Client is purchasing a non-exclusive, non-transferable, non-assignable, terminable subscription (‘Subscription‘) for use of the products listed on the first page of this Agreement (collectively ‘Product’) by Client and those employees Client registers with the Product as “Designated Employees.”
The Subscription shall begin upon the execution of this Agreement and Product installation and Product availability, and continue through the Initial Term, set forth on the first page of this Agreement (i.e., one (1) year). If neither party has given the other at least thirty (30) days written notice of its intent not to renew prior to the end of the Initial Term or any Renewal Term, the Subscription shall automatically renew for the next year (each, a “Renewal Term”).
i. Configuration/setup, training, and/or implementation nonrefundable fees will be invoiced upon signing of Agreement. All invoices must be paid within thirty (30) days.
ii. Annual Subscription Fee will be invoiced thirty (30) days from signed contract date. All invoices must be paid within thirty (30) days.
ACA COMPLIANCE SOLUTIONS SERVICES shall provide Client with commercially reasonable: (a) support in the initial installation and setup of Product, and b) ongoing telephone support regarding the use of Product during the Initial Term and any Renewal Term during normal EST business hour Monday through Friday. Initial product installation/configuration and support hours would include up to six (6) hours of product training and assistance. All telephone assistance rendered by ACA COMPLIANCE SOLUTIONS SERVICES shall be to the Designated Employee(s); and ACA COMPLIANCE SOLUTIONS SERVICES shall not be required to provide ‘help desk’ support for any questions or assistance not directly related to Product.
Client acknowledges and agrees that it must properly enter data and information into Product in order for Product to operate properly. Client shall be responsible to verify the accuracy of any Client’s data entered in Product.
At all times, unless otherwise approved by ACA COMPLIANCE SOLUTIONS SERVICES, Client must have an employee who has been identified to ACA COMPLIANCE SOLUTIONS SERVICES as the Designated Employee(s). This employee will be the contact person(s) for Client’s data for the purpose of sending and receiving all necessary data, data corrections, and validating Client’s accuracy of data. If the Designated Employee ceases to serve as such, Client shall promptly designate a new one and communicate the change to ACA COMPLIANCE SOLUTIONS SERVICES.
If Client’s internal training on the data procedures relating to all services related to this Agreement are deemed insufficient by ACA COMPLIANCE SOLUTIONS SERVICES in depth of scope to reasonably execute the necessary processes and procedures to execute in a timely and secure manner all data transfers and corrections as related to the services referenced in this Agreement, then Client at its expense will work with ACA COMPLIANCE SOLUTIONS SERVICES staff to train the Designated Employee(s).
i. Client shall not assign, transfer, pledge, sub-license or otherwise encumber or dispose of any of Client’s rights or obligations under this Agreement.
ii. The Subscription does not extend to any individual or entity not a party to this Agreement, any employees of Client who are not either the Designated Employees or any business, school or operation acquired by Client by merger, consolidation, purchase, operation of law or otherwise, unless ACA COMPLIANCE SOLUTIONS SERVICES agrees in writing to the extension or assignment of the Subscription. No right is granted for the use or access of Product by any third party. A transfer of control or ownership of Client shall be considered a prohibited transfer of Client’s Subscription.
iii. ACA COMPLIANCE SOLUTIONS SERVICES may assign this Agreement to any third party acquiring all or substantially all of ACA COMPLIANCE SOLUTIONS SERVICES ’s assets or stock.
iv. Information regarding Client’s employees acquired by ACA COMPLIANCE SOLUTIONS SERVICES shall be confidential. Aggregated data not relating to individual employees of Client acquired by ACA COMPLIANCE SOLUTIONS SERVICES in the course of performing this Agreement will be the sole property of ACA COMPLIANCE SOLUTIONS SERVICES.
ACA COMPLIANCE SOLUTIONS SERVICES shall maintain compliance with all state and federal laws, rules, and regulations, and is continually enhancing Product to assure compliance. Given the changing nature of federal and state guidelines and regulations, ACA COMPLIANCE SOLUTIONS SERVICES commits to keeping Product fully compliant based upon the current understanding of mandatory regulations. Ultimately it is the Client’s responsibility, with their legal representative, to ensure all reports filed with the federal and state agencies are complete, legal, and accurate.
ACA COMPLIANCE SOLUTIONS SERVICES makes every effort to protect Client’s data in a highly secure environment. The Client shall also make every effort to not allow any Security Breach into the secured environment by way of its negligence or malfeasance. If either party becomes aware of any unlawful access to any Client data stored on ACA COMPLIANCE SOLUTIONS SERVICES equipment or in ACA COMPLIANCE SOLUTIONS SERVICES data centers, or unauthorized access to such data resulting in loss, disclosure, or alteration of Client data or any other data belonging to the parties or either of them (each a "Security Incident"), the discovering party will:
(a) notify the other by written communication (including but not limited by email) of the Security Incident within twenty four business hours (24) from the time of discovery of the same;
(b) ACA COMPLIANCE SOLUTIONS SERVICES will investigate the Security Incident and provide the Client with information about the Security Incident; and
(c) take reasonable steps to mitigate the effects and to minimize any damage resulting from the Security Incident.
An unsuccessful Security Incident will not be subject to this Section. An unsuccessful Security Incident is one that results in no unauthorized access to Client data or to any of our equipment or facilities storing Client data. This may include, without limitation, pings and other broadcast attacks on firewalls or edge servers, port scans, unsuccessful log-on attempts, denial of service attacks, packet sniffing (or other unauthorized access to traffic data that does not result in access beyond IP addresses or headers) or similar incidents.
The obligation to report or respond to a Security Incident under this Section is not and will not be construed as an acknowledgement by either party of any fault or liability with respect to the Security Incident.
The parties recognize that a Security Incident caused by one of the parties can be damaging to other party and that a party damaged by a Security Incident caused by the other party shall have the ability to seek recourse against the precipitating party and recover any and all remedies available at law and equity against the precipitating party following any Security Incident.
Notification of a Security Incident, if any, will be delivered to one or more of your Designated Employees by any means we select, including via email. It is your sole responsibility to ensure your Designated Employee (s) maintain accurate contact information at all times.
In the event Client integrates Product with a third-party product or service, whether with or without ACA COMPLIANCE SOLUTIONS SERVICES 's Assistance, Client understands and agrees: (a) that ACA COMPLIANCE SOLUTIONS SERVICES is authorized to provide Client data to a specified third-party or permit such third party to have access to Client’s data, as required to accomplish the integration services; and (b) ACA COMPLIANCE SOLUTIONS SERVICES is not responsible for, does not warrant, support, or make any representations regarding: (i) third-party products or services, (ii) Client’s data in the possession of third parties, including, without limitation, a third party’s storage, use or misuse of Client data, or (iii) Client’s uninterrupted access to a third party’s services due to circumstances outside of the control of ACA COMPLIANCE SOLUTIONS SERVICES .
i. THE PARTIES SHALL BE LIABLE AND SHALL INDEMNIFY AND HOLD HARMLESS THE OTHER PARTY FOR ALL DAMAGES, CLAIMS, LOSSES AND EXPENSES WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS’ FEES AND ARBITRATION AND COURT COSTS, AS WELL AS ANY DAMAGES, CLAIMS, LOSSES OR EXPENSES RELATING TO ANY ERROR, FAILURE, MALFUNCTION, OR DEFECT OF PRODUCT, ANY BREACH OF THIS AGREEMENT AND ANY NEGLIGENCE OR OTHER MALFEASANCE BY A PARTY, ITS EMPLOYEES, AGENTS, REPRESENTATIVES, ATTORNEYS, OFFICERS, AND DIRECTORS.
ii. Upon termination of this Agreement for any reason, the provisions of this Sections shall survive termination and continue in full force and effect.
i. Client may terminate this Agreement at any time, for any reason or no reason, on thirty (30) days prior written notice to ACA COMPLIANCE SOLUTIONS SERVICES. In the event Client terminates this Agreement pursuant to this Section, ACA COMPLIANCE SOLUTIONS SERVICES shall be entitled to retain all monies received from Client pursuant to this Agreement, to be paid for fees due up to the termination; and shall be relieved of further obligations to Client except for the obligations as set forth in Sections 8 and 9 above. ACA COMPLIANCE SOLUTIONS SERVICES shall promptly return to Client any data, confidential information, materials, records, and other information furnished to ACA COMPLIANCE SOLUTIONS SERVICES by Client.
ii. ACA COMPLIANCE SOLUTIONS SERVICES may terminate this Agreement for any breach by Client.
iii. Data retention and storage is the responsibility of Client.
a. Unless a data retention and storage contract is entered into as outlined in 12.iii.b. below, ACA COMPLIANCE SOLUTIONS SERVICES may deactivate all users and remove all of Client's data 30 days after the termination date.
b. Ongoing access to online compliance reports, such as ACA, is available with an ongoing yearly maintenance fee and separate contract. ACA COMPLIANCE SOLUTIONS SERVICES will not retain this data after 30 days of termination of contract.
Client grants to ACA COMPLIANCE SOLUTIONS SERVICES the right to disclose publicly the fact that Client is using Product, for ACA COMPLIANCE SOLUTIONS SERVICES ’s advertising and promotional purposes, unless Client notifies ACA COMPLIANCE SOLUTIONS SERVICES to the contrary.
All intellectual property pertaining to Product, including trademarks and copyrights, is and shall remain the sole property of ACA COMPLIANCE SOLUTIONS SERVICES and its affiliated companies.
This Agreement states the entire understanding reached between the hereto with respect to the subject matter contained herein and supersedes all prior or contemporaneous agreement, understanding, representations, and warranties between the parties, and may not be amended except by written instrument executed by the parties hereto.
This agreement is governed and controlled as to validity, enforcement, interpretation, construction, effect and in all other respect by the statutes, laws, and decisions of the Commonwealth of Kentucky, without reference to Kentucky’s conflict of laws principle. Any controversy or dispute between the parties arising out of this Agreement will be resolved by arbitration under the Kentucky Uniform Arbitration Act (KRS 417) with claims heard by a panel of three (3) arbitrators. The parties hereby waive any defense of lack of personal jurisdiction, lack of subject matter jurisdiction, improper venue, and/or forum non-conveniens to arbitration in Jefferson County, Kentucky which might otherwise apply but for this Section 16.
The costs of arbitration will be shared equally by the parties. Each party shall choose one disinterested person to act as an arbiter and the two arbiters shall choose a third disinterested arbiter. The panel of arbitrators will not have authority to change any of the terms of this Agreement. The parties shall timely present their claim to the panel of arbitrators whose majority decision shall be final and binding upon the parties. The prevailing party may be awarded reasonable attorney’s fees incurred in the arbitration in addition to any other relief awarded as such may be allowed upon application by the panel of arbiters. Judgment upon any award rendered by the arbitrator may be entered in the Jefferson Circuit Court and then in any other competent Court for the purposes of enforcement.
Information provided by ACA COMPLIANCE SOLUTIONS SERVICES is not legal advice and should not be treated as such, should you have questions, please consult legal counsel.
BY SIGNING, CLIENT CERTIFIES THAT THE TERMS AND CONDITIONS HAVE BEEN READ AND AGREE TO THE TERMS ATTACHED HERETO AND INCORPORTATED HEREIN AND SHALL BE BOUND BY THE SAME. Customer also agrees that the terms and conditions of this Agreement are confidential information of ACA COMPLIANCE SOLUTIONS SERVICES and are not to be shared with any third party without the prior written consent of ACA COMPLIANCE SOLUTIONS SERVICES.