Terms and Conditions
These Terms and Conditions, the Order Form and all of the exhibits and attachments included herewith are collectively referred to herein as the “Agreement” and shall govern the Services (as defined below) requested by and provided to Customer by CCH. This Agreement shall be effective as of the date Customer first uses the Services (the “Effective Date”). Customer and CCH are as defined in the Order Form and are sometimes referred to herein individually as a “Party” or together as the “Parties”.
Customer and CCH agree as follows:
1. SERVICES AND FEES; PAYMENT TERMS; TAXES.
1.1. PROVISION AND USE OF THE SERVICES. CCH itself or through one or more of its affiliates, subcontractors or agents (“CCH Parties”) shall provide to Customer and its affiliates the services requested by Customer or a Customer User and as described and set forth in Exhibit A (the "Services"), subject to the terms of the Agreement. The Services in Exhibit A are for US domestic jurisdictions only, unless otherwise specified. CCH shall be responsible for the actions of any CCH Parties in providing the Services. Customer shall perform its responsibilities and obligations set forth in this Agreement and shall be responsible for the use of the Services by its personnel, affiliates, subcontractors and any other user(s) authorized by Customer (“Customer Users”) and shall cooperate with CCH to the extent necessary for CCH’s provision of the Services. Customer shall be solely responsible for ensuring its Customer Users are aware of their respective obligations under this Agreement. Customer and its affiliates shall use the Services only for the internal business purposes of Customer and its affiliates. Customer Users may use the Services solely for the limited purpose of advising Customer or otherwise in furtherance of the facilitation of the compliance obligations of Customer and/or its affiliates. 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 unauthorized or unaffiliated third parties, including any computer service business, service bureau arrangement, outsourcing or subscription service, time sharing or other participation arrangement. Customer shall be responsible for ensuring that each of its Customer Users receiving and/or using the Services complies with the Terms and Conditions of this Agreement. Except as otherwise provided herein (in furtherance of facilitating the compliance obligations of Customer and/or its affiliates), the Services are not designed to be used by any third-party advisors or legal counsel (e.g., outside counsel) of the Customer. Further, should Customer’s third-party advisors, counsel or law firms utilize any of the Services set forth in Exhibit A in contravention of these provisions, the charges for such use shall be outside of this Agreement (and said third party advisors shall be liable to CCH for same). Notwithstanding anything contained in this Agreement to the contrary, Customer Users shall not include any competitors of CCH. CCH reserves the right to modify, replace, suspend, or terminate any of the Services upon advance written notice to the Customer.
1.2. CUSTOMER INFORMATION. Notwithstanding anything to the contrary herein, Customer will be responsible for the timely provision and accuracy of all information provided to CCH or entered into CCH's system by Customer or on Customer's behalf and also for the consequences of any instructions given by Customer to CCH. Furthermore, 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.
1.3. FEES. Within thirty (30) days of Customer’s receipt of the applicable invoice from CCH, Customer agrees to pay CCH the fees for the Services as set forth in Exhibit B of this Agreement. The fees are based on the current requirements, projected use, specifications, volumes, and quantity as communicated to CCH by Customer and may be revised if Customer's actual requirements, projected use, specifications, volumes, or quantity materially varies from those communicated to CCH. Any failure by Customer to pay such revised fees shall be a material breach of this Agreement. Fees do not include pass-through expenses such as jurisdiction disbursement fees, expedite fees, access fees, and taxes ("Pass-Through Expenses"), which are the responsibility of Customer, and Customer shall reimburse CCH for any such Pass-Through Expenses paid by CCH on behalf of Customer. Unless otherwise provided in the Agreement, Customer shall pay all sales, consumer, use and similar taxes in connection with the Services (other than taxes on CCH's net income).
2. THE TERM.
2.1. Subject to the terms herein, this Agreement shall be effective as of the date of the latest signature set forth on the signature page hereof (the “Effective Date”) and continue for a period of twelve (12) months following the Effective Date (the “Term”). The words “Initial Term” and “Term” may be used interchangeably herein and shall mean and refer to one and the same period. For the avoidance of doubt, Customer shall only have the right to use the Services for the Term set forth herein and for no other period.
3. TERMINATION.
3.1. TERMINATION FOR BREACH. Either Party may terminate this Agreement (i) if the other Party fails to perform any material obligation of this Agreement (including the payment of amounts owed hereunder) and 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 under bankruptcy or similar laws regarding insolvency or relief for debtor.
3.2. EFFECT OF TERMINATION. Upon the termination or expiration of this Agreement, (i) all unpaid fees and expenses will become immediately due and payable, (ii) Intentionally Omitted, (iii) all rights (including any access and use rights and licenses) granted to Customer by CCH under this Agreement shall be terminated, and (iv) all Confidential Information shall be handled in accordance with Section 5.3.
4. CUSTOMER OBLIGATIONS. Customer agrees that during the term of this Agreement, it shall cooperate with CCH in the provision of the Services and perform such tasks and responsibility as required for the fulfilment and receipt of the Services, including, without limitation, the following: (i) executing any documentation if necessary by CCH to provide the Services, (ii) supplying information in formats as necessary and as requested by CCH, (iii) updating CCH regarding any changes to information required in a timely manner and in the format requested by CCH, (iv) in instances where CCH cannot compile data, providing CCH with filings or other compliance requests no less than five days prior to the filing deadline (it being understood that CCH bears no responsibility for penalties associated with late filings) and (v) any other obligations set forth in Exhibit A as may be applicable to the selected Services.
5. CONFIDENTIAL INFORMATION AND TRADE SECRETS.
5.1. CONFIDENTIAL INFORMATION. “Confidential Information” includes all trade secrets, processes proprietary data, pricing, technology and product information, business and any proprietary or confidential information provided by the disclosing Party to the receiving Party in connection with this Agreement, but excludes any information which: (i) is generally available to the public through no fault of the receiving Party or any of its affiliates, directors, officers, employees, contractors, subcontractors, or other agents (collectively, a Party’s “Representatives”); (ii) 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 (iii) is or has been developed by the receiving Party independently of the disclosing Party or any of its representatives and their respective Confidential Information.
5.2. 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 disclosing Party's prior written consent and it will use and disclose Confidential Information of the other Party solely for the purposes set forth in this Agreement. In the event either Party receives a subpoena or other validly issued administrative or judicial process demanding Confidential Information of the other Party, the recipient shall promptly notify the other Party and cooperate with such other Party, at the sole cost and expense (of the Party’s whose Confidential Information is being requested), in such other Party's efforts to avoid, limit the required disclosure of or otherwise request confidential treatment for any such Confidential Information. Unless the demand shall have been timely limited, quashed or extended, then notwithstanding the confidentiality terms in this Section 5, the recipient shall be entitled to comply with such demand as, when and to the extent required or permitted by law; provided the recipient shall only provide such Confidential Information as is required to be disclosed.
5.3. RETURN OR DESTRUCTION OF CONFIDENTIAL INFORMATION. Upon the termination of the Agreement by either Party (in accordance with this Agreement) or at any other time upon the other Party's request, each requested Party will return or, at the election of the Party holding the other Party's Confidential Information, destroy all tangible Confidential Information provided by or on behalf of the other Party. Such destruction or return will be confirmed by each Party in writing to the other Party. Notwithstanding anything to the contrary contained in this Agreement, neither Party shall be required to return or destroy copies of any computer tapes, files or records containing the Confidential Information which have been created pursuant to any automatic archiving, back-up or disaster recovery procedures (including backup tapes), but such receiving Party shall not seek to access or use any such Confidential Information after any written request by the disclosing Party for its return or destruction.
5.4. INJUNCTIVE RELIEF. The Parties acknowledge that the unauthorized disclosure of Confidential Information in breach of this Section 5 may cause irreparable injury to the disclosing Party, and for which damages 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.
6. OWNERSHIP RIGHTS. All intellectual property rights related to the Services (including related tutorials and documentation) provided or made available to Customer by CCH as part of the Services (including all improvements, enhancements, modifications, or updates) (“CCH Products”) shall remain the exclusive, sole and absolute property of CCH or the third-parties for whom CCH has obtained the right to use the CCH Products (including but not limited to affiliates and subsidiaries of CCH. In addition, any intellectual property created by CCH pursuant to this Agreement shall be owned by CCH. During the Term, Customer shall have a personal, non-transferable, non-exclusive right to access and use the CCH Products in connection with the Services solely for purposes of facilitating the compliance by both Parties in satisfying its obligations and utilizing its rights under the Agreement. Customer shall not permit any third-party to use the Services or CCH Products in any way whatsoever without the prior written consent of CCH (to be granted, denied and/or withheld by CCH in its sole discretion) or as otherwise provided in this Agreement. 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 unauthorized 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 at all times retain all intellectual property rights in all Customer Data, proprietary information and materials provided by Customer in connection with the use and receipt of the Services.
7. WARRANTY DISCLAIMER. CCH PROVIDES THE SERVICES AND ANY RELATED DOCUMENTATION, SOFTWARE OR EQUIPMENT WITHOUT WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED. CCH 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 SHOULD BE SOLELY RESPONSIBLE FOR THE SELECTION, USE AND SUITABILITY OF THE SERVICES AND CCH SHALL HAVE NO LIABILITY THEREFOR. NO EMPLOYEE OR AGENT OF CCH OR ANY OF ITS SUBSIDIARIES OR AFFILIATES IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS ANY OF THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT.
8. LIMITATION OF LIABILITY.
8.1 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, NEITHER PARTY 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 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.
8.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, EXCEPT FOR CUSTOMER'S OBLIGATION TO PAY ALL FEES DUE HEREUNDER, IN NO EVENT SHALL THE TOTAL AND CUMULATIVE LIABILITY OF EITHER PARTY TO THE OTHER PARTY AND ANY RELATED INDEMNITEES FOR ANY CLAIM OR CLAIMS HEREUNDER OR WITH RESPECT TO THE PERFORMANCE OR NON-PERFORMANCE OF SERVICES, EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO CCH IN A TWELVE MONTH PERIOD PRIOR TO THE DATE UPON WHICH THE CLAIM WAS FIRST ASSERTED AGAINST SUCH PARTY, LESS THE AGGREGATE DAMAGES PREVIOUSLY PAID BY SUCH PARTY UNDER THIS AGREEMENT.
9. INDEMNIFICATION. Customer agrees to indemnify, defend and hold harmless CCH, its employees, officers, directors and (to the extent not included in the preceding), the CCH Parties against any and all liability (including damages, recoveries, deficiencies, interest, penalties and reasonable attorney’s fees) to third parties relating to: (i) Customer’s breach of any of its obligations, representations and/or warranties under this Agreement; and/or (ii) Customer’s use of the Services and/or any third-party software, application or service, except to the extent of claims for which CCH is liable (as specifically provided in this Agreement).
10. INDEPENDENT CONTRACTOR. CCH is acting in performance of this Agreement as an independent contractor. CCH's employees are not employees or agents of Customer and are not entitled to any of Customer's employee benefits. Customer is not responsible for payment of workers' compensation, disability benefits or unemployment insurance, nor is Customer responsible for withholding or paying employment related taxes for CCH or any employee of CCH.
11. ASSIGNMENT. Customer may not sublicense, assign, sell, or transfer this Agreement, or any rights or obligations hereunder, without prompt notification to and the prior written consent of CCH. Such consent shall be at CCH’s sole discretion. For purposes of the forgoing, any change of ownership or control of Customer, whether by merger, reorganization, sale of substantially all of its stock or assets, or otherwise, shall be deemed an assignment of this Agreement. Any attempt to sublicense, assign, sell, or transfer any of Customer’s rights, duties and/or obligations under this Agreement without the prior written consent of CCH shall constitute a material breach. In the event CCH consents to a sublicense, assignment, sale, or transfer of this Agreement, Customer’s payment obligations shall be non-cancellable and non-refundable (except as may otherwise be specifically provided herein) during the remainder of the Term. Customer agrees that CCH’s retention of these contractual and other legal rights is an essential part of this Agreement.
12. COMMUNICATIONS. All notices under this Agreement shall be delivered (i) to the address set forth in the Order Form, for the Customer, and (ii) for CCH, by email to [email protected]. All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given for the Customer: (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; (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; and (d) for CCH, all such email notices shall be effective upon receipt.
13. SURVIVAL. With the exception of the provisions of this Agreement relating to the obligation to pay fees that are otherwise due, proprietary rights, the maintenance of confidentiality and non-disclosure obligations, indemnification and limitation of liability, all other rights and obligations of the Parties as outlined in this Agreement shall cease as of the expiration of the Term or the earlier expiration or recission of this Agreement.
14. SECTION HEADINGS. The section headings are used in this Agreement for reference and convenience only and do not affect this Agreement's construction or interpretation.
15. PUBLICITY. Neither Party shall use the name, trademark, service mark, trade name, 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.
16. APPLICABLE LAW; FORUM; WAIVER OF TRIAL BY JURY. The laws of the State of New York (including but not limited to its statutes of limitations) shall govern this Agreement, excluding any laws of such state which would render the selection of New York law ineffective. 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 the courts of the State of New York sitting in New York City. Each Party waives, to the fullest extent permitted by law, (i) any objection to the venue of any action or proceeding arising out of or relating to this Agreement brought in such New York City courts; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum. EACH PARTY WAIVES ITS RIGHT TO A TRIAL BY JURY.
17. SEVERABILITY. 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 the Agreement remains in full force if the essential terms and conditions of this Agreement for each Party remain valid, binding, and enforceable.
18. AMENDMENTS: WAIVER. No amendment or modifications to this Agreement shall be valid or enforceable unless in writing executed by the authorized representatives of Customer and CCH. 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.
19. 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 or orders (including but not limited to the imposition of sanctions or export restrictions), power outages and disruptions in communication lines, pandemics, epidemics or outbreak of communicable disease, quarantines, national or regional emergencies, cyber-attacks or technology failures as a consequence of malicious third-party software, or any other cause, whether similar in kind to the foregoing or otherwise, beyond the Party's reasonable control.
20. EXHIBITS. All exhibits, schedules, and attachments to this Agreement are incorporated into this Agreement by reference and made a part of this Agreement.
21. 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 hereto or the Customer Parties or the CCH Parties, but with respect to the Customer Parties and CCH Parties, only to the extent permitted under Section 9 hereof.
22. COUNTERPARTS. The Parties may execute this Agreement in any number of duplicate originals and in multiple counterparts by original, .pdf (or similar format for scanned documents) or facsimile signature, each of which constitutes an original, and all of which, collectively, constitute only one agreement.
23. ENTIRE AGREEMENT. This Agreement together with the exhibits, schedules, and attachments and all applicable online terms of use, constitutes the entire agreement between the Parties in connection with the subject matter hereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, proposals and discussions, whether oral or written, of the Parties, and there are no warranties, representations and/or agreements between parties in conjunction with the subject matter hereof except as set forth in this Agreement. In the event of a conflict between the terms of the Agreement and any exhibit, schedule, attachment or any applicable online terms of use, the terms of the Agreement shall govern (except for Exhibit A, which shall govern in the event of a conflict with these Terms and Conditions). 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 CCH 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.
Exhibit A
Beneficial Ownership Compliance Platform and Filing Services
Beneficial Ownership Compliance Platform:
CCH will provide access to the CCH Beneficial Ownership Compliance Platform in order to support data collection, customized reporting and storage of historical information directly related to Beneficial Ownership Information Reporting with the Financial Crimes Enforcement Network (“FinCEN”). This Platform includes the following:
• Workflow to capture filing information
• Access to historical filings through the subscription period
• Secure/encrypted document storage through the subscription period
Filing Services Details
• CCH will transmit necessary information provided by Customer regarding such Beneficial Ownership Information Reports (“BOI Report”) directly to the Financial Crimes Enforcement Network (“FinCEN”). These services include all filings accepted by FinCEN.
• Customer will:
(i) For all entities formed prior to December 31, 2023 - Provide the required information to CCH via the Platform for filing of the initial/updated/corrected BOI Report by November 30, 2024. If Customer fails to adhere to such timeline, CCH will use its commercially reasonable efforts to file such BOI Report(s) before any filing deadline, but CCH will not be responsible for any FinCEN penalties imposed for missing any filing deadlines.
(ii) For any entities created on/after January 1, 2024 - Provide the required information to CCH via the Platform for filing of the initial/updated/corrected BOI Report at least fourteen days before the respective reporting deadline. If Customer fails to adhere to such timeline, CCH will use its commercially reasonable efforts to file such BOI Report(s) before any filing deadline, but CCH will not be responsible for any FinCEN penalties imposed for missing any filing deadlines.
(iii) Notify CCH regarding any changes to information required for filing updated and/or corrected BOI Reports in a timely manner. For the avoidance of doubt, Customer is responsible for monitoring when any updated and/or corrected BOI Reports are required by FinCEN, and CCH shall bear no responsibility for the same.
(iv) Notwithstanding anything in Section 1.2 of the Agreement to the contrary, when providing CCH with required BOI data and associated images, all data must be received by CCH fourteen days prior to the filing deadline or CCH bears no responsibility for penalties associated with late filings.
(v) Be solely responsible for the accuracy of all data provided to CCH for submission to FinCEN. In addition, Customer shall be solely responsible for whether the data provided to CCH is compliant with the requirements of FinCEN, and CCH will not be responsible for FinCEN penalties imposed on Customer due to incorrect or misleading data provided to CCH by Customer.
(vi) The actual filing/submission Services cannot and will not be provided until CCH has received all of the required filing information.
Exhibit B
CCH Axcess Beneficial Ownership Information Fees
All BOI Filing Packages are valid for the Term of this Order only, and therefore, expire as of the expiration of the Term. No refunds will be provided for any unused BOI Filings and BOI Filings do not rollover for any subsequent Term.