Software as a Service (SaaS) & Managed Services Agreement

 The following terms and conditions (hereinafter the “Agreement”) govern the use of the software as a service (“SaaS”) and related services provided by Copper Hill, Inc. a Michigan Corporation with offices located at 33057 Schoolcraft Rd, Livonia, MI 48150 acting on its own behalf and for the benefit of its subsidiaries, and affiliates (“Provider” or “CHI”) to the contracting entity designated in the applicable Order Form, (“Customer“). This Agreement is effective as  the last  date of signature of the applicable Order Form.  CHI and Customer may be referred to herein collectively as the “Parties” or individually as a “Party.” The Parties agree that CHI will provide Customer with access to the SaaS and provision of related services as set forth in the Order Form and subject to the terms and conditions of this Agreement set forth below.

1. Definitions.
   • “Aggregated Statistics” means usage data and other information related to Customer’s use of the Services that is utilized by CHI in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. Aggregated Statistics will not include any Confidential Information of Customer or any data which could reasonably be used to identify Customer by any third party.
   • “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services pursuant to an Order Form.
   • “Customer Data” means, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. Customer Data will not include the Aggregated Statistics.
   • “Documentation” means CHI’s user manuals, handbooks, and guides relating to the Services as may be provided by CHI to Customer either electronically or in hard copy form/end user documentation relating to the Services.
   • “Order Form” means an Order Form and/or Statement of Work, outlining the Services, pricing and the applicable service term for the Services, signed by both Parties.
   • “Provider IP” means the Services except as specifically provided otherwise herein, including but not limited to the SaaS, the Documentation, the Aggregated Statistics and any and all intellectual property provided to Customer or any Authorized User by or on behalf of CHI in connection with the foregoing. For the avoidance of doubt, Provider IP does not include Customer Data or Deliverables.
   • “Professional Services” means any implementation, consulting, professional and/or managed services that may be provided by CHI pursuant to an applicable Order Form.
   • “Services” means the SaaS and any Professional Services that may be provided by CHI pursuant to an applicable Order Form.
   • “Term” means the service term for the Services set forth in the applicable Order Form.
   • “Third-Party Products” means materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to CHI.
2. Provision of Services.
   • Access. Subject to and conditioned on Customer’s payment of Fees and compliance with this Agreement, CHI grants Customer’s Authorized Users a limited, non-exclusive, non-transferable (except in compliance with Section 14(g)) right to access and use the SaaS and Documentation during the Term. Such use is limited to Customer’s internal use. The total number of Authorized Users will not exceed the number set forth in an applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. Customer may allow its agents, including Customer suppliers and custom brokers, limited access to the SaaS on Customer’s behalf. Customer remains responsible for and fully liable for all such access by Customer’s agents, and acknowledges and agrees that such agents may be required to agree to additional Terms of Use governing their use of the SaaS.
   • Scope of Professional Services. The applicable Order Form will outline the scope of Professional Services to be performed by CHI, and the scope of Professional Services is limited to those specifically outlined in the Order Form. The Professional Services shall commence as set forth in the applicable Order Form, on the date work commences, or on the date when CHI commits personnel resources to the project, whichever comes first. Should CHI encounter additional issues or matters that are beyond the scope of Services outlined in an Order Form, CHI will not provide services or incur any fees or expenses until CHI and Customer agree to a revised scope of work via a written amendment signed by both parties or by entering into a new Order Form cover the expanded scope.
   • Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer 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 Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) create, enhance, test or market any software or service which is marketed to any third party and/or competes with the Services; and/or (vi) use the Services 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.
   • Reservation of Rights. CHI reserves all rights not expressly granted to Customer 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 Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP or Third-Party Products.
   • Suspension. Notwithstanding anything to the contrary in this Agreement, CHI may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) CHI reasonably determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of CHI; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer 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) CHI’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of CHI has suspended or terminated CHI’s access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 5(b)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). CHI shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. CHI shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. In the event a Service Suspension pursuant to Section 2(d)(ii) lasts more than thirty (30) days, Customer may elect to terminate this Agreement and any active Services and will receive a prorated refund for Services not received. CHI will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
   • Aggregated Statistics. CHI may collect, use, and analyze Aggregated Statistics derived from the use of the Services, including but not limited to data relating to use, behavior, system performance, and feature utilization. Aggregated Statistics will not contain any personally identifiable information and will be used solely for the purpose of improving the Services, conducting research, optimizing performance, and generating insights. CHI may also use such Aggregated Statistics for benchmarking, marketing, and product development purposes, provided that such data is anonymized and does not disclose any individual user’s identity or confidential information. Customer Acknowledges and agrees that CHI shall have exclusive ownership of all right, title, and interest in and to the Aggregated Statistics, including any intellectual property rights therein.  
3. Customer Responsibilities.
   • General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer 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 Customer will be deemed a breach of this Agreement by Customer. Customer 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 Services, and shall cause Authorized Users to comply with such provisions.
   • Effect of Customer Failure or Delay. CHI is not responsible or liable for any delay or failure of performance caused in whole or in part by Customer’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Customer Failure“).
   • Information and Support. CHI will not be liable for any losses or damages arising from reliance placed on any information given by the Customer or Customer’s software provider, or from a failure by the Customer or Customer’s software provider to provide any relevant information reasonably requested by CHI.
   • Third Party Software. CHI will not be responsible for validating the logic of any third-party customs software which includes, but is not limited to, the back-end code of such program, source code, systems mapping, or any other programming logic deployed between the Customer and the third party software.
   • Cooperation. Customer agrees to cooperate with CHI in the performance of CHI’s services and to give such support, facilities and information as may be reasonably requested by CHI, including but not limited to, providing CHI with timely accessibility to necessary software, data, information, and personnel of Customer. CHI will rely on data, facts, and suppositions provided by Customer and will not independently verify this information.
4. Service Level Agreement. CHI will provide the SaaS in accordance with the SLA available at https://copperhill.com/service-level-agreement/.
5. Fees and Payment.
   • Fees. Customer shall pay CHI the fees (“Fees“) as set forth in an applicable Order Form without offset or deduction except as otherwise set forth herein. Unless otherwise stated in an applicable Order Form, Fees for SaaS will be billed annually in advance. Fees will be billed in U.S. dollars and due net thirty (30) days from the date of invoice, unless otherwise agreed to in the applicable Order Form. Out-of-pocket expenses for Professional Services are in addition to the Services fees, and before incurring any out-of-pocket expenses, CHI will seek approval from Customer.
   • Disputed Fees. In the event that Customer has a bona fide dispute with the charges included on any invoice Customer shall notify CHI in writing on or before the due date of the subject invoice. The written notice of the dispute (the “Dispute Notice”) shall include the disputed fee, a description of the disputed invoice line item(s) and a summary of the reason for the dispute. All undisputed fees owed to CHI shall be due in full by the original due date.
   • Third Party Fees. Any fees owing to third parties, including but not limited to taxes, duty, penalties, ACH payments, tariffs, handling fees, other such assessments of any nature, government agency fees, all pass-through contracts, grantee fees, support fees from a software provider, software licensing fees, purchase and/or installation of customs software, systems costs, or any other charges by third parties used on behalf or for the benefit of Customer for the provision of Professional Services (“Third-Party Fees”) are not covered by these payment terms and/or payment terms set forth in the applicable Order Form and instead are the responsibility of and to be paid directly by Customer to that third-party (“Third-Party Payment”). CHI will not obligate Customer to pay for any Third-Party Fees or make any Third-Party Payment without Customer’s prior written consent.
   • Third Party Payments. CHI is not a financial institution.  In the event CHI makes any Third-Party Payment on behalf of Customer, Customer agrees to pay CHI a $150 (one hundred and fifty U.S. dollar) administrative fee per each Third-Party Payment.  Additionally, Customer agrees to promptly reimburse CHI the full amount of the Third-Party Payment, in addition to the $150 administrative fee, no later than three (3) days prior to any Third-Party Payment being due.  Customer agrees to pay CHI a 6% (six percent) fee if Customer fails to pay or transfer the total amount due to that third-party and the $150 administrative fee to CHI at least three (3) days prior to the Third-Party Payment being due.  Customer further agrees to pay interest at the rate of two percent (2%) per month on any unpaid amount owed to CHI related to any Third-Party Payment(s) from the date due to CHI until the date fully reimbursed
   • Late Payments. If Customer fails to make any payment when due, without limiting CHI’s other rights and remedies: (i) CHI may charge interest on the past due amount at the rate of 2% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse CHI for all reasonable costs incurred by CHI in collecting any late payments or interest, including reasonable attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, CHI may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full and/or may invoke its termination rights set forth herein.
   • Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer 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 Customer hereunder, other than any taxes imposed on CHI’s income.
   • Fee Increases. Unless otherwise agreed to in the applicable Order Form, the pricing set forth in any Order Form shall increase in January of each year by the lesser of (A) 6% percent or (B) the Consumer Price Index (“CPI”). For the purposes of this Agreement, the CPI means the percentage increase in the Consumer Price Index for All Urban Consumers (CPI-U): U. S. city average, All Items, for the unadjusted 12-month period, November to November, of the immediately preceding year.
   • Excess Transaction Charges. In the event that Customer exceeds the transaction limits set forth in an applicable order form, CHI reserves the right to charge the Customer for any excess transactions. The charges for excess transactions will be calculated based on the rates outlined in an applicable order form and CHI will invoice the Customer for such excess amounts on a monthly basis. If CHI determines, at any time, that Customer has exceeded the transaction limits in an applicable order form for any prior period for which charges were not assessed, CHI may retroactively review such periods and issue an invoice for the excess transactions for a period of one (1) year after the transaction occurred. Customer will be invoiced for such charges and agrees to pay the amounts owed within thirty (30) days of receiving the invoice for such excess transactions.
6. Confidential Information. Either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media. Such information will be deemed to be Confidential Information if designated as such by the Disclosing Party and/or if the information would reasonably be deemed by the Receiving Party as confidential, whether or not marked, designated, or otherwise identified as “confidential” and regardless of whether it is disclosed prior to or during the Term (collectively, “Confidential Information“). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the Receiving Party at the time of disclosure; (c) rightfully obtained by the Receiving Party on a non-confidential basis from a third party; or (d) independently developed by the Receiving Party as evidenced by its records. The Receiving Party shall not disclose the Disclosing Party’s Confidential Information to any person or entity, except to the Receiving Party’s employees or agents who have a need to know the Confidential Information for the Receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, court, or administrative order, provided that the Party making the disclosure pursuant to the order shall first, to extent legally allowed, have given written notice to the other Party to allow the other Party to attempt to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings, in which case such Confidential Information shall be filed under seal. On the expiration or termination of the Agreement, upon request, the Receiving Party shall promptly return to the Disclosing Party all copies, whether in written, electronic, or other form or media, of the Disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the Disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
7. Intellectual Property Ownership; Feedback.
   • Provider IP Ownership. All rights, title and interest, including intellectual property rights, copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to the Provider IP, including the SaaS, Documentation and all other materials related to CHI’s products, templates, processes, procedures, methods and/or personnel (collectively and including all copies regardless of whether provided on, before or after the Effective Date, the “CHI Materials”) are owned and shall continue to be owned by CHI. Nothing herein shall be construed as preventing CHI from continuing to utilize any templates, processes, procedures and/or methods in connection with work outside of this Agreement and/or work performed for other customers.
   • Customer Data Ownership. CHI acknowledges that, as between CHI and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to CHI a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for CHI to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to utilize Customer Data incorporated within the Aggregated Statistics.
   • Deliverables. Upon payment in full for the applicable Professional Services, CHI hereby grants Customer a license to use all Intellectual Property Rights in the output of the SaaS delivered to Customer and any deliverables specifically identified in the applicable Order Form (collectively the “Deliverables”), free of additional charge and on a global, non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.
   • Feedback. If Customer or any of its employees or contractors or affiliated third parties sends or transmits any communications or materials to CHI by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback“), CHI is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to CHI on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and CHI 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 CHI is not required to use any Feedback, and CHI may seek intellectual property protection for any features, functionality or components that may be based on and/or that were initiated by Feedback without any compensation or attribution to Customer.
8. Representations and Warranties.
   • CHI warrants that: (i) the SaaS will conform in all material respects with the service levels set forth in the applicable SLA, when accessed and used in accordance with the Documentation and the terms of the Order Form; and (ii) Professional Services will be performed in a professional, diligent, workmanlike manner in accordance with industry standards. The remedies set forth in this Agreement are Customer’s sole remedies and CHI’s sole liability under the limited warranty set forth in this Section 8(a). THE FOREGOING WARRANTY DOES NOT APPLY, AND CHI STRICTLY DISCLAIMS ALL WARRANTIES, WITH RESPECT TO ANY THIRD-PARTY PRODUCTS.
   • OTHER THAN AS SPECIFCIALLY PROVIDED IN SECTION 8(a) HEREIN, THE PROVIDER IP IS PROVIDED “AS IS” AND CHI HEREBY DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. CHI SPECIFICALLY 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 PRACTICE. CHI MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
   • CHI is not a law firm and does not provide legal advice. Customer should confer with a legal representative to obtain counsel on all legal aspects related to matters on which CHI provides Services. A legal representative should be sought to draft any legal document and/or agreements that may be required in connection with the Services. At Customer’s expense, CHI will provide Customer’s legal representative with non-legal advice and other information as reasonably requested by Customer’s legal representative to draft such documents and/or agreements. Customer is responsible for payment of any legal services it may obtain.
   • CUSTOMER DATA IS NOT PROVIDED AS IS. Inaccurate or incomplete information or data provided by Customer could have a material effect on CHI’s output, Services and conclusions related to the Services. Customer is solely responsible for the performance of its employees and agents, and for the correctness and completeness of all data and information provided to CHI. CHI will not be liable for any losses or damages arising in whole or in part from inaccurate, incomplete, or untimely data provided by Customer or any of Customer’s agents or affiliates.
   • In provision of its services, CHI may consider the applicable provisions of the regulations of US Customs and Border and relevant state statutes and regulations, and judicial and administrative interpretations thereof (collectively “Regulations”). These Regulations are subject to change and any such changes could affect the validity of CHI’s conclusions. CHI does not continue to monitor such Regulations, update its advice for subsequent changes or modifications to the Regulations, and/or to the judicial and administrative interpretations thereof, unless Customer separately engages CHI to do so by a mutually signed written contract, after such changes or modifications
   • Customer’s sole and exclusive remedy for breach of such warranty shall be that CHI will use commercially reasonable efforts (at no charge to Customer) to correct the reported non-conformity in accordance with the Service Level Agreement attached hereto, or if CHI determines such remedy to be commercially impracticable, CHI will allow Customer to terminate the applicable subscription term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Services that it has not received as of the date of the warranty claim. The limited warranty set forth in this Section shall not apply: (i) unless Customer makes a claim within 90 days of the date on which the condition giving rise to the claim first appeared and support it with documented evidence, (ii) if the error was caused by misuse, unauthorized modifications or third-party hardware, software.
   • CUSTOMER WARRANTS THAT IT HAS FULL POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND THAT IT HAS FULL AUTHORITY TO PROVIDE CHI WITH ALL CUSTOMER DATA AS REQUIRED FOR THE SERVICES.
9. Indemnification.
   • Provider Indemnification.
     • CHI shall indemnify, defend, and hold harmless Customer from and against any and all third-party claim, suit, action, or proceeding (“Third-Party Claim“) that the SaaS, or any use of the SasS in accordance with this Agreement, infringes or misappropriates such third party’s United States patent(s), copyright(s), or trade secret(s) (collectively, “Intellectual Property Rights”).
     • If a Third Party-Claim is made or appears possible, Customer agrees to permit CHI, at CHI’s sole discretion, to (A) modify or replace the Services, or any component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If CHI determines that neither alternative is reasonably available, CHI may terminate this Agreement and any active Engagement Contract, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer and provide a prorated refund to Customer for the portion of the Services not received.
     • CHI will have no obligation to indemnify Customer to the extent that any alleged infringement arises from: (A) access to or use of the Services in combination with data, software, hardware, equipment, or technology not provided by CHI or authorized by CHI in writing; (B) modifications to the Services or Provider IP not made by CHI; (C) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to Customer by or on behalf of CHI; (D)Customer Data or Third-Party Products; or (E) act, omission, or other matter described in Section 9(b)(i)-(iv).
   • Customer Indemnification. Customer shall indemnify, hold harmless, and, defend CHI from and against any Third-Party Claim(s) that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, and any Third-Party Claims based on Customer’s or any Authorized User’s (i) negligence or willful misconduct with respect to the Services or this Agreement; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment, or technology not provided by CHI or authorized by CHI in writing; and/or (iv) modifications to the Services not made by CHI or on CHI’s behalf.
   • Indemnification Procedures. The Party seeking indemnity (“Indemnitee”) must notify the other Party (“Indemnifying Party”) promptly and in writing of such Third-Party Claim, must cooperates fully with the Indemnifying Party in the defense of such Third Party Claim, and must allow the Indemnifying Party sole authority to control the defense and settlement of such Third-Party Claim, provided that the Indemnifying Party will not enter into any settlement which admits any liability on behalf of, or requires any payment by, the Indemnitee, without the Indemnitee’s written consent.
   • Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND CHI’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES OR ANY COMPONENT THEREOF INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
10. Limitations of Liability.

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES, OTHER THAN FOR THE ISSUANCE OF ANY APPLICABLE SERVICE CREDITS PURSUANT TO SECTION  (e) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (f) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER THE PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.

 IN NO EVENT WILL CHI’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO CHI UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL CHI BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY DAMAGES OR LIABILITY ARISING FROM SERVICES PERFORMED THAT ARE NOT SPECIFICALLY AGREED TO IN AN ORDER FORM.

11. Term and Termination.
    • Term. This Agreement, as updated from time to time, will govern any active Order Form entered into by the Parties. Termination of the last active Order Form between the Parties terminates this Agreement, subject to Section 11 (d) herein. .
    • Termination. In addition to any other express termination right set forth in this Agreement:
      • either Party may terminate any active Order Form, effective on written notice to the other Party, if the other Party 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
      • either Party may terminate any active Order Form, 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 and such proceeding is not dismissed within thirty (30) days; (C) makes or seeks to make a general assignment for the benefit of its creditors or similar disposition of its assets; 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.
    • Effect of Expiration or Termination. Upon expiration or earlier termination of any active Order Form, Customer shall have thirty (30) days to download all Customer Data from the SaaS.  Other than with respect to its download of Customer Data, upon termination of the last Order Form, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 6, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to CHI that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
    • Survival. This Section 11(d) and Sections 1, 5, 6, 7, 8(b), 9, 10, and 14 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
12. System Security. CHI will use commercially reasonable security measures and will host the SaaS only through cloud infrastructure providers that comply with ISO 27001/2 for data protection (or a successor standard providing equivalent or better security). CHI will maintain procedures in accordance with GDPR requirements for Customer Data that is identified by Customer in the applicable Order Form as requiring such compliance. If CHI’s server or network security is breached such that the confidentiality or accuracy of the SaaS or the Customer Data are compromised, CHI shall, upon discovering and verifying such breach, promptly inform Customer. In the event of a data breach, the parties agree to work together promptly and collaboratively to identify the source of the breach and institute commercially reasonable remedial measures.
13. Business Continuity. CHI will maintain reasonable redundant infrastructure to provide continuity of Services in the event of a disruption at its hosting location. CHI will maintain a switchover process for the SaaS and Customer Data using the same hosting provider. CHI will manage and maintain daily backups.
14. Miscellaneous.
    • Entire Agreement. Customer acknowledges and agrees that additional Terms of Service may be required to access the SaaS, including access by agents of Customer, these Terms of Service are hereby incorporated into and made part of this Agreement. This Agreement, together with the Order Form and any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of this Agreement, the Order Form, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Order Form, (ii) second, this Agreement, excluding its Exhibits; (iii) third, the Exhibits to this Agreement as of the Effective Date; and (iv)fourth, any other documents incorporated herein by reference, including but not limited to the Terms of Service.
    • Competition. Each Party hereby acknowledges that the other Party and its affiliates may be engaged in a variety of businesses. Each Party and its affiliates will be free to continue to engage in such businesses. Nothing herein shall be interpreted to prevent either Party or any of its affiliates from fully and freely competing with the other Party, provided that neither Party may utilize the Confidential Information of the other Party to do so, and each Party must continue to comply with the restrictions set forth herein, including but not limited to those in Sections 6 and 7. CHI will not be prevented or restricted from acting for other clients including clients in the same line of business as the Customer.
    • Notices. Unless otherwise set forth in this paragraph, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice“) must be in writing and notices to Customer will be addressed to the address set forth on the applicable Order Form (or to such other address that may be designated by the Customer by giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid) or email with acknowledged receipt. Except as otherwise provided in this Agreement, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section. Notices to CHI shall be delivered to 33057 Schoolcraft Rd. Livonia, MI 48150, with a CC to Attn: Legal Dept. at the same address.
    • Force Majeure. In no event shall CHI be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond CHI’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, epidemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
    • Amendment and Modification; Waiver. No amendment to or modification of this Agreement is effective unless it is in writing, references this Agreement, and is signed by an authorized representative of each Party.. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
    • Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Governing Law; Submission to Jurisdiction. This Agreement and all disputes between the Parties will be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Michigan. Any legal suit, action, or proceeding arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Michigan in each case located in the city of Detroit and County of Wayne, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
    • Assignment. Either Party may assign its rights and obligations under this Agreement and any Order Form in connection with a change in control of the Party, with written notice of such assignment to the other Party. Customer may not otherwise assign any of its rights or delegate any of its obligations hereunder or in connection with any Order Form, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of CHI. Any purported assignment or delegation in violation of this Section will be null and void. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
    • Export Regulation. Customer 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), that prohibit or restrict the export or re-export of the Services or any Customer Data outside the US.
    • Constraint on Use. Any advice, written or otherwise, provided by CHI to Customer is for the information and use of Customer only and may not be relied upon by any third party without the express written permission of CHI.
    • Non-Solicitation. Customer undertakes that it (including for this purpose any subsidiary or associated company) or any person connected with it will not, directly or indirectly, recruit as an employee or recruit or engage as an independent contractor any person employed by CHI for a period of two (2) years after CHI that employee last provided services to the Customer. Nothing in this section is intended to prevent any CHI employee responding to any generalized, non-targeted advertisement for employment.
    • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 6, Section 7 and/or, in the case of Customer, Section 2(c), may cause the other Party irreparable harm for which monetary damages may not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party may be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.