CROWE WEALTH MANAGEMENT SOFTWARE LICENSE AGREEMENT
IMPORTANT: PLEASE READ THIS LICENSE AGREEMENT CAREFULLY.
THIS AGREEMENT TO LICENSE CROWE WEALTH MANAGEMENT FOR MICROSOFT DYNAMICS 365 IS MADE BETWEEN CROWE LLP HAVING A PLACE OF BUSINESS AT ONE MID AMERICA PLAZA, SUITE 700, OAK BROOK, ILLINOIS 60181, AND ANY OF ITS ASSIGNS OR SUCCESSORS IN INTEREST ("CROWE" OR "LICENSOR") AND THE ENTITY WHOSE BEHALF YOU ARE EXECUTING THIS AGREEMENT ("YOU" OR "LICENSEE") EACH A "PARTY" AND TOGETHER THE "PARTIES." ACCESS TO THE LICENSED WORKS WILL BE PROVIDED VIA A WEBSITE ("WEBSITE"). YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND LICENSEE TO THE TERMS OF THIS AGREEMENT. BY CLICKING THE "I ACCEPT" BUTTON OR ACCESSING, USING OR INSTALLING ANY PART OF CROWE WEALTH MANAGEMENT FOR MICROSOFT DYNAMICS 365, LICENSEE EXPRESSLY AGREES TO AND CONSENTS TO BE BOUND BY ALL OF THE TERMS OF THIS LICENSE, WHICH GOVERNS LICENSEE'S USE OF THE SOFTWARE. IF LICENSEE DOES NOT HAVE THE AUTHORITY OR AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, THE BUTTON INDICATING "REJECT THE LICENSE AGREEMENT" MUST BE SELECTED. IF LICENSEE DOES NOT ACCEPT THE LICENSE AS INDICATED ABOVE, LICENSEE MAY NOT ACCESS, USE OR INSTALL ANY PART OF THE SOFTWARE. THIS AGREEMENT IS EFFECTIVE UPON CLICKING THE "I ACCEPT" BUTTON AFTER SIGNING INTO CROWE WEALTH MANAGEMENT FOR MICROSOFT DYNAMICS 365 ("EFFECTIVE DATE").
IF YOU ARE USING THE APPLICATION AS PART OF A FREE TRIAL, THIS AGREEMENT ALSO GOVERNS THE FREE TRIAL.
- Application. This Agreement constitutes a license from Crowe LLP for You to use the following software application: Wealth Management for Microsoft Dynamics 35 (the "Application") subject to the license grant in Paragraph 3.
- Ownership. You acknowledge and agree that pursuant to this Agreement Crowe LLP (hereinafter referred to as Crowe) is licensing to You and is not selling to You (a) the Application or (b) the online or printed versions of the user manual ("Documentation") related to the Application. You further acknowledge and agree that You shall not acquire any ownership interest in the Application and Documentation under this Agreement, and that Crowe reserves and shall retain the entire right, title and interest in and to the Application and Documentation and all intellectual property rights arising out of or relating to the Application and Documentation and any derivatives, except as expressly granted to You in this Agreement. You shall promptly notify Crowe if You become aware of any possible third-party infringement of the Crowe's intellectual property rights relating to the Application and Documentation and fully cooperate with Crowe in any legal action taken by Crowe against third parties to enforce its intellectual property rights. You shall safeguard the Application and Documentation (including all copies thereof) from infringement, misappropriation, theft, misuse or unauthorized access.
Grant of Use.
- License. If You use the Application on a free-trial basis, the "Trial Period" is thirty (30) days from Your acceptance date. Prior to the expiration of the Trial Period You will be given the opportunity to become a paying user of the Application and continue to use it. During the Trial Period, You have access to full functionality of the Application, but no support of the Application will be provided. At the end of the Trial Period the license key that was used to access the Application will terminate and the Application will no longer be available to You unless you are granted a regular license in accordance with either Paragraph 7 or 8 of this Agreement and pay all corresponding amounts. Subject to the terms and conditions of this Agreement, Crowe hereby grants You a non-exclusive, non-transferable, revocable license to use the Application, in executable form only. You may load the Application software license on no more than one CRM Organization instance (where the "CRM Organization", or customer relationship management organization, is defined as the database instance of a CRM deployment where licenses are assigned based on the unique name of the CRM Organization), and You may not exceed the maximum number of licensed users of the Application identified in the software license order placed by You. If you are an entity, You may permit Your personnel ("User(s)") to utilize the Application pursuant to Your right to use. In addition, Crowe may provide online or printed versions of the Documentation related to the Application.
- Passwords. You may be provided with a username and password, or other credentials, in order to access the Application (collectively, the "Login Credentials"). Crowe will treat anyone who uses Your Login Credentials as "You." You are responsible for maintaining the confidentiality and security of any Login Credentials, and You assume all responsibility for any sharing or other misuse of Login Credentials. Crowe will hold You responsible for the activities of a person using Your Login Credentials. You are required to maintain Your Login Credentials in strict confidence and notify Crowe immediately in writing if You suspect that anyone is using Your Login Credentials in an inappropriate manner.
- No Reverse Engineering. No User shall reverse engineer, decompile, disassemble the Application and will not otherwise attempt to deconstruct or discover the source code for the Application, publish the Application, Documentation, or permit others to copy, unbundle, sell, rent, lease, or sublicense the Application, Documentation, for any purpose other than internal reference purposes permitted by this Agreement, or work around any technical limitations in the Application. You agree that You will not copy, modify, display, rent, or unbundle the Application, nor will You reverse engineer, decompile, or disassemble the Application, and will not otherwise attempt to reconstruct or discover the source code for the Application.
- Intellectual Property. You acknowledge that Crowe is the exclusive owner of any and all intellectual property rights in and to the Application and any customizations provided by Crowe in connection with the Application and any derivatives thereof, including without limitation the structure, organization, design, algorithms, methods, templates, data models, data structures, logic flow, and screen displays associated with the Application. Crowe reserves all rights in the Application not expressly granted to You under the terms of this Agreement. Crowe may use ideas, concepts, methodologies, data, software, designs, utilities, tools, models, techniques, data, systems, or other know-how that it develops, owns or licenses ("Materials") in performing the services under this Agreement and providing the Application and Documentation. Crowe retains all intellectual property rights, including without limitation copyrights, in the Materials (including any improvements or knowledge developed while performing services performed under this Agreement), and in any documents or software compiled or created in connection with the services under this Agreement (but not Your data reflected in such documents). Upon timely payment and subject to the other terms of this Agreement, Client may use the Application and Documentation, as well as any Materials owned by Crowe included within the Application and Documentation, solely to the extent necessary and permitted under this Agreement.
- Support. Upon execution of an annual support agreement, described generally in this section, Crowe will provide You remote access to qualified Crowe personnel to assist You in problem resolution, during Business Hours. Such support services will be provided only pursuant to optional annual support contracts (each a "Support Agreement"), containing pre-billed time allotments at a reduced bill rate. Customer support will include general customer support, training, answering how-to questions, validating technical support issues, system upgrades, implementations, migration, and other services as more fully described in the Support Agreement.
- Maintenance and Updates. If Your Maintenance Fee is fully paid and You are not otherwise in default, then Crowe will provide You with Maintenance, which may include new versions, software updates and/or software enhancements to the Application that Crowe develops and makes generally available to Crowe's clients using the Application ("Maintenance" or "Updates"). All Updates will become part of the Application, and Crowe will be free to license the Updates to others either separately or as part of the Application. If You decide not to implement the Update, there may be additional charges for not implementing the Update and for implementing an Update after the release of the next version of the Application. Maintenance does not include any services needed for upgrading Your system(s), providing installation or migration services, or other services.
Subscription Licensing Option.
- The subscription fee for the Application is an annual fee which is billed on a monthly basis, also called a "monthly subscription," and there is an annual commitment (e.g., January 1, 2017 to December 31, 2017). The initial purchase date defines Your annual subscription anniversary date. Monthly subscriptions include maintenance as part of Your active monthly subscription.
- Crowe bills monthly license fees based on the number of enabled Microsoft Dynamics 365 licensed users. If You add license(s) after the 1st of the month, You will be charged for the additional licenses when the order is placed, and the charge for the following months will reflect Your new monthly subscription rate.
- You agree to pay Your subscription via credit card which will be charged on the 1st of each month.
- All paid subscription amounts are final and non‐refundable.
- After Your annual subscription renewal anniversary, Your subscription will automatically renew for another 12 months unless properly cancelled by You. Proper cancellation requires that Crowe receive written notice via email thirty (30) days prior to the date provided in Your subscription renewal notification. If you cancel your subscription prior to your subscription renewal anniversary the remaining months of your annual subscription are due upon cancellation.
- Any failure or neglect in timely paying an installment will result in the termination of the subscription, subject to a reinstatement fee (equal to 25% of the subscription fee) and payment of all interim installments. The reinstatement fee may be predicated upon the duration of the interruption and the degree to which upgrades will be necessary to update the Application to the then current version.
Perpetual Licensing Option.
- The Application is billed one-time, prior to Application delivery, also called a "perpetual license". Perpetual licenses are based on the number of enabled Microsoft Dynamics CRM users and include one (1) year of maintenance with your initial license purchase. The initial purchase date defines Your license maintenance anniversary date. If You add license(s) You will be charged for the additional licenses when the order is placed.
- After Your first annual maintenance anniversary date, You will be given the option of renewing maintenance, for a fee, for another twelve (12) months.
- You agree to pay for Your licenses and / or maintenance by check, credit card, or wire transfer.
- All paid license sales are final and non‐refundable.
You and Your Users are responsible for obtaining, installing, maintaining, and operating all computer hardware and software necessary to use any aspect of the Application, including:
- CRM Server Administration & Maintenance, including Windows and CRM Updates;
- SQL Server Administration & Maintenance, including Windows Updates, Service Packs;
- Database Backups and Disaster Recovery;
- SSL Certificate Administration;
- Network dependencies and connectivity;
- Active Directory Administration and CRM User Provisioning; and
- Outlook client support and internet connectivity to Microsoft Dynamics CRM.
- As a prerequisite to use of the Application, You are required to obtain and maintain throughout the term of this Agreement the requisite licenses from any third parties, including Microsoft. You shall comply with the use rights of such third party licenses, including those set forth in the Microsoft licensing guide for the version and type of Microsoft licenses granted by Microsoft. You agree to indemnify, defend and hold Crowe harmless from and against any claims by any party pertaining to such third party licenses and agree to pay all claims, liabilities, losses, expenses (including reasonable attorneys' fees), fines, penalties, taxes or damages asserted against Crowe as a result of any actual or alleged violation of a third party license. You may not settle any claim which may have a material adverse impact on Crowe without the prior written consent of Crowe.
- Crowe will not be responsible for any Errors (defined hereafter) that arise from the malfunction or failure of the hardware or software required to be implemented by You or Your Users in connection with Section 9(a).
- You and Your Users are responsible for selecting an operator who is qualified to operate the Application on equipment of You and Your Users and is familiar with the information, calculations, and reports that serve as the input and output of the Application. Crowe may charge additional fees if an operator seeks assistance with respect to such basic background information or any other matters not directly related to error arising in the operation of the Application.
- You agree that the licensing of the Application under this Agreement is not contingent upon the delivery of any future functionality or features nor is it dependent upon any oral or written statements made by Crowe with respect to future functionality or features.
- You represent and warrant that You will use the Application lawfully.
Disclaimer of Warranties.
- EACH USER EXPRESSLY AGREES THAT USE OF THE APPLICATION IS AT THE USER'S SOLE RISK. CROWE DOES NOT WARRANT THAT THE APPLICATION WILL BE ERROR FREE; NOR DOES CROWE MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM THE USE OF THE APPLICATION. THE APPLICATION IS DISTRIBUTED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, NON-INFRINGEMENT OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE APPLICATION OR OTHER CROWE SERVICES, OR WITH ANY TERMS OF THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE APPLICATION OR OTHER CROWE SERVICES.
- You acknowledge and agree that the information, software, products, services, or other materials included in or available through the Application may not be complete, and may include inaccuracies or errors, and may also be modified, discontinued, or delayed from time to time without notice.
- You acknowledge and agree that advice, information, products, services, or other materials received via the Application should not be relied upon for personal, medical, legal, business, financial, or other decisions and are not intended to replace the advice of appropriate and qualified professionals.
Limitation of Liability.
- CROWE SHALL NOT BE LIABLE FOR: (i) DAMAGES FOR LOSS OF USE, DATA, ACCOUNTS, REVENUES, OR PROFIT ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OR PERFORMANCE OF THE APPLICATION OR OTHER CROWE SERVICES, OR (ii) DAMAGES FOR THE DELAY OR INABILITY TO USE THE APPLICATION OR OTHER CROWE SERVICES.
- EXCEPT WHERE IT HAS BEEN JUDICIALLY DETERMINED THAT CROWE ACTED OR PROVIDED SERVICES WITH RECKLESSNESS OR WILLFUL MISCONDUCT, IN NO EVENT WILL CROWE'S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT EXCEED THE TOTAL FEES PAID TO CROWE UNDER THIS AGREEMENT IN THE IMMEDIATELY PREVIOUS TWELVE (12) MONTHS. THE LIMITATIONS OF LIABILITY CONTAINED IN THIS SECTION ARE INTENDED TO APPLY TO ANY ALLEGED OR ACTUAL CLAIM, LIABILITY OR DAMAGES, INCLUDING WITHOUT LIMITATION TO CLAIMS, LIABILITIES, OR DAMAGES BASED IN NEGLIGENCE OR OTHER TORT, CONTRACT, WARRANTY, INDEMNITY, FIDUCIARY PRINCIPLES, STATUTE OR COMMON LAW. THIS PROVISION SHALL SURVIVE TERMINATION OF THIS AGREEMENT, IN WHOLE OR IN PART.
- No Punitive or Consequential Damages. IN NO EVENT WILL CROWE OR AN OF ITS REPRENTATIVES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THIS AGREEMENT, THE APPLICATION OR SERVICES RELATED THERETO, OR OUT OF ANY BREACH OF ANY WARRANTY OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA, SAVINGS, PROFIT OR BUSINESS OPPORTUNITY, WHETHER IN AN ACTION BASED UPON CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACT OR OMISSION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE APPLICATION, EVEN IF CROWE HAD REASON TO KNOW OF THE POSSIBILITY OF SUCH DAMAGES.
Indemnification for Third-Party Claims.
- If a legal proceeding or other claim is brought against Crowe by a third party, You shall indemnify and hold Crowe and its personnel and subcontractors and suppliers harmless against all costs, fees, expenses, damages and liabilities, including without limitation attorney fees and any other fees or defense costs, associated with such third party claim (including without limitation any claim by You or a User), relating to or arising from this Agreement, the Application, the Documentation, or any services or work performed, or work product provided by Crowe that You use or disclose to others. This indemnification is intended to apply to the fullest extent allowed by law, regardless of the grounds or nature of any claim, liability, or damages asserted, including, without limitation, to claims, liability or damages based on principles of contract, negligence or other tort, indemnity, fiduciary duty, warranty, indemnity, computer virus, violation of third-party rights, damage to third-party hardware or software, infringement of any copyright, violation of any proprietary right, invasion of any privacy right, statute, or common law. This provision shall survive termination of this Agreement, in whole or in part.
- Crowe hereby agrees to defend, indemnify and hold You harmless from and against any and all claims, liabilities, losses, expenses (including reasonable attorneys' fees), fines, penalties, taxes or damages (collectively "Liabilities") asserted by a third party against You to the extent such Liabilities result from the infringement by the Application (excluding any third party software) of such third party's U.S. patents issued as of the date of the Agreement, trademarks or copyrights. The preceding indemnification shall not apply to any infringement to the extent arising out of (a) use of the Application other than in accordance with applicable Documentation or instructions supplied by Crowe or other than for Your internal business purposes; (b) any alteration, modification or revision of the Application not expressly agreed to in writing by Crowe; (c) any aspect performed according to Your specifications or incorporating Your intellectual property or rulesets into the Application; or (d) the combination of the Application with materials not supplied or approved in writing by Crowe. In case the Application or any portion thereof is held, or in Crowe's reasonable opinion is likely to be held, to constitute infringement, Crowe may, within a reasonable time, at its option either: (i) secure for You the right to continue the use of such infringing item; or (ii) replace, at Crowe's sole expense, such item with a substantially equivalent non-infringing item or modify such item so that it becomes non-infringing. In the event Crowe is, in its reasonable discretion, unable to perform either of the options described in clauses (i) or (ii) above, You shall return the allegedly infringing item to Crowe, and Crowe's sole liability shall be to refund to You the amount paid to Crowe for such item. The provisions of this paragraph state Crowe's entire liability and Your sole and exclusive remedy with respect to any infringement or claim of infringement.
- The Application, Documentation and information acquired by You and Your Users regarding the Application and Documentation under this Agreement are proprietary and confidential to Crowe and shall not be duplicated in any form for purposes other than as particularly specified and permitted in this Agreement. You and each of Your Users will safeguard the Application, Documentation and information acquired under this Agreement with the same care as if it were Your confidential information, but under no circumstances shall such care be less than a reasonable standard of care. Users may disclose Crowe Confidential Information to allow access to the Application by employees who are bound by a confidentiality undertaking no less stringent than contained in this Section 14 (Confidentiality).
- Crowe will treat the Confidential Information of Users under this Agreement as confidential and will use it only for purposes of performing services for such Users pursuant to this Agreement. Crowe will not use the Confidential Information of Users for any other purpose, will not use it directly or indirectly for its own benefit, and will not disclose it to others without the prior written consent of the User. The foregoing will not prohibit Crowe's use, disclosure, reproduction, or dissemination of the Confidential Information of Users, if it was lawfully in the possession of Crowe prior to disclosure of the information by the User, was or becomes available in the public domain or from a third party, other than through a violation of this Agreement. All the Confidential Information of a User will otherwise remain its property.
- Notwithstanding anything in this Agreement to the contrary, Crowe may disclose confidential information pursuant to any governmental, judicial, or administrative order, subpoena, discovery request, regulatory request or similar requirement, provided that Crowe, to the extent legally permissible and practicable, promptly notifies, You in writing of such demand for disclosure so that You, at your sole expense, may seek to make such disclosure subject to a protective order or other appropriate remedy to preserve the confidentiality of the confidential information. To the extent practicable, Crowe shall not oppose and shall cooperate at your cost with efforts by You with respect to any such request for a protective order or other relief. Notwithstanding the foregoing, if You are unable to obtain or do not seek a protective order and Crowe is legally requested or required to disclose such confidential information, disclosure of such confidential information may be made without liability.
- The legal remedies for breach of any provision of this Agreement may be inadequate and, therefore, agree that in the event of any actual or threatened breach of any provision of this Agreement by the receiving Party, and in addition to any other right or remedy which the disclosing Party may have, the disclosing Party shall be entitled to specific performance of such provision through injunctive or other equitable relief obtained from a court with appropriate equity jurisdiction, and the receiving Party hereby waives any requirement for any bond or similar requirement for such relief.
- Within thirty (30) days after this Agreement terminates, or at any time designated in writing by Crowe shall, at the election of You, either (a) return Your Confidential Information or (b) destroy Confidential Information of You or Yours Users.
- Force Majeure and Excusable Delays. Except for payment obligations, neither Party will be liable for any costs or damages due to nonperformance under this Agreement arising out of any cause or event not within the reasonable control of such Party and without fault or negligence. Such causes or events are sometimes being referred to as "Events of Force Majeure," and include, but are not limited to, acts of God, acts of the public enemy, acts of the United States of America, or any state, territory or political division of the United States of America, or of the District of Columbia, fires, floods, or other natural disaster, strikes or any other labor disputes, communication line failures, and/or freight embargoes. The Party suffering the Event of Force Majeure will give the other Party prompt notice of the occurrence of any Event of Force Majeure that may cause delay hereunder. The date of performance by a Party that gives such notice will be extended for a period not exceeding the period of delay caused by the Event of Force Majeure so identified. Notification of postponement or delay in accessing the Application due to Events of Force Majeure must be submitted in writing to the other Party and will include a new anticipated delivery date. All performance dates under this Agreement will be extended for a corresponding period.
Term and Termination.
- Unless the Application is being licensed on a trial basis, in which event it shall terminate thirty (30) days from the acceptance date in accordance with Paragraph 3(a), this Agreement will remain in effect unless terminated pursuant to this section.
- You may terminate this Agreement at any time upon thirty (30) days prior written notice to Crowe, provided that: (i) all fees due under this Agreement and all related agreements, including support agreements shall immediately become payable and shall be paid by You to Crowe immediately upon such notice; and (ii) You shall not be due any refund or credit for any amount paid under this Agreement or any related support agreements.
- Either Party may terminate this Agreement immediately without notice if the other files for bankruptcy protection or has an involuntary petition for bankruptcy filed against it, becomes unable to pay its bills, sells or transfers property to creditors, is forced into receivership, has a liquidator or receiver appointed by the court, or is a part of any other similar legal proceeding, provided that termination is permitted by law.
- Crowe may terminate this Agreement on notice to You if: (i) You fail to make payment of any amounts owed to Crowe when due pursuant to this Agreement, which failure is not cured within (15) fifteen days of the date of notice from Crowe to You that such amounts have not been paid; or (ii) immediately upon any other failure to comply with the terms of this Agreement.
- Crowe may terminate this Agreement for any reason, including for convenience, upon written notice of two hundred seventy (270) days prior to such termination date.
The expiration or termination of this Agreement, for any reason, shall not release either party from any liability to the other party, including any payment obligation that has already accrued hereunder. On the expiration or termination of this Agreement, for any reason, Licensee shall:
- immediately discontinue use of the Application;
- within ten (10) days, at Crowe's option and at Licensee's expense, return to Crowe or destroy all copies of the Application, documentation and all materials containing the Crowe's Confidential Information. This requirement applies to partial and complete copies in all forms, in all types of media and computer memory, and whether or not modified or merged into other materials; and
- within ten (10) days, certify in writing to Crowe that all such copies and materials have been returned or destroyed, and that Licensee's use of the Application has been discontinued.
- No Assignments. This Agreement may not be assigned or transferred, in whole or in part, by You without the prior written consent of Crowe, which consent may be withheld in Crowe's sole discretion. Nor does this this Agreement include any right to sublicense by You. Crowe shall have the right to assign this Agreement in its sole discretion. In the event that Crowe consents to permit You to assign this Agreement You must (a) guaranty the performance of this Agreement by the assignee; and (b) indemnify and hold Crowe harmless from and against any and all damages, claims, costs and expenses (including attorneys' fees) arising from or relating to such assignment or the performance or breach of this Agreement by the assignee. Any prohibited assignment, sublicense or transfer shall be null and void. This Agreement will be binding upon the successor and permitted assigns of the Parties. This provision will survive the assignment or termination of this Agreement.
- Relationship. The Parties are and will be independent contractors to one another, and nothing herein will be deemed to cause this Agreement to create an agency, partnership, or joint venture between the Parties. Nothing in this Agreement will be interpreted or construed as creating or establishing the relationship of employer and employee between You and either Crowe or any employee, agent, or subcontractor of Crowe. Crowe will bear sole responsibility for payment of compensation to your employees and subcontractors.
- Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the matters contained in this Agreement and supersedes all previous agreements, discussions and undertakings with respect this Agreement, and all matters relating to the Application and Documentation, whether written or oral.
- Non-Reliance. You acknowledge that (a) there are no representations or warranties other than those expressly set forth in this Agreement; and (b) You have not relied, nor will rely in respect of this Agreement or the transactions contemplated hereby, upon any document or written or oral information previously furnished to You, other than this Agreement, including the Exhibit to this Agreement. Crowe is not a fiduciary to You with respect to the negotiation, preparation or execution of this Agreement, and Crowe will not have or be subject to any liability to You or any other person resulting from the distribution to You, or Your use of, any information not contained in this Agreement.
- Waiver. No provision of this Agreement shall be deemed waived, unless such waiver shall be in writing and signed by the Party against which the waiver is sought to be enforced. The waiver shall not be construed to be a waiver of any succeeding breach of any such provision, a waiver of the provision itself, or a waiver of any other provisions of this Agreement. No delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege that it has or may have under this Agreement will operate as a waiver of any breach or default.
- Choice of Law. This Agreement, including any dispute arising out of or related to this Agreement, will be governed and construed in accordance with the laws of the State of Illinois applicable to agreements made and wholly performed in that state, without giving effect to your conflicts of laws rules to the extent those rules would require applying another jurisdiction's laws. The provisions of the United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act, however designated, are excluded and shall not apply to this Agreement or any transactions hereunder.
- Consent to Jurisdiction and Forum Selection. Subject to the section on Arbitration, all court actions or proceedings arising from or relating to this Agreement shall be tried and litigated exclusively in the state and federal courts located in Cook County, Illinois, and each Party hereby consents to personal jurisdiction in such courts. This choice of venue is intended to be mandatory and is not permissive in nature. Each Party waives any right it may have to assert the doctrine of forum non conveniens or similar argument, and each Party waives any objection to venue. Each Party stipulates that the state and federal courts in Cook County, Illinois, shall have personal jurisdiction and venue over each of them for the purpose of litigating any dispute, controversy, or proceeding arising out of or related to this Agreement.
- Arbitration. Any dispute, controversy or claim arising out of, relating to, or having any connection with this Agreement or the Parties' relationship generally, or the breach, termination, enforcement, interpretation or validity of this Agreement, including without limitation the determination of the scope or applicability of this agreement to arbitrate, will be determined by binding and confidential arbitration in Chicago, Illinois, unless the Parties agree in writing on a different location. Regardless of the amount in controversy, the arbitration will be administered by JAMS, Inc., pursuant to its Streamlined Arbitration Rules & Procedures. In the event of a conflict between such rules and this Agreement, this Agreement will control. The Parties will agree within a reasonable period of time after notice is made of instituting the arbitration process whether to use one or three arbitrators, and if the Parties cannot agree within fifteen (15) business days, the Parties will use a single arbitrator. If the Parties cannot agree upon arbitrator(s) within an additional fifteen (15) business days, the arbitrator(s) will be selected by JAMS. However, no arbitrator may be appointed unless and until he/she has agreed to these procedures. The arbitrator(s) must be a retired judge or an attorney with at least 15 years of experience in the field of commercial litigation. The arbitrator(s) will apply substantive law and may award injunctive relief or any other remedy available from a judge. The arbitrator(s) may authorize only limited discovery upon a showing of substantial need by the party seeking discovery. No forensic examination of respondent's electronic records will be permitted in any arbitration. All aspects of the arbitration will be treated by the Parties and the arbitrator as confidential. If it is the prevailing party on any issue or claim in the arbitration, the respondent will be awarded its reasonable attorney's fees and arbitration costs by the arbitrator(s). Otherwise, the Parties will share the costs of arbitration equally. In no event will claimant be awarded its attorney's fees or arbitration costs. The final award must be delivered by the arbitrator(s) within one year of the initial demand (or less) absent written agreement by the Parties to the contrary. None of the time limits in this Section are jurisdictional. Any award will be accompanied by a reasoned opinion describing the basis of the award. The arbitration will be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., and judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof.
- Jury Trial Waiver. IF ANY ARBITRATOR OR COURT RULES OR FINDS THAT THE ABOVE ARBITRATION PROVISION IS NOT ENFORCEABLE THEN FOR ALL DISPUTES RELATING TO OR ARISING BETWEEN THE PARTIES, THE PARTIES WAIVE A TRIAL BY JURY TO FACILITATE JUDICIAL RESOLUTION AND TO SAVE TIME AND EXPENSE. EACH PARTY AGREES IT HAS HAD THE OPPORTUNITY TO HAVE ITS LEGAL COUNSEL REVIEW THIS WAIVER. THIS WAIVER IS IRREVOCABLE, MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND APPLIES TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, OR MODIFICATIONS TO THIS AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS WRITTEN CONSENT TO A BENCH TRIAL WITHOUT A JURY.
- Severability. The provisions of this Agreement shall be severable and, if any provision of this Agreement is held or declared to be illegal, invalid, or unenforceable, such illegality, invalidity, or unenforceability will not affect any other provision hereof, and the remainder of this Agreement, disregarding such invalid portion, will continue in full force and effect as though such void provision had not been contained in it if the rights and obligations of the Parties contained in this Agreement are not materially prejudiced and the intentions of the Parties continue to be effective.
- Survival. Upon termination or expiration of this Agreement, all covenants and agreements contained in this Agreement that, by their terms or context, are intended to survive will continue in full force and effect.
- Headings. The headings and captions used in this Agreement are for convenience of reference only and will not in any way affect the interpretation of the provisions of this Agreement.
- No Third-Party Beneficiaries. This Agreement has been entered into for the sole benefit of Crowe and You and in no event will any third-party benefit or obligations be created by or through this Agreement.
- Time Limit on Claims. No action against Crowe arising from or relating this Agreement may be brought after the earlier of (a) one (1) year after the date on which occurred the act or omission alleged to have been the cause of the injury alleged; or (b) the expiration of the applicable statute of limitations or repose.
- Injunctive Relief. Injunctive relief is appropriate in enforcing the confidentiality or privacy provisions of this Agreement or if there is a threatened infringement of the intellectual property of either Party.
- Audit. Crowe has the right to audit You or Your Users upon reasonable written notice to confirm compliance with all terms of this Agreement.
- Crowe Affiliation. Crowe LLP is an independent member of Crowe International, a Swiss verein. Each member firm of Crowe International is a separate and independent legal entity. Crowe LLP and your affiliates are not responsible or liable for any acts or omissions of Crowe International or any other member of Crowe International and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe International or any other member of Crowe International. Crowe International does not render any professional services and does not have an ownership or partnership interest in Crowe LLP. Crowe International and your other member firms are not responsible or liable for any acts or omissions of Crowe LLP, and specifically disclaim any and all responsibility or liability for acts or omissions of Crowe LLP.
- Response to Legal Process. If Crowe is requested by You, any third-party, or any other person or entity, by subpoena, investigation, other legal process, or other request to produce documents or testimony pertaining to You or the Services, and Crowe is not named as a party in the proceeding, You will pay Crowe for your professional time, plus out of pocket expenses, costs, and fees, as well as reasonable attorney fees, incurred in responding to such request.
- Publicity, Publication, and Announcements. Neither Crowe nor You will, without prior written consent of the other, disclose the terms of this Agreement, except for disclosure required by law and required by governmental agencies and except for disclosure to professional advisors. You will not permit third-parties to access the Application without Crowe's prior written consent.
- Notices. Any notice or demand required or permitted to be given under this Agreement shall be in writing and shall be deemed effective immediately upon the receipt of the notice or demand, as evidenced by a written record of delivery from (a) a nationally recognized overnight courier for the next business day delivery, (b) certified or registered mail or (c) a signed delivery receipt in the case of delivery by hand. All notices shall be sent to Crowe at Crowe LLP, One Mid America Plaza, Suite 700, Oakbrook Terrace, IL 60181, Attention: Ryan Plourde. A copy shall be sent as well to Crowe LLP, One Mid America Plaza, Suite 700, Oakbrook Terrace, IL 60181, Attention: General Counsel. If to You at the address provided in Your registration of the Application.