(a) License Grant. Subject to the terms and conditions of the Agreement, Grant Thornton grants to Client a limited, non-exclusive, non-transferable, non-sublicensable license for the term as set forth in the Agreement to (i) the Software and (ii) any Software documentation provided by Grant Thornton relating to use of the Software (the “Documentation”), solely for Client’s own non-commercial internal purposes in accordance with the Agreement. The Software should be hosted on Client’s Azure environment or elsewhere with Grant Thornton’s prior written consent. Client may allow its authorized internal users and representatives (the “Authorized Users”), to use the Software and Documentation for the permitted purpose, and Client is responsible for their compliance with the Agreement. As part of this license grant, Grant Thornton will have Partner Admin Link status attributed to your Azure environment. This does not allow Grant Thornton any additional access or effect the status any of your existing partners. It provides Microsoft with access and insight to what Grant Thornton is influencing related to Microsoft technologies.
(b) License Restrictions. Client is prohibited from causing or permitting the reverse engineering (except to the extent expressly permitted by applicable law), disassembly, decompilation, or modification of the Software in any manner or using the Software, or any proprietary criteria developed or used by Grant Thornton relating to the Software, in order to build or support, directly or indirectly, a competitive product or service, or copy any ideas, features, functions, or graphics of the Software. Client shall implement stringent security measures to ensure that the Software is not used outside the scope of the license granted herein. Client may not sell, lease, license, sublicense, rent, or otherwise transfer the Software or utilize the Software in a service bureau environment on behalf of third parties.
(c) Client Responsibilities. Client is responsible for (i) complying with any of Grant Thornton’s reasonable policies and procedures related to the Software, as Grant Thornton may provide to Client; (ii) its actions, products, and services, and the content submitted to the Software; (iii) compliance with applicable laws, regulations, rules, and statutes; and (iv) training the Authorized Users on proper use of the Software and treatment of Client Data. Client is further responsible for obtaining, providing and managing the hardware and any network connection(s) with which to operate the Software, as contemplated hereunder. Client assumes full responsibility for the proper operations of any of its hardware and network and under no circumstances shall Grant Thornton be responsible for any failures of Client owned and/or operated hardware and/or network.
(e) Export Controls and Sanctions Compliance. The Software may be subject to export controls and sanctions laws of the United States and other jurisdictions. Client represents that it is not named on any U.S. government denied- or restricted-party list. Client acknowledges and agrees that it will comply with all export controls laws, rules, and regulations applicable to the Software, including the Export Administration Regulations (15 C.F.R. Parts 730-774) administered by the U.S. Department of Commerce’s Bureau of Industry and Security. Client also acknowledges and agrees that use of the Software will comply with all applicable economic sanctions laws, rules, and regulations including those administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the UK HM Treasury’s Office of Financial Sanctions Implementation, the European Union, and the United Nations. Client shall not permit Authorized Users or other parties to access or use the Software in a U.S. embargoed country (including, without limitation, Cuba, Iran, North Korea, Syria, or Crimea) and shall not permit a national of a U.S. embargoed country to access or use the Software. Client shall not permit parties identified on any list of restricted parties maintained by the United States or the United Nations to access, use, or benefit from the Software. Lists of restricted parties include, but are not limited to, the U.S. Treasury Department’s Specially Designated Nationals and Blocked Persons List, the U.S. State Department’s Debarred Parties List or list of parties subject to nonproliferation sanctions, the U.S. Commerce Department’s Entity List, Denied Parties List, or Unverified List, or the United Nations Security Council Consolidated List. If use of the Software does not comply with all applicable export controls and economic sanctions laws, the Agreement and the Software access may be immediately suspended or terminated.
2. Ownership. Grant Thornton or its third party licensors retain all ownership and intellectual property rights in and to the Software and derivative works thereof. To the extent that Client acquires any copyright, patent, or other intellectual property rights in or to any of the foregoing, Client hereby assigns and transfers such rights to Grant Thornton. Without limiting the foregoing, Client waives any and all proprietary right or interest, and Grant Thornton shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Software any suggestions, enhancement requests, recommendations, or other feedback provided by Client or the Authorized Users relating to the Software. The Software shall not be deemed to be a deliverable and no transfer of any right, title or ownership of any intellectual property of Grant Thornton or its third party licensors shall apply to the Software, except for the limited license grant expressly set forth in Section 1(a) of this Agreement.
3. Client Data. Client or its third party licensors retain all ownership and intellectual property rights in and to the electronic data or information submitted by Client to the Software (the “Client Data”). Client retains ownership of any output of the Software based on Client’s use of the Software. Client has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Client Data, and for obtaining, pursuant to law or regulation, consents from parties that provided Client with the Client Data. Client is responsible for any security vulnerabilities, and the consequences of such vulnerabilities, arising from the Client Data, including any viruses, disabling devices, Trojan horses, worms, or other harmful programming routines contained in the Client Data, or from Client’s use of the Software in a manner that is inconsistent with the terms of this Agreement.
4. Confidential Information.
(a) Definition of Confidential Information. Each party may disclose to the other party information that it considers confidential or proprietary (“Confidential Information”). Confidential Information shall mean any information or data which is disclosed by a party to the other party during the term of the Agreement and which (i) has been marked or identified as confidential; or (ii) due to its character and nature, a reasonable person under like circumstances would treat such information as confidential. Confidential Information may include, but is not limited to, Client Data, reports, studies, drawings, contracts, business plans, inventions, technical information, know-how, plans, and specifications. In any event, the Software and all related documentation constitute Grant Thornton’s Confidential Information. Client will provide the minimum amount of Confidential Information and minimum access to such information necessary. Client is responsible for obtaining, pursuant to law or regulation, consents from parties that provided Client with their personal information.
(b) Compelled Disclosure. The parties agree, unless required by law, including a request by a regulatory authority, to hold in confidence and not to disclose or reveal to any person or entity, the Confidential Information received by each party, and not to use each other’s Confidential Information for any purpose other than in connection with this Agreement, unless otherwise specified herein. Where disclosure is required by law or regulation, if legally permitted, the party receiving Confidential Information will first notify the disclosing party of any such disclosure requirement and afford the disclosing party the opportunity to seek a protective order or other appropriate relief.
(c) Confidential Treatment. Without limiting the generality of the foregoing, neither party shall disclose Confidential Information of the other party to any of its employees or contractors except those who are required to have such Confidential Information for the purposes of this Agreement. Each party agrees to take reasonable steps to ensure that Confidential Information is not disclosed or distributed by its employees or contractors in breach of this Agreement, including but not limited to, advising each employee and contractor of the obligations regarding confidentiality and non-use of such information and implementing administrative, physical, and technical measures designed to protect the confidentiality, integrity, and availability of Confidential Information in their custody and limit its use to those purposes authorized by the disclosing party. These measures must be, at a minimum, at least as robust as those that the receiving party uses to protect its own Confidential Information. Each party shall be fully responsible for any breach hereof by its employees or contractors.
(d) Exclusions. A party’s Confidential Information shall not include information that (i) is or becomes part of the public domain through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure; or (iv) is independently developed by one party without use of or reference to the other party’s Confidential Information. In addition, professional standards require Grant Thornton to maintain sufficient documentation to support its work. The documentation created by Grant Thornton related to the Software pursuant to this Agreement is the property of Grant Thornton and shall be retained in accordance with professional standards, the confidentiality obligations set forth herein, and then-current record retention policies. Notwithstanding anything in this Section 4(d) to the contrary, any personal information that a party discloses remains that party’s Confidential Information even if it would otherwise fall within the scope of the exclusions described in this section 4(d).
5. Warranty; Disclaimer. Grant Thornton warrants that the Software will materially perform in accordance with the express terms of the Agreement and Documentation. For the avoidance of doubt, Grant Thornton’s warranty is limited to the functioning of the Software and expressly does not include the Software’s output, for which Client is solely responsible and liable.
Grant Thornton’s responsibility under this Agreement extends only to provide the Software license as Grant Thornton expressly agrees to provide herein. The Software license shall not be deemed to be a professional service or professional advice and Grant Thornton shall not provide any professional services pursuant to this Agreement. In regard to the Software license, Grant Thornton expressly disclaims any standards of performance or warranties contained in the Agreement except as expressly set forth herein. Grant Thornton shall have no liability related to (i) Client’s reliance upon any output from the Software or (ii) the decisions made by Client related to such output.
Compliance with International Standard on Quality Management (ISQM) 1 (“ISQM 1”) is the responsibility of Client. Client’s use of the Software does not ensure or guarantee Client’s compliance with ISQM 1 and Grant Thornton expressly disclaims any liability or responsibility in the event Client’s compliance with ISQM 1 is deemed deficient. By licensing the Software, Grant Thornton is not providing any professional services, including but not limited to any consulting or attest services with respect to ISQM 1 or otherwise.
EXCEPT AS PROVIDED HEREIN THIS SECTION, THE SOFTWARE IS PROVIDED AS-IS. GRANT THORNTON MAKES NO REPRESENTATIONS REGARDING THE SOFTWARE AND THE LEVEL OF SERVICE TO BE PROVIDED, AND GRANT THORNTON DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SOFTWARE, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE. GRANT THORNTON EXPRESSLY DOES NOT WARRANT THAT THE SOFTWARE WILL BE ERROR-FREE. GRANT THORNTON CANNOT AND DOES NOT WARRANT COMPUTER HARDWARE, SOFTWARE, OR SERVICES PROVIDED BY THIRD PARTIES.
6. Limitation of Liability. IN NO EVENT SHALL THE LIABILITY OF GRANT THORNTON AND ITS PRESENT AND FORMER PARTNERS, PRINCIPALS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS (COLLECTIVELY, THE “GRANT THORNTON FIRM”) FOR ANY CLAIM, INCLUDING BUT NOT LIMITED TO GRANT THORNTON’S OWN NEGLIGENCE, EXCEED THE FEES IT RECEIVES FOR THE SOFTWARE LICENSE DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE CLAIM. THIS LIMITATION SHALL NOT APPLY TO THE EXTENT THAT IT IS FINALLY DETERMINED THAT ANY CLAIMS, LOSSES, OR DAMAGES ARE THE RESULT OF GRANT THORNTON’S WILLFUL MISCONDUCT OR FRAUD. IN ADDITION, CLIENT AGREES THAT THE GRANT THORNTON FIRM SHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR EXEMPLARY DAMAGES OR LOSS (NOR ANY LOST PROFITS, TAXES, INTEREST, TAX PENALTIES, SAVINGS OR BUSINESS OPPORTUNITY) HEREUNDER.
(a) Client Indemnification Related to the Software. Client shall, upon the receipt of written notice, indemnify, defend and hold harmless the Grant Thornton Firm from and against any liability, damages, fees, expenses, losses, demands and costs (including defense costs) associated with any claim arising from or relating to (i) Client or the Authorized Users’ use of the Software (including without limitation the unauthorized use or disclosure of the Software or related materials), and (ii) infringement of the intellectual property rights of a third party caused by Client’s use of the Software.
(b) Grant Thornton Indemnification Related to the Software. Grant Thornton shall, upon the receipt of written notice, defend Client from any third party claim that the Software infringes such third party’s copyright, trademark or patent, or trade secret misappropriation enforceable in the United States, arising out of use by Client of the Software (“Infringement Claim”), and indemnify Client from the resulting costs and damages awarded against Client to the third party making such Infringement Claim, by a court of competent jurisdiction or agreed to in settlement; provided that: (1) Client provides Grant Thornton with prompt written notice of such claims and (2) Client provides Grant Thornton with reasonable cooperation with such claims, and (3) Grant Thornton has sole control over the defense and all related settlement negotiations, and Client may not settle or compromise such Infringement Claim, except with prior written consent of Grant Thornton; and provided, further that Grant Thornton shall not be liable to Client under the terms of this Section if any infringement or claim is based upon: (1) misuse or modification of the Software by or on behalf of Client, or use of the Software in breach of the terms of this Agreement; (2) Client’s distribution, marketing, or use for the benefit for third parties of the Software; (3) information, direction, specification, or materials provided by Client or any third party on behalf of Client; or (4) use of the Software in connection with any software, hardware, or materials not provided by Grant Thornton. If Grant Thornton believes or it is determined that the Software may have violated a third party’s intellectual property rights, Grant Thornton may choose to either modify the Software to be non-infringing or obtain a license to allow for continued use, or if these alternatives are not commercially reasonable, Grant Thornton may terminate Client’s license to the Software and refund pro-rata portion of the fees. THIS SHALL BE GRANT THORNTON’S SOLE AND EXCLUSIVE LIABILITY, AND CLIENT’S SOLE AND EXCLUSIVE REMEDY, FOR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT, AND CLIENT HEREBY EXPRESSLY WAIVES ANY OTHER LIABILITIES ON THE PART OF GRANT THORNTON ARISING HEREFROM.
8. Dispute Resolution. The parties agree that binding arbitration is the sole and exclusive remedy for disputes arising out of this Agreement. The proceeding shall be governed by the provisions of the Federal Arbitration Act and will proceed in accordance with the then current Arbitration Rules of the AAA, except that no pre-hearing discovery shall be permitted unless specifically authorized by the arbitrator. The arbitration will be conducted before a single arbitrator, experienced in relevant subject matter. The arbitration shall take place in Chicago, Illinois. The arbitrator will be selected from AAA, JAMS, the Center for Public Resources or any other internationally or nationally-recognized organization mutually agreed upon by the parties. Potential arbitrator names will be exchanged within 15 days of notice of dispute, and arbitration will thereafter proceed expeditiously. Any arbitration decision by the arbitrator shall be within the confines of this Agreement, and no arbitration award or damages shall exceed the limitations on damages set forth herein. The arbitrator shall have no authority to award non-monetary, equitable relief or punitive damages. The award of the arbitration shall be in writing and shall be accompanied by a well-reasoned opinion. The award issued by the arbitrator may be confirmed in a judgment by any federal or state court of competent jurisdiction. Each party shall be responsible for their own costs associated with the arbitration, except that the costs of the arbitrator shall be equally divided by the parties. The arbitration proceeding and all information disclosed during the arbitration shall be maintained as confidential, except as may be required for disclosure to professional or regulatory bodies or in a related confidential mediation or arbitration. If arbitration is initiated and the other party declines to participate and instead initiates litigation elsewhere, doing so will constitute a default judgment, with the arbitrator empowered to enter judgment. If a party files suit in another forum not contemplated by this Section, the other party shall be entitled to all costs and fees associated with such claim.
(b) Validity. If any provision of this Agreement (or any portion thereof) is determined to be invalid or unenforceable, the remaining provisions of this Agreement shall not be affected by such determination and shall be binding upon Client and Grant Thornton and shall be enforceable as though said invalid or unenforceable provision (or portion thereof) was not contained in this Agreement.
(c) No Waiver. The failure by either party to insist upon strict performance of any of the provisions of this Agreement shall in no way constitute a waiver of its rights under this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party in the performance of or compliance with any of the terms of this Agreement.
(d) Governing Law. This Agreement, including its formation and the parties’ respective rights and duties and all disputes that might arise from or in connection with this Agreement or its subject matter, shall be governed by and construed in accordance with the laws of the State of Illinois, U.S.A., without giving effect to conflicts of laws rules. The parties consent to the personal jurisdiction of the courts of Illinois, U.S.A., and the parties waive objection to venue in any of these courts.
(e) Survival. Sections 2, 3, 4, 6, 7, 8, and 9, and such other Sections that by their nature should survive, shall survive termination of this Agreement.
(f) Name Use. Client shall not use Grant Thornton’s name, service marks, or trademarks without Grant Thornton’s prior written consent. Client grants Grant Thornton the right to disclose Client’s name as a user of the Software.
(g) Force Majeure. Except for Client’s payment obligations, neither party shall be liable for any delay or failure in performance due to any Force Majeure Event. The parties agree to address or minimize the impact of such circumstances by taking reasonable measures to ensure to the extent possible performance hereunder. As used herein, “Force Majeure Event” means any circumstance or cause beyond the parties’ reasonable control including, but not limited to, acts of nature, acts of God, pandemics, strikes, civil disturbances, terrorist acts, unavailability of goods or services needed from third parties, interruption or delay in telecommunications, transportation, failure of the Internet, delivery, or electrical services, failure of third party hardware or software, or acts or omissions of third parties.
(h) Independent Contractor. Grant Thornton is acting as an independent contractor, on a non-exclusive basis, and nothing contained in this Agreement shall be construed as creating an employment relationship, agency, partnership, or joint venture between the parties. Personnel and subcontractors supplied by Grant Thornton are not employees or agents of Client for any purpose. Each party shall control and direct the methods by which it performs its responsibilities hereunder. Grant Thornton assumes no management responsibilities for Client.
(i) Assignment. Neither Client nor Grant Thornton may assign this Agreement or any rights, obligations, or claims relating thereto without the other party’s prior written consent, except that Grant Thornton may freely assign this Agreement to an affiliate or a third party or in connection with any change of control, divestiture, merger, sale or reorganization.
(j) Audit. Grant Thornton shall have the right to audit Client’s use of the Software and compliance with the terms of this Agreement. This Section 9(j) shall survive termination of this Agreement.
(k) Use of Third Parties. Grant Thornton may use third parties to provide administrative and operational support to Grant Thornton business operations. All of these third party service providers are subject to confidentiality obligations. Such entities may be located within or outside the United States.
(l) Resellers and Referral Sources. If Client licensed the Software through a reseller or Client was referred to Grant Thornton by a third party, such reseller or third party may have received compensation from Grant Thornton.