DILIGENT SERVICES AGREEMENT

THIS AGREEMENT GOVERNS THE USE OF THE DILIGENT SOFTWARE AND RELATED SERVICES. BY EXECUTING A CLIENT USAGE AUTHORIZATION AND/OR BY USING DILIGENT YOU AGREE THAT YOU ARE AUTHORIZED TO BIND THE APPLICABLE CLIENT COMPANY AND ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT. YOU SHOULD NOT USE DILIGENT IF YOU CANNOT COMPLY WITH THIS AGREEMENT.  THIS AGREEMENT IS BETWEEN THE CLIENT COMPANY (“COMPANY”) AND EBM SOFTWARE, LLC (“EBM”) AND/OR ITS AFFILIATES OR SUBSIDIARIES, AS APPLICABLE.

  1. Diligent Services.
    EBM grants Company a personal, term-based, non-exclusive and non-transferable (except as set forth herein) right to access and use the Diligent Services solely for its own internal business purposes and for the Authorized Company Users defined on the Authorization. Company may not: (i) transfer to any other person any of its rights to use the Diligent Services; (ii) sell, license, rent or lease the Diligent Services; (iii) make the Diligent Services available to anyone who is not an Authorized User; (iv) decompile, reverse engineer, disassemble, or otherwise reproduce, or create any derivative works based upon the Diligent Services or Documentation; (v) copy any feature, design or graphic in, or reverse engineer the Software; (vi) access the Diligent Services in Authorization to: (a) build a competitive solution or to assist someone else to build a competitive solution; or (b) grant access to any consultant or an employee working for an EBM competitor; (vii) permit its personnel or any third party other than EBM or its authorized agent, to perform maintenance, attempt repairs, support or in any way modify the Software; (viii) use the Diligent Services in a way that violates any criminal or civil law; or (ix) load test the Diligent Services in Authorization to test scalability.  Any rights not expressly granted to Company hereunder are expressly reserved to and by EBM.The Software is located on servers that are controlled by EBM or its partners. Company may access the Software but has no right to receive a copy of the object code or source code to the Software. Company is responsible for having, and EBM shall have no liability for providing, a high-speed Internet connection, hardware and software that is compatible with the Diligent Services, as set out in the Documentation.  EBM periodically releases upgrades and updates to the Diligent Services according to its continuous delivery process which are automatically installed into the Software.
  2. Data Governance:
    1. EBM agrees to provide the Diligent Services.
    2. EBM agrees to provide Company with appropriate system and data security as defined in the EBM InfoSec Standard Policy that shall apply to the Diligent Services and be subject to this Agreement (the “EBM Policies”).
    3. EBM agrees to maintain appropriate backups during the Term.
    4. EBM shall abide by all local, state, national and foreign laws, treaties and regulations applicable to it in connection with the Diligent Services provided by it, including those related to data privacy, international communications and the transmission of technical or personal data. EBM shall: (i) notify the Company of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to the Company and use reasonable efforts to stop any unauthorized copying or distribution of user data that is known or suspected by any party immediately.
  3. Company Responsibilities.
    1. Company represents and warrants to EBM that all Company Data provided hereunder shall be wholly original to the Company or the Company has acquired the necessary rights from third parties to contribute such Company Data and include it in the Diligent Services, and Company Data shall not violate any laws of any country and shall not infringe any other party’s copyright, patent, trademark or other intellectual property right. Company Data shall not include any information that relates to an identified or identifiable living individual or which, collected together with other Company Data, can lead to the identification of a living individual.  Company acknowledges that it is responsible for all activity occurring on EBM’s servers relating to the Company Data or its use of the Diligent Services, and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with its use of the Diligent Services, including those related to data privacy, international communications and the transmission of technical or personal data.  Company shall: (i) notify EBM immediately of any unauthorized use of any password or account or any other known or suspected breach of security; and (ii) report to EBM immediately and use reasonable efforts to stop any unauthorized copying or distribution of user data that is known or suspected any party immediately.
    2. Company must provide all data for use in the Diligent Services, and EBM is not obliged to modify or add to the Company Data. Company is solely responsible for the content, quality, integrity, reliability, appropriateness, accuracy, and intellectual property ownership of the Company Data. The Company Data belongs to Company, and EBM makes no claim to any right of ownership in it.  EBM is not responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Company Data, except as specifically required by this Agreement.  Company acknowledges and agrees that EBM may elect at its sole discretion to monitor the Company Data.  EBM shall have the right, but not the obligation, to remove Company Data, which is deemed, in EBM’s sole discretion, harmful, offensive, in violation of any provision of this Agreement or breaches any law.  Upon termination of an Authorization other than by the Company’s breach, EBM will at the direction of the Company delete the Company Data within thirty (30) days of Company’s written request.
    3. Notwithstanding the foregoing, EBM may (i) retain Company Data in backup media for twelve (12) months or longer if required by law and (ii) may use the Company Data and statistics regarding use of the Diligent Services in Authorization to improve its services and offerings solely to the extent that (a) such Company Data has been anonymized and aggregated; and (b) no such data or statistics (or any portion(s) thereof) shall be attributed to Company or identified as originating from Company. EBM’s obligations and practices with respect to such Company Data can be found at the applicable EBM Policy.
  4. Intellectual Property Ownership.
    EBM solely owns the intellectual property in the Diligent Services, including the Software, and any Work Product. Except for the use of the Diligent Services as granted under the terms and conditions of this Agreement, Company has no right, title, or interest in any intellectual property owned or licensed by EBM, including the Software or in any associated patents, copyrights or trademarks of EBM, all of which are and shall remain the sole property of EBM.  All patches, enhancements, new releases, customization and other work product created by EBM provided under this Agreement and any associated copyright, patent, trademark and other intellectual property rights, are and shall remain the exclusive property of EBM, regardless of whether the Company, its employees, or agents may have contributed to the conception, joined in its development, or paid for the development or use of the work product.  Such work product shall be considered Software owned by EBM, and subject to the terms and conditions contained in this Agreement.
  5. Term and Termination.
    Each Authorization shall be in effect only for the duration of the Term on the Authorization. Any Party may terminate rights granted under a particular Authorization if the other breaches any material term of the Authorization (including a material term of this Agreement insofar as it applies to the Authorization) and the breach is not cured within ten (10) days of written notice.  EBM may alternatively opt to suspend the provision of Diligent Services to Company until such breaching activity ceases.  At any time during the suspension period, EBM may terminate the rights granted to Company. All obligations relating to non-use and non-disclosure of Confidential Information, indemnity, limitation of liability, and such other terms which by their nature survive termination, will survive termination of this Agreement.
  6. Warranty Disclaimers.
    EBM DISCLAIMS ALL WARRANTIES AND EXPRESSLY DOES NOT WARRANT THAT THE USE OF THE DILIGENT SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.  EBM MAKES NO WARRANTY FOR DEFECTS IN THE DILIGENT SERVICES. COMPANY AGREES AND ACKNOWLEDGES THAT EBM DISCLAIMS AND IS NOT LIABLE FOR COMPANY’S USE OF, OR ITS ACTS OR OMISSIONS TAKEN BASED UPON, OUTPUTS OR RESULTS DERIVED FROM THE DILIGENT SERVICES. TO THE EXTENT THAT EBM INCORPORATES ANY SYNDICATED OR THIRD-PARTY DATA ON ITS WEBSITE OR MAKES THE SAME AVAILABLE TO COMPANY THROUGH THE DILIGENT SERVICES, COMPANY AGREES AND ACKNOWLEDGES THAT EBM DOES NOT GUARANTEE THE RELIABILITY OR ACCURACY OF SUCH THIRD-PARTY CONTENT AND IS NOT LIABLE FOR COMPANY’S RELIANCE ON, OR IN CONNECTION WITH, SUCH THIRD-PARTY CONTENT OR SERVICES, INCLUDING BUT NOT LIMITED TO ITS COMPLETENESS, ACCURACY, CORRECTNESS OR TIMELINESS.
  7. Limitation of Liability.
    NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. COMPANY ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE DILIGENT SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE COMPANY’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE DILIGENT SERVICES OR WORK PRODUCT. EBM’S TOTAL, AGGREGATE LIABILITY FOR ANY AND ALL DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE AUTHORIZATION SHALL NOT EXCEED $500.00. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN EBM AND COMPANY.
  8. Confidentiality.
    1. The Diligent Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of EBM, and Company agrees to use reasonable care to prevent other parties from learning of these trade secrets. Company must take reasonable care to prevent unauthorized access to or duplication of the Diligent Services, Software, Documentation, and Work Product.
    2. The Company Data may include valuable trade secrets that are the sole property of Company. EBM must take reasonable care to prevent other parties from learning of these trade secrets.
    3. The foregoing in this section constitutes the “Confidential Information” of the parties. The obligations of the parties do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
  9. Miscellaneous.
    This Agreement together with the Authorization represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral.  If there is a conflict between the Agreement and an Authorization, the Authorization will prevail.  This Agreement may not be changed, or any part waived except in writing by the parties. This Agreement will be governed by the laws of Minnesota.  The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the State of Minnesota for any claim relating to this Agreement.  Neither party may assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party (which consent shall not be unreasonably withheld, delay or conditioned, provided that no consent is required in the case of an assignment by the other of its rights and obligations to an entity that has acquired all, or substantially all of the assets of the other party, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this Section is void. Company must not export or re-export, directly or indirectly, any Diligent Services, Documentation or confidential information to any countries outside the United States except as permitted under the U.S. Commerce Department’s Export Administration Regulations. The Diligent Services and Documentation provided to the U.S. Government are “Commercial Items”, as that term is defined at 48 C.F.R. 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, within the meaning of 48 C.F.R. 12.212 or 48 C.F.R.227.7202, as applicable. Consistent with 48 C.F.R. 12.212 or 48 C.F.R. 227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein, as provided in FAR 12.212, and DFARS 227.7202-1(a), 227.7202-3(a), 227.7202-4, as applicable. Both parties shall abide by all applicable federal and state statutes, rules, regulations, Authorizations and directives of any and all applicable government and regulatory bodies having jurisdiction.
  10. Definitions.

    • “Authorized User” only means an employee or an owner of the Company, who is authorized to access the Software as defined in the Authorization. The Company must get written permission from EBM before any Unauthorized Users are permitted to use the Diligent Services.
    • “Company” means the Client Company that is Authorized to use the Diligent Services by executing the Authorization.
    • “Documentation” means user documentation provided electronically by EBM for use with the Diligent Services, as periodically updated.
    • “Company Data” means any electronic information from the Company’s systems or input by Company and stored in the Software.
    • “Authorization” means a document provided by EBM and signed by Company that describes EBM’s service offering.
    • “Software” means the software whose functionality is described in the Authorization.
    • “Diligent Services” means the hosted Company experience solutions identified in an Authorization, and any modifications periodically made by EBM.
    • “Unauthorized User” means anyone that is not an Authorized User.
    • “Work Product” means custom or customized object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by EBM in providing the services specifically to the Company for a fee and does not include the Software or any of the Diligent Services.
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