Software and Services Agreement

This Software and Services Agreement (“Agreement”) is between COLLABUSHARE LLC, a Michigan corporation having a registered office at 691 N Squirrel Road, Suite 180, Auburn Hills, MI, 48326 (“Collabushare”) and the customer specified in the Order Form (“Customer”) and is effective as of the effective date specified in the Order Form (“Effective Date”).

By executing an ordering document that references this Agreement (“Order Form”) and authorizing a Customer representative to accept this Agreement on behalf of Customer, Customer accepts and agrees to the terms and conditions of this Agreement. The Company representative accepting this Agreement on behalf of Customer represents that he or she has been authorized by Customer to accept, and has the authority to bind Customer to, this Agreement.

1.      SERVICES AND SUPPORT

1.1   Implementation and Registration. Customer and Collabushare will cooperate to perform the “Implementation Work” described in this section prior to the commencement of the Services which is necessary in order for Customer to access and use the Services. Following the execution of the Order Form Collabushare will create an account for Customer (“Customer Account”) and assign a Collabushare “Account Manager” to the Customer’s account. Collabushare will send login information to Customer via email. A Customer designated administrative user (“Admin User”) will be responsible to log in to the Customer Account and shall assign the number of users (“User”) specified in the Order Form to create “User Accounts” for individual named Users.  Admin Users may have additional user privileges made available to them. Only named Users registered to a User Account may access and use the Software and Services. User Account holders will be required to agree to User terms and conditions as a condition of use and may not share access to the Software or User Account passwords with other persons. Customer is responsible for ensuring the security of all User Account passwords and for all activity and use of the Software by User Account holders or other persons having access to the Software including compliance with the terms hereof. Customer is responsible to ensure all Users are familiar with the applicable terms of this Agreement. The Account Manager shall, subject to Section 1.3, assist Customer with the set-up required for the account, in particular with respect to the initial importing of Customer Data and Customer Materials into the Software. Initial importing of Customer Data and Customer Materials to be capped at a specified number of client entities deemed required by Collabushare to get the Customer up and running within the Software. Implementation work beyond this reasonable measure may result in additional Fees as outlined in Section 1.3.

1.2   Train the Trainer Training. Collabushare shall provide an online training session on the use of the Software to up to three (3) (or such other number of personnel as may be specified in the Order Form) individual personnel selected by Customer that will also be designated Admin Users. Such training sessions will be recorded and used by the Admin Users for internal purposes to train other Users. 

1.3   Professional Services. If: (a) specified in an Order Form; or (b) subsequently agreed to by the parties, Collabushare may agree to provide additional Implementation Work to meet Customer’s specific requirements or perform other work that is not included in the Implementation Work or the Services. Any such work agreed to be performed shall be set out and described in a statement of work (“Statement of Work” or “SOW”) which describes the “Professional Services” work to be completed and the applicable “Professional Services Fees” payable by Customer.  Each SOW shall be incorporated into and form part of the Agreement. Collabushare shall commence the provision of the Professional Services pursuant to the dates specified in such SOW, and the Professional Services shall continue until completed or earlier terminated in accordance with the terms of this Agreement or an applicable SOW if additional or different termination terms are included. All delivery and completion dates are targets and Collabushare shall not be liable for any failure to meet any such dates for any reason.

1.4   Services.

(a)    Definitions:

“Collabushare Content” means Content displayed or accessible through the Software or use of the Services that is identified as being owned or provided by or otherwise the content of Collabushare and made available to Customer through the Services.

“Content” means works of authorship, data, text, information, documentation, images, graphics, photos, audio and video clips, sounds, musical works, sound recordings, and any other content or materials, including intellectual property.

“Permitted Purpose” means Customer’s internal business purposes in connection with managing and supporting Customer Clients, including: analyzing Client Data and Customer Client needs and requirements and providing professional services and recommendations to Customer Clients.

“Services” means the making available of the Software and Content for access and use by Customer Users on a remote basis via the Internet.

“Software” means Collabushare’s productivity tool offering knowledge database and recommendation engine software platform, having the features and functions described at https://collabushare.com/  

“Third-Party Content” means Content displayed or accessible through the Software or use of the Services that is identified as being owned or provided by or otherwise the content of a third party.

“Third-Party Content Terms” means the terms and conditions which govern the access to and use of Third-Party Content.

(b)    Provision of Services. Commencing at the completion of the Implementation Work, Collabushare will, in consideration of payment of the Service Fee, during the Term, make the Services available to Customer in accordance with this Agreement and subject to the terms, conditions, restrictions and limitations specified herein. Access to and use of the Services is limited to the number of Users and any other limitations specified on the Order Form. Usage beyond any specified limitations is subject to extra charges and Customer agrees to pay Collabushare for any additional charges at the then current rates for usage in excess of such limitations (including for additional Users). No other rights or licenses are granted except as expressly set forth herein. Collabushare may make changes or updates to the Software or Services (including infrastructure, security, technical configurations, application features, etc.) during the term, including to reflect changes in technology, industry practices, patterns of use, provided such changes or updates do not materially diminish features and functionality of the Software.  The Services include access to and use of all new versions of the Software implemented by Collabushare during the Term.

(c)    License by Collabushare to Software. Collabushare grants to Customer during the Term of the Agreement a limited, non-exclusive, non-transferrable, revocable license to access and use the Software in accordance with the terms of this Agreement for the Permitted Purpose.

(d)    Customer Use of Content. Collabushare grants to Customer during the Term of the Agreement a limited, non-exclusive, non-transferrable, revocable license to access and use Content in accordance with the terms of this Agreement for the Permitted Purpose. The foregoing license permits Users to access, view and download Content for the Permitted Purpose and, except where it is identified that such is not permitted, to share Content with Customer Clients in connection with the Permitted Purpose to the foregoing, Customer agrees it will not distribute, display, transmit, communicate or otherwise disseminate any Content to any third party. Certain Content may be subject to specific limitations and restrictions at the time it is made available, and use by Customer will be subject to such limitations and restrictions. Collabushare may temporarily or permanently require Customer cease to use and return or remove Content at any time from the Service with or without notice and without liability to Customer. Collabushare warrants to Customer that it has the right to make the Content available to Customer for access and use by Customer in accordance with the terms of this Agreement.

(e)    Third-Party Content. Unless otherwise specified at the time Content is made available to Customer and Users, Third-Party Content is made available for use under the license granted in Section 1.4(d). Certain Third-Party Content may be subject to separate Third-Party Content Terms or Collabushare may, from time to time, provide Customer with links to websites or other digital locations which offer Third-Party Content subject to Third-Party Content Terms. In such circumstances Customer acknowledges and agrees that (i) the Third-Party Content Terms will govern Customer’s access to and use of the Third-Party Content and (ii) Third-Party Content is provided by Collabushare on an "as-is" basis and is used and relied on by Customer at its own risk. Collabushare has no liability for any damage or loss concerning the accuracy of Third-Party Content or Customers access to, or use of, or reliance on, any Third-Party Content. In the event Collabushare loses the right or ability to provide Third-Party Content to Customer for any reason, Collabushare shall be relieved of its obligations to Customer under this Agreement. In the event the lack of such Third-Party Content materially lessens or degrades the value or usability of the Content, Customer shall have the right to terminate this Agreement with no further liability to Collabushare.

(f)     Acknowledgement. Customer acknowledges and agrees that the Content made available through use of the Services may be provided by individuals within the accounting profession, and the availability or provision of Content, or the use of the Software (including any recommendations provided through the Software) does not and will not create a client relationship or other professional relationship between Customer (or any Customer Client) and Collabushare. Collabushare’s role is limited to making the Services and Content available to Customer for Customer’s independent use. Collabushare does not engage in the practice of accounting services or provide any accounting or similar services. Customer assumes, and is fully and solely responsible for, the content of the advice, recommendations and communications Customer provides to Customer Clients (and/or others) when using the Services or referencing any Content made available through the Services. Any reliance on the Software or Content provided or made available through the Services is done solely at Customer’s own risk and Customer accepts any and all consequences.

(g)    Marks on Content. Customer will not remove, alter or conceal any copyright, trademark, service mark or any proprietary rights notices incorporated in or accompanying any Content.

1.5   Beta Service Use. Collabushare may make available to Customer, pursuant to an Order Form, pre-release beta versions of the Software (“Beta Version”) for evaluation or other purposes which may include validating certain functionalities and to collect feedback from Customer. Use of Beta Versions is subject to the terms of this Agreement and any additional terms that Collabushare may specify at the time they are made available, including in the Order Form. Notwithstanding any provision to the contrary in this Agreement, Customer acknowledges that Beta Versions are made available on an “as is” basis and Collabushare expressly disclaims any and all obligations (including any performance of service levels), warranties, and liabilities with respect to Beta Versions. Customer accesses and uses Beta Versions solely at Customer’s own risk and discretion. Beta Versions may be discontinued at any time in Collabushare’s sole discretion.

1.6   Documentation. “Software Documentation” means any available user guide documentation (whether in material or electronic form or other form) concerning the use of the Software and Services. Customer shall be entitled to access, download and print Software Documentation solely for its internal use during the Term to in connection with and for the purpose of its use of the Services.

1.7   Service Level. (a) Service Level. Collabushare will use commercially reasonable efforts to make the Services available (as described below) to Customer 99.8% of the time during Service Hours. “Service Hours” means 24 hours per day, seven days per week, 365 days per year during the Term other than during any Maintenance Period or as otherwise provided for herein. “Maintenance Period” means: (a) such regular maintenance period as Collabushare or the Hosting Provider may determine and communicate to Customer from time to time; and (b) when access to the servers on which the Software and/or data is hosted is suspended by the Hosting Provider for technical or emergency reasons or to maintain the network, the hardware or any other facilities, or when access to the servers on which the Software is hosted is suspended by the Hosting Provider. For the purposes of this Section, “Available” means that Customer is able to access and use the Services uninterrupted, and availability is measured as follows: Service Hours (in minutes) during a calendar month during the Term, minus time (in minutes) during such month when the Services are not available to Customer, divided by Service Hours (in minutes) during a calendar month during the Term, with the result expressed as a percentage. The measurement for availability described above excludes all Maintenance Periods. Collabushare shall use reasonable efforts to provide advance notice (which may include posting a notice through the Software or via e-mail) of any scheduled service disruption. (b) Exceptions. Collabushare shall not be responsible for a failure to meet the availability target set forth in Subsection (a) to the extent that such failure is attributable to: (i) any circumstance or events beyond the reasonable control of Collabushare, including due to a Force Majeure Event; (ii) Customer’s acts, errors, omissions, or breaches of the terms of this Agreement, including due to any problems or errors with any computer equipment or network that is the responsibility of Customer; and (iii) any issues originating with, or failures of, computer equipment or networks that are not the responsibility of Collabushare or within its direct control, including public telecommunications services and services provided by the Hosting Provider. Collabushare does not guarantee or warrant continuous or uninterrupted availability of the Services. The Hosting Provider reserves the right to suspend its services, which may impact access to the Services. Customer’s sole and exclusive remedy for any failure to meet the availability target shall be the provision of support under and any such failure shall not be a breach of the terms of this Agreement.

1.8   Support.

(a)   Support Procedure. The reporting and resolution of all Problems by Customer shall be subject to the following terms and procedures:

(i)   Collabushare shall maintain a help desk (“Help Desk”). The Help Desk shall be accessible by Customer authorized User Account holders via Collabushare’s designated support email at support@collabushare.com or via phone at 1-877-327-4273.

(ii) Support shall be available during the hours of 9:00 am through 5:00 pm Eastern time, with the exclusion of U.S. holidays observed by Collabushare (“Support Hours”).

(iii) Customer shall report all “Problems” (meaning any program error, bug or other failure of all or part of the Software that results in the Software not performing in accordance with its standard parameters) that are not resolved by Customer to the Help Desk and shall advise whether the Problem is a Level 1, Level 2 or Level 3 Severity Problem.

(iv) Collabushare will use commercially reasonable efforts to respond to or resolve, as applicable, all reported Problems, within the following periods of time:

In the event that the Software does not operate in accordance with this Agreement, or has any other operational defect, limitation, failure or deficiency, notwithstanding any other term of this Agreement, Customer’s sole and exclusive rights and remedies in respect of such shall be Collabushare’s obligation to use commercially reasonable efforts to remedy the defect, limitation, failure or deficiency and Collabushare shall not be liable to Customer for damages of any kind or nature. Collabushare does not guarantee that all Problems are or will be resolved or correctable (in each case whether within the targeted resolution time, or otherwise). A Problem shall be deemed reported at such time as the Problem is first reported to the Help Desk. Response times and targeted times to resolve apply to notices of Problems received during Support Hours. Notices of Problems received outside of Support Hours shall be deemed to be received at the beginning of the next Support Hour day.  Calculation of response times and targeted times to resolve Problems shall be made on a Support Hours basis and Problems not resolved during Support Hours will continue to be worked on at the commencement of the next Support Hours period. If Collabushare is unable to resolve a reported Problem, the parties acting reasonably shall co-operate and work together to implement a plan for addressing any recurrence of the reported Problem.

1.9   Software Use Restrictions. Customer’s use of the Software is subject to the following restrictions and limitations. Customer shall: (a) not (except as otherwise expressly provided herein) provide, disclose, sublicense or otherwise permit any person to access, use, read, disseminate, transmit, download or reproduce the Software or Software Documentation; (b) not adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part; (c) not, to the maximum extent permitted by applicable law disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software; (d) not be permitted to use the Software to act as a “service bureau” or in a time-sharing, application service provider or other similar model to provide the benefit of the use of the Software to any person except as expressly permitted hereby; (e) use a Software to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (f) use the Software to store or transmit malicious code; (g) not copy the Software; (h) not disclose the results of any software benchmark test or make public comments concerning the Software without Collabushare’s prior written consent; (i) not have any right to access or obtain a copy of the object code or source code to the Software; (j) interfere with or disrupt the integrity or performance of the Software or third-party data contained therein; (k) not attempt to gain unauthorized access to the Software or its related systems or networks or the data or information of any other Collabushare customer; (l) permit direct or indirect access to or use of the Software in a way that circumvents a contractual usage limit; (m) frame or mirror any part of the Software or Content; (n) access the Software or Content in order to build a competitive product or service; (o) use the Software and Content only in accordance with applicable documentation and applicable laws and government regulations; (p) notify Collabushare promptly upon becoming aware of any unauthorized access or use of the Software or Content.

1.10  Customer Responsibilities. Customer is responsible to: (a) reasonably assist, cooperate and facilitate the provision of the Services, including the prompt provision of information and assistance that Collabushare may reasonably request that is required by Collabushare in order to perform its obligations under this Agreement; (b) assign personnel as User Account holders who possess appropriate skills and knowledge; (c) obtain and maintain any equipment, software and ancillary services needed to connect to, access or otherwise use the Services, including as may be specified in the Order Form, Software Documentation,  Minimum System Requirements or otherwise by Collabushare, such as an Internet connection and service, hardware, software, operating systems, networking, web browsers and the like (“Equipment”). Customer shall also be responsible for maintaining the security of its Equipment, Customer Account, and passwords (including administrative and user passwords) and files, and for all uses of the Customer Account or the Equipment with or without Customer’s knowledge or consent. Notwithstanding any other term of this Agreement, in the event (and to the extent) that any failure(s) of Customer to perform any of its obligations under this Agreement or any other Customer act or omission affects, limits or prevents Collabushare’s ability to perform any Services, in whole or in part, or results in or contributes to Collabushare’s inability to perform the Services, in whole or in part, then Collabushare shall be relieved of its obligations to perform the Services hereunder, and shall suffer no prejudice or liability for failing to so perform.

1.11  Hosted Environment. The Software, Content (other than linked Third-Party Content) and any Customer Data is hosted on servers located at the Hosting Provider’s facilities. Customer’s access to and use of the Software and Services is subject to, and Customer agrees to comply with any policies and terms of the Hosting Provider that are applicable to Customer and of which Collabushare provides Customer with notice. Customer acknowledges that the Hosting Provider may, without prior notice, monitor Customer’s conduct and communications when using the Software and Services in order to verify compliance with applicable laws and the Hosting Provider’s policies. Customer acknowledges that Hosting Provider may cooperate with legal authorities in investigating claims of illegal activity involving the Services, Collabushare or Customer. “Hosting Provider” means, collectively Heroku, a Salesforce company and provider of managed services, and the third-party hosting provider, which is currently Amazon Web Services (“AWS”), engaged by Heroku to makes available the servers and other technology on which to host the Software and Customer Data and provide the Services and certain other hosting related services. The Hosting Provider may be changed by Collabushare in its discretion at any time provided the hosting location remains in the United States. The term Hosting Provider includes AWS and its contractors and sub processors, located in AWS’s Virginia (U.S.) datacenter.​

1.12 Security. Collabushare will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data (“Security Measures”) which will include measures for preventing unauthorized access, use, modification or disclosure of Customer Data. The Security Measures utilized by Collabushare include the measures specified in the Collabushare Security Statement. Collabushare may make changes to the Security Measures during the Term provided such changes do not materially diminish the protections afforded by the Security Measures. Customer is solely responsible for implementing safeguards to protect the security of its own systems and data when accessing and using the Software and Services, including to take precautions against malicious code and viruses and other contaminants.

1.13 Suspension. Collabushare shall be entitled to suspend, without liability, all or any part of the Services and Customer’s access to the Software immediately if (i) an act, omission, or breach of this Agreement by Customer results in a material security risk to the Software or related service; (ii) Customer breaches or otherwise fails to comply, in any material respect, with any material provision of the Agreement; (iii) suspension is in accordance with an order of a court  or governmental agency having appropriate jurisdiction. Any suspensions described in this Section shall be without prejudice to any other right or remedy Collabushare may have arising under the Agreement (including with respect to termination).

2.                DATA AND CONFIDENTIALITY

In this Section:

“Anonymized Data” means Services Data that has been de-identified, aggregated, or anonymized and which does not identify and cannot be used to identify Customer or a Customer Client.

“Client Data” means all data and information about Customer Clients that is provided by Customer to Collabushare or that is provided by Users to Collabushare in connection with the performance of this Agreement and Customer’s use of the Software and Services.

 “Customer Client” means an individual or other person that is a client of Customer.

 “Customer Data” means any and all data and information of Customer, including Client Data, supplied or provided by, imported or uploaded to, or generated by Customer in using the Software, or otherwise made available to Collabushare and the Software by Customer in connection with this Agreement.

“Personal Information” means information that constitutes “personal information”, “personally identifiable information”, or “personal data” under applicable privacy laws.

“Services Data” means any data and information generated by Collabushare through, and in connection with, the provision of the Services and Customer’s use of the Software and Services, including (a) data analytics derived from such Software and Service use and from Customer Data; and (b) diagnostic and usage information relating to the performance, use and operation of the Software.

2.1   Data Use and License.

(a)   Use of Customer Data. Customer hereby grants to Collabushare a limited, non-exclusive, non-transferable, royalty-free, and fully paid-up license to access, process, store and use the Customer Data for the purpose of and only to the extent required in order to perform the Services and its obligations under this Agreement. Customer acknowledges and agrees that Customer Data will be hosted by the Hosting Provider in the United States. Data may be transferred across country borders and stored or processed in jurisdictions other than Customer’s local jurisdiction. 

(b)  Ownership Customer Data. Subject to the licenses granted herein and terms hereof, Collabushare acknowledges and agrees that all right, title and interest whatsoever, in and to the Customer Data, including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by Customer. Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.

(c)   Customer Responsibilities. Customer is responsible for complying with all applicable laws and is solely responsible to obtain, and represents and warrants to Collabushare that is has or shall obtain all necessary consents or authorizations to provide Customer Data to Collabushare for use, storage, processing, disclosure, disposal and hosting, in the course of the provision of the services in accordance with this Agreement.

(d)  Processing of Data. (i) Collabushare will store and process Customer Data for the purposes contemplated by this Agreement. (ii) Customer agrees that it shall not provide any Personal Information to Collabushare pursuant to or in any connection with this Agreement other than User name and business email address for account use and login purposes. (iii) Collabushare and Customer shall comply with all applicable privacy laws and their own privacy policies, in respect of their collection, storage, use, and disclosure of Personal Information. (iv) Except as expressly provided herein, Collabushare does not have any responsibility hereunder to ensure that Customer’s policies or practices related to the processing of Customer Data are adequate or comply with any applicable law applicable to such persons. (v) Upon Customer’s written direction, Collabushare will make all Customer Data available to Customer for electronic retrieval from the Software. (vi) Customer acknowledges that in using the Software and receiving the Services the Customer Data will be transmitted via public telecommunications networks, including the Internet and may be transmitted across provincial, state or international territorial borders. Customer shall be solely responsible for determining whether any such transfers comply with applicable laws. (viii) Collabushare does not guarantee the integrity of, or inadvertent disclosure of, or corruption or loss of Customer Data transmitted via telecommunications networks, including the Internet, or other systems that are not Collabushare’s own systems. Collabushare shall have no liability or responsibility to Customer, a User or any other third party (including Customer Clients), on account of making or facilitating the availability of, through the operation of the Software and Services any Customer Data as and to the extent contemplated hereunder.

(e)   Services Data / Anonymized Data. All right, title, and interest whatsoever, in and to the Services Data (exclusive of any underlying Customer Data), including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by Collabushare. Collabushare shall have the unrestricted, irrevocable and perpetual right to use, without limitation or restriction or provision of any additional consideration, Anonymized Data for: (i) its internal business purposes without limitation or restriction for any purpose Collabushare may, in its sole discretion, choose including for the purposes of improving and enhancing the Services and Software, including Collabushare’s artificial intelligence and machine learning models, and for other development, diagnostic and corrective purposes in connection with the Services and other Collabushare offerings; and (ii) for its commercial business purposes in connection with the operation of the Software for its customers, including for the purposes of providing recommendations. To the extent necessary in order to affect the foregoing rights, Customer hereby grants to Collabushare a non-exclusive, transferable, perpetual, irrevocable, worldwide and fully paid-up license to any Customer Data included in the Anonymized Data.

2.2   Confidentiality. “Confidential Information” means any information, data and materials (regardless of form) disclosed, made available or otherwise provided by or on behalf of one party (“Disclosing Party”) to the other party (“Receiving Party”) hereunder that: (a) is marked as confidential or proprietary or in a similar fashion at the time of disclosure, or if disclosed orally, is stated to be confidential at the time of disclosure, or (b) that the Receiving Party could reasonably conclude to be confidential to the Disclosing Party. Collabushare Confidential Information includes the Software (including information regarding features, functionality and performance of the Software and the Service and all other non-public technical and product information), Software Documentation and all pricing information. Customer Confidential Information includes Customer Data.

2.3   Confidential Information Use / Protection. Each party agrees: (a) not to use any Confidential Information of the other party for any purpose except in the performance of its obligations under the Agreement or as otherwise expressly permitted hereunder; (b) to disclose such Confidential Information of the other party only to its officers, directors, employees and permitted third party subcontractors who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality; (c) to use reasonable efforts to protect such Confidential Information from unauthorized use, access, theft or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than reasonable care.

2.4   Permitted Disclosure. The foregoing restrictions on disclosure shall not apply with respect to any information which: (a) was or becomes generally known or publicly available through no act or failure to act on the part of the Receiving Party; (b) is known by the Receiving Party without restrictions on disclosure at the time of receiving such information as evidenced by its records; (c) is rightfully furnished to the Receiving Party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality; (d) is otherwise necessary to establish rights or enforce obligations under this Agreement but only to the extent that any such disclosure is necessary; or (e) is required by law to be disclosed by the Receiving Party, provided that the Receiving Party: (i) gives the Disclosing Party prompt written notice of such requirement prior to such disclosure (unless prohibited by law or a court), (ii) provides assistance, at the Disclosing Party’s cost, in obtaining an order protecting Confidential Information from disclosure, and (iii) discloses information only to the extent required by law and take reasonable steps to remove from the Confidential Information that is required to be disclosed, any information that a reasonable person would conclude is commercially sensitive to the other party.

2.5   Feedback. Submission of Contributions to Collabushare is voluntary. Contributions are subject to the following terms: (a) Customer warrants that Contributions do not violate any confidentiality obligations that Customer may have to third parties and that they do not contain proprietary rights of third parties; (b) Contributions become the property of Collabushare, and by submitting Contributions, Customer hereby assigns to Collabushare all Customer rights in and to them and waive all moral rights that Customer and its representatives have; (c) Collabushare is free to disclose and use without limitation or restriction (or refuse to disclose or use) any Contributions at its sole discretion; and (d) Customer is not entitled to any compensation or reimbursement of any kind under any circumstances. “Contributions” means feedback, ideas, comments, and suggestions submitted by Customer to Collabushare concerning the Software, Content and Services.

2.6   Collabushare Property. Collabushare solely and exclusively owns and retains all right, title and interest in and to: (a) the Software and Collabushare Content; (b) all improvements, enhancements or modifications to the items in (a) whether developed by Collabushare or Customer or any other person; (b) any work product, deliverables (including software, applications, inventions or other technology) developed in connection with Implementation Work and other Professional Services; and (c) any and all intellectual property and other proprietary rights in and to any of the foregoing. Except as expressly set out in this Agreement Collabushare grants no rights or licenses in or to any Collabushare intellectual property (including the Software or Content) to Customer or Users and Collabushare reserves all rights not expressly granted to Customer.

3.      PAYMENT OF FEES

3.1   Fees. Customer will pay Collabushare the fees specified in the applicable Order Form for the Services (“Services Fees”) and any Professional Services Fees specified in an Order Form or SOW (collectively “Fees”). All Fees are non-cancelable and non-refundable regardless of any early termination of this Agreement. Collabushare reserves the right to change the Fees at the end of the initial Term or then current renewal Term, upon thirty (30) days prior notice to Customer.

3.2   Payment.  Unless otherwise specified in an Order Form, Services Fees are payable monthly in advance and are due on the first day of the month. Unless otherwise specified in an Order Form or SOW, Professional Services Fees will be invoiced monthly in arrears and Customer shall pay all invoiced Professional Services Fees and other amounts within thirty (30) days from the date of the applicable invoice.

3.3   Taxes. The Service Fees and Professional Services Fees are exclusive of all taxes imposed by applicable law in connection with such fees, including, sales tax, goods and services tax, use, withholding or excise tax and all other like or similar taxes applicable to the provision of services, and Customer shall pay or reimburse Collabushare for all such applicable taxes (exclusive of taxes based on Collabushare’s income).

3.4   Increases. Collabushare reserves the right to increase the Services Fees at the end of the initial term or then‑current renewal Term, upon thirty (30) days prior notice to Customer (which may be sent by email to the contact identified in the Order Form). Time and materials rates for Professional Services are subject to change at any time.

3.5   Additional Payment Terms. If Customer has failed to pay any amounts within thirty (30) days of their due date such unpaid amount shall bear interest from the due date to the date of payment at the rate of one percent (1.5%) per month (being 18% per annum) or the maximum permitted by law, whichever is lower, such interest to accrue from day to day and to be compounded on a monthly basis. If Customer has failed to pay any amounts within thirty (30) calendar days of their due date, such failure shall be deemed to be a material breach of the Agreement by Customer and in addition to any other remedies available to Collabushare, Collabushare shall be entitled to suspend, without liability, the provision of any services provided hereunder or in connection herewith until such time as Customer has paid all outstanding amounts in full. Customer agrees to pay all costs of collection of unpaid amounts. Payment shall be made without any right of set-off or deduction. Except as expressly provided for herein, all payments made pursuant to this Agreement are non-refundable.  All amounts referenced herein are expressed in U.S. dollars unless otherwise provided in an Order Form.

3.6   Payment Processor. Collabushare uses a third-party payment processor. The processing of payments or credits, as applicable, in connection with the Services will be subject to the terms, conditions and privacy policies of the payment processor. Collabushare is not responsible for any errors by the payment processor and Customer will resolve any disputes for amounts charged directly with the payment processor. In connection with Customer’s receipt of Services, Collabushare will obtain certain transaction details, which Collabushare will use solely in accordance with the data processing and privacy terms hereof and in any applicable Collabushare privacy policy.

4.      TERM AND TERMINATION

4.1   Term. Subject to earlier termination as provided below, this Agreement is for the initial 12 month term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the initial term (collectively, the “Term”). Either party may terminate the Agreement effective at the end of the then current Term by providing notice to the other party at least thirty (30) days prior to the end of the then-current Term.

4.2   Termination For Cause. A party may terminate the Agreement if: (a) the other party has breached any material provision of the Agreement, including any failure to pay any Fees when due, and such breach continues unremedied for a period of thirty (30) days after written notice thereof; or (b) the other party becomes the subject of bankruptcy, insolvency, reorganization, receivership or other similar proceedings.

4.3   Effects. Upon any expiration or termination, Customer shall pay all unpaid Fees and other amounts due for the Services for the entire Term (regardless of any early termination) through the effective date of termination and Collabushare will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. Collabushare shall have the right to delete all Customer Data at the expiration of the 30-day period. Upon the effective date of termination for any reason, Customer’s rights to use the Software and Content shall terminate and Customer shall destroy or cause to be destroyed all copies of Content downloaded and retained by Customer.

4.4   Survival. The provisions of Sections 2.1(b) and (e), 2.3 through 2.6, 4.3 and 4.4 and Articles 3, 5, 6 and 7 and any other terms herein which expressly state that such terms will survive or which are necessary to give effect to the surviving terms, shall survive the termination or expiration of this Agreement for any reason.  

5.      WARRANTY AND DISCLAIMER

5.1  Customer Warranties. Customer represents and warrants to Collabushare that: (a) it is the owner or lawful custodian of the Customer Data and has the full right and authority and all necessary consents to provide Collabushare with the Customer Data for the purposes of this Agreement; (b) the provision of the Customer Data to Collabushare for the purposes of this Agreement is in compliance with all applicable laws and it shall comply with the requirements of all applicable laws in the performance of this Agreement.

5.2  Collabushare Warranties. Collabushare represents and warrants to Customer that it is duly licensed, authorized or qualified to do business and is in good standing in every jurisdiction in which a license, authorization or qualification is required for the performance of this Agreement; and (b) it shall comply with the requirements of all applicable laws in the performance of this Agreement.

5.3 Exclusions.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT COLLABUSHARE EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES OF NON-INFRINGEMENT OR CONCERNING FUNCTIONALITY, PERFORMANCE, OPERATION, RESULTS OF USE, THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE (OR THAT ALL ERRORS CAN BE CORRECTED) OR MEET CUSTOMER REQUIREMENTS AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW. EXCEPT AS EXPRESSLY SET OUT HEREIN THE SOFTWARE, SERVICES, ANY PROFESSIONAL SERVICES AND ANY CONTENT ARE PROVIDED “AS IS”. CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, SERVICES AND ANY OTHER SERVICES OR ASSISTANCE PROVIDED BY COLLABUSHARE IN CONNECTION THEREWITH, REMAINS WITH CUSTOMER. CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY COLLABUSHARE WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT.

6.      LIABILITY

6.1  No Indirect Damages. COLLABUSHARE AND ITS AFFILIATES, SUPPLIERS AND CONTRACTORS AND ALL SUCH PERSON’S OFFICERS, DIRECTORS AND PERSONNEL (“COLLABUSHARE PARTIES”) SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO LOSS OF OR DAMAGE TO DATA; LOST PROFITS OR SAVINGS OR BUSINESS; BUSINESS INTERRUPTION OR LOSS OF GOODWILL OR REPUTATIONAL HARM) OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY CUSTOMER OR ANY THIRD PARTY HOWSOEVER CAUSED (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, DATA BREACHES, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, USE OF THE SERVICES OR ANY OTHER CAUSE).

6.2  Limitation of Liability. COLLABUSHARE’S (AND ALL COLLABUSHARE PARTIES’) TOTAL LIABILITY AND OBLIGATION TO CUSTOMER, IN THE AGGREGATE DURING EACH TERM FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE, CONTENT AND ANY SERVICES WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND SHALL NOT EXCEED THE FEES ACTUALLY PAID OR PAYABLE BY CUSTOMER IN OR FOR THE THEN-CURRNT 12 MONTH TERM. COLLABUSHARE SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES ARISING FROM OR RELATING TO LOSS OR DELETION OF, OR UNAUTHORIZED DISCLOSURE OF, OR INACCURACY OF, OR DAMAGE OR CORRUPTION OF DATA (INCLUDING DUE TO THE HOSTING PROVIDER’S ACTS OR OMISSIONS).

6.3  Limitations Apply. The limitations and exclusions of liability set out herein shall apply regardless of the form of action or theory of liability, including for breach of contract, tort, negligence, by statute and regardless of the form or cause of action, even if such damages are foreseeable or Collabushare has been advised of the possibility of such damages. Customer agrees that the limitations and exclusions contained in this Agreement are reasonable based upon the commercial circumstances, and that Collabushare would not have entered into the Agreement but for Customer’s agreement to such limitations and exclusions.

6.4  Indemnity. Customer agrees to indemnify, hold harmless, and, upon Collabushare's request, defend Collabushare and the other Collabushare Parties from and against all third party (including Customer Client) claims, actions and demands, and all resulting liabilities, damages and losses of any type, expenses (including reasonable legal fees), settlements, or judgments suffered or incurred by such parties and that result from or arise out: (a) Collabushare’s authorized access to and use of any Customer Data (including Customer’s failure to comply with all applicable laws, including any applicable data protection laws), in the performance of its obligations or otherwise contemplated hereunder; and (b) Customer’s use of the Software, Content and Services (but exclusive of any claim or action to the extent attributable to Collabushare’s breach of this Agreement). The foregoing indemnity shall survive any termination or expiration of the Agreement.

7.                GENERAL TERMS

7.1  Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.

7.2  Waiver.  No waiver of any of the provisions of this Agreement will constitute a waiver of any other provision (whether or not similar). A party’s failure or delay in exercising any right under this Agreement will not operate as a waiver of that right. A single or partial exercise of any right will not preclude a party from any other or further exercise of that right or the exercise of any other right. All waivers must be in writing and signed by the party waiving its rights.

7.3  Assignment. This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of the parties, their respective successors and permitted assigns. Customer may not assign or transfer all or any part of this Agreement except with Collabushare’s prior written consent. Collabushare may transfer and assign any of its rights and obligations under this Agreement without consent at any time.

7.4  Entire Agreement / Amendment. This Agreement, together with the Order Form, is the complete and exclusive agreement between the parties pertaining to all the matters herein and supersedes and cancels all previous written and oral agreements, proposals, communications and other understandings between the parties, whether oral or written and may only be amended or modified by written agreement executed by the authorized representatives of the parties. No additional term or condition included in any Customer purchase order or other document that has not previously been agreed to in writing by Collabushare shall bind Collabushare.

7.5  No Third-Party Beneficiaries. Nothing in the Agreement will be deemed to create any third-party beneficiary rights in any person or entity not a party to the Agreement.

7.6  Relationship of the Parties. It is expressly understood and agreed that each party shall be acting as an independent contractor in performing its obligations hereunder and shall not be considered or deemed to be an agent, employee, joint venturer or partner of the other party. Customer does not have any authority of any kind to bind Collabushare in any respect whatsoever.

7.7  Costs. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.

7.8  Notices. All notices requests, claims, demands and other communications required or permitted 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 (and no notice of unsuccessful delivery is received), if transmitted by 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. Notices shall be sent to the respective parties at: (a) in the case of Collabushare at the address first written above t the attention of Chief Executive Officer, and (b) in the case of Customer at the address specified for the Customer in the Order Form, in each case as may be changed by either party in accordance with the terms of this Section.

7.9  Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the state of Michigan without regard to its conflict of laws provisions which might refer such interpretation to the laws of another jurisdiction. The parties irrevocably attorn to the exclusive jurisdiction of the courts of the state of Michigan in respect of all matters and disputes arising hereunder and waives objection to the venue of any proceeding in such court or that such court provides an inappropriate forum.  The parties agree that neither the United Nations Convention of the International Sale of Goods or the (U.S.) Uniform Computer Information Transactions Act shall apply to this Agreement.

7.10 Counterparts. This Agreement may be executed in any number of counterparts, each of which is deemed to be an original, and such counterparts together constitute one and the same instrument. Transmission of an executed signature page by facsimile, email or other electronic means is as effective as a manually executed counterpart of this Agreement.

7.11 Choice of Language. It is the express wish of the parties that this Agreement be drawn up in English. The parties waive any right to require this Agreement be concluded in any other language.

7.12 Compliance with Applicable Laws. Each party agrees to fully comply with all laws applicable to their respective obligations and conduct of their respective businesses pursuant to the Agreement.

7.13 Promotion. Collabushare shall be permitted to disclose, without consent, in its marketing, promotional or other similar materials and on its website and orally, the fact that Customer is a customer of Collabushare and the general nature of the relationship between the parties.

7.14 Interpretation. Words denoting the singular include the plural and vice versa and words denoting any gender include all genders. All usage of the word “including” or “include” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation. The division of this Agreement into separate Articles, Sections, Subsections, an Order Form and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement. The terms and conditions hereof are the result of negotiations between the parties and the parties agree that this Agreement shall not be construed in favor of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.

7.15 Force Majeure. Neither party shall be liable for delays in or for failures to perform hereunder (excluding payment obligations) due to causes beyond its reasonable control, including acts of God, acts or omissions of the other party or a third party, third party product or service failures (including failures of the Hosting Provider), Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power, surges or outages, epidemics, flood, earthquakes, riot, or war (“Force Majeure Event”).  Each party shall use commercially reasonable efforts to provide the other party with notice of any such events.