1. Application of these Terms of Use. ProcureSight is operated by Appian Corporation (“Appian”). These Terms of Use constitute a legal contract between the organization purchasing Procuresight as evidenced on an executed Order Form (“Customer”) and Appian Corporation, and, as applied to the Procuresight service, modifies any legal agreements in place between Customer and Appian, either directly or via a reseller.   Procuresight is not a part of the Appian software, and any terms applicable to the Appian software in either its cloud hosted or self-managed offering are not applicable to Procuresight.   Provided further, however, that the software components connecting Customer’s instance of Appian’s software to Procuresight is covered by the terms and conditions of Customer’s license or subscription agreement with Appian.

2. Permitted Use.   Customer may use Procuresight solely for the purposes of researching U.S. Government procurement contracts and solicitations for use in the ordinary course of its operations. 

3. Prohibited Uses.

a. Customer shall not:

i. distribute, disclose, copy, reproduce, make available, upload, post, communicate to the public by telecommunication, display, publish, transmit, assign, sublicense, transfer, provide access to, sell, directly or indirectly, any portion of Procuresight by any means, or modify, adapt or create derivative works of Procuresight;

ii. store, copy or export any portion of Procuresight into any database or other software program except for permitted internal use; or

iii. link to or frame any portion of Procuresight.

b. Notwithstanding any other provision herein, Customer shall not, without the express written permission of the General Counsel’s office of Appian:

i. use any portion of Procuresight to create, directly or indirectly, any database or product;

ii. allow a direct or indirect competitor of Appian or its affiliates to access or use Procuresight, or provide any portion of Procuresight to any direct or indirect competitor of, Appian or its affiliates;

iii. modify, merge, scrape, disassemble or reverse engineer any portion of Procuresight, or use any data mining, gathering or extraction tool, or any robot, spider or other automatic device or manual process, to monitor or copy any portion of Procuresight or the data generated from it;

iv. use, reproduce, publish, or compile any portion of Procuresight for the purpose of selling or licensing it or making it publicly available;

v. use any portion of Procuresight in a manner that would violate any applicable law, regulation, rule, ordinance or common-law principle; or .

vi. exposes Procuresight to software viruses or any other computer code, files or programs that are designed to or have the capability to interrupt, modify, damage, improperly access, disable, destroy or limit the functionality of Procuresight or servers or networks connected thereto or the activities of other users of Procuresight or of any computer software or hardware or telecommunications equipment.

 

4. Termination and Interruption of Access. 

a. Customer acknowledges and agrees that Appian may interrupt, terminate, suspend, discontinue, or block Customer’s access to Procuresight or portions thereof at any time, including without limitation upon Appian’s determination that Customer has violated these Terms of Use or the terms of any other agreement between the parties or their affiliates.

b. Upon Customer’s breach of any term of these Terms of Use that leads to a termination of its access to Procuresight, Appian’s remedies shall include any damages and relief available at law or in equity. Customer acknowledges that any breach of these Terms of Use will cause irreparable harm and injury to Appian for which there is no adequate remedy at law, and therefore in addition to all other remedies available at law or in equity, Customer agrees that Appian shall be entitled to injunctive relief. If Appian retains any third party to obtain any remedy to which it is entitled under these Terms of Use, Appian shall be entitled to recover all costs, including attorney’s fees and collection agency commissions, Appian incurs. In addition, any individual or entity that violates any term of these Terms of Use is precluded from enforcing, agrees not to enforce, and covenants not to sue to enforce, any similar contract, including terms and conditions, terms of use and terms of service, asserted by such individual or entity, or any affiliate thereof, as binding upon any of the Appian Parties.

c. Appian is continuously updating and changing Procuresight, and reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, Procuresight or any part thereof with or without notice; Customer agrees that Appian shall not be liable to you or to any third party for any modification, suspension or discontinuance of Procuresight or any part thereof. In the event Procuresight or any portion thereof is discontinued, (i) Customer shall only be responsible for paying fees associated with that portion of Procuresight (if any) that continue to be provided after the effective date of such discontinuance, and (ii) Appian shall refund any fees (if any) paid for provision of the discontinued portion of Procuresight after the effective date of such discontinuance.

d. Upon any termination, Customer shall cease using any portion of Procuresight, and within 10 days thereafter permanently delete or destroy all elements of Procuresight within its control; upon request from Appian, Customer shall certify its compliance with the terms of this paragraph in writing reasonably satisfactory to Appian. 

5. Fees. Fees for Procuresight set out in an applicable Order Form shall be paid on the same basis as Customer’s fees for the use of the Appian software, whether cloud based or self-managed.

6. Feedback. Procuresight may include opportunities for users to submit, upload, post, email or otherwise transmit information about how to improve the Procuresight service, or to add information about solicitations or contracts for which users have personal knowledge or to add or correct information in Procuresight (“Feedback”).

a. All Feedback, whether publicly posted or privately transmitted, is the sole responsibility of the person from which such content originated.  Customer, and not Appian, is entirely responsible for your Feedback, and for making any redactions necessary to protect any confidential or sensitive information relating to third parties. Appian has no obligation to monitor or screen Feedback and is not responsible for Feedback. However, Appian reserves the right, in its sole discretion, to monitor Feedback, refuse to post Feedback, edit Feedback or delete Feedback at any time for any reason or no reason.

b. With respect to all Submitted Content Customer elects to submit, upload, post, email or otherwise transmit to or via Procuresight, Customer grants Appian and its licensees a royalty-free, perpetual, irrevocable, non-exclusive and fully sub-licensable right and license to use, reproduce, communicate to the public by telecommunications, make available, adapt, perform, display, publish, translate, prepare derivative works from, modify, distribute, sell, rent and take any other action with respect to such Feedback (in whole or part) worldwide and/or to incorporate it in other works in any form, media, or technology now known or later developed. Customer further acknowledges and agrees that Appian may preserve any such Feedback and may also disclose such Feedback in its sole discretion. The foregoing license is without restrictions of any kind and without payment due from Appian.

c. Customer also hereby forever waives and agrees never to assert any and all “moral rights”, “droit moraux”, or any similar right it may have in or with respect to any Feedback under judicial or statutory law of any country in the world, or under any treaty.

d. Customer represents and warrants that: the Feedback is accurate to the best of your knowledge; Customer owns or has the full right, power and authority to grant to Appian use of and rights in and to all Feedback that it submits, uploads, posts, emails or otherwise transmits to or via Procuresight; Customer’s license of such content to Appian hereunder does not, and the use or license of such content by Appian to third parties will not, infringe any right or interest owned or possessed by any third party; there are no claims, judgments or settlements to be paid by you, or pending claims or litigation, relating to such Feedback; and the Feedback is free of any viruses, Trojan horses, or other malware. 

7. Access, Passcodes, and Security. 

a. Procuresight may only be accessed by authorized users bound by these terms and solely using the user names and passwords applicable to such users (“Authorized Users”).  Authorized Users must maintain the confidentiality of their user names and passwords and may not share them with or allow them to be used by any other person. 

b. Unauthorized attempts to defeat or circumvent passwords or other security features, or Procuresight for other than intended purposes, or obtain, alter, damage or destroy information or otherwise to interfere with the system of its operation, are not permitted and may result in a loss of access to Procuresight. Customer agrees to notify Appian via email at info@appian.com immediately if it becomes aware of any unauthorized use of any password, any authorized use of Procuresight, or any other breach of security.

c. If Authorized Users create any settings, saved searches, fields or functions in Procuresight or input, add or export any data into or from Procuresight, Appian shall not have any liability or responsibility for any such information or the loss, destruction or use by third parties thereof; it is Customer’s responsibility to make back-up copies of such information.

d. If Customer causes a technical disruption of Procuresight, it shall be responsible for any and all liabilities, costs and expenses (including reasonable attorneys’ fees, fines, and costs of enforcement) arising from or related to that disruption. 

8. Ownership. Customer acknowledges that Appian and its licensors have and shall retain exclusive ownership of all proprietary rights to Procuresight, including all United States, United Kingdom, Canadian, European Union or other international intellectual property and other rights such as patents, trademarks, copyrights and trade secrets. This is a license agreement and not an agreement for sale. Customer shall have no right or interest in any portion of Procuresight except the right to use Procuresight as set forth in these Terms of Use and any License Agreement between Customer and Appian. Customer acknowledges that Procuresight constitutes the valuable property and confidential and copyrighted information of Appian and its licensors and agree to (a) comply with all copyright, trademark, trade secret, patent, contract and other laws necessary to protect all rights in such information, (b) not challenge Appian’s and its licensors’ ownership of (or the validity or enforceability of their rights in and to) such information, and (c) not remove, conceal, obliterate or circumvent any copyright or other rights management information, notice, license or anti-piracy technological measure included in Procuresight. You shall be liable for any violation of the provisions of these Terms of Use and, if applicable, the License Agreement by Customer’s employees, contractors, affiliates and agents and for any unauthorized use of Procuresight by such persons. Customer may not use or reproduce any trademark, service mark or trade name of Appian or its licensors without Appian’s written consent. 

NOTICE -- U.S. Government Rights/Commercial Technical Data and Software Unpublished, Rights Reserved Under the Copyright Laws of the United States.  Procuresight contains commercial technical data and computer software that have been privately developed and are regularly sold commercially under a license or lease agreement restricting their use, disclosure and reproduction. In accordance with FAR part 12, as well as other applicable U.S. law and regulations, use, reproduction, disclosure and dissemination of this commercial technical data and computer software are governed strictly in accordance with Appian’s commercial agreements, including these Terms of Use. 

9. Other Websites; Third Party Data Providers. 

a. As a matter of convenience, Procuresight may include links to other websites, some of them owned and operated by Appian and some of them owned and operated by third parties. Under no circumstances shall Appian be deemed to be associated or affiliated with, or viewed as endorsing or sponsoring, any third-party websites or any service or product that may be offered through such websites. Appian has not necessarily reviewed any or all of the content of such other websites, does not guarantee the accuracy or timeliness of such websites, and expressly disclaims responsibility for the content and services available therein. Different terms, conditions, and privacy notices may apply to your use of any linked websites. It is Customer’s responsibility to review any such terms, conditions, and privacy notices in connection with your use of any such websites. Any issues or disputes that may arise with respect to any such websites shall solely be between Customer and the applicable third party.

b. You acknowledge that Procuresight includes data sourced from various providers. Appian has not necessarily reviewed any or all of the content from such providers, does not guarantee the accuracy of such content, and expressly disclaims responsibility for such content. 

10. No Warranties. ALTHOUGH APPIAN MAKES REASONABLE EFFORTS TO PROVIDE ACCURATE INFORMATION WITHIN PROCURESIGHT, PROCURESIGHT AND ALL PARTS THEREOF ARE PROVIDED “AS IS”, “WITH ALL FAULTS” AND “AS AVAILABLE”. THE APPIAN PARTIES DO NOT MAKE, AND HEREBY EXPRESSLY EXCLUDE AND DISCLAIM, ANY AND ALL REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION (a) MERCHANTABILITY, FITNESS FOR ORDINARY PURPOSES AND FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, QUIET ENJOYMENT AND NO ENCUMBRANCES OR LIENS, (b) THE QUALITY, ACCURACY, TIMELINESS OR COMPLETENESS OF PROCURESIGHT, (c) THOSE ARISING THROUGH COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE, (d) PROCURESIGHT CONFORMING TO ANY FUNCTION, DEMONSTRATION OR PROMISE BY ANY APPIAN PERSONNEL, (e) THAT ACCESS TO OR USE OF PROCURESIGHT WILL BE UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE, AND (f) AS TO ANY TITLE OR NON-INFRINGEMENT. ANY RELIANCE UPON PROCURESIGHT IS AT YOUR OWN RISK. 

11. Limitation on Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, APPIAN WILL NOT BE LIABLE FOR ANY LOSS, COST OR DAMAGE SUFFERED OR INCURRED BY CUSTOMER OR ANY THIRD PARTY INCLUDING WITHOUT LIMITATION THOSE ARISING OUT OF OR RELATED TO ANY FAULTS, INTERRUPTIONS OR DELAYS IN PROCURESIGHT, OR ANY INACCURACIES, ERRORS OR OMISSIONS IN THE INFORMATION CONTAINED IN PROCURESIGHT, REGARDLESS OF HOW SUCH FAULTS, INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR OMISSIONS ARISE, OR FOR ANY UNAUTHORIZED USE OF PROCURESIGHT. 

NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, AND TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, IN NO EVENT WILL THE AGGREGATE, CUMULATIVE LIABILITY OF APPIAN FOR ANY AND ALL REASONS TO ANY PARTY FOR DAMAGES, DIRECT OR OTHERWISE, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, PROCURESIGHT, OR A SEPARATE LICENSE AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO APPIAN UNDER THE RELEVANT LICENSE AGREEMENT DURING THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE DATE SUCH CLAIM AROSE. RECOVERY OF THIS AMOUNT SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY APPLICABLE DAMAGES. 

TO THE MAXIMUM EXTENT PERMISSIBLE BY LAW, UNDER NO CIRCUMSTANCES WILL APPIAN BE LIABLE FOR LOST PROFITS HOWSOEVER ARISING OR FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL OR ANY OTHER DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF, BASED ON, RESULTING FROM, OR IN CONNECTION THESE TERMS OF USE, PROCURESIGHT, OR YOUR USE OR INABILITY TO USE ANY OF THE FOREGOING, EVEN IF APPIAN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF DAMAGES IN THIS PARAGRAPH IS INDEPENDENT OF THE EXCLUSIVE REMEDY DESCRIBED ABOVE AND SURVIVES IN THE EVENT SUCH REMEDY FAILS. 

12. Assignment. Customer’s obligations hereunder are binding on its successors, legal representatives and assigns. Customer may not assign, sublicense or otherwise transfer (by operation of law or otherwise) these Terms of Use, or any rights to use Procuresight, in whole or in part, without the prior written consent of Appian. 

13. Privacy.

a. Appian may send to Customer and its employees email communications Appian determines may be relevant to Customer, including without limitation communications about new features or products, product updates and other marketing content. Customer and/or its employees may opt out of marketing messages to the extent required by law.

b. Appian is committed to respecting the privacy of Customer personal information in connection with use of Procuresight. Appian takes great care to keep personal information confidential and secure. However, the Internet is not a totally secure medium of communication. For this reason, Appian cannot guarantee the privacy of any information input on Procuresight, send to Appian, or request be delivered to Customer on the Internet. Appian will not be responsible for any damages Customer or others may suffer as a result of the loss of confidentiality of any such information.

c. Appian will not sell Customer’s personal or usage information to third parties without seeking Customer’s consent.

14. Notices. Except as otherwise expressly provided herein, all notices to Appian given hereunder must be in writing and delivered by registered or certified mail (return receipt requested, where available) or delivered by a well-recognized overnight courier to Appian Corporation, 7950 Jones Branch Drive, McLean VA 22102, attention: General Counsel.

15. Force Majeure. Appian shall not have any liability for any damages resulting from any failure to perform any obligation hereunder or from any delay in the performance thereof due to causes beyond Appian’s control, including industrial disputes, acts of God or government, public enemy, war, fire, pandemic, epidemic, other casualty, failure of any link or connection whether by computer or otherwise, or failure of technology or telecommunications or other method or medium of storing or transmitting Procuresight.

16. Choice of Law; Jurisdiction. These Terms of Use and Customer’s use of this Product shall be governed by and construed under the laws of Virginia without regard to choice of law principles except as to Federal agencies, in which case, Federal law should govern. Unless otherwise agreed to in writing, the federal and state courts located in the Fairfax County, Virginia shall be the exclusive jurisdiction for any action brought against Appian in connection with these Terms of Use or use of Procuresight. To the extent permissible under law, Customer irrevocably consents to the jurisdiction and venue of the federal and state courts located in Fairfax County, Virginia, and to the jurisdiction of the federal, provincial and/or state courts located in any State or Province where it is located, for any action brought against Customer in connection with these Terms of Use or use of Procuresight.

17. Changes to these Terms of Use. Appian reserves the right, in Appian’s complete and sole discretion, to change these Terms of Use at any time by posting revised terms on Procuresight. It is Customer’s responsibility to check periodically for any changes Appian may make to Procuresight and these Terms of Use. Customer’s continued use of this Product following the posting of changes to these terms or other policies means Customer accept the changes.

18. Miscellaneous.

a. The parties are independent contractors, and nothing in these Terms of Use will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between them.

b. These Terms of Use contain the entire understanding of the parties with respect to Procuresight and supersede any prior oral or written statements and documents with respect to such subject matter, provided that these Terms of Use do not supersede any written License Agreement between the parties with respect to licenses or subscriptions to products other than Procuresight.

c. The failure of Appian at any time to require full performance of any provision hereof will in no manner affect Appian’s right at a later time to enforce the same.

d. Each party acknowledges its responsibilities in accordance with applicable anti-bribery and anti-corruption legislation, and represents and warrants that it has not, and will not offer, give, solicit or accept any bribe from any person, organization or Appian with the intent to coerce or induce a person, organization or Appian to act improperly in the course of their duties.

e. If any provision of these Terms of Use not being of a fundamental nature is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remainder of these Terms of Use will not be affected. If a provision is held to be invalid, illegal or otherwise unenforceable, it shall be deemed to be replaced with an enforceable provision that retains the intent and benefits of the original provision.

f. Headings are for reference only.

g. Any provision of these Terms of Use that by its nature should survive expiration or termination of these Terms of Use shall survive expiration or termination of these Terms of Use, including without limitation restrictions imposed on you with respect to information or materials viewed and/or downloaded in respect of Procuresight and the disclaimers, indemnities, waivers, releases and limitations of liabilities set forth herein.

h. The use of and access to Procuresight is available only to individuals or organizations who can enter into legally binding contracts under applicable law.