Last Updated: December 16, 2020
This Customer Agreement (this “Agreement”) contains the terms and conditions that govern your access to and use of the Service Offerings (as defined below) and is an agreement between Corporate Governance Partners, Inc. (“CGPI, “we,” “us,” or “our”), an Illinois corporation, having its principal address at 707 Osterman Avenue, No. 1676, Deerfield, Illinois 60015, and the entity you represent (“you” or “your”). This agreement takes effect when you click an “I Accept” button or check box presented with these terms or, if earlier, when you use any of the Services Offerings (the “Effective Date”).
You represent that you are lawfully able to enter into contracts for the company or entity you work for, and that you have legal authority to bind that entity. Please see Section 1.2 for definitions of certain capitalized terms used in this Agreement. You can review the most current version of this Agreement at any time on our websites, www.board-ops.com and www.corpgovpartners.com.
1.Overview
1.1General. We have created proprietary Service Offerings currently known as Foresight® PROFESSIONAL (hereinafter alternatively “Foresight® PRO” and “Licensed Software,” as appropriate), and possesses certain rights therein. You wish to access and utilize Foresight® PRO. This Agreement states the terms and conditions upon which you may access and use the Service Offerings. To access the Service Offerings, you must have a CGPI account associated with a valid email address and a valid form of payment. Unless explicitly permitted, you and each user at your company will only create one account per email address, and you agree that your log-in credentials are for your internal use only and that you will not sell, transfer or sublicence them to any other entity or person.
1.2Definitions.
(a) “Corrections” shall mean those changes to Licensed Software that are a result of errors or “bugs” reported by Subscriber, found by CGPI, or reported by another Licensed Software user.
(b) “Enhancements” shall mean those changes to Licensed Software that are incorporated by CGPI into the latest marketed version of Licensed Software.
(c) “Exhibit(s)” shall mean the attachment(s) to this Agreement that is/are identified as an Exhibit.
(d) “Level I Program Error” means a Licensed Software malfunction such that such Licensed Software does not perform in accordance with the User Documentation, affects the integrity of the data or such Software malfunction impairs Subscriber’s normal business operations.
(e) “Level II Program Error” means a Licensed Software malfunction such that such Licensed Software does not perform in accordance with the User Documentation and for which no software procedure is reasonably available to provide alternative functional operation; however, such malfunction does not impair Subscriber’s normal business operations.
(f) “Level III Program Error” means a Licensed Software malfunction such that such Licensed Software does not perform in accordance with the User Documentation and for which a software procedure is available to provide alternative functional operation; however, such malfunction does not impair Subscriber’s normal business operations.
(g) “Level IV Program Error” means a Licensed Software malfunction such that such Licensed Software does not perform in accordance with the User Documentation, but such malfunction has little or no consequence on Subscriber’s normal business operations.
(h) “Proprietary Information” means information or materials disclosed by one party to the other party that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential or proprietary. Subscriber’s Proprietary Information shall include, without limitation, Subscriber Data (as defined in Section 9.8). CGPI’s Proprietary Information shall include, without limitation, its Content, the development of Licensed Software and any development plans, screen shots, features, algorithms, source code, software and documentation.
(i) “User Documentation” shall mean written and/or electronic materials that describe the implementation and operation of the Licensed Software.
(j) “Service Offerings” or “Services” means the services made available by us or our affiliates, including CGPI Content, CGPI service marks, and any other product or service provided by us, including
(k) “End User” means any individual or entity that directly or indirectly through another user (a) accesses or uses your Subscriber Data, or (b) otherwise accesses or uses the Service Offerings under your account.
(l) “Content” means software (including machine images), data, text, audio, video or images, provided by CGPI, including compilations, summaries, hierarchies, and other material written or designed by CGPI or under its direction.
1.3 Changes. We may change or discontinue any of the Service Offerings from time to time, and may change, discontinue or add service levels, in accordance with Section 12.6. We will provide you with notice if we discontinue material functionality of a Service Offering, but we may implement changes without notice if (a) the Service Offering poses a security or intellectual property issue to us or the Service Offerings, (b) is economically or technically burdensome, or (c) would cause us to violate legal requirements.
2.License
2.1 License of Software. Subject to the terms and conditions of this Agreement, CGPI hereby grants to Subscriber a restricted, non-exclusive, nontransferable, and non-assignable license to access and use the Licensed Software as what is commonly referred to as “Software as a Service.”
2.2 Ownership of Licensed Software. Title to the Licensed Software, Content, and related User Documentation at all times shall be and remain in the name of CGPI or its licensors.
2.3 Copies, Sublicenses. Subscriber shall not make copies or permit any copying of or alterations to the Licensed Software or the related User Documentation without CGPI’s prior written consent. Subscriber will not grant any licenses or sublicenses to the Licensed Software or permit any other person or entity to use the Licensed Software or to make the Licensed Software available on any timeshare, service bureau, subscription service, rental or any other basis, nor will Subscriber reverse engineer, disassemble, decompile, or create derivative works of the Licensed Software. Any attempt to do so will be a material breach of this Agreement. You agree not to “reverse engineer” or use CGPI’s Content for any competing commercial product or service.
3.Services
3.1 Activation. CGPI will provide Subscriber with access to and use of the Licensed Software and Services as specified in this Agreement and in accordance with the implementation services outlined in Exhibit B hereto.
3.2 Implementation and Training. CGPI shall collaborate with Subscriber on the initial on-boarding, training and guidance services as described in Exhibit B hereto.
3.3 Maintenance. Subject to the terms of this Agreement, Subscriber will be entitled to all applicable Corrections and Enhancements that are made generally available to all subscribers of the Licensed Software and any such revisions to the Licensed Software User Documentation that reflect such Corrections made pursuant to this Section. CGPI shall also provide commercially reasonable efforts to diagnose and correct any documented material non-conformance of the Licensed Software from the specifications set forth in the User Documentation; provided that Subscriber provide CGPI with reasonable technological assistance and/or testing as may be reasonably recommended or required to assure that the Licensed Software functions properly in Subscriber’s environment.
CGPI will provide Subscriber with the maintenance and support services specified herein:
(a) CGPI will provide telephone consulting services in response to problems, questions, and inquiries from Subscriber in order to assist Subscriber in the use of the Licensed Software. Subscriber may request the maintenance and support services for Licensed Software specified in this Section using CGPI’s support telephone number, (312) 772-2149 or support email [email protected]. The number and email address may be changed by alerting Subscriber in writing.
(b)During the normal business hours of CGPI, which are 8:00 a.m. to 9:00 p.m. CT, Monday through Friday, except holidays (“CGPI Business Hours”), CGPI will respond to service requests pursuant to 3.3(a), above, according to the following schedule:
Level I Program Error: Provide immediate assistance until such Level I Program Error is resolved. CGPI will initially contact Subscriber within 10 minutes of the first call and contact the Subscriber every half (1/2) hour thereafter, providing a status until final resolution. If not resolved within two (2) hours, the matter will escalate to CGPI management.
Level II Program Error: Provide assistance until such Level II Program Error is resolved. CGPI will initially notify the Subscriber within one (1) hour of the first call and notify the Subscriber every four (4) hours thereafter, providing a status until final resolution. If not resolved within one (1) business days, the matter will escalate to CGPI management.
Level III Program Error: Provide assistance until such Level III Program Error is resolved. CGPI will initially notify the Subscriber within two (2) business days, providing a status every day until final resolution. If not resolved within five (5) business days, the matter will escalate to CGPI management.
Level IV Program Error: CGPI will initially notify the Subscriber within two (2) business days and will schedule and work on the problem on a time available basis.
(c)Outside of CGPI Business Hours a CGPI support technician will be available by voicemail or email. Once CGPI Business Hours commence, the resolution procedure listed above shall apply. Subscriber may escalate the matter to CGPI’s support manager and then to general management.
3.4 Additional Programming Services for Custom Modifications. Subscriber may request CGPI to provide Subscriber with additional programming services to create custom modifications to the Licensed Software. Subscriber shall pay CGPI the rates set forth in Exhibit A for programming and/or consulting for all such services. Prior to commencing such services, CGPI shall provide Subscriber with an estimate of the project in the form of a statement of work and shall commence such services only on Subscriber’s written approval.
3.5 Obligation to Repair or Replace. If Subscriber notifies CGPI during the term of this Agreement that any aspect of Licensed Software does not conform to the applicable User Documentation: (i) CGPI will promptly repair the Licensed Software pursuant to Section 3.3 above, or replace the non-conforming aspect; or (ii) if CGPI does not effect such repair(s) or replacement(s) within thirty (30) days, Subscriber may terminate the Agreement and return each copy of the Licensed Software User Documentation to CGPI, and CGPI’s sole obligation with respect thereto shall be to refund to Subscriber the Subscription Fees previously paid to CGPI by Subscriber which relate to the balance of the then-current term of this Agreement.
4.Subscriber Representations and Obligations
4.1 Authority and Performance. Subscriber represents and warrants that it has the legal right and authority to enter into this Agreement and perform its obligations hereunder and that Subscriber’s performance and use of the Licensed Software will not cause a breach of any agreements between Subscriber and any third parties.
4.2 Right to Disclose. Subscriber warrants to CGPI that it has the right to disclose all information and materials made available to CGPI or its agents in the course of performance of this Agreement solely for purposes of performing the Services hereunder, and for no other purpose whatsoever, and Subscriber shall defend and indemnify CGPI against any third-party action resulting from a breach by Subscriber of this warranty. To qualify for such defense and indemnity (i) CGPI must give Subscriber prompt written notice of such claim and allow Subscriber to control, and shall (at Subscriber’s expense) fully cooperate with Subscriber in, the defense and all related settlement negotiations; and (iii) the charge of infringement must not have arisen from the use of Subscriber information or materials in violation of this Agreement or in combination with other materials not provided by Subscriber where it is the combination which is alleged to infringe.
4.3 Use of Licensed Software. Subscriber shall use the Licensed Software only for its intended purposes during the Term of this Agreement.
5.Term and Termination
5.1 Term. This Agreement shall commence on the Effective Date and will remain in effect until terminated under this Section 5. Any notice of termination of this Agreement by either party to the other must include a Termination Date that complies with the notice periods in this Agreement.
5.2 Termination for Convenience. You may terminate this Agreement for any reason by providing us notice and closing your account for all Services for which we provide an account closing mechanism. We may terminate this Agreement for any reason by providing you at least 30 days’ advance notice.
5.3 Termination. Notwithstanding the foregoing, either party may terminate this Agreement earlier because of the other party’s material breach of this Agreement, including non-payment of fees that has not been cured within thirty (30) days, and we may terminate this Agreement immediately upon notice to you (A) for cause if we have the right to suspend under Section 6.7, (B) if our relationship with a third-party partner who provides software or other technology we use to provide the Service Offerings expires, terminates or requires us to change the way we provide the software or other technology as part of the Service Offering, or (C) in order to comply with the law or requests of governmental entities.
5.4 Effect of Termination or Expiration. Upon termination or expiration of this Agreement, the license of the Licensed Software and Services shall terminate, and Subscriber shall immediately cease using the Licensed Software and shall return to CGPI all aspects of the Licensed Software and User Documentation in the possession or under the control of Subscriber. In addition, upon termination or expiration of this Agreement, we will not take action remove from the Foresight PRO systems any of your data, and we will allow you retrieve your data from the Service Offerings only if you have paid all amounts due under this Agreement, and except as may be required by applicable law. Upon such termination, all accrued payment obligations to us under this Agreement shall immediately become due. For any use of the Service Offerings after the Termination Date, the terms of this Agreement will apply and you will pay the applicable fees at the then-current rates.
6.Fees and Payment Terms
6.1 Subscription and Implementation Fees. Absent a material breach by CGPI resulting in termination of this Agreement by Subscriber, Subscriber is responsible for the payment of Subscription Fees, Implementation Fees and Consulting Fees, if any, as may be agreed. Please contact us at [email protected] if you wish to purchase Implementation or Consulting services.
6.2 Taxes. All fees are net of any applicable federal, state, and local taxes, tariffs and other governmental fees and charges. Subscriber shall be responsible for payment of all such taxes, tariffs, fees, and any associated interest and penalties.
6.3 Payment Terms. We calculate and bill fees and charges monthly unless you have prearranged annual payment. We may bill you more frequently for fees accrued if we suspect that your account is fraudulent or at risk of non-payment. You will pay using one of the payment methods we support. Any undisputed invoice (or the undisputed portion thereof, if such invoice is disputed in part) that remains unpaid for more than thirty (30) days after date of invoice shall be subject to a late charge of one and one-half percent (1-1/2%) of the total outstanding balance per month. If Subscriber fails to make any payments within ninety (90) days of the date on which they are due, then this Agreement and Subscriber’s rights to the services covered by the invoice and the Subscriber’s rights to access and use the Licensed Software shall be terminable at CGPI’s sole option, in which event Subscriber shall upon request, promptly either certify to destruction of, or return any materials covered by the invoice to CGPI.
6.4 Disputes on Invoices. In the event of a dispute on any invoice, the dispute must be raised within thirty (30) days of receipt of the invoice, and the undisputed portion of the invoice (if any) shall be paid when due.
6.5 Expenses. Subscriber agrees to reimburse CGPI (at cost) for all reasonable travel, lodging and other out-of-pocket expenses CGPI incurs in implementing this Agreement, provided in each such instance, CGPI has obtained Subscriber’s prior written approval of such expenses.
6.6 Telecommunication Expenses. Subscriber agrees to pay directly all telecommunication expenses including but not limited to T1lines, VPN Routers, and other connection charges.
6.7 Temporary Suspension. We may suspend your or any End User’s right to access or use any portion or all of the Service Offerings immediately upon notice to you if we determine that
(a) your or an End User’s use of the Service Offerings (i) poses a security risk to the Service Offerings to any third party, (ii) could adversely impact our systems, the Service Offerings or the systems or data of any other CGPI customer, (iii) could subject us, our affiliates, or any third party to liability, or (iv) could be fraudulent.
(b) you are, or any End User is in breach of this Agreement;
(c) you are in breach of your payment obligations under this paragraph 6; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
7.Proprietary Information and Security
7.1 Proprietary Information. Each party agrees that it may have access to Proprietary Information of the other party. Neither party may disclose the other party’s Proprietary Information to any third party without the written consent of the other party; or use the other party’s Proprietary Information for any purpose other than as contemplated by this Agreement. The parties each agree to protect the other party’s Proprietary Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. Each party shall promptly notify the other party of any known unauthorized use or disclosure of the other party’s Proprietary Information.
7.2 Exceptions. Information will not be deemed Proprietary Information hereunder if such information: (i) is known to the receiving party prior to receipt from the disclosing party directly or indirectly, other than from a source having an obligation of confidentiality to the disclosing party; (ii) becomes known (independently of disclosure by the disclosing party) to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement by the receiving party; or (iv) is independently developed by the receiving party. The receiving party may disclose Proprietary Information pursuant to the requirements of applicable law, legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
7.3 Employee/Agent Acknowledgment. CGPI and Subscriber shall not disclose Proprietary Information to any of their employees, agents or representatives unless and until such employee, agent or representative has been made aware that his or her obligations under this Agreement are subject to confidentiality restrictions, and unless such employee, agent or representative is a party to of a written confidentiality or nondisclosure agreement and has executed that confidentiality or nondisclosure agreement.
7.4Survival; No Limitation of Liability. The terms of this Section 7 shall survive the expiration or termination of this Agreement. Notwithstanding anything contained in this Agreement to the contrary, the terms of any limitation of liability set forth in this Agreement shall not apply to any breach by a party of its confidentiality obligations under this Section.
7.5Security Procedures. CGPI shall employ reasonable security measures for itself and its personnel, which shall include, but not be limited to: (i) prohibiting the disclosure of Subscriber’s confidential information within CGPI’s organization except to individuals identified as requiring access to such information to perform CGPI’s obligations under this Agreement; (ii) precluding access to Subscriber’s confidential information by any CGPI personnel until such individual has been trained with regard to the handling of such confidential information; and (iii) requiring all CGPI personnel who have access to Subscriber’s confidential information to execute a confidentiality agreement with terms no less restrictive than those in Paragraph 7.1 of this Agreement, and further prohibiting the use of material, non-public information about Subscriber for personal benefit. CGPI shall have in place prohibitions against the use of confidential information for personal benefit, shall implement a compliance program, and shall cooperate with law enforcement to prosecute violators.
7.6 Insider Trading and Tipping Notice. CGPI acknowledges that the federal securities laws, other applicable local laws, and the Subscriber’s policies and procedures prohibit any person or entity that has received from the Subscriber material, nonpublic information about a company, from purchasing or selling securities of that company or from communicating such information to any other person or entity that may sell or purchase such securities.
7.7 Compliance Assessments. In order to obtain assurance of CGPI ability to protect and maintain the confidentiality and security of Subscriber’s Proprietary Information, Subscriber may, upon reasonable notice to CGPI, conduct information security assessments (“ISA”) of CGPI and its procedures. An ISA may be conducted by either Subscriber personnel or a third-party contractor (under contract with Subscriber obligating it to maintain the confidentiality of any ISA findings consistent with the terms of this Agreement), but no more than once per calendar year without cause. The ISA will consist of a response to a security questionnaire and/or site visits to locations where Subscriber’s Proprietary Information is accessed, processed, or administered. Any ISA shall not unreasonably interfere with CGPI’s business operations. Third party contractor costs associated with the performance of an ISA will be borne by Subscriber. Should such ISA disclose any security issues or concerns, Subscriber will detail such concerns to CGPI who shall promptly work with Subscriber to address and resolve same either through remediation or establishing acceptable compensating controls as promptly as possible.
8.Ownership of Intellectual Property
CGPI will be the sole owner of all intellectual property that is included in, is a part of, evidences, makes up, constitutes or is otherwise derived from, related to or incorporated into the Licensed Software (except for software licensed to CGPI, which is owned by the licensor) and in no event will Subscriber have any right, title or interest in such intellectual property or in any invention concept, improvement, enhancement or development made in connection with this Agreement, including any invention, concept, improvement, enhancement or development conceived of by Subscriber or any of its employees or agents in connection with Subscriber’s activities as a Licensee of the Licensed Software. Subscriber agrees to assign to CGPI, without payment of any additional consideration, any and all such inventions, concepts, improvements, enhancements or developments conceived of by Subscriber or any of its employees or agents, and to cause each of its employees and agents, to the extent it has the legal right to do so, to assign to CGPI any and all such inventions, concepts, improvements, enhancements or developments conceived of by them.
9.CGPI’s Representations and Warranties
9.1 Authority and Performance. CGPI represents and warrants that it has the legal right and authority to enter into this Agreement and perform its obligations hereunder, and the performance of its obligations hereunder will not cause a breach of any agreements between Subscriber and any third parties.
9.2 Original Development. CGPI represents and warrants to Subscriber that the Licensed Software and the supporting documentation delivered to Subscriber are of original development by CGPI or are licensed to CGPI.
9.3 Harmful Code. CGPI represents and warrants that the Licensed Software is and will remain free of Harmful Code. As used herein “Harmful Code” means any software, hardware or other technologies, devices, or means, the purpose or effect of which is to: (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner, any computer, software, firmware, hardware, system or network; or (b) prevent Subscriber from accessing or using the Licensed Software as intended by this Agreement, and includes any virus, bug, Trojan horse, worm, backdoor, or other malicious computer code and any time bomb or drop dead device.
9.4 Conformity to Documentation. CGPI represents and warrants to Subscriber that the Licensed Software will conform in all material respects to their corresponding User Documentation during the Term of this Agreement.
9.5 Intellectual Property Infringement. CGPI represents and warrants to Subscriber that the Licensed Software does not infringe any patent, copyright, trade secret or other intellectual property right of any third party.
9.6 Service Level and Performance Warranty and Credit. CGPI represents and warrants to Subscriber that the availability of the Licensed Software to Subscriber shall be no less than ninety-nine and one-half percent (99.5%) averaged over a ninety (90) day period (the “Service Level”). For purposes of the foregoing Service Level warranty, the availability of the Licensed Software to Subscriber shall be measured only from 7:00 a.m. to 9:00 p.m. CT weekdays, other than holidays. CGPI will provide Subscriber with a written report of the Service Level availability during the previous ninety (90) day period, on Subscriber’s written request for same. Availability of the Licensed Software excludes any downtime due to scheduled maintenance, emergency out-of-band patching, requests by, or the actions or inactions of, Subscriber, partial or total Internet outages and other events beyond CGPI’s reasonable control. CGPI shall refund one percent (1%) of the Subscription Fee for the current year to Subscriber for every one percent (1%) that the availability of the Licensed Software is less than the Service Level in any such ninety (90) day period. If at any time the Service Level drops below ninety percent (90.0%), Subscriber may immediately terminate the Agreement and CGPI shall refund to Subscriber all fees paid to CGPI which relate to the then-current term of this Agreement.
9.7 Actions Caused by and/or Under the Control of Third Parties. Subscriber acknowledges and agrees that Subscriber’s access to the Internet and CGPI’s web hosting services are each provided by one or more third parties. As such, CGPI does not and cannot control the flow of data to or from its hosting environment and other portions of the Internet, nor does it control the availability or functionality of Subscriber’s access to the Licensed Software. Although CGPI shall use all commercially reasonable efforts, in accordance with the terms of its agreements with third parties, to maintain such availability and functionality in accordance therewith, including, without limitation, its Service Level commitments under Section 9.6, CGPI cannot and does not warrant that events affecting availability and functionality of the Licensed Software will not occur.
9.8 Data and Records. CGPI understands and agrees that CGPI receives no ownership rights in any materials, data or records furnished by Subscriber (“Subscriber Data”). CGPI understands and agrees that Subscriber Data shall at all times remain the exclusive property of Subscriber. Except as set forth herein or as specifically authorized by Subscriber in writing, CGPI shall only use the Subscriber’s Data for purposes of performing the Services hereunder, and for no other purpose whatsoever. CGPI agrees to retain Subscriber Data only as long as necessary to fulfill its service obligations to Subscriber and will thereafter return Subscriber Data to Subscriber or destroy it (and confirm in writing such destruction), except as may be required by applicable law.
9.9 Emergency Out-Of-Band Patching. CGPI may be required to apply critical update patches in an immediate timeframe for security or operational integrity. CGPI shall use its best commercial efforts to notify Subscriber in advance of CGPI’s application of critical update patches.
9.10 THE FOREGOING WARRANTIES CONSTITUTE THE SOLE AND EXCLUSIVE WARRANTY OF CGPI WITH RESPECT TO THE LICENSED SOFTWARE AND ALL OTHER EXPRESS WARRANTIES AND/OR ANY IMPLIED WARRANTIES, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY SPECIFICALLY DISCLAIMED.
10. Limitations of Liability
10.1 Sole Liability. CGPI’s sole liability to Subscriber for any failure of the Licensed Software to conform to its User Documentation (or, if applicable, the service performed that is in breach of this Agreement), other than a breach of Paragraph 9.5, shall be limited to the repair or replacement of that non-conforming portion of the Licensed Software or the cure of the defective service. If CGPI is unable to affect such a repair/replacement or to cure the defective service, then CGPI’s liability shall be limited to the dollar amount paid by Subscriber for the software product or service that is the basis of the breach.
10.2 Liability for Intellectual Property Claims. In the event of a breach by CGPI of its representation and warranty in Paragraph 9.5 CGPI may, at its option, seek to obtain a license to use (and to sublicense) the patent, copyright or trade secret so infringed, or redesign such Licensed Software so that it no longer infringes. If CGPI advises Subscriber that CGPI cannot or will not either license the necessary components or redesign such Licensed Software so that it no longer infringes, then at CGPI’s request, Subscriber will cease using such Licensed Software and CGPI will refund to Subscriber the Subscription Fees paid to CGPI which relate to the then-current term of this Agreement. If Subscriber incurs any liability as a result of the breach by CGPI of Paragraph 9.5 CGPI will, at its expense, defend, indemnify and hold Subscriber harmless for any breach by CGPI of Paragraph 9.5 against any claim that the Licensed Software infringes a patent, copyright, trade secret or other intellectual property right. CGPI will pay all costs, damages, and attorneys’ fees that a court finally awards as a result of such claim. To qualify for such defense and indemnity payments (i) Subscriber must give CGPI prompt written notice of such claim and allow CGPI to control, and shall (at CGPI’s expense) fully cooperate with CGPI in, the defense and all related settlement negotiations; (ii) the Licensed Software must not have been modified by Subscriber; and (iii) the charge of infringement must not have arisen from the use of Licensed Software in combination with other hardware or software components where it is the combination which is alleged to infringe. CGPI will not enter into any settlement agreement on terms that would diminish the rights provided to the Subscriber or increase the obligations assumed by the Subscriber under this Agreement, without the prior written consent of the Subscriber. The Subscriber’s failure to give prompt notice shall not constitute a waiver of its right to indemnification and shall affect CGPI’s indemnification obligations only to the extent that CGPI’s rights are materially prejudiced by such failure or delay.
10.3 EXCEPT AS SET FORTH IN SECTION 10.4, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY CLAIM FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL LOSS OR DAMAGE OF ANY KIND OR NATURE WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR LOSS OF BUSINESS, NOR SHALL EITHER PARTY BE LIABLE FOR EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM THE PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR ANY ACTS OR OMISSIONS ASSOCIATED THEREWITH, WHETHER THE BASIS OF LIABILITY IS IN CONTRACT, TORT, STRICT LIABILITY, STATUTORY OR OTHER. EXCEPT AS SET FORTH IN SECTION 10.4, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF CGPI UNDER THIS AGREEMENT EXCEED THE TOTAL DOLLAR AMOUNT PAID BY SUBSCRIBER TO CGPI UNDER THIS AGREEMENT.
10.4 THE LIMITATIONS OF LIABILITY SET FORTH IN SECTION 10.3 SHALL NOT APPLY TO DAMAGES, (i) RESULTING FROM THE GROSS NEGLIGENCE, BAD FAITH OR WILLFUL MISCONDUCT OF A PARTY, (ii) ARISING FROM CLAIMS FOR WHICH EITHER PARTY HAS AGREED TO INDEMNIFY THE OTHER PARTY PURSUANT TO THE PROVISIONS OF THIS AGREEMENT, OR (iii) ARISING FROM ANY BREACH OF SECTION 7.
11. Status of CGPI and CGPI Personnel
11.1 CGPI (including its employees and agents) shall for all purposes be deemed to be an independent contractor, and not an employee of Subscriber notwithstanding that Subscriber may have ultimate control over the manner in which the services contemplated by this Agreement are provided. CGPI shall abide by all applicable regulations of Subscriber in effect at any time during the term of this Agreement. CGPI represents and warrants to Subscriber that CGPI carries appropriate workman’s compensation insurance as required by applicable law.
11.2 CGPI provides software and forms; use of the software and forms is dependent on decisions and choices made solely by the Subscriber. CGPI is not a law firm or a substitute for an attorney or law firm. Subscriber understands and agrees that CGPI cannot provide any kind of advice, explanation, opinion, or recommendation about possible legal rights, remedies, defenses, options, and/or selection of forms or strategies.
12. General
12.1 Entire Agreement. This Agreement, including any Exhibits thereto, and any agreements between CGPI and Subscriber specifically referred to herein or in any Exhibit, constitute the entire agreement between the parties with respect to its subject matter and supersede any and all other prior agreements.
12.2 Notices. Any notice required or permitted to be made or given by either party pursuant to this Agreement will be deemed sufficiently made and received by the other party (i) if personally delivered, on the date of delivery, (ii) if given by fax, telex, or overnight courier, on the next business day or (iii) if sent by certified mail, postage prepaid, on the fifth day after the date of mailing. Notices shall also be delivered by email to the CEO of CGPI, currently [email protected] and to the General Counsel of Subscriber.
12.3 Assignment. Neither party may assign or subcontract any portion of this Agreement without the prior written consent of the other party, except that CGPI may upon written notice to Subscriber (i) retain a third-party to host the Licensed Software subject to this Agreement and (ii) assign this Agreement to a purchaser of all or substantially all of CGPI’s assets. CGPI shall remain responsible for the acts and omissions of any such third-party hosting the Licensed Software. In no event shall Subscriber have any right to transfer (including any transfer by merger, operation of law or otherwise) any of the Licensed Software without the prior consent of CGPI, except that Subscriber may upon written notice to CGPI assign this Agreement to a subsidiary of Subscriber. CGPI shall have the absolute right, in its sole discretion, to withhold any such consent to any transfer to a non-affiliated entity, including any transfer by operation of law, or to condition any such transfer on the payment of a license fee.
12.4 Survival. The following provisions will survive termination of this Agreement: Paragraphs 2.2; 4; 5.4; 6.2; 6.3; 6.4; 6.5; 7; 8; 9; 10; and 11.
12.5 Choice of Law and Forum. The laws of the State of Illinois shall govern all questions concerning the construction, validity and interpretation of this Agreement and the performance of the obligations imposed by this Agreement; provided, however, that in the event that the uniform law commonly known as the Uniform Computer Information Transaction Act (the “UCITA”), to the extent it may be adopted (and in whatever form) in any state, including the State of Illinois, and be applicable to the licenses and other transactions contemplated hereby, the parties agree that to the extent permitted by applicable law, the UCITA shall not apply to this Agreement, the licenses granted hereby or the relationship of the parties. The parties consent to the jurisdiction of the State Courts of Illinois and the U.S. District Court for the Northern District of Illinois in connection with any legal proceeding with respect to this Agreement.
12.6 Amendments, No Waiver. No provision of this Agreement may be waived or amended except by a written instrument signed by each party. No delay or failure on the part of a party to exercise any power or right shall operate as a waiver, nor shall any single or partial exercise of any power or right preclude any other further exercise or the exercise of any power or right.
12.7 Force Majeure. Either party shall be excused from delays in performing or from its failure to perform to the extent that such delays or failures result from causes beyond the reasonable control of such party; provided that in order to be excused from delay or failure to perform, such party must act diligently to remedy the cause of such delay or failure. However, if an excusable delay continues more than ten (10) business days, the party not relying on the excusable delay may, at its option, terminate this Agreement upon written notice to the other party. For purposes of this Section, the phrase “act diligently” shall, at a minimum, require CGPI to maintain a contingency plan (and provide evidence of its current and periodic testing if requested by Subscriber) for the continuation of business so that despite any disruption in CGPI’s ability to fulfill its service obligations from any particular location or through the efforts of any particular individuals, CGPI will be able to fulfil its service obligations from an alternative/backup location.
12.8 Expenses, Equipment, Etc. Except as specifically provided in this Agreement or otherwise agreed to in writing, Subscriber shall not be responsible to CGPI for purchasing or maintaining any special equipment, clothing, or the like, or for providing office space, transportation or out-of-pocket expenses.
12.10 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the parties intend that such provision be amended and construed in a manner designed to effectuate the purposes of the provision to the fullest extent permitted by law. If such provision cannot be so amended and construed, it shall be severed, and the remaining provisions of this Agreement will remain in full force and effect.
