CROWE TAX RISK ASSESSMENT & CONTROL SOLUTION

LICENSE AGREEMENT

This Agreement to License Crowe Tax Risk Assessment & Control Solution (“C-TRAC®”) web-based system (the “License”) is made between Crowe LLP having a place of business at 225 W Wacker Drive, Suite 2600, Chicago, IL 60654, and any of its assigns or successors in interest (“Crowe”) and You (“Licensee”) each a "Party" and together the "Parties.". Access to the Licensed Works will be provided via a web site (the “Web Site”), which will be provided upon execution of this Agreement.  This Agreement is effective upon clicking the “I Accept” button after signing into the C-TRAC system (“Effective Date”).  Crowe and Licensee, intending to be legally bound, agree to all of the provisions of this License as of the Effective Date.

WHEREAS, Crowe has developed the patent pending C-TRAC® solution (collectively with related documentation, revisions, error corrections, enhancements, and updates thereof, the "Licensed Works");

WHEREAS Licensee desires to desires to license from Crowe such Licensed Works, under all on the terms and conditions contained in this License;

THEREFORE, in consideration of the foregoing premises and the mutual promises and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties to this License mutually agree as set forth below.

  1. DEFINITIONS.

a.         “License Term” means the period, set forth in the Term and Termination section, during which the License shall be effective, subject to the other terms of this License.

b.         “IP Rights” means all Crowe's rights under which Crowe is authorized to grant the License, including patent rights, copyrights, trade secret rights, sui generis database rights, and all other intellectual and industrial property rights.

c.         “Territory” means the United States of America.

d.         “Use” means to: (1) access from a workstation all or any portion of the Licensed Works for the purpose of (a) processing instructions or statements contained in the Licensed Works; and (b) understanding the contents of such machine readable material; and (ii) to access, copy and/or print any Licensed Works documentation provided by Crowe in connection with the Use of the Licensed Works object code.  All Use must be wholly within the Territory.  No such Use may be by, on behalf of, or for the benefit of anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders.

e.         “Users” means any Licensee personnel, contractor, client, or subcontractor that the Licensee authorizes to Use the Licensed Works. 

  1. LICENSE.

Subject to all the terms and conditions of this License, Crowe grants to Licensee, and Licensee accepts, a non-exclusive, non-transferable, non-assignable, revocable right to use the Licensed Works in object code form only during the License term in the United States at the site of business solely for Licensee's internal business purposes, and only as part of the Licensed Works and not for transfer, resale or sublicensing in compliance with the terms of this License, and all applicable laws and regulations (the “License”).  Use of any source code delivered to Licensee is subject to the terms and conditions of this License. All rights not expressly granted to Licensee in this License shall at all times remain with Crowe.

  1. LICENSEE’S RESPONSIBILITIES.

a.         Licensee hereby represents and warrants that it has all requisite power and authority to enter into and fully perform its obligations under this License; the execution, delivery and performance of this License and the consummation of the transactions contemplated hereby have been duly and properly authorized by all requisite action on the part of Licensee; this License has been duly executed by Licensee and is an enforceable obligation of Licensee. 

b.         Licensee acknowledges and agrees that Licensed Works are not designed to detect fraud, errors, irregularities, malfeasance, or defalcation.  Licensee acknowledges and agrees that use of Licensed Works cannot and shall not guarantee that fraud, errors, irregularities, malfeasance, or defalcation will not occur and shall not be expected to or relied upon to detect fraud, errors, irregularities, malfeasance, or defalcation that may exist. 

c.         In performing obligations under this License, Licensee shall comply with and shall cause any User that assists in performance under this License to comply with all applicable laws, ordinances, rules, requirements and regulations, whether federal, state, local or foreign.  Licensee represents and warrants that it is properly licensed by all applicable governmental or other agencies as may be necessary to use Licensed Works. 

d.         Licensee will be responsible for providing the initial list of Users to be set up by Crowe.  After the initial set up, Licensee will be responsible for maintaining and updating its list of Users of the Licensed Works, and shall do so through the web interface.  Managing access control for the Licensed Works is the exclusive responsibility of Licensee after the initial setup of Users is completed by Crowe.  Licensee will promptly inform Crowe of any changes in Users which would necessitate the need for Crowe to disable such User’s access to Licensed Works

e.          Licensee and Users will abide by the Acceptable Use Policy (attached) and Crowe Website Use Policy which appears as part of the Sign In process to the Licensed Works.

f.          Licensee agrees that Users to whom it provides access to Licensed Works agree to the same restrictions and conditions that apply to Licensee with respect to Use.

g.         Licensee is liable for any and all acts or omissions committed by Users. Users do not acquire any rights under this License.

h.         Licensee will preserve Crowe’s copyright or trademark notices on any and all web pages and forms; such notices will not be removed wherever they appear in either printed or electronic form.

i.           Licensee and Users will only use a personal computer/laptop with the following minimum capabilities:

  1. CROWE’S RESPONSIBILITIES. 

a.         Crowe represents that the title to the Licensed Works shall be good; its transfer rightful; and Licensed Works shall be free and clear of any security interest, lien, or other encumbrance.  Crowe hereby represents and warrants that it has all requisite power and authority to enter into and fully perform its obligations under this License; the execution, delivery and performance of this License and the consummation of the transactions contemplated hereby have been duly and properly authorized by all requisite action on the part of Crowe; and is an enforceable obligation of Crowe.

  1. DISCLAIMER OF WARRANTIES. 

ALL RIGHTS NOT EXPRESSLY GRANTED TO LICENSEE SHALL REMAIN AT ALL TIMES WITH CROWE. 

a.         THE LICENSED WORKS ARE PROVIDED “AS IS,” “WITH ALL FAULTS,” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, OR STATUTORY.  CROWE EXPRESSLY DISCLAIMS ALL OTHER EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COMPLETENESS, CURRENTNESS, ACCURACY, NON-INFRINGEMENT OR THOSE ARISING BY STATUTE OR OTHERWISE IN LAW FROM A COURSE OF DEALING OR USE OR TRADE.  LICENSEE ASSUMES FULL RESPONSIBILITY FOR THE SELECTION OF THE LICENSED WORKS TO ACHIEVE INTENDED RESULTS AND FOR THE CONFIGURATION USE AND RESULTS OBTAINED FROM THE LICENSED WORKS.  Specifically, Crowe is not responsible for fees to defend any tax audits, penalties, interest or any other costs associated from use of the LICENSED works.   CROWE DOES NOT WARRANT THE PERFORMANCE OF THE LICENSED WORKS OR RESULTS LICENSEE MAY OBTAIN BY USING THE LICENSED WORKS, SUCH FILES, OR THE RESULTING DOCUMENTATION OR FORMS.  CROWE DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE LICENSED WORKS WILL MEET LICENSEE’S REQUIREMENTS OR THAT THE OPERATION OF THE LICENSED WORKS WILL BE UNINTERRUPTED OR ERROR FREE, VIRUS FREE, OR CONTINUOUSLY AVAILABLE. CROWE MAKES NO WARRANTY REGARDING LINKS TO THIRD-PARTY WEBSITES OR ANY THIRD-PARTY SOFTWARE or services THAT MAY BE INCLUDED WITH THE LICENSED WORKS. USE OR ACCESS TO SUCH THIRD-PARTY LINKS, SOFTWARE, OR WEBSITES IS DONE SO ENTIRELY AT LICENSEE’S OWN RISK.  

b.         ANY THIRD PARTY SOFTWARE OR HARDWARE PROVIDED BY CROWE TO OR FOR LICENSEE, OR INCLUDED IN THE LICENSED WORKS UNDER THIS LICENSE IS PROVIDED “AS IS.”  NEITHER CROWE NOR ANY THIRD PARTY MAKES ANY WARRANTY UNDER THIS LICENSE WITH RESPECT TO ANY THIRD PARTY SOFTWARE OR HARDWARE.

  1. RESTRICTIONS ON USE 

 

a.         The Licensed Works will be Used only at the site of Licensee’s business in the United States and only for Licensee's internal operations for the processing of its own data. 

b.         Licensee shall under no circumstances assign, transfer, disclose, sub-license, or allow or permit any other person within its reasonable control (including without limitation, any User) to assign, transfer, disclose, or sub-license the Licensed Works (in any format) or the License to any other person or entity, and any purported attempt to do so shall be deemed to be a material breach of this License. Further, if Licensee obtains knowledge of such prohibited assignment, transfer, disclosure, or sub-license any person within its reasonable control (whether by knowledge of such person’s activities or by notice from Crowe), Licensee shall prevent or remedy such prohibited activity.  Licensee will not take any action that jeopardizes Crowe’s proprietary rights or acquire any right in the Licensed Works except as outlined as a permitted Use.  Licensee shall not allow any third party to have access to the Licensed Works without Crowe’s prior written consent.  Licensee will not remove or destroy any proprietary markings of Crowe.  Under no circumstance will Licensee translate, reverse engineer, decompile, recompile, update, or modify all or any part of the Licensed Works or merge the Licensed Works into any other software or electronic media (or allow others to do so).  The obligations of this Section will survive the termination of this License or any provision thereof.

  1. NO ASSIGNMENT.

This License may not be assigned or transferred by Licensee.  This License does not include the right to sublicense.  However, if Licensee acquires or merges with an entity, Licensee, if it survives such merger or acquisition, or such new entity, will be allowed to use such License by entering into good faith negotiations with Crowe to include the acquired or merged entity under the terms of this License and to revise terms such as, but not limited to, pricing, scope, and restrictions

  1. OWNERSHIP.

As between the parties, Licensee acknowledges that the Licensed Works constitutes trade secret and proprietary information of Crowe.  Crowe retains all rights, title and interest in and to the Licensed Works and all IP Rights, including any derivations, reproductions or modifications by Crowe.  The License does not constitute a sale of the Licensed Works or any portion or copy of it. Licensee acknowledges and agrees that this License in no way will be construed to provide Licensee an implied license to the proprietary information of Crowe contained within the Licensed Works(s).  Notwithstanding the foregoing, the Parties agree that any data stored within or through Licensee’s use of the Licensed Works, including any data structures or relationships, is Licensee’s Confidential Information (as defined in the Confidentiality section herein), and is and will remain the sole and exclusive property of Licensee.

  1. NO TRADEMARK RIGHTS. 

 

No license, right or interest in any Crowe’s (or Crowe’s licensors’, if any,) trademark, trade name, or service mark is granted.  Any rights not explicitly granted to Licensee are expressly reserved by and to Crowe.

  1. USE BY THIRD PARTIES.

Licensee may allow one or more third parties on a need to know basis (“Authorized Third Party”) to use the Licensed Works but only for Licensee’s internal business operations and activities, provided that Licensee will be liable for any and all acts or omissions committed by such Authorized Third Parties, subject to the other restrictions of this License.

 

  1. RESPONSIBILITY FOR HARDWARE. 

 

Licensee is responsible for providing appropriate hardware and supporting operating system on which to run the Licensed Works.  Crowe makes no representation or warranty that the Licensed Works will be interoperable with, or appropriately function with, any hardware, operating system, or other software that is possessed or used by Licensee.

 

  1. NON-DISCLOSURE OF CONFIDENTIAL INFORMATION.
  1. The terms and conditions of this License, along with any information relating to or regarding the Licensed Works (“Confidential Information”) are confidential and will not be disclosed, orally, in writing, or otherwise by Licensee to any third party without Crowe’s prior written consent.  Crowe represents and Licensee acknowledges that the Licensed Works contain valuable proprietary information and trade secrets, are confidential, and Licensee will protect the Licensed Works as Confidential Information with at least the same degree of care and confidentiality, but not less than a reasonable standard of care, which Licensee uses for its information that it considers confidential and/or a trade secret.  The concept of a “reasonable standard of care” will include compliance by the Licensee with all laws applicable to the disclosure and use of such Confidential Information.  Notwithstanding the foregoing, Licensee may disclose Confidential Information to its respective Users where:  (i) such disclosure is reasonably necessary to perform duties hereunder; (ii) such Users agree in writing to observe the confidentiality and restricted use and disclosure covenants and standards of care set forth herein; and (iii) Licensee assumes responsibility for the acts or omissions of the persons and entities to which it makes disclosures of the Confidential Information no less than if the acts or omissions were those of Licensee.  However, Licensee will not have any obligation of confidentiality with regard to information which (i) is or becomes a part of the public domain through no act or omission of Licensee, (ii) was in Licensee’s lawful possession prior to the disclosure thereto and had not been obtained by Licensee either directly or indirectly from Crowe, (iii) is lawfully disclosed to Licensee by a third party without restriction on disclosure, (iv) is independently developed by such Licensee (but is not reverse engineered), (v) is required to be disclosed by law, or (vi) a graphical user interface or other screen display that appears on monitors and provides user/operator interfaces.  The burden of proof that Confidential Information falls into any one of the above exemptions will be borne by the Party claiming such exemptions.

b.         Licensee may disclose the Confidential Information to the extent required by law, regulation, discovery process, order of a court, governmental agency, or national stock exchange rule.  However, Licensee must give Crowe prompt notice (to the extent such notice is not prohibited by law or applicable order) to permit Crowe an opportunity to obtain a protective order or otherwise protect the confidentiality of such information, all at the Crowe’s cost and expense. 

c.         Licensee will promptly notify Crowe, in writing, in the event of any known or suspected disclosure, loss, or use in violation of this License of Crowe’s Confidential Information.

d.         The covenants of confidentiality set forth herein shall apply after the Effective Date of this License to any Confidential Information disclosed to Licensee before, on, or after the Effective Date and will continue and must be maintained from and after the Effective Date until such Confidential Information enters the public domain through no fault of Licensee.

 

e.         Licensee agrees that if Licensee breaches any of its obligations of confidentiality, Crowe will be irreparably harmed and in addition to all other remedies, Crowe is entitled to relief in equity, including a temporary or permanent injunction, without the necessity of proof of actual damage or bond. 

  1. INDEPENDENT CONTRACTOR RELATIONSHIP.

The parties are and shall be independent contractors to one another, and nothing herein shall be deemed to cause this License to create an agency, partnership, or joint venture between the parties.  Nothing in this License shall be interpreted or construed as creating or establishing the relationship of employer and employee between Licensee and either Crowe or any employee or agent of Crowe.

  1. FEES.

Crowe will grant access to Licensed Works for each year’s returns.  Access to Licensed Works is intended only for the User to prepare the current year’s Forms 990 filings only.  Preparation of future years’ returns will require additional payment and acceptance of a new License.

  1. MAINTENANCE AND SUPPORT.

Crowe will provide on-going IT technical support for account access only.  Tax advice or assistance is not included as part of this license agreement. Crowe will use commercially reasonable efforts to respond to requests from Licensee for Licensed Works maintenance and IT support in a manner and time frame which are reasonably responsive considering the nature and severity of the request.  If a malfunction corrected by Crowe was due to Licensee's negligence, Licensee agrees to pay Crowe the fair market value of the services Crowe provided in making the change or correction.

  1. NON-SOLICITATION OF EMPLOYEES.

For the duration of this License and for the period of one (1) year following termination hereof, neither party shall, directly or indirectly, recruit or attempt to recruit any employee or agent of the other party or otherwise initiate any offer or promise of employment with any employee or agent of the other party without the prior written consent of the other party.  If permission is granted by the other party to the party requesting permission and an employee or agent of the other party is employed by the party requesting permission any time prior to the termination of this License or the one (1) year period thereafter, then the party requesting permission shall pay a fee to the other party in the amount of one (1) times the annual salary of such employee or agent for the year in which such employee or agent is employed by the party requesting permission.

  1. LIMITATION OF LIABILITY. 

CROWE’S TOTAL AGGREGATE LIABILITY HEREUNDER SHALL NOT EXCEED THE AMOUNTS RECEIVED BY CROWE UNDER THIS LICENSE DURING THE SIX-MONTH PERIOD PRECEDING THE ACCRUAL OF ANY LIABILITY OF CROWE TO LICENSEE AND WRITTEN NOTICE FROM LICENSEE TO CROWE REGARDING THE SAME.  THESE ARE LICENSEE’S EXCLUSIVE REMEDIES AGAINST CROWE WITH RESPECT TO THE LICENSE AND THE LICENSED WORKS.  LICENSEE UNDERSTANDS THAT LICENSEE IS SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM USE OF THE LICENSED WORKS. BECAUSE SOFTWARE IS INHERENTLY COMPLEX AND MAY CONTAIN ERRORS, LICENSEE IS ADVISED TO VERIFY AND BACKUP ITS WORK. CROWE IS EXPRESSLY NOT LIABLE FOR LICENSEE’S DATA INTEGRITY OR FOR ANY LOSS OF OR DAMAGES THAT MAY OCCUR TO LICENSEE’S DATA, BUSINESS, OR BUSINESS RELATIONSHIPS DUE TO MALFUNCTIONING, UNAVAILABLE OR FAILURE OF THIRD PARTY SOFTWARE OR HARDWARE PROVIDED HEREUNDER OR INCORPORATED IN THE LICENSED WORKS TO FULFILL ANY OF LICENSEE’S REQUIREMENTS, INCLUDING THE TRANSMISSION OR FILING OF A FORM 990 PROVIDED SUCH UNAVAILABILITY OR MALFUNCTIONING WAS NOT CAUSED BY THE ACTS OR OMISSIONS OF CROWE. NOR IS CROWE RESPONSIBLE FOR CLAIMS OF USERS OR THIRD PARTIES AS THEY RELATE TO THIS LICENSE OR USE OF LICENSED WORKS.  ANY MODIFICATION OF THE LICENSED WORKS BY LICENSEE OR ANY FAILURE BY LICENSEE TO IMPLEMENT ANY IMPROVEMENTS OR UPDATES TO THE LICENSED WORKS AS SUPPLIED BY CROWE WILL VOID ANY OF CROWE'S MAINTENANCE AND SUPPORT OBLIGATIONS, CROWE'S WARRANTIES AND CROWE'S INFRINGEMENT INDEMNITY UNLESS LICENSEE HAS OBTAINED PRIOR WRITTEN AUTHORIZATION FROM CROWE PERMITTING SUCH MODIFICATION OR FAILURE TO IMPLEMENT.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO THE FULLEST EXTENT ALLOWED BY LAW, REGARDLESS OF THE GROUNDS FOR OR NATURE OF ANY CLAIM ASSERTED (INCLUDING NEGLIGENCE) ARISING OUT OF LICENSEE'S USE OF THE LICENSED WORKS OR THE MARKETING, MAINTENANCE OR SUPPORTING OF THE LICENSED WORKS BY CROWE.  THIS LIMITATION OF LIABILITY SHALL ALSO APPLY AFTER TERMINATION OF THIS LICENSE. THESE LIMITATIONS APPLY EVEN IF CROWE IS ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES.  BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN CATEGORIES OF DAMAGES OR IMPLIED WARRANTIES, THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. IN SUCH STATES, THE LIABILITY OF CROWE UNDER THIS AGREEMENT IS LIMITED TO THE FULLEST EXTENT PERMITTED BY SUCH STATE LAW.

  1. NO PUNITIVE OR CONSEQUENTIAL DAMAGES.

NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, COMPENSATORY, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES.  NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY LOST PROFITS, LOSS OF DATA LOST SAVINGS OR LOST BUSINESS OPPORTUNITY.  THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY TO THE FULLEST EXTENT ALLOWED BY LAW, REGARDLESS OF THE GROUNDS FOR OR NATURE OF ANY CLAIM ASSERTED (INCLUDING NEGLIGENCE) ARISING OUT OF LICENSEE'S USE OF THE LICENSED WORKS OR THE MARKETING, FURNISHING MAINTENANCE OR SUPPORTING OF THE LICENSED WORKS BY CROWE.  THIS LIMITATION OF LIABILITY SHALL ALSO APPLY AFTER TERMINATION OF THIS LICENSE.

  1. INDEMNIFICATION.

a.         Crowe shall defend, indemnify and hold harmless Licensee from and against any claim of a third person for Crowe’s knowing infringement of patents, copyrights, trade secrets or trademarks by Licensed Works: provided, however, that the foregoing undertaking of Crowe shall not apply unless Crowe has been informed as soon as reasonably practicable by Licensee of the charge or suit alleging such infringement and shall have been given the opportunity to take over the defense thereof.  Further, the foregoing undertaking of Crowe shall not apply if the alleged infringement results from the use of Licensed Works in combination with software which was not provided by Crowe or from use of Licensed Works that has been altered or modified by someone other than Crowe if such infringement would not have occurred from the use of Licensed Works by itself or use of Licensed Works without the alteration or modification.  Except as provided in this Section, Crowe makes no warranty that the Licensed Work will be free of any claim of any third party of infringement.  In the event of any claim of a third person for infringement by a Licensed Works under this License, Crowe may, at its own expense, and at its option: (1) procure for Licensee the right to continue using the Licensed Works; or (2) replace the Licensed Works with a non-infringing counterpart; or (3) modify the Licensed Works so that it is non-infringing; or (4) if none of the foregoing remedies are commercially feasible, terminate this License upon written notice to Licensee and refund to Licensee the amount of the fees paid under Section 14 by Licensee to Crowe for such Licensed Works.  This Section states Crowe’s entire liability for infringement.

 

b.         Licensee shall defend, indemnify, and hold harmless Crowe against any claim of a third party for infringement of patents, copyrights, trade secrets or trademarks by the Licensed Work which includes alterations or modifications made by Licensee or which has been altered or modified by anyone other than Crowe on behalf of Licensee.

 

20.     SPECIFIC ENFORCEMENT. 

 

Licensee acknowledges and agrees that irreparable damage would occur in the event of a breach or threatened breach of the provisions of this License and that money damages would be an inadequate remedy and therefore it would be difficult to fully compensate Crowe for such damages.  It is accordingly agreed that Crowe shall be entitled to obtain injunctive or other equitable relief (including, without limitation, temporary restraining orders, preliminary injunctions and permanent injunctions) against the Licensee to prevent any actual or threatened breach of this License and to enforce specifically the terms and provisions hereof, without the necessity of posting a bond or other security or of proving actual damages, in each case in addition to all other rights and remedies existing in its favor.  This provision with respect to specific performance will not, however, diminish Crowe’s right to claim and recover damages.

21.     TERM AND TERMINATION. 

The License is effective as of the Effective Date and shall remain in effect for one year terms, automatically renewable upon payment of the yearly licensing fee or until either Licensee discontinues use or Crowe revokes the use (for cause) of the Licensed Works.  Each year, prior to termination, Crowe agrees to provide a 60-day notice to Licensee during which Licensee’s access to Licensed Works will be set to “read-only”, such that Licensee may elect to print their return to .pdf.  After termination, Licensee will have no ability to change information or access Licensed Works.  Either Party may terminate the License at any time for any reason or no reason upon ten (10) days prior written notice; provided, however that upon termination, all rights and obligations of the parties hereunder shall automatically terminate except for such rights as shall have accrued prior to termination, including but not limited to any right to payment of fees incurred prior to the date of termination, and any obligations which expressly or by implication are intended to come into or continue in force on or after such termination.  If either party enters into bankruptcy proceedings, this License is automatically terminated.   Except as it pertains to the Licensed Works, upon termination of this License, Licensee will destroy Confidential Information in its possession or control.  This License does not create any expectation of a continuing engagement between Crowe and Licensee.

  1. SURVIVAL.

Any terms of this License, such as, but not limited to, the sections on OWNERSHIP, CONFIDENTIALITY, and LIMITATION OF LIABILITY which by their nature extend beyond its termination remain in effect until fulfilled, and apply to respective successors and assignees.

  1. CHOICE OF LAW. 

This License shall be construed in accordance with and governed by the laws of the State of Illinois without regard to choice of law rules.  However, the parties specifically exclude application of the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act from this License and any transaction between them related thereto.

  1. CONSENT TO JURISDICTION AND FORUM SELECTION. 

The parties agree that all actions or proceedings arising from or relating to this License 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 License. 

  1. SEVERABILITY. 

The provisions of this License shall be severable and, if any provision of this License 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 License, disregarding such invalid portion, will continue in full force and effect as though such void provision had not been contained in it.

  1. NEGOTIATION AND MEDIATION. 

In the unlikely event that a dispute between us arises out of this License and it cannot be settled through negotiation, the parties will try in good faith to settle the dispute by non-binding mediation administered by the American Arbitration Association under its mediation rules for commercial disputes, before resorting to litigation.  Both parties shall share mediation fees equally, but each party shall bear its own costs.  Any mediation shall be held in Chicago, Illinois.

  1. Jury Trial Waiver. 

To facilitate judicial resolution and to save the time and expense of both parties, the parties agree to waive trial by jury in the event of any dispute or litigation not resolved by negotiation. 

  1. TIME LIMIT ON CLAIMS. 

No action, regardless of form, arising out of any of the transactions under this License may be brought by Licensee more than one year after such incident giving rise to such liability occurred.

  1. PUBLICATION AND PUBLICITY. 

Neither Crowe nor Licensee will, without the prior written consent of the other, in any manner whatsoever disclose, announce, advertise or publish the terms of this License, except for disclosure as required by law, to its professional advisors, or to governmental agencies as required by those agencies or by applicable law.  Licensee agrees to obtain Crowe’s specific permission before using any Crowe report or Crowe’s name in a published document, and Licensee agrees to submit to Crowe copies of such documents to obtain Crowe’s permission before they are filed or published.

  1. WRITTEN MODIFICATIONS. 

Crowe reserves the right to modify this License at any time.  Licensee agrees to the modifications to the License by Use of Licensed Works.  All such modifications to this License will be binding on both parties despite any lack of consideration.

  1. COUNTERPARTS. 

This License may be executed in one or more actual or telecopied counterparts, all of which together shall be one and the same instrument and all of which shall be considered duplicate originals.

 

  1. RESPONSE TO LEGAL PROCESS. 

If Crowe is requested by a third party, subpoena or other legal process to produce documents or testimony pertaining to Licensee or the License, and Crowe is not named as a party in the proceeding, Licensee shall reimburse Crowe for its professional time, plus out-of-pocket expenses, as well as reasonable attorney fees incurred in responding to such request.  To the extent permitted by law, Crowe will promptly notify Licensee of the request. 

  1. AFFILIATES.

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 its 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 its 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.

  1. NOTICES. 

Any notice or demand required or permitted to be given under this License shall be in writing and shall be deemed effective immediately upon the receipt thereof, as evidenced by a written record of delivery from (a) a nationally recognized overnight courier, (b) certified or registered mail or (c) a manuscript delivery receipt in the case of delivery by hand. All notices to Licensee shall be sent to:

If to Crowe:                        Geralyn Hurd

                                         Crowe LLP

                                         225 W Wacker Drive, Suite 2600

                                         Chicago, IL  60654

If to Licensee: the contact information provided in the billing statement.

  1. FORCE MAJEURE. 

Neither party will be liable under this License for any failure of or delay in performance of its obligations hereunder, if performance is delayed or prevented by acts of God, fire, explosion, war, terrorism, earthquakes, riots, governmental laws or regulations, or other similar causes beyond such party’s control (each, a “Force Majeure Event”), but only to the extent of and during continuance of such event and only provided such party gives the other party prompt notice of such Force Majeure Event.  During the pendency of any Force Majeure Event, the party affected shall work diligently to cure the Force Majeure Event to the extent commercially reasonable.

  1. NO CONSTRUCTION AGAINST DRAFTER. 

Licensee and Crowe acknowledge that for purposes of the rule of contract interpretation that construes a document against its drafter, Licensee and Crowe agreed that neither Licensee nor Crowe nor their respective counsel shall be considered the drafter of this License.  Each Party represents to the other that it has carefully read this License, understands the License’s binding effect, and that it is entering into this License voluntarily.

  1. HEADINGS. 

The headings in this License are for reference only and are not intended to be a part of or to affect the meaning, application or interpretation of this License.

  1. WAIVER.

No provision of this License 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 License.  No delay or omission on the party of either party to exercise or avail itself of any right, power or privilege that is has or may have under License will operate as a waiver of any breach or default.

  1. ACCEPTANCE. 

The Licensed Works will be deemed accepted by Licensee upon Sign In. 

  1. ENTIRE LICENSE.

This License contains the entire agreement between the parties with respect to the subject matter hereof and supersede all previous written or oral understandings, agreements, negotiations, commitments, or any other writing or communications with respect to such subject matter. 

  1. NO THIRD PARTY BENEFICIARIES. 

Nothing in this License, express or implied, is intended or shall be construed to confer upon any person other than the parties hereto any right, remedy or claim under or by reason of this License.


Acceptable Use Policy (“AUP”)

 

  1. Incorporation.  This AUP is incorporated by reference in the Agreement to License Crowe Tax Risk Assessment & Control Solution (“C-TRAC”) web-based system (the “License”).  Access to the Licensed Works is provided via a web site (the “Web Site”). Access to the Licensed Works may be suspended or terminated for violation of this AUP.  Capitalized terms used in this AUP will have the meaning given in the License or this AUP.
  2.  

  3. No Abuse or Offensive Content.  Neither the Licensed Works nor the network on which it resides may be used to engage in, foster, or promote illegal, abusive, or irresponsible behavior, including:  unauthorized access to or use of data, systems or networks, including any attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without express authorization of the owner of the system or network; monitoring data or traffic on any network or system without the express authorization of the owner of the system or network; interference with service to any user of this network or another network including, without limitation, mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks; use of an Internet account or computer without the owner's authorization; collecting or using email addresses, screen names or other identifiers without the consent of the person identified (including, without limitation, phishing, Internet scamming, password robbery, spidering, and harvesting); collecting or using information without the consent of the owner of the information; using any false, misleading, or deceptive TCP-IP packet header information in an email or a newsgroup posting; distributing software that covertly gathers information about a user or covertly transmits information about the user; accessing any other network, chat room, community room forum, or other website; sending bulk or commercial email or for otherwise sending messages to any person or entity other than to Crowe or Licensee; distributing of advertisement delivery software unless: (i) the user affirmatively consents based on a clear and conspicuous notice of the nature of the software, and (ii) such software is easily removable by standard tools included on major operating systems (such as Microsoft's "add/remove" tool); or engaging in any conduct that is likely to result in retaliation against Licensee, Crowe or Crowe employees, officers or other agents, including engaging in behavior that results in any server being the target of a denial of service attack.  No publication, transmission or storage on or via Crowe’s network or equipment any content or links to any content that Crowe reasonably believes is illegal; that relates in any way to child pornography, bestiality, or non-consensual sex acts; is excessively violent, incites violence, threatens violence, or contains harassing content or hate speech; is unfair or deceptive under any state or federal consumer protection laws; is defamatory; violates personal privacy; creates a risk to a person's safety or health or to public safety or health, compromises national security, or interferes with a law enforcement investigation; improperly exposes trade secrets or other confidential or proprietary information; is intended to assist in defeating technical copyright protections; infringes on any other person's intellectual or other property right; promotes illegal drugs, violates export control laws, relates to illegal gambling, or illegal arms trafficking; or is otherwise malicious, fraudulent, or may result in retaliation against Crowe by offended viewers.  Content "published or transmitted" via Crowe’s network or equipment includes Web content, email, bulletin board postings, chat, and any other type of posting or transmission that relies on the Internet.  Crowe may test and otherwise monitor compliance with its requirements. 
  4.  

  5. Vulnerability Testing.  No attempt to probe, scan, penetrate or test the vulnerability of a Crowe system or network or to breach Crowe’s security or authentication measures, whether by passive or intrusive techniques, may be done without Crowe's express written consent.
  6.  

  7. Copyrighted Material.  Neither the Crowe network nor the Licensed Works may be used to download, publish, distribute, or otherwise copy or use in any manner any text, music, software, art, image, or other work protected by copyright law unless you have been expressly authorized by the owner of the copyright for the work to copy the work in that manner, or you are otherwise permitted by established copyright law to copy the work in that manner.
  8.  

  9. Other.  Only the authorized accounts assigned by Crowe may be used in connection with the Licensed Works.  Crowe may quarantine or delete any data stored on a shared system if the data is infected or otherwise corrupted, and has the potential to infect or corrupt the system or other customers' data that is stored on the same system.  No credit will be available under the License with Crowe for interruptions of service resulting from AUP violations.