This CCH Portal Software License Agreement (this “Agreement”) is made by and between Wolters Kluwer Limited (“Wolters Kluwer”) and “Customer” (as defined below, and governs Customer’s use of the CCH Portal Software listed on the attached Order Form, effective as of the date of the attached Order Form.
This Agreement shall continue to govern all other CCH Portal Software that is listed on future Order Forms, regardless of whether such future Order Forms contain a copy of this Agreement, unless and until a future Order Form contains an updated written license agreement approved by Wolters Kluwer.
1. DEFINITIONS. In addition to other terms defined elsewhere in this Agreement, the following terms shall have the following meanings:
1.1. “Authorized User” refers solely to an individual for whom Customer has specifically purchased a User License. An Authorized User must be a full‐time employee or part‐time employee (but may be a contract/ temporary employee) working for Customer primarily at the Designated Office(s) for the purpose of assisting Customer in its day‐to‐day business activities (subject to the other terms and conditions of this Agreement, including, without limitation, subsection 2.3). An Authorized User does not acquire individual rights in the
CCH Portal Software other than the right to use such software on Customer’s behalf and pursuant to the rights granted to Customer and subject to the terms and conditions herein.
1.2. “Customer” shall refer to the person or entity that is the registered end user of the CCH Portal Software, as specified on the Order Form(s).
1.3. “Deliverables” means all services and materials, and the related benefits available from time‐to‐time, from, and as determined in the discretion of Wolters Kluwer with the CCH Portal Software (including, but not limited to: product support, Updates, electronic filing, and access to the Online Account(s) of Web‐based Applications).
1.4. “Designated Office(s)” means the site(s) and/or address(es) for which Customer licenses the CCH Portal
Software as identified on the Order Form(s).
1.5. “Desktop Application(s)” means software that is available on DVD or CD‐ROM for installation and execution on Customer’s own computers.
1.6. “Fees” means the fees payable by Customer to Wolters Kluwer under the Order Form(s) and this Agreement in Canadian currency.
1.7. “License(s)” means the licenses granted to Customer to use the Software as granted by the Order Form(s) and subsection 2.1 of this Agreement.
1.8. “Off‐Site License” means the right granted to a specific Authorized User from a specific Designated Office to use the CCH Portal software on mobile computers for use outside of such Designated Office. An Off‐Site License does not include the right to install the CCH Portal software at additional physical locations nor does it create additional Designated Offices.
1.9. “Online Account” means that authorized access into a Web‐based Application as established by
Wolters Kluwer for use by any particular Authorized User, and includes the controls, permissions and data unique to such user.
1.10. “Online Account Access Information” means the private access information (for example, username and password) used by each Authorized User of a Web‐based Application to access his/her individual Online Account.
1.11. “Order Form” means a purchase order written and approved by Wolters Kluwer for Customer’s acquisition of a License to the Software.
1.12. “CCH Portal Software” means the particular software title(s) and version(s) (including all accompanying code, files, databases, documentation, materials, modifications, revisions, optional features, enhancements, and Updates, if any) that are identified in Order Form(s) written and approved by Wolters Kluwer for Customer.
1.13. “Updates” mean all minor revisions, patches, fixes, and other improvements (version upgrades excluded) provided by Wolters Kluwer, in its sole discretion, to a particular version of the CCH Portal Software.
1.14. “User License” means the right granted by Wolters Kluwer to a particular individual to use the CCH Portal
Software, pursuant to the terms of this Agreement.
1.15. “Web‐based Application(s)” means software that is hosted on servers controlled by Wolters Kluwer and available for use by Customer via a web browser connected to the Internet. Certain terms and conditions within this Agreement (including, but not limited to, Section 6) may only apply to the use of Web‐based Application versions of the CCH Portal software, if so stated herein.
2. LICENSE, RESTRICTIONS & OWNERSHIP
2.1.1. Grant of License. Subject to the terms and conditions of the Agreement, Wolters Kluwer grants to Customer a limited, nontransferable, nonexclusive right and license to use, and to permit Authorized Users to use, the CCH Portal Software solely for the purpose of performing tax and accounting services without any further right to use, sublicense, distribute, transfer of transmit the CCH Portal Software. Customer must establish Authorized Users of the CCH Portal Software by purchasing a User License for each individual who will be using the CCH Portal Software.
2.1.2. Desktop Application. The License for use of a Desktop Application version of the CCH Portal Software must be registered to a particular Designated Office and may only be used by Authorized Users primarily working out of such Designated Office. Customer must pay the appropriate Fees to establish additional Designated Offices and to obtain User Licenses for Authorized Users who primarily operate out of such other locations.
2.1.3. Web‐based Applications. The License for use of a Web‐based Application version of the CCH Portal Software must be registered to a particular Designated Office and may only be used by Authorized Users primarily working out of such Designated Office. A Web‐based Application may be accessed at any location by an Authorized User through use of such Authorized User’s Online Account Access Information. Certain Web‐based Applications may include functionality that allows Customer’s clients to access Customer’s Online Account to view data specific to such client. Wolters Kluwer’s provision of such functionality shall be considered an implied license by Wolters Kluwer permitting Customer to provide such limited access to its clients.
2.1.4. Condition of License. The License(s) granted to Customer under this Agreement are conditioned upon Customer’s compliance with the terms of this Agreement and the Order Form(s), including, but not limited to, the timely payment of all applicable Fees.
2.2. Back‐up Copies. Customer may make a reasonable number of copies of the Desktop Application version of the CCH Portal Software solely for back‐up purposes. All copies of the CCH Portal Software, including (without limitation) translations, compilations and partial copies are governed by this Agreement.
2.3. Restrictions. Without a separate written Agreement with Wolters Kluwer, Customer must not do, or permit others to do, any of the following: (a) copy or modify the CCH Portal Software in any way, except as permitted in subsection 2.2; (b) remove or modify Wolters Kluwer’s copyright notices, trademark, logo, legend or other notice of ownership from any originals or copies of the CCH Portal Software; (c) attempt to view, read modify, reverse compile, reverse assemble, disassemble or print the CCH Portal Software’s source code or object code or other runtime objects or files distributed with the CCH Portal Software; (d) otherwise reverse engineer, modify or copy the look and feel, functionality or user interface of any portion of the CCH Portal Software; (e) rent, lease, distribute (or redistribute), provide or otherwise make available any CCH Portal Software, in any form, to any third party (including in any service bureau or similar environment), (f) share use or access of the CCH Portal Software with other practitioners (including outsourcers performing work for Customer) who are not in Customer’s practice, even if Customer shares office space or equipment; (g) share Online Account or Online Account Access Information (i.e., username and password) with third parties; (h) use the CCH Portal Software to process the data of clients of a third party (whether on an outsourcing, service bureau, or other basis); (i) install a copy of the Desktop Application version of the CCH Portal Software at an office location not registered and/or licensed as a Designated Office with Wolters Kluwer, or ( j) publish, distribute (or redistribute) or sell any document retrieved through the CCH Portal Software (even if in the public domain) to any individual or entity outside of Customer’s own firm, except for documents prepared for Customer’s clientele within the scope of the normal and intended use of the CCH Portal Software. In addition, Customer shall not violate or attempt to violate the security of Wolters Kluwer’s networks or servers, including (i) access data not intended for Customer or log into a server or account which Customer is not authorized to access; (ii) attempt to probe, scan or test the vulnerability of a system or network to breach security or authentication measures without proper written request and authorization; or (iii) attempt to interfere with service to any user, host or network, including by means of submitting a virus, overloading, flooding, spamming, mail bombing or crashing.
2.4. Unauthorized Acquisition. This Agreement expressly prohibits Customer from using the CCH Portal Software or Deliverables or any other software from Wolters Kluwer that has been improperly obtained and/or accessed. For purposes of illustration, but not limitation, examples include CCH Portal Software, Deliverables or other Wolters Kluwer software that: (a) is acquired from an unauthorized reseller or distributor; (b) is pirated, cracked or hacked, including through the use of Online Account Access Information established for use by another individual; (c) has been acquired with the intent or for the purpose to use in a manner that is illegal, fraudulent, in violation of this Agreement or otherwise outside the normal, stated and/or reasonably understood purpose of the CCH Portal Software; or (d) is acquired with the use of false or inaccurate statements and/or information (e.g., false name, contact information, or payment information, false declaration of the total number of end users; or false claim of ownership of multiple business locations with the intention of obtaining a multi‐office discount).
2.5. Reservation of Rights & Ownership of Developed Materials. Wolters Kluwer, and its applicable suppliers, retain all proprietary rights in that CCH Portal Software. Wolters Kluwer, and its applicable suppliers, reserve all patent, copyright, trade secret, trade name, trademark, and other proprietary rights related to the CCH Portal Software and Deliverables, which are protected under intellectual property laws and International Treaty Provisions. Unauthorized use of any of the CCH Portal Software shall result in cancellation of this Agreement as well as possible civil damages and criminal penalties. Customer is not permitted to use “WOLTERS KLUWER”, “CCH”, “CCH Portal” or any other trade or service marks of Wolters Kluwer or any of its affiliates in Customer’s announcements, advertising or other materials unless expressly agreed to in writing by an authorized representative of Wolters Kluwer. Customer acknowledges and agrees that Wolters Kluwer and its applicable suppliers’ retention of contractual intellectual property rights is an essential part of this Agreement. Wolters Kluwer and its suppliers (as applicable) shall own all rights in (i) any copy, translation, modification, adaptation or derivation of the CCH Portal Software, including any improvement or development thereof, whether or not developed by or for the Customer, and (ii) any suggestions, ideas, enhancement requests, feedback or recommendations provided by Customer.
3. FEES AND PAYMENT
3.1. Fees. Customer shall owe the Fees set forth on the Order Form(s) to Wolters Kluwer upon acceptance of such Order Form(s). Additional transaction fees, setup or other fees may be charged for Customer’s use of certain Deliverables or for certain Web‐based Applications. Customer agrees to pay such Fees for such Deliverables when due, in accordance with the terms of this Agreement and the applicable Order Form. The Order Form(s), published product descriptions or other documents that may be provided in connection with the Deliverables will contain information concerning applicable Fees. All Fees are due and payable upon receipt of the invoice by the Customer. ALL SALES ARE FINAL. Orders are non‐refundable and cannot be cancelled.
3.2. Taxes. All Fees are exclusive of any taxes, assessments or duties that may be assessed upon CCH Portal Software, License(s) or Deliverables granted under this Agreement, including, without limitation, sales, use, excise, value added, personal property, electronic/Internet commerce, export, import, withholding taxes, and third party fees as disclosed in the Order Form. Customer shall directly pay any such taxes assessed against it, and Customer shall promptly reimburse Wolters Kluwer for any such taxes payable or collectable by Wolters Kluwer. Such taxes do not include taxes based upon Wolters Kluwer’s income. Taxes are calculated on product plus additional charges, where applicable. Taxes include provincial and local sales or use taxes and are based upon the Customer’s deliver‐ to address. Tax exemption certificates, if any, must be submitted at the time of order.
4. TERM & TERMINATION
4.1. Subscription Period for Deliverables. Subject to the terms of subsections 4.2‐4.5, the License granted under this Agreement to use Desktop Application versions of the CCH Portal Software is perpetual. The License to use Web‐based Application versions of the CCH Portal Software shall be for the same term as the Deliverables provided with such CCH Portal Software expire. Access to the Deliverables, and thus the full benefit of this Agreement, shall be for a twelve‐ (12‐) month period commencing on the date of Wolters Kluwer’s acceptance of the Order Form for the particular CCH Portal Software that included such Deliverables; provided, however the term actually set forth on Customer’s Order Form for any such software title shall govern.
4.2. Expiration of Agreement. If the CCH Portal Software provided under this Agreement is not renewed in accordance with subsection 4.5, then this Agreement shall automatically expire and terminate on the one year anniversary of the access to the last set of Deliverables governed under this Agreement. The following sections shall survive the expiration of this Agreement under this subsection 4.2: subsections 5.3, 8.3, 8.4 and 8.5, and Sections 1, 2, 4, 7, 9, 10 and 11.
4.3. Termination of Agreement for Cause.
4.3.1. This Agreement, including both the License(s) and Deliverables provided hereunder, may be terminated by Wolters Kluwer for cause in its sole discretion, immediately upon notice to Customer if Customer fails to comply with any terms or conditions of this Agreement, or if any Fees remain unpaid for a period of thirty (30) days after invoicing or otherwise due.
4.3.2. Upon termination under subsection 4.3, Customer shall cease all further use of the CCH Portal Software and Deliverables and at Wolters Kluwer’s direction, either return to Wolters Kluwer, or confirm to Wolters Kluwer as destroyed, all copies of the CCH Portal Software. Upon request of Wolters Kluwer, Customer shall certify in writing to Wolters Kluwer that it has destroyed or returned all copies of the CCH Portal Software and that Customer and its Authorized Users are no longer using any applicable CCH Portal Software previously licensed hereunder.
4.3.3. Termination of this Agreement pursuant to this subsection 4.3 shall not affect: (a) Customer’s obligation to pay any fees due, or (b) any remedies available to Wolters Kluwer by law or equity.
4.3.4. The following sections shall survive termination of this Agreement under this subsection 4.3: subsections 2.3, 2.5, 4.3, 8.3, 8.4 and 8.5 and Sections 1, 9, 10 and 11. The survival provision in subsection 4.2 shall not apply to termination of this Agreement under this subsection 4.3.
4.4. Suspension of Access. Wolters Kluwer may suspend or terminate (where appropriate), as determined in Wolters Kluwer’s discretion, Customer’s use of, or otherwise modify, the CCH Portal Software or the Deliverables at any time in order to: (a) prevent damages to, or degradation of the integrity of, Wolters Kluwer’s Internet network; (b) comply with any law, regulation, court order, or other governmental request or order which requires immediate action; or (c) otherwise protect Wolters Kluwer from potential legal liability or harm to its business. Wolters Kluwer shall use commercially reasonable efforts to notify Customer of the reason(s) for such suspension or termination action as soon as reasonably practicable. In the event of a suspension, Wolters Kluwer shall promptly restore use of the CCH Portal Software to Customer as soon as the event giving rise to the suspension has been resolved as determined in Wolters Kluwer’s discretion. Nothing contained in this Agreement shall be construed to limit Wolters Kluwer’s actions or remedies or act as a waiver of Wolters Kluwer’s rights in any way with respect to any of the foregoing activities.
4.5. Automatic Renewals. Customer’s CCH Portal Software subscription will renew automatically unless it is cancelled or terminated in accordance with this Agreement, which requires that Customer provide
Wolters Kluwer’s customer service department with notice of Customer’s intent to cancel or terminate this Agreement at least thirty (30) days prior to the end of the then‐current subscription period. Customer must pay the fees set forth on a renewal invoice in advance of the then‐current renewal date. Wolters Kluwer shall use its commercially reasonable efforts to send renewal invoices to Customer sixty (60) days in advance of the then‐ current renewal date (completion of the then‐current one year subscription period). After each renewal, Customer will obtain an upgraded version of the CCH Portal Software that was renewed (when such version become available) and an additional term of support and Updates. Wolters Kluwer, in its discretion and for any reason, may decide not to renew Customer’s access to Deliverables and/or upgraded CCH Portal Software, in which case, Wolters Kluwer will make reasonable effort to notify Customer of this decision prior to the expiration of Customer’s then‐current term.
5. UPDATES & PRODUCT SUPPORT
5.1. Updates. Wolters Kluwer may, from time to time, provide Updates of the CCH Portal Software to Customer. However, supplying Updates shall be at Wolters Kluwer’s discretion and Wolters Kluwer shall have no obligation, express or implied, to provide Updates. Customer agrees to install all available Updates to the
CCH Portal Software and acknowledges that Customer’s failure to do so is at Customer’s sole risk. Wolters Kluwer reserves the right to charge additional license fees for any optional enhancements to existing CCH Portal Software which incorporate significant new features or functionality, as determined by Wolters Kluwer in its sole discretion.
5.2. Support. Wolters Kluwer may also offer, in its sole discretion, product support for the CCH Portal Software remotely from Wolters Kluwer’s offices. Support for prior year versions of the CCH Portal Software may be more limited and is only available in Wolters Kluwer’s discretion. Wolters Kluwer, at its sole discretion, may choose to only support the most recent version of any particular CCH Portal Software. Wolters Kluwer may also choose not to support software that is not installed on hardware that meets Wolters Kluwer’s standard published system requirements, as in effect from time to time. Customer agrees that Customer and/or Customer’s agents or employees will not place more than one call at any time to Wolters Kluwer’s telephone support number(s) regarding the same situation, support question, issue or matter. Wolters Kluwer reserves the right to terminate Customer’s access to product support if it determines that Customer is committing acts that are disruptive to the
service (e.g., placing multiple calls at one time; being verbally abusive to support representatives; providing Customer clients with access information to Wolters Kluwer customer support lines, etc.).
5.3. Data Retention. Wolters Kluwer will retain the data that Customer has properly submitted to Wolters Kluwer’s online servers for at least one year following the year in which Customer submitted any such data. Wolters Kluwer will then maintain the data in accordance with its internal business practices. It is Customer’s responsibility to back‐up onto Customer’s own local system all data and records that Customer submits to Wolters Kluwer’s network.
5.4. Miscellaneous. Updates and support shall only be available to Customer for the relevant term for Deliverables specified in subsection 4.1. Wolters Kluwer reserves the right to modify its update and support policies, procedures and fees from time to time.
6. WEB‐BASED APPLICATIONS
6.1. Protection of Account Access Information. For Web‐based Application versions of the CCH Portal Software, Wolters Kluwer will supply Customer with the means to create private Online Account Access Information for its Authorized users so that such Authorized Users may log into Customer’s Online Account within the CCH Portal Software. Customer’s Online Account is designed for private use and should only be accessed through Authorized User’s Online Account Access Information. Customer agrees to immediately notify Wolters Kluwer of any unauthorized use of Online Account Access Information or any other breach of security. Customer is fully responsible for the protection and confidentiality of its Authorized Users’ Online Account Access Information. Customer acknowledges and agrees that Customer is responsible for all use of the CCH Portal Software as made through Customer’s Online Account by any person and for insuring that all use of Customer’s Online Account is for authorized purposes only and complies fully with the provisions of this Agreement.
6.2. Additional Online Terms. Wolters Kluwer may post additional terms, conditions and/or policies (“Online Terms”) at the online location where Customer accesses any particular Web‐based Application version of the CCH Portal. Customer agrees to abide by any and all such Online Terms. To the extent that there is a conflict between this Agreement and any Online Terms, the terms of this Agreement shall govern unless explicitly stated otherwise by Wolters Kluwer in such Online Terms.
6.3. Internet Disclaimer. Customer acknowledges that the delivery systems used for Web‐based Applications, namely the Internet and the World Wide Web are known to be unpredictable in their performance and may, from time to time, impede access to the Web‐based Application(s) or other Deliverables or performance hereunder. Customer agrees that Wolters Kluwer is not in any way responsible for any such interference with Customer’s use of or access to such versions of the CCH Portal Software or the related Deliverables and Customer waives any and all claims against Wolters Kluwer in connection therewith.
7. CUSTOMER’S PROFESSIONAL RESPONSIBILITY AND WARRANTIES
7.1. Professional Responsibility. Customer understands, agrees and acknowledges that:
7.1.1. Use of the CCH Portal Software does not relieve Customer of responsibility for the preparation, content, accuracy, and review of tax returns prepared by Customer while using the CCH Portal Software or any other work product generated by Customer while using CCH Portal Software;
7.1.2. Customer will retrieve in a timely manner any electronic communications made available to Customer by Wolters Kluwer (for example, electronic filing transaction data such as acknowledgments and email messages in Customer’s mailbox); and
7.1.3. Customer is fully and solely responsible for: (a) selection of adequate and appropriate versions of the CCH Portal Software to satisfy Customer’s business needs and achieve Customer’s intended results; (b) use of the CCH Portal Software; (c) all results obtained from the CCH Portal Software; and (d) selecting, obtaining and maintaining all hardware, software, Internet service, and other equipment and utilities needed for access to and use of the CCH Portal Software, and for all costs associated therewith; and (e) selection, use of, and results obtained from any other programs, computer equipment or services used with the CCH Portal Software.
7.2. Customer’s Representations. Customer represents, warrants and covenants that:
7.2.1. Customer has full power and authority to enter into this Agreement and to perform its obligations hereunder, and that this Agreement has been duly authorized, executed and delivered by Customer and constitutes a valid and binding obligation of Customer;
7.2.2. Customer is licensing the CCH Portal Software solely for Customer’s own use and/or to provide services to Customer’s direct clients;
7.2.3. Customer will not use the CCH Portal Software to create a product, service or database that competes with Wolters Kluwer, the CCH Portal Software or Deliverables;
7.2.4. Customer will comply with all applicable rules, regulations and procedures of the province of Ontario;
7.2.5. Customer has all rights necessary to legally transmit any data or information to Wolters Kluwer’s networks or servers, and the possession, storage and use by Wolters Kluwer of such data or information will not infringe or misappropriate the intellectual property rights, or other rights, of any third party;
7.2.6. Customer shall be solely responsible for compliance with this Agreement by the Authorized Users;
7.2.7. Customer is not prohibited by a third party agreement from entering into the terms and conditions of this Agreement; and
7.2.8. Customer will not otherwise violate the rights of any third party while using CCH Portal Software.
7.3. Indemnification. Customer agrees to indemnify and hold harmless Wolters Kluwer, its employees, officers, directors and affiliates against any and all liability relating to: (a) Customer’s breach of any of its obligations, representations and/or warranties under this Agreement; or (b) except for claims for which Wolters Kluwer is liable under Section 8 below, Customer’s use of the CCH Portal Software, the Deliverables and/or third party software.
8. WOLTERS KLUWER WARRANTIES
8.1. Wolters Kluwer’s General Warranties. Wolters Kluwer represents and warrants that it has title to the CCH Portal Software and the right to grant Customer the rights granted hereunder. Customer’s sole and exclusive recourse and remedy for a breach of this warranty by Wolters Kluwer shall be the exercise of its indemnity rights under subsection 8.2 below.
8.2. Indemnification by Wolters Kluwer.
8.2.1. Subject to the other terms and conditions set forth herein, Wolters Kluwer agrees to defend Customer at Wolters Kluwer’s sole cost and indemnify Customer (by paying for damages finally awarded against Customer or any amounts payable in any settlement entered into by Customer in compliance with this Agreement) from and against any claims, demand, actions or proceedings by any third parties alleging that the CCH Portal Software hereunder infringes or violates any third party’s intellectual property rights; provided that (i) Wolters Kluwer is notified promptly in writing of the claim; (ii) Wolters Kluwer controls the defense, settlement and approval of the
claim; and (iii) Customer cooperates reasonably, assists and gives all necessary authority to Wolters Kluwer and reasonably required information in connection with the defense or settlement of the claim.
8.2.2. Wolters Kluwer Indemnity obligations under subsection 8.2.1 hereof shall not apply if and to the extent that they arise from or relate to: (i) the use of the CCH Portal Software in any form or substance other than as provided by Wolters Kluwer hereunder and as required to be used by Customer hereunder; (ii) the modification of the CCH Portal Software by Customer or any third party not authorized by writing by Wolters Kluwer to do so; (iii) the use of the CCH Portal Software in combination with any intellectual property, services, reports, documentation, hardware, software, data or technology not supplied by Wolters Kluwer or approved by Wolters Kluwer in writing; or (iv) any data or information , or other intellectual property, supplied by Customer or an Authorized User or third party (other than Wolters Kluwer).
8.2.3. If any CCH Portal Software becomes, or in Wolters Kluwer’s opinion, is likely to become, the subject of a third party claim covered by Wolters Kluwer’s indemnification obligations under subsection 8.2.1, then Wolters Kluwer may, in its sole discretion and at its sole cost and expense: (i) procure for Customer the right to continue using such CCH Portal Software; (ii) modify the infringing portion of the CCH Portal Software so as to render it non‐ infringing but still appropriate for its intended use under this Agreement; or (iii) replace the infringing portion of the CCH Portal Software with non‐infringing items with substantially similar functionality. If Wolters Kluwer reasonably determines that none of the foregoing is commercially practicable, then Wolters Kluwer may elect to terminate this Agreement and grant Customer a refund of all prepaid but unused portions of the Fees previously paid to Wolters Kluwer related to the CCH Portal Software in question. This Section 8.2.3 states Wolters Kluwer’s entire liability and the sole and exclusive remedy of Customer and any Authorized User for any claim of infringement.
8.3. Limited Warranty. EXCEPT AS STATED IN SUBSECTION 8.1, THE CCH Portal SOFTWARE, THE DELIVERABLE AND ANY THIRD PARTY SOFTWARE ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WOLTERS KLUWER DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON‐INFRINGEMENT, MERCHANTABIITY OR FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CUSTOMER BEARS THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE CCH Portal SOFTWARE AND THE DELIVERABLES. WOLTERS KLUWER DOES NOT WARRANT THAT THE CCH Portal SOFTWARE OR DELIVERABLES WILL BE UNINTERRUPTED OR THAT THE CCH Portal SOFTWARE WILL PROPERLY OPERATE ON ANY SPECIFIC OPERATING SYSTEM OR COMPUTER HARDWARE OR CONFIGURATONS OR BEFORE OR AFTER ANY SPECIFIC DATE OR TIME PERIOD. CUSTOMER SHALL BE SOLEY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE CCH Portal SOFTWARE AND WOLTERS KLUWER SHALL HAVE NO LIABILITY THEREFORE. NO EMPLOYEE OR AGENT OF WOLTERS KLUWER OR ANY OF ITS SUBSIDIARIES OF AFFILIATES IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT.
8.4. Limitation of Liability and Damages. NEITHER WOLTERS KLUWER NOT ITS SUPPLIERS OR LICENSORS SHALL HAVE ANY LIABILUTY TO CUSTOMER OR ANY THIRD PARTY (INCLUDING WITHOUT LIMITATIONS, ANY CONTRACTOR, AGENT OR AFFILIATE OF CUSTOMER) FOR ANY LOSS OF PROFITS, SALES, BUSINESS, DATA, OR OTHER INCIDENTAL, CONSEQUENTIAL, OR SPECIAL LOSS OR DAMAGE INCLUDING EXEMPLARY AND PUNITIVE DAMAGES, OF ANY KIND OR NATURE RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE CCH Portal SOFTWARE, AND/OR DELIVERABLES. THE TOTAL LIABILITY OF WOLTERS KLUWER AND ITS SUPPLIERS AND LICENSORS TO CUSTOMER OR ANY THIRD PARTY RESULTING FROM OR ARISING OUT OF THIS AGREEMENT, THE CCH Portal SOFTWARE, AND/OR DELIVERABLES FOR ANY AND ALL CLAIMS OR TYPES OF DAMAGES SHALL NOT EXCEED THE TOTAL FEES PAID OR PAYABLE HEREUNDER BY CUSTOMER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY. Wolters Kluwer is not an insurer with regard to performance of the CCH Portal Software or Deliverables. Customer agrees to assume the risk for: (a) all liabilities disclaimed by Wolters Kluwer contained herein, and (b) all alleged damages in excess of the amount of
the limited remedy provided hereunder. The allocations of liability in this subsection 8.4 represent the agreed, bargained‐for understanding of the parties and Wolters Kluwer compensation hereunder reflects such allocations. THE LIMITATIONS OF LIABILITY AND TYPES OF DAMAGES STATED IN THIS AGREEMENT ARE INTENDED BY THE PARTIES TO APPLY REGARDLESS OF THE FORM OF LAWSUIT OR CLAIM A PARTY MAY BRING, WHETHER IN TORT, CONTRACT OR OTHERWISE, AND REGARDLESS OF WHETHER ANY LIMITED REMEDY PROVIDED FOR IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE.
8.5. Third Party Products. Some documentation, products and the CCH Portal Software itself may contain code, content, features, functionality, and components that are provided by third parties. Furthermore, some
CCH Portal Software may require data and information from third parties in order to work properly. These third party products may or may not have additional licensing requirements independent of Wolters Kluwer. It is agreed that any additional licenses required to access said third party products will be negotiated solely between Customer and any third party unless otherwise specified by Wolters Kluwer. ANY WOLTERS KLUWER PROVIDED THIRD PARTY PRODUCTS SHALL BE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND BY WOLTERS KLUWER. ALL RIGHTS AND OBLIGATIONS WITH RESPECT TO SAID WOLTERS KLUWER PROVIDED THIRD PARTY PRODUCTS SHALL BE GOVERNED EXCLUSIVELY BY THE TERMS AND CONDITIONS OF AGREEMENTS PROVIDED BY SUPPLIERS OF SAID THIRD PARTY PRODUCTS AND CUSTOMER HEREBY RELEASES WOLTERS KLUWER FROM ALL LIABILITY AND RESPONSIBILITY WITH RESPECT THERETO.
9. DISPUTE RESOLUTION
9.1. Force Majeure. Except for payment obligations, neither party hereto shall be held liable for the failure to perform any obligation, or for the delay in performing any obligation, arising out of or connected with this Agreement if such failure or delay results from or is contributed to by any cause beyond the reasonable control of such party including, but not limited to, failures or delays caused by the act or omission of any governmental authority, fire, flood, or other event beyond such party’s reasonable control.
9.2. Licensing Audit. Upon Wolters Kluwer’s written request, Customer shall furnish Wolters Kluwer with a signed certificate verifying that Customer’s version of the CCH Portal Software is being used (a) pursuant to the terms of this Agreement, (b) only at the Designated Office(s) and (c) only by Authorized Users. At its expense, Wolters Kluwer may audit Customer’s compliance with the requirements of this Agreement. Any such audit shall be conducted during regular business hours at Customer’s facilities and shall not unreasonably interfere with Customer’s business activities. During such an audit Wolters Kluwer shall be allowed to interview any of Customer’s current and former employees and contractors. If Wolters Kluwer determines that Customer has not paid appropriate license or other fees for use of the CCH Portal Software or Deliverables at any location, Customer will be invoiced for such license and other fees, plus an additional 1.5% monthly interest rate, or the maximum lawful amount, of the unpaid fees (dating back to the time when such fees should have been paid). Wolters Kluwer shall recoup and Customer shall pay the reasonable cost of the audit if the audit detects unpaid fees that exceed five percent (5%) of the total fees actually paid for the period so audited. This right shall not limit or preclude any additional remedies available to Wolters Kluwer provided by law or equity.
9.3. Time Limit on Claims. Except for collection actions which may be brought by Wolters Kluwer any time and without limiting claims for indemnification hereunder, no action arising out of any claimed breach of this Agreement or transactions under this Agreement or transactions under this Agreement may be brought by either party more than one (1) year after the event which gives rise to the specific cause of action.
9.4. Jurisdiction. The parties hereto, and each of them, acknowledge that they have had the opportunity to be represented by independent counsel of their choice prior to entering this Agreement. Customer agrees that this Agreement shall be interpreted and enforced according to the laws of the province of Ontario.
9.5. Waiver of Jury Trial. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE TRANSACTIONS IT CONTEMPLATES.
9.6. Enforcement. Customer shall pay all of Wolters Kluwer’s attorney’s fees and costs and expenses incurred in the enforcement of any of the provisions of this Agreement.
9.7. Remedies. Customer acknowledges that the CCH Portal Software and other proprietary information of Wolters Kluwer are unique and that, in the event of any breach of this Agreement by Customer, Wolters Kluwer may not have an adequate remedy at law, and shall be entitled to see enforcement of its rights hereunder by an action for damages and/or specific performance and/or injunctive or other equitable relief without the necessity of proving actual damages. Unless specifically stated otherwise elsewhere in this Agreement, the various rights, options, elections, powers and remedies of a party or parties to this Agreement shall be construed as cumulative and no one of them exclusive of any others or of any legal or equitable remedy, which said party or parties might otherwise have in the event of breach or default in the terms hereof.
9.8. Notices. All notices, demands, consents or requests given by a party hereto shall be in writing and sent by delivery via a third party, nationally recognized overnight express mail service to either Customer’s billing address or Wolters Kluwer, 300 ‐ 00 Xxxxxxxx Xxx X, Xxxxxxx, XX X0X 0X0.
9.9. Enforceability. In the event that any of the provisions or portions thereof, of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions and portions thereof of this Agreement shall not be affected thereby.
9.10. Waiver. Wolters Kluwer’s failure or delay to require compliance with the conditions of this Agreement, or to exercise any right provided herein, shall not be deemed a waiver by Wolters Kluwer of such condition or right. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the parties, shall operate as a waiver or legally bar Wolters Kluwer from enforcing any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion.
10.1. Nonuse and Nondisclosure. Customer and Wolters Kluwer agree that during the term hereof and for four
(4) years after termination or expiration of this Agreement, or for such longer period as required by law, all information furnished or disclosed to the other pursuant to this Agreement, including, without limitation, the terms of Customer’s Order Form(s), proprietary information within the CCH Portal Software, and any discussions between the parties regarding other potential business relationships (the “Confidential Information”), shall be held in strict confidence by the other party, and shall not be used, made available or disclosed to any third party without the other party’s prior written consent. Each party also agrees to restrict dissemination of such Confidential Information to only those persons in their respective organizations or third party consultants or service providers who have a need to know such Confidential Information to perform the obligations under this Agreement. Each party will be deemed to have fulfilled its confidentiality obligations under this Section 10 if it affords the other party’s Confidential Information at least the same degree of care it takes in protecting its own Confidential Information from unauthorized disclosure (but in no event using less than a reasonable degree of care).
10.2. Exceptions. Notwithstanding the above restrictions, neither party shall have any obligation for any nonuse or nondisclosure of Confidential Information which (i) is now or subsequently enters the public domain through means other than disclosure of a party hereto in breach of the terms of this Agreement, (ii) is lawfully obtained from a third party without binder of secrecy, (iii) is independently developed by such party or is already lawfully in
the possession of the receiving party free of any obligation of confidence to the other party; or (iv) is required to be disclosed by law, by court order or by order of any government or administrative tribunal having jurisdiction over the recipient, provided that the recipient shall notify the disclosing party of any such requirement prior to disclosure (except where the disclosing party is being investigated for criminal activity by a province or federal agency and such agency specifically requests that prior disclosure not be made by the recipient) in order to afford such other party an opportunity to seek a protective order to prevent or limit disclosure, and the recipient will reasonably cooperate with the disclosing party’s efforts to obtain such protective order.
10.3. Expiration. Upon termination of this Agreement, both parties agree to destroy all copies of written Confidential Information, including, without limitation, all electronically stored copies. However, each party will be entitled to retain copies of the other party’s Confidential Information preserved or recorded or saved automatically to standard back‐up or archival systems. Moreover, Wolters Kluwer may retain a copy of such Confidential Information for the sole purpose of and to the extent necessary for Wolters Kluwer to comply with applicable and legal, regulatory, and/or reasonable internal archival policies and requirements (with such Confidential Information otherwise remaining subject to the terms and conditions of this Section 10). The disclosing party shall retain all proprietary rights to the information it discloses hereunder, regardless of the expiration of the obligations under this Section 10.
11.1. Entire Agreement. This Agreement, along with the Order Form(s) and any other terms referenced by this Agreement but otherwise published by Wolters Kluwer outside of this Agreement, constitutes the entire and exclusive agreement, understanding and representation, express or implied, between Customer and Wolters Kluwer with respect to the CCH Portal Software and Deliverables to be furnished hereunder; it is the final expression of that agreement and understanding, and it supersedes all prior agreements and communications between the parties (including all oral and written proposals). In the event of a conflict, this Agreement shall control, then the Order Form, and then any other terms provided by Wolters Kluwer, unless Wolters Kluwer explicitly acknowledges and upholds the particular conflict in such other document. Oral statements made by Wolters Kluwer’s sales representatives about the CCH Portal Software and/or Deliverables do not constitute warranties, shall not be relied on by Customer, and are not part of this Agreement. No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by Wolters Kluwer and Customer after reasonable opportunity to accept or reject such supplement, modification or amendment. Wolters Kluwer reserves the right to revise, in its discretion, this Agreement for future versions, Updates, renewals and/or upgrades of the CCH Portal Software. Some software published by Wolters Kluwer and/or distributed with the CCH Portal Software may require that Customer agree to a separate license or user agreement as a condition of its use, which will be provided specifically for that product (including, without limitation, software that is licensed from third parties).
11.2. Evaluation Copies of Software. If Customer is installing an evaluation version of any of the CCH Portal Software, then this Agreement will govern Customer’s use except as modified by this subsection 11.2. CCH Portal Software licensed to Customer for evaluation purposes shall only be used at one authorized location for a limited period of time. Certain functionality of such software may be disabled or restricted. Commercial use of such software is not authorized, is outside the scope of this Agreement, and is a violations of Canadian and international copyright laws. Any evaluation or demonstration copies of the CCH Portal Software must be removed from any and all Customer equipment upon the conclusion of the evaluation or demonstration and such copies must be destroyed or promptly returned to Wolters Kluwer. If Customer wishes to use the CCH Portal Software for commercial purposes then Customer must purchase a license from Wolters Kluwer. The following sections of this Agreement shall not apply to Customer’s use of an evaluation version of the CCH Portal Software: subsections 2.1, 2.2, 8.1 and 8.2, and Sections 3, 4 and 5.
11.3. Contact Information. Customer agrees to always provide Wolters Kluwer with Customer’s most current contact information, including Customer’s address, phone number, fax number and email address.
11.4. Modification/Replacement of CCH Portal Software. Wolters Kluwer reserves the right, in its sole discretion and without first consulting with Customer, to discontinue or modify the CCH Portal Software or Deliverables for any reason. Wolters Kluwer may choose to replace any discontinued product, in which case Wolters Kluwer will provide Customer with the opportunity to purchase such replacement product. If Customer purchases software that is discontinued prior to its shipment to Customer, Wolters Kluwer will provide Customer with the Fees paid toward such software.
11.5. Assignment. Neither the License(s) granted hereunder nor the CCH Portal Software may be sublicensed, assigned, sold, hypothecated, or transferred by Customer without the prior written consent of Wolters Kluwer. Any attempt to sublicense, assign or transfer any of the rights, duties or obligations under this Agreement without the prior written consent of Wolters Kluwer shall terminate the License(s) automatically and shall be void and of no effect. Customer agrees that Wolters Kluwer retention of these contractual and other legal rights is an essential part of this Agreement.
11.6. Delivery. Delivery of the Software to Customer shall take place when it becomes available to the entire client base of Wolters Kluwer. Customer acknowledges that the Software and all Updates thereof are pre‐written software or general application.