Software as a Service Agreement

CSI Cloud-Based Applications

IMPORTANT – READ CAREFULLY:  This Software as a Service Agreement (this “Agreement”) is a binding agreement between Computer System Innovations, Inc. (“CSI”) and the person or entity (“Licensee”) identified in the quote, order form, and/or invoice incorporating this Agreement by reference (each and/or both and/or all, an “Order”).  This Agreement and the applicable Order constitutes the full and complete agreement between CSI and Licensee for the cloud-based application identified in the applicable Order (the “Application”).  The Application also includes any online or electronic documentation that may be made available with the Application (“Documentation”) as well as any updates, upgrades, bug fixes, patches, and other error corrections and supplements to the Application made available to Licensee by CSI (“Updates”).  Any software provided along with the Application that is associated with a separate end user license or other agreement is licensed to Licensee under the terms of that end user license or other agreement. 

CSI provides access to the Application solely on the terms and conditions set forth in this Agreement and the applicable Order and on the condition that Licensee accepts and complies with them.  By SUBMITTING OR PAYING AN ORDER REFERENCING THIS AGREEMENT, EXECUTING A SERVICES AGREEMENT REFERENCING THIS AGREEMENT, AND/OR CLICKING THE “ACCEPT” OR “AGREE” BUTTON WHEN accessing or otherwise using the Application, Licensee, on its behalf and that of its AUTHORIZED Users (defined in Section 1 below), (A) accepts all terms and conditions of this Agreement and agrees that it, and its AUTHORIZED Users, are legally bound by them; and (B) represents and warrants that: (i) if Licensee is an individual, it is of legal age to enter into a binding agreement; and (ii) if Licensee is a corporation, governmental organization, NOT-FOR-PROFIT OR NON-PROFIT ORGANIZATION, or other legal entity, it has the right, power, and authority to enter into this Agreement on behalf of such corporation, organization, or entity and bind it to this Agreement (in which case, “licensee” refers to such corporation, organization, or entity).  If Licensee does not agree with any of the terms or conditions of this Agreement, CSI does not license Licensee or its authorized Users the right to access or to use the Application and Licensee and its authorized Users must not access or use the Application or any portion thereof.

1. DEFINITIONS
   1. “Agreement” has the meaning set forth in the preamble of this Agreement.
   2. “Anonymized Statistics” means data and information related to Licensee’s use of the Application that is used by CSI in an anonymized manner and that may be aggregated by CSI, including to compile statistical and performance information related to the provision and operation of the Application.
   3. “Application” has the meaning set forth in the preamble of this Agreement.
   4. “Authorized User” means Licensee’s employees, consultants, contractors, agents, and/or third parties with whom Licensee transacts business (including, but not limited to, donations) (i) who are authorized by Licensee to access and use the Application under the rights granted to Licensee pursuant to this Agreement and (ii) for whom access to the Application has been purchased hereunder.
   5. “Confidential Information” has the meaning set forth in Section 4 of this Agreement.
   6. “CSI” has the meaning set forth in the preamble of this Agreement.
   7. “CSI IP” means the Application, the Documentation, the Updates, and any and all intellectual property provided to Licensee or any Authorized User in connection with the foregoing. For the avoidance of doubt, CSI IP includes the framework on which the Application is hosted and includes the Anonymized Statistics and information, data, or other content derived from CSI’s monitoring of Licensee’s and its Authorized Users’ access to or use of the Application but does not include Licensee Data.
   8. “Documentation” has the meaning set forth in the preamble of this Agreement.
   9. “Effective Date” means the date on which Licensee or any of its Authorized Users first accesses or uses the Application.
   10. “Feedback” has the meaning set forth in Section 5(c) of this Agreement.
   11. “Licensee” has the meaning set forth in the preamble of this Agreement.
   12. “Licensee Data” means, other than Anonymized Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Application.
   13. “Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
   14. “Order” has the meaning set forth in the preamble of this Agreement.
   15. “Service Suspension” has the meaning set forth in Section 2(f). of this Agreement.
   16. “SPOC” has the meaning set forth in Section 3(c) of this Agreement.
   17. “Term” has the meaning set forth in Section 7(a) of this Agreement.
   18. “Third-Party Application” means online, Web-based applications and offline software products that are provided by third parties but may be configured to interoperate with the Application, including but not limited to the iMIS product and database.
   19. “Updates” has the meaning set forth in the preamble of this Agreement.
2. ACCESS AND USE
   1. Provision of Access. Subject to Licensee’s payment of all applicable fees and strict compliance with all of the terms and conditions set forth in this Agreement and the applicable Order, CSI hereby grants Licensee a non-exclusive, non-transferable, non-assignable (except as expressly set forth in Section 11(d)), non-sublicensable, limited right during the Term to access and use the Application, solely for use by Authorized Users in accordance with the terms and conditions herein.  Such use is limited to Licensee’s internal use.  CSI shall provide to Licensee the necessary log-in information to access the Application.  Unless otherwise specified in the applicable Order, (i) access to the Application is provided on the basis of Authorized User subscriptions and the Application may only be accessed by the specific number of Authorized User subscriptions purchased; (ii) an Authorized User’s log-in information may not be shared with any other individual but may be reassigned to another individual replacing one who no longer requires access to the Application; (iii) additional Authorized User subscriptions may be purchased during the Term through an additional Order and payment of additional fees for such additional Authorized User subscriptions, prorated for the portion of the then-current Term remaining at the time the subscriptions are added; and (iv) the added Authorized User subscriptions shall terminate on the same date as the initial Authorized User subscriptions.
       
   2. Documentation License. Subject to the terms and conditions contained in this Agreement, CSI hereby grants to Licensee a non-exclusive, non-transferable, non-assignable (except as expressly set forth in Section 11(d)), non-sublicensable, limited license to access and use the Documentation during the Term solely for Licensee’s internal business purposes in connection with its and its Authorized Users’ use of the Application.
       
   3. Use Restrictions. Licensee shall not use the Application for any purposes beyond the scope of the access granted in this Agreement.  Licensee shall not at any time, directly or indirectly, and shall not permit any Authorized Users to:  (i) copy, modify, or create derivative works of the Application or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Application, in whole or in part; (iv) remove any proprietary notices from the Application or Documentation; or (v) use the Application or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
       
   4. Dependency on iMIS Database. Licensee acknowledges that the proper functioning of the Application depends upon the availability of, and the integration with, Licensee’s licensed copy of the iMIS database and that CSI has no control over such availability and integration.  Accordingly, CSI makes no representations warranties, or covenants regarding the functioning of the Application, or any particular features thereof, to the extent such functioning or feature(s) depends upon the availability of the iMIS database or any other Third-Party Application with which Licensee might integrate the Application.  Nothing in this Agreement or the Order(s) hereto creates any obligations on CSI’s part with respect to the iMIS database or any Third-Party Application.
       
   5. Reservation of Rights. CSI reserves all rights not expressly granted to Licensee in this Agreement.  Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Licensee, any Authorized User, or any third party any intellectual property rights or other right, title, or interest in or to the CSI IP.
       
   6. Suspension. Notwithstanding anything to the contrary in this Agreement, CSI may temporarily suspend or automatically block Licensee’s and any Authorized User’s access to any portion or all of the Application if: (i) CSI reasonably determines that (A) there is a threat or attack on any of the CSI IP; (B) Licensee’s or any Authorized User’s use of the CSI IP disrupts or poses a security risk to the CSI IP or to any other customer or vendor of CSI; (C) Licensee, or any Authorized User, is using the CSI IP for fraudulent or illegal activities; (D) subject to applicable law, Licensee has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or (E) CSI’s provision of the Application to Licensee or any Authorized User is prohibited by applicable law; (ii) any vendor of CSI has suspended or terminated CSI’s access to or use of any third-party services or products required to enable Licensee to access the Application; or (iii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”).   CSI shall use commercially reasonable efforts to resume providing access to the Application as soon as reasonably possible after the event giving rise to the Service Suspension is cured; provided, however, that CSI, in its sole discretion, may charge a reinstatement fee prior to such resumption of access.  CSI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Licensee or any Authorized User may incur as a result of a Service Suspension.  Information and data contained in the Application will be unavailable during a Service Suspension.
       
   7. Anonymized Statistics. Notwithstanding anything to the contrary in this Agreement, CSI may monitor Licensee’s, and its Authorized Users’, use of the Application and collect and compile Anonymized Statistics.  As between CSI and Licensee (including its Authorized Users), all right, title, and interest in Anonymized Statistics, and all intellectual property rights therein, belong to and are retained solely by CSI.  Licensee acknowledges that CSI may compile Anonymized Statistics based on Licensee Data input into the Application.  Licensee agrees that CSI may (i) make Anonymized Statistics publicly available in compliance with applicable law and (ii) use Anonymized Statistics to the extent and in the manner permitted under applicable law; provided that such Anonymized Statistics do not identify Licensee or Licensee’s Confidential Information.
       
3. LICENSEE’S OBLIGATIONS
   1. General. Licensee is responsible and liable for all uses of the Application and Documentation resulting from access provided by Licensee, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement.  Without limiting the generality of the foregoing, Licensee is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by License will be deemed a breach of this Agreement by Licensee.  Licensee shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Application, and shall cause Authorized Users to comply with such provisions.
       
   2. Third-Party Applications. Licensee is responsible and liable for obtaining licenses to access, download, install, and maintain any Third-Party Applications as needed in order facilitate the full operation of the Application. 
       
   3. Single Point of Contact. Licensee will designate one person to act as the overall relationship manager and single point of contact with CSI (the “SPOC”).  The SPOC shall act as the primary liaison between Licensee (including its Authorized Users) and CSI regarding the performance of this Agreement and shall have authority to resolve issues on behalf of Licensee (including Authorized Users) and provide timely decisions and direction to CSI.  Licensee shall promptly update and notify CSI in writing of any changes of the person filling this position. 
       
4. CONFIDENTIAL INFORMATION
   1. Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether electronically, orally or in writing, that (i) if disclosed in tangible form, is conspicuously marked as “Confidential”, and (ii) if disclosed in non-tangible form, is identified as confidential at the time of disclosure and summarized in tangible form conspicuously marked “Confidential” within 30 days of the original disclosure.  In addition, Licensee’s Confidential Information shall include Licensee Data; CSI’s Confidential Information shall include the Application, the Documentation, and the Anonymized Statistics; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Orders (provided that either party may disclose the terms and conditions of this Agreement and any Orders to potential investors and acquirers in connection with bona fide financing or acquisition due diligence).  However, Confidential Information shall not include any information that (A) is or becomes generally known to the public without breach of any obligation of confidentiality owed to the Disclosing Party, (B) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation of confidentiality owed to the Disclosing Party, (C) is received from a third party without breach of any obligation of confidentiality owed to the Disclosing Party, or (D) was independently developed by the Receiving Party.
       
   2. Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party, (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party in the Receiving Party’s possession for any purpose outside the scope of this Agreement and (ii) the Receiving Party shall only disclose Confidential Information of the Disclosing Party to those of its employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.  Neither party will disclose the terms of this Agreement or any Order to any third party other than as permitted in Section 4(a) or to its affiliates, legal counsel, and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel, or accountants will remain responsible for such affiliate’s, legal counsel’s, or accountant’s compliance with this Section 4(b).  For clarity, Licensee acknowledges and agrees that CSI has no control over (or responsibility for) any information that Licensee or its Authorized Users may provide to, store on, or otherwise process using any Third-Party Application(s).
       
   3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
       
5. INTELLECTUAL PROPERTY OWNERSHIP; FEEDBACK
   1. CSI IP. This Agreement does not grant any ownership interests in the CSI IP, Application, the Documentation, or the Anonymized Statistics to Licensee or any Authorized User.  As between Licensee and CSI, CSI owns all right, title, and interest, including intellectual property rights, in and to the same.
       
   2. Licensee Data. This Agreement does not grant any ownership interests in the Licensee Data to CSI.  As between CSI and Licensee, Licensee owns all right, title, and interest, including intellectual property rights, in and to the same.  Licensee hereby grants to CSI a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Licensee Data and perform all acts with respect to the Licensee Data as may be necessary for CSI to provide the Application, including support related thereto, to Licensee and its Authorized Users, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, modify, and otherwise use Licensee Data for the purposes of creating the Anonymized Statistics.
       
   3. Feedback. If Licensee or any of its Authorized Users, employees, or contractors sends or transmits any communications or materials to CSI by mail, email, telephone, or otherwise, suggesting or recommending changes to the CSI IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (”Feedback”), CSI is free to use such Feedback irrespective of any other obligation or limitation between the parties governing such Feedback.  Licensee hereby assigns to CSI on Licensee’s behalf, and on behalf of its Authorized Users, employees, contractors, and/or agents, all right, title, and interest in, and CSI is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although CSI is not required to use any Feedback.
       
6. FEES AND PAYMENTS
   1. Fees. Licensee shall pay CSI the fees as set forth in each Order, without offset or deduction, during the Initial Term (defined below) and CSI’s then-current fees during each Renewal Term (defined below).  Unless otherwise specified in the relevant Order, Licensee shall make all payments hereunder in US dollars on or before the due date set forth in the applicable Order.  If Licensee fails to make any payment when due, without limiting CSI’s other rights and remedies: (i) CSI may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Licensee shall reimburse CSI for all reasonable costs incurred by CSI in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more after payment was due, CSI may suspend Licensee’s and its Authorized Users’ access to any portion or all of the Application until such amounts are paid in full.
       
   2. Taxes. All fees and other amounts payable by Licensee hereunder are exclusive of taxes and similar assessments.  Licensee is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Licensee hereunder, other than any taxes imposed on CSI’s income.
       
   3. Auditing Rights and Required Records. Licensee agrees to maintain complete and accurate records in accordance with generally accepted accounting principles, during the Term and for a period of one (1) year after the termination or expiration of this Agreement, with respect to matters necessary for accurately determining amounts due hereunder and Licensee’s compliance herewith. CSI may, at its own expense, on reasonable prior notice, periodically inspect and audit Licensee’s records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Licensee has underpaid CSI with respect to any amounts due and payable during the Term, Licensee shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 6(a).  Licensee shall pay for the costs of the audit if the audit determines that Licensee’s underpayment equals or exceeds 10% for any quarter.  Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of one (1) year after the termination or expiration of this Agreement.
       
7. TERM AND TERMINATION
   1. Term. The initial term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the period of time set forth in the applicable Order or, if no such time is specified in the Order, one year from the Effective Date (the “Initial Term”). This Agreement and each Order hereunder will automatically renew for additional successive one-year terms (each a “Renewal Term” and together with the Initial Term, the “Term”), unless earlier terminated pursuant to this Agreement’s express provisions or unless either party gives the other party written notice of non-renewal at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term.
       
   2. Termination. In addition to any other express termination right set forth in this Agreement:
      1. CSI may terminate this Agreement and all Orders hereunder, effective on written notice to Licensee, if Licensee: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after CSI’s delivery of written notice thereof; or (B) breaches any of its obligations under Section 2(c) or Section 4;
      2. either party may terminate this Agreement and all Orders hereunder, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or
      3. either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
          
   3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement, Licensee shall immediately discontinue use of the CSI IP and, without limiting Licensee’s obligations under Section 4, Licensee shall delete, destroy, or return all copies of the CSI IP and certify in writing to CSI that the CSI IP has been deleted or destroyed.  No expiration or termination will affect Licensee’s obligation to pay all fees that may have become due before such expiration or termination, or entitle Licensee to any refund.
       
   4. Survival. This Section 7(d) and Sections 2(e), 2(g), 4, 5, 6(c), 10, and 11 shall survive any termination or expiration of this Agreement. 

8. LIMITED WARRANTY; DISCLAIMER OF WARRANTIES
   1. Limited Warranty. CSI warrants that the Application will perform materially in accordance with the Documentation.  For any breach of the foregoing warranty, Licensee’s exclusive remedy shall be as provided in Section 7(b)(ii).  THE FOREGOING WARRANTY DOES NOT APPLY, AND CSI STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY APPLICATIONS.
       
   2. Mutual Warranty. Each party represents and warrants that (i) it has the legal power to enter into this Agreement and (ii) it will not transmit to the other party any Malicious Code (except for Malicious Code first transmitted to the warranting party by the other party).
       
   3. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, THE CSI IP IS PROVIDED “AS-IS”, AND CSI HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE.  CSI SPECIFCIALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE.  EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 8, CSI MAKES NO WARRANTY OF ANY KIND THAT THE CSI IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET LICENSEE’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER APPLICATIONS, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR-FREE.  Licensee acknowledges that CSI does not control the transfer of data over telecommunication facilities, including the internet.  CSI does not warrant secure operation of the Application or that CSI will be able to prevent third-party disruptions to the Application.  Licensee acknowledges further that the Application is accessed through the internet and that the Application may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications.  CSI is not responsible for any delays, delivery failures, or other damage resulting from such problems with the use of the internet or electronic communications.
       
9. MUTUAL INDEMNIFICATION
   1. Indemnification CSI. CSI shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) (”Losses”) incurred by Licensee as the direct result of any third-party claim, suit, action, or proceeding (”Third-Party Claim”) alleging that the Application, or any use of the Application in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets, provided that License promptly notifies CSI in writing of the claim, cooperates with CSI, and allows CSI sole authority to control the defense and settlement of such claim.  If such a claim is made or appears possible, Licensee agrees to permit CSI, at CSI’s sole discretion, to (i) modify or replace the Application, or component or part thereof, to make it non-infringing, or (ii) obtain the right for Licensee to continue use.  If CSI determines that neither alternative is reasonably available, CSI may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.  This Section 9(a) will not apply to the extent that the alleged infringement or misappropriation arises from: (A) use of the Application in combination with data, software, hardware, equipment, or technology not provided by CSI or authorized by CSI in writing; (B) modifications to the Application not made by CSI; (C) Licensee Data; or (D) Third-Party Applications.
       
   2. Licensee Indemnification. Licensee shall indemnify, hold harmless, and, at CSI’s option, defend CSI from and against any Losses resulting from any Third-Party Claim that the Licensee Data, or any use of the Licensee Data in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights and any Third-Party Claims based on Licensee’s or any Authorized User’s (i) negligence or willful misconduct; (ii) use of the Application in a manner not authorized by this Agreement; (iii) use of the Application in combination with data, software, hardware, equipment, or technology not provided by CSI or authorized by CSI in writing; or (iv) modifications to the Application not made by CSI, provided that Licensee may not settle any Third-Party Claim against CSI unless CSI consents to such settlement, and further provided that CSI will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
       
   3. Sole Remedy. THIS SECTION 9 SETS FORTH LICENSEE’S SOLE REMEDIES AND CSI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE APPLICATION INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

10. LIMITATION OF LIABILITIES
    
    IN NO EVENT WILL CSI OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO LICENSEE, ANY AUTHORIZED USER, OR TO ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY, OR INABILITY TO USE THE APPLICATION; LOST REVENUES OR PROFITS; DELAYS, INTERRUPTION, OR LOSS OF SERVICES, BUSINESS, OR GOODWILL; LOSS OR CORRUPTION OF DATA; LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION, OR SHUTDOWN; FAILURE TO ACCURATELY TRANSFER, READ, OR TRANSMIT INFORMATION; FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION; SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION; OR BREACHES IN SYSTEM SECURITY; OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT CSI WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL CSI’S AND ITS AFFILIATES’, INCLUDING ANY OF ITS OR THEIR RESPECTIVE LICENSORS’ AND SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNT OF FEES PAID TO CSI PURSUANT TO THE ORDER UNDER WHICH THE LIABILITY AROSE.  THE LIMITATIONS SET FOR IN THIS SECTION 10 SHALL APPLY EVEN IF LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE.

11. MISCELLANEOUS
    1. Notices. All notices required or permitted under this Agreement shall be in writing, delivered by e-mail to CSI at [email protected] and to Licensee at the e-mail address to which the log-in information is sent or, in the case of billing-related notices, to the relevant billing contact identified by Licensee.  All notices shall be deemed effective upon delivery.
        
    2. Entire Understanding. This Agreement and the Orders hereunder constitute the entire understanding of the parties with respect to their subject matter.  This Agreement supersedes all prior or contemporaneous representations or written and oral agreements with respect to its subject matter.  Neither party is relying on any representation, promise, or inducement made by or on behalf of the other party, nor on any course of dealings or custom and usage in the trade, except as expressly stated in this Agreement.
        
    3. Amendments. CSI may amend the terms and conditions of this Agreement at any time, upon ten (10) day written notice to Licensee.  Unless Licensee objects to the amendments within ten (10) days after receiving the notice, the amendments shall be binding upon the Licensee.  Licensee shall be responsible for notifying the Authorized Users of the amendments.
        
    4. Assignment. Licensee may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of CSI, which consent shall not be unreasonably withheld, conditioned, or delayed.  Any purported assignment or delegation in violation of this Section will be null and void.  No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder.  This Agreement is binding upon and inures to the benefit of the parties and their respective permitted successors and assigns.
        
    5. Waiver. No waiver of any provision of this Agreement or the right of either party to enforce a provision of this Agreement will be effective unless in writing and signed by the party waiving compliance. No waiver of, breach of, or default under any provision of this Agreement will be deemed a waiver of any other provision, or of any subsequent breach or default of the same provision of this Agreement.
        
    6. No Offset. The existence of any claim or cause of action by a party against the other party, whether predicated on this Agreement or otherwise, shall not constitute a defense to enforcement of this Agreement, or create a right of offset against payments due pursuant to this Agreement.
        
    7. Governing Law and Jurisdiction. This Agreement shall be interpreted, construed, and governed by the laws of the State of Illinois, without regard to conflict of law principles.  The parties agree to sole and exclusive jurisdiction and venue in any Federal or state court sitting in the Northern District of Illinois. 
        
    8. Injunctive Relief. Any violation by Licensee or any of its Authorized Users of the covenants in Sections 2, 4, and/or 5 of this Agreement would cause CSI to suffer great loss and immediate and irreparable injury, for which monetary damages would be insufficient.  Accordingly, Licensee agrees that CSI will be entitled to immediate relief, including but not limited to, a temporary restraining order, preliminary injunction, and/or a permanent injunction to prevent a breach of any of the covenants.  Licensee waives any requirement that CSI post a bond or any other form of security to obtain such relief.  Licensee agrees to pay to CSI any reasonable expenses, including but not limited to attorney fees, incurred in obtaining injunctive relief, recovery of actual damages, and/or recovery of statutory damages.
        
    9. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the remaining provisions of this Agreement will remain in full force and effect.  Without limiting the generality of the preceding sentence, if any remedy set forth in this Agreement is determined to have failed of its essential purpose, then all other provisions of this Agreement, including the limitations of liability and exclusions of damages set forth herein, shall remain in full force and effect. 
        
    10. Force Majeure. Neither party shall be liable for any failure or delay in the performance of its obligations due to fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorder, rebellions, or other similar cause beyond its reasonable control; provided that such default or delay could not have been prevented by reasonable precautions and cannot reasonably be circumvented, and provided further that the party hindered or delayed immediately notifies the other party describing the circumstances causing delay.  Notwithstanding the foregoing, in the event that such condition prevents or delays performance of any party for a period in excess of sixty (60) days, the other party shall have the right to immediately terminate this Agreement upon written notice. 
         
    11. Export. Licensee acknowledges that the Application is of U.S.-origin and may be subject to US export control laws, including the U.S. Export Administration Act and its associated regulations.  Licensee shall not, directly or indirectly, export, re-export, or release the Application (including the Documentation) to, or make the Application (including the Documentation) accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation.  Licensee shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Application (including the Documentation) available outside the US.
         
    12. US Government Rights. Each of the Documentation and the software components that constitute the Application is a “commercial item” as that term is defined at 48 C.F.R. § 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. § 12.212.  Accordingly, if Licensee is an agency of the US Government or any contractor therefor, Licensee only receives those rights with respect to the Application and Documentation as are granted to all other end users, in accordance with (a) 48 C.F.R. § 227.7201 through 48 C.F.R. § 227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. § 12.212, with respect to all other US Government users and their contractors.
         
    13. Independent Contractors. The parties are independent contractors. Nothing in this Agreement is intended to create a partnership, joint venture, or agency relationship.
         
    14. Headings. Headings used herein are provided for convenience of reference only and shall not constitute a part of this Agreement.

Last updated 2021-06-30