Productiv Terms of Service

Last Updated: August 22, 2019

Productiv provides its software application footprint and usage analysis products and services, which may include software and/or hosted subscription services (collectively “Service(s)”) to you (“Customer”) pursuant to these Productiv Terms of Service (the “Agreement”).  BY ENTERING INTO A SERVICES ORDER FORM (OR OTHER ORDERING DOCUMENT) OR SERVICES-RELATED AGREEMENT WITH PRODUCTIV (EACH AN “ORDER FORM”) OR OTHERWISE REGISTERING FOR, ACCESSING OR USING THE SERVICES, CUSTOMER UNCONDITIONALLY ACCEPTS AND AGREES TO ALL OF THE TERMS OF THIS AGREEMENT.  BY ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, CUSTOMER REPRESENTS THAT IT HAS THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, AND, ACCORDINGLY, THE TERMS “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR CUSTOMER DOES NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT USE THE SERVICES.  In consideration of the foregoing, the parties agree as follows:

1. SERVICES AND SUPPORT

1.1   Subject to the terms of this Agreement, Productiv will use commercially reasonable efforts to provide Customer (a) the Services, solely for Customer’s internal business operations, in accordance with the terms and limitations of each Order Form, and (b) reasonable support services, through electronic mail or another online mechanism, in accordance with Productiv’s standard practice.  Capitalized terms not defined herein shall be given the meaning set forth in the applicable Order Form. 

1.2   Productiv reserves the right to change or modify portions of this Agreement at any time.  If Productiv does so, it will post the changes on this page and will indicate at the top of this page the date this Agreement was last revised. Productiv will also notify Customer, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after being posted, except that changes addressing new functions of the Services or changes made for legal reasons may become effective immediately. Customer’s continued use of the Service after the date any such changes become effective constitutes acceptance of the new Agreement. 

1.3   From time to time, Customer may be invited to try certain services at no charge for a free trial, pilot or evaluation period or if such services are not generally available to customers (collectively, “Pilot Services”). Pilot Services will be designated on the applicable Order Form as beta, pilot, POC (Proof of Concept), evaluation, trial, limited release or the like.  Pilot Services are (i) for Customer’s internal evaluation purposes only and not for production use, (ii) are provided free of charge, except for any “Pilot Use Fee” specified on the relevant Order Form, (iii) are not supported, are provided “AS IS” without warranty of any kind, (iv) are provided without any indemnification provision of any kind, and (v) may be subject to additional terms and restrictions pursuant to the applicable Order Form.  Unless otherwise stated on the relevant Order Form, any Pilot Services trial period will expire 60 days from the trial start date and will not automatically renew.  Productiv may discontinue Pilot Services at any time in its sole discretion and may never make them generally available.  Productiv will have no liability for any harm or damage arising out of or in connection with any Pilot Services.

2. RESTRICTIONS AND RESPONSIBILITIES

2.1   Customer will only use the Services as expressly permitted herein and in the applicable Order Form and agrees that it will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Productiv or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; or modify, adapt or hack the Services, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks.  With respect to any Software (in any form) that is provided to Customer, Productiv hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software solely internally in connection with the Services and for no other purpose.  All Software is Confidential Information of Productiv and subject to the terms of Section 5.       

2.2   Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Productiv’s standard published policies and codes of conduct then in effect (the “Policy”) and all applicable laws and regulations (including, without limitation, those relevant to privacy, spam, intellectual property and the like).  Although Productiv has no obligation to monitor Customer’s use of the Services, Productiv may do so and may prohibit any use of the Services (or disable content or data) it believes may be (or alleged to be) in violation of the foregoing or any other term of this Agreement.

2.3   Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, server, software, operating system, networking, web servers and the like (collectively, “Equipment”).  Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.

3. PAYMENT OF FEES

3.1   Customer will pay Productiv the then applicable fees for the Services as described in the relevant Order Form (or in the Service itself, as applicable) in accordance with the terms therein (the “Fees”).  All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement.  If Customer’s use of the Services exceeds any applicable limits set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein.  Productiv reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email).  If Customer believes that Productiv has billed Customer incorrectly, Customer must contact Productiv no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Productiv’s customer support department.

3.2   Productiv may also choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Productiv thirty (30) days after the mailing date of the invoice.  Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Productiv’s net income.

4. TERM; TERMINATION

4.1   Subject to earlier termination as provided below, this Agreement is for the Service Term, as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the initial Service Term (collectively, the “Term”), unless either party requests termination at least forty-five (45) days prior to the end of the then-current term.

4.2   In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice, or upon five (5) days’ notice in the case of nonpayment, if the other party materially breaches any of the terms or conditions of this Agreement and such breach is not cured during the notice period.  Productiv may also reasonably suspend Customer’s and/or any users’ access to Services at any time in its reasonable discretion if it possesses a good faith belief that Customer’s use of the Service may be in violation of this Agreement or otherwise place Productiv (or its customers or other interests) at risk of harm, damage, loss or liability.  Upon termination, Customer’s right to use and access to the Services shall immediately terminate, all outstanding Fees due for the Services for the entirety of the then-current Term (regardless of any early termination) shall immediately become due and payable, Customer shall return (or at Productiv’s option destroy) all Software in its possession, if any, and each party shall return to the other all Proprietary Information. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of Fees, confidentiality obligations, warranty disclaimers, indemnification provisions and limitations of liability.

5. CONFIDENTIALITY; PROPRIETARY RIGHTS

5.1   Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Productiv includes all Software and other non-public information regarding features, functionality and performance of the Service.  Proprietary Information of Customer includes non-public data provided by Customer to Productiv to enable the provision of the Services (the “Customer Data”).  The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, including that Productiv will use industry standard measures to protect the security of any Customer Data in its possession, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.

5.2   Productiv shall own and retain all right, title and interest in and to (a) the Services and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Services or support, and (c) all intellectual property rights related to any of the foregoing.  If Customer provides any suggestions, comments for enhancements or functionality or other feedback to Productiv with respect to any of Productiv’s products or services, Productiv will have the full, unencumbered right to use and otherwise fully exploit the same in connection with its products and services.  No rights or licenses are granted except as expressly set forth herein.

6. CUSTOMER DATA; SECURITY

6.1   Customer will own all right, title and interest in and to the Customer Data.  Notwithstanding anything to the contrary (but subject to the confidentiality provisions of Section 5.1 hereof), Productiv will have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including Customer Data and data derived therefrom), and Productiv will be free (during and after the term hereof) to (i) use such information and data to improve and enhance its products and services and for other development, diagnostic and corrective purposes in connection with its products and services, and (ii) use and disclose such data solely in an aggregated or other anonymized form that does not identify an individual or any specific customer (“Anonymized Customer Data”) in connection with its business, including but not limited to Productiv’s offering of benchmarking services.  Further, Productiv shall have the right to use Customer’s name in a factual manner for marketing or promotional purposes on Productiv’s website and in other communication with existing or potential Productiv customers. To decline Productiv this right, Customer must inform Productiv in the applicable Order Form that it does not wish to grant Productiv this right. No rights or licenses are granted except as expressly set forth herein.

6.2   Promptly following termination of the provision of Services, Productiv will delete the Customer Data (unless otherwise instructed by Customer).  Notwithstanding the foregoing, (i) Productiv shall not be required to return or delete Anonymized Customer Data, and (ii) Productiv may continue to use Anonymized Customer Data as described in Section 6.1(ii) after termination of this Agreement.

6.3   Productiv shall use commercially reasonable efforts to ensure that its security infrastructure is consistent with the industry standards for virus protection, firewalls and intrusion prevention in order to prevent the unauthorized access to the Services and their underlying systems, network, servers and applications controlled by Productiv. Productiv shall use commercially reasonable efforts to maintain appropriate administrative, physical, and technical safeguards for the protection of the security, confidentiality and integrity of the Customer Data while in Productiv’s possession or control.  Productiv shall implement information security practices consistent with industry standards regarding: (i) security controls to identify and protect all information and data under Productiv’s possession or control (including the Customer Data); (ii) employee security awareness, such as communication of all applicable security policies to, and conducting security awareness training for, Productiv’s employees and agents; (iii) physical security controls of Productiv’s facilities; (iv) protocols specifying prompt maintenance of the security of the Services, including security patches, backups and incident management procedures; and (v) protocols governing access to the Services and their underlying systems, network, servers and applications and specifying defined levels  of access restricted to authorized employees and agents only. Productiv shall not violate or attempt to violate the security of Customer’s systems, including, without limitation, accessing Customer’s servers, accounts or databases, or attempting to probe, scan or test the vulnerability of Customer’s systems or breach the security or authentication measures of Customer’s systems.

7.   WARRANTY AND DISCLAIMERS

7.1   Each party hereby represents, warrants, and covenants to the other that: (i) it has the legal right and authority to enter into this Agreement; and (ii) this Agreement forms a binding legal obligation on behalf of such party.

7.2   Productive warrants to Customer that the Service will operate substantially in conformance with any user guides, help information and/or other documentation pertaining to the Service that is made available by Productiv.  Productiv’s sole obligation and Customer’s exclusive remedy in respect of a breach of the warranty in this Section 7.2 is to use reasonable efforts to repair or replace the Services or Software that Productiv determines, in its reasonable judgment, is nonconforming or, at Productiv’s sole discretion, to terminate Customer’s use of the Services and refund to Customer any prepaid Fees, prorated for the remainder of the period for which such Fees have been pre-paid.  The foregoing warranty shall not apply to any nonconformity resulting from any software that was (a) used in violation of this Agreement, (b) used or operated improperly, or in any manner not in accord with the documentation, industry standard practice or Productiv’s written instructions or recommendations or (c) combined, altered, modified or repaired other than by or for Productiv.

7.3   Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Productiv or by third-party providers, or because of other causes beyond Productiv’s reasonable control, but Productiv shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, PRODUCTIV DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND PRODUCTIV DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT.

8.   LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM EITHER PARTY’S BREACH OF THE CONFIDENTIALITY PROVISIONS IN SECTION 5.1 OR EACH PARTY’S INDEMNITY OBLIGATIONS IN SECTION 9, IN NO EVENT WILL EITHER PARTY BE LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND PRODUCTIV’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO PRODUCTIV (PLUS, IN THE CASE OF CUSTOMER, ANY AMOUNTS PROPERLY OWED) FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT PRODUCTIV HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

9.   INDEMNIFICATION

9.1   Productiv shall indemnify, defend and hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Productiv is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Productiv will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Productiv, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Productiv, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Productiv to be infringing, Productiv may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights.

9.2   Customer shall indemnify, defend and hold Productiv harmless from liability to third parties resulting from Customer’s (i) breach of this Agreement, (ii) use of the Service, or (iii) violation of applicable laws, rules or regulations in connection with the Service.  Productiv will provide Customer with written notice of any claim, suit or action from which Customer must indemnify Productiv. Customer will cooperate as fully as reasonably required in the defense of any claim. Productiv reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification by Customer.

10.   GENERAL

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Customer except with Productiv’s prior written consent, except that Customer may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business.  Productiv may transfer and assign any of its rights and obligations under this Agreement without consent. Except to the extent the parties have mutually executed and delivered a separate written agreement covering the same Productiv Services (a “Separate Signed Agreement”), this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  In the event of a conflict between the terms of this Agreement and the terms of a Separate Signed Agreement, the terms of the Separate Signed Agreement shall supersede and control. However, any different or additional terms of any purchase order, confirmation, or similar pre-printed form will have no force or effect. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Productiv in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Without limiting anything herein, and except for payment obligations, neither party will have any liability for any failure or delay resulting from any condition beyond the reasonable control of such party, including governmental action or acts of terrorism, earthquake or other acts of God, labor conditions and power failures. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. Any defined terms used but not defined in this Agreement shall have the definition set forth on the corresponding Order Form. If the meaning of any defined term herein conflicts with the meaning of the same defined term in the applicable Order Form, the meaning ascribed to such defined term herein shall control.

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