Terms of Use

Executive Approach Customer Agreement

Effective starting: May 1, 2016

This Executive Approach Customer Agreement (the “Agreement”) is between you and Executive Approach LLC (“Executive Approach”).  If you are agreeing to this Agreement on behalf of a company you are with and not as an individual, then “Customer” or “you” means your company, and you are binding your company to this Agreement.  Executive Approach may choose to revise this Agreement at different times, subject to the terms in Changes to this Agreement Section below.

By clicking on the “I agree” (or similar button) that is presented to you at the time of your Order, or by accessing or using Executive Approach Products, you indicate your acceptance to be bound by this Agreement.

To the extent that Executive Approach is, on behalf of the Customer, processing Customer Data that is subject to national laws implementing EU Data Protection Directive (95/46/EC) ("EU Data Protection Laws"), by clicking "I agree", you are also agreeing to the EU Standard Contractual Clauses with Executive Approach for the transfer of personal data to processors set forth in Schedule 1.

 

Sections:

1.         Scope of the Agreement.

This Agreement governs your initial purchase as well as any future purchases made by you or your company that reference this Agreement.  This Agreement applies to all Executive Approach products, as well as to any plugins or add-ons that you purchase.  This Agreement includes the Privacy Policy Section, Executive Approach Orders, and all other policies and attachments referenced.  

2.         Authority.

Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that, if you are an entity, this Agreement and each Order is entered into by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.

3.         Types of Executive Approach Products.

This Agreement governs:

(A.)    Executive Approach’s hosted or cloud-based solutions (currently identified as “Cloud” solutions or "Cloud" deployments) (“Hosted Services”),

(B.)    Executive Approach’s commercially available downloadable software products (currently designated as "Server" or "Data Center" deployments) (“Software”), and

(C.)    any related support or maintenance services provided by Executive Approach.  

Hosted Services and Software, together with related Documentation, are referred to as “Products”.  The Products and their permitted use are further described in Executive Approach’s standard documentation (“Documentation”). Software Terms Section applies specifically to Software, and Hosted Services Terms Section applies specifically to Hosted Services, but unless otherwise specified, other provisions of this Agreement apply to all Products.


 

4.         Account Registration.

You may need to register for an Executive Approach account to place Orders, access or receive Products.  Any registration information you provide to Executive Approach must be current, accurate, and complete.  You must update and maintain your information so that Executive Approach may send notifications, notices, statements and other information to you by email or through your Executive Approach account.  You agree to be responsible for all actions taken through your Executive Approach account(s) and to make best efforts to keep your account(s) secure.

 

5.         Orders.

5.1.    Executive Approach Direct Orders.

Executive Approach’s Product ordering documentation or purchase flow (“Order”) will specify your authorized scope of use for Support, Maintenance renewal, upgrades or increases or decreases in purchases, or Products, which may include:

(A.)    Amount and type of Authorized Users (as defined herein),

(B.)    storage or capacity (for Hosted Services),

(C.)    numbers of licenses, copies or instances (for Software), or

(D.)    billable units or other restrictions (as applicable) to the (“Scope of Use”).

5.2.    Reseller Orders.

This Agreement applies whether you purchase Executive Approach Products directly from Executive Approach or through an Executive Approach authorized reseller (each, a “Reseller”).  If you purchase through a Reseller, your Scope of Use shall be as stated in the Order placed by the Reseller for you, and the Reseller is responsible for the accuracy of any such Order.  Resellers are not authorized to make any promises or commitments on Executive Approach’s behalf, and Executive Approach is not bound by any obligations to you other than what is specified in this Agreement.

6.         Authorized Users.

Only the specific individuals for whom you have paid the required fees and whom you designate through the applicable Product (“Authorized Users”) may access and use the Products.  You are responsible for compliance with this Agreement by all Authorized Users.  Some Products may allow you to designate different types of Authorized Users, in which case pricing and functionality may vary according to the type of Authorized User.  

Authorized Users may be you or your Affiliates’ staff, employees, representatives, board members, consultants, contractors, agents, or other third parties who are acting on your behalf or for your benefit.  You may also permit your customers to have limited access to certain Products as Authorized Users, subject to the terms of the Your Customers as Authorized Users Section herein.

You may increase the number of Authorized Users permitted to access your instance of the Product by placing a new Order or directly through the Product when available.  In all cases, you must pay the applicable fee for the increased number of Authorized Users.  All use of Products by you and your Authorized Users must be within the Scope of Use and solely for the benefit of you or your Affiliates.  “Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of 50% (or, if the applicable jurisdiction does not allow majority ownership, the maximum amount permitted under such law) or more of the voting equity securities or other equivalent voting interests of the entity. 

You agree that you, your Company, your Authorized Users, and your Affiliates are not competitors of Executive Approach Products.  You agree that if Executive Approach identifies you, your Company, your Authorized Users, or your Affiliates as competitors of Executive Approach Products, that Executive Approach can, without notice, disable all of your Authorized Users to Executive Approach Products, withhold any and all of Your Data (defined herein) stored within Executive Approach Products, and not refund any unused prior Order payments.

 

7.         Hosted Services Terms.

7.1.    Access to Hosted Services.

Subject to the terms and conditions of this Agreement, Executive Approach grants you a non-exclusive right to access and use the relevant Hosted Services during the applicable Subscription Term (as defined below) in accordance with this Agreement, Documentation, and your applicable Scope of Hosted Services.  If Executive Approach offers client software (for example, a desktop or mobile application) for any Hosted Service, you may use such software solely with the Hosted Service, subject to the terms and conditions of this Agreement.  You acknowledge that Executive Approach Hosted Services are on-line, subscription-based products and that Executive Approach may make changes to the Hosted Services from time to time and without notice.

7.2.    Subscription Terms and Renewals.

Hosted Services are provided on a subscription basis for a set term specified in your Order (“Subscription Term”).  Unless otherwise specified in your Order by Executive Approach, all subscriptions will automatically renew for periods equal to your initial Subscription Term (and you will be charged at the then-current rates) unless you cancel your subscription through your account within the relevant Executive Approach Product.  If you cancel, your subscription will terminate at the end of the then-current billing cycle, and you will not be entitled to any refund of amounts paid prior to such termination.

7.3.    Credentials.

You must ensure that all Authorized Users keep their user identification (“User ID’s”) and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person.  User ID’s are granted to individual, named persons and may not be shared with other people.  You are responsible for any and all actions taken using your related account User ID’s, accounts and passwords, and you agree to immediately notify Executive Approach in writing of any unauthorized use of which you become aware.  Sharing User ID’s and passwords are grounds for immediate termination of Authorized User(s) and/or account termination without refund or credit.

7.4.    Third Party Code in Products.

The Products may include code and libraries licensed to Executive Approach by third parties, including open source software.  See the Third Party Code in Executive Approach Products Section for additional information regarding Executive Approach use of third party code.

7.5.    Your Data.

“Your Data” means any data, information, scripts, code, files, designs, plans, report results, content, messages, art, photos, videos, images, textures, graphics, animations, models, logos, sound, music, audio, tags, interactive functionality, or other materials that you upload, import, post, submit, share, produce using Executive Approach, or provide in any manner to or from the Executive Approach Product(s) or Hosted Services.  You will retain all right, title and interest in and to Your Data in the form provided to Executive Approach.  Subject to the terms of this Agreement, you hereby grant to Executive Approach a non-exclusive, worldwide, royalty-free right to collect, use, copy, store, transmit, modify and create derivative works of Your Data, in each case, to the extent necessary to:

(A.)    Provide the applicable Hosted Service to you,

(B.)    for Hosted Services that enable you to share Your Data or interact with other people to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service,

(C.)    as otherwise described in the Privacy Policy Section of this document, and

(D.)    Executive Approach may also access your, Authorized User(s), account or instance in order to respond to your support requests.

 

7.6.    Your Modifications.

Subject to the terms and conditions of this Agreement, including without limitation the Combining the Products with Open Source Software Section of Third Party Code in Executive Approach Products Section defined herein:

(A.)    For any elements of the Software provided by Executive Approach in source code form, and to the extent permitted in the Documentation, you may modify such source code solely for purposes of developing customizations and defect repairs for the Software, and

(B.)    you may also modify the Documentation to reflect your permitted modifications of the Software source code or the particular use of the Products within your organization.  

Any modified source code or Documentation constitutes “Your Modifications”.  You may use Your Modifications solely with respect to your own instances in support of your permitted use of the Software; but you may not distribute the code of Your Modifications publically or to any third party.  Notwithstanding anything in this Agreement to the contrary, Executive Approach has no support, warranty, indemnification or other obligation or liability with respect to Your Modifications or their combination, interaction or use with Executive Approach Products.  

You shall indemnify, defend and hold Executive Approach harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim brought against Executive Approach, Executive Approach staff, employees, management, board of directors, investors, consultants and vendors, by a third party relating to Your Modifications (including but not limited to any representations or warranties you make about Your Modifications or the Software) or your breach of this Section.  This indemnification obligation is subject to you receiving:

(A.)    Prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice);

(B.)    the exclusive right to control and direct the investigation, defense, or settlement of such claim; and

(C.)    all reasonably necessary cooperation of Executive Approach at your expense with estimated cost payments made in advance to Executive Approach prior to cooperation by Executive Approach.

7.7.    Security.

Executive Approach maintains and executes security processes to help protect Your Data from security attacks.  However, you understand that the use of the Hosted Services involves transmission of Your Data over networks that are not owned, operated or controlled by Executive Approach, and Executive Approach, it’s employees, investors, board of directors, staff, consultants, vendors, and customers are not responsible for any of Your Data lost, altered, intercepted or stored across such networks.  Executive Approach cannot and does not guarantee that the Executive Approach security processes and technology will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat Executive Approach, other related security measures, or those of Executive Approach third party vendors and service providers.

7.8.    Storage Limits.

There may be storage limits associated with a particular Hosted Service.  These limits are described in the services descriptions on the related Executive Approach Product websites or in the Documentation for the particular Hosted Service.  Executive Approach reserves the right to charge for additional storage or overage fees at the rates specified on the related Executive Approach or Executive Approach Product website(s).  Executive Approach may impose new, or may modify existing, storage limits for the Hosted Services at any time in Executive Approach’s discretion, with or without notice.

7.9.    Responsibility for Your Data.

7.9.1.    General.

You must ensure that your use of the Hosted Services and all Your Data is at all times compliant with the Executive Approach Acceptable Use Policy defined herein and all applicable local, state, federal and international laws and regulations (“Laws”).  You represent and warrant that:

(A.)    You have obtained all necessary rights, releases and permissions to provide all Your Data to Executive Approach and to grant the rights granted to Executive Approach in this Agreement, and

(B.)    Your Data and its transfer to and use by Executive Approach as authorized by you under this Agreement do not violate any Laws (including without limitation those relating to export control, encryption regulations, and electronic communications) or rights of any third party, including without limitation any intellectual property rights, rights of privacy, or rights of publicity, and any use, collection and disclosure authorized herein is not inconsistent with the terms of any applicable privacy policies.  

Other than its security obligations under Security Section, you shall be solely responsible for Your Data and the consequences of using, disclosing, storing, or transmitting it, and you release, in full, Executive Approach from any and all responsibility or liability for Your Data and the storage and use of Your Data.

7.9.2.    Sensitive Data.

You will not submit to the Hosted Services (or use the Hosted Services to collect):

(A.)    Any personally identifiable information, except as necessary for the establishment of your Executive Approach account;

(B.)    any federally, state or local restricted financial data or documentation,

(C.)    any patient, medical or other protected health information regulated by HIPAA or any similar federal or state or local laws, rules or regulations,

(D.)    any federally, state or local restricted military data or documentation, or

(E.)    any other information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations) ((A.) through (E.), collectively, “Sensitive Data”).  

You acknowledge that Executive Approach is not acting as your Business Associate or as a subcontractor (as such terms are defined and used in HIPAA) and that the Hosted Services are not HIPAA compliant.  “HIPAA” means the Health Insurance Portability and Accountability Act, including as it is amended and supplemented.  Notwithstanding any other provision to the contrary, Executive Approach has no liability under this Agreement for Sensitive Data.

7.9.3.    Indemnity for Your Data.

You will defend, indemnify and hold harmless Executive Approach from and against any loss, cost, damage(s) or liability, including attorneys’ fees, for which Executive Approach becomes liable arising from or relating to any claim relating to Your Data, including but not limited to any claim brought by a third party alleging that Your Data, or your use of the Hosted Services is in breach of this Agreement, infringes or misappropriates the intellectual property rights of a third party or violates applicable law.  This indemnification obligation is subject to your receiving:

(A.)    Prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice);

(B.)    the exclusive right to control and direct the investigation, defense, or settlement of such claim; and

(C.)    all reasonable necessary cooperation of Executive Approach at your expense.

 

7.10.      Removals and Suspension.

Executive Approach has no obligation to monitor any of Your Data uploaded to the Hosted Services or produced as a result of using Executive Approach Product(s).  Nonetheless, if Executive Approach deems such action necessary based on your violation of this Agreement or in response to takedown requests that Executive Approach receives following Executive Approach guidelines for Notify of Trademark or Copyright Violation Section defined herein, Executive Approach may:

(A.)    Remove Your Data from the Hosted Services, or

(B.)    suspend your access to the Hosted Services.  

Executive Approach will generally alert you if Executive Approach takes such action and will give you a reasonable opportunity to promptly and adequately resolve your breach(es).  However, if Executive Approach determines that your actions endanger the operation of the Hosted Service, other Executive Approach customers, vendors, investors, board of directors, partners, business, or other users, Executive Approach may suspend your access immediately without notice.  

Additionally, Executive Approach may suspend Hosted Services for anything Executive Approach deems to be a Security Emergency.  "Security Emergency" means: (A.) Use of the Hosted Services that do or could disrupt the Hosted Services, other customers' use of the Hosted Services, or the infrastructure used to provide the Hosted Services and (B.) unauthorized third-party access to the Hosted Services.  If there is a Security Emergency then Executive Approach may automatically suspend use of the Services. Executive Approach will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency.

You will continue to be charged for the Hosted Service during any suspension period.  Executive Approach has no liability to you for removing, editing, or deleting Your Data from any Hosted Services or suspending your access to any Hosted Services as described in this section.

7.11.      Notify of Trademark or Copyright Violation.

Executive Approach respects the rights of copyright and trademark holders, as described herein.

7.11.1.     Copyright.

Executive Approach does not allow copyright infringing activities on Executive Approach’s Hosted Services or websites (our “Services”). We will remove a party’s data or content from our Services if properly notified that such data or content infringes on another's copyright rights. Executive Approach has a policy of terminating, in appropriate circumstances, the accounts of parties who repeatedly infringe copyright holders’ copyrights. You are a “repeat infringer” if, on more than two occasions, you have been notified of infringing activity or have had Your Data or Content removed from our Services. Executive Approach also reserves the right to terminate Your accounts suspected of infringing copyrights upon the first incident without further notice, at our sole discretion.

If you believe that any content in our Services violates your copyright, you should notify Executive Approach's copyright agent in writing pursuant to the Digital Millennium Copyright Act (“DMCA”), 17 U.S.C. § 512(c)(3). The contact information for Executive Approach's copyright agent is at the bottom of this section.

In order for Executive Approach to take action, you must do the following in your notice:

(A.)    Provide your physical or electronic signature;

(B.)    identify the copyrighted work that you believe is being infringed, or, if multiple copyrighted works are covered by the notice, a representative list of such works;

(C.)    identify the item that you think is infringing and which is to be removed or access to which is to be disabled, and include sufficient information about where the material is located (including which website) so that Executive Approach can find it (such as the item’s URL);

(D.)    provide Executive Approach with a way to contact you (such as address, telephone number, or email);

(E.)    provide a statement that you believe in good faith that the item identified as infringing is not authorized by the copyright owner, its agent, or the law to be used by Executive Approach; and

(F.)    provide a statement that the information you provide in your notice is

·       accurate, and that

·       under penalty of perjury, you are the copyright owner or are authorized to act on behalf of the copyright owner whose work is allegedly being infringed.

We will promptly notify the alleged infringer that you have claimed ownership of the rights in this content and that we have complied with your takedown notice for the content.

Here is the contact information for Executive Approach's copyright agent:

Executive Approach

Attn: Copyright Agent

14900 Avery Ranch Blvd Suite C200 #230

Austin, Texas, 78717, USA

or Online Notification Form: www.ClearGem.com/notifycopyrighttrademark

7.11.2.     Trademark.

If you are a trademark owner and you believe in good faith that any content on our Services or infringes on your trademark rights, please inform us in writing at the following:

Here is the contact information for Executive Approach's trademark agent:

Executive Approach

Attn: Trademark Agent

14900 Avery Ranch Blvd Suite C200 #230

Austin, Texas, 78717, USA

or Online Notification Form: www.ClearGem.com/notifycopyrighttrademark

Your notice must include:

(A.)    Identification of the trademark(s) claimed to have been infringed, and, if registered with the United States Patent and Trademark Office or similar foreign entity, the registration number of the mark(s);

(B.)    Identification of the material claimed to be infringing and information sufficient to permit Executive Approach to locate the material, such as the specific URL where the trademark appears on the Services;

(C.)    A statement that the complaining party has a good faith belief that use of the trademark in the manner complained of is an infringement of the rights granted under United States and/or foreign trademark law;

(D.)    A statement that the information in the letter is:

·       accurate, and

·       under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the allegedly infringed trademark; and

(E.)    A physical or electronic signature of a person authorized to act on behalf of the owner of the trademark that is allegedly infringed.

Upon receipt of a notice containing the above information, Executive Approach will promptly notify the party who provided the allegedly infringing content and will promptly remove or cause to be removed the allegedly infringing content.

We reserve the right to reclaim usernames on behalf of businesses or individuals that hold legal claim or trademark on those usernames. Accounts using business names and/or logos to mislead others may be permanently suspended.

7.12.      Deletion at End of Subscription Term.

Executive Approach may archive, compress, reduce, remove or delete some or all of Your Data within a reasonable period of time, to be determined by Executive Approach, after the termination of your Subscription Term.

7.13.      Service Specific Terms.

Some of the Executive Approach Products and Hosted Services may be subject to additional terms specific to that service as defined herein.

7.13.1.     Phlex and Website App Specific Terms.

You acknowledge that all code made available in Phlex and the Website App are the responsibility of the account owner.  Executive Approach is not the licensor of any third party code made available through Phlex and the Website App and takes no responsibility for such code, designs or processes implemented.

You acknowledge and agree that you are completely responsible for all content and functionality offered on your Website created and/or deployed from the Website App.  You agree that you will not publish customer agreements or any other related terms of service that are in conflict with this Executive Approach Customer Agreement within any Executive Approach products.  You agree that you will not store or publish copyrighted, trademarked, patented, or any other proprietary data, content or artwork that belongs to other parties and with which you do not have publishing rights to use.  You agree that you will not store or publish any data, files, content or functionality that violates any applicable federal, state or local laws.

 

7.13.2.     Granting Permissions.

Be careful about granting permissions to your code and configurations.  Once you grant such permissions, we will not be able to prevent those users from taking the actions allowed under those permissions, even if you don’t approve of those actions.  Be especially careful about granting administrative access to your code and configurations, as some of those actions may be irreversible.  For example, if you grant someone permission that allows them to move content in your code or configurations to another account, we will not be able to access into that other user’s account without their permission to recover the data, as we are not in a position to arbitrate disputes among users.  In that case, your only recourse may be requesting a takedown under our policy regarding Notify Trademark or Copyright Violation Section defined herein or pursuing legal action against the other user directly.

7.13.3.     Chat App specific terms.

Responsibility for User Consent.  Your administrators may have the ability to access, monitor, use, or disclose data available to Chat App users within the users' Chat App accounts (including chats, chat history, and file attachments).  You will obtain and maintain all required consents from your Chat App users to allow:

(A.)    You to access, monitor, use, and disclose this data,

(B.)    Executive Approach to provide you with the ability to do so, and

(C.)    Executive Approach to provide the Chat App service to you. 

By using the Chat App, you consent to the storage of your chat history by Executive Approach.  Your chat history is saved as the default option.  You may change your options in the product.

 

8.     Support and Maintenance.

Executive Approach will provide the support and maintenance services for the Products described in the Executive Approach Support Policy (“Support and Maintenance”) during the period for which you have paid the applicable fee within one or more of your relevant Order(s).  Support and Maintenance is subject to the terms of the Executive Approach Support Policy and will be provided at the support level and during the support term specified in your Order.  The Executive Approach Support Policy may be modified by Executive Approach from time to time to reflect technology, process, governance, or staffing changes or improvements.  Support and Maintenance for Software includes access to New Releases, if and when made available.  You may use any New Releases for Products you have made payment for and that Executive Approach provides to you during a valid support term in the same way that you use Software, and New Releases are included in the definition of Software in that case.  Minor or major releases, any other software, data, data structures, content, code, configurations, file, image, video, defect repairs, patches, other changes, enhancements, or modifications to the Software that Executive Approach makes generally commercially available is a “New Release”.

9.     Training Services and Consulting Services.

Executive Approach will provide Training Services and Consulting Services purchased in a mutually agreed to Executive Approach Order in accordance with the descriptions and conditions for those services set forth in the Order and the related service descriptions or separate Statements of Work (“SOW”).  Executive Approach shall retain all right, title and interest in and to any deliverables, artifacts, materials, structures, processes, architectures, code, configurations, data, data structures, modifications, derivative works or developments related to any training services Executive Approach provides (“Training Materials”).  Training Materials provided to you may be used by you only in connection with the Products subject to the same use restrictions for the Products.  If applicable, you will reimburse Executive Approach for reasonable travel, lodging, meal, and equipment expenses as incurred and in advance of Executive Approach incurring such expenses.  Consulting Services are subject to the terms of the separately agreed to Master Services Agreement, Statement(s) of Work and Confidentiality Agreement.

10.  Returns and Financial Terms.

10.1.      Return Policy.

This Return Policy does not apply to separately agreed-to Executive Approach Services (for example; custom software configuration and development, management consulting, data analysis consulting, etc.).  This Return Policy only applies to the Executive Approach Products available for License.  Executive Approach’s allows customers to return a Product within 3 (three) calendar days of that payment for any reason or no reason and to receive a refund of the amount paid for the returned Product minus Fees.  For Hosted Services, a return means that Executive Approach will disable access to the Hosted Service.  For Software, a return means that Executive Approach will disable the license key(s) that allowed the Software to operate.  Executive Approach will not accept returns after the 3 (three) calendar day return period.  You understand that Executive Approach may change this Return Policy in the future in accordance with the Changes to this Agreement Section.

10.2.      Delivery.

For Software, Executive Approach will electronically deliver the applicable license keys or for Hosted Services, the login instructions to the email address(es) specified in your Order when Executive Approach has received full payment of the applicable Order cost.  All deliveries under this Agreement will be electronic.  For Software, you are responsible for installation of any Software, and you acknowledge that Executive Approach has no further delivery obligation with respect to the Software after providing the license key(s).

10.3.      Payment.

You agree to pay all costs, taxes and fees in accordance with each Order.  Unless otherwise specified in your Order, you will pay all amounts in U.S. Dollars at the time you place your Order. Other than as expressly set forth in Return Policy Section and IP Indemnification by Executive Approach Section, all amounts are non-refundable, non-cancelable and non-creditable.  In making payments, you acknowledge that you are not relying on future availability of any Products beyond the current License Term or Subscription Term or any Product upgrades, downgrades, defect repairs, or feature enhancements.  If you add Authorized Users during your License Term or Subscription Term, Executive Approach will charge you for the increased number of Authorized Users pursuant to the then-currently applicable rates in your next billing cycle.  You agree that Executive Approach may bill your credit card for renewals, additional users, and unpaid costs, unpaid fees, unpaid taxes and unpaid expenses as applicable.  If you purchase any Products through a Reseller, you owe payment to the Reseller as agreed between you and the Reseller, but you acknowledge that Executive Approach may terminate your rights to use Products if Executive Approach does not receive the corresponding payment from the Reseller.

10.4.      Taxes.

Your payments under this Agreement exclude any taxes or duties payable in respect of the Products or Services in the jurisdiction where the payment is either made or received.  To the extent that any such taxes or duties are payable by Executive Approach, you must pay to Executive Approach the amount of such taxes or duties in addition to any Fees owed under this Agreement.  Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are assessed or levied.  In that case, you will have the right to provide to Executive Approach any such exemption information, and Executive Approach will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.  You agree that such reasonable efforts are not the priority of Executive Approach.

11.           No Charge Products.

Executive Approach may offer specific Product(s) to you at no charge, including free accounts, free Authorized Users, trial use, and access to Beta Versions as defined below (“No Charge Products”). Your use of No Charge Products is subject to any additional terms that Executive Approach may specify and is only permitted for the period designated by Executive Approach.  You may not use No Charge Products for competitive analysis or similar purposes.  Executive Approach may terminate your right to use No Charge Products at any time and for any reason in Executive Approach’s sole discretion, without liability to you.  You understand that any pre-release and beta products we make available (“Beta Versions”) are still in-progress, in development, may not always work or be available, may have functionality changes, upgrades or downgrades, or may be incomplete and are likely to contain more defects than generally available Products.  Executive Approach makes no promises that any Beta Versions will ever be made generally available.  You understand and agree that Your Data stored in Beta Versions may be lost, changed or deleted by Executive Approach.  In some situations, Executive Approach may charge a cost, Fees, and relevant taxes in order to allow you to access to Beta Versions, but the Beta Versions will still remain subject to the No Charge Products Section.  All information regarding the functionality, usability, or performance of Beta Versions constitutes Executive Approach’s Confidential Information.  To the maximum extent permitted by applicable law, Executive Approach disclaims all obligations or liabilities with respect to No Charge Products and related Your Data, including any Support and Maintenance, warranty, and indemnity obligations.

12.           Restrictions.

Except as otherwise expressly permitted in this Agreement, you will not: (A.) rent, lease, reproduce, modify, adapt, create derivative works of, distribute, sell, sublicense, transfer, or provide access to the Products to a third party, (B.) use the Products for the benefit of any third party, (C.) incorporate any Products into a product or service you provide to a third party, (D.) interfere with any license key mechanism(s) in the Products or otherwise circumvent mechanisms in the Products intended to limit your use, (E.) reverse engineer, decompile, disassemble, translate, or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public API’s to any Products, except as permitted by law, (F.) remove or obscure any copyright, any proprietary or other notices contained in any Product, or (G.) publicly distribute information regarding the performance of the Products.

13.           Your Development of Add-Ons.

13.1.      License to Engineering Documentation.

Executive Approach may publish and revise software development kits (“SDK’s”) or Application Program Interfaces (“API’s”) and associated guidelines (“Engineer Documentation”) to allow you to design, develop, and configure custom functionality to run within Executive Approach Products.  Custom code, configurations and data deployed within Executive Approach Products identified by Executive Approach or other parties as harmful to Executive Approach Products, Hosted Services, Users, Authorized Users, Customers, Vendors, Investors, board of directors, staff, employees, consultants or networks may be removed or modified by Executive Approach staff or vendors at any time.  Custom code, configurations and data you create as Plugins, extensions, add-ons or other software products or services that run within Executive Approach Products or are integrated with the Products are identified as (“Add-Ons”).  You may distribute your Add-Ons to third parties, but only for those Products permitted by Executive Approach, and only in accordance with the Engineering Documentation.

13.2.      Conditions for Development of Add-Ons.

Notwithstanding anything in this Agreement to the contrary, Executive Approach has no support, warranty, indemnification or other obligation or liability with respect to your Add-Ons, use of other third party Add-Ons, or their combination, interaction or use with the Products.  You shall indemnify, defend and hold Executive Approach harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with any claim brought against Executive Approach by a third party relating to your Add-Ons, including but not limited to any representations or warranties you make about your Add-Ons, or your breach of this Section.

 

14.           License Certifications and Audits.

At Executive Approach’s request, you agree to provide a signed and certified document that you are using all Products pursuant to the terms of this Agreement, including the Scope of Use.  You agree to allow Executive Approach, or an Executive Approach authorized agent, to audit your use of the Products.  Executive Approach will provide you with at least 10 (ten) calendar days advance notice prior to an audit.  Audits will be conducted during normal business hours.  Executive Approach will bear all out-of-pocket costs that Executive Approach incurs for the audit, unless the audit reveals that you have exceeded the Scope of Use.  You will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit at your own cost.  If you exceed your Scope of Use, Executive Approach may invoice you for any past or ongoing excessive use, and you will pay the invoice promptly after receipt.  This remedy is without prejudice to any other remedies available to Executive Approach at law or equity or under this Agreement.  To the extent Executive Approach is not obligated to do so, Executive Approach may share audit results with certain of Executive Approach third party licensors or assign the audit rights specified in this Section to such licensors.

15.           Ownership and Feedback.

Products are made available on a limited license or access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase”, “sale” or “Order”.  Executive Approach and its licensors have and retain all right, title and interest, including all intellectual property rights, in and to the Products, including all No Charge Products, their UI, their processes, any and all related or underlying technology, and any modifications or derivative works of the foregoing created by or for Executive Approach, including without limitation as they may incorporate Feedback (“Executive Approach Technology”).  From time to time, you may choose to submit comments, information, questions, data, ideas, description of processes, or other information to Executive Approach, including sharing Your Modifications or in the course of receiving Support and Maintenance (“Feedback”).  Executive Approach may in connection with any of its Products or Services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights, copyrights, non-disclosure agreements, or otherwise.  No Feedback will be considered your Confidential Information, and nothing in this Agreement limits Executive Approach's right to independently use, configure, develop, evaluate, or market products, whether incorporating any Feedback or otherwise.

16.           Confidentiality.

Except as otherwise set forth in this Agreement, each party agrees that all code, configurations, data, data structures, processes, inventions, know-how, business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party ("Confidential Information"), provided that it is identified as confidential at the time of disclosure.  Any Executive Approach Technology and any performance information relating to the Products shall be deemed Confidential Information of Executive Approach without any marking or further designation.  Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information.  The Receiving Party's nondisclosure obligation shall not apply to information which the Receiving Party can document:

(A.)    was rightfully in its possession or known to it prior to receipt of the Confidential Information;

(B.)    is or has become public knowledge through no fault of the Receiving Party;

(C.)    is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or

(D.)    is independently developed by employees of the Receiving Party who had no access to such information.  

The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party).  The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.  For the avoidance of doubt, this Section shall not operate as a separate warranty with respect to the operation of any Product or Service.

 

17.           Term and Termination.

This Agreement is in effect for as long as you have a valid License Term or Subscription Term (the “Term”), unless sooner terminated as permitted in this Agreement.  Either party may terminate this Agreement before the expiration of the Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within 30 (thirty) calendar days after written notice of the breach.  Either party may also terminate the Agreement before the expiration of the Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.  You may terminate this Agreement at any time with notice to Executive Approach, but you will not be entitled to any credits or refunds as a result of convenience termination for prepaid but unused Software, Hosted Services subscriptions, Support and Maintenance, or Services.  Except where an exclusive remedy may be specified in this Agreement, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.  Once the Agreement terminates, you and your Authorized Users will no longer have any right to use or access any or all Products, or any information or materials that Executive Approach may make available to you under this Agreement, including Executive Approach Confidential Information.  You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to Executive Approach that you have done so at Executive Approach’s request.  You have two months to perform the above removal and provide notice, after which time Executive Approach may, at its discretion, remove the code and be under no obligation to preserve it.  The following provisions will survive any termination or expiration of this Agreement: Indemnity for Your Data Section, Payment Section, Taxes Section, No-Charge Products Section (disclaimers and use restrictions only), Restrictions Section, Conditions to Development of Add-Ons Section, License Certifications and Audits Section, Ownership and Feedback Section, Confidentiality Section, Term and Termination Section, Warranty Disclaimer Section, Limitation of Liability Section, Third Party Vendor Products Section, Dispute Resolution Section, Export Restrictions Section, and General Provisions Section.

18.           WARRANTY DISCLAIMER.

All Products are provided “As Is” and Executive Approach and it’s vendors, partners, staff, employees, contractors, investors, board of directors, and consultants expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability whether express, implied or statutory.  YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. EXECUTIVE APPROACH SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF EXECUTIVE APPROACH. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER EXECUTIVE APPROACH NOR ANY OF ITS THIRD PARTY SUPPLIERS MAKES ANY REPRESENTATION, WARRANTY OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF ANY PRODUCTS OR ANY CONTENT THEREIN OR GENERATED THEREWITH, OR THAT (A.) THE USE OF ANY PRODUCTS WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE, (B.) THE PRODUCTS WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (C.) THE PRODUCTS (OR ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE PRODUCTS) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (D.) ANY STORED DATA WILL BE ACCURATE OR RELIABLE OR THAT ANY STORED DATA WILL NOT BE LOST OR CORRUPTED, (E.) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F.) THE PRODUCTS (OR ANY SERVER(S) THAT MAKE A HOSTED SERVICE AVAILABLE) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

19.           Limitation of Liability.

NEITHER PARTY (NOR ITS VENDORS OR PARTNERS) SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.  NEITHER PARTY’S AGGREGATE LIABILITY TO THE OTHER SHALL EXCEED THE AMOUNT ACTUALLY PAID BY YOU TO EXECUTIVE APPROACH FOR PRODUCTS AND SUPPORT AND MAINTENANCE IN THE 12 (TWELVE) CALENDAR MONTHS IMMEDIATELY PRECEDING THE CLAIM.  NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, EXECUTIVE APPROACH’S AGGREGATE LIABILITY TO YOU IN RESPECT OF NO-CHARGE PRODUCTS SHALL BE $20 USD.  THIS LIMITATION OF LIABILITY SECTION SHALL NOT APPLY TO (A.) AMOUNTS OWED BY YOU UNDER ANY ORDERS, (B.) EITHER PARTY’S EXPRESS INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, OR (C.) YOUR BREACH OF RESTRICTIONS SECTION OR THE COMBINING THE PRODUCTS WITH OPEN SOURCE SOFTWARE SECTION OF THIRD PARTY CODE IN EXECUTIVE APPROACH PRODUCTS.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, NO VENDORS AND PARTNERS OF ANY THIRD PARTY COMPONENTS INCLUDED IN THE PRODUCTS WILL BE LIABLE TO YOU FOR ANY DAMAGES WHATSOEVER.  The parties agree that the limitations specified in this Limitation of Liability Section will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.

20.           IP Indemnification by Executive Approach.

Executive Approach will defend you against any claim brought against you by a third party alleging that a Product, when used as authorized under this Agreement, infringes a United States or European Union patent or registered copyright (a “Claim”), and Executive Approach will indemnify you and hold you harmless against any damages and costs finally awarded by a court of competent jurisdiction or agreed to settlement by Executive Approach (including reasonable attorneys’ fees) arising out of a Claim, provided that Executive Approach have received from you:

(A.)    Prompt written notice of the claim (but in any event notice in sufficient time for Executive Approach to respond without prejudice),

(B.)    reasonable assistance in the defense and investigation of the claim, including providing Executive Approach a copy of the claim and all relevant evidence in your possession, custody or control, and

(C.)    the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim.  

If your use of a Product is (or in Executive Approach’s opinion is likely to be) enjoined, if required by settlement, or if Executive Approach determines such actions are reasonably necessary to avoid material liability, Executive Approach may, at Executive Approach’s option and in Executive Approach’s discretion:

(A.)    Procure a license for your continued use of the Product in accordance with this Agreement;

(B.)    substitute a generally functionally similar Product; or

(C.)    terminate your right to continue using the Product and refund, in the case of Software, the license fee paid by you as reduced to reflect a 3 (three) year straight-line depreciation from the license purchase date, and in the case of a Hosted Service, any prepaid amounts for the terminated portion of the Subscription Term minus Fees.  

Executive Approach’s indemnification obligations above do not apply:

(A.)    If the total aggregate costs received by Executive Approach with respect to your license to Software or subscription to Hosted Services in the 12 (twelve) calendar month period immediately preceding the claim is less than $50,000 USD;

(B.)    if the Product is modified by any party other than Executive Approach, but solely to the extent the alleged infringement is caused by such modification;

(C.)    if the Product is used in combination with any non-Executive Approach Product, software or equipment, but solely to the extent the alleged infringement is caused by such combination;

(D.)    to unauthorized use of Product(s);

(E.)    to any Claim arising as a result of Your Data (or circumstances covered by your indemnification obligations in Indemnity for Your Data Section) or any third-party deliverables or components contained with the Products;

(F.)    to any unsupported release of the Software, or

(G.)   if you settle or make any admissions with respect to a claim without Executive Approach’s prior written consent.  

THIS IP INDEMNIFICATION BY EXECUTIVE APPROACH SECTION STATES EXECUTIVE APPROACH’S SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY PRODUCT OR OTHER ITEMS PROVIDED BY EXECUTIVE APPROACH UNDER THIS AGREEMENT.

21.           Third Party Vendor Products.

Executive Approach or third parties may from time to time make available to you (for example, through the Executive Approach Marketplace) third-party products or services, including but not limited to add-ons and plugins as well as implementation, customization, training, and other consulting services.  If you procure any of these third party products or services, you do so under a separate agreement (and exchange of data) solely between you and the third party vendor. Executive Approach does not warrant or support non-Executive Approach products or services, whether or not they are designated by Executive Approach as “verified” or otherwise, whether or not the vendor is identified as an Executive Approach partner, and Executive Approach disclaims all liability for such products or services.  If you install or enable any third party products or services for use with Executive Approach Products, you acknowledge that Executive Approach may allow the vendors of those products and services to access some or all of Your Data as required for the use and support of such third-party products and services with Executive Approach Products.  Executive Approach shall not be responsible for any disclosure, duplication, modification or deletion of Your Data resulting from any such access by third party vendors, their products or services.

22.           Publicity Rights.

Executive Approach may identify you as an Executive Approach customer in Executive Approach promotional materials, whether online or offline, in public or in private.  You may request that Executive Approach stop this activity, change this activity, or coordinate in other interesting ways with you by submitting an online form request here www.ClearGem.com/noticemarketing. Please note that it may take Executive Approach up to 30 (thirty) calendar days to process your request.

23.           Improving Executive Approach Products and Services.

Executive Approach works to improve Executive Approach Products.  In order to do so, Executive Approach may need to monitor, record, measure, analyze, and aggregate how accounts and users interact with Executive Approach Products, Services, website(s), events, and through other sources, such data as usage patterns and characteristics of the Executive Approach user base.  Executive Approach collects and uses analytics data regarding the use of Executive Approach Products as described in the Privacy Policy Section.

24.           Dispute Resolution.

24.1.      Dispute Resolution; Arbitration.

In the event of any controversy or claim arising out of or relating to this Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties.  

If the parties do not reach settlement within a period of 60 (sixty) calendar days from formal notice, any unresolved controversy or claim arising out of or relating to this Agreement shall proceed to binding arbitration.  The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules.  All parties agree that Arbitration will take place in Austin, Texas, USA.  All negotiations and arbitration proceedings pursuant to this Section will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions.  The language of the arbitration shall be English.

24.2.      Injunctive Relief; Enforcement.

Notwithstanding the provisions of Dispute Resolution; Arbitration Section, nothing in this Agreement shall prevent either party from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

24.3.      No Class Action Suits.

You agree to work to resolve disputes with Executive Approach on an individual basis and to not bring a claim in a class, consolidated or representative action. You agree that class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed under this Agreement.

24.4.      Exclusion of the UCITA and the UN Convention.

The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Agreement regardless of when or where adopted.  The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Agreement.  

 

25.           Export Restrictions.

The Products are subject to export restrictions by the United States government and import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your use of the Products.  You will not, and will not allow any third-party to, remove or export from the United States or allow the export or re-export of any part of the Products or any direct product thereof:

(A.)    Into, or to a national or resident of, any embargoed or terrorist-supporting country;

(B.)    to anyone on the U.S. Commerce Department’s Table of Denial Orders or United States Treasury Department’s list of Specially Designated Nationals;

(C.)    to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval, or

(D.)    otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority.  

You represent and warrant that:

(A.)    You are not located in, under the control of, or a national or resident of any such prohibited country or on any such prohibited party list, and

(B.)    that none of Your Data is controlled under the US International Traffic in Arms Regulations.  

The Products are restricted from being used for the design or development of nuclear, chemical, or biological weapons or missile technology without the prior written permission of the United States government.  You agree to provide such prior written permission of the United States government to Executive Approach prior to the use of Executive Approach Product(s).  If such permission is terminated by the United States government, you must notify Executive Approach in writing immediately and stop use of Executive Approach Products related to the need for such United States government permission.

26.           Changes to this Agreement.

Executive Approach may change or update this Agreement from time to time, including any referenced policies and other documents without notice.  If a revision meaningfully reduces your rights, Executive Approach will use reasonable efforts to notify you (for example, sending an email to the admin or billing contact you designate in the applicable Order, posting internally or publically online, through your Executive Approach account, or within the Product(s)).  If Executive Approach modifies the Agreement during your License Term or Subscription Term, the modified version will be effective upon your next renewal of a License Term, Support and Maintenance term, or Subscription Term, as applicable, unless such revision is required by law or court.  You and possibly your Authorized Users may be required to click through the updated Agreement to show your acceptance.  In this case, if you object to the updated Agreement, as your remedy, you may choose not to renew your license, including cancelling any terms set to auto-renew.  For No Charge Products, accepting the revised Agreement is required for you to continue using the No-Charge Products.  You and possibly your Authorized Users may be required to click through the updated Agreement to show your acceptance.  If you do not agree to the revised Agreement after it becomes effective, you will no longer have a right to use No Charge Products.  For the avoidance of doubt, any Order is subject to the version of the Agreement in effect at the time of the Order.

 

27.           General Provisions.

27.1.      Notices.

Any notice under this Agreement must be given in writing.  Executive Approach may provide notice to you via email or through your account.  Executive Approach notices to you will be deemed given upon the first business day after Executive Approach sends it.

 

You may provide notice to Executive Approach by mail to:

Executive Approach

Attn: General Counsel

14900 Avery Ranch Blvd Suite C200 #230

Austin, Texas, 78717, USA

 

Your notices to Executive Approach will be deemed given upon Executive Approach’s receipt.  

27.2.      Force Majeure.

Neither party shall be liable to the other for any delay or failure to perform any obligation under this Agreement (except for a failure to pay costs, Fees and taxes) if the delay or failure is due to unforeseen events which are beyond the reasonable control of such party, such as an act of war, actual war, strike, blockade, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

27.3.      Assignment.

 You may not assign this Agreement without our prior written consent by Executive Approach.  Executive Approach will not unreasonably withhold Executive Approach consent if the assignee agrees to be bound by the terms and conditions of this Agreement.  

Executive Approach may assign Executive Approach rights and obligations under this Agreement, in whole or in part, without your consent.  

The Products are commercial computer software.  If you are an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Products, or any related documentation of any kind, including technical data and manuals, is restricted by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes.  The Products were developed fully at private expense.  All other use is prohibited.  

 

27.4.      Entire Agreement.

This Agreement is the entire agreement between you and Executive Approach relating to the Products and supersedes all prior or contemporaneous oral or written communications, proposals and representations with respect to the Products or any other subject matter covered by this Agreement.  


 

27.5.      Governing Law; Jurisdiction.

This Agreement will be governed by and construed in accordance with the applicable laws of the State of Texas, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Dispute Resolution; Arbitration Section must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Austin, Texas, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Austin, Texas, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.  Notwithstanding the foregoing, Executive Approach may bring a claim for equitable relief in any court with proper jurisdiction.

27.6.      Severability.

If any provision of this Agreement is held to be invalid, void, unenforceable or illegal, the other provisions shall continue in full force and effect.  

27.7.      Terms Modification by You.

This Agreement may not be modified or amended by you without Executive Approach’s written agreement, which may be withheld in Executive Approach’s complete discretion without any requirement to provide any explanation.  

27.8.      Waiver.

No failure or delay by the injured party to this Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity.  

27.9.      No Agency.

The parties are independent contractors.  This Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give any of the parties the express or implied right, power or authority to create any duty or obligation of the other party.

27.10.   No Third Party Customer Beneficiaries.

There are no third-party customer beneficiaries to this Agreement. Without limiting this section, a Customer's End Users are not third-party beneficiaries to Customer's rights under this Agreement.

 

28.           Acceptable Use Policy.

28.1.      Overview.

You understand and agree not to misuse Executive Approach Products and Services.

“Misuse” is defined within this Acceptable Use Policy and this Agreement.  Executive Approach reserves the right to remove content that is inconsistent with the overall intent of this Agreement, even if it’s something that is not explicitly identified by the Agreement.  If Your Data or usage matches Executive Approach’s perception of misuse due to some similar guideline identified within this Agreement then Executive Approach may remove, change, archive or compress that segment or all of Your Data.  Without affecting any other remedies available to us, Executive Approach may permanently or temporarily terminate or suspend a user’s account or access to the services without notice or liability if Executive Approach, in its sole discretion, determines that a user has violated this Acceptable Use Policy.  Your Data and your Usage Guidelines related to Misuse are identified herein:

 

28.2.      Inappropriate Use - Your Data.

Uploading, submitting, posting, sharing, or providing Your Data that:

(A.)      Infringes Executive Approach’s or a third party’s intellectual property or other rights, including any copyright, trademark, patent, trade secret, moral rights, privacy rights of publicity, or any other intellectual property right or proprietary or contractual right

(B.)      You don’t have the right to submit

(C.)      Is deceptive, fraudulent, illegal, obscene, defamatory, libelous, threatening, harmful to minors, pornographic (including child pornography, which we will remove and report to law enforcement, including the National Center for Missing and Exploited Children), indecent, harassing, or hateful

(D.)      Encourages illegal or tortious conduct or that is otherwise inappropriate

(E.)      Attacks others based on their race, ethnicity, national origin, religion, sex, gender, sexual orientation, disability, or medical condition

(F.)      Contains viruses, bots, worms, scripting exploits, or other similar materials

(G.)     Is intended to be inflammatory

(H.)      Could otherwise cause damage to Executive Approach or any third party

 

28.3.      Disruption.

(A.)      Compromising the integrity of our systems. This could include probing, scanning, or testing the vulnerability of any system or network that hosts our services.

(B.)      Tampering with, reverse-engineering, or hacking our services, circumventing any security or authentication measures, or attempting to gain unauthorized access to the services, related systems, networks, or data

(C.)      Modifying, disabling, or compromising the integrity or performance of the services or related systems, network or data

(D.)      Deciphering any transmissions to or from the servers running the services

(E.)      Overwhelming or attempting to overwhelm our infrastructure by imposing an unreasonably large load on our systems that consume extraordinary resources (CPUs, memory, disk space, bandwidth, etc.), such as:

(1)        Using “robots,” “spiders,” “offline readers,” or other automated systems to send more request messages to our servers than a human could reasonably send in the same period of time by using a normal browser

(2)        Going far beyond the use parameters for any given service as described in its corresponding documentation

(F.)      Consuming an unreasonable amount of storage for music, videos, pornography, etc., in a way that’s unrelated to the purposes for which the services were designed.

28.4.      Wrongful Activities.

(A.)      Misrepresentation of yourself, or disguising the origin of any content (including by “spoofing”, “phishing”, manipulating headers or other identifiers, impersonating anyone else, or falsely implying any sponsorship or association with Executive Approach or any third party)

(B.)      Using the services to violate the privacy of others, including publishing or posting other people's private and confidential information without their express permission, or collecting or gathering other people’s personal information (including account names or information) from our services

(C.)      Using our services to stalk, harass, or post direct, specific threats of violence against others

(D.)      Using the Services for any illegal purpose, or in violation of any laws (including without limitation data, privacy, and export control laws)

(E.)      Accessing or searching any part of the services by any means other than our publicly supported interfaces (for example, “scraping”)

(F.)      Using meta tags or any other “hidden text” including Executive Approach’s or our suppliers’ product names or trademarks

 

28.5.      Inappropriate Communications.

(A.)      Using the Executive Approach Products, Services or Websites to generate or send unsolicited communications, advertising, chain letters, or spam

(B.)      Soliciting our users for commercial purposes, unless expressly permitted by Executive Approach

(C.)      Disparaging Executive Approach or our partners, vendors, or affiliates

(D.)      Promoting or advertising products or services other than your own without appropriate authorization

 

29.           Your Customers as Authorized Users.

 

Your customers can be Authorized Users of Executive Approach Products, subject to the following agreed to terms:

(A.)      If you designate any of your customers as Authorized Users, you will be responsible for their use of the Software or Hosted Services as you would be for any other Authorized User. Accordingly, you must enter into valid, binding agreements with your customers that require them to comply with the applicable terms of the Agreement (including this supplement), including any conditions or restrictions with respect to use of, or access to, the Software or Hosted Services.

(B.)      For the avoidance of doubt, allowing your customers to be Authorized Users does not mean that you may distribute, resell, or OEM any Software or Hosted Services, or make the products available to your customers on a standalone basis. Rather, it means only that your customers may access your instance of the Software or Hosted Services in order to support their use of your own products and services that are unrelated to the Software or Hosted Services (“Your Products”).

(C.)      Examples include:

(1)        Your customer accessing your Wiki App instance to view customer-facing knowledge-base articles or technical documentation about Your Products that you have posted in your Wiki App instance;

(2)        You using your Wiki App instance as a customer-facing extranet for discussions, project updates, and centralized knowledge-sharing source about Your Products;

(3)        Your customers accessing your Projects App instance to provide you with customer feedback on the development of Your Products; and

(4)        You using your Service Desk App instance as a customer-facing helpdesk or support system, and allowing customers to access your Projects App instance to open support tickets.

(D.)      You may not charge your customers for any use of the Software or Hosted Service itself, but may charge your customers as part of an overall program that includes access to your instance of the Software or Hosted Service. An example would be charging your customers for Your Product, where Your Product is a paid support offering that includes, as a minor component, access to the support forum which you provide using your Wiki App instance.

(E.)      As an Authorized User, your customers may interact with the Software or Hosted Service but may not receive any administrator, configuration or similar access to the Product.  For example, your customers may post comments in a Projects App issue, but you may not permit any of your customers to administer project and global site level configurations.

(F.)      Executive Approach will not have any direct or indirect liability or obligation to any of your customers. For the avoidance of doubt, your customers are not parties to, or third party beneficiaries under, the Agreement.

(G.)     You will defend, indemnify and hold harmless Executive Approach from and against any loss, cost, liability or damage, including attorneys’ fees, for which Executive Approach becomes liable arising from or relating to any claim brought against us by your customers arising out of their use of the Software or Hosted Services through you.

 

30.           Third Party Code in Executive Approach Products and Websites.

The Executive Approach Products contain code and libraries that are licensed from third parties. Some licenses require Executive Approach to share the certain terms down to you:

(A.)      Open Source Software in the Products. The Products include components subject to the terms and conditions of “open source” software licenses. To the extent applicable, we will identify open source software included in a Product in or through the Product itself. Some of these licenses require us to provide the open source software to you on the terms of the open source license instead of the terms of the Agreement. In that case, the terms of the open source license will apply, and you will have the rights granted in such licenses to the open source software itself, such as access to source code, right to make modifications, and right to reverse engineer. Notwithstanding the foregoing, if you are using the Products in the form provided to you, in accordance with your permitted Scope of Use, with no distribution of software to third parties, then none of these open source licenses impose any obligations on you beyond what is stated in the Agreement.

(B.)      Combining the Products with Open Source Software. A requirement of some open source licenses, sometimes known as “copyleft licenses,” is that any modifications to the open source software, or combinations of the open source software with other software (such as by linking), must be made available in source code form under the terms of the copyleft license. Examples of copyleft licenses include the GPL or LGPL, Affero, CPL, CDDL, Eclipse or Mozilla licenses. To the extent you are separately authorized by Executive Approach to combine and distribute Products with any other code, you must make sure that your use does not: (i) impose, or give the appearance of imposing, any condition or obligation on us with respect to our Products (including, without limitation, any obligation to distribute our Products under an open source license); or (ii) grant, or appear to grant, to any third party any rights to or immunities under our intellectual property or proprietary rights in our Products. To be clear, you may not combine or otherwise modify our Products unless we expressly give you the right to do so under this Agreement.

 

(C.)      Commercial Third Party Code in the Products. 

(1)        The Products also include components that we license commercially from third parties (“Commercial Components”). For the avoidance of doubt, all of the restrictions for the Products in the Agreement also apply to Commercial Components. Commercial Components are also subject to some additional requirements as set forth below.

(2)        You may use Commercial Components only in conjunction with, as part of, and through the Products as provided by Executive Approach. You may not install, access, configure or use any Commercial Components (including any APIs, tools, databases or other aspects any Commercial Components) separately or independently of the rest of the Product, whether for production, technical support or any other purposes, or otherwise attempt to gain direct access to any portions of the Commercial Components, or permit anyone else (including your customers) to do any of these things.

(3)        Some Commercial Components may include source code that is provided as part of its standard shipment. Commercial Component source code will be governed by the terms for Commercial Components in this supplement and not the provisions in Section 6.4 (“Your Modifications”) of the Agreement. Accordingly, notwithstanding any other terms of the Agreement, you may not modify any Commercial Components. You will be financially responsible to the applicable third party licensor ("Commercial Component Licensor") for all damages and losses resulting from your or your Authorized User’s breach of this Section. You may not “benchmark” or otherwise analyze performance information for individual Commercial Component elements.

(4)        You understand that the applicable Commercial Component Licensor retains all ownership and intellectual property rights to the Commercial Component. Commercial Component Licensors (and any other third party licensors of any components of the Products) are intended third party beneficiaries of the Agreement with respect to the items they license and may enforce the Agreement directly against you. However, to be clear, Commercial Component Licensors do not assume any of Executive Approach's obligations under the Agreement.

 

31.           Privacy Policy.

This Privacy Policy explains what information Executive Approach LLC and its related entities ("Executive Approach") collect about you and why, what we do with that information, how we share it, and how we handle the content you place in our products and services. It also explains the choices available to you regarding our use of your personal information and how you can access and update this information.

 

31.1.      Scope of Privacy Policy.

This Privacy Policy applies to the information that we obtain through your use of Products via a "Device" or when you otherwise interact with Executive Approach.


 

"Executive Approach Products" include our:

(A.)      Websites

(B.)      Cloud Products

(C.)      Downloadable Products

but does not include:

(D.)      Executive Approach products or services for which a separate privacy policy is provided.

(E.)      Third Party Products. These are third party products or services that you may choose to integrate with Executive Approach product or services, such as third party Add-Ons available in the Executive Approach Marketplace. You should always review the policies of third party products and services to make sure you are comfortable with the ways in which they collect and use your information.

A "Device" is any computer used to access the Executive Approach Products, including without limitation a desktop, laptop, mobile phone, tablet, or other consumer electronic device.

Unless otherwise stated, our Cloud Products and our Downloadable Products are treated the same for the purposes of this Agreement.

By registering for or using Executive Approach Products you consent to the collection, transfer, processing, storage, disclosure and other uses described in this Privacy Policy.

 

31.2.      Definitions.

Add-On is a bundle of code, resources and configuration files that can be used with an Executive Approach Product to add new functionality or to change the behavior of that product's existing features.

Content is any information or data that you upload, submit, post, create, transmit, store or display in an Executive Approach Product.

Downloadable Products: Executive Approach's downloadable software Products and mobile applications, including Add-Ons created by Executive Approach that are installed by customers on an infrastructure of their choice.  Downloadable Products do not include Add-Ons created by third parties, even when they are accessed through Executive Approach websites, third party websites, third party App Stores, or available through the Executive Approach Marketplace.

Information: all of the different forms of data, content, and information collected by us as described in this Privacy Policy.

Personal Information: information that may be used to readily identify or contact you as an individual person, such as: name, address, email address, or phone number. Personal Information does not include information that has been anonymized such that it does not allow for the ready identification of specific individuals.

Cloud Products: Executive Approach's "Cloud" (also known as SaaS, Software As A Service) hosted solutions, as well as other Executive Approach hosted solutions that display a link to this Agreement (such as Desktop, Wiki and Chat).  For the avoidance of doubt, if an Executive Approach hosted solution displays a link to a different privacy policy, then that other privacy policy shall apply.

Websites: Executive Approach's websites, including but not limited to ClearGem.com, ExecApproach.com, market.ClearGem.com, faq.ClearGem.com, help.ClearGem.com, support.ClearGem.com, and any related websites, sub-domains and web pages.

31.3.      Changes to the Privacy Policy.

Executive Approach may change this Privacy Policy from time to time. If we make any changes, we will notify you by revising the "Effective Starting" date at the top of this Agreement.  If we make any material changes, we will provide you with additional notice (such as by adding a notification on the ClearGem.com Desktop Notification, login screens, or by sending you an email notification).  We encourage you to review our Privacy Policy whenever you use Executive Approach Products to stay informed about our information practices and the ways you can help protect your privacy.

If you disagree with any changes to this Privacy Policy, you will need to stop using Executive Approach Products and deactivate your account(s), as outlined below.

31.4.      Information you provide to us Executive Approach.

Executive Approach collects the following information:

Account and Profile Information: We collect information about you and your company as you register for an account, create or modify your profile, make purchases through, use, access, or interact with the Executive Approach Products (including but not limited to when you upload, download, collaborate on or share Content). Information we collect includes:

(A.)      Contact information such as name, email address, mailing address, and phone number

(B.)      Billing information such as credit card details and billing address

(C.)      Profile information such as a username, profile photo, and job title

(D.)      Preferences information such as notification and marketing preferences

You may provide this information directly when you enter it in Executive Approach Products.

In some situations another user (such as a system administrator) may create an account on your behalf and may provide your information, including Personal Information (most commonly when your company requests that you use our products).  We collect Information under the direction of our customers and often have no direct relationship with the individuals whose personal data we process. If you are an employee of one of our customers and would no longer like us to process your information, please contact your employer.  If you are providing information (including Personal Information) about someone else, you must have the authority to act for them and to consent to the collection and use of their Personal Information as described in this Privacy Policy.

Content: We collect and store Content that you create, input, submit, post, upload, transmit, store or display in the process of using our Cloud Products or Websites.  Such Content includes any Personal Information or other sensitive information that you choose to include ("incidentally-collected Personal Information").

Other submissions: We collect other data that you submit to our Websites or as you participate in any interactive features of the Executive Approach Products, participate in a survey, contest, promotion, sweepstakes, activity or event, apply for a job, request customer support, communicate with us via third party social media sites or otherwise communicate with us.  For example, information regarding a problem you are experiencing with an Executive Approach product could be submitted to our Support Services or posted in our public forums.

Information we collect from your use of Executive Approach Products

Web Logs: As is true with most websites and services delivered over the Internet, we gather certain information and store it in log files when you interact with our Websites and Cloud Products. This information includes internet protocol (IP) addresses as well as browser type, internet service provider, URLs of referring/exit pages, operating system, date/time stamp, information you search for, locale and language preferences, identification numbers associated with your Devices, your mobile carrier, and system configuration information.  In the case of our Cloud Product, the URLs you accessed (and therefore included in our log files) include usernames as well as elements of Content (such as, but not limited to; Wiki Area and Page names, Project names, Desktop feature names, and status names) as necessary for the Cloud Product to perform the requested operations. Occasionally, we connect Personal Information to information gathered in our log files as necessary to improve Executive Approach Products for individual customers. In such a case, we would treat the combined Information in accordance with this privacy policy.

Analytics Information from Website and Cloud Products: We collect analytics information when you use our Websites and Cloud Products to help us improve our products and services. In the Cloud Products, this analytics information consists of the feature and function of the Executive Approach Product being used, the associated license number and domain name, the username and IP address of the individual who is using the feature or function (which will include Personal Information if the Personal Information was incorporated into the username), the sizes and original filenames of attachments, and additional information required to detail the operation of the function and which parts of the Executive Approach Products are being affected.  The analytics information we collect includes elements of Content related to the function the user is performing.  As such, the analytics information we collect may include Personal Information or sensitive business information that the user has included in Content that the user chose to upload, submit, post, create, transmit, store or display in an Executive Approach Product.  As of the date this policy went into effect, we use Google Analytics as an analytics provider. To learn more about the privacy policy of Google Analytics, refer to Google's Policies and Principles.  Use the Google Analytics Opt-out Browser Add-on to prevent analytics information from being sent to Google Analytics.

Analytics Information Derived from Content. Analytics information also consists of data we collect as a result of running queries against Content across our user base for the purposes of generating Usage Data. "Usage Data" is aggregated data about a group or category of services, features or users that does not contain Personal Information. For example, we may query Content to determine the most common types of workflows that users use by searching for the most common workflow names, or we may query Content to determine the most popular job titles for App users in order to better understand the composition of our user base.

Though we may happen upon sensitive or Personal Information as we compile Usage Data from Content across user instances, this is a byproduct of our efforts to understand broader patterns and trends. It is not a concerted effort by us to examine the Content of any particular customer.

Analytics Information from Downloadable Products: We collect analytics information when you use our Downloadable Products to help us improve our products and services.  Our Downloadable Products contain a feature that sends information about the technical operation of the Downloadable Products on your systems ("System Information") to us.  System Information includes information about:

(A.)      The server environment in which the Downloadable Product is operating: OS type and version, device specifications (for example; screen resolution, OS version, device type, etc.), CPU type, RAM allocation, language and locale settings, database type and version, and disk utilization, as well as

(B.)      user client-device information, for example: browser type and version, native client-device type and version. 

In addition, we collect analytics information from Downloadable Products that is a subset of the analytics information described above for Websites and Cloud Products.  As with Websites and Cloud Products, the analytics information we collect includes elements of Content related to the function the user is performing, but with an important caveat.  With the Downloadable Products, before sending the information to Executive Approach's servers, we filter the analytics information to remove elements that we believe may contain sensitive or Personal Information.

Installer Analytics, Software Updates & License Information from Downloadable Products: During the installation of our Downloadable Products, the installer sends analytics information to Executive Approach to allow us to understand where in the installation process users are experiencing trouble or dropping out.  Our Downloadable Products also communicate with Executive Approach servers for licensing purposes, as well as to check for updates, patches, and compatibility with Add-Ons. Examples of information we collect for these purposes include the name and version of the Downloadable Product and the server ID, SEN, and IP address of the customer instance.

Cookies and Other Tracking Technologies: Executive Approach and our third party partners, such as our advertising and analytics partners, use various technologies to collect information, such as cookies and web beacons.  Cookies are small data files stored on your hard drive or in device memory. We use cookies to improve and customize Executive Approach Products and your experience; to allow you to access and use the Websites or Cloud Products without re-entering your username or password; and to count visits and understand which areas and features of the Websites and Cloud Products are most popular.  You can instruct your browser, by changing its options, to stop accepting cookies or to prompt you before accepting a cookie from websites you visit.  If you do not accept cookies, however, you may not be able to use all aspects of our Websites or Cloud Products.  Executive Approach and our third party partners also collect information using web beacons (also known as "tracking pixels").  Web beacons are electronic images that may be used in our Websites or Cloud Products or in emails that help us to deliver cookies, count visits, understand usage and campaign effectiveness and determine whether an email has been opened and acted upon.

Executive Approach and our third party partners may use javascript, e-tags, "flash cookies", and HTML5 local storage to collect information about your online activities over time and across different websites or online services. Many browsers include their own management tools for removing HTML5 local storage objects.  You may be able to opt out of receiving personalized advertisements as described below under "Your Choices."

 

31.5.      Information we collect from other sources.

Information from third party services: We also obtain information from third parties and combine that with Information we collect through Executive Approach Products. For example, we may have access to certain information from a third party social media or authentication service if you log into Executive Approach Products through the service or otherwise provide us with access to Information from the service. Any access that we may have to such Information from a third party social or authentication service is in accordance with the authorization procedures determined by that service. By authorizing us to connect with a third party service, you authorize us to access and store your name, email address(es), current city, profile picture URL, and other information that the third party service makes available to us, and to use and disclose it in accordance with this Privacy Policy. You should check your privacy settings on these third party services to understand and change the information sent to us through these services.

 

31.6.      How we use Information we collect.

General Uses: We use the Information we collect about you (including Personal Information to the extent applicable) for a variety of purposes, including to:

(A.)      Provide, operate, maintain, improve, and promote Executive Approach Products;

(B.)      Enable you to access and use Executive Approach Products, including uploading, downloading, collaborating on and sharing Content;

(C.)      Process and complete transactions, and send you related information, including purchase confirmations and invoices;

(D.)      Send transactional messages, including responding to your comments, questions, and requests; providing customer service and support; and sending you technical notices, updates, security alerts, and support and administrative messages;

(E.)      Send promotional communications, such as providing you with information about services, features, surveys, newsletters, offers, promotions, contests, events and sending updates about your team and chat rooms; and providing other news or information about us and our select partners. You have the ability to opt out of receiving any of these communications as described below under "Your Choices";

(F.)      Process and deliver contest or sweepstakes entries and rewards;

(G.)     Monitor and analyze trends, usage, and activities in connection with Executive Approach Products and for marketing or advertising purposes;

(H.)      Investigate and prevent fraudulent transactions, unauthorized access to Executive Approach Products, and other illegal activities;

(I.)        Personalize Executive Approach Products, including by providing content, features, or advertisements that match your interests and preferences;

(J.)       Enable you to communicate, collaborate, and share Content with users you designate; and

(K.)      For other purposes about which we obtain your consent.

Notwithstanding the foregoing, we will not use Personal Information appearing in our Analytics Logs or Web Logs for any purpose. The use of Information collected through our Executive Approach Products shall be limited to the purposes disclosed in this policy.

 

31.7.      Compiling aggregate analytics information.

Because our Cloud Products and Downloadable Products are some of the most configurable in the market, we make extensive use of analytics information (including log and configuration data) to understand how our products are being configured and used, how they can be improved for the benefit of all of our users, and to develop new products and services. As such we generate Usage Data (as defined above) from the web logs and analytics logs described above, including the Content elements captured in such logs, as well as from the Content stored in the Websites and Cloud Products.

 

31.8.      Information sharing and disclosure.

We will not share or disclose any of your Personal Information or Content with third parties except as described in this policy. We do not sell your Personal Information or Content.

Your Use: When you use Executive Approach Products, Content you provide will be displayed back to you. Certain features of Executive Approach Products allow you or your administrator to make some of your Content public, in which case it will become readily accessible to anyone. We urge you to consider the sensitivity of any data you input into Executive Approach Products.

Collaboration: As a natural result of using Executive Approach Products, you may create Content and grant permission to other Executive Approach users to access it for the purposes of collaboration. Some of the collaboration features of Executive Approach Products display your profile information, including Personal Information included in your profile, to users with whom you have shared your Content. Where this information is sensitive, we urge you to use the various security and privacy features of the Executive Approach Products to limit those who can access such information. Your sharing settings may make any Information, including some Personal Information, that you submit to the Executive Approach Products visible to the public, unless submitted to a restricted area.

 


 

31.9.      Access by your system administrator.

You should be aware that the administrator of your instance of Executive Approach Products may be able to:

(A.)      Access information in and about your Executive Approach Products account;

(B.)      access communications history, including file attachments, for your Executive Approach Products account;

(C.)      disclose, restrict, or access information that you have provided or that is made available to you when using your Executive Approach Products account, including your Content; and

(D.)      control how your Executive Approach Products account may be accessed or deleted.

 

31.10.   Executive Approach Community.

Our Websites offer publicly accessible community services such as blogs, forums, bug trackers, and wikis. You should be aware that any Content you provide in these areas may be read, collected, and used by others who access them. Your posts may remain even after you cancel your account. To request removal of your Personal Information from the Executive Approach Community, please contact us using the information listed below. In some cases, we may not be able to remove your Personal Information, in which case we will let you know if we are unable to and why.

 

31.11.   Service Providers, Business Partners and Others.

We work with third party service providers to provide website, application development, hosting, maintenance, back-up, storage, virtual infrastructure, payment processing, analysis and other services for us.  These service providers may have access to or process your Information for the purpose of providing those services for us.  Some of our pages utilize white-labeling techniques to serve content from our service providers while providing the look and feel of our site. Please be aware that you are providing your Information to these third parties acting on behalf of Executive Approach.

 

31.12.   Third Party Add-Ons.

You may choose to make use of third party Add-Ons in conjunction with Executive Approach Products.  Third party Add-Ons are software written by third parties to which you grant access privileges to your Content (which may include your Personal Information).  When access is granted, your Content is shared with the third party. Third party Add-On policies and procedures are not controlled by Executive Approach even though the third party Add-On may be available through Executive Approach Products. Third parties who have been granted access to your Content through Add-Ons could use this data to contact you and market services to you, and could share your data with other third parties.  This Privacy Policy does not cover the collection or use of your data by third party Add-Ons, and we urge you to consider the privacy policies governing third party Add-Ons before using them. If you object to your Personal Information being shared with these third parties, please uninstall the Add-On (in the event installed from the Executive Approach Marketplace) or terminate your agreement with the third party Add-On provider (in the event you have purchased a direct integration).

 

31.13.   Links to Third Party Sites.

The Executive Approach Products may include links to other websites whose privacy practices may differ from ours. If you submit Personal Information to any of those sites, your information is governed by their privacy policies. We encourage you to carefully read the privacy policy of any website you visit.

 

31.14.   Social Media Widgets.

The Executive Approach Products may contain social media features, such as the Twitter "tweet" button. These features may collect your IP address, which page you are visiting on the Executive Approach Products, and may set a cookie to enable the feature to function properly. Social media features and Widgets are either hosted by a third party or hosted directly on our Executive Approach Products. Your interactions with these features are governed by the privacy policy of the company providing it.

 

31.15.   Testimonials.

We may display personal testimonials of satisfied customers within Executive Approach Marketing, including our Websites. With your consent, we may post your testimonial along with your name. If you wish to update or delete your testimonial, you can contact us using the information below.

 

31.16.   Compliance with Laws and Law Enforcement Requests; Protection of Our Rights.

We may disclose your Information (including your Personal Information) to a third party if:

(A.)      We believe that disclosure is reasonably necessary to comply with any applicable law, regulation, legal process or governmental request;

(B.)      to enforce our agreements, policies and terms of service;

(C.)      to protect the security or integrity of Executive Approach's products and services;

(D.)      to protect Executive Approach, our customers or the public from harm or illegal activities, or

(E.)      to respond to an emergency which we believe in the good faith requires us to disclose information to assist in preventing the death or serious bodily injury of any person.

 

31.17.   Business Transfers.

We may share or transfer your Information (including your Personal Information) in connection with, or during negotiations of, any merger, sale of company assets, financing, or acquisition of all or a portion of our business to another company. You will be notified via email and/or a prominent notice on the Executive Approach Products of any change in ownership or uses of your Personal Information, as well as any choices you may have regarding your Personal Information.

 

31.18.   Aggregated or Anonymized Data.

We may also share aggregated or anonymized information that does not directly identify you with the third parties described above.  Additionally, you agree that this aggregated and/or anonymized data is the property of Executive Approach, and may survive your licensed-use of the Executive Approach Products under this Agreement.

 

31.19.   With Your Consent.

We will share your Personal Information with third parties when we have your consent to do so.

 

31.20.   Information we do not share.

We do not share Personal Information about you with third parties for their marketing purposes (including direct marketing purposes) without your permission.

 

31.21.   Data storage, transfer and security.

Executive Approach hosts data with hosting service providers in numerous countries including the United States and Australia. The servers on which Personal Information is stored are kept in a controlled environment. While we take reasonable efforts to guard your Personal Information, no security system is impenetrable and due to the inherent nature of the Internet as an open global communications vehicle, we cannot guarantee that information, during transmission through the Internet or while stored on our systems or otherwise in our care, will be absolutely safe from intrusion by others, such as hackers. In addition, we cannot guarantee that any incidentally-collected Personal Information you choose to store in Websites or Cloud Products are maintained at levels of protection to meet specific needs or obligations you may have relating to that information.

Where data is transferred over the Internet as part of a Website or Cloud Product, the data is encrypted using industry standard SSL (HTTPS).

Where Downloadable Products are used, responsibility of securing access to the data you store in the Downloadable Products rests with you and not Executive Approach. We strongly recommend that administrators of Downloadable Products configure SSL to prevent interception of data transmitted over networks and to restrict access to the databases and other storage used to hold data.

 

31.22.   Your Choices.

You may opt out of receiving promotional communications from Executive Approach by using the unsubscribe link within each email, updating your email preferences within your Executive Approach Product account settings menu, or by emailing us to have your contact information removed from our promotional email list or registration database. Although opt-out requests are usually processed immediately, please allow ten (10) business days for a removal request to be processed. Even after you opt out from receiving promotional messages from us, you will continue to receive transactional messages from us regarding Executive Approach's Products. You can opt-out of some notification messages in your account settings.

You may be able to opt out of receiving personalized advertisements from companies who are members of the Network Advertising Initiative or who subscribe to the Digital Advertising Alliance's Self-Regulatory Principles for Online Behavioral Advertising. For more information about this practice and to understand your options, please visit: http://www.aboutads.info and http://www.networkadvertising.org/choices/

 

31.23.   Accessing and updating your information.

You may often correct, update, amend, or remove your Personal Information in your account settings or by directing your query to your account administrator. You may also contact Support Services, or contact us by postal mail using the address listed below. We will respond to your request for access within 30 (thirty) business days.  You can often remove Content using editing tools associated with that Content. In some cases, you may need to contact your administrator to request they remove the Content. You can contact us to request removal of Personal Information from Executive Approach Community services.  You or your administrator may be able to deactivate your Executive Approach Products account. If you can deactivate your own account, you can most often do so in your account settings. Otherwise, please contact your administrator. To deactivate an organization account, please contact Support Services. To deactivate an account made for you without authorization, please contact us at the contact information below.  We will retain your account information for as long as your account is active, or as reasonably useful for commercial purposes or as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements. If your account is managed by an administrator, that account administrator may have control with regards to how your account information is retained and deleted.

 

31.24.   Our policy towards children.

Executive Approach Products are not directed to individuals under 13 (thirteen). We do not knowingly collect Personal Information from children under 13 (thirteen). If we become aware that a child under 13 has provided us with Personal Information, we will take steps to delete such information. If you become aware that a child has provided us with Personal Information, please contact our Support Services.

 

31.25.   International users.

If you are visiting from the European Union or other regions with laws governing data collection and use, please note that you are agreeing to the transfer of your Personal Information to the United States and Mexico to Executive Approach.  By providing your Personal Information, you consent to any transfer and processing in accordance with this Policy.

 

31.26.   Chat App specific certifications.

E.U. Safe Harbor for Chat App:

Chat App complies with the U.S. - E.U. Safe Harbor Framework and the U.S. - Swiss Safe Harbor Framework as set forth by the U.S Department of Commerce regarding the collection, use, and retention of personal data from the European Union member countries.  Executive Approach adheres to the Safe Harbor Privacy Principles of notice, choice, onward transfer, security, data integrity, access, and enforcement with respect to Chat App.  To learn more about the Safe Harbor program, and to view Executive Approach's use of Chat App, please visit http://www.export.gov/safeharbor/

 

31.27.   Contact Executive Approach about Privacy Policy.

Executive Approach
14900 Avery Ranch Blvd Suite C200 #230

Austin, Texas, 78717, USA
or Online Notification Form: www.ClearGem.com/notifyprivacypolicy

 

31.28.   Notice and Disclaimer for Website App Guest Users and Service Desk App Guest Users.

The Website App and the Service Desk App allow individuals from the public to access, view, log-in, submit support and other tickets on a private instance of Service Desk, and submit Content controlled by an inviting party or by other means of finding the public facing Internet web pages.

You, as a guest user, acknowledge and agree that your access to and use of the Website App and Service Desk App are on behalf of the party making publically available the Website App and Service Desk App, and not Executive Approach or any of its affiliates (“Executive Approach”).  Neither Executive Approach nor its suppliers shall be liable to you for any loss of use, lost or inaccurate data, lost profits, failure of security mechanisms, interruption of business, delays or any direct, indirect, special, incidental, reliance or consequential damages of any kind, regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. In any event, Executive Approach’s aggregate liability to you will not exceed fifty U.S. Dollars ($50 USD).

You further acknowledge and agree that any text, data, content, code, video, or other materials of any type that you upload, submit, or otherwise transmit to or through the Website App and Service Desk App are not confidential and can be used or shared by the inviting party in accordance with any agreement it may have with you as well as by Executive Approach according to its Privacy Policy Section.  The Website App and the Service Desk App are provided “as is,” and Executive Approach and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. 

 

32.           Right to Refuse Service.

Executive Approach reserves the right to refuse business to any potential Customer, new Customer, or existing Customer and one or more of their Authorized Users at any time, for any time period and for any reason or no reason.

 


 

Schedule 1

Commission Decision C(2010)593

Standard Contractual Clauses (processors)

For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection

Name of the data exporting organisation: The Customer that is a party to the Executive Approach Customer Agreement with Executive Approach LLC
(the data exporter)

And

Name of the data importing organization: Executive Approach LLC
Address:

14900 Avery Ranch Blvd Suite C200 #230,

Austin, Texas, 78717, USA
(the data importer)

each a "party"; together "the parties",

HAVE AGREED on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1.

Clause 1

Definitions

For the purposes of the Clauses:

  1. 'personal data', ‘data subject’, 'special categories of data', 'process/processing', 'controller', 'processor' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data1;

  2. 'personal data' is defined as “any information relating to an identified natural person (“data subject”); an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or one of more factors specific to his/her physical, physiological, mental, economic, cultural or social identity;”

  3. 'data subject' means the subject that the data is about; in the context of this document, it refers to the subject about which personal, identifying data is about;

  4. 'the data exporter' means the controller who transfers the personal data;

  5. 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;

  6. 'the sub-processor' means any processor engaged by the data importer or by any other sub-processor of the data importer who agrees to receive from the data importer or from any other sub-processor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written sub-contract;

  7. 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;

  8. 'technical and organizational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.

Clause 2

Details of the transfer

The details of the transfer and, in particular, the special categories of personal data where applicable, are specified in Appendix 1, which forms an integral part of the Clauses.

Clause 3

Third-party beneficiary clause

  1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e) and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.

  2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.

  3. The data subject can enforce against the sub-processor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

  4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.

Clause 4

Obligations of the data exporter

The data exporter agrees and warrants:

  1. that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;

  2. that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;

  3. that the data importer will provide sufficient guarantees in respect of the technical and organizational security measures specified in Appendix 2 of this contract;

  4. that, after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;

  5. that it will ensure compliance with the security measures;

  6. that, if the transfer involves special categories of data, the data subject has been informed or will be informed before or as soon as possible after the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;

  7. to forward any notifications received from the data importer or any sub-processor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;

  8. to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for sub-processing services, which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;

  9. that, in the event of sub-processing, the processing activity is carried out in accordance with Clause 11 by a sub-processor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and

  10. that it will ensure compliance with Clause 4(a) to (i).


 

Clause 5

Obligations of the data importer2

The data importer agrees and warrants:

  1. to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to promptly inform the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

  2. that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that, in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;

  3. that it has implemented the technical and organizational security measures specified in Appendix 2 before processing the personal data transferred;

  4. that it will promptly notify the data exporter about:

    1. any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,

    2. any accidental or unauthorized access, and

    3. any request received directly from the data subjects without responding to that request, unless it has been otherwise authorized to do so;

  5. to deal promptly and properly with all enquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;

  6. at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses, which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;

  7. to make available to the data subject upon request a copy of the Clauses, or any existing contract for sub-processing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2, which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;

  8. that, in the event of sub-processing, it has previously informed the data exporter and obtained its prior written consent;

  9. that the processing services by the sub-processor will be carried out in accordance with Clause 11;

  10. to send a copy of any sub-processor agreement it concludes under the Clauses promptly to the data exporter.

Clause 6

Liability

  1. The parties agree that any data subject who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or sub-processor is entitled to receive compensation from the data exporter for the damage suffered.

  2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, in which case the data subject can enforce its rights against such entity.
    The data importer may not rely on a breach by a sub-processor of its obligations in order to avoid its own liabilities.

  3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the sub-processor of any of their obligations referred to in Clause 3 or in Clause 11, because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the sub-processor agrees that the data subject may issue a claim against the data sub-processor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the sub-processor shall be limited to its own processing operations under the Clauses.

Clause 7

Mediation and jurisdiction

  1. The data importer agrees that, if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:

    1. to refer the dispute to mediation by an independent person or, where applicable, by the supervisory authority;

    2. to refer the dispute to the courts in the Member State in which the data exporter is established.

  2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.

Clause 8

Cooperation with supervisory authorities

  1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.

  2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer and of any sub-processor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.

  3. The data importer shall inform the data exporter promptly about the existence of legislation applicable to it or any sub-processor preventing the conduct of an audit of the data importer, or any sub-processor, pursuant to paragraph 2. In such a case, the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).

Clause 9

Governing law

The Clauses shall be governed by the law of the Member State in which the data exporter is established.

Clause 10

Variation of the contract

The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business-related issues where required, as long as they do not contradict the Clause.

Clause 11

Sub-processing

  1. The data importer shall not sub-contract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer sub-contracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the sub-processor, which imposes the same obligations on the sub-processor as are imposed on the data importer under the Clause.  Where the sub-processor fails to fulfil its data protection obligations under such written agreement, the data importer shall remain fully liable to the data exporter for the performance of the sub-processor's obligations under such agreement.

  2. The prior written contract between the data importer and the sub-processor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent, and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the sub-processor shall be limited to its own processing operations under the Clauses.

  3. The provisions relating to data protection aspects for sub-processing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.

  4. The data exporter shall keep a list of sub-processing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.

Clause 12

Obligation after the termination of personal data processing services

  1. The parties agree that, upon termination of the provision of data processing services, the data importer and the sub-processor shall, at the choice of the data exporter, return all of the personal data transferred and the copies thereof to the data exporter or shall destroy all of the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will no longer actively process the personal data transferred.

  2. The data importer and the sub-processor warrant that, upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.

Additional Provisions

Capitalized terms used in Sections A to C and the Appendices but not defined in the Clauses shall have the meaning provided in the Executive Approach Customer Agreement between the data exporter and Executive Approach.

  1. Security audit. The data importer maintains ISO/IEC 27001:2013 and ISO/IEC 27018:2014 certifications, which are issued by an independent third-party auditor. The data importer will continue to undergo regular ISO/IEC 27001:2013 and ISO/IEC 27018 audits necessary for maintaining such certifications for the Services during the Term. The data importer also regularly undergoes Service Organization Control 2 (SOC 2) Type II audits. Subject to the data importer's confidentiality obligations, and no more than once a year, the data importer will provide the data exporter with a copy of the SOC 2 Type II Report upon written request. The data importer will make new SOC 2 reports available as they are completed, subject to the data importer's confidentiality requirements. The data importer regularly reviews its third-party sub-service organizations, which undergo Standards for Attestation Engagements No.16 (SSAE 16) / International Standard on Assurance Engagements No.3402 (ISAE 3402) Service Organization Control 1 (SOC 1) Type II or Service Organization Control 2 (SOC 2) Type II audits that evaluate the design and effectiveness of their security policies, procedures and controls.

The data exporter agrees that the data importer's obligations set forth in this Section A fully satisfy the audit rights under Clause 5(f) and Clause 12 (2) of the Clauses.

  1. Sub-processing. The data importer may engage other companies to provide limited parts of the Services (including support services) on the data importer's behalf, and the data exporter consents to the data importer sub-contracting the processing of personal data to such sub-processors as described in the Clauses. The data importer will ensure that any sub-processor will only access and use personal data to provide the Services as set forth in a written agreement between the data importer and the sub-processor. The data exporter acknowledges that any requirements applicable to the data importer under the Clauses in respect of agreements with sub-processors shall be satisfied in full provided that the sub-processing agreement between the data importer and the sub-processor provides at least the level of data protection required under the Executive Approach Customer Agreement.

  2. Liability. The Clauses shall be subject to the limitations and exclusions of liability contained in the "Limitation of Liability" section of the Executive Approach Customer Agreement, such that the total liability of the data importer and Executive Approach, in aggregate, shall not exceed the limitations set out in the Executive Approach Customer Agreement. For the avoidance of doubt, the data exporter shall not be entitled to recover from both the data importer and Executive Approach in respect of the same loss.


Appendix 1 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be agreed-to by the parties.

The Member States may complete or specify, according to their national procedures, any additional necessary information to be contained in this Appendix.

Data exporter

The data exporter is (please specify briefly your activities relevant to the transfer):

The Customer of the Executive Approach Customer Agreement with Executive Approach.

Data importer

The data importer is (please specify briefly activities relevant to the transfer):

Executive Approach, a global provider of cloud services for businesses and individuals.  Executive Approach, and its affiliates provide a website, software and mobile applications that allow people to store data and file, process and create new data, and collaborate with others.  Executive Approach’s service may also be accessed by Application Programming Interfaces (APIs).

Data subjects

The personal data transferred concerns the following categories of data subjects (please specify):

The data exporter and data exporter's affiliates' end users including employees, consultants and contractors of the data exporter, as well as any individuals collaborating or sharing with these end users using the services provided by the data importer.

Categories of data

The personal data transferred concerns the following categories of data (please specify):

End user-identifying information and organization data (both online and offline) as well as documents, images and other content or data in electronic form stored or transmitted by end users via the data importer's services.

Processing operations

The personal data transferred will be subject to the following basic processing activities (please specify):

The data importer or its sub-processors will use and process personal data, and the data exporter instructs the data importer to use and process personal data in order to provide the Services under the Executive Approach Customer Agreement.


Appendix 2 to the Standard Contractual Clauses

This Appendix forms part of the Clauses and must be agreed-to by the parties.

Description of the technical and organizational security measures implemented by the data importer in accordance with Clauses 4(d) and 5(c) (or document/legislation attached):

Data privacy contact

The data privacy officer of the data importer can be reached at www.ClearGem.com/notifyprivacypolicy

Security measures

The data importer has implemented and will maintain appropriate administrative, technical and physical safeguards to protect personal set forth below. The data importer may update these security measures from time to time, with the most recent version available at the above URL (or other URL as communicated by the data importer), provided however that the data importer will notify the data exporter if the data importer updates the security measures in a manner that materially diminishes the administrative, technical or physical security features described therein or in this Appendix 2.

  1.  Service security

    1. Architecture. The data importer's service is designed with multiple layers of protection, covering data transfer, encryption, network configuration and application-level controls that are distributed across a scalable, secure infrastructure. End users of the data importer's service can access data and files from the web and mobile clients.  All of these clients connect to secure services to provide access to data, files, and allow file sharing with others.

    2. Reliability. The data importer's service is developed with layers of redundancy to guard against data loss and ensure availability.

    3. Encryption. To protect the data in transit between the data exporter and the data importer, the data importer uses Secure Sockets Layer (SSL)/Transport Layer Security (TLS) for data transfer, creating a secure tunnel protected by 128-bit or higher Advanced Encryption Standard (AES) encryption.

    4. Data Centers. The data importer's corporate and production systems are housed at third-party sub-service organization data centers located in the United States. The data importer reviews all sub-service organization data center Service Organization Control (SOC) 1 and/or SOC 2 reports at least annually to ensure sufficient security controls.

  2.  Information security.

    1. Policies. The data importer has established a thorough set of security policies covering areas of information security, physical security, incident response, logical access, physical production access, change management and support. These policies are reviewed and approved at least annually. The data importer personnel are notified of updates to these policies and are provided security training.

    2. Personnel policy and access. The data importer's internal policies require onboarding procedures that include background checks (as allowed by local laws), security policy acknowledgement, communication of updates to security policy and non-disclosure agreements. All personnel access is removed promptly when an employee or contractor leaves the company. The data importer employs technical access controls and internal policies to prohibit employees or contractors from arbitrarily accessing file data and to restrict access to metadata and other information about end users' accounts. In order to protect end user privacy and security, only a small number of employees or contractors have access to the environment where end user files are stored. A record of access request, justification and approval is kept by management, and access is granted by appropriate individuals.

    3. Network security. The data importer maintains network security and monitoring techniques that are designed to provide multiple layers of protection and defense. The data importer employs industry-standard protection techniques, including firewalls, network security monitoring to ensure that only eligible traffic is able to reach the data importer's infrastructure.

    4. Change management. The data importer ensures that security-related changes have been authorized prior to implementation into the production environments. Source code changes are initiated by developers that would like to make an enhancement to a data importer application or service. Changes to the data importer's infrastructure are restricted to authorized personnel only.  Changes to the application level of the services are required to go through testing procedures to verify that security requirements are met.  Successful completion of QA procedures leads to implementation of the change.

    5. Compliance. The data importer, its data center providers and its managed service provider undergo regular security audits performed by an independent third party. The data importer will participate in regular ISO/IEC 27001:2013 and ISO/IEC 27018:2014 audits. The data importer also reviews SOC 1 and/or SOC 2 reports for all sub-service organizations.

  3.  Physical security

    1. Infrastructure. Physical access to sub-service organization facilities where production systems reside are restricted to personnel authorized by the data importer, as required to perform their job function. Any individuals requiring additional access to production environment facilities are granted that access through explicit approval by appropriate management.

    2. Office. The data importer maintains a physical security team that is responsible for enforcing a physical security policy and overseeing the security of the data importer's offices. Access to areas containing corporate services is restricted to authorized personnel.