PDCFLOW SERVICES TERMS OF USE

Version Date: May 6, 2021

IMPORTANT-READ CAREFULLY. THESE TERMS OF USE APPLY TO AND GOVERN THE ACCESS TO AND USE OF ALL SERVICES, SOFTWARE AND APPLICATIONS OFFERED BY PDCFLOW. (“PDCFLOW,” “WE,” “US,” OR “OUR”), INCLUDING OUR CLOUD-BASED SERVICES, AND ALL CONTENT CONTAINED THEREIN (COLLECTIVELY, THE “SERVICES”). WE MAY REVISE AND UPDATE THESE TERMS OF USE FROM TIME TO TIME. ALL USERS OF THE SERVICES MUST CHECK THESE TERMS OF USE PERIODICALLY FOR CHANGES. ALL CONTINUED USE OF THE SERVICES WILL BE SUBJECT TO THESE TERMS OF USE, AS MAY BE REVISED.

  1. Acceptance of Agreements.  By creating an account with Us, executing a Sales Order (defined below) for the Services, logging into the Services or otherwise using the Services, the Customer identified in the Sales Order (the “Customer,” “You,” or “Your”), on behalf of itself and each of its Authorized Users (defined below), unconditionally agrees to these (a) Terms of Use and (b) Our privacy policy located at www.pdcflow.com/privacy (the “Privacy Policy”).  The terms of the Sales Order are incorporated into these Terms of Use as though specifically included herein, and references to these Terms of Use will include the Sales Order. You acknowledge and represent to Us that You have read and understood these Terms of Use and the Privacy Policy.  If at any time You are unable or unwilling to comply with these Terms of Use and/or the Privacy Policy, You must cease use of the Services.
  2. Definitions.
    1. “Access Credentials” means any username, identification number, password, license, or security key, security token, PIN, or other security code, method, technology, or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
    2. “Action” has the meaning set forth in Section 13.1.
    3. “Administrator” refers to the Authorized User(s) that You grant or otherwise designate to have administrative permission for the management of Authorized Users and Your account for the Services.
    4. “Authorized User” means a Person that You or an Administrator authorize to access and use the Services on Your behalf.  The maximum number of Authorized Users permitted to access the Services, at any given time, may be set forth on a Sales Order.
    5. Business Associate Agreement” is a written arrangement that specifies each party's responsibilities when it comes to Protected Health Information as defined under HIPAA and as defined in 45 C.F.R. Section 164.501.
    6. “Capability” and “Capabilities” have the meaning set forth in Section 3.6.
    7. “CCPA” has the meaning set forth in Section 9.4.
    8. “CCPA Personal Information” has the meaning set forth in Section 9.4.
    9. “Confidential Information” has the meaning set forth in Section 10.1.
    10. “Flow Services” refers to the primary Services, excluding Integrated Services or other optional add-ons.
    11. “Customer” has the meaning in Section 1.
    12. “Data License” has the meaning set forth in Section 9.3.
    13. “Disclosing Party” has the meaning set forth in Section 10.1.
    14. “Documentation” means any manuals, instructions, websites, or other documents or materials that We provide or make available to You in any form or medium and which describe the functionality, components, features, or requirements of the Services or PDCflow Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
    15. “Early Termination Fee” has the meaning set forth in Section 11.5.
    16. “Effective Date” refers, as applicable, to the “Contract Effective Date” set forth on Your Sales Order(s).
    17. “Fees” refers to all monthly or annual fees for each Service that You subscribe to use, pursuant to a Sales Order, and the applicable fees for each pay-per-use Service that You or an Authorized User use with the Services.
    18. “Force Majeure Event” has the meaning set forth in Section 15.1.
    19. “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby, or (b) prevent You or any Authorized User from accessing or using the Services or PDCflow Systems as intended by these Terms of Use.
    20. “Integrated Services” refers to an optional feature, reports, databases and/or functionalities that may be integrated with or made available through the Services for certain Authorized Users.
    21. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
    22. “Law” means any statute, law, ordinance, regulation, policy, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction, including the TCPA and TSR.
    23. “License” has the meaning set forth in Section 3.1.
    24. “Losses” means any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
    25. “PDCflow” means PDC, Pay Data Center, Inc., a Delaware corporation, whose principal office is located at 529 – 25th Street, Suite 200, Ogden, Utah 84401.
    26. “PDCflow Indemnitee” has the meaning set forth in Section 13.2.
    27. “PDCflow Materials” means the Service Software, Specifications, Documentation, and PDCflow Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by PDCflow or any Subcontractor in connection with the Services or that otherwise comprise or relate to the Services or PDCflow Systems. For the avoidance of doubt, PDCflow Materials include Resultant Data and any information, data, or other content derived from PDCflow’s monitoring of Your access to or use of the Services, but do not include Your Data.
    28. “PDCflow Personnel” means all Persons involved in the performance of Services as employees, agents, or independent contractors of Us or any Subcontractor.
    29. “PDCflow Systems” means the information technology infrastructure used by or on behalf of Us in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Us or through the use of third-party services.
    30. “Permitted Use” means any use of the Services and/or Specifications by You and/or an Authorized User pursuant to these Terms of Use for Your benefit solely in, or for, Your internal business operations in accordance with the Specifications.
    31. “Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
    32. “Personal Information” means information that You upload, provide,  edit and/or request with the Services, or information that We create or obtain on Your behalf, that (a) directly or indirectly identifies a Person; or (b) can be used to authenticate a Person, including, without limitation, employee identification numbers, government-issued identification numbers, passwords, PINs, user information, biometric, genetic, health-related records and billing, answers to security questions, or other personal identifiers.
    33. “Process” means to take any action or perform any operation or set of operations that the Services are capable of taking or performing on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
    34. “Prohibited Content” has the meaning set forth in Section 9.5.
    35. “Receiving Party” has the meaning set forth in Section 10.1.
    36. “Reimbursable Expenses” has the meaning set forth in Section 7.3.
    37. “Representatives” means, with respect to a party, that party’s and its affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors and/or legal advisors.
    38. “Resultant Data” means information, data, and other content that is derived by or through the Services from the Processing of Your Data and is sufficiently different from Your Data that Your Data cannot be reverse-engineered or otherwise identified from the inspection, analysis, or further Processing of such information, data, or content.
    39. “Sales Order” means the Sales Order signed or otherwise agreed to by You and Us that identifies the Services that You subscribe to use and incorporates these Terms of Use.
    40. “Scheduled Downtime” has the meaning set forth in Section 5.2.
    41. “Security Concern” means any item, code, content, or use or access of the Services which could result in: (a) unauthorized access to the Services, (b) a security risk to the Services or any third party, (c) subjecting Us, our affiliates, our customers, or any third party to liability, or (d) a disruption of: (i) the Services, (ii) use and or access of the Services by Us, our customers, You, or third parties, and or (iii) Our network or servers used to provide the Services.
    42. “Service Software” means Our software application or applications and any third-party or other software, and all new versions, updates, revisions, improvements, and modifications of the foregoing, that We provide remote access to and use of as part of the Services.
    43. “Services” has the meaning set forth in the preamble of these Terms of Use.  As applicable to You, the Services include the Flow Services and any Integrated Services to which You subscribe.
    44. “Specifications” means the specifications for the Services as may be set forth in the Documentation.
    45. “Subcontractor” has the meaning set forth in Section 3.5.
    46. “Support Services” has the meaning set forth in Section 5.7.
    47. “TCPA” means the Telephone Consumer Protection Act of 1991, as amended (47 C.F.R. §227), and its implementing regulations promulgated and administered by the Federal Communications Commission.
    48. “Term” refers to Your subscription period for Services, including any renewal periods.
    49. “Terms of Use” means these Terms of Use.
    50. “TSR” means the Telemarketing Sales Rule contained in 16 Code of Federal Regulations Part 310 implemented and administered by the Federal Trade Commission.
    51. “Your Data” means, other than Resultant Data, information, data, and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from You or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data or content by or through the Services.
    52. “Your Failure” has the meaning set forth in Section 4.10.
    53. “Your Indemnitee” has the meaning set forth in Section 13.1.
    54. “Your Systems” means Your information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by You or through the use of third-party services.
  3. Services.
    1. License.  Subject to all applicable terms and conditions set forth in these Terms of Use, We grant to You, and You accept, a limited, nonexclusive, non-transferable, non-sublicensable, revocable license (the “License”) to (a) access and use the Services during the Term only, and (b) use the applications referenced in the Sales Order solely to access the Services.  You may make a reasonable number of copies of any Documentation, provided that all such copies include all legends, copyright and other proprietary notices that appear on the original.  The License is conditioned on continued compliance with these Terms of Use by You and each Authorized User and will immediately and automatically terminate if You and/or an Authorized User do not so comply.
    2. License Restrictions.  You and the Authorized Users may use the Services and/or PDCflow Materials for Permitted Uses only.  All other uses of the Services are prohibited.  You will not, and will not permit any other Person to (or attempt to), access or use the Services and/or PDCflow Materials to:
        1. copy, modify, adapt, translate or create derivative works or improvements of the Services or PDCflow Materials;
        2. rent, lease, lend, sell, resell, license, sublicense, assign, give, distribute, publish, republish, transfer, or otherwise make available any part of the Services or PDCflow Materials to any Person, including on or in connection with the Internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service, unless expressly given permission to do so in writing by PDCflow;
        3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or PDCflow Materials, in whole or in part, except to the extent that applicable Law permits it despite these limitations;
        4. create internet “links” to the Services or “frame” or “mirror” any part of the Services on any other server or wireless or internet-based device, unless expressly given permission to do so in writing by PDCflow;
        5. bypass or breach any security device or protection used by the Services or PDCflow Materials or access or use the Services or PDCflow Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
        6. input, upload, transmit, or otherwise provide to or through the Services or PDCflow Systems, any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
        7. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, PDCflow Systems or PDCflow’s provision of services to any third party, in whole or in part;
        8. remove, delete, alter, or obscure any trademarks, Specifications, Documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or PDCflow Materials, including any copy thereof;
        9. access or use the Services or PDCflow Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party, or that violates any applicable Law;
        10. access or use the Services or PDCflow Materials for purposes of (i) attempting to gain unauthorized access to the Services or the related systems and networks, (ii) building a competitive product or service, (iii) building a service or product using similar ideas, features, functions or graphics of the Services, or (iv) coping or making derivative works of any ideas, features, functions or graphics of the Services; or
        11. otherwise access or use the Services or PDCflow Materials for anything other than a Permitted Use and in accordance with applicable Law, including the TCPA and TSR.
    3. ADDITIONAL USAGE LIMITATIONS AND CUSTOMER RESPONSIBILITIES
      1. PDCflow facilitates the execution of PDCflow transactions between the participating parties. PDCflow is not a party to any transaction processed through the PDCflow Services, and PDCflow makes no representation or warranty regarding the transactions sought to be effected by any Flow transaction;
      2. The Customer has exclusive control over and sole responsibility for the content, quality, and format of any Flow transaction, including the content of all messages sent to its customers using the Services, the selection of the recipients of those messages, the procurement from the recipient of all applicable required prior consents  to send such messages (which consents must, among other things, must satisfy all applicable requirements of the TCPA and TSR), and the manner, time and means of delivery of such messages;
      3. PDCflow is not responsible or liable to determine whether any electronic signature acquired via the PDCflow Services is (i) subject to an exception to applicable electronic signature laws; (ii) subject to any particular agency promulgations; (iii) can be legally formed by electronic signatures (iv) or satisfies the requirements of any other applicable Law;
      4. PDCflow does not take any responsibility for determining how long any contracts, documents, and other records are required to be retained or stored under any applicable Laws, or legal or administrative agency processes;
      5. It is the Customer’s responsibility solely to utilize the Services in a manner that complies with all applicable consumer protection or similar Laws that may impose special requirements with respect to electronic transactions, including the TCPA and TSR.
    4. Data Storage and Deletion
      1. File and Document Storage. During the active Term PDCflow will store files and documents that are the resulting artifacts of Flow transactions per these Terms. PDCflow may set and enforce limits for reasonable use.  Files or Documents associated with uncompleted or expired PDCflow transaction requests may be deleted at the sole discretion of PDCflow.
      2. Termination of Service. PDCflow may delete an Account and Customer Data, including all associated files and documents, upon the expiration of the Term or termination for any acceptable reason defined in these Terms.
      3. Retention of Transactional Data. PDCflow may retain Transaction Data for as long as it has a business purpose to do so.
    5. Service and System Control. Except as otherwise expressly provided in these Terms of Use, as between You and Us, We have and will retain sole control over the operation, provision, maintenance and management of the Services and PDCflow Materials, including the: (a) PDCflow Systems; (b) location(s) where any of the Services are performed; (c) selection, deployment, revisions, or replacement of the Services Software; (d) selection, engagement, and management of any third parties to perform Services; and (e) performance of Support Services and software maintenance, upgrades, corrections and repairs.
    6. Changes. We may change or add features, tools, functionality, applications, software, application program interface (API), reports, and analytics (each a “Capability,” collectively, the “Capabilities”) available through the Services and/or install updates periodically.  We reserve the right to change, discontinue, or deprecate Capabilities from time to time or to elect to discontinue the Services in their entirety.  If we elect to discontinue the Services in their entirety, Your exclusive remedy will be a pro rata refund of all prepaid Fees.  If we remove or discontinue a material Capability, You may (and Your exclusive remedy is the option to) request a cancellation of Your subscription for the applicable Service(s) provided that (a) Your request for cancellation is made within 30 days that the Capability was removed or discontinued, (b) the request identifies the specific Capability and states that the cancellation is due to a cancellation of such Capability, and (c) We fail to restore the Capability within 30 days of receipt of Your cancellation request.  If the subject Capability is restored within the 30-day period, You may elect to continue use of the Services or to cancel Your subscription subject to the Early Termination Fee.
    7. Subcontractors. We may from time to time in Our discretion engage third parties, including affiliated entities, to provide, or to assist in providing, the Services (each, a “Subcontractor”).
    8. Suspension or Termination of Services. We may, directly or indirectly, suspend, terminate, or otherwise deny Your, any Authorized User’s or any other Person’s access to or use of all or any part of the Services or PDCflow Materials, without incurring any resulting obligation or liability, if: (a) We receive a judicial or other governmental demand or order, subpoena or law enforcement request that expressly or by reasonable implication requires Us to do so; or (b) We believe, in Our reasonable discretion, that: (i) You or any Authorized User has failed to comply with any material term of these Terms of Use or in any manner that does not comply with any material instruction or requirement of the Specifications; (ii) You or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with any of the Services; (iii) Your right to access or use the Services or PDCflow Materials is suspended or terminated for any reason under these Terms of Use, including non-payment of Fees or failure to comply with applicable Laws, including the TCPA and TSR; or (iv) if You are late in paying Fees. This section does not limit any of Our other rights or remedies, whether at law, in equity or under these Terms of Us.
  4. Your Obligations
    1. Transactional Responsibility. You may only use the Services for legitimate transactions with your customers. You are responsible for your relationship with your customers. PDCflow is not responsible for the products or services you publicize or sell, or that your customers purchase using the Services; or if you accept donations, for your communication to your customers of the intended use of such donations. You affirm that you are solely responsible for the nature and quality of the products or services you provide, and for delivery, support, refunds, returns, and for any other ancillary services you provide to your customers.  PDCflow provides Services to you but We have no way of knowing if any particular transaction is accurate or complete, or typical for your business. You are responsible for knowing whether a transaction initiated by your customer is erroneous or suspicious. You are solely responsible for any losses you incur due to erroneous or fraudulent transactions in connection with your use of the Services.
    2. Accepting Payments Via Payment Cards. When accepting payment card payments, you must comply with all applicable Network Rules, including the Visa Rules and Regulations specified by Visa U.S.A., Inc. and Visa International (“Visa”), the Mastercard Rules specified by MasterCard International Incorporated (“Mastercard”), the American Express Merchant Operating Guide specified by American Express, and the Discover Network Rules (please contact Discover for a copy) specified by Discover Financial Services, LLC (“Discover”). Collectively, Visa, Mastercard, American Express and Discover are referred to in this Agreement as the “Networks”.
    3. Accepting Payments Via Automated Clearinghouse (ACH). The ACH network is controlled and managed by the National Automated Clearinghouse Association (NACHA) and its member organizations. Where submitting Charges over the ACH network, you are required to comply with the NACHA Operating Rules. NACHA may amend the NACHA Operating Rules at any time, and we may amend this Agreement or make changes to the Payment Processing Services as necessary to comply with the NACHA Operating Rules and You understand and accept your role as the Originator (as defined in the NACHA Operating Rules)..
    4. Disclosures to Your customers. When using the Services you agree to: (i) accurately communicate, and not misrepresent, the nature of the transaction, and the payment amount, when applicable, in the appropriate currency prior to submitting it to the API; (ii) provide an accurate receipt for each transaction to customers; (iii) provide Your customers a way to contact you to resolve any confusion or disputes; and (iv) not use Services in a manner that is unfair or deceptive, exposes Your customers to unreasonable risks, or does not disclose material terms of a transaction in advance. You also agree to maintain and make available to your customers a fair and neutral return, refund, cancellation, or adjustment policy, and clearly explain the process by which Your customers can receive a refund.  Our Services may include functionality that enables you to receive recurring or subscription payments from Your customers, and to issue invoices to your customers. You agree to comply with applicable Laws and payment method rules regarding recurring payments, including clearly informing Your customers in advance of submitting the initial payment that they will be charged on an ongoing basis and explaining the method for unsubscribing or cancelling their recurring billing or subscription.
    5. Permitted Use. Your access and use of the Services must fully comply with the provisions and conditions of these Terms of Use.
    6. Compliance. You and the Authorized Users must adhere to all Laws applicable to You (and Your industry and business) and Your use of the Services, including, as applicable, debt collection, privacy, import, re-import, export, and re-export control Laws and the provisions of the TCPA (and its consent requirements), the TSR, and all other applicable federal and state laws and regulations governing consumer contacts and notifications.
    7. Account Security. You are responsible for maintaining the confidentiality of the non-public Access Credentials that are associated with Your account and each Authorized User.  You are responsible for all activities, including the subscription of Services, that occur under Your account, regardless whether the activities are undertaken by You, Administrators, Authorized Users, Your employees, Your agents, or a third party (including Your contractors) and We are not responsible for any unauthorized access to (and the activities undertaken with) Your account absent clear and convincing evidence that We breached these Terms of Use and that such breach caused the unauthorized access.  You are required to take reasonable steps to prevent unauthorized access to Your account and the Services, and, further, You will cooperate with Us in identifying unauthorized access or use related to Your account.  You must promptly notify Our customer support team in writing about any misuse (or any fact or circumstances which could reasonably be expected to result in or cause a reasonable suspicion of a misuse) of Your account, Access Credentials or any Security Concerns.
    8. Your Data. As between You and Us, You are solely responsible for the development, content, operation, maintenance, and use of Your Data and for ensuring that Your Data complies with applicable Law and the restrictions set forth in these Terms of Use.  You agree that Your Data will not include any Personal Information regarding third parties unless You have the legal right to possess, store, copy, Process and use such information.  Further, You agree not to include any medical records or medical billing regarding a Person in Your Data unless You have a legally compliant Business Associate Agreement with the Person that owns such records.  As between You and Us, You are also solely responsible for any claims related to or stemming from Your Data and business, including all acts and transactions conducted with the Services.  You will secure and maintain all rights in Your Data, as applicable, necessary for Us to provide the Services to You without violating the rights of any third party or otherwise obligating Us to You or any third party.  We do not and will not assume any obligations with respect to Your Data other than as expressly set forth in these Terms of Use or as required by applicable Law.
    9. Privacy. You consent to Our collection, use and disclosure of information associated with the Services in accordance with our Privacy Policy.  To the extent that Your Data includes information regarding other Persons or information belonging to or related to third parties, You will protect the confidentiality of such information under all applicable agreements and Laws.
    10. Third Party Data. Your use of any information or data made available to You from a third party is at Your sole risk and may be subject to separate terms and conditions, and/or fees from the applicable third parties. A breach of any of the terms or conditions of a third party contract may also constitute a breach of these Terms of Use.
    11. Maintenance.  When feasible, upgrades, patches, bug fixes or other maintenance to the Services will be scheduled for and completed during Scheduled Downtime (as defined below).  You agree to collaborate and make reasonable accommodations for all maintenance to the Services, regardless whether scheduled in advance or completed on an emergency basis.
    12. Effect of Your Failure or Delay. We are not responsible or liable for any delay or failure of performance caused in whole or in part by Your delay in performing, or failure to perform, any of Your obligations under these Terms of Use (each, a “Your Failure”).
    13. Corrective Action and Notice. If You become aware of any actual or threatened activity prohibited under these Terms of Use, You will, and will cause Your Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and PDCflow Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Us of any such actual or threatened activity.
  5. Service Levels.
    1. Service Levels. Subject to the terms and conditions of these Terms of Use, We will use commercially reasonable efforts for the Flow Services to have a daily uptime percentage of at least 99.5%, as measured over the course of each calendar day during the Term.
    2. Scheduled Downtime. We will use commercially reasonable efforts to (a) schedule downtime for routine maintenance of the Services in advance; and (b) give You at least 24 hours’ prior notice of all scheduled outages of the Services (“Scheduled Downtime”).
    3. Service Support. Support is offered via email and telephone during Our regular business hours of 8:00 AM - 5:00 PM MST.
  6. Security.
    1. PDCflow Systems and Security Obligations. We will employ appropriate security measures in accordance with applicable industry practice including, where applicable, obtaining PCI DSS level 1, Statement on Standards for Attestation Engagements (SSAE) No. 18 reports for Reporting on Controls at a Service Organization, Service Organization Controls (SOC) 2 reports, and establishing and implementing appropriate security measures for the Protected Health Information (as defined under the HIPAA rules) that We may receive, create, maintain, use, or disclose in connection with the Services.
    2. Your Control and Responsibility. You have and will retain sole responsibility for: (a) all Your Data, including its content and use; (b) all information, instructions, and materials provided by or on Your behalf or any Authorized User in connection with the Services; (c) Your Systems; (d) the security and use of Your and Your Authorized Users’ Access Credentials; and (e) all access to and use of the Services and PDCflow Materials directly or indirectly by or through the Systems or Your or Your Authorized Users’ Access Credentials, with or without Your knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
    3. Access and Security. You will employ all physical safeguards, administrative procedures, and technical controls, screening, and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services; (b) control the content and use of Your Data, including the uploading or other provision of Your Data for Processing by the Services; and (c) comply with all applicable Laws.
  7. Fees; Payment Terms.
    1. Fees. You will pay Us all Fees for (a) the Services that You use pursuant to Your applicable Sales Order, and (b) pay-per-use Services, based on the applicable Fees and actual usage by You and each Authorized User.  We may require that all Fees be paid by credit or debit card, or by ACH electronic transfer of funds.  Failure by You to comply with any such requirement will be grounds for the immediate suspension or termination of the Services.
    2. Fee Increases.  We may increase Fees at any time.  We will provide you written notice of any Fee increases.
    3. Reimbursable Expenses. You will reimburse Us for out-of-pocket expenses incurred by Us that are either pre-approved by You or incurred by Us at your request (“Reimbursable Expenses”). This includes time and materials for any audit requests made by You, beyond providing You our relevant compliance documents.
    4. Taxes. All Fees and other amounts payable by You under these Terms of Use are exclusive of taxes and similar assessments. You are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority, which may or may not be charged and/or collected by Us, on any amounts payable by You hereunder, other than any taxes imposed on Our income.
    5. Payment. All Fees and Reimbursable Expenses are due upon receipt of the invoice.
      1. We may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;Late Payment. If You fail to make any payment when due then, in addition to all other remedies that may be available:
      2. You will reimburse Us for all reasonable costs incurred by Us in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees;
      3. if such failure continues for 10 days following notification thereof, We may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to You or any other Person by reason of such suspension, and You acknowledge that You will remain responsible for all Fees and charges You incur during any such suspension; and
      4. We may, at Our election, delete Your Data or alter the storage and maintenance of Your Data.
    6. No Deductions or Setoffs.  All amounts payable to Us under these Terms of Use will be paid by You to Us in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than eligible Service Credits issued) or any deduction or withholding of tax as may be required by applicable Law.
    7. Invoice Disputes. To the fullest extent permitted by Law, You waive all claims relating to Fees (and all other amounts payable under these Terms of Use) unless claimed in writing to Us within 60 days after charged (this does not affect Your rights with the credit card issuer, if applicable).
    8. No Refunds.  All sales and services are final, and all Fees are fully earned upon payment.  PAYMENTS ARE NONREFUNDABLE AND THERE ARE NO REFUNDS OR CREDITS FOR PARTIALLY USED SUBSCRIPTION PERIODS.  Refunds, if any, are at Our sole discretion, and at Our option may be in the form of credit for Services.  Nothing in these Terms or Use obligates Us to extend refunds or credit to any party.
  8. Suspensions and Removals.
    1. Access and Use. We may suspend Your account and the License immediately if: (a) the creation of the account and or Your subscription for Services is (or reasonably appears to us to be) fraudulent; (b) You fail to pay any amounts due under these Terms of Use; (c) You fail to add and keep at least one valid payment method on the account; (d) You or any Authorized User violate any provisions of these Terms of Use, including the failure to comply with applicable Laws; or (e) You cease to operate in the ordinary course, make an assignment for the benefit of creditors or similar disposition of Your assets, or becomes the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.  The suspension will be lifted upon Our reasonable satisfaction that the triggering issue has been resolved.
    2. Emergency Suspension.  If a Security Concern exists in Our reasonable opinion, We may immediately suspend any or all Authorized User’s access to the Services, and may also remove, as applicable, the offending item, code, content (including Your Data) until the Security Concern is resolved in Our reasonable discretion.
    3. Effect of Suspension.  Authorized Users that are suspended will not be able to access or use the Services or portions thereof (including Your Data) during the suspension.  Our right to suspend Your or any Authorized User’s right to access or use the Services is in addition to our right to terminate Your account, pursuant to the terms of these Terms of Use.  If we suspend Your right to access or use any portion or all of the Services, You remain responsible for all Fees, Early Termination Fees, charges, and taxes, if any, associated with or caused by: (a) Your use of the Services, through the date of suspension, and/or (b) Your use of the Services, if any, that You continue to access or use on and after the date of suspension.  Absent a Security Concern, We will not erase any of Your Data due to a suspension, but such items may be subject to deletion in the event of a termination of Your account.
  9. Intellectual Property Rights.
    1. Services and PDCflow Materials. All right, title and interest in and to the Services and PDcflow Materials, including all Intellectual Property Rights therein, are and will remain with Us and the respective rights holders in the third-party materials.  Nothing in these Terms of Use grants any right, title, or interest in or to any Intellectual Property Rights in or relating to, the Services or PDCflow Materials, whether expressly, by implication, estoppel, or otherwise.  All right, title, and interest in and to the Services and PDCflow Materials are and will remain with Us.  All rights not expressly granted to You are reserved by Us and our licensors.
    2. Your Data. As between You and Us, You are and will remain the sole and exclusive owner of all right, title, and interest in and to all Your Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted to Us in these Terms of Use.  We will have no responsibility to maintain any of Your Data following the termination of Your use of the Services.
    3. Consent to Use Your Data. By using the Services, uploading, posting, generating and/or displaying Your Data with the Services, You irrevocably grant to Us and our Subcontractors and PDCflow Personnel a sublicensable, transferable, non-exclusive, royalty-free, fully paid, worldwide limited license to use, display, reproduce, publish, modify and distribute Your Data (the “Data License”): (a) to provide and perform the Services; (b) to enforce these Terms of Use; (c) to meet any applicable Law, legal process, or enforceable governmental request; (d) to detect, prevent or otherwise address fraud, security, or technical issues; (e) to measure and understand how the Services are used; and (f) to ensure that the Services are working as intended, to track outages, or troubleshoot issues reported to Us.  The Data License will include, to the fullest extent of Your authority, the right for Us to collect and use Resultant Data and any other aggregated and non-personally identifiable information derived from Your Data and use of the Services.  The Resultant Data is intended to help Us develop and launch new features and products and may be used for any other reasonable purpose permitted by applicable Laws.  Our rights under the Data License will survive the termination or expiration of these Terms of Use.
    4. CCPA Service Provider. If We process any of Your customer data that includes Personal Information that is subject to the California Consumer Privacy Act of 2018 (“CCPA”), You acknowledge and agree that We are a “Service Provider” as defined in the CCPA. If and when We process Personal Information that is subject to the CCPA (“CCPA Personal Information”) for You or on Your behalf, We agree to not: (a) sell CCPA Personal Information; (b) retain, use, or disclose CCPA Personal Information for any purpose other than for the specific purpose of performing the Services (and the creation of Resultant Data), including retaining, using, or disclosing CCPA Personal Information for a commercial purpose other than providing the Services; and (c) retain, use, or disclose CCPA Personal Information outside of the direct business relationship between You and Us.
    5. Violations. If We reasonably believe that any of Your Data violates the Law, infringes or misappropriates the rights of any third party, or otherwise violates these Terms of Use (“Prohibited Content”), We may disable access to or remove the Prohibited Content from the Services, pursuant to the U.S. Digital Millennium Copyright Act (DMCA), or to comply with law or any judicial, regulatory or other government order or request.  In the event that We disable access to or remove Prohibited Content without prior notice, We will provide prompt notice to You unless prohibited by Law.
  10. Confidentiality.
    1. Confidential Information. In connection with these Terms of Use each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to Section 10.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations.
    2. Exclusions. Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with these Terms of Use; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with these Terms of Use; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
    3. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party will:
      1. not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with these Terms of Use;
      2. except as may be permitted by and subject to its compliance with Section 10.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with these Terms of Use; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section;
      3. safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
      4. ensure its Representatives’ compliance with, and will be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section.
    4. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 10.3 (Protection of Confidential Information); and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose.
  11. Term and Termination.
    1. Term. You may use the Services for the period set forth in the Sales Order, commencing on the Effective Date unless We agree in writing to an earlier or later date, and absent a written notice of non-renewal from You or Us at least 15 days prior to the expiration of the original term or any renewal term, the Term will renew automatically for additional periods matching the period in the applicable Sales Order.
    2. Termination by Us.  We may terminate Your use of the Services during the Term by written or electronic notice to You if (a) You fail to cure any default in the payment of any Fees owed to Us within 10 calendar days after We provide You written notice of such default, (b) You materially breach these Terms of Use and fail to cure the breach within 5 calendar days after We provide You written notice of such breach or (c) We determine, in Our reasonable discretion, that You or any of Your Authorized Users, in using the Services have engaged, or are engaging, in any conduct which We deem to be an actual or potential violation of the TCPA or TSR.
    3. Termination by You. You may terminate Your use of the Services during the Term by written or electronic notice to Us if We materially breach these Terms of Use and fail to cure the breach within 30 calendar days after You provide Us written notice of such breach.  During such 30 day-period, We may change, add or restore Capabilities as part of our efforts to cure the alleged breach.
    4. Termination for Convenience.  Subject to Early Termination Fees, either party may terminate its obligations under these Terms of Use with or without cause upon 60 calendar days’ prior written notice to the other party.
    5. Additional Termination Fees. If We terminate Your use of the Services pursuant to these Terms of Use, or if You terminate these Terms of Use pursuant to Section 11.4, then, in addition to paying all Fees accrued up to the date of termination, there will be immediately due and payable by You a lump sum amount equal to the cumulative Fees that due to Us for the period of time remaining in the Term (or renewal term) but for the termination (the “Early Termination Fee”).  Any amounts previously paid by You in excess of the Fees accrued up to the date of termination will be applied toward the Early Termination Fee.  You acknowledge that the provisions herein contained for liquidated and agreed upon damages in the event of an early termination are bona fide provisions for such and are not penalties.  You acknowledge that We will have sustained damages as a result of the early termination of Your subscription to the Services due to the nature of Our business, which damages will be substantial but will not be capable of determination with mathematical precision and, therefore, the provisions for liquidated and agreed upon damages have been incorporated into these Terms of Use is reasonable.  You agree that if any portion of this Section is held unreasonable, arbitrary, or against public policy, such portion will be considered to be diminishable as to the amount of such damages, and each dollar of damages will be deemed a separate damage and will remain effective so long as the same is not otherwise unreasonable, arbitrary, or against public policy.
    6. Effect of Expiration or Termination. Upon any expiration or termination of these Terms of Use, except as expressly otherwise provided in these Terms of Use:
      1. The License and any other rights, licenses, consents, and authorizations granted to You under these Terms of Use will immediately terminate;
      2. Upon written request from You, We will (i) promptly return to You, or at Your written request destroy, all documents and tangible materials containing Your Confidential Information; and (ii) permanently erase all Your Data and Your Confidential Information from all systems We directly or indirectly control;
      3. You will immediately cease all use of any Services and PDCflow Materials and (i) promptly return to Us, or at Our written request destroy, all documents and tangible materials containing, reflecting, incorporating, or based on any PDCflow Materials or Our Confidential Information; and (ii) permanently erase all PDCflow Materials and Our Confidential Information from all systems You directly or indirectly control;
      4. notwithstanding anything to the contrary in these Terms of Use, We may also retain Your Data in its backups, archives, and disaster recovery systems until Your Data is deleted in the ordinary course;
      5. We may disable all of Your access and Your Authorized Users’ access to the Services and PDCflow Materials;
      6. You will pay all Fees accrued up to the date of termination; including any costs or other Reimbursable Expenses due hereunder; and
      7. You will immediately pay to Us any Early Termination Fee due pursuant to these Terms of Use..
  12. Representations and Warranties.
    1. Our Representations and Warranties. We represent and warrant to You that We have full power and authority to enter into these Terms of Use.
    2. No Representations or Warranties Regarding Legal Matters.  All information regarding Laws and legal forms found, available or referenced in the Services are provided for convenience only as a reference point and are provided “as is” without any representation or warranty regarding their accuracy, completeness, currency or applicability.  All such information and legal forms do not and may not be deemed legal advice.  You agree to consult Your legal counsel regarding all compliance and other legal matters and to not rely on any information or forms provided by Us.
    3. Your Representations and Warranties. You represent and warrant to Us that: (a) You have full corporate power and authority to enter into these Terms of Use and to carry out Your obligations set forth herein; (b) Your agreement to these Terms of Use, Your performance of Your obligations hereunder have been duly authorized by all requisite corporate action on Your part; (c) these Terms of Use constitute legal, valid, and binding obligations of Customer enforceable against Customer in accordance with their respective terms; (d) You will comply with all Laws applicable to You (and your industry and business); (e) You own or otherwise have and will have the necessary rights and consents in and relating to Your Data so that, as received by Us and Processed in accordance with these Terms of Use, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party; (f) You have all rights in Your Data necessary to grant the rights contemplated by these Terms of Use; and (g) Your Data has at all times, and will in the future be, and will be when uploaded, Process or used through the Services, in compliance with applicable Law and these Terms of Use.
    4. Receipt of Messages - You may elect to receive authentication, notification and/or Flow delivery messages by text (“SMS Messages”) at the mobile number you provide as part of your use of the PDCflow Services.  You represent that you are the subscriber of the mobile service at the mobile number provided, or that you are otherwise authorized by the subscriber to receive SMS Messages at such mobile number as part of your use of the PDCflow Services. By electing to receive and send SMS Messages, you acknowledge that message and data rates may apply under your agreement with your provider of mobile communication services. You further understand and acknowledge that your Mobile Service Provider’s network services are outside of PDCflow’s control and we are not responsible or liable for any issues arising therefrom. PDCflow will not be liable for any of the following: a) failure of delivery of any content via SMS Message; b) any delays in transmission of SMS Messages; or c) any service or other changes implemented by your provider of mobile communication services impacting the receipt or sending of SMS Messages as part of your use of the PDCflow Services.
    5. TCPA and TSR - You expressly represent and warrant with respect to Your and all Authorized User use of the Services and compliance with the TCPA and TSR that:

    (a) You and all Authorized Users will use the Services in full compliance with the terms, conditions, and requirements of the TCPA and, where applicable, the TSR, including the requirements to obtain prior express consent or, in the case of any marketing or promotional messages, prior express written consent, before sending any messages to wireless phones using automated dialing or texting technologies and/or artificial or prerecorded voice messages.

    (b) You and all Authorized Users are familiar with the applicable TCPA and TSR regulations and standards, particularly relating to obtaining any required consent and that, if applicable, each and every prior express written consent obtained will comply in all respects the requirements related to the display, form and content of the consent process required under the TCPA and TSR or any other Laws (whether state or federal) related to the granting of consent (or such analogous acts). In the event that any contacted party opts out of receipt of further messages that require consent, You will obtain renewed consent before recontacting that person.

    (c) You and all Authorized Users will ensure that an internal Do Not Call (“DNC”) policy is implemented in accordance with TCPA implementing regulations prior to using the Services. You and all Authorized Users will ensure that residential numbers on the national DNC are not contacted without required express consent, a business relationship or an inquiry as permitted under Law.

6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS OF USE, ALL SERVICES AND PDCFLOW MATERIALS ARE PROVIDED “AS IS” AND PDCFLOW HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHER, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, WE MAKE NO WARRANTY OF ANY KIND THAT THE SERVICES OR PDCFLOW MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOUR OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE.  WE ALSO HEREBY DISCLAIM ANY DUTIES OF A BAILEE OR WAREHOUSEMAN, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (WHETHER ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE OR SHIPMENT OF YOUR DATA OR THIRD PARTY CONTENT BY US OR OUR AFFILIATES OR ANY OF OUR OR THEIR SUBCONTRACTORS OR AGENTS. YOU ARE SOLELY RESPONSIBLE FOR APPLYING APPROPRIATE SECURITY MEASURES TO YOUR DATA AND THIRD-PARTY CONTENT. YOU ARE SOLELY RESPONSIBLE FOR OBTAINING ANY PRIOR CONSENT REQUIRED BY THE TCPA OR TSR IN CONNECTION WITH THE PLANNED OR ACTUAL USE OF THE SERVICES BY YOU AND YOUR AUTHORIZED USERS.

13. Indemnification.

1. Indemnification by Us.  We will indemnify, defend, and hold harmless You and Your officers, directors, employees, agents, permitted successors, and permitted assigns (each, a “Your Indemnitee”) from and against any and all Losses incurred by such Your Indemnitee arising out of or relating to any claim, suit, action, or proceeding (each, an “Action”) by a third party (other than an affiliate of a Your Indemnitee) that Your use of the Services (excluding Your Data and third party materials) in compliance with these Terms of Use (including the Specifications) infringes a U.S. Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:

  1. access to or use of the Services or PDCflow Materials in combination with any hardware, system, software, network, or other materials or service not provided or authorized in the Specifications or otherwise in writing by Us;
  2. failure to timely implement any modifications, upgrades, replacements, or enhancements made available to You by or on behalf of Us; or
  3. Your act, omission, or other matter, whether or not the same results in any Action against or Losses by any PDCflow Indemnitee.

    2. Your Indemnification Obligations. You will indemnify, defend, and hold harmless Us and Our Subcontractors and affiliates, and each of Our and their respective officers, directors, employees, agents, successors, and assigns (each, a “PDCflow Indemnitee”) from and against any and all Losses incurred by such PDCflow Indemnitee in connection with any Action by a third party (other than an affiliate of a PDCflow Indemnitee) that arises out of or relates to any:

    1. Your Data, including any Processing of Your Data by or on behalf of Us in accordance with these Terms of Use;
    2. any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on Your behalf or any Authorized User, including Our compliance with any specifications or directions provided by or on Your behalf or any Authorized User;
    3. allegation of facts that, if true, would constitute Your breach of any of Your representations, warranties, covenants, or obligations under these Terms of Use;
    4. negligence or more culpable act or omission (including recklessness or willful misconduct) by You, any Authorized User, or any third party on Your behalf or any Authorized User, in connection with these Terms of Use; and/or
    5. Your or any Authorized Users’ violation of or failure to comply with the requirements of Sections 4.4 and 12.5 herein and any applicable Law, including the TCPA or the TSR (including, without limitation any claim that, as a result of any PDCflow Indemnitee provision of the Services or Your use thereof, any PDCflow Indemnitee in any way violated the TCPA, TSR or any related law, rule or regulation).

    3. Indemnification Procedure.  Each party will promptly notify the other party in writing of any Action for which such party believes it is entitled to be indemnified pursuant to these Terms of Use.  The party seeking indemnification (the “Indemnitee”) will cooperate with the other party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will immediately take control of the defense and investigation of such Action and will employ counsel of its choice, provided that such counsel is reasonably acceptable to the Indemnitee, to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section will not relieve the Indemnitor of its obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

    4. Mitigation. If any of the Services or PDCflow Materials are, or in Our opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Your or any Authorized User’s use of the Services or PDCflow Materials is enjoined or threatened to be enjoined, We may, at Our option and sole cost and expense

    1. obtain the right for You to continue to use the Services and PDCflow Materials substantially as contemplated by these Terms of Use;
    2. modify or replace the Services and PDCflow Materials, in whole or in part, to seek to make the Services and PDCflow Materials (as so modified or replaced) non-infringing, while providing substantially equivalent features and functionality, in which case such modifications or replacements will constitute Services and PDCflow Materials, as applicable, under these Terms of Use; or
    3. by written notice to You, terminate Your use of the Services and PDCflow Materials or any specified part or feature thereof.

    5. THIS SECTION SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR THE PDCFLOW MATERIALS INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHT.

    14. Limitations of Liability.

    1. EXCLUSIONS OF DAMAGES. IN NO EVENT WILL OUR OR ANY OF OUR SUBCONTRACTORS, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, PROFIT, OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE, OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS, (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (d) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    2. CAP ON MONETARY LIABILITY.  IN NO EVENT WILL THE AGGREGATE LIABILITY OF PDCFLOW AND ITS SUBCONTRACTORS, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE TOTAL FEES PAID BY YOU DURING THE 6-MONTHS IMMEDIATELY PRECEDING THE BASIS OF THE CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

    15. Force Majeure.

    1. No Breach or Default.  Subject to the exclusions set forth in Section 15.4, neither You nor Us will be liable or responsible to the other party, or be deemed to have defaulted under or breached the Sales Order or these Terms of Use, for any failure or delay in fulfilling or performing any term of these Terms of Use, when and to the extent such failure or delay is caused by any circumstances beyond such party’s reasonable control, including acts of God, flood, fire, earthquake, or explosion; war, terrorism, invasion, riot, or other civil unrest; embargoes or blockades; national or regional emergency; pandemics or epidemics; strikes, labor or supply stoppages or slowdowns, or other industrial disturbances; passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation (each, a “Force Majeure Event”).
    2. Affected Party Obligations. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and will use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    3. Optional Termination by Us.  We may terminate the Services if a Force Majeure Event continues substantially uninterrupted for a period of 30 days or more.  If We so elect to terminate the Services, You will be entitled to a pro rata refund of all prepaid Fees.
    4. Optional Termination by You.  At all times during the Term, until the Services are terminated pursuant to these Terms of Use, You will remain obligated to pay all Fees regardless of a Force Majeure Event.  If a Force Majeure Event results in a government mandated action, restriction or order that results in a cessation of all or substantially all of Your accounts receivables business activities for a period of 30 days or more, You may terminate the Services by providing us with written notice; provided, however, You will remain responsible to Us for the remainder of the Term for any Fees for Services that rely on third parties who We remain obligated to their fees and costs regardless of your termination of the Services.

      16. Miscellaneous.

          1. Further Assurances. Upon Our reasonable request, You agree to, at Our expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to these Terms of Use.
          2. Relationship of the Parties.  Nothing contained in these Terms of Use will be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between You and Us.
          3. Public Announcements.  You agree that You will not issue or release any announcement, statement, press release, or other publicity or marketing materials relating to these Terms of Use or otherwise use Our trademarks, service marks, trade names, logos, domain names, or other indicia of source, affiliation, or sponsorship, in each case, without Our the prior written consent, which consent will be in Our sole discretion.
          4. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms of Use have binding legal effect only if in writing and addressed to a party as at the address indicated on the Sales Order, or such other address that such party may designate from time to time in accordance with this Section. Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or e-mail, (in each case, with confirmation of transmission), if sent during the addressee’s normal business hours, and on the next business day, if sent after the addressee’s normal business hours; and (d) on the 3rd day after the date mailed by certified or registered mail, return receipt requested, postage prepaid.
          5. Headings. The headings in these Terms of Use are for reference only and do not affect the interpretation of these Terms of Use.
          6. Assignment. We may assign these Terms of Use and any Sales Order, including our respective rights and obligations, to an affiliate or a third party at our discretion.  You may not assign or otherwise transfer any of Your rights, or delegate or otherwise transfer any of Your obligations or performance, under these Terms of Use, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Our prior written consent, which consent We will not unreasonably withhold or delay. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, or reorganization involving You (regardless of whether You are a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under these Terms of Use for which Our prior written consent is required.  No delegation or other transfer will relieve You of any of Your obligations or performance under these Terms of Use.  Any purported assignment, delegation, or transfer in violation of this Section is void.  These Terms of Use are binding upon, and inures to the benefit of, You, Your Authorized Users, and any of Your permitted successors or assigns.
          7. Entire Agreement.  These Terms of Use, together with the Sales Order and any other document incorporated herein, constitutes the sole and entire agreement between You and Us with respect to the subject matter of these Terms of Use, the Sales Order, and such other documents and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to the subject matter.
          8. Survival of Terms.  Notwithstanding anything contrary in these Terms of Use, any and all rights under these Terms of Use which by their sense or nature are intended to continue after the Term will survive the termination and expiration of these Terms of Use.
          9. Changes to Terms of Use.  We may, from time to time, make modification (by amendment, replacement, and/or adding new provisions) to these Terms of Use at any time.  Unless a later effective date is stated, the modified version of these Terms of Use will be effective immediately when posted on the Services or emailed to You.  We will provide notice of changes to the Terms by: (a) posting the amended version of the Terms of Use on the Services; and/or (b) emailing notice to the email account associated with Your account.  You are responsible to check the Services and these Terms of Use regularly for modifications of these Terms of Use.  Your continued use and/or access of any of the Services after the effective date of a modification to these Terms of Use will be conclusive proof that You agree to be bound by the modified version of these Terms of Use.  Provided that You did not use or access the Services after You received notice of changes to these Terms of Use, You may provide Us a written request to terminate these Terms of Use (and the License).  If You so elect to cancel your account due to the changes to these Terms of Use, You will be entitled to a pro rata refund of all prepaid Fees if (x) Your request for cancellation clearly states that the cancellation is due to the changes to these Terms of Use, (y) You demonstrate with clear and convincing evidence that the change caused a material detriment to You or Your use of the Services, and (z) within 30 days of Our receipt of Your cancellation notice, We fail or refuse to agree to modify the Terms of Use so as to remove or substantially reduce the material detriment to You.  Except as detailed in this Section or a mutually agreed written amendment, these Terms of Use may not be modified or amended.
          10. Severability.  If any provision of these Terms of Use is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms of Use or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, these Terms of Use will be deemed to be modified so as to effect the original intent of these Terms of Use as closely as possible.
          11. Governing Law; Submission to Jurisdiction. The Sales Order and these Terms of Use are governed by and construed in accordance with the internal laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Delaware. Any legal suit, action, or proceeding arising out of or related to the Sales Order or these Terms of Use will be instituted exclusively in the federal courts of the United States or the courts of the State of Utah, Salt Lake County, and You irrevocably submit to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.  Service of process, summons, notice, or other document to You by mail will be effective service of process for any suit, action, or other proceeding brought in any such court.
          12. Class Action Waiver.  We and You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action.
          13. Precondition.  You agree that as a condition for You to bring any legal claim against Us (regardless whether brought as a complaint or a counterclaim) relating in any way to these Terms of Use or the Services, You must have provided us a default notice within 60 days that You first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to Your claim.
          14. Time Limitation.  Any claim against Us must be filed within 1 year that You first knew of (or with reasonable inquiry, could have discovered) the act or omission that gave rise to Your claim.
          15. Equitable Relief.  You acknowledge and agree that a breach or threatened breach by You or Your Authorized Users of any of Your obligations under Sections 3.2 (License Restrictions),4 (Your Obligations),or 10 (Confidentiality), would cause Us immediate and irreparable harm for which monetary damages would not be an adequate remedy, and You agree that, in the event of such breach or threatened breach, We will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
              Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding under the Sales Order or these Terms of Use, the prevailing party will be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
            1. No Exclusivity. We are free to offer the Services to other customers.  Nothing in these Terms of Use will be interpreted to create any type of exclusivity for Your use or access to the Services and/or the PDCflow Materials.
            2. No Third-Party Beneficiaries. Nothing in these Terms of Use will be interpreted to create or confer any rights or benefits for any third party.
            3. Conflicting Terms. If there is a conflict between these Terms of Use or any Sales Order regarding the subject matter of these Terms of Use, the applicable Sales Order will control (but only to the extent of such conflict).