Posh POC Training Simulator

THESE TERMS AND CONDITIONS (“TERMS”) GOVERN YOUR USE AND ACCESS TO THE POSH TRAINING SIMULATOR SOFTWARE SERVICE (“TRAINING SIMULATOR” OR “SOFTWARE”) MADE AVAILABLE TO YOU BY CU POSH TECHNOLOGIES, LLC OR ANY OF ITS AFFILIATES (COLLECTIVELY, “POSH”), YOU (“CUSTOMER”): (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THESE TERMS; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THESE TERMS; AND (C) ACCEPT THESE TERMS AND AGREE THAT YOU ARE LEGALLY BOUND BY THESE TERMS.

WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO CHANGE, MODIFY OR OTHERWISE ALTER THESE TERMS, OR ANY POLICY OR GUIDELINE APPLICABLE TO THE TRAINING SIMULATOR, AT ANY TIME, AS SET FORTH HEREUNDER. UNLESS OTHERWISE SPECIFIED, ANY CHANGES OR MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY UPON POSTING OF THE REVISED TERM OR POLICIES ON OUR WEBSITE OR OTHER NOTICE TO YOU, AND YOUR CONTINUED USE OF THE TRAINING SIMULATOR AFTER SUCH POSTING OR NOTICE WILL CONSTITUTE YOUR AGREEMENT TO BE BOUND BY SUCH MODIFIED TERMS OR POLICIES. YOU SHOULD FROM TIME TO TIME REVIEW THE TERMS AND ANY POLICIES INCORPORATED IN THEM TO UNDERSTAND THE TERMS AND CONDITIONS THAT APPLY TO YOUR USE OF OUR POSH OFFERINGS. IF YOU DO NOT AGREE TO THE MODIFIED TERMS, YOU MUST STOP ACCESSING OR USING THE TRAINING SIMULATOR . IF YOU ARE A USER OF POSH OFFERINGS OTHER THAN THE TRAINING SIMULATOR  OBTAINED PURSUANT TO YOUR AGREEMENT TO THESE TERMS AND CONDITIONS, OTHER LICENSE OR AGREEMENT TERMS AND CONDITIONS APPLY TO USE OF SUCH POSH OFFERINGS AND MAY REQUIRE YOUR ACCEPTANCE. YOU AGREE TO BE BOUND BY ANY AFFIRMATION, ASSENT OR AGREEMENT YOU TRANSMIT THROUGH THE SERVICES YOU ACCESS BY COMPUTER OR OTHER ELECTRONIC DEVICE (INCLUDING INTERNET, TELEPHONIC AND WIRELESS DEVICES), INCLUDING BUT NOT LIMITED TO ANY CONSENT YOU GIVE TO RECEIVE COMMUNICATIONS FROM US SOLELY THROUGH ELECTRONIC TRANSMISSION. 

All capitalized terms not defined in the body of these Terms are defined in Section 9 of these Terms.  In consideration of the mutual promises and covenants contained in these Terms, the parties agree as follows: 

1.  LICENSES, RESTRICTIONS, AND CUSTOMER COMMITMENTS

‍‍1.1 Posh grants to Customer, during the Term and subject to these Terms, a revocable, worldwide, non-transferable, non-sublicensable, non-exclusive, royalty-free, fully paid up, limited license to use the Software and any accompanying Documentation or media provided by Posh to Customer.  Nothing herein grants any rights to Customer to rent, resell, or to remarket the Software or to provide access to the Software to any third party.

1.2 Posh reserves the right to suspend or terminate any part or portion of the Customer’s access to the Software if Customer is: (a) in Posh's sole discretion, misusing or abusing the Software or is otherwise in breach of these Terms; or (b) using the Software in excess of reasonable limits as established by Posh.  Notwithstanding the foregoing, nothing in this Section 1.2 imposes on Posh an obligation to supervise or monitor the Customer’s use of the Software.

1.3 Use of the Software by Customer shall be subject to the following restrictions at all times: Customer shall not, and shall not permit any person or entity to: (a)   use the Software on a service bureau, time sharing or any similar basis, or for the benefit of any other person or entity; (b) alter, enhance, or make derivative works of the Software; (c)  reverse engineer, reverse assemble or decompile, or otherwise attempt to derive source code from, the Software or any software component of the Software; (d)  use, or allow the use of, the Software for any unfair or deceptive practices or in contravention of any federal, state, local, foreign, or other applicable law, or rules and regulations of regulatory or administrative organizations, or in any manner that violates the privacy and/or publicity rights of any other person or entity; (e)   introduce in or to the Software any virus or implement a denial of service attack or introduce or implement any other code or routine which results in disruption or damage to the Software, alter, damage or delete any data, or retrieve or record information about the Software or its uses; or(f)     act in a fraudulent, tortious, malicious, or negligent manner when using the Software or use the Software to transmit any material that encourages conduct that could constitute a criminal offense or give rise to civil liability. Customer shall comply with all applicable laws, rules, and regulations.

1.4 To the extent login credentials are required to access aspects of the Software, such login credentials shall be maintained as confidential by Customer and shall not be distributed or disclosed.  It is Customer’s responsibility to immediately terminate any such use of login credentials (and provide written certification thereof to Posh) upon its knowledge that such login credentials are or may be subject to a breach by Customer of these Terms, including without limitation a breach of confidentiality. 

1.5 Customer is responsible for (i) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer to access and use the Software; (ii) contracting with third party ISP, telecommunications and other service providers to access and use the Software via the Internet; and (iii) paying all third party fees and access charges incurred in connection with the foregoing.  Except as specifically set forth in these Terms, Posh shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms. 

1.6 Customer and Posh acknowledge that the Software may interact with existing Customer software, websites or hosted services provided by third parties (any such software, websites or hosted services, “Third Party Technology”).  Customer’s use of any such Third Party Technology is entirely at Customer’s own risk and expense.  Posh is not responsible for ensuring that any Third Party Technology will interact with the Software and shall not be liable to Customer or any third party in respect of any such use of, or access to, such Third Party Technology. 

1.7 The Software may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Software shall not be used, and none of the underlying information or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Software, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. Posh makes no representation that the Software is appropriate or available for use in any locations outside of the United States. 

1.8  Customer shall not rely solely on the Software or its outputs to make any employment decisions and agrees to use a human reviewer from its organization to make any employment decisions.  Customer further agrees that it is solely responsible for any employment decisions (including hiring, termination, promotion, demotion, and compensation decisions) as well as its compliance with applicable employment and AI regulations as applicable to its business.

1.9 Customer shall obtain and maintain valid consent from each of its end users (whether internal to its organization or external) to allow Posh to process each end user’s data.

2. FEES

‍2.1 The Software is provided free of charge to Customer for a limited period of time as a proof of concept.  Additional fees may apply if and when the parties enter into a separate signed Order Form. 

‍3. REPRESENTATIONS AND WARRANTIES

‍3.1 Posh represents, warrants and covenants to Customer that: (a) Posh has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) Posh’s performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by Posh to any third party to keep any information or materials in confidence or in trust

3.2 Customer represents, warrants and covenants to Posh that: (a) Customer has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) Customer’s execution of and performance under these Terms shall not breach any written agreement with any third party or any obligation owed by Customer to any third party to keep any information or materials in confidence or in trust. 

3.3 THE WARRANTIES SET FORTH IN THESE TERMS ARE IN LIEU OF ALL OTHER WARRANTIES OR CONDITIONS, AND, EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THESE TERMS, THE SOFTWARE IS PROVIDED ON AN AS-IS AND AS AVAILABLE BASIS.  CUSTOMER’S USE OF THE SOFTWARE IS AT ITS OWN RISK.  POSH DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS AND/OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE.   NO AGENT, EMPLOYEE, AND/OR SUBCONTRACTOR OF POSH IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF POSH AS SET FORTH HEREIN.  POSH DOES NOT WARRANT THAT THE SOFTWARE IS OR WILL BE UNINTERRUPTED OR ERROR FREE.  CUSTOMER ACKNOWLEDGES AND AGREES THAT THE SOFTWARE (AS WITH TECHNOLOGY GENERALLY), MAY HAVE ERRORS (OR “BUGS”) AND MAY ENCOUNTER UNEXPECTED TECHNICAL PROBLEMS.  ACCORDINGLY, FROM TIME TO TIME, CUSTOMER MAY EXPERIENCE DOWNTIME AND ERRORS IN THE OPERATION, FUNCTIONALITY OR PERFORMANCE OF THE SOFTWARE.  ACCORDINGLY, CUSTOMER SHALL PUT IN PLACE REASONABLE INTERNAL PROCEDURES AND PROCESSES TO ENABLE IT TO MINIMIZE ANY INCONVENIENCE AND ANY ADVERSE IMPACT OF ANY SUCH DOWNTIME OR ERROR.

‍4. OWNERSHIP

4.1 Customer acknowledges that the structure, organization, and code used in conjunction with the Software are proprietary to Posh, and that Posh retains exclusive ownership of the Software, Documentation, and any other Intellectual Property Rights relating to the Software, including, but not limited to, any and all any proprietary, copyright, trademark, or service mark legend from any Software, as well as any and all modifications, enhancements, derivatives, and other software and materials relating to the Software, and all copies thereof.  Customer shall not sell, transfer, publish, disclose, display or otherwise make available the Software including any modifications, enhancements, derivatives, and other software and materials provided hereunder by Posh or copies thereof to others in violation of these Terms.  The Software shall be deemed to be Confidential Information hereunder and subject to the confidentiality restrictions set forth in Section 5.  Except as otherwise expressly permitted hereunder, Customer agrees not to copy or otherwise reproduce the Software including any modifications, enhancements, derivatives, and other materials developed or provided hereunder by Posh, in whole or in part.  Customer shall not remove any proprietary, copyright, trademark, or service mark legend from any Software including any modifications, enhancements, derivatives, and other materials provided by Posh.  

4.2 Posh acknowledges that the Customer System, and all Intellectual Property Rights therein, is the sole and exclusive property of Customer and its licensors.

‍5. CONFIDENTIALITY

‍5.1 Both parties acknowledge that either may receive Confidential Information (as defined below)(“Receiving Party”) from the other (“Disclosing Party”) during the Term.  The Receiving Party agrees that any Confidential Information it receives from the Disclosing Party is the exclusive property of the Disclosing Party or its licensors and may include trade secrets and other highly confidential information.  The Receiving Party agrees to receive and hold any Confidential Information supplied by the Disclosing Party in strict confidence and agrees: (i) unless otherwise authorized in accordance with the Terms, not to disclose or publish any such Confidential Information to third parties; (ii) not to use any such Confidential Information except for those purposes specifically authorized hereunder or by the Disclosing Party in writing; (iii) to restrict access to such Confidential Information to those of its officers, directors, agents, employees, and subcontractors who have a need to know, have been advised of the confidential nature of the Confidential Information, and who are under obligations of confidentiality to the Receiving Party; and (iv) if applicable, to follow the Disclosing Party’s reasonable on-site security procedures.   The Receiving Party shall treat Confidential Information as it does its own valuable and sensitive information of a similar nature, and, in any event, with not less than reasonable care.  Upon the Disclosing Party’s written request, the Receiving Party shall return or certify the destruction of all Confidential Information.

5.2 The obligations of either party under Section 5.1 will not apply to information that the Receiving Party can demonstrate (i) was in its possession at the time of disclosure and without restriction as to confidentiality, (ii) at the time of disclosure is generally available to the public or after disclosure becomes generally available to the public through no breach of agreement or other wrongful act by the Receiving Party, (iii) has been received from a third party without restriction on disclosure and without breach of agreement or other wrongful act by the Receiving Party, (iv) is independently developed by the Receiving Party without regard to the Confidential Information of the Disclosing Party.  Further, the Receiving Party may disclose Confidential Information to the extent such disclosure is required by law or order of a court of competent jurisdiction or regulatory authority, provided that the Receiving Party shall furnish prompt written notice of such required disclosure to the Disclosing Party and reasonably cooperate with the Disclosing Party, at the Disclosing Party’s cost and expense, in any effort made by the Disclosing Party to seek a protective order or other appropriate protection of its Confidential Information.

5.3 Failure on the part of the Receiving Party to abide by this Section 5 may cause the Disclosing Party irreparable harm for which damages, although available, may not be an adequate remedy at law.  Accordingly, the Disclosing Party has the right to seek an injunction to prevent any violations or attempted violations of this Section 5 and seek to recover court costs and reasonable attorney fees incurred by the Disclosing Party in the enforcement of this Section.

5.4 During the Term, the Receiving Party shall maintain an industry-standard information security program that includes administrative, physical and technical controls designed to (i) protect the safety and confidentiality of Confidential Information of the Disclosing Party; (ii) protect against unauthorized access to and use of Confidential Information of the Disclosing Party; and (iii) protect against threats or hazards to the security or integrity of Confidential Information of the Disclosing Party. 

5.5 Customer agrees that Posh may disclose that Customer is a user of the Software and may use Customer’s name and logo as part of Posh’s customer lists and marketing, subject to any written usage guidelines provided by Customer.

5.6 Notwithstanding anything to the contrary stated herein, Posh may use aggregated or anonymized data generated or input in connection with the Software for purposes of improving or enhancing its offerings, provided that any such information does not identify the data as Customer’s or otherwise include Customer’s name, and in no event shall such information include any individually identifiable information of Customer’s users.

‍6. INDEMNIFICATION

‍6.1 Customer shall indemnify and hold harmless, and at Posh’s request, defend Posh and its affiliates, licensors, successors and assigns (and its and their officers, directors, employees, contractors, customers, customers and agents) from and against any and all claims, losses, liabilities, damages, settlements, expenses and costs (including, without limitation, attorneys’ fees and court costs) which arise out of or relate to (i) any third party claim or threat thereof that the Customer System and/or any other Customer data provided to Posh hereunder infringes, misappropriates or violates any third party’s Intellectual Property Rights; or (ii) Customer’s use or alleged use of the Software.  Posh shall notify Customer promptly of any claim or liability for which indemnification is sought, provided, however, that the failure to give such notice shall not relieve Customer of its obligations hereunder except to the extent that Customer was actually and materially prejudiced by such failure. Customer’s obligations under this Section 6.1 are conditioned upon (i) Customer having the exclusive right to control the defense and/or settlement of any such claim or liability, and (ii) Posh providing reasonable assistance, at Customer’s sole expense, in the defense of the claim. Customer may not settle any claim for which indemnification is sought under this Section 6.1 without the prior written approval of Posh, which approval shall not be unreasonably withheld or delayed.

‍7. LIMITATION OF LIABILITY

‍7.1 NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  POSH WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.  POSH WILL NOT BE LIABLE FOR THE CONDUCT OF CUSTOMER IN CONNECTION WITH THE USE OF THE SOFTWARE.

7.2 EXCEPT FOR (i) THE INDEMNIFICATION OBLIGATIONS UNDER THESE TERMS, OR (ii) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN THE AMOUNT OF $1,000. EACH PARTY RELEASES THE OTHER PARTY FROM ALL OBLIGATIONS, LIABILITY, CLAIMS, OR DEMANDS RELATING TO THE SOFTWARE IN EXCESS OF THE LIMITATION PROVIDED FOR IN THIS SECTION 7.

7.3 EACH PARTY ACKNOWLEDGES THAT THE TERMS IN THIS SECTION 7 (LIMITATION OF LIABILITY) ARE AN ESSENTIAL BASIS OF THE BARGAIN DESCRIBED IN THESE TERMS AND THAT, WERE THE OTHER PARTY TO ASSUME ANY FURTHER LIABILITY, THE COMMERCIAL TERMS OF THIS AGREEMENT WOULD BE DIFFERENT.  THE LIMITATIONS IN THIS SECTION 7 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.  

‍8. TERM AND TERMINATION

‍8.1 Either party may terminate these Terms at any time upon written notice to the other party.  Customer shall cease all use of the Software upon the effective date of termination. 

‍9. DEFINITIONS

9.1 “Confidential Information” shall mean any and all information or proprietary materials (in every form and media) not generally known to the public and which has been or is hereafter disclosed or made available by either party (the “Disclosing Party”) to the other (the “Receiving Party”) in connection with the efforts contemplated hereunder.

9.2 “Customer System” means Customer’s website(s), systems, servers and other equipment and software used in the conduct of its business.

9.3 “Documentation” means any proprietary user documentation made available to Customer by Posh for use with the Software, including any documentation available online or otherwise, as amended or updated by Posh from time to time in its discretion.

9.4 “Intellectual Property Rights” means any patent, patent application, copyright, moral right, trade name, trademark, service mark, trade secret, copyright, and any applications or right to apply for registration therefore, computer software programs or applications, tangible or intangible proprietary information, or any other intellectual property right, in any media, whether registered or unregistered, and whether first made or created before or after the Effective Date. 

‍9.5 “Software” means the Training Simulator software made available to Customer by Posh pursuant to these Terms entered into by the parties or otherwise made available to Customer.

10. GENERAL

‍10.1 These Terms may be amended or modified at any time by Posh, effective on publication.  No term or provision hereof shall be considered waived by either party, and no breach excused by either party, unless such waiver or consent is in writing signed on behalf of the party against whom the waiver is asserted.  No consent by either party to, or waiver of, a breach by either party, whether express or implied, shall constitute consent to, waiver of, or excuse of any other, different, or subsequent breach by either party.

10.2 These Terms shall be governed by the laws of the State of Delaware without regard to its principles of conflicts of law where such principles would permit the application of the law of any other jurisdiction. The parties agree that all disputes arising under these Terms shall be brought exclusively in the Federal and State courts in Delaware.  The parties acknowledge and agree that these Terms relates solely to the performance of services (not the sale of goods) and, accordingly, will not be governed by the Uniform Commercial Code of any state having jurisdiction and shall not be governed by the United Nations Convention on the International Sale of Goods. 

10.3 Neither Party may assign or transfer these Terms in whole or in part to any third party without prior written permission, which will not be unreasonably withheld.  These Terms shall bind and inure to the benefit of the parties to these Terms and their respective successors, permitted transferees, and permitted assigns.  No provision of these Terms shall be deemed to confer upon any person any remedy, claim, liability, reimbursement, cause of action, or other right whatsoever.

10.4 If any provision of these Terms is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of these Terms shall remain in full force and effect.  Sections 4-7 will survive any termination or expiration of these Terms.

10.5 Posh and Customer are not partners or in a joint venture; neither party is the agent, representative nor employee of the other party; and nothing in these Terms will be construed to create any relationship between them other than an independent contractor relationship.  Neither party will have any responsibility nor liability for the actions of the other party except as expressly provided herein.  Neither party will have any right or authority to bind or obligate the other party in any manner or make any representation or warranty on behalf of the other party. Employees of each party are not and shall not be deemed to be employees of the other party.  Each party shall be solely responsible for the payment of all compensation to its employees, including provisions for employment taxes, workmen’s compensation, and any similar taxes associated with employment of Customer’s personnel.

10.6 All notices and other legal communications permitted or required to be given under these Terms shall be deemed to have been duly given if such notice of communication shall be in writing and sent by (i) reputable overnight courier with documentation of receipt to the intended recipient thereof or (ii) by registered or certified mail, return receipt requested, and with all postage prepaid, to the address set forth below, or to such other address for either party as may be supplied by notice given in accordance herewith or (iii) electronic mail, provided that such notice is clearly labeled as legal correspondence and shall not be effective unless it is sent by an individual with signing authority on behalf of one party and receipt of such notice is confirmed via electronic mail from an individual with signing authority on behalf of the other party.  

10.7 Each party acknowledges and agrees that these Terms are the complete statement of the agreement between the parties, and that these Terms supersedes all prior proposals, understandings, and arrangements, oral or written, between the parties relating to these Terms.

10.8 The headings of the sections and paragraphs of these Terms shall be for convenience only.