the Ostendio Online Sign-up page located at register.myvcm.net or signing an Order Form, or accessing or using the Service, Client agrees to be bound by this Agreement. Ostendio reserves the right, with or without notice, to amend or modify these Terms, and Client agrees to be bound by any amendment or modification. If we make any material changes to these Terms, we will notify you by email sent to the e-mail address on your account or by means of a notice on the Ostendio website prior to the change becoming effective. Modifications or amendments to these Terms shall be effective at the time they are posted on the Ostendio website. Subject to Client’s prepayment of all applicable fees as set forth in the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, Ostendio will make the Service available to (a) Client and (b) individuals who are authorized by Client to use the Service on behalf of the Client (“Users”). The term “User” includes individuals who have been supplied user identification and passwords by Client (or by Ostendio at Client’s request), including Client’s and any Client Affiliate’s employees, consultants, vendors, suppliers, contractors, and agents. For avoidance of doubt, Client’s payment obligation applies based on the number of Users as set forth in the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, irrespective of whether each User has been given access or has accessed and/or used the Service. “Affiliate” means, with respect to a party, any entity which directly or indirectly controls, is controlled by or is under common control with such party, wherein “control”, for purposes of this definition, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of such party or the right to manage such party’s business affairs. Ostendio hereby grants Client and its designated number of Users a limited, non-exclusive right to access and use the Service, in each case during the Subscription Term and in accordance with this Agreement (the “Subscription”).  Client’s Subscription is not dependent on any future functionality or features or any public comments or other disclosure made by Ostendio with respect thereto.  “Service” means the online, website application provided by Ostendio via http://”clientname”.myvcm.net, or at such other designated URL as Ostendio may assign from time to time (including all components thereof, on an individual and collective basis). The Service may incorporate products, services, documents, and/or other materials that Ostendio licenses or purchases from third parties. Client’s right to use any such third party products, services, documents, and/or other materials are subject to the rights of, and limited by agreements with, such third parties as governed by the agreements and conditions set forth at https://ostendio.com/ostendio_eulas/. Prior to accessing and/or using any third party products, services, documents, and/or other materials, Client will be required to agree to the terms and conditions of the applicable third party agreements with respect to any such third party products, services, documents, and/or other materials purchased, used, and/or licensed by Client.

(b)   Subscription Term.  Client’s initial Subscription term for the Service commences on the day the initial sign-up has been completed or the User login names and a password are made available to Client to access the Service, whichever is sooner (the “Subscription Start Date”).  The Subscription will continue for the time period requested when the order is placed.  Unless otherwise agreed in writing by Ostendio and Client, Monthly Subscriptions will automatically renew for successive one (1) month terms on the monthly anniversary of the Subscription Start Date and annual Subscriptions will automatically renew for successive one (1) year terms on the annual anniversary of the Subscription Start Date (each, a “Renewal Term”).  If Client upgrades its service from one product offer to another, the initial Subscription term will automatically reset to the effective date of the upgrade, and a pro-rata refund will be automatically credited for any unused portion of the prior Subscription term. Unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the end of the initial Subscription term or the Renewal Term then in effect for Ostendio Select clients, sixty (60) days prior to the end of the initial Subscription term or the Renewal Term then in effect for Ostendio Premium clients, and ninety (90) days prior to the end of the initial Subscription term or the Renewal Term then in effect for Ostendio Enterprise clients, each Renewal Term will be at the Service subscription price in effect on a generally commercially available basis at the time of the renewal, based on the number of Users of the Service as set forth in the renewing Order Form or the billing and subscription page within Client’s instance of the Ostendio platform, as applicable, irrespective of the number of actual Users, usage of the Service, and product functionality ordered by Client. For any Renewal Term, Ostendio shall have the right at its discretion to: (i) charge Client using the credit card on file with Ostendio if retained by Ostendio, (ii) request that Client promptly pay by credit card if Ostendio has not retained any Client credit card information, or (iii) send Client an invoice. The “Subscription Term” collectively means the initial Subscription term plus all Renewal Terms.

(c)    Limits on Authorized Users.  The Subscription price is based on the number of Users which have the right to use the Service as set forth in the applicable Order Form or the billing and subscription page within Client’s instance of the Ostendio platform, as applicable.  When subscribing to use the Service, Client shall pay fees for a specific number of Users, which are counted based on the number of then-authorized Users for seats or logins for the Service, irrespective of how many authorized Users actually access and/or use the Service. If a Client adds users in the middle of a Subscription Term the prorated monthly or annual fee for the remainder of the current Subscription Term will be applied, and these additional Users will automatically be included in the next Subscription Term. If a Client requests to reduce Users in the middle of a Subscription Term this will be effective from the beginning of the next Subscription Term only. Client understands that in order to use the Ostendio Vendor Connect feature and/or the Ostendio Auditor Connect feature, Client must have available and must allocate a single User for each asynchronous connection that is maintained. An “asynchronous connection” is defined as any Auditor Connect and/or a Vendor Connect connection to another Ostendio platform instance where ”data sharing” is switched on. All use of the Service must be in accordance with the applicable Ostendio documentation and policies.  Client is responsible for all use of the Service by its Users and their compliance with this Agreement.  Ostendio and its subcontractors have the right to monitor and/or audit remotely the number of Users of the Service. If, at any time, Client exceeds the total number of Users initially designated by Client or agreed to by Ostendio, Ostendio will have the right to charge Client, on both a retroactive and prospective basis, Ostendio’s then-current subscription fee for each such additional User and, for each Renewal Term, Ostendio will have the right to charge Client Ostendio’s then-current subscription fee that applies to the number of Users.

(d)   Client may substitute and/or reassign any User’s use of and/or access to the Service. More specifically, if, for example, a Client employee who is an authorized User of the Service leaves Client’s employment for any reason, Client shall have the right to reassign such employee’s Subscription to another Client employee without incurring any additional subscription fee but Client shall not be entitled to any refund for the subscription fee paid for such departing employee’s Subscription. Additionally, the appropriate monthly or annual per User subscription fee shall be pro-rated and added to the invoice for any additional User(s) above the initial designated quantity which Client adds during the course of any given Subscription Term.  Client is prohibited from allowing more than one User to subscribe to, access, and/or use the Service under the same user login name and/or password.

(e) Although Ostendio will not share Client Data (as defined below) with any unauthorized third party without Client’s consent, by using the designated data sharing feature on the Service, Client may elect to share specific Client Data with designated third parties. Client’s use of any such sharing feature shall constitute Client’s affirmative consent to sharing its Client Data with such designated third parties through the Ostendio Trust Network Connection. Any such sharing of Client Data by Client is made solely at Client’s own discretion and risk. Client understands and acknowledges that Ostendio is not responsible and disclaims any and all liability with respect to Client’s use of the Service, and/or Client’s consent, to share any Client Data with any third party. Where Client elects to share Client Data with any third party, Ostendio will share Client Data only via the Service as directed by the Client and only to the third parties specified by Client. Through use of the Service features, Client retains sole control over what specific Client Data are shared and can change the ”data sharing” settings at any point. However, any changes to the data sharing settings will only affect what the designated third party can see from that point forward. Client should be aware that, at any point while data sharing is enabled, the designated third party may choose to copy and/or download designated Client Data as per the data sharing settings and, in such a situation, turning off data sharing will not impact any offline data that have already been copied or captured by the third party. Client agrees and acknowledges that Ostendio shall not be responsible or liable for Client sharing any Client Data or allowing any third party to access, review, copy, modify, share, and/or download any designated Client Data. Client accepts and understands that sharing any Client Data using the designated feature on the Service shall be deemed equivalent to Client directly copying the data and sharing Client Data outside of the Service and, accordingly, Client will ensure that it shares Client Data only as expressly intended.   Ostendio shall not be bound by or subject to the terms of any contract or any other arrangement entered into between Client and any third party and any such contract or arrangement is and shall remain an obligation between Client and such third party.

(f) The Service made available to Client does not include any implementation, professional, or technical services (“Professional Services”), which Client may purchase separately from Ostendio pursuant to the Professional Services Terms set forth in Exhibit A and the applicable Order Form describing such implementation or Professional Services. Client may purchase Professional Services at Ostendio’s then-current hourly rates, on a fixed fee basis, or on a retainer basis, pursuant to the Professional Services Terms and any associated Order Form agreed upon between Ostendio and Client. Ostendio’s provision of Professional Services is governed by and subject to these Terms of Use including Exhibit A.

2. Client Conduct and Use.

(a)   Client Data; Upload Restrictions.  Client will retain all right, title and interest in and to all data uploaded by Client and its Users to the Service that would typically be provided in the planning, execution and/or analysis of a security and/or compliance program including ongoing security and compliance monitoring as well as all information generated by Users using of the Service (collectively, “Client Data”). Client represents and warrants to Ostendio that the Client Data do not infringe upon or misappropriate the intellectual property right or any other property right of any third party.  Client is solely responsible for the accuracy, content, and legality of all Client Data.  Client shall not store, upload into, or transmit through the Service any: (i) financial information (e.g., bank account numbers), medical information (e.g., ePHI), or personally identifiable information (e.g., social security numbers, driver’s license numbers, birth dates, passport or visa numbers, passwords and credit card numbers) other than as part of the online payment service, without a separate written agreement entered into between Client and Ostendio explicitly allowing Client to do so (ii) content that is obscene, defamatory, libelous, threatening, harassing, pornographic, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offence or give rise to any civil liability, or (iii) material (including any software, virus, bot, worm, Trojan horse, scripting exploit, or other harmful code) that is likely to harm or corrupt the Service or any computer systems or data. Client shall immediately remove all such information and content from the Service and Client agrees that Ostendio, in its sole discretion, may purge the same from the Service at any time with or without notice.  Ostendio will not access Client Data uploaded by Client except:  (1) to respond to service or technical problems; (2) to monitor and/or investigate compliance with the Agreement; (3) if there has been a violation of the Agreement; (4) to assess or determine whether the Service is being properly implemented and configured for the service(s) purchased by Client; (5) at Client’s request; and/or (6) upon Client’s written consent (including by email). Ostendio may also collect data with respect to Client’s and its Users’ use of the Service and/or report on such usage in an aggregated and anonymous manner.

(b)   Rights Granted to Ostendio. Client hereby grants Ostendio a worldwide, non-exclusive license and right to copy, distribute, perform, display, store, modify, and otherwise use Client Data in connection with implementing, providing, operating, repairing, and/or maintaining the Service and/or providing any services to Client.  Ostendio may also use aggregate information to measure the Service usage patterns and characteristics of its clients and/or user base and otherwise to improve its products and/or services, and may include such aggregate information about its clients and/or user base in promotional materials and/or reports to third parties. This aggregate information will not reference names, phone numbers, email addresses, or other personally identifiable information, and will not be traceable to a specific recipient or User email address. Client represents and warrants to Ostendio that Client has sufficient rights in and to the Client Data to grant the rights in this Section 2.

(c)   Data Storage Limits. Client’s use of the Service may be subject to the online storage limit set forth in the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, for the specific product(s) subscribed to by Client. Client shall not exceed the storage limit agreed to by Client. If Client exceeds the agreed upon storage limit, Ostendio reserves the right to cap services or charge an additional fee for the excess storage .

(d)   Compliance. Client is responsible for (i) all activities that occur with respect to the Client account, (ii) its and its Users’ use of the Service and compliance with this Agreement, and (iii) all Client Data and other data uploaded, downloaded, stored, modified, deleted, shared (in accordance with the ”data sharing” feature), and/or accessible by Client or its Users via or on the Service.  Client and its Users shall comply with all applicable privacy, publicity, data protection, electronic communications, spam, and other laws in connection with and/or related to the use of the Service and/or any Client Data, including, without limitation, the CAN-SPAM Act of 2003 (U.S.A.), the Personal Information Protection and Electronic Documents Act (PIPEDA) (Canada), and the EU’s General Data Protection Regulation (GDPR).

(e)   Certain Restrictions. Client and its Users will use the Service for internal business purposes only as contemplated by this Agreement and will not:

• tamper with the security of the Service or any of Ostendio’s other client accounts;
• attempt to probe, scan, or test the vulnerability of the Service, breach the security or authentication measures of the Service without proper written authorization of Ostendio, and/or willfully or knowingly render any part of the Service unusable;
• access data on the Service not intended for Client or log into a server or account on the Service that Client is not authorized to access;
• lease, distribute, license, sublicense, sell, or otherwise commercially exploit the Service, use the Service for time sharing or service bureau purposes or otherwise for the benefit of a third party, or make the Service (including any evaluation version) available to a third party other than as contemplated in this Agreement;
• allow any third party that offers or provides any service that is competitive with any Ostendio product or service to use or access the Service, use or access the Service to develop a product or service that is competitive with any Ostendio product or service, or otherwise copy any idea, feature, function, graphic, or intellectual property of the Service;
• use the Service in violation of Ostendio’s Acceptable Use Policy (AUP) available at http://www.ostendio.com/myvcm/aup, which is hereby incorporated by reference and made a part of the Agreement;
• reverse engineer, decompile, disassemble, translate, or seek to obtain the source code of the Service, or modify or create a derivative work of the Service or any related documentation;
• remove or obscure any product identification, proprietary, copyright or any other notice contained in the Service or related documentation;
• create any link, API, or other interface to the Service accessible by any other third party or frame or mirror any content contained or accessible from the Service; or
• disclose (whether orally or in writing) information or analysis regarding the specifications or performance of the Service (including benchmark tests).

(f)   Communications. Client will be responsible for the content of all communications sent by Client and/or any User using the Service. Client will not use the Service to transmit and/or communicate any message or material that (i) is libelous, harmful to minors, obscene or constitutes pornography; (ii) infringes the intellectual property right of any third party or is otherwise unlawful; or (iii) would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law. Ostendio will use commercially reasonable efforts to provide Client with the opportunity to remove or disable access to any offending material or content.

(g)    Suspension.  In the event of any breach or threatened breach of this Agreement by Client or any User (including non-payment of fees), without limiting Ostendio’s other rights and remedies, Ostendio may immediately suspend Client’s and its Users’ access to and/or use of the Service.

3. Confidentiality

(a)   Scope.  “Confidential Information” means all information of a party (“Disclosing Party“) disclosed to the other party (“Receiving Party“) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure.

(b)   Restrictions.  The Receiving Party will:  (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees and contractors who have a “need to know” for the Receiving Party to exercise its rights and/or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, contractors, investors, acquirers and professional advisers are bound by written confidentiality agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in compliance with the terms and obligations of this Section 3; and (iii) at all times use a reasonable degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information. 

(c)    Exceptions. If the Receiving Party is required by applicable law or regulation, a regulatory entity, or court order to make any disclosure of the Disclosing Party’s Confidential Information, to the extent legally permissible, it will first give written notice of such requirement to the Disclosing Party, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and, at the Disclosing Party’s expense, provide reasonable cooperation and assistance to the Disclosing Party in seeking to obtain such protection. This Section 3 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt from the Disclosing Party; (ii) is or becomes public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party without access to or reliance on the Disclosing Party’s Confidential Information. 

(d)   Equitable Relief.  The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which monetary damages alone might not be a sufficient remedy and, therefore, that upon any threatened or actual disclosure by the Receiving Party, the Disclosing Party will be entitled to seek injunctive and other appropriate equitable relief in addition to any other remedies it might have at law or equity.

(e)   Client acknowledges and agrees that any feedback, suggestions, comments, improvements, modifications, and other information (including any ideas, concepts, “know-how” or techniques contained therein) that Client or any User provides to Ostendio about the Service, Professional Services, or its performance (collectively, “Feedback”) shall not be deemed as Client Confidential Information and may be used, adopted, disclosed, disseminated, modified, and/or published by Ostendio for any purpose, including developing and marketing products and services incorporating any such Feedback, without obligation or payment of any kind to Client or any User, and Client and its Users waive any rights whatsoever in and to all Feedback.

4. Fees; Interest; Taxes.

Client shall prepay to Ostendio on a monthly, quarterly, or annual basis for as set forth in the applicable order agreed to by Client. All payments shall be made in United States dollars as specified in the billing and subscription page within Client’s access to the Ostendio platform or Order Form, as applicable.  All fees are based on the specified number of Users, which are counted based on the number of authorized Users for seats or logins for the Service as set forth in the billing and subscription page within Client’s access to the Ostendio platform or Order Form, as applicable, irrespective of whether Client and/or any of the designated Users actually access or utilize the Service.  If Client uses the Ostendio Vendor Connect feature and/or Ostendio Auditor Connect feature, Client shall pay an additional User fee for each vendor and/or auditor, as applicable, that has an asynchronous data connection to Client. All payment obligations are non-cancellable and all amounts paid to Ostendio are non-refundable. Fees will be invoiced in advance and all fees are payable automatically by credit card for Ostendio Select clients and via check or ACH for Ostendio Premium and Ostendio Enterprise clients.  Client shall also pay, on both a retroactive and prospective basis, for all additional Users added by Client during the initial Subscription term and/or the Renewal Term then in effect. Ostendio reserves the right to add, and Client agrees to pay, an additional charge of 5% to any payment that was scheduled to be automated but subsequently had to be processed manually. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower, plus all reasonable expenses and fees, including, without limitation, attorney’s fees and costs of collection.  All amounts payable hereunder are exclusive of any applicable sales, use, and other taxes or duties, however designated (collectively “Taxes”).  Client is solely responsible for payment of all Taxes, except for those taxes based on the income of Ostendio.  Client will not withhold any Taxes from any amounts due Ostendio.  If Ostendio pays any Taxes on behalf of Client, Client shall promptly reimburse Ostendio for such payments.

5. Proprietary Rights

(a) Client is permitted to access and use the Service, but this Agreement is not otherwise an agreement for the sale or license of any software. Client acknowledges that the Service contains copyrighted and proprietary software, products, and materials, certain components of which might be licensed from one or more of Ostendio’s licensors. Ostendio and Ostendio’s licensors solely and exclusively retain all right, title and interest in and to the Service and related support, documentation, and professional services deliverables, and all related and underlying software, interfaces, databases, data models, structures, non-Client-specific data, aggregated statistical data, technology, reports and other intellectual property, plus all intellectual and other proprietary rights therein or thereto (all of the foregoing, the “Ostendio IP”).  Except for the Subscription granted hereunder, Client has no right, title, or interest in or to any of the Ostendio IP.

(b) Client represents and warrants that it owns or otherwise has written permission and the right to use any and all material, data, and/or content uploaded into and/or stored in Client’s instance of the Ostendio platform. Client shall not upload into or store any material, data, and/or content (including, without limitation, any third party copyrighted material or content) in the Ostendio platform in an unauthorized manner.

(c) If Client intends to utilize the Ostendio platform for the performance of any HITRUST®* readiness or Validation related services, Client understands and agrees that the HITRUST CSF® and HITRUST MyCSF® privacy and security framework and all related content are owned, marketed, and licensed by HITRUST. All right, title, and ownership interest including all intellectual property rights in and to the HITRUST CSF and HITRUST MyCSF are owned by HITRUST. In recognition of HITRUST’s rights, Client will maintain an active HITRUST MyCSF subscription while undertaking any HITRUST readiness and Validation related services whenever such services require access to HITRUST-owned content. If an active HITRUST MyCSF Subscription is no longer in place, Client shall remove all HITRUST-owned content from its instance of the Ostendio platform. [*HITRUST, HITRUST CSF, and HITRUST MyCSF are registered trademarks of the HITRUST Services Corporation. All rights reserved.]

(d) The American Institute of Certified Public Accountants (AICPA) holds the copyright to the guidance for completion of a service organization controls (“SOC”) audit, which is an audit of a service organization’s controls performed by an independent third-party certified public accountant. If Client intends to utilize the Ostendio platform for the performance of any SOC 1®**, SOC 2®**, and/or SOC 3®** audit, Client understands and agrees that the SOC 1, SOC 2, and/or SOC 3 audit frameworks and all related content are owned, marketed, and licensed by the AICPA. Client shall neither utilize any AICPA copyrighted material or content nor store any AICPA copyrighted material in an unauthorized manner. [**SOC 1, SOC 2, and SOC 3 are registered trademarks of the AICPA in the United States. Standards for performance of the SOC 1, SOC 2, and SOC 3 audits as well as other explanatory content including the AICPA Trust Services Criteria for Security, Availability, Processing Integrity, Confidentiality, and Privacy are created and copyrighted by the AICPA. All rights reserved.]

(e) Client will, at its expense, defend Ostendio Indemnitees from and against any and all losses, damages, liabilities, fines, penalties, and/or costs (including reasonable attorneys' fees and related expenses) in connection with any claim, demand, suit, allegation, or proceeding made or brought by a third party against any Ostendio Indemnitee to the extent based upon an allegation that any material, data, and/or content uploaded into and/or stored in Client’s instance of the Ostendio platform misappropriates any third party trade secret or infringes any third party copyright, patent, trademark, or any other intellectual property right, and will indemnify and hold Ostendio Indemnitees harmless from and against any and all damages awarded by any court or any settlement agreed to by Ostendio or Client in connection with any such claim.

6. Term and Termination.

(a)   Term and Termination.  This Agreement will be effective during the Subscription Term, unless earlier terminated in accordance with this Section 6. This Agreement may be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days after receipt of written notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors; or (C) immediately in the event of a material breach by the other party of Section 2 of these Terms; (ii) by Ostendio pursuant to Section 9(a); or (iii) by Ostendio upon written notice to Client if Client has any type of free account and there has not been any activity in the account for a period of six (6) months.

(b)   Outstanding Fees.  Client will pay any fees owed to Ostendio that may have accrued up until termination of this Agreement immediately upon any such termination.  In addition, if Ostendio terminates this Agreement pursuant to Section 6(a)(i), Client will pay Ostendio, within thirty (30) days after termination, any unpaid amounts that may be owed to Ostendio for the remainder of the then-current Subscription Term then in effect absent such early termination. If Client terminates this Agreement pursuant to Section 6(a)(i), Ostendio will promptly refund to Client a prorated amount equal to the prepaid Subscription Fees covering the whole months that would have remained, absent such early termination, in Client’s Subscription Term following the effective date of such early termination.

(c)    Early Termination. (i) If this Agreement is terminated by Client prior to the expiration of the initial Subscription term or Renewal Term then in effect and such termination is not due to Ostendio’s uncured breach as set forth in Section 6(a)(i) or if Ostendio terminates this Agreement pursuant to Section 6(a)(i) due to Client’s breach, Client shall pay to Ostendio an early termination charge, which Client agrees is reasonable and not a penalty, equal to all non-recurring and monthly recurring charges set forth in the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, which have not been prepaid by Client and would otherwise be due through the end of the initial Subscription term or Renewal Term then in effect at the time, including all applicable Taxes, plus any unpaid fees for Professional Services. For avoidance of doubt, Client agrees and acknowledges that the foregoing early termination charge shall apply even if Client terminates the Agreement prior to commencement of the initial Subscription term and/or prior to commencement of its use of the Service. The parties agree that the precise damages resulting from an early termination by Client or termination by Ostendio in accordance with Section 6(a)(i) are difficult to ascertain and the early termination charge set forth in this Section 6(c) is a reasonable estimate of anticipated actual damages and not a penalty. The early termination charge shall be due and payable within ten (10) days of the effective date of termination.

(d)   Effect of Termination.  Upon any termination of this Agreement, Client and its Users will immediately cease all use of and access to the Service. Ostendio will have no liability for any suspension or termination of Client’s access to the Service, or any termination of this Agreement, provided that it is conducted in accordance with the terms of this Agreement. Upon written request by Client made within sixty (60) days after termination or expiration of this Agreement, Ostendio will provide Client with temporary access to the Service solely for Client to retrieve its Client Data and not any other purpose.  After expiration of such sixty (60) day period, Ostendio will have no obligation to maintain or provide access to any Client Data and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Client Data in its possession or control.  Sections 1, 2, 3, 4, 5, 6, 7(a), 7(d), 8, 9, and 10 of these Terms will survive any or expiration or termination of this Agreement for any reason.

7. Representations and Warranties.

(a)   Corporate Authority.  Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that these Terms, Exhibit A (if applicable), and the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, are agreed to by an employee or agent of such party with all necessary authority to legally bind such party to the terms and conditions of this Agreement.

(b)   Functionality Warranty. Ostendio warrants that the Service will operate in substantial conformity with the then current version of the applicable documentation made accessible by Ostendio. The Service is controlled and operated from facilities in the United States. Ostendio makes no representation that the Service is appropriate or available for use in other locations. Users who access and/or use the Service from any other country do so at their own volition and risk and are entirely responsible for compliance with all applicable laws and regulations, including, without limitation, export and import and data privacy laws and regulations.

(c)    Security Warranty.  Ostendio has implemented Appropriate Security Measures (as hereinafter defined) and will maintain the Service at reputable third party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that Client Data will be maintained accurately and safeguarded including the use of administrative, technical, and physical controls designed to protect Client Data against destruction, loss, alteration, unauthorized disclosure to third parties, and unauthorized access by employees or contractors employed by Ostendio.

(d)   DISCLAIMER. EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 7(A), 7(B), AND 7(C) ABOVE, (I) THE SERVICE, SUBSCRIPTION, AND ALL OTHER OSTENDIO PRODUCTS, SERVICES, AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS”, AND (II) OSTENDIO, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR ANY PURPOSE, IN EACH CASE TO THE MAXIMUM EXTENT PERMITTED BY LAW.  THE WARRANTIES CONTAINED IN SECTIONS 7(A), 7(B), AND 7(C) ARE SOLELY TO AND FOR THE BENEFIT OF CLIENT AND NO THIRD PARTY.  OSTENDIO AND ITS LICENSORS DO NOT WARRANT THAT (A) THE FUNCTIONS CONTAINED IN THE SERVICE OR ANY RESULTS FROM THE USE OF THE SERVICE AND/OR PROFESSIONAL SERVICES WILL MEET CLIENT’S AND/OR ANY USER’S REQUIREMENTS, INCLUDING RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, ACCURACY, OR COMPLETENESS, (B) THE OPERATION OF THE SERVICE WILL BE TIMELY, SECURE, UNINTERRUPTED, OR ERROR-FREE, AND/OR (C) ANY ERRORS IN THE SERVICE AND/OR PROFESSIONAL SERVICES CAN OR WILL BE CORRECTED. OSTENDIO AND ITS LICENSORS WILL NOT BE LIABLE OR RESPONSIBLE FOR ANY DELAYS, INTERRUPTIONS, DELIVERY, OR SERVICE FAILURES, OR ANY OTHER PROBLEMS OR DAMAGES ARISING FROM CLIENT’S AND/OR ANY USER’S USE OF THE INTERNET, ELECTRONIC COMMUNICATIONS, AND/OR ANY OTHER SYSTEMS.

8. Limitations of Liability

EXCEPT FOR LIABILITY ARISING FROM A PARTY’S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION 9 AND ANY AMOUNTS OWED BY CLIENT TO OSTENDIO, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, COVER, SPECIAL, OR EXEMPLARY DAMAGES OF ANY KIND OR ANY FINE, PENALTY, OR PROSECUTION, HOWEVER CAUSED AND WHETHER IN CONTRACT, NEGLIGENCE, TORT, STATUTE, REGULATION, OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, PROFIT, DATA, SALES OR REVENUE, REPUTATION, AND/OR GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOSS OF USE OR CORRUPTION OF ANY CLIENT DATA, OR THE COST OF PROCUREMENT OF ANY SUBSTITUTE PRODUCTS AND/OR SERVICES, IN EACH CASE IRRESPECTIVE OF WHETHER THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.  WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL OSTENDIO, ITS EMPLOYEE, AGENT, LICENSOR, OR CONTRACTOR, BE LIABLE TO CLIENT OR ANY USER FOR ANY DAMAGE, COST, CLAIM, FINE, PENALTY, OR OTHER LIABILITY (EXCLUDING INDEMNIFICATION OBLIGATIONS) RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, NEGLIGENCE, TORT, STATUTE, OR REGULATION, IN EXCESS OF THE LESSER OF (I) THE TOTAL FEES PAID BY CLIENT FOR THE RIGHT TO ACCESS AND USE THE SERVICE AND/OR PROFESSIONAL SERVICES UNDER THIS AGREEMENT INCLUDING ANY ORDER FORM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT OR ACT GIVING RISE TO THE CLAIM FOR DAMAGES AND/OR CAUSE OF ACTION OR (II) FIVE HUNDRED THOUSAND U.S. DOLLARS (US$500,000). OSTENDIO’S LICENSORS DISCLAIM ALL LIABILITY AND DAMAGES TO CLIENT AND ALL USERS, WHETHER DIRECT OR INDIRECT, INCIDENTAL OR CONSEQUENTIAL (INCLUDING LOST PROFITS, SALES, AND REVENUES AS WELL AS ANY FINES AND PENALTIES), ARISING FROM OR RELATING TO THIS AGREEMENT.  Except with respect to enforcing Client’s payment obligations under this Agreement or a breach of Sections 2 or 3, no action against either party arising out of this Agreement may be brought by the other party more than one (1) year after the cause of action or claim for damages has arisen.  This Section 8 will apply to the maximum extent permitted under applicable law.

9. Indemnification.

(a)   Ostendio Indemnification.  Ostendio will, at its expense, indemnify, defend, and hold harmless Client against any loss, liability, damage, or cost (including reasonable and necessary attorneys’ fees) (“Losses”) incurred in connection with any claim, demand, suit, or proceeding made or brought by a third party (“Claim”) against Client alleging that the use of the Service, as contemplated hereunder and in accordance with the Agreement, infringes a third party’s United States registered patent, copyright, or trademark. Notwithstanding the foregoing, if Ostendio reasonably believes that Client’s or any User’s use of any portion of the Service is or likely to be enjoined by reason of a Claim of infringement, violation, or misappropriation of any third party intellectual property right, then Ostendio may, at its expense and in its sole discretion: (i) procure for Client the right to continue using the Service; or (ii) replace or modify the applicable software, services, or other material so that there is no longer any infringement, violation, or misappropriation, provided that such replacement or modification does not adversely affect the functional capabilities of the Service. If, in Ostendio’s opinion, subsections (i) and (ii) above are infeasible or commercially impracticable, Ostendio may, in its sole discretion, terminate this Agreement upon written notice to Client and refund to Client a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Client’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Ostendio will not apply: (1) if the Service is modified in any way by any person or entity other than Ostendio, but solely to the extent the alleged or actual infringement is caused by such modification; (2) if the Service is combined with any other non-Ostendio software, product, application, technology, or process not authorized by Ostendio in writing, but solely to the extent the alleged or actual infringement is caused by such combination; (3) to any unauthorized use of the Service; (4) to any third party software, deliverable, or component contained within the Service that is not provided by Ostendio; or (5) to any action arising as a result of any Client Data. THIS SECTION 9(a) SETS FORTH OSTENDIO’S SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.

(b)   Client Indemnification.  Client will, at its expense, indemnify, defend, and hold Ostendio and its Affiliates, and their officers, directors, employees, agents, and contractors (“Ostendio Indemnitees”), harmless from and against any Losses incurred in connection with any Claim against any Ostendio Indemnitees arising from or relating to the gross negligence, willful misconduct, or violation of law or regulation by Client or any User, Client’s or any User’s violation of this Agreement, and/or Client’s or any User’s use of Client Data or other use of the Service, in each case except to the extent Ostendio is obligated to indemnify Client under Section 9(a).

(c)    Procedure.  Each party’s indemnity obligations are subject to the following: (i) the indemnified party will promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier will have sole responsibility for and control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the indemnified party of all liability); and (iii) the indemnified party will cooperate fully to the extent necessary and execute all documents necessary for the defense of such Claim.

10. General Provisions.

(a)   Entire Agreement; Interpretation.  This Agreement (which consists of the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, these Terms, and, where applicable, Exhibit A) constitutes the entire agreement and sets forth the entire understanding between the parties with respect to Client’s and all Users’ subscription to and/or use of the Service, and supersedes all prior agreements, promises, understandings, statements, representations, covenants, discussions, and all inducements to the making of this Agreement relied upon by either party, whether written or verbal, and embodies the parties’ complete and entire agreement with respect to the subject matter hereof.  No statement or agreement, verbal or written, shall vary or modify any term of the Agreement in any way whatsoever unless agreed to in writing and signed by both Ostendio and Client.  This Agreement will control over any different or additional terms of any Client purchase order or other non-Ostendio ordering document, and no terms included in any Client purchase order or other non-Ostendio ordering document will apply to the Client’s or any User’s subscription to or use of the Service.  Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement.  For purposes of this Agreement, “including” means “including without limitation”.

(b)   Marketing. Neither party may issue any press release regarding this Agreement without the other party’s prior written consent.  Either party may include the name and logo of the other party in lists of clients or vendors in accordance with the other party’s standard guidelines.

(c)    Relationship of Client and Ostendio. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.

(d)   Modifications and Waiver. As set forth above, Ostendio reserves the right to amend or modify these Terms by posting such amendment or modification on the Ostendio website and Client agrees to be bound by any such amendment or modification. Except as otherwise stated above, this Agreement including any exhibit and Order Form, may not be modified or amended by Client except by a written document executed by both parties. Any waiver of any right, obligation, and/or remedy under this Agreement must be in writing and signed by each party.  No delay in exercising any right, obligation, and/or remedy will operate as a waiver of such right, obligation, and/or remedy or any other right, obligation, and/or remedy. A waiver on one occasion will not be construed as a waiver of any right, obligation, and/or remedy on any future occasion.

(e)   Assignment.  This Agreement and any rights or obligations hereunder may not be assigned, sublicensed, or otherwise transferred by a party without the prior written consent of the non-assigning party, except that either party may assign or transfer this Agreement upon a change of control of a party, upon the sale of all or substantially all of its assets, or by operation of law by providing the non-assigning party with written notice provided that the assignee agrees in writing to be bound by all terms and conditions of this Agreement.

(f)    Governing Law. This Agreement and any claim, controversy, right, obligation, or dispute arising under or related to this Agreement, the relationship of the parties, and the interpretation and enforcement of the rights, obligations, and duties of the parties will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state courts in Arlington County, Virginia and the United States District Court for the Eastern District of Virginia.  The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.

(g)   Notices. Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Ostendio must be sent to Ostendio at the following address: Chief Executive Officer, Ostendio, Inc., Arlington Tower, 1300 17th Street North, Suite 850, Arlington, Virginia 22209.  Notices to Client will be sent to the contact person and address for Client set forth in the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable.

(h)   Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.

(i)     Facsimile Transmission/Counterparts/Electronic Signatures.  Client agrees and acknowledges that these online Terms together with the billing and subscription page within Client’s instance of the Ostendio platform or Order Form, as applicable, form a legally binding agreement between Client and Ostendio, effective as of the date Client clicks the “PLACE ORDER” button and submits the Ostendio Online Sign-up or signs an Order Form, as applicable. To the extent any signature on any version of the Terms, any Order Form, and/or any related document is necessary for any reason, the parties agree that such document may be executed and delivered by facsimile, electronic signature, or email, and, upon receipt, such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument.  To the extent any signature is necessary, the parties consent to electronic signatures for the purpose of executing this Agreement by e-mail or other electronic means, subject to compliance with any applicable laws, rules or regulations.  Any such documents that are delivered electronically and accepted are deemed to be “in writing” to the same extent and with the same effect as if the Agreement had been signed manually. In no event will electronic execution expand such assent to include any terms other than those explicitly set forth in this Agreement.

(j)     Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including, without limitation, acts of God, adverse weather conditions, fire, flood, labor difficulties, epidemic or pandemic, governmental action, or terrorism, provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party and uses commercially reasonable efforts to overcome such circumstances.

(k)    Basis of Bargain; Failure of Essential Purpose.  Client acknowledges and agrees that Ostendio has established its prices and entered into this Agreement in reliance upon the limitations and exclusions of liability and the warranty disclaimers set forth in this Agreement are an essential basis of the bargain between the parties and are material terms of this Agreement. The parties agree that the limitations and exclusions of liability and disclaimers specified in this Agreement will survive and apply even if found to have failed their essential purpose, and Client hereby waives its right to contest the enforceability of any provision of this Agreement by reason of such failure.

(l)     No Third Party Beneficiaries. This Agreement does not extend or apply to any third party and there are no third party beneficiaries to this Agreement.

(m)  Subcontractors.  Ostendio may use the services of subcontractors for the provision of the Service and performance of any services under this Agreement.

(n)   Interpretation of Agreement.  This Agreement will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting this Agreement in construing or interpreting any of the provisions contained in this Agreement.

 

EXHIBIT A

PROFESSIONAL SERVICES TERMS

These Professional Services Terms shall govern Ostendio’s provision of any Professional Services as described in any Order Form. These Professional Services Terms do not impact the Terms of Use for Client’s subscription to the Ostendio platform application.   If there is any conflict between these Professional Services Terms and the Ostendio Terms of Use, the latter shall apply and take precedence.

1. In performing and/or providing the Professional Services, Ostendio may use products, materials, information, ideas, concepts, know-how, techniques, tools, templates, models, software, procedures, documentation, technology, interfaces, data and/or databases, reports, processes, best practices, and methodologies owned or licensed by, or developed on behalf of, Ostendio or any of its partners or suppliers (collectively, the "Ostendio Property"). Subject to the limited rights expressly granted hereunder, Ostendio and its licensors reserve and retain all right, title and interest in and to the Professional Services and the Ostendio Property, respectively, including all patents and patent applications, copyrights, trademarks, domain name rights, trade secret rights, and all other intellectual property rights (collectively, “Intellectual Property Rights”) therein. No Ostendio Property shall be deemed to be work product or a “work made for hire” for the benefit of Client. Ostendio may modify or improve any Ostendio Property at any time and such Ostendio Property, and Ostendio’s rights (including all Intellectual Property Rights) will include all enhancements, modifications, adaptations and/or derivative works therein and thereto (whether made by Ostendio or any third-party or jointly). Except as expressly set forth herein, Client is not granted any right, title or interest in or to any Ostendio Property or any other equipment, supplies or materials owned, leased or licensed by or to Ostendio, whether related to the performance or provision of the Professional Services. All Ostendio Property is deemed to be Ostendio Confidential Information.

2. Ostendio shall own and retain all right, title, and interest (including all Intellectual Property Rights), in and to all work product produced for Client as well as all recommendations, ideas, techniques, know-how, designs, programs, development tools, processes, integrations, enhancements, and other technical information and any modifications or adaptations to, and/or derivative works from, the foregoing, whether developed by Ostendio in the course of performing or providing any Professional Services or co-developed by the parties. No work product shall be deemed a “work made for hire” for Client’s benefit. If any work product is delivered to Client in connection with providing the Professional Services, Ostendio hereby grants to Client a non-exclusive, worldwide (subject to export Laws), royalty-free, fully paid-up, limited right to access and use the work product only on the terms and for the same period of time as Client’s authorized use of the Ostendio subscription Service in accordance with the Agreement. Such rights shall not be sublicensable, assignable, or transferable, except in connection with Client’s permissible assignment in accordance with the Terms of Use. Notwithstanding the foregoing and except for any Ostendio Property contained in any customized work product or deliverable, Client shall own all right, title, and interest in and to any customized work product and/or deliverable (e.g., a customized report) prepared specifically for Client.

3. The Terms of Use shall govern Client’s use of the Ostendio Service. Neither these Professional Services Terms nor any Order Form grants Client any license or rights to use the Service or any Ostendio proprietary software platform or other Ostendio services, and any such rights shall be governed by the Terms of Use.

4. Nothing in the Terms of Use including these Professional Services Terms will prohibit or limit Ostendio’s use of ideas, concepts, know-how, methods, techniques, skill, knowledge and experience that were used, developed and/or gained in connection with Ostendio’s provision of the Services and/or any Professional Services, provided that such knowledge is not specific to Client and does not contain Client’s Confidential Information.

5. Subject to Client’s payment of the fees set forth in the applicable Order Form, Ostendio will provide the Professional Services as described in the applicable Order Form. Any scheduling required for the Professional Services to be performed or delivered will be described in the Order Form or the associated project plan. Client is responsible for all applicable taxes related to Ostendio’s provision of Professional Services, except for taxes based on Ostendio’s net income.

6. Ostendio will not be responsible for providing any services, tasks, or items that are not included in the description of Professional Services as described in the applicable Order Form. Any such services, tasks, or items shall be deemed out of scope for such Order Form and will require the execution of an additional Order Form or amendment to an existing Order Form with associated fees.

7. Ostendio warrants that the Professional Services will be provided in a professional and workmanlike manner. Unless otherwise specified in an Order Form, the Professional Services will be deemed to be accepted unless Client notifies Ostendio in writing within ten (10) business days of when such Professional Services were provided by Ostendio that the Professional Services do not conform to the foregoing warranty. Client’s sole and exclusive remedy for breach of the foregoing warranty will be for Ostendio to promptly correct the defective Professional Services at no cost or expense to Client, which remedy shall apply and be available so long as Client notifies Ostendio in writing of any such breach of warranty within the enumerated ten (10) business day time period of when such Professional Services were provided by Ostendio.

8. EXCEPT FOR ANY APPLICABLE AUDIT GUARANTEE OFFERED BY OSTENDIO TO CLIENT AS SET FORTH IN AN ORDER FORM, THE PROFESSIONAL SERVICES PROVIDED BY OSTENDIO ARE ADVISORY ONLY AND NO SPECIFIC RESULT IS ASSURED OR GUARANTEED. EXCEPT FOR ANY WARRANTIES EXPRESSLY CONTAINED IN THESE PROFESSIONAL SERVICES TERMS, ALL PROFESSIONAL SERVICES AND WORK PRODUCT PROVIDED BY OSTENDIO HEREUNDER ARE PROVIDED ON AN “AS IS” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, OSTENDIO SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE LIMITED WARRANTIES PROVIDED BY OSTENDIO ARE THE SOLE AND EXCLUSIVE WARRANTIES PROVIDED TO CLIENT IN CONNECTION WITH THE PROVISION OF ANY PROFESSIONAL SERVICES, WORK PRODUCT, AND/OR DELIVERABLE. OSTENDIO SHALL NOT BE RESPONSIBLE FOR LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS. ALL OF OSTENDIO’S WARRANTIES ARE SOLELY TO AND FOR THE BENEFIT OF CLIENT AND FOR NO OTHER ENTITY OR THIRD PARTY.

9. While Ostendio is providing any Professional Services to Client, and for twelve (12) months thereafter, neither party will solicit for employment any employee or contractor of the other party which it was introduced to or worked with as a result of Ostendio’s provision of any Professional Services to Client. An employee’s response to a general, non-targeted advertisement for employment shall not be deemed solicitation for the purposes of this Agreement.

10. The terms on Client’s standard procurement forms including any purchase order shall not apply to these Professional Services Terms, the Terms of Use, or any Order Form. The Professional Services Terms and any Order Form will be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there will be no presumption or inference against the party drafting the Professional Services Terms or Order Form in construing or interpreting any of the provisions.

11. Any waiver of any right or remedy under these Professional Services Terms or any Order Form must be in writing and signed by each party. No delay in exercising any right or remedy shall operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion shall not be construed as a waiver of any right or remedy on any future occasion.

12. Additional terms:

• Client represents and warrants that it has obtained all required authorizations and approvals needed in order for Ostendio to perform the Professional Services contemplated by any Order Form and for Ostendio to have access to such systems, networks, equipment, software, and information necessary therefore without violating the rights of any third party
• Client will provide Ostendio with access to the Client resources, infrastructure, offices, and applications, as agreed upon in the project plan, within a reasonable amount of time from the start date of the project.
• If needed, Client will facilitate physical access to Client worksite including, but not limited to, the provision of any required identification badges and pass codes before commencement of the Professional Services.
• Client is responsible for: (i) ensuring attendance and/or availability by all necessary Client personnel and subject matter experts at all status meetings and interviews, and (ii) reviewing and providing any feedback on all submitted documentation and deliverables within ten (10) business days of receipt from or made accessible by Ostendio. 

13. Any portion of the Professional Services described in an Order Form may be performed by Ostendio’s authorized third party partners and/or contractors. In such situations and upon Client’s written request, Ostendio will provide Client with details of the partner and/or contractor involved and the portion of the Professional Services which will be provided by such partner and/or contractor. However, at all times, Ostendio will remain the prime contractor and will retain responsibility and accountability for its partners’ and contractors’ performance.

14. Ostendio’s provision of Professional Services is based on the following assumptions:

• Client has already purchased a sufficient number of Ostendio software platform licenses to meet the requirements of this Attachment.
• Client will allocate a minimum of one (1) user license with admin privileges to the Ostendio admin through the duration of the project.
• Ostendio will conduct each project remotely via web and/or teleconference. At Client’s written request, Ostendio will provide in person visits to Client’s designated location as agreed to in writing between Ostendio and Client and subject to Client reimbursing Ostendio for all travel and related expenses.
• Client’s subject matter experts and designated resources will be available as needed to support the project schedule (time requirements for each individual will be determined at project start).
• Client will procure and install the IT infrastructure required to support the Ostendio Professional Services according to the timing of the project work plan.
• No effort or associated fees have been included for the setup, training, testing, and/or deployment for any new entities, assets, or facilities that Client may acquire, wholly or in part, during the course of the engagement. If any of these situations arise, Ostendio will examine the impact on scope of work, timing, and budget and review with Client before proceeding.
• No effort, allocation of Ostendio personnel, or associated fees have been included for the development of software modifications or new enhancements developed by Ostendio during the course of the engagement, custom reports, or any other task not included in this Attachment. If any of these situations arises, Ostendio will examine the impact on scope of work, timing, and budget and review with Client before proceeding.

15. Change Management Guidelines

Client and Ostendio acknowledge and agree that, as the Professional Services engagement proceeds, there may be unexpected and/or unanticipated factors and/or considerations that necessitate modifications and/or additions to the scope of work described in the applicable Order Form. If modifications and/or additions are identified and/or required, either party will communicate the proposed change(s) to the other party. Ostendio will assess the impact of the modifications and/or addition to the schedule and fees established for the engagement. If the scope of work, schedule, and/or fees are impacted, these elements must be negotiated and agreed to in a written amendment to the applicable Order Form or a new Order Form, signed by authorized representatives of Client and Ostendio before proceeding with the change(s). Any modifications required as a result of Ostendio’s errors, negligence, or failure to comply with its obligations under the applicable Order Form shall be at Ostendio’s sole cost and expense, and will not result in any additional fees to Client.

CHANGE HISTORY

January 1, 2023 (Current)| 

• All references to “Customer” have been changed to refer to “Client”.
• There is revised language further clarifying that each Client’s payment obligation applies based on the specific number of Users as set forth in the billing and subscription page within each Client’s instance of the Ostendio platform or Order Form, as applicable, irrespective of whether each User has been given access or has accessed and/or used the Service.     
• Consistent with Ostendio revised branding, all references to “MyVCM” have been omitted.
• There is clarifying language stating that Ostendio’s Services made available to Clients do not include any implementation, professional, or technical services (“Professional Services”), which any Client may purchase separately from Ostendio pursuant to the Professional Services Terms set forth in new Exhibit A to the Terms of Use and the applicable Order Form describing such Professional Services. Each Client may purchase Professional Services at Ostendio’s then-current hourly rates on a fixed fee basis or on a retainer basis. There is also language stating that Ostendio’s provision of Professional Services is governed by and subject to the Terms of Use including new Exhibit A.
• There is new language stating that each Client represents and warrants that it owns or otherwise has written permission and the right to use any and all material, data, and/or content uploaded into and/or stored in Client’s instance of the Ostendio platform. Each Client is prohibited from uploading into or storing any material, data, and/or content (including, without limitation, any third party copyrighted material or content) in the Ostendio platform in an unauthorized manner. There is also explicit language about each Client not using any materials and/or content of HITRUST®* or the American Institute of Certified Public Accountants (“AICPA”) with respect to any SOC 1®**, SOC 2®**, and/or SOC 3®** audit without proper authorization. [*HITRUST, *HITRUST CSF, and *HITRUST MyCSF are registered trademarks of the HITRUST Services Corporation] [**SOC 1, SOC 2, and SOC 3 are registered trademarks of the AICPA in the United States]
• There is related new language stating that each Client agrees to indemnify Ostendio in connection with any claim brought by any third party against Ostendio to the extent the claim is based upon an allegation that any material, data, and/or content uploaded into and/or stored in Client’s instance of the Ostendio platform misappropriates any third party trade secret or infringes any third party copyright, patent, trademark, or any other intellectual property right.

July 15, 2020 | Changed terminology for "Registration" to "Sign-up" and add clearer language about adding users and upgrading
November 8, 2019 | Updated Cancellation notification requirements and added Auditor Connect data sharing terms
January 8, 2019 | Updated notice address.  Added manual payment fee, updated EU Data Protection to GDPR, other minor corrections.
July 11, 2018 | Updated Terms of Use to incorporate 3rd Party Services and updates to billing support fees