HomeMy WebLinkAboutSynopsis SaaS Subscription Agreement 2019-11-27 - PFM Countersigned
SERVICE PROVIDER
PFM Solutions LLC (“PFM”)
1735 Market Street, 43rd Floor
Philadelphia PA 19103
CUSTOMER
Company Name: Kittitas County
Address: 205 W 5th Ave Suite 102
City: Ellensburg State: WA Zip Code: 98926
INITIAL TERM
Effective Date: January 2, 2020 Termination Date: January 1, 2023 Months: 36
FEES
FEE BASIS AMOUNT DUE DATE(S)
Annual $9,500
Licensing: January 2, 2020
(annually thereafter)
One-Time $5,000
Implementation: January 2, 2020
Ancillary Services As Requested As Incurred Monthly
AUTHORIZED USERS
Standard Users Unlimited
TERMS AND CONDITIONS
Subscription: PFM shall grant Customer the right to Access the Application, described in Annex A.
Services: PFM shall provide Customer with the Services described in Annex B.
Taxes: Fees payable to PFM shall not include any taxes that Customer’s access to and use of t he Application or receipt of Services may be subject.
Users: Customers shall only allow its Authorized Users to access and use Customer’s Account.
Limitation on Liability: IN NO EVENT SHALL PFM BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAM AGES.
Entire Agreement: Each annex that is attached hereto is incorporated in its entirety into and form a part of this Subscription Agreement
(collectively, the “Agreement”). Any capitalized but undefined term herein shall have the meaning given to it in the applicable annex. This
agreement: (i) comprises the entire agreement between the parties relating to the subject matter hereof. This Agreement may o nly be modified by a
writing that is manually signed by both parties.
ADDITIONAL TERMS AND CONDITIONS
Customer agrees that in addition to the terms and conditions contained on this page, the terms and conditions as set forth in Annex C
(“Additional Terms and Conditions”): (i) were read and understood by Customer prior to signing below; and (ii) are incorporated herein
by reference as if fully set forth herein. The Additional Terms and Conditions address the following, among others, authorized users, fees,
taxes, indemnification, limitation of liability, confidentiality and governing law.
BY SIGNING BELOW, CUSTOMER AGREES TO THE TERMS AND CONDITIONS SET FORTH ON THIS PAGE AND IN THE ADDITIONAL
TERMS AND CONDITIONS. This agreement may be executed: (a) in counterparts, both of which taken together shall constitute one simple
agreement between parties.
SIGNATURE AUTHORIZATION SERVICE PROVIDER Name: PFM Solutions LLC CUSTOMER Name:
Signature: Signature:
Print Name:
Albert P. Matteo, Jr
Title:
President
Print Name: Title:
Software as a Service Subscription Agreement
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Amy S. Cziske
Amy S. Cziske
Treasurer
Annex A – Description of Application (Synopsis)
Annex A
to
Synopsis Software as a Service Subscription Agreement
Description of Application
(Synopsis)
1. Application. The “Application”, as defined and used throughout this Agreement, constitutes the
configuration of Synario identified in Section 2 of the Subscription Agreement.
1.1. “Synopsis” shall mean a configuration of Synario by which Customer has access to the “Presentation
Interface”.
1.2. “Presentation Interface” shall mean one or more Decks, comprising one or more Slides constructed
on the Synario software to facilitate financial analysis and communicate that analysis to Customer
stakeholders. “Decks” constitute collections of Slides, by which Customer and Authorized Users (i)
drive analysis; (ii) review and analyze reports, charts, and Customer Data, and (iii) consider other
results and output of the Application. “Slides” constitute dashboards and other collections of reports,
graphs, charts, tables, and controls, by which Customer and Authorized Users model and interact
with the Power User Interface of the Synario software.
2. Documentation. PFM may make available to Customer certain Documentation. “Documentation” means
PFM’s standard user documentation (that PFM generally makes available to its Application customers), in
electronic form, that describes the use, features and operation of the Application. Use of the
Documentation is restricted solely to Customer’s use of the Application during the Term and solely for
Customer’s internal business purposes. Customer may print or copy the Documentation as needed for its
own internal business purposes provided that all copyright notices are included therein. The
Documentation shall be considered Confidential Information of PFM. Unless the Documentation is
separately referred to herein, all references in this Agreement to the Application shall include the
Documentation.
3. Updates. The Application, and all references to it in this Agree ment, shall include new code related to the
Synario platform and new configurations of the Application implemented by PFM to: (i) improve performance,
(ii) improve functionality, (iii) fix reported issues, or (iv) modify and revise prior versions or releases of Synario
and/or the Application, as well as additions or corrections to Documentation (collectively, “Updates”). PFM
reserves the right, in its sole discretion, to make any Updates that it deems necessary or desirable in
furtherance thereof.
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Annex B – Description of Services (Synopsis Plus)
Annex B
to
Synopsis Software as a Service Subscription Agreement
Description of Services
(Synopsis Plus)
PFM will provide the following services related to the implementation and ongoing use of the Application.
1. Implementation Services. Shall mean the services provided by PFM in connection with the development
of the Application to which Customer and Authorized Users have been granted Access, as identified in
Section 2 of the Subscription Agreement and described in the Annex A (Description of Application). The
Implementation Services comprise:
1.1. Project Management. PFM shall manage the process of implementing the Application, including: (i)
developing a mutually-acceptable schedule (the “Schedule”) to complete the Implementation
Services, (ii) confirming the Authorized Users as defined in the Subscription Agreement and as
identified by Customer, (iii) confirming other key stakeholders in the implementation process as
identified by Customer (with the Authorized Users, the “Responsible Parties”), (iv) managing access
to Synario and the Application, (v) arranging access to all electronic and telephonic meetings and
sessions, (vi) managing the flow of information between PFM and Customer, (vii) and providing
periodic reports to the Responsible Parties describing progress against the Schedule.
1.2. Phase ONE (Learn). PFM will work collaboratively with Customer to provide:
1.2.1. Initial Data Process. PFM will work collaboratively with Customer to develop and import
summary Customer financial data.
1.2.2. Introductory Training. PFM shall provide: (i) the Documentation; and (ii) up to three (3) one-
hour-long internet sessions to introduce Customer to the Application, focusing on:
1.2.2.1. Navigation. How to efficiently and effectively navigate the Decks;
1.2.2.2. Assumptions. How to set Application assumptions and parameters to drive analysis;
1.2.2.3. Analysis. How to conduct sensitivity, scenario, and what-if analysis.
1.3. Phase TWO (Configure). PFM will work collaboratively with Customer to provide:
1.3.1. Design Process. PFM will work collaboratively with Customer via one (1) one-hour-long
internet session, as needed, to develop specifications for the Application (the "Design
Process"). PFM will endeavor to understand Customer preferences as related to the
configuration of the Presentation Interface (the "Synopsis Design'').
1.3.2. Customer Data. PFM will conduct up to one (1) two-hour-long internet session, as needed,
to describe the Customer Data required for the Application.
1.3.3. Data Importation. PFM will import the Customer Data into the Application.
1.3.4. Configuration Process. PFM will configure the Application to reflect the Synopsis Design in
consideration of Customer Data.
1.4. Phase THREE (Deploy). PFM will work collaboratively with Customer via one (1) one-hour-long
internet session, as needed, to provide:
1.4.1. Final Adjustments. Amend the visual content within the Decks and Slides;
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Annex B – Description of Services (Synopsis Plus)
1.4.2. Validation. Achieve final agreement that the Application is configured to meet Customer
needs;
1.4.3. Final Training. Revisit key concepts related to the use of the Application.
2. Ongoing Services. Shall mean the advisory services provided by PFM in connection with the ongoing
use of the Application by Customer and Authorized Users, as described in the Standard Terms and
Conditions. The Ongoing Services comprise:
2.1. Development Assistance. PFM will provide Customer post-implementation assistance by which
PFM personnel answer Customer questions and otherwise direct Customer in how Customer can
or should reconfigure the Decks and Application (“Development Assistance”). As requested by
Customer, PFM will provide Development Assistance via telephone, Internet and/or email from 9
AM to 6 PM Eastern Time, Monday through Friday, except on recognized US holidays. Any request
for Development Assistance outside of the times provided in the foregoing sentence shall be on a
previously scheduled appointment-only basis as mutually agreed upon by PFM and Customer.
2.2. Forum(s). PFM will provide Customer access to one or more internet portals hosted by PFM on which
Customer and other Synario subscribers are provided a platform to exchange insights, use cases,
and other information.
2.3. Hosted Discussions. PFM may, in its sole discretion, host discussions, meetings, and sessions,
internet-based or otherwise, during which Customer and other Synario subscribers are provided
opportunities to exchange insights, use cases, and other information.
2.4. Post-implementation Training. PFM may, in its sole discretion, host training sessions, internet -
based or otherwise, during which Synario’s features and functionality will be explored.
3. Ancillary Services. Shall mean post-implementation support related to the Application, as requested by
Customer. The Ancillary Services comprise: (i) post-implementation modifications, additions, and/or
deletions of elements of the Application executed on behalf of Customer by PFM, and (ii) post-
implementation training requested specifically by and for Customer. PFM will provide Ancillary Services
via telephone, Internet and/or email from 9 AM to 6 PM Eastern Time, Monday through Friday, except on
recognized US holidays. Any request for Ancillary Services outside of the times provided in the fo regoing
sentence shall be on a previously scheduled appointment-only basis as mutually agreed upon by PFM
and Customer.
4. Customer Responsibilities.
4.1. Application-Development Responsibilities. Customer will actively participate in the Data and
Design Processes.
4.2. Training-Related Responsibilities. Customer will: (i) participate in the Introductory Training
sessions, and (ii) review the Documentation. Customer acknowledges that the Training Process
is serially dependent on the Data and Design Processes.
4.3. Data-Related Responsibilities. Customer will provide the Customer Data, as needed, to load the
Application in support of the Implementation Services.
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Rev. 24.10.18 – Annex C – Terms and Conditions
Annex C
to
Synopsis Software as a Service Subscription Agreement
Standard Terms and Conditions
1. Subscription. Subject to these standard terms and conditions (“Terms and Conditions”), PFM hereby
grants Customer the right to access and use the Application (“Access”) during the Term (defined below),
solely for Customer’s internal business purposes (the “Subscription”). The Application, and all references
to it in these Terms and Conditions, shall also include Updates (as defined in Annex A). The Subscription
is subject to, and in consideration of, the full payment of the Licensing Fees owed to PFM as described
in the Subscription Agreement.
1.1. Access. The Application is only accessible via the Internet. Access is only granted to Authorized
Users as described below.
1.2. Web Browser. Customer is solely responsible for observing the then-current minimum web
browser requirements that PFM defines from time to time.
2. Services. Subject to these Terms and Conditions, PFM agrees to provide Customer the Services
described in Annex B in support of the implementation and ongoing use of the Application. The Services
are subject to, and in consideration of, the full payment of the Implementation Fees and Licensing Fees
owed to PFM as described in the Subscription Agreement.
3. Cooperation. Customer agrees: (i) to cooperate with PFM in order for PFM to provide Services to
Customer; and (ii) to comply with instructions that PFM may provide to Customer in connection with
PFM’s provision of Services to Customer, and that the provision of certain Services by PFM may be
dependent on Customer providing the foregoing cooperation. PFM shall not be responsible or liable for
any delay or failure of performance caused in whole or in part by Customer’s failure to perform its
obligations under these Terms and Conditions.
4. Customer Account.
4.1. Authorized Users. A Customer account will be created in connection with Customer’s use of the
Application (“Account”). Customer must not allow anyone other than Customer’s authorized users
(each an “Authorized User”) to access and use Customer’s Account. Customer acknowledges
and agrees: (i) to keep, and ensure that Authorized Users keep, all Credentials (defined below)
secure at all times; (ii) to remain solely responsible and liable for the activity that occurs in
Customer’s Account, (iii) that the Credentials for each Authorized User may only be used by that
Authorized User, and that multiple people may not share the same Credentials; and (iv) to promptly
notify PFM in writing if Customer becomes aware of any unauthorized access or use of Customer’s
Account, any Credentials or the Application.
4.1.1. Standard Users shall refer to Authorized Users that are granted access to the Presentation
Interface of the Application, as described in the Subscription Agreement.
4.1.2. Power Users shall refer to Authorized Users that are granted access to both the Presentation
Interface and the Power User Interface of the Application, as described in the Subscription
Agreement.
4.2. Credentials. For purposes of these Terms and Conditions, “Credentials” means user identification
numbers, passwords, security codes, passphrases, security questions, biometrics, personal
identification numbers, or other credentials necessary for Customer and its Authorized Users to
access the Application and Services, as established by PFM and its third party vendors from time
to time.
4.3. Security Devices. For purposes of these Terms and Conditions, “Security Devices” means Credentials,
anti-malware services, out-of-band authentication services, secure tokens and other procedures or
technologies required to access a Service, the Application, network or web site. PFM may change the
Security Device(s) from time to time. PFM will deliver and/or communicate the Security Device(s)
directly to the Permitted Users.
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4.4. Unique Credentials. PFM will assign each Customer and each Authorized User unique Credentials,
which must be used when accessing the Application and Services. Authorized Users shall use only
their own assigned Credentials when requesting Services and to access the Application.
4.5. Reliance by PFM. PFM SHALL BE ENTITLED TO RELY, WITHOUT INVESTIGATION, UPON THE
AUTHENTICITY OF ANY WRITTEN OR ORAL INSTRUCTION, INCLUDING ANY WRITTEN OR
ELECTRONIC SIGNATURE OR USE OF CREDENTIALS BELIEVED BY PFM IN GOOD FAITH TO
BE AUTHENTIC AND MADE OR GIVEN BY ANYONE PURPORTING TO ACT ON BEHALF OF
CUSTOMERS OR AUTHORIZED USERS.
5. Restrictions on Use. Customer shall only access the Application via the PFM designated web portal and
in connection with Customer’s Account. Customer must not, and shall not allow any Authorized User or
third party to: (i) circumvent, disable or otherwise interfere with security-related features of the
Application or features that enforce limitations on use of the Application; (ii) violate or abuse password
protections governing access to the Application; (iii) allow any third party to use the Application; (iv) sell,
rent, lease, license or timeshare the Application or use it in any service bureau arrangement; (v) copy,
modify, reverse engineer, decompile, disassemble or derive, or attempt to derive, the source code of,
the Application or any components thereof; (vi) use the Application to develop a competing service or
product or, directly or indirectly, assist any other individual or entity in developing a competing service
or product; (vii) use any automated means to access the Application; (viii) take any action that imposes
or may impose, at PFM's sole discretion, a disproportionately large load on the PFM infrastructure; (ix)
interfere or attempt to interfere with the integrity or proper working of the Application; (x) remove, deface,
obscure, or alter PFM’s, or any third party’s, copyright notices, trademarks, or other proprietary rights
affixed to or provided as part of the Application, or use or display logos of the Application differing from
those of PFM; and/or (xi) use the Application in any unlawful manner or in breach of the Agreement.
Customer agrees and acknowledges that a violation of this Section is a material breach of the
Agreement and that if Customer provides access to the Application to an unauthorized third party, or
uses the Application primarily for the benefit of an unauthorized third party, then Customer shall be liable
for the payment of an Implementation Fee and Licensing Fee for each such unauthorized third party, in
addition to any other remedies available to PFM pursuant to these Terms and Conditions.
6. Customer Data.
6.1. Customer Data. During the Term, Customer will provide, upload, import, transmit, post, or make
accessible to PFM certain data, including financial statements, general ledger information, budget
information, and all other data and assumptions required for Customer to use the Application and
Services ("Customer Data").
6.2. License. Customer grants PFM a non-exclusive license to use, process, display, copy and store
the Customer Data in order to provide the Application and Services to Customer.
6.3. Ownership; Responsibility. The intellectual property and all other rights, title and interest of any
nature in and to the Customer Data are and shall remain the exclusive property of Customer and
its licensors. Except as expressly set forth herein, nothing herein shall be construed as
transferring any rights, title or interests to PFM or any third party. Customer represents and
warrants that: (i) Customer has the right to provide PFM the license granted herein to use such
Customer Data in accordance with these Terms and Conditions; and (ii) the Customer Data does
not infringe or violate any patents, copyrights, trademarks or other intellectual property, proprietary
or privacy or publicity rights of any third party. Customer shall remain solely responsible and liable
for the Customer Data and expressly releases PFM from any and all liability arising from PFM’s
use of the Customer Data as permitted herein.
6.4. Security. During the Term, PFM agrees to implement reasonable security measures to protect
Customer Data in accordance with applicable industry standards.
6.5. Backup. During the Term, PFM will routinely backup Customer Data, however the Application does
not operate as an archive or file storage service. Customer is and shall remain solely responsible
for maintaining redundant archives of the Customer Data. Customer acknowledges that PFM has
no obligation or liability for any loss, alteration, destruction, damage, corruption or recovery of
Customer Data.
7. Title. The intellectual property and all other rights, title and interest of any nature in and to the
Application, and any related content, Documentation (as defined in Annex A) and Services provided or
made available by PFM hereunder, including all Updates, are and shall remain the exclusive property
of PFM and its licensors. Except as expressly set forth herein, nothing in these Terms and Conditions
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Rev. 24.10.18 – Annex C – Terms and Conditions
shall be construed as transferring any rights, title or interests to Customer or any third party. PFM and
its licensors reserve any and all rights not expressly granted herein.
8. Anonymous Information. PFM may collect, use and publish Anonymous Information (defined below),
and disclose it to its third party service providers, to provide, improve and publicize PFM’s applications
and services. “Anonymous Information” means information about use of the Application, including
Customer Data, which does not enable identification of an individual, such as aggregated and analytics
information about use of the Application. PFM owns all Anonymous Information collected or obtained
by PFM.
9. Payments. Customer shall pay PFM the fees set forth in the Subscription Agreement in accordance with this
Section 9.
9.1. Implementation Fee. The provision of any “Implementation Services” (as described in Annex B) is
subject to Customer’s payment in full of the Implementation Fee set forth in the Subscription
Agreement.
9.2. Licensing Fee. Access to the Application and the provision of any “Ongoing Services” (as described
in Annex B) is subject to Customer’s payment in full of the related Licensing Fee for the related
subscription period set forth in the Subscription Agreement.
9.3. Ancillary Services Fee. If Customer requests that PFM provide ancillary services, then PFM will
provide such service subject to Customer’s payment in full of the “Ancillary Services Fee” set forth in
the Subscription Agreement.
9.4. Expenses. Customer will reimburse PFM for reasonable transportation, lodging, meal, and out -of-
pocket expenses incurred by PFM for travel, as requested by Customer, to any location outside
of Philadelphia, Pennsylvania. Customer will be solely responsible for all expenses incurred by
Customer personnel in connection with these Terms and Conditions, the Application, and the
Services.
9.5. Payment Terms. All payments hereunder are quoted and shall be paid in United States Dollars.
Payments shall be made without any right of set-off or deduction and are irrevocable and (except
as expressly set forth herein) nonrefundable. All PFM invoices are due and payable in accordance
with the Subscription Agreement. Any amount not paid when required to be paid hereunder shall
accrue interest on a daily basis until paid in full at the lesser of: (i) the rate of one and a half percent
(1.5%) per month; or (ii) the highest amount permitted by applicable law.
9.6. Taxes. All fees payable to PFM are exclusive of applicable taxes (including without limitation VAT),
withholdings, duties, or other governmental charges (collectively, “Taxes”), and the fees set forth
in the Subscription Agreement are the net amounts which PFM shall be paid by Customer
hereunder. Customer contemplates that Customer’s access to and use of the Application and
receipt of Services will be exempt from all Taxes. If Customer’s access to or use of the Application
or receipt of Services is nevertheless determined to be subject to Taxes, Customer shall pay when
due all such Taxes assessed or levied against or with respect to the Application or Services.
10. Term, Renewal, and Termination.
10.1. Initial Term. The Agreement shall be effective upon the Effective Date and shall continue for an
initial term as described in the Subscription Agreement (the “Initial Term”).
10.2. Renewal. Following the Initial Term, the Agreement shall automatically renew at the then-applicable
Licensing Fee for successive one-year terms (each a “Renewal Term”, and together with the Initial
Term, the “Term”) unless: (i) PFM or Customer provides the other with sixty (60) days written
notice prior to the end of any term of its intent not to renew, or (ii) the Agreement is terminated in
accordance with Section 10.3 (Termination) below. If Customer continues to use the Application
past any renewal date, then Customer shall be deemed to have renewed the Agreement for the
following term at the rates applicable for said new term.
10.3. Termination.
10.3.1. Material Breach. Either party may terminate the Agreement with immediate effect if the
other party materially breaches the Agreement and such breach remains uncured (to
the extent that the breach can be cured) fifteen (15) days after having received written
notice thereof.
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10.3.2. Distress Event. In the event that either party becomes liquidated, dissolved, whether
voluntarily or involuntarily, or becomes subject to any bankruptcy or insolvency (or
similar) proceeding, or shall take any action to be so declared, the other party shall have
the right to immediately terminate the Agreement.
10.3.3. Suspension. If PFM believes that Customer is using the Application in a manner that
may cause harm to PFM or any third party then PFM may, without derogating from
PFM’s right to terminate the Agreement for any breach hereof, suspend Customer's
access to and use of the Service until such time as PFM believes the threat of harm, or
actual harm, has passed.
10.4. Effect of Termination.
10.4.1. General. Upon termination of the Agreement, PFM may disable all access to the
Application, and Customer shall immediately discontinue all access and use, including
by all Authorized Users, of the Application and shall promptly, but in any event within
three (3) days, permanently delete all copies of the Documentation in Customer’s
possession or control.
10.4.2. Fees. Customer shall be liable for all amounts due and payable hereunder through the
effective date of expiration or termination, as described in the Subscription Agreement,
including 100% of all Implementation Fees and the pro-rated amount of the most
recently billed Licensing Fees. EXCEPT AS EXPLICITLY PROVIDED HEREIN,
CUSTOMER SHALL NOT BE ENTITLED TO A REFUND OF ANY AMOUNTS
PREVIOUSLY INVOICED OR PAID.
10.4.3. Access to Customer Data. Upon termination of the Agreement, Customer will lose all
access to any Customer Data that PFM may be storing in order to make available the
Application to Customer. It is Customer's responsibility to download its Customer Data
prior to termination of the Agreement. Notwithstanding the foregoing, for a period of
thirty (30) days from the effective date of termination, PFM will provide Customer, upon
Customer’s written request, with a reasonable opportunity to download the Customer
Data. PFM reserves the right to permanently delete any Customer Data that may be
contained in Customer's Account at any time following said thirty (30) day period, and
Customer agrees to waive any legal or equitable rights or remedies it may have against
PFM with respect to Customer Data that is deleted in connection thereto.
10.4.4. Survival. This Section 10 and Sections 5 (Restrictions on Use), 7 (Title), 9 (Payments,
to the extent any amounts due hereunder remain payable), 11 (Warranty Disclaimer),
12 (Limitation of Liability), 13 (Indemnification), 14 (Confidential Information), 15
(Privacy Policy) and 17 (Independent Contractors) to 21 (General) shall survive
termination of the Agreement.
11. Warranty Disclaimer.
11.1. Except as expressly set forth herein: (i) the Application, Reports (defined below), and Services are
provided on an "as is" basis; and (ii) ALL WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE
HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW . PFM
WILL NOT BE LIABLE OR RESPONSIBLE FOR: (a) ANY TECHNICAL PROBLEMS OF THE
INTERNET (INCLUDING WITHOUT LIMITATION SLOW INTERNET CONNECTIONS OR
OUTAGES); AND/OR (b) ANY ISSUE THAT IS ATTRIBUTABLE TO CUSTOMER’S HARDWARE
OR SOFTWARE OR CUSTOMER’S INTERNET OR DATA SERVICE PROVIDER.
11.2. PFM DOES NOT OFFER A WARRANTY OR MAKE ANY REPRESENTATION REGARDING ANY
CONTENT, REPORTS, INFORMATION, OR RESULTS THAT CUSTOMER OBTAINS
THROUGH OR IS GENERATED BY THE USE OF THE APPLICATION (COLLECTIVELY,
“REPORTS”), OR THAT THE REPORTS ARE COMPLETE OR ERROR-FREE. THE REPORTS
DO NOT CONSTITUTE FINANCIAL OR LEGAL ADVICE, AND CUSTOMER UNDERSTANDS IT
MUST DETERMINE FOR ITSELF THE NEED TO OBTAIN ITS OWN INDEPENDENT
FINANCIAL AND LEGAL ADVICE REGARDING THE SUBJECT MATTER OF ANY REPORT
THAT CUSTOMER USES OR IS CONSIDERING TO USE. CUSTOMER’S USE OF AND
RELIANCE UPON THE APPLICATION AND ANY REPORTS IS ENTIRELY AT CUSTOMER’S
SOLE DISCRETION AND RISK, AND PFM SHALL HAVE NO RESPONSIBILITY OR LIABILITY
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WHATSOEVER TO CUSTOMER NOR ANY OTHER PERSON IN CONNECTION WITH ANY OF
THE FOREGOING. THE PARTIES DO NOT CONFER ANY RIGHTS OR REMEDIES UPON
ANY PERSON OTHER THAN THE PARTIES TO THE AGREEMENT AND THEIR RESPECTIVE
SUCCESSORS AND PERMITTED ASSIGNS.
12. Limitation of Liability.
12.1. EXCEPT TO THE EXTENT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL PFM BE
LIABLE FOR ANY LOSS OF INCOME, PROFITS, REPUTATION, SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT ARISE UNDER THE
AGREEMENT OR THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE
APPLICATION, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.2. PFM’S TOTAL AGGREGATE LIABILITY FOR ALL DAMAGES AND LOSSES UNDER THE
AGREEMENT, OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE THE
APPLICATION, SHALL NOT UNDER ANY CIRCUMSTANCE EXCEED THE AMOUNT OF FEES
ACTUALLY PAID BY CUSTOMER TO PFM UNDER THE AGREEMENT WITHIN THE TWELVE
(12) MONTHS PRECEDING THE DATE OF BRINGING A CLAIM.
13. Indemnification.
13.1. By PFM. PFM hereby agrees to defend and indemnify Customer against any damages awarded
against Customer by a court of competent jurisdiction, or paid in settlement, in connection with a
third party claim, suit or proceeding that Customer’s use of the Application within the scope of the
Agreement infringes any copyright or trade secret of a third party. PFM shall have no obligations
or liability hereunder to the extent that the alleged infringement is based on the Customer Data.
Without derogating from the foregoing defense and indemnification obligation, if PFM believes that
the Application, or any part thereof, may infringe, then PFM may in its sole discretion: (i) obtain (at
no additional cost to Customer) the right to continue to use the Application; (ii) replace or modify
the allegedly infringing part of the Application so that it becomes non-infringing while giving
substantially equivalent performance; or (iii) if PFM determines that the foregoing remedies are
not reasonably available, then PFM may require that use of the (allegedly) infringing Application
(or part thereof) shall cease and in such an event Customer shall receive a prorated refund of any
Licensing Fee paid for the unused portion of the subscription period. This Section states PFM's
entire liability and Customer's exclusive remedy for infringement.
13.2. By Customer. To the extent not prohibited under applicable law, Customer hereby agrees to
defend and indemnify PFM against any damages awarded against PFM by a court of competent
jurisdiction, or paid in settlement, in connection with a third party claim, suit or proceeding arising
from (a) the use of the Customer Data within the scope of the Agreement that infringes any
intellectual property rights of a third party; (b) an unauthorized user’s access to the Application,
including, but not limited to, access obtained by an unauthorized user through using valid
Credentials; or (c) a claim that such third party suffered damages in reliance upon the output of
the Application.
13.3. General. The indemnification obligations of the indemnifying party under this section are subject
to: (i) the indemnifying party being given prompt written notice of the claim; (ii) the indemnifying
party being offered immediate and complete control over the defense and/or settlement of the
claim; and (iii) the indemnified party providing cooperation and assistance, at the indemnifying
party’s expense, in the defense and/or settlement of such claim and not taking any action that
prejudices the indemnifying party’s defense of or response to such claim.
14. Confidential Information. Customer may have access to certain of PFM’s non-public and/or
proprietary information, in any form or media, including (without limitation) confidential trade secrets and
other information related to the Application, other products, software, technology, data, know-how, or
business, whether written or oral, and any such other information that, regardless of the manner in which
it is furnished and given the totality of the circumstances, a reasonable person or entity should have
reason to believe is proprietary, confidential, or competitively sensitive ("Confidential Information").
Customer shall take reasonable measures, at least as protective as those taken to protect its own
confidential information, but in no event less than reasonable care, to protect PFM’s Confidential
Information from disclosure to a third party. Customer shall not use or disclose the Confidential
Information except as expressly permitted herein or required by applicable law. All right, title and interest
in and to Confidential Information is and shall remain the sole and exclusive property of PFM. The terms
of the Agreement are considered Confidential Information (although Customer may disclose the terms
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Rev. 24.10.18 – Annex C – Terms and Conditions
herein to its advisers and (potential and actual) investors, subject to a confidentiality undertaking). The
Customer Data is the confidential information of Customer and PFM shall take reasonable measures to
protect the Customer Data, except to the extent that applicable law requires the Customer data to be
kept publicly available.
15. Privacy Policy. To the extent that any personally identifiable information is collected by or on behalf of
PFM, it shall be used by PFM in accordance with the PFM privacy policy which is available at
https://www.pfm.com/privacy and may be modified by PFM from time to time.
16. Reference Customer. PFM may use Customer’s name and logo on its website and in its promotional
materials to state that Customer is a customer of PFM and Application user, but will not imply that the
parties are affiliated.
17. Independent Contractors. The parties are independent contractors. Nothing herein shall create a
partnership, joint venture, agency, or employment relationship between the parties. Neither party may
make, or undertake, any commitments or obligations on behalf of the other.
18. Assignment. The Agreement and any rights or obligations thereunder may not be transferred or
assigned by Customer without the prior written consent of PFM. PFM reserves the right to subcontract
any of the Services to third parties. PFM further reserves the right to subcontract other services ,
including hosting, data storage, and/or backup services. Subject to the foregoing conditions, the
Agreement shall be binding upon and inure to the benefit of each party and its respective assigns. Any
prohibited assignment shall be null and void.
19. Notice. Unless otherwise agreed to by the parties, any notice under the Agreement shall be in writing
and addressed and delivered to the other party’s address or email set forth in the Subscription
Agreement. Notice shall be deemed to have been received by a part y: (i) when delivered personally by
hand (with written confirmation of receipt); (ii) on the business day sent, if sent by email, receipt
confirmation requested, before 5pm (or on the next business day if sent after 5pm); or (iii) on the fifth
(5th) business day after which such notice is deposited prepaid in the registered postal system. Either
party may change its address for notice purposes upon issuance of notice thereof in accordance with
this section.
20. Governing Law and Settlement of Disputes.
20.1. The Agreement shall be governed by the laws of the Commonwealth of Pennsylvania, without
regard to its conflict of laws provisions. The United Nations Convention for the International Sale
of Goods shall not apply.
20.2. In the event of any dispute arising out of the Agreement, each party agrees to cooperate and
negotiate in good faith with the other party in an effort to amicably resolve said dispute. Except
as otherwise required by applicable non-waivable law, all disputes arising out of the Agreement
shall be subject to, and each party hereby consents to, the sole and exclusive jurisdiction of the
competent courts located in Philadelphia, Pennsylvania. Notwithstanding the foregoing, PFM may
seek injunctive or other equitable relief in any jurisdiction in order to protect its intellectual property
rights.
General. The headings used herein are for convenience only and shall in no case be considered in
construing the Agreement. Any subscription agreement entered into between the parties shall be deemed to
incorporate these Terms and Conditions. If a subscription agreement contains terms that purport to modify
or supplement these Terms and Conditions then those subscription agreement terms shall have no force or
effect, unless expressly agreed to in writing by both parties. In the case of an inconsistency or contradiction
between these Terms and Conditions and any subscription agreement, these Terms and Conditions shall
prevail.
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