Updated May 7, 2021
The following terms and conditions (as amended and modified by Permanent Enhancements LLC (PE) from time to time, the “Terms”) (i) govern all use of and access to the PE website (the “Website”), all content, software, services and products available at or through the Website, including, but not limited to, the PE quality management software (the “Software”), and the Software Services (as defined below) and (ii) form part of the Agreement (as defined below). As used in the Terms, use of and access to the Software Services (as defined below) shall be deemed to encompass the use of and access to the Website and/or the Software.
The Website, the Software and the Software Services are owned and operated by Permanent Enhancements LLC (PE). A person, entity or organization that executes a written proposal (the “Proposal”) to use and access the Software Services, as approved by PE, is the “Customer”.
Use of the Software, which is accessed on a SaaS basis via the Website (the “Software Services”) is only available for use by (i) the Customer if it has made payment of all amounts then payable as set forth in the Proposal and otherwise complied with all terms of the Agreement, and (ii) if the Customer has made such payment and so complied, the Customer’s Users (as defined below) and Administrators (as defined below) designated by such Customers. For avoidance of doubt, a termination of the Agreement by PE due to breach of the Agreement by the Customer shall not relieve the Customer of its obligation to make all payments otherwise attributable to and payable with respect to the entire stated original and renewal terms of the Agreement. Such all payments shall be payable by the Customer to PE within five (5) days of the date such termination. Further, in the case of any such termination, PE will have no obligation to provide a refund of any amounts previously paid to PE.
Please read the Proposal, any Addenda, the Terms and the Rules, or the entire Agreement, carefully before executing a Proposal, which will bind the Customer the terms and conditions of the Agreement. Upon the Customer’s (i) execution of a Proposal and/or (ii) access or use of any part of the Website, the Software and/or the Software Services, the Customer shall be bound by and comply with, and to cause its Users and Administrators to comply with, the terms and conditions of the Terms. If the Customer or any of its Users or Administrators does not comply with to all provisions of the Agreement applicable to it, him or her, then the Customer and its Users and Administrators may not access or use the Website, the Software or any Software Services. Customer shall be responsible for the compliance by and liable for the non-compliance by Users and Administrators with all terms of the Agreement.
- In order to access and use the Software Services, an end user (each, a “User”) will need a PE user profile (a “User Profile”), which User Profile may be created by User or assigned to User by an Administrator (as defined below). When using or accessing the Software Services for the first time, User will be prompted to set up a User Profile by entering certain details, such as name and email address, establishing a profile name and password, and uploading a profile picture.
- User is responsible for maintaining the security of such User’s login information. PE may remove any content, description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause PE liability. Users must immediately notify PE of any unauthorized uses of a User’s User Profile or any other breaches of security. PE will not be liable for any acts or omissions by a User, including any damages of any kind incurred as a result of such acts or omissions.
- The Customer has ultimate control over the use of the Customer’s account (the “Customer Account”) by authorized Users and Administrators to manage certain quality and regulatory functions using the Software Services.
- Each Customer Account will be administered by one or more Users who are appointed by the Customer as administrators (each an “Administrator”). An Administrator will have special rights in relation to those Customer Accounts they administer, including the ability to grant Users with access to the Customer Account and to remove Users from the Customer Account.
- The Customer will have special rights in relation to the Customer’s Account, including the ability to grant Administrators and Users with access to the Customer Account and to remove Administrators and Users from the Customer Account. The Customer will, at all times, have access to and ownership of the Content (as defined below) and output of the Customer Account.
- If a User is using a User Profile assigned to such User by the Customer or an Administrator, or if such User’s use of a PE User Profile is in connection with such User’s role as an employee or contractor, such User’s use of such User’s Profile may be subject to the terms of its, his or her employment or other contractual relationship with the Customer. PE is not responsible for the monitoring or enforcement of any third-party contractual obligations or policies. The Customer and Administrators may be able to access or disable a User’s account.
- The storage limitation for the Customer Account includes up to 500 GB of stored content. Additional charges may apply to content posted by Users authorized by the Customer in excess of 500 GB.
Access Rights to Software Services
- Software Services allow a User to access the PE Software as a service through the Website.
- Unless otherwise specified in the Agreement, PE shall give the Customer and the Customer's authorized Administrators and Users, access to the Software Service if the Customer has paid to PE all amounts payable by it under the Agreement and otherwise complied and caused its Administrators and Users to comply with the terms of the Agreement, in each case as of the time of such access. So long as the Customer, and each User and Administrator authorized by the Customer, complies with the Agreement including without limitation these Terms and conditions of the Agreement, PE gives the Customer and the Customer’s authorized Administrators and Users, a limited, nonexclusive, nontransferable right and license to use the Software Services, including those components and functionality specified in the applicable Proposal.
- None of the Customer, any User and any Administrator shall reverse engineer or decompile the Software Services, attempt to do so, or assist anyone in doing so.
Responsibility of Customer for Actions of Users and Administrators
- If a User, Administrator or other agent of Customer contributes to, comments upon, uploads or otherwise posts any written or other content, design, process, work of authorship, documentation, formula, data or other material to the Software (together “Content”), Customer is entirely responsible for such Content, and any harm resulting from such Content. By making Content available, the applicable User or Administrator, and in each case the Customer, represent and warrant that:
- the downloading, copying and use of the Content will not infringe the proprietary rights, including but not limited to the copyright, patent, trademark or trade secret rights, of any third-party;
- if such User’s or Administrators’ employer has rights to intellectual property such User or Administrator creates, he, she or it has received permission from such employer to post the Content or make the Content available via the Software Services;
- each User and Administrator has fully complied with any third-party licenses relating to the Content;
the Content does not contain or install any viruses, worms, malware, Trojan horses or other harmful or destructive content;
- the Content is not spam, is not machine or randomly-generated, and does not contain unethical or unwanted commercial content designed to drive traffic to third party sites or boost the search engine rankings of third-party sites, or to further unlawful acts (such as phishing) or mislead recipients as to the source of the material;
- the Content is not pornographic, does not contain threats or incite violence, and does not violate the privacy or publicity rights of any third party; or
- use the Software Services to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, threatening, abusive, hateful, or is otherwise objectionable as reasonably determined by PE.
- None of the Customer, any User and any Administrators shall, or authorize, encourage or permit any third party to:
- use the Software Services for any fraudulent or inappropriate purpose;
- use any robot, spider, other automated device, or manual process to monitor or copy any content from the Website other than copying or exporting of the Content as permitted by PE’s policies; or
- rent, lease, distribute, or resell the Software, or allow access to or use the Software for developing a competitive solution (or contract with a third party to do so), or remove or alter any of the logos, trademark, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in the Software or displayed in connection with the Software Services.
- If User deletes Content, Subject to PE’s Continuing Data Rights, PE will use reasonable efforts to remove it from the Website, but the Customer and such User acknowledge that caching or references to the Content may not be made immediately removable.
- Without limiting any of those representations or warranties, PE has the right (though not the obligation) to, in PE’s sole discretion, refuse or remove any Content that, in PE’s reasonable opinion, violates any PE policy or is in any way harmful, objectionable, or unlawful. PE will have no obligation to provide a refund of any amounts previously paid
Continuing Data Rights.
- Customer acknowledges and agrees that PE as part of the Software Services provided to its customers, uses information and learnings from the Software Services it provides to its customers and Content to improve its products, understand and act upon interrelationships, develop insights and intelligence, benchmarking, work-flows, and other learnings to help Customer and other customers change their quality systems from a siloed reactive state to a proactive connected state with the intent to provide better information so customers can develop higher quality products, improve the level of patient care and outcomes, decrease the time in which customers bring their products to market, lower overall costs and decrease overall product and organizational risk.
- Customer hereby grants and agrees to grant PE an irrevocable, perpetual, royalty-free, fully paid-up, worldwide right and license to Use the Content; so long as such Use is of deidentified, statistical, anonymized, aggregate, or such other form of information (“Deidentified Content”) that does not allow third parties including other customers to be able to identify the source of the original Content or contain any personally identifiable information in such Content (the “Continuing Data Rights”). “Use” in this Section 4.e. shall mean the right to use, reproduce, make derivative works of, display, transmit and otherwise distribute, publicly perform, digitize, analyze, aggregate, develop algorithms learning and intelligence using, offer for sale, sell, and otherwise use and exploit, the Content; and further includes the right to sublicense through multiple tiers of sublicensees.
PE Intellectual Property
- Except for the rights and licenses set forth in Section 3, and to the extent set forth in Section 4(d), the Agreement does not transfer or constitute a transfer to the Customer, any User or any Administrator any PE or third party intellectual property, and all right, title and interest in and to such property, including, without limitation, the Website, the Software and the Software Services, will remain solely with PE. The PE trademark and logo, and all other trademarks, service marks, graphics and logos used in connection with PE, the Website, the Software or the Software Services are trademarks or registered trademarks of PE or PE’s licensors. Other trademarks, service marks, graphics and logos used in connection with the Website, the Software or the Software Services may be the trademarks of other third parties. Neither the use of or access to the Software Services grants to Customer or any User or Administrator any right or license to reproduce or otherwise use any PE or third-party trademarks or other intellectual property not necessary for use of or access to the Software Services.
- When Users upload, submit, store, send or receive Content to a particular Customer Account using the Software, Users and Customer grant PE (and those third party contractors PE works with) a license to publish and otherwise use and process such Content on the Software so as to make it accessible to authorized Users and Administrators with access to the relevant Customer Account, and PE may use, host, store, reproduce, modify, create derivative works (such as those resulting from adaptations or other changes PE make so that User’s Content works better with our Software, or to create the Software’s output), communicate, publish, display and distribute such Content for this purpose. The rights Customer and Users grant in this license are for the limited purpose of operating and improving the Software Services.
- PE may display User’s profile name, profile photo, and actions User takes on the Website (such as Content that User posts and comments that User posts) within the relevant Customer Account.
No Obligation to Review Content
- PE has not reviewed, and cannot review, all of the Content posted to the Website, and cannot therefore be responsible for that Content. By operating the Website, PE does not represent or imply that it endorses the material there posted, or that it believes such material to be accurate, useful or non-harmful.
- The Customer and the applicable User are responsible for taking precautions as necessary to protect such User’s self and such User’s computer systems from viruses, worms, Trojan horses, and other harmful or destructive content.
- The Website may contain Content that is offensive, indecent, or otherwise objectionable, as well as Content containing technical inaccuracies, typographical mistakes, and other errors.
- The Website may also contain Content that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. PE disclaims any responsibility for any harm resulting from the use by the Customer, Users or Administrators of Content on the Website or from any downloading of Content there posted.
Content Posted on Other Sites
- PE has not reviewed, and cannot review, all of the material, including computer software, made available through the websites and webpages to which PE links, if any, and that link to the Website.
- PE does not have any control over those non-PE websites and webpages and is not responsible for their content or their use.
Fees; Term; Termination
- General Terms
- In respect of Software Services, Customer agrees to pay PE the subscription fees specified in the applicable Proposal.
- Subscription fees for the first year of the Subscription Term shall be payable within (15) days after execution of the Proposal and prior to PE granting Customer access to the Software Services. For subscription fees for each year of the Subscription Term after such first year, Customer agrees to pay invoices within thirty (30) days of receipt, unless otherwise specified in the Proposal. Payment shall be made in U.S. Dollars by a check drawn on a U.S. bank or by wire transfer to the account listed on the invoice. Customer agrees to accept electronic invoices.
- Customer will be responsible for paying any sales tax, GST, VAT, custom tax, license and use taxes, direct taxes, additional taxes, fees, assessments or any other same or similar tax levied by any local, state or federal government or governmental agency relating to, resulting from or based on use of the Software Services pursuant to the Agreement.
- The term for the use of Software Services shall be specified in the relevant Proposal (the “Subscription Term”).
- Upon the expiration of the Subscription Term, the Agreement shall automatically renew for additional and successive one-year (1) periods unless either party notifies the other party in writing of its election not to renew at least sixty (60) days prior to the expiration of the then current Subscription Term. Unless otherwise agreed by the parties in writing, each automatic renewal of the Subscription Term as set forth in this paragraph shall be on the same terms and subject to the same conditions as set forth herein, as amended or otherwise modified by PE (including, for avoidance of doubt, the obligation of the Customer to pay the fees associated with the next year of the Subscription Term as set forth in the Proposal or, if no such fees for such next year are specified in the Proposal, the same fees payable for the immediately preceding year of the Subscription Term). PE will notify Customer of any price increases for Software Services at least thirty (30) days prior to the expiration of the then current Subscription Term and, if Customer does not accept such price increase in writing prior to the end of the then current Subscription Term, then the subscription to the Software Services shall expire at the conclusion of the then current Subscription Term.
- In the event of a material breach of any term of the Agreement by (a) PE, the Customer may terminate the Agreement, or (b) Customer or any User or Administrator, PE may terminate the Agreement, and the Software Services specified therein, by giving the other party fifteen (15) business days’ prior written notice of termination thereof; provided, however, that such termination will not be effective if the defaulting party has cured such material breach prior to the expiration of such fifteen (15) business day notice period.
- Late Payments
- The Customer shall pay interest on any unpaid balance of (a) ten percent (10%) of the outstanding amount on the date the payment becomes overdue, and (b) two percent (2%) per calendar month on the outstanding balance from and including the date the payment becomes overdue until the date of payment, or the maximum rate of interest that can legally be charged to the Customer, if lower.
- Notwithstanding anything to the contrary contained herein, PE may suspend use of and access to the Software Services in the event that any amount due remains unpaid for more than thirty (30) days after the date the payment becomes due.
- PE personnel will never request User password information in any manner whatsoever; furthermore, PE will never transmit password information via email nor any other written or spoken media. Forgotten or lost user passwords may only be reset using the facilities within the PE Website.
- PE will never sell Content to or with any third parties subject to PE’s Continuing Data Rights and rights to Use the Deidentified Content.
- All Content of Users of Software Services shall be continuously backed up after a period of no greater than 24 hours. A request by the Customer subscribing for Software Services to restore a prior backed-up copy of Content may be subject to additional charges if it is determined that the circumstances leading to the request are not due to operational issues or errors or defects in the Software or are not otherwise deemed to be the fault/ responsibility of the PE.
- All Content of Users of Software Services shall be retained in a secure data store suitable for rapid restoration (if necessary) for a period of no fewer than fourteen (14) calendar days.
Copyright Infringement and DMCA Policy
- As PE asks others to respect its intellectual property rights, it respects the intellectual property rights of others. If the Customer or any of its Users or Administrators believes that material located on the Website or linked to by PE violates the Customer’s or any User’s or Administrator’s copyright, the Customer shall notify PE in accordance with PE’s Digital Millennium Copyright Act (“DMCA”) Policy.
- PE will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material. PE will terminate a visitor’s access to and use of the Website if, under appropriate circumstances, the visitor is determined to be a repeat infringer of the copyrights or other intellectual property rights of PE or others.
- PE reserves the right, in its sole discretion, to add, modify, or delete portions and/or functionality of the Software, so long as such changes do not adversely affect, in the aggregate, Customer’s ability to use the Software Services. Customer shall cooperate with PE in respect of implementing or adopting any updates to the Software Services which are recommended by PE to comply with applicable regulations or guidelines relevant to the quality or regulatory processes managed by the Software Services. PE reserves the right, at its sole discretion, to modify or replace any part of the Terms.
- The Terms, as modified or replaced, will be effective immediately upon being made available on the Website and Customer, Users and Administrators shall be bound to the modified and/or replaced Terms as of such effective time. It is Customer’s responsibility to check these Terms periodically for changes.
- Except for the warranties specifically set forth in Sections 14(c), (d) and (e), PE and its suppliers and licensors hereby disclaim all warranties of any kind in respect of the Website, the Software and the Software Services, including, without limitation, the warranties of merchantability, fitness for a particular purpose, title and non-infringement. None of PE, its suppliers and its licensors make any warranty that the Software Services will be error free. Customer and Users understand that Customer’s and Users’ use of the Software Services are at Customer’s and Users’ own risk.
- PE does not make any warranties concerning the outcome of any quality or regulatory function undertaken using the Software Services including, without limitation, the outcome of any application to any regulatory or governmental agency.
- Software Services - Guaranteed Uptime/Availability
- Scheduled Maintenance - PE reserves, solely at its discretion, the right to make the Software Services unavailable for access for up to 1 hour per week for scheduled maintenance and such downtime shall not be counted against any availability guarantees specified in this Section 16. Scheduled maintenance operations shall be preceded by no less than 24 hours notification via email to Users of Software Services and/or posted to the Software and/or login screen.
- Unexpected Downtime - Beyond the aforementioned scheduled maintenance, PE will make the Software Services shall be available with a minimum of 99.5% software uptime.
- Data Storage and Transmission – All Content entered or uploaded to the Software Services shall be transmitted via Secure Sockets Layer (SSL), using HTTPS. All internal PE service calls and data transfers relating to the Software Services are similarly encrypted via SSL/SSH.
- PE utilizes Amazon Web Services (AWS) infrastructure (http:// aws.amazon.com). Content uploaded to the Software Services, is securely stored in AWS’s according to industry best practices with respect to computer software Security and Privacy. See the AWS Security site (http://aws.amazon.com/ security/) for information about AWS security and privacy capabilities and policies, including information on physical site security and data redundancy/availability capabilities.
- Access to Content uploaded to the Software Services is restricted to only those PE personnel who absolutely must have access to said data to perform their job functions.
Limitation of Liability
- In no event will PE, or its suppliers or licensors, be liable with respect to any and all subject matters of the Agreement under any contract, negligence, strict liability or other legal or equitable theory for: (i) any special, punitive, indirect, incidental, punitive, indirect or consequential damages; (ii) the cost of procurement for substitute products or services; or (iii) for amounts that exceed the fees paid by Customer to PE, under the Agreement, if any, during the twelve (12) month period prior to the first claim or cause of action ever being brought against PE with respect to the Agreement or its subject matter. PE shall have no liability for any failure or delay due to matters beyond their reasonable control.
- In no event will PE, or its suppliers or licensors, be liable for any deficiency or failure in the quality or regulatory functions of the Customer or any of its Users or Administrators, any failure to obtain the approval of any regulatory or governmental agency, or liability arising from the products manufactured or distributed by the Customer or any such User or Administrator under any contract, negligence, strict liability or other legal or equitable theory.
General Representation and Warranty
- The Customer represents and warrants that (i) the Customer’s and each of its Users’ and Administrators’ use of the Website, the Software and Software Services will be in strict accordance with the Agreement and with all applicable laws and regulations (including without limitation any local laws or regulations in the Customer’s and each of such Users’ and Administrators’ country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from the United States or the country in which the Customer or such User or Administrator resides) and (ii) the Customer does not know that use of the Website and Software Services will infringe or misappropriate the intellectual property rights of a third -party.
- Customer agrees to indemnify and hold harmless PE, its contractors, and its licensors, and their respective directors, officers, members, managers, employees and agents from and against any and all claims and expenses, including attorneys’ fees, arising out of any negligent or unlawful act or omission or any violation of any provision of the Agreement by Customer or any of its Users or Administrators.
- PE agrees to indemnify, defend and hold harmless Customer from and against any claims and expenses incurred as a result of the infringement by the Website, Software or Services of the intellectual property rights of a third party. Notwithstanding the foregoing, in no event shall PE have any obligations or liability arising from: (i) use of the Software Services in a modified form or in combination with materials (including the Content) or software not furnished by PE, or (ii) any Content provided by a User.
- The Agreement constitutes the entire agreement between PE and the Customer concerning the subject matter thereof, and supersedes all prior representations, agreements and understandings, written or oral. The Agreement will be governed by the laws of the state of Ohio, U.S.A., excluding its conflict of law provisions, and the parties agree that the exclusive jurisdiction and exclusive venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in Willoughby, Ohio.
- Each party hereby consents to the personal and exclusive jurisdiction of such courts and waives any right to object thereto, whether on the basis of forum non convenience or otherwise. If any part of the Agreement is held invalid or unenforceable, that part will be construed to reflect the parties’ original intent, and the remaining portions will remain in full force and effect.
- A waiver by either party of any term or condition of the Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Customer may not assign Customer’s rights under the Agreement to any party without prior written consent of PE, which will not be unreasonably withheld. PE may assign its rights under the Agreement.
- The Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns. The parties hereto are acting as independent contractors, and nothing in the Agreement shall be construed as establishing a partnership, joint venture, agency, employment or other similar relationship between the parties hereto.
- No User or Administrator is a third-party beneficiary with respect to the Agreement. If the performance of the Agreement or of any obligation hereunder, except for the payment of any amounts due hereunder, is prevented, restricted or interfered with by reason of any cause beyond the reasonable control of the affected party, such party, upon prompt written notice to the other party, shall be excused from such performance to the extent of the aforementioned prevention, restriction or interference.
- After the expiration or termination of the Agreement, except with regard to Sections 4(e), 5, 9(d), 15, 17 and 18 of the Terms and any obligations arising prior to such expiration or termination, which shall survive the expiration or termination of the Agreement, the Agreement shall be of no further force and effect and the parties shall have no further obligations hereunder.