Services Agreement

Last Updated: February 20, 2025

BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT OR ACCESSING OR USING ANY STEELHEAD OFFERINGS, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY STEELHEAD OFFERINGS. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU.

YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE CLIENT OR ENTITY YOU REPRESENT IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.

AGREEMENT

This SaaS Services Agreement (“Agreement”) is a contract entered into between Steelhead Technologies Inc. (“Company”) and the company or entity placing an order for, or accessing, any Company Services (“Client” or “you”).  This Agreement is made up of and incorporates the below terms and conditions and any attachments, addenda, or exhibits referenced in this Agreement, and any Order Forms that reference this Agreement.  There shall be no force or effect to any different terms of any related purchase order or similar form even if signed by the parties after the date hereof.

Modifications to this Agreement: From time to time, Company may modify this Agreement. Unless otherwise specified by Company, changes become effective for Client upon the next renewal term of the applicable Order Form after the modification or upon the effective date of a new Order Form after the updated version of this Agreement goes into effect. Company will use reasonable efforts to notify Client of the changes through email or posting on Company’s portal. Client may be required to click to accept or otherwise agree to the modified Agreement before renewing a Service or upon the effective date of a new Order Form, and in any event continued use of any Services after the updated version of this Agreement goes into effect will constitute Client’s acceptance of such updated version.

TERMS AND CONDITIONS

1. SAAS SERVICES, IMPLEMENTATION AND SUPPORT

1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Client and its Users the software-as-a-service offerings described in one or more Order Forms (the “Services”).  “User” means the persons designated and granted access to the Service by or on behalf of Client. Client shall be responsible for each User’s compliance with this Agreement and acts or omissions by any User shall be deemed acts by Client. As part of the registration process, Client will identify an administrative username and password for Client’s Company account.  Company reserves the right to refuse registration of or cancel passwords it deems inappropriate.

1.2 Upon Client’s written request, and in conjunction with the Services, Company may be requested to perform certain professional services as specifically described in an Order Form (“Professional Services”).

1.3 Through the Service, Client acknowledges that the Services interoperate with Third Party Integrations. “Third Party Integrations” means separate or third-party data, databases, services, offerings or applications that are independent from, but interoperate with the Service, and may be procured or used by Client. To use Third Party Integrations, Client must either obtain access to such Third Party Integrations from their respective third party providers or permit Company to obtain access on Client’s behalf.  Client acknowledges and agrees that Third Party Integrations may be subject to third party terms and conditions (“Third Party Terms”). If Third Party Terms are provided, Client’s use of the Third Party Integrations must comply with such Third Party Terms. Client takes sole responsibility for determining, obtaining and complying with all Third Party Terms. Company will have no responsibility for, and makes no representations and warranties regarding, (a) any Third Party Integrations or Client’s use of such Third Party Integrations, and (b) the Third Party Terms or Client’s compliance with such Third Party Terms.

1.4 As part of the Services, Client may offer its customers (“Customer(s)”) access to an online portal developed by Company (“Portal”) that permits the Customers access to the Portal to view the status of services, products, prices, quotes or other documentation (“Information”) between Client and Customer. The extent of Information available for Customer to view in the Portal is at the discretion of Client. Client may turn off a Customer’s access to the Portal at any time. If Client utilizes the Portal feature, Client acknowledges and agrees that Client is solely responsible for the Information that Customers may obtain by accessing the Portal and for monitoring the Information within the Portal. Company has no responsibility or liability to Client for any Customer’s access to or use or disclosure of Information obtained by accessing the Platform. In order for a Customer to access the Portal, the Customer must agree to Company’s Customer Portal Access Agreement.

2. PROFESSIONAL SERVICES

2.1 The Professional Services may include configuration, implementation, training, or other consultation related to the Services received by Client under an Order Form.

2.2 Company will perform the Professional Services for Client as set forth in each applicable Order Form, subject to the terms and conditions of this Agreement. Client acknowledges that timely access to applicable data, resources, personnel, equipment or facilities is necessary for the provision of Professional Services. Client agrees to provide such access and to reasonably cooperate with Company during a Professional Services project. Company will have no liability for any delay or deficiency to the extent resulting from Client’s breach of its obligations under this Section 2.

2.3 Company may use subcontractors to facilitate the Professional Services, and Company shall be responsible for the acts and omissions of such subcontractors relating to the Professional Services as though they were those of Company.

2.4 Unless otherwise agreed by Client in writing, Company shall provide all equipment, supplies, and personnel necessary or appropriate to perform the Professional Services.

2.5 Client acknowledges and agrees that (i) Company will not update its advice, recommendations, or work product after the completion of the Professional Services (including, for example, updates to reflect changes or modifications to applicable laws, or to related judicial and administrative interpretations, or for subsequent events or transactions), unless Client separately engages Company to do so in writing; and (ii) in performing the Professional Services, Company is entitled to base its conclusions and rely on the accuracy and completeness of the information, data, and assumptions that are furnished by or on behalf of Client, without any independent investigation or verification. Inaccuracy or incompleteness of any data, information, or assumptions furnished to Company could materially impact Company’s conclusions.

2.6 Client may submit written requests to Company to change the scope of Professional Services under an existing Order Form. Company will promptly notify Client if it believes that the requested change requires an adjustment to the Fees, schedule, assumptions or scope for the performance of the Professional Services. Neither party is bound by changes to an Order Form unless the parties have entered into an amendment to the Order Form. Client will be responsible for any consumption and other Fees for the Service that are generated as part of the Professional Services. 

3. RESTRICTIONS AND RESPONSIBILITIES

3.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Services or any software (except to the extent expressly permitted by Company or authorized within the Services); use the Services or any software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.   

3.2 Further, Client may not remove or export or allow the export or re-export of the Services, software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.  As defined in FAR section 2.101, the Service and Documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.”  Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement. 

3.3 Client represents, covenants, and warrants that Client will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) located at https://gosteelhead.com/terms-of-service and all applicable laws and regulations.  Client further represents, covenants and warrants that Client shall only provide Company Client Data in accordance with applicable law. “Client Data” means any information that is input into the Services or provided to enable the Services. Client hereby agrees to indemnify and hold harmless Company against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from Client’s use of Services in violation of the Policy or applicable law and regulations.  Although Company has no obligation to monitor Client’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing. 

3.4 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, laptops, tablets, scanners, phones, software, operating systems, networking, web servers, and the like (collectively, “Equipment”).  Client shall also be responsible for maintaining the physical security and cyber security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords), any Client Data output, and files, and for all uses of Client account or the Equipment with or without Client’s knowledge or consent.

3.5 Each party is responsible for complying with applicable laws, including applicable data protection legal requirements, for the purposes of this Agreement. Company shall implement and maintain commercially reasonable technical, administrative, and physical safeguards and security methods designed to prevent any unauthorized release, access, or disclosure of Client Data. Company may occasionally update, upgrade, change, or add safeguards and security methods as warranted in Company’s sole discretion, and Company will provide notice if Client needs to take action to facilitate continued interaction with the Services. Company’s use of Personal Information is governed by Company’s Privacy Policy available at https://gosteelhead.com/privacy-policy. “Personal Information” means any information that relates to an identified or identifiable natural person or that reasonably could be used to identify that person, or other data or information defined as personal information under applicable laws. Each party shall be responsible for informing its own representatives of the processing of their Personal Information as provided in this Agreement.  The parties agree to comply with Company’s Data Processing Agreement, which is incorporated by this reference and is located at https://gosteelhead.com/data-processing-agreement  (the “DPA”). In addition to the terms set forth in this Agreement, Company’s Terms of Service are incorporated into this Agreement by reference and are located at https://gosteelhead.com/terms-of-service (the “TOS”).  Client shall comply with the TOS as applicable to Client.

3.6 Client acknowledges and agrees that neither Company nor the Services stores Controlled Unclassified Information. “Controlled Unclassified Information” or “CUI” is defined as information the government creates or possesses, or that an entity creates or possesses for or on behalf of the government, that a law, regulation, or government-wide policy requires or permits an agency to handle using safeguarding or dissemination controls. Company offers no warranties or assurances that Client’s use of the Services will make Client compliant with applicable law as it relates to CUI. Client acknowledges and agrees that Client will only use the Services in a manner that is in compliance in all respects with all applicable United States, foreign, or international export control or trade laws, sanctions, regulations, rules or requirements that apply to Client or Client Data, including but not limited to regulations of NIST, the Cybersecurity Maturity Model Certification 2.0 program (“CMMC 2.0”), the U.S. International Traffic in Arms Regulations (“ITAR”), the U.S. Export Administration Regulations, all laws regarding classified data, and their respective foreign counterparts (collectively, “Export Laws”). Client acknowledges that Client, and not Company, is solely responsible for Client’s compliance with all applicable Export Laws.

4. CONFIDENTIALITY; PROPRIETARY RIGHTS

4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).  Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Services.  Proprietary Information of Client includes Client Data. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.  The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required to be disclosed by law. 

4.2 As between Client and Company, Client shall own all right, title and interest in and to the Client Data, as well as any data that is provided to Client as part of the Services as reports or other similar deliverables.  Company shall own and retain all right, title and interest in and to (a) the Services, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Professional Services or support, and (c) all intellectual property rights related to any of the foregoing.  Company may freely use and incorporate any suggestions, comments or other feedback about the Services voluntarily provided by Client or Users into the Services.  

4.3 Subject to the confidentiality obligations herein, Client hereby grants Company a royalty-free, fully-paid, irrevocable, non-exclusive license to use, process, display, copy and store the Client Data solely in order to: (i) to provide the Service or Professional Services to Client in accordance with this Agreement; (ii) to administer and make improvements to the Service; and (iii) to collect, create, and analyze anonymous information. Client acknowledges that the Service does not operate as an archive or file storage service. Client is solely responsible for the backup of Client Data. Client represents and warrants that it owns or has obtained the rights to all of the rights subsisting in the Client Data and Client has the right to provide Company the license granted herein to use such Client Data in accordance with this Agreement. Client shall have sole responsibility for the reliability, integrity, accuracy and quality of the Client Data and expressly releases Company from any and all liability arising from Company’s use of the Client Data as permitted in this Agreement. Additionally, Company shall not be liable for any damages arising from unauthorized access to Client Data due to Client’s failure to implement appropriate security measures or due to third-party’s breach of its security obligations.

4.4 Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom), and  Company will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, (ii) to train artificial intelligence, and (iii) disclose such data solely in aggregate or other anonymized form in connection with its business (collectively, the “Usage Data”).  Company shall own the Usage Data and shall be permitted to use the Usage Data for any lawful purpose. No rights or licenses are granted except as expressly set forth herein.  

5. PAYMENT OF FEES

5.1 ACH payment information will be collected upon execution of the applicable Order Form. By signing the Order Form, Client authorizes Company to collect payment. Client’s first payment shall be due on the Deployment Kickoff Date. “Deployment Kickoff Date” is the date mutually agreed between the parties in writing, email acceptable, for kickoff of the implementation and deployment of the Services. To the extent the Services enable Client to make payments of Service fees by credit or debit card (or associated card account numbers) (each a “Card Payment”), Client acknowledges and agrees that (i) all Card Payments are processed using a third party payment processing provider (“Payment Processor”), (ii) all Card Payments are subject to the applicable terms and conditions of the Payment Processor (collectively, “Payment Processor Agreement”), (iii) upon request, Company will inform Client of the relevant Payment Processor, (iv) Company does not receive, store, process or transmit any payment card data, and (v) by making any Card Payment, Client is agreeing to be bound by the Payment Processor Agreement then in effect. Client agrees and understands that the Payment Processor is solely liable and responsible for any Card Payment and Company has no responsibility or liability to Client for any Card Payments.

5.2 Client will pay Company the then applicable fees described in an Order Form for the Services and Professional Services in accordance with the terms therein (the “Fees”).  Payments may be made either Monthly via autopay via ACH or credit card, or Annually via ACH or check. Client shall provide and maintain valid payment information for this purpose.

(i) Monthly Subscription Payments: The monthly payment amount will be automatically debited monthly. Any purchase of additional functionality of the Service or increase in Client’s Users of the Service (“Additional Services”) will result in a corresponding pricing adjustment under the applicable Order Form. The Fees for the Additional Services shall be debited in full for the following months remaining in the current term of the Order Form. Fees for the Services and any Additional Services shall be consolidated into one monthly charge and the Additional Services shall be co-terminous with the Order Form to which they were added.        

(ii) Annual Subscription Payments: Annual payments are billed on the Deployment Kickoff Date. Annual payments are subject to Net 30 terms. Annual payments are eligible for a 15% discount. Any purchase for Additional Services will result in a corresponding pricing adjustment.  The Fees for the Additional Services shall be billed to Client at a pro-rated amount based on the number of months remaining in the annual subscription. Fees for the Additional Services are Net 30 and billed via ACH or check.  The Additional Services shall be co-terminous with the Order Form to which they were added.

5.3 Company reserves the right to change the Fees or applicable charges and to institute new charges and Fees upon each anniversary of the Deployment Kickoff Date, upon thirty (30) days prior notice to Client (which may be sent by email).

5.4 If Client believes that Company has billed Client incorrectly, Client must contact Company no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.  Inquiries should be directed to Company’s accounts payable department at ap@gosteelhead.com. Company shall provide written notice to Client in the event Client fails to timely pay the Fees. If Client has failed to pay the Fees within thirty (30) days of Company’s notice to Client, Company reserves the right to suspend the Services until payment is made in full.

5.5 Fees for any deployment charges shall be set forth in an applicable Order Form. Fees for deployment charges are invoiced on the Deployment Kickoff Date. Deployment charges can be paid by ACH, check, or credit card and are subject to Net 30 terms.

5.6 Unless otherwise specified in the applicable Order Form, Fees for Professional Services are invoiced subject to Net 30 terms upon execution of the Order Form. If any change in the scope of the Professional Services affects the time or cost of performance under the applicable Order Form, the parties must agree in writing to adjust the time and compensation to make the modification effective. Unless otherwise specified in the applicable Order Form, Client will reimburse Company, without markup, for reasonable expenses incurred by Company in the course of performing the Professional Services, including, for example, materials and expenses for preapproved travel.

5.7 Fees do not include Taxes. “Taxes” means taxes, levies, duties or similar governmental assessments of any nature, including, for example, any sales, use, GST, value-added, withholding, or similar taxes, whether domestic or foreign, or assessed by any jurisdiction, but excluding any taxes based on net income, property, or employees of Company. Client is responsible for paying all Taxes associated with its purchases hereunder, including without limitation all use or access of the Services by its Users. If Company has the legal obligation to pay or collect Taxes for which Client is responsible under this Section, Company will invoice Client and Client will pay that amount unless Client provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. Taxes will not be deducted from payments to Company, except as required by applicable law, in which case Client will increase the amount payable as necessary so that, after making all required deductions and withholdings, Company receives and retains (free from any liability for Taxes) an amount equal to the amount it would have received had no such deductions or withholdings been made. Upon Company’s request, Client will provide to Company its proof of withholding tax remittance to the respective tax authority. Where applicable, Client will provide its VAT/GST Registration Number(s) on the Order Form to confirm the business use of the purchased services. “VAT/GST Registration Number” means the value added tax/GST registration number of the business location(s) where Client is legally registered, and the ordered services are used for business use.   

6. TERM AND TERMINATION

6.1  Unless earlier terminated, this Agreement shall remain in effect for so long as an Order Form is in effect (“Term”).

6.2 In addition to any other remedies it may have, either party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Either party may immediately terminate this Agreement by giving written notice to the other party in the event of: (a) the liquidation or insolvency of the other party, (b) the appointment of a receiver or similar officer for the other party, (c) an assignment by the other party for the benefit of all or substantially all of its creditors, (d) entry by the other party into an agreement for the composition, extension, or readjustment of all or substantially all of its obligations, or (e) the filing of a meritorious petition in bankruptcy by or against the other party under any bankruptcy or debtors’ law for its relief or reorganization. Upon any termination of this Agreement: (i) all of Client’s rights under this Agreement immediately terminate (with the exception of those surviving termination, as described below); and (ii) Client remains liable for all unpaid Fees, charges, expenses under the applicable Order Form.

6.3 For a period of ten (10) days after the effective date of termination, Company will provide Client all Client Data within Company’s possession in .CSV or SQLite files format upon Client’s written request. After expiration of such ten (10) day period, Company shall have no further obligations with respect to Client Data and may destroy the Client Data at Company’s discretion.  All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, indemnification obligations, warranty disclaimers, use of data and ownership provisions, and limitations of liability.

6.4 In addition to any of its other rights or remedies (including, without limitation, any termination rights) set forth in this Agreement, Company reserves the right to suspend provision of the Services: (a) if Company deems such suspension necessary as a result of Client’s breach of Section 3 (Restrictions and Responsibilities); (b) if Company reasonably determines suspension is necessary to avoid material harm to Company or its customers, including if the Service is experiencing denial of service attacks, mail flooding, or other attacks or disruptions outside of Company’s control; or (c) as required by law or at the request of governmental entities. If Company suspends Client’s ability to access the Services, Client remains responsible for all Fees and charges for suspended Services, unless the suspension was due to Company’s error or omission. 

7. WARRANTY AND DISCLAIMER

Company warrants that: (a) the Service will operate in substantial conformity with the applicable technical documentation made available to Client after Client creates an account within the Service (“Documentation”); and (b) Professional Services will be provided in a professional and workmanlike manner and substantially in accordance with the specifications in the applicable Order Form. If Company is not able to correct any reported non-conformity with this warranty, either party may terminate the applicable Order Form, and Client, as its sole remedy, will be entitled to receive a refund of any prepaid unused Fees for the applicable Service or Professional Services purchased thereunder. This warranty will not apply if the error or non-conformance was caused by: (i) Client’s misuse of the Service; (ii) modifications to the Service by Client or any third party; (iii) Third Party Integrations; or (iv) any services, software, or hardware of Client or any of its third parties used by Client in connection with the Service. For Professional Services, this warranty will not apply unless Client provides written notice of a claim within thirty (30) days after the event that gave rise to the claim. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.  HOWEVER, COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES.  EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

8. INDEMNITY

8.1 Company shall defend Client from claims by third parties brought against Client alleging that the Service infringes any United States patent or any copyright or misappropriation of any trade secret and shall indemnify and hold harmless Client from and against any damages and costs of such third party awarded against Client by a final court judgment or agreed in settlement by Company resulting from such claims. Company will not be responsible for any settlement it does not approve in writing.  The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Company, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement.  If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Company to be infringing, Company may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate the applicable Order Form and this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused Fees for the Service.

8.2 Client shall indemnify, hold harmless, and defend Company and its affiliates and their respective directors, officers, and employees against losses, liabilities, damages, fines, penalties, costs, expenses and/or fees (including reasonable attorneys’ fees) incurred as a result of a third-party demand, claim, or action that (1) Client’s Client Data or unauthorized use of the Service infringes the patent, copyright, trademark, trade secret or other intellectual property right of a third party; (2) results from Client’s breach of its obligations under this Agreement; or (3) results from Client’s violation of applicable laws.

8.3 The obligations of a party (“Indemnitor”) to defend or indemnify the other (“Indemnitee”) under this Section 8 (Indemnity) are subject to the following: (i) the Indemnitee must promptly inform the Indemnitor in writing of any claim or action within the scope of the Indemnitor’s defense or indemnity obligations set forth in this Agreement, provided that Indemnitor shall not be excused from its indemnity obligations for failure to provide prompt notice except to the extent that the Indemnitor is prejudiced by any such failure to provide prompt notice; (ii) the Indemnitor must be given exclusive control of the defense of such claim and all negotiations relating to its settlement, except that the Indemnitor may not, without Indemnitee’s approval, (A) make any admissions on the Indemnitee’s behalf or (B) settle any such claim unless the settlement unconditionally releases the Indemnitee of all liability; and (iii) the Indemnitee must reasonably assist the Indemnitor in all necessary respects in connection with the defense of the claim, at the Indemnitor’s expense. The Indemnitee may participate in the defense of the claim at its sole cost and expense.

8.4 This Section 8 (Indemnity) states the Indemnitor’s sole liability and the Indemnitee’s exclusive remedy with respect to infringement and any other type of third-party claim or action described in this Section. For the sake of clarity, this Section does not cover any claims from a tax authority based on any error in availability, accuracy, or timeliness of any Service, including, for example, any tax calculation or determination, tax return, filing, or compliance document.

9. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, COMPANY AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COMPANY’S REASONABLE CONTROL including, but not limited to, acts of God, embargo, natural disasters, war, labor disputes, Internet disruptions, or intervention of any government authority; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO COMPANY FOR THE SERVICES OR PROFESSIONAL SERVICES UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

10. USE OF CLIENT NAME AND LOGOS

Client grants Company permission to use the name, logo, and status as a customer of the Client in marketing materials for Company. If requested, Company will update or remove logos at Client’s request.

11. MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.  This Agreement is not assignable, transferable or sublicensable by Client except with Company’s prior written consent.  Company may transfer and assign any of its rights and obligations under this Agreement without consent.  This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.  No agency, partnership, joint venture, or employment is created as a result of this Agreement and Client does not have any authority of any kind to bind Company in any respect whatsoever.  In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.  All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.  This Agreement shall be governed by the laws of the State of Michigan, without giving effect to choice of law principles.  The parties agree that Michigan is a reasonably convenient place for the trial of cases arising under this Agreement. Agreement to Michigan as the forum for litigation was not obtained by misrepresentation, duress, the abuse of economic power, or other unconscionable means.