C T CORPORATION SYSTEM SERVICES TERMS AND CONDITIONS
(last updated August 2, 2016)
IMPORTANT: PLEASE READ THE TERMS AND CONDITIONS OF THIS AGREEMENT CAREFULLY, SINCE USING THIS WEBSITE AND THE SYSTEMS AND SERVICES OF C T CORPORATION SYSTEM, OR PAYING THEREFOR, CREATES A BINDING LEGAL AGREEMENT. NO CHANGES BY YOU TO THESE TERMS AND CONDITIONS WILL BE ACCEPTED. C T CORPORATION SYSTEM MAY CHANGE, ADD OR REMOVE ANY PART OF THIS AGREEMENT AT ANY TIME. SUCH CHANGES SHALL BE POSTED ON THE APPLICABLE CT ONLINE PORTAL OR OTHERWISE MADE AVAILABLE TO YOU. IF ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD DISCONTINUE USING THE SERVICES. YOUR CONTINUED USE OF THE SERVICES OR PAYMENT THEREFOR, NOW OR FOLLOWING THE POSTING OF A REVISED VERSION OF THIS AGREEMENT, WILL INDICATE YOUR ACCEPTANCE OF THESE TERMS AND OF ANY SUCH REVISED VERSION.
The provision of the Services (as defined below) by C T Corporation System, a Delaware corporation (“CT”), is subject to the terms and conditions set forth below. You (“Customer”) (i) acknowledge that you have read and understand these terms and conditions, including any schedules, exhibits and other attachments hereto (collectively, this “Agreement”), (ii) agree to the terms and conditions of this Agreement and (iii) agree to the terms and conditions of any future versions of this Agreement which are posted by CT on the applicable online portal or otherwise made available to you. This Agreement shall be effective as of the date Customer first uses the Services (the “Effective Date”). Customer and CT are sometimes referred to herein individually as a “Party” or together as the “Parties”.
1. SERVICES AND FEES
1.1 Provision and Use of the Services. CT itself or through one or more of its affiliates, subcontractors or other agents (“CT Parties”) shall provide to Customer and its affiliates the services requested by Customer or a Customer User (as defined below) and described at ct.wolterskluwer.com/servicedescriptions and any other services requested by Customer or a Customer User and provided by CT (collectively, the "Services"), subject to the terms and conditions set forth herein. If Customer wishes to receive any additional services not described at ct.wolterskluwer.com/servicedescriptions, and CT agrees to provide such services, CT may require that the Parties describe such additional services, applicable fees and any required additional terms and conditions in a separate written agreement, upon the execution of which such services shall be included in the Services. CT shall be responsible for the performance of any CT Parties. Customer shall perform all Customer responsibilities and obligations set forth in this Agreement and shall be responsible for the performance of its affiliates, personnel, subcontractors, agents, advisors, representatives and other permitted third parties (“Customer Users”) and shall otherwise cooperate with CT in connection with CT’s provision of the Services. Customer shall use the Services only for the internal business purposes of Customer and Customer Users and shall be responsible for (i) ensuring that each of its Customer Users receiving the Services complies with the terms and conditions of this Agreement and (ii) for any breach of the terms and conditions of this Agreement by any Customer User to the same extent as if such Customer User were “Customer” hereunder. Customer Users shall not include any competitors of CT, and Customer shall not permit any third party to use the Services or CT Products in any way whatsoever without the prior written consent of CT. Without limiting the foregoing, Customer shall not, and shall not permit any person or entity to, offer or use the Services for the benefit of any affiliated or unaffiliated third parties, including in any computer service business, service bureau arrangement, outsourcing or subscription service, time sharing or other participation arrangement. Customer shall not use the Services in a manner contrary to or in violation of any applicable federal, state, or local law, rule, or regulation.
2. THE TERM
1.2 Customer Information and Instructions. Customer acknowledges and agrees that performance of the Services shall be dependent on the timely completion of Customer’s responsibilities and obligations under this Agreement and that additional fees may apply with respect to any modifications to standard documents or processes made by Customer or at Customer’s request. Notwithstanding anything to the contrary herein, Customer will be responsible for (i) the accuracy and completeness and the compliance, sufficiency and effectiveness under applicable law of all data, documents, templates or other information provided to CT or inputted into CT’s system by Customer or Customer Users or on their behalf, or otherwise modified by them or at their request, and (ii) the consequences of any instructions given by Customer or any Customer User to CT.
1.3 Fees. For Services performed by CT or any CT Party under this Agreement, Customer hereby agrees to pay CT the applicable fees in accordance with CT’s then current standard fee schedules for such Services (or as otherwise agreed by the Parties) and Section 5 below. Customer will also be invoiced for all additional fees (if any) advanced by CT on behalf of Customer or a Customer User including taxes, statutory filing and other fees, correspondent, courier messenger or delivery charges, and any other fees or charges advanced by CT. CT reserves the right to modify the Fees from time to time.
The term of this Agreement shall be effective as of the Effective Date and continue until terminated as set forth herein (the “Term”). For purpose of this Agreement, “Annual Period” shall mean each one year period running from the Effective Date to the next anniversary of such Effective Date.
3.1 Termination. Either Party may terminate this Agreement or a particular Service (i) if the other Party fails to perform any material obligation of this Agreement (including the payment of amounts owed hereunder) and such breaching Party fails to take good faith steps to cure such failure within thirty (30) days after receipt of notice from the other Party specifying such failure in reasonable detail or (ii) if the other Party seeks protection or commences any action under applicable bankruptcy laws or similar laws regarding insolvency or relief for debtor. CT may terminate this Agreement at any time if legally required or upon belief of Customer’s illegal or improper use of the Services.
3.2 Termination for Convenience. Either Party may terminate the Services or this Agreement at any time during the Term upon 180 days’ prior written notice to the other Party.
3.3 Effect of Termination. In the event of any such termination, (i) Customer will pay CT for Services (a) provided under this Agreement to Customer up through the date of termination and (b) that CT is legally required to provide to Customer following termination, (ii) with respect to Registered Agent Services, Customer shall also pay all fees in connection with the removal of CT’s name as its Registered Agent in the applicable Secretary of States’ offices, and (iii) all rights (including any access and use rights and licenses) granted to Customer by CT under this Agreement related to the terminated Services shall be terminated.
Unless otherwise provided in this Agreement, Customer shall pay all sales, consumer, use and similar taxes in connection with the Services (other than taxes on CT’s net income).
5. STATEMENTS AND PAYMENT TERMS
For Annual Representation Services, CT will submit to Customer a reasonably detailed invoice setting forth the number of Units for which Customer shall pay the Annual Representation Services fees for that Annual Period. With respect to all other Services, CT shall submit to Customer a reasonably detailed invoice which will set forth the Services used by, or provided to, Customer during the applicable period and the fees charged for such Services, consistent with the terms of this Agreement. Customer agrees to pay CT the applicable invoice amount within thirty (30) days of receipt of such invoice. All such fees and other amounts payable under this Agreement shall be referred to herein as the “Fees.” All amounts set forth in invoices not paid in full by Customer within 30 days (other than amounts in such invoices subject to a bona-fide good faith dispute) are subject to a late fee of 1.75% per month (or, if less, the maximum rate allowable by law) plus all costs of collection, including reasonable attorneys’ fees. In the event of a bona fide good faith dispute as to an item on any such invoice, Customer shall promptly, but no later than fifteen (15) business days after receipt of such invoice, give written notice to CT stating the details of any such dispute and shall promptly pay any undisputed amounts on such invoice. The Parties shall work in good faith to promptly agree upon a resolution to any disputed items on such invoice. CT reserves the right to suspend access to and performance of the Services to any delinquent account without notice. Except as otherwise expressly set forth, CT reserves the right to modify the Fees from time to time.
6. CONFIDENTIAL INFORMATION AND TRADE SECRETS
6.1 Confidential Information. “Confidential Information” includes the terms of this Agreement and all trade secrets, processes, proprietary data, pricing, technology and product information, business and any other proprietary or confidential information provided by the disclosing Party to the receiving Party in connection with this Agreement, but excludes any information which: (a) is generally available to the public through no fault of the receiving Party or any of its affiliates or its or their directors, officers, employees, contractors, subcontractors, or other agents (collectively, a Party’s “Representatives”); (b) is or becomes available to the receiving Party through a source other than the disclosing Party or its Representatives that is not known or reasonably believed to have any legal, contractual or fiduciary duty of confidentiality; or (c) is or has been developed by the receiving Party independently of the disclosing Party or any of its Representatives and their respective Confidential Information. Notwithstanding the foregoing, Customer agrees and acknowledges that anonymized and de-identified data shall not be considered Customer’s Confidential Information and CT shall be permitted to retain and utilize such anonymized and de-identified data.
7. OWNERSHIP RIGHTS
6.2 Treatment of Confidential Information. Each Party covenants and agrees that it will keep and maintain all Confidential Information of the other Party in strict confidence, using such degree of care as is appropriate and reasonable to avoid unauthorized use or disclosure, it will not disclose the other Party’s Confidential Information to any third party, except with the disclosing Party’s prior written consent or if required by law or in response to a subpoena or other validly issued administrative or judicial process, and it will use and disclose Confidential Information of the other Party solely as necessary to implement or perform its obligations and duties pursuant to this Agreement. Notwithstanding the foregoing, CT shall be permitted to disclose Customer’s Confidential Information to CT’s Representatives involved in the provision of Services. Under no circumstances may the receiving Party disclose any Confidential Information of the disclosing Party to a competitor of the disclosing Party.
6.3 Injunctive Relief. The Parties acknowledge that the unauthorized disclosure of Confidential Information in breach of this Section 6 may cause irreparable injury to the disclosing Party and damages, which may be difficult to ascertain. Therefore, the disclosing Party shall, upon such unauthorized disclosure of any Confidential Information, be entitled to seek injunctive relief or other equitable relief against the receiving Party.
All intellectual property rights in the Services and products (including related tutorials and documentation) provided or made available to Customer or a Customer User by CT as a part of the Services (including all improvements, enhancements, modifications or updates) (“CT Products”) shall remain the exclusive, sole and absolute property of CT or the third parties from whom CT has obtained the right to use the CT Products. Intellectual property created by CT pursuant to this Agreement shall be owned by CT. During the Term, Customer shall have a personal, non-transferable, non-exclusive right to access and use the CT Products (including any applicable CT online portal) in connection with the Services solely as set forth in Section 1.1. Customer shall at all times retain all intellectual property rights in all Customer data, proprietary information and materials provided by Customer to CT in connection with the use and receipt of the Services.
Customer represents and warrants that (i) it has the requisite power, authority and capacity to enter into this Agreement on behalf of itself, its affiliates and all other Customer Users and to perform the obligations required of it hereunder; (ii) the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby have each been duly and validly authorized by all necessary action; (iii) it has or has obtained all necessary authority to order the Services provided by CT; (iv) it has or has obtained all the necessary consents from any affected third parties to provide the information and documents to CT in connection with the Services; and (v) all information, templates and documents provided by or on behalf of Customer or any Customer User to CT hereunder, or otherwise modified by them or at their request, will comply in all respects with applicable law and the requirements of the applicable jurisdictions.
CT PROVIDES THE SERVICES AND ANY RELATED DOCUMENTATION, SOFTWARE OR EQUIPMENT WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. CT DISCLAIMS AND EXCLUDES ANY AND ALL OTHER WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, SUITABILITY AND FITNESS FOR A PARTICULAR PURPOSE, IRRESPECTIVE OF ANY COURSE OF DEALING OR PERFORMANCE, CUSTOM OR USAGE OF TRADE. CUSTOMER SHALL BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND CT SHALL HAVE NO LIABILITY THEREFOR. NO EMPLOYEE OR AGENT OF CT OR ANY CT PARTY IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. CT IS NOT ENGAGED IN RENDERING LEGAL OR OTHER PROFESSIONAL ADVICE OR SERVICES. THE SERVICES DO NOT INCLUDE THE PROVISION OF LEGAL, ACCOUNTING OR OTHER PROFESSIONAL ADVICE AND SHOULD NOT BE RELIED UPON AS SUCH. IF LEGAL OR OTHER EXPERT ASSISTANCE IS REQUIRED, CUSTOMER SHOULD CONSULT WITH ITS LEGAL COUNSEL OR OTHER APPROPRIATE ADVISORS. CT AND ITS DATA PROVIDERS AND LICENSORS CANNOT AND DO NOT ACCEPT ANY LIABILITY FOR DELAYS, ERRORS OR OMISSIONS IN THE INFORMATION PROVIDED BY STATE OR OTHER GOVERNMENTAL OR THIRD PARTY INFORMATION PROVIDERS OR FILING OR RECORDING SYSTEMS, NOR DOES CT ACCEPT ANY LIABILITY WITH RESPECT TO THE DISCLOSURE OR CUSTOMER’S USE OF INFORMATION OR RECORDS THAT MAY CONTAIN PERSONALLY IDENTIFIABLE INFORMATION.
10. LIMITATION OF LIABILITY
10.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY HERETO SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL LOSSES OR DAMAGES (INCLUDING LOSS OF PROFITS, REVENUES, SAVINGS, BUSINESS OR DATA), REGARDLESS OF THE FORM OF THE CLAIM OR ACTION (WHETHER BASED ON CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER TORT, STATUTE OR ANY OTHER LEGAL THEORY) AND EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLE EXISTENCE OF SUCH LOSSES OR DAMAGES.
11. INDEPENDENT CONTRACTOR
10.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, CT’S TOTAL AND CUMULATIVE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE LESSER OF (I) $50,000 AND (II) AN AMOUNT EQUAL TO THE FEES PAID BY CUSTOMER TO CT IN THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE UPON WHICH A CLAIM IS FIRST ASSERTED AGAINST CT BY CUSTOMER, IN EACH CASE LESS AGGREGATE DAMAGES PREVIOUSLY PAID BY CT UNDER THIS AGREEMENT.
10.3 CT is not an insurer with regard to the Services. The fees for Services rendered, as well as the limitations of liability and remedy, are a reflection of the risks assumed by the parties. Under no circumstances shall CT, any CT Party or any of its affiliates, suppliers, licensors, data providers, contractors or agents be liable for any loss of underlying collateral or loss (or decreased priority) of security interest in connection with the Services.
CT is acting in performance of this Agreement as an independent contractor.
Neither this Agreement, nor any of the rights or obligations under this Agreement, may be assigned by either Party without the prior written consent of the other. Notwithstanding anything to the contrary in this Agreement, CT may assign this Agreement in whole or in part or any of its rights or obligations hereunder, upon written notice to Customer, to an affiliate of CT; provided that any such assignment shall not release CT from its obligations under this Agreement.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given: (a) on the date of service if served personally on the Party hereto to whom notice is to be given; (b) on the day after delivery to Federal Express or similar overnight carrier or the Express Mail Service maintained by the United States Postal Service; or (c) on the fifth day after mailing, if mailed to the Party to whom such notice is to be given, by first class mail, registered or certified, postage prepaid and properly addressed, to the Party as follows: (i) if to CT: C T Corporation System, 111 Eighth Avenue, 13th Floor, New York, NY 10011, Attention: General Manager, CT with copies to Wolters Kluwer U.S. Corporation, 2700 Lake Cook Road, Riverwoods, Illinois 60015-3867, Attention: Executive Vice President and General Counsel and to C T Corporation System, 111 Eighth Avenue, 13th Floor, New York, NY 10011, Attention: Associate General Counsel and (ii) if to Customer, to its account address on file with CT. Any Party hereto may change its address for the purpose of this Section by giving the other Party written notice of its new address in the manner set forth above.
All provisions hereof relating to proprietary rights, confidentiality and non-disclosure, and limitation of liability shall survive the completion of the Services or any earlier termination, expiration or rescission of this Agreement.
The section headings in this Agreement are for convenience only and do not control the interpretation of this Agreement. The terms “include,” “includes,” and “including” mean without limitation by reason of enumeration. The terms “herein,” “hereof,” and “hereunder” refer to this entire Agreement. Unless the context otherwise requires, the term “or” is used in its inclusive sense (“and/or”).
Neither Party shall use the trademark, service mark, logo or other commercial or product designations of the other Party in any way, in print or electronic format or on a web or internet site, without the prior written consent of the other Party in each instance, unless it relates directly to the provision of Services hereunder; provided, however, CT shall be entitled to include Customer’s name or logo on customer reference lists without the prior written consent of Customer.
18. APPLICABLE LAW; FORUM; WAIVER OF TRIAL BY JURY
This Agreement shall be governed by the laws of the State of New York without giving effect to any law or statutory provision which would require or permit the application of the laws of another jurisdiction. The Parties further agree that the Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement. Any Party bringing a legal action or proceeding against any other Party arising out of or relating to this Agreement shall bring the legal action or proceeding in any court of the State of New York sitting in Manhattan. Each Party waives, to the fullest extent permitted by law, (a) any objection which it may now or later have to the laying of venue of any action or proceeding arising out of or relating to this Agreement brought in any court of the State of New York sitting in Manhattan; and (b) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY, TO THE EXTENT PERMITTED BY LAW, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ITS RIGHT TO A TRIAL BY JURY IN ANY ACTION OR LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS IT CONTEMPLATES. Each party acknowledges that it has received the advice of competent counsel.
If a court of competent jurisdiction determines that any provision of this Agreement is invalid, illegal or unenforceable under any applicable statute or rule of law, such provision is to that extent deemed omitted, and the balance of this Agreement remains in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding and enforceable.
No amendment or modifications to this Agreement shall be valid or enforceable unless in writing executed by the authorized representatives of Customer and CT.
A Party may not waive a right or remedy except pursuant to a writing executed by such Party. No failure or delay in exercising any right or remedy or requiring the satisfaction of any condition under this Agreement, and no course of dealing between the Parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose that it is given and is not to be construed as a waiver on any future occasion. The rights and remedies of the Parties set forth in this Agreement are not exclusive of, but are cumulative to, any rights or remedies now or subsequently existing at law, in equity or by statute.
22. FORCE MAJEURE
Neither Party shall be liable for failure or delay in performance of its obligations hereunder (other than Customer’s obligation to pay the Fees for Services provided) when such failures or delay is caused by events or causes beyond the control of such Party, including, without limitation, any of the following events, acts of God, extreme weather, natural calamities, labor strikes or unrest, terrorist attacks, government actions, power outages and disruptions in communication lines.
All exhibits, schedules, and attachments to this Agreement are incorporated into this Agreement by reference and made a part of this Agreement.
24. NO THIRD PARTY BENEFICIARIES
The Parties intend that this Agreement will not benefit or create a right or cause of action in or on behalf of any person or entity, other than the Parties.
25. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties, including any confidentiality agreement or non-disclosure agreement previously entered into between the parties, and there are no warranties, representations or agreements between the Parties in connection with the subject matter hereof except as set forth in this Agreement. In the event of a conflict between the terms of this Agreement and any exhibit, schedule or attachment, the terms of this Agreement shall govern. Neither Party shall be bound nor liable to the other Party for any representation, warranty, promise, covenant or understanding made by any agent, employee or other person that is not embodied in this Agreement. Purchase orders, work orders or similar documents submitted to CT by Customer will be for Customer’s internal administrative purposes only and the terms and conditions contained in any such purchase orders, work orders or similar documents will have no force and effect and will not amend or modify this Agreement.