This Services Master Agreement (the “MSA”) is entered into by and between Baker Hill Solutions, LLC, a Delaware limited liability company in the business of supplying software-as-a-service solutions and related services to financial institutions in the United States and having offices located at 1320 City Center Drive, Suite 300, Carmel, IN 46032 (“Baker Hill”) and the client identified on the Order Form (“Client”), together referred to as the “Parties” and each individually as a “Party.”
Program-specific terms, product details and any applicable license and/or subscription terms will be set forth in the applicable Schedule(s), Order Form(s), and SOW(s), each of which become effective, binding upon the Parties, and subject to this MSA upon execution an Order Form or SOW. Baker Hill and Client agree that each Order Form and/or SOW is governed by and incorporates the following documents in effect as of the date of last update of such documents, collectively referred to as the “Agreement,” that consists of:
- the Order Form and/or SOW;
- any addenda, attachments, exhibits, and/or appendix(ices) to an Order Form;
- the Security Annex;
- Schedule(s); and
- this MSA.
The applicable Schedule(s), attachment(s), exhibit(s), and appendix(ices) are determined by the Programs and/or Services purchased on the Order Form and/or SOW. In the event of conflict, the order of precedence is as set forth above in descending order of control.
MSA Version: November 13, 2019
Each Party agrees that the following terms and conditions govern each Order Form and/or SOW that refers to this MSA:
1. Definitions. Terms defined in this section or parenthetically defined elsewhere shall have the same meaning through the Agreement. Defined terms may be used in all of their formatives.
- “Act” shall have the meaning set forth in section 12(b).
- “Annual Fee” means any pre-payment annual fees specified in an Order Form for Client’s access to and use of the Programs for a Contract Year.
- “Annual Service Retainer” means the then-current fee specified in an Order Form and paid as pre-payment for Professional Services to be performed during the applicable Contract Year.
- “Audit SOW” shall have the meaning set forth in section 10(c).
- “Baker Hill’s Intellectual Property” means: (i) the Software (including, without limitation, the source code and specific design and structure of individual modules or programs thereof) and any Work Product Baker Hill creates (alone or with others) or delivers to Client; (ii) any know-how, discoveries, developments, ideas, works of authorship, suggestions, and improvements that Baker Hill conceives, develops, utilizes or reduces to practice during performance of the Services; and (iii) any and all copyrights, patents, trade secrets, trademarks and any other intellectual property rights in or on any of the foregoing listed in sections 1(e)(i) or 1(e)(ii).
- “Benchmark Data” means any statistical, system, usage, user experience, and other data related to Client’s use of the Programs, Services, and/or associated hosting environment (as applicable), which may include Personal Data, Customer Information, and other Client Data.
- “Client Data” means all data received or stored by Baker Hill in connection with providing the Services to Client and/or Client’s access to and use of the Programs including, but not limited to, any data provided to Baker Hill by a credit reporting agency, consumer reporting agency, credit bureau or credit scoring service provider as a result of Client’s use of the Programs and/or Services.
- “Confidential Information” shall have the meaning set forth in section 13(a).
- “Contract Year” means the 12-month period beginning on the Effective Date of an Order Form or an anniversary of the Effective Date of an Order Form.
- “Customer Information” means information: (i) of or about a person or entity that is a customer of Client (including a person or entity applying for a loan from Client); (ii) that is transmitted to or received by Baker Hill in connection with the provision of the Services or Client’s use of the Programs or Services; and (iii) that can be used to identify such customer of Client, directly or indirectly including, without limitation, “nonpublic personal information” as the term is defined under 15 U.S.C. § 6809(4) and any applicable regulations promulgated therefrom adopted by the relevant regulatory authorities.
- “Discloser” shall have the meaning set forth in section 13(a).
- "Downtime" means a period of time when crucial functionality of the Programs (Client access, query, or basic functionality) is inoperable or unavailable during the Hours of Operation for reasons attributable to the Programs, but excludes the following: (i) scheduled maintenance; (ii) performance or failure of Client's equipment, facilities or applications; (iii) unavailability of any third party service provider, including without limitation, any applicable credit reporting agency, credit scoring service provider, consumer reporting agency and/or credit bureau; and (iv) unavailability caused by items such as force majeure, strike, fire, flood, earthquakes, governmental acts or orders or restrictions, failure of suppliers, or any other reason where failure to perform is beyond Baker Hill's control and is not caused by intentional misconduct or fraud on the part of Baker Hill.
- “Effective Date” means, for each Order Form and SOW, the date such Order Form or SOW is signed by the last Party thereto (as indicated by the date associated with that Party’s signature).
- “Employee” shall have the meaning set forth in section 16.
- “EU Data” means Personal Data that contains records or data of a European Union or European Economic Area citizen or resident.
- “Fees” shall have the meaning set forth in section 6(a).
- “GDPR” means the General Data Protection Regulation (EU) 2016/679 of the European Parliament and of the Council of April 27, 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, which supersedes the Data Protection Directive (Directive 95/46/EC).
- “Hours of Operation” means Monday through Friday, 8:30 a.m. to 8:30 p.m., Eastern Time, excluding holidays observed by Baker Hill or any related third party service provider including, without limitation, any applicable credit reporting agency, credit scoring service provider, consumer reporting agency and credit bureau.
- “Initial Term” means the period of time commencing on the Effective Date of an Order Form or SOW, the length of which is specified in each Order Form and, optionally, in a SOW.
- “Interface” means any interface, systems, and/or applications, including any accompanying specifications, provided to Client by Baker Hill to enable the Software to electronically interact with a Third Party Add-on.
- “Laws and Standards” shall have the meaning set forth in section 12(a).
- “Order Form” means the order form provided by Baker Hill that specifically refers to the MSA and sets forth the pricing and options of the Programs and/or Services selected by Client.
- “Personal Data” means information that: (1) identifies, relates to, describes, or could reasonably be linked or used (directly or indirectly) to identify, contact, or locate a specific individual or household; and (2) Baker Hill Processes for Client under this Agreement. For the avoidance of doubt, Personal Data includes, but is not limited to, Customer Information.
- “Process” means any operation or set of operations that are performed on Client Data, or on sets or subsets of Client Data, whether or not by automated means and which include, but are not limited to receiving, using, accessing, copying, displaying, modifying, storing, sharing, and/or transmitting Personal Data.
- “Professional Services” means any implementation, advisory, consulting, training, development or other types of professional services that are set forth in an Order Form or SOW.
- “Programs” collectively means the Software, Third Party Add-ons, and Work Product.
- “Recipient” shall have the meaning set forth in section 13(a).
- “Renewal Term” means the period of time commencing immediately after the Initial Term or preceding Renewal Term, the length of which is specified in each Order Form.
- “Report” shall have the meaning set forth in section 10(a).
- “Schedule” means the program-specific terms and conditions applicable to the Programs (Baker Hill NextGen and Omni-Channel)
- “Security Annex” means Baker Hill’s Privacy and Security Annex accessible here, which includes detail on Baker Hill’s security framework, standards, and instructions for the deletion of Personal Data from the Software and Baker Hill’s Systems.
- “Security Measures” means those technical and organizational measures set forth in the Security Annex, inclusive of administrative, technical, and physical safeguards, that are designed to protect the security and integrity of the Software and Services.
- “Services” collectively means Professional Services and Technical Support.
- “Software” means the hosted environment of one or more of Baker Hill’s software products, including any Updates.
- “SOW” means a statement of work that specifically refers to the MSA and sets forth the fees, scope of Professional Services, and deliverables (if any) Baker Hill will provide to Client under the Agreement.
- “Subcontractor” means any third party, or third party service, used by Baker Hill to perform some or all of its obligations under the Agreement, including without limitation providing support and/or hosting services.
- “Systems” means the Software, servers and network facilities, hardware, and equipment used by Baker Hill or its agents to make available the Programs to Client via the Internet.
- “Technical Support” shall have the meaning set forth in section 2(d).
- “Templates” means any sample notice or disclosure documents generated by the Programs or Services and any accompanying guidance provided therewith.
- “Third Party Add-on” means any additional functionality (not defined as part of the Software) identified on an Order Form and made available as an enhancement for use with the Software that is delivered via third party software, third party services, third party system integration, or other third party items.
- “Third Party Products” means any third party software, services, tools, and/or other items that are incorporated into or support the Software. For the avoidance of doubt, Third Party Products are distinct from Third Party Add-ons.
- “Third Party Terms” means any third party provider’s terms and conditions that are applicable to Client’s use of a Third Party Add-on.
- “Updates” means any enhancements, patches or bug fixes to Baker Hill’s Software that Baker Hill makes generally available to all Baker Hill’s customer base.
- “Uptime Percentage” means (Hours of Operation less Downtime)/Hours of Operation.
- “User” means one individual natural person, whether an employee, agent, subcontractor, or consultant of Client, who is authorized and registered by Client to use the Programs and Services. Each User must be identified by a unique user identification and password provided by Client.
- “Work Product” means any specifications, operating instructions, notes, technical drawings, designs, documentation, Interface, Templates, and/or other deliverables provided to Client as part of Baker Hill performing Services.
2. Programs and Services.
(a) In exchange for Client complying with all terms of the Agreement (including, without limitation, paying all fees due thereunder) and to the extent specifically identified on one or more Order Forms and/or SOWs, Baker Hill shall provide to Client: (i) the Professional Services; (ii)access to the Software; (iii) any Third Party Add-on(s); (iv) Technical Support for the Software as described in section 2(d) below; and/or (v) any resulting Work Product. Any Services and/or access to the Programs provided by Baker Hill under an Order Form or SOW are provided solely for Client’s own internal business purposes. To be effective and incorporated herein, each Order Form and SOW will: (1) state any Programs that Client licenses the right to access and use hereunder and the fees associated therewith; (2) state the fees and scope of any Services; and (iii) be mutually executed by the Parties.
(b) Baker Hill hereby grants Client a non-exclusive and non-transferable (except as otherwise provided in section 20) license to access and use the Programs specified in each Order Form solely for Client’s internal business operations for the Term, unless earlier terminated in accordance with section 14. As part of a subscription-based license to access and use the Programs, Baker Hill may from time to time provide Updates for no additional charge.
(c) Client may allow its Users to access and use the Programs and Services, subject to Client: (i) not exceeding the capacity (if any) indicated in the applicable Order Form; (ii) causing all Users to comply with the terms of the Agreement; (iii) having written confidentiality obligations with each User that are no less restrictive than those contained in this Agreement; and (iv) terminating a User’s rights to access and use the Programs and Services immediately after he or she ceases being an employee, agent, subcontractor, or consultant of Client. Unless otherwise expressly stated in an Order Form or SOW, Client’s Users will access the Programs and Services electronically through one or more interfaces, Systems, and/or applications operated by or on behalf of Baker Hill. Client is solely responsible for all access to the Programs and Services that it grants its Users (including administering and maintaining the confidentiality of all User accounts, user identification and passwords), for all activities that occur in User accounts, and for Users’ compliance with this Agreement. Unless concurrent User access is specified in the applicable Order Form, User accounts cannot be shared or used by more than one individual User; however, if a limited number of license seats or named users are specified, User accounts may be reassigned from time to time to new Users to replace former Users that have terminated employment or changed job status or function and no longer use the Programs or Services. Client shall prevent unauthorized access to, or use of, the Programs and Services and notify Baker Hill promptly if any such unauthorized access or use occurs via its User accounts.
(d) Baker Hill will provide “Technical Support” as follows: (i) documentation related to the Programs that Baker Hill makes generally available to its customers of such Programs will be made available to Client; and (ii) in accordance with an Order Form and/or SOW, Baker Hill will provide reasonable assistance and consultation via e-mail or telephone to assist Client in resolving problems encountered with Client’s permissible use of the Programs. Technical Support may be requested by Client during the Hours of Operation.
(e) Baker Hill is not a law firm or regulatory compliance officer. Templates are provided for demonstration purposes only and not created for any specific organization or customized for Client. Client is solely responsible for adapting and modifying all Templates to meet its needs and requirements. Client acknowledges that: (i) use of the Services and Programs (including, without limitation, any Templates) do not represent legal or regulatory advice or the practice of law; (ii) Client will not rely on the Templates as legal or regulatory advice and will only use the Templates after consulting its own legal counsel or compliance officer; and (iii) Baker Hill is not responsible for any liability arising from Client’s use of the Templates. Templates are provided “AS IS” and Baker Hill makes no warranty as to: (1) the accuracy, reliability, or completeness of the Templates; (2) the Templates meeting Client’s needs or expectations; or (3) the results that may be obtained from using the Templates. BAKER HILL EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND WITH RESPECT TO THE TEMPLATES, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, COMPLIANCE WITH LAWS, AND/OR THOSE ARISING OR DEEMED TO HAVE ARISEN FROM ANY COURSE OF PERFORMANCE, COURSE OF DEALINGS OR USAGES OF TRADE.
3. Professional Services.
(a) To obtain Professional Services Client shall enter into a mutually agreed to SOW with Baker Hill that specifically refers to and incorporates this MSA and the related Order Form (if any), and sets forth the fees, scope of Professional Services, and deliverables (if any) Baker Hill will provide whether as part of: (i) an initial launch, set-up, or implementation of access to one or more Programs; (ii) adding accessibility to additional Programs; (iii) changes or enhancements to the Programs or Services (other than Updates); (iv) expedited issue or error remediation; and/or (v) other Professional Services requested by Client. Client acknowledges that Baker Hill has no obligation to provide any Professional Services without an executed SOW and may decline to enter into any SOW. Changes to a SOW require and shall become effective and part of the Agreement only when such changes are fully documented in a prior written change order signed by duly authorized representatives of the Parties. Baker Hill requires at least four (4) weeks’ advance notice for scheduling of resources to perform Professional Services. If Client reschedules or cancels scheduled events for Baker Hill’s resources with less than five (5) weeks prior written notice, Client shall reimburse Baker Hill for actual out-of-pocket, noncancelable expenses incurred by Baker Hill to cancel or reschedule.
(b) Baker Hill warrants that Professional Services will be performed in a professional and workmanlike manner. BAKER HILL’S TOTAL LIABILITY IN THE AGGREGATE FOR DAMAGES IN CONNECTION WITH THE PROFESSIONAL SERVICES, REGARDLESS OF THE LEGAL THEORY OF ANY CLAIM, SHALL NOT EXCEED THE AMOUNT PAID BY CLIENT TO BAKER HILL FOR SUCH PROFESSIONAL SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE FIRST EVENT GIVING RISE TO LIABILITY, AND SUCH A CLAIM FOR A RETURN OF AMOUNTS PAID SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDY FOR ANY CLAIM RELATED TO THE PROFESSIONAL SERVICES OR BREACH OF THE WARRANTY SET FORTH IN SECTION 3(b).
4. Third Party Enhancements.
(a) If Client desires to purchase, access, or use one or more Third Party Add-ons, the Order Form will identify each Third Party Add-on and any additional fees. Client shall only use any Third Party Add-on in conjunction with the applicable Software as contemplated by the Agreement, and Client acknowledges Client’s use of a Third Party Add-on may also be subject to certain applicable Third Party Terms. Any Third Party Terms are solely between Client and the applicable third party provider. Client will implement and use a Third Party Add-on only in strict conformance with any applicable Third Party Terms and all legal and regulatory obligations associated with or arising from Client’s use of such Third Party Add-on. To the extent the Third Party Terms conflict with any provision of this Agreement, the Third Party Terms shall prevail solely with respect to Client’s use of the applicable Third Party Add-on. Client shall provide Baker Hill with at least sixty (60) days’ prior written notice if Client intends to cancel or terminate use of a Third Party Add-on and acknowledges that fees paid for any such Third Party Add-on are non-refundable. Client acknowledges that, irrespective of any Third Party Add-ons selected by Client, Baker Hill is not a consumer credit reporting agency and Baker Hill shall not furnish any consumer information to a consumer or credit reporting agency on Client’s behalf.
(b) If an Order Form and/or SOW indicates Baker Hill will provide one or more Interfaces to Client, Baker Hill grants Client the nonexclusive right to use the Interface solely in connection with the applicable Software and Third Party Add-on. If an additional Interface is desired, Client shall provide a written request to Baker Hill for the creation of such Interface and, if approved by Baker Hill in its sole discretion, the Parties shall enter into a SOW therefore that references this MSA, the applicable Schedule(s) and Order Form. If the applicable SOW identifies a third party to create the additional Interface: (i) the SOW shall additionally identify the fees payable by Client to Baker Hill for Baker Hill’s cooperation and the materials to be provided by Baker Hill to facilitate the creation of such Interface; and (ii) Baker Hill shall enter into a written agreement with the third party to govern such third party’s use of any of Baker Hill’s materials. Baker Hill shall, in its sole discretion, decide if a third party will be used to create any additional Interface. Client shall not, nor attempt to, use any Interface to create other interfaces.
(c) Client’s use of any Third Party Add-on is in its sole discretion and Client acknowledges there may be risks associated with such use. Client acknowledges that Baker Hill has no control over the security and validity of any Third Party Add-on and Baker Hill shall have no liability if a third party provider: (i) terminates Client’s right to use or access a Third Party Add-on or Baker Hill’s ability to provide a Third Party Add-on to Client; or (ii) fails to satisfactorily patch or remedy an Interface or Third Party Add-on security vulnerability and, in Baker Hill’s sole discretion, such vulnerability requires prompt termination of a related Interface to prevent or mitigate risk related to data loss, disruptions in transmission of the Programs, or unauthorized access to or misuse of the Programs, Baker Hill’s Systems, or any data stored or transmitted thereto. Unless otherwise specified in the applicable Third Party Terms, Third Party Add-ons are provided “AS IS”. Third Party Add-ons are entirely independent of Baker Hill and its Software and Baker Hill makes no representations or warranties regarding, has no duty or responsibility for, and shall not be responsible for the correction of any error or nonconformance of or caused by any Third Party Add-on. Baker Hill does not provide any Technical Support for Third Party Add-ons.
5. Restrictions. Except as expressly stated herein, Client shall not sell, distribute, transfer, disclose, or sublicense the Programs or Services or make the functionality thereof available to any other party through any means including, without limitation, using the Programs or Services to provide outsourcing services to third parties or in a credit bureau environment. Client shall not, and shall ensure that Client’s personnel do not, use the Services or Programs in violation of any domestic or international anti-money laundering law. Unless pursuant to Baker Hill’s prior written approval given in accordance with subsection 8(c)(i) below, Client shall not deliver or transmit records or data to, Process, or initiate the Processing of records or data with the Programs or Services if any of such activities: (a) subjects Baker Hill to laws or regulations promulgated in a jurisdiction outside of the United States or that are not reasonably related to the provision of the Programs and Services to United States-based financial institutions; (b) subjects Baker Hill or its Subcontractors to being considered a “covered entity” or “business associate” or “subcontractor” as the terms are defined under the Health Insurance Portability and Accountability Act of 1996, found in Section 160.103 of title 45 of the Code of Federal Regulations; or (c) requires Baker Hill to satisfy, or attest adherence to, the payment card industry security standards. Client acknowledges that the Software is not intended, designed, or approved for use outside of the United States or in connection with financial institutions or other entities located outside of the United States. Client shall not, nor shall attempt to, (i) modify, adapt, translate, copy, distribute, disassemble, decompile, reverse engineer, create derivative works based on, or otherwise attempt to derive the source code of the Programs or any Third Party Product, in whole or in part, or permit or authorize a third party to do so; (ii) disclose, publish, or otherwise make publicly available any benchmark, performance, or comparison tests that Client runs (or has run) on the Programs or Services; or (iii) refer to Baker Hill as a consumer reporting agency in any correspondence, advertisement, or other written materials developed by Client.
6. Payment of Fees.
(a) Client shall pay all fees identified in the one or more Order Forms and SOW(s) (the “Fees”), with any start-up or implementation Fees due upon execution of such Order Form, any monthly Fees due on a monthly basis, any Annual Fees due on an annual basis before the start of the applicable Contract Year, and any Fees for Professional Services due as stated in the applicable SOW or Order Form. If no rate is specified for Services in a SOW or related Order Form, the Services shall be provided at Baker Hill’s then-current hourly fee rate for such Services. Client shall reimburse Baker Hill for all reasonable out-of-pocket expenses incurred in connection with performing the Services or facilitating Client’s access to the Programs (including, without limitation, transportation, meals, lodging, supplies, and incidental expenses) plus a ten percent (10%) markup for administrative and billing efforts. Except for any start-up or implementation Fees which are due upon execution of the related Schedule, Baker Hill shall invoice Client for all Fees and any expenses incurred, and Client shall pay all amounts within thirty (30) days of the invoice date. Client shall remit all payments to Baker Hill via ACH or wire transfer to:
PNC Bank, N.A., East Brunswick, NJ
ABA Routing Number: 031207607
Account Number: 8026336967
Reference Invoice #_____________
(b) If indicated in the applicable Order Form or SOW, Client shall pay an Annual Service Retainer against which any Fees incurred for Professional Services performed during the applicable Contract Year will be applied. The first Annual Service Retainer is due in advance of the start of the second Contract Year and all subsequent Annual Service Retainers are due in advance of the start of all subsequent Contract Years. Annual Fees and Annual Service Retainers are nonrefundable even if the applicable Order Form or SOW is subject to early termination and any unused portion of an Annual Fee or an Annual Service Retainer will not carry over to a subsequent Contract Year. Baker Hill may increase any Annual Fee prior to the start of any Contract Year, provided the increase shall not exceed five percent (5%) of the immediately previous Annual Fee at issue.
(c) If Client fails to timely pay any Fees or otherwise invoiced amounts pursuant to this section and does not remedy the failure within fifteen (15) days of the date of Baker Hill’s written notice of the failure, Baker Hill may: (i) immediately suspend Client’s access to and rights to use the Programs; (ii) immediately suspend providing Services to Client; (iii) immediately terminate this Agreement in accordance with section 14 (with such fifteen (15) day period to cure counting as the required cure period set forth in section 14(a)(ii)); and/or (iv) assess interest at the rate of one and one-half percent (1.5%) per month (or the maximum interest rate allowed by law, if less) on any past-due amounts. Client shall pay all sales, use, value-added, and other taxes (except those based on Baker Hill’s net income) that are levied. Client may provide a tax exemption number or affidavit of exception; however, Client shall indemnify and defend Baker Hill for and against all taxes, penalties, and interest arising from any claimed exemptions that are disallowed. In any action or proceeding arising from or related to this Agreement, however denominated, Baker Hill shall be entitled to recover its full costs and expenses incurred related thereto, including but not limited to its reasonable attorneys’ fees (including paralegal fees) and related legal and/or collection expenses.
7. Client Data.
(a) Client acknowledges that the Programs and Services may be provided as a hosted solution and that, in the course of accessing and using the Programs and Services, Client will provide Client Data to Baker Hill’s servers or to servers maintained by a third party for the benefit of Baker Hill. Client represents and warrants that Client has sufficient rights and consents to possess the Client Data and permit Baker Hill to Process the Client Data for the purposes of Baker Hill providing the Programs and Services and otherwise performing Baker Hill’s obligations hereunder, including without limitation all affirmative consents required from each individual whose Personal Data is Processed under this Agreement. Client is solely responsible for the quality, integrity, legality, reliability, appropriateness, and obtaining the necessary rights and consents for Baker Hill to Process the Client Data as contemplated herein. Client shall not make available or transmit any data as part of the Client Data that infringes or violates any third party’s privacy rights, patent rights, trademark rights, copyrights, trade secret rights, other intellectual property rights, contractual rights, publicity/personality rights, or that Client knows contains any viruses, malware, or worms intended to damage, interrupt, or misappropriate any Programs or Baker Hill’s hosted site or servers. Baker Hill has no obligation to and does not review Client Data for accuracy or potential third-party liability. Client acknowledges Baker Hill does not have any responsibility related to who Client provides access to the Client Data.
(b) Baker Hill will use its standard backup procedures for backing up Client Data. Baker Hill is not responsible for the failings of any telecommunications carrier, the Internet backbone, any Internet servers, or Client’s computers or networks. If a server containing Client Data is made unavailable for maintenance or repair, Baker Hill will, where time permits, use reasonable efforts to notify Client at least twenty-four (24) hours in advance of such event. Baker Hill may suspend Client’s access to the Programs and/or Services without any liability to Client in the event of a suspected security event. If a software or hardware error occurs due to a critical circumstance, Baker Hill will use commercially reasonable efforts to restore such server to working order or find a reasonable workaround.
(c) IN NO EVENT SHALL BAKER HILL BE LIABLE TO CLIENT FOR ANY CIRCUMSTANCE THAT TEMPORARILY OR PERMANENTLY DISABLES SERVERS ON WHICH CLIENT DATA RESIDES UNLESS SUCH CIRCUMSTANCE IS CAUSED BY BAKER HILL’S GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.
8. Data Security and Privacy.
(a) Baker Hill shall make available to Client the Security Annex, which is incorporated herein in its entirety. Client acknowledges that it has had a meaningful opportunity to review the Security Annex prior to executing this Agreement and the security framework and standards set forth therein are consistent with industry standards and laws applicable to Client (taking into account the Programs licensed and Services purchased hereunder), and any Personal Data that will be Processed by the Programs and Services in connection with this Agreement. Baker Hill recommends that Client print the Security Annex for its records. Notwithstanding the foregoing, Client acknowledges that no safeguards, procedures, or process will guarantee the security of the Programs, Services or Personal Data and Baker Hill cannot protect against all risks.
(b) Baker Hill may modify or amend the Security Annex from time to time to reflect changes in industry standards, business considerations, and/or applicable laws and regulations, advancements in available technologies, changes in the Programs and Services themselves, or as otherwise deemed appropriate. If Baker Hill amends the terms of the Security Annex to modify the Security Measures, Baker Hill shall provide prior written notice to Client and in no event will such changes materially diminish the protections provided by the Security Measures set forth in the previous version of the Security Annex.
(c) Client acknowledges that Baker Hill has no knowledge of the residency or citizenship of Client’s customers or the origin of any Personal Data. Client further acknowledges that by selecting the specific Programs and Services identified in a Schedule, Client solely controls how any such Personal Data shall be Processed and Baker Hill is not a “data controller” as the term is defined by the GDPR. To the extent Client provides Baker Hill with, or causes Baker Hill to Process, Personal Data that contains EU Data: (i) before transmitting any EU Data to, or causing any EU Data to be received by, the Programs, Services, Baker Hill and/or a Subcontractor, in each instance Client shall provide Baker Hill written notice for Baker Hill’s review and prior approval (with a courtesy copy to Baker Hill’s compliance department) that identifies such EU Data generally and lists any specific instructions relating to all GDPR-related obligations that Baker Hill will have with respect to such EU Data if transmitted to Baker Hill, the Services, Programs, and/or Subcontractor; and (ii) if Baker Hill does not approve the transmission of EU Data in writing, as between Baker Hill and Client, Client is solely responsible and solely liable for all compliance obligations and any resulting liabilities that arise out of and/or are related to the GDPR in connection with such EU Data.
(d) BAKER HILL IS NOT LIABLE FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR INCIDENTAL DAMAGES, INCURRED BY CLIENT OR ANY THIRD PARTY IN CONNECTION WITH ANY UNAUTHORIZED ACCESS RESULTING FROM: (i) THE ACTIONS OF CLIENT; (ii) THE ACTIONS OF ANY THIRD PARTY OTHER THAN BAKER HILL’S SUBCONTRACTORS; OR (iii) THE FAILURE OF ANY SECURITY MEASURES THAT COMPLY WITH THE SECURITY ANNEX.
9. Third Parties. Baker Hill may subcontract some or all of its obligations under this Agreement to a Subcontractor provided Baker Hill: (a) remains liable for performance of all Baker Hill’s obligations under this Agreement and primarily liable to any such Subcontractor for payment; and (b) exerts a good faith effort to prevent any loss to Client resulting from failure of proper performance by the Subcontractor. Apart from Third Party Add-ons, Client acknowledges that the Software may incorporate, or be supported by, certain Third Party Products.. Client may access the Third Party Products only in conjunction with Client’s use of the Programs and Client’s access to and use of the Third Party Products is subject to the terms of this Agreement. The Security Annex shall list: (i) the Subcontractors engaged by Baker Hill to provide any Services for Client and/or that facilitate the delivery of the Programs to Client; and (ii) the Third Party Products incorporated into the Software that may Process Personal Data in connection with Client’s use of the Programs. Client acknowledges and consents to Baker Hill’s use of the Subcontractors and Third Party Products as described in this section as well as to such Third Party Products and Subcontractors Processing Client Data in connection with performance of this Agreement. Baker Hill may modify or amend the Security Annex from time to accurately reflect the Subcontractor and/or Third Party Product information. Baker Hill will use commercially reasonable efforts to provide timely notice of these changes to Client.
10. Audits and Certifications.
(a) The Security Measures are subject to periodic testing by one or more independent third-party audit organizations to determine if the controls for the Software and Services are appropriate for the industry. An audit or similar report resulting from such audit (a “Report”) will discuss if the Security Measures evaluated are suitably designed and operating with sufficient effectiveness to provide reasonable (but not absolute) assurance that the related control objectives were achieved during the period of review. Baker Hill will maintain an online repository of the most-current Reports and, if suitable and reasonably necessary, other policy and control documents explaining Baker Hill’s Security Measures and compliance program which may include policies, procedures and training materials that Client can access. To the extent the online repository does not include information reasonably required by Client to fulfill Client’s obligations and responsibilities under applicable law, no more than once per a 12-month period or upon a showing of good cause, Client may submit a written security questionnaire to Baker Hill and Baker Hill will reasonably cooperate with Client in completing the same. The Reports and all information contained in the online repository and any security questionnaire completed by Baker Hill: (i) are Baker Hill Confidential Information; and (ii) may be used solely by Client to evaluate the design and operating effectiveness of defined controls applicable to the Baker Hill Services and are provided without warranty of any kind.
(b) Baker Hill offers its Software in the cloud using a third party hosting provider and a one-to-many business model that relies on standardization of best practices and industry standards for the benefit of its clients. As a result, onsite audits by clients pose security and privacy risks to Baker Hill and other Baker Hill clients. Moreover, Baker Hill’s hosting provider may not allow for physical audits of its data centers, but instead provides third party audits and certifications. It is for these reasons, among others, that Baker Hill’s Security Measures consist of the audits and available documentation detailed in section 10(a) above as part of balancing transparency regarding the security and privacy safeguards that Baker Hill has implemented, while also satisfying security and privacy obligations to Baker Hill clients and its Subcontractors. Notwithstanding the foregoing, the Parties agree that, during the Term and subject to the conditions of section 10(c) below, Client may conduct a security audit of Baker Hill in the event the audit is required (i) by Client’s governmental or regulatory authorities, or (ii) to address material operational problem(s) or issue(s) that pose a legitimate and material threat to Client’s business.
(c) Audits conducted pursuant to section 10(b) must: (i) be performed during normal business hours; and (ii) be subject to, and occur only after, Client and Baker Hill enter into a written statement of work for each audit that specifically references this Agreement, is signed by both Parties, and clearly identifies the terms, conditions, purpose, and scope of the audit (an “Audit SOW”). Unless expressly stated otherwise in the applicable Audit SOW, the scope of any audit is limited to the evaluation of Baker Hill’s internal control policies and procedures as they relate to the Software and Services provided to Client under the Agreement. Further, (1) an Audit SOW must be signed at least ten (10) business days prior to the commencement of the relevant audit; (2) in performing any audit, Client shall ensure that it and/or its auditor or agent complies with Baker Hill’s policies and procedures and are subject to Baker Hill’s supervision; and (3) Client is solely responsible for all costs of the audit and, in addition, shall pay Baker Hill’s then-current hourly rates in connection with the audit as set forth in the Audit SOW. Baker Hill will discuss with Client any deficiencies identified by an audit performed hereunder and to develop a plan to correct any such deficiencies within a commercially reasonable period of time. Client will exercise any rights it may have under applicable Laws and Standards to conduct an audit or inspection of Baker Hill’s Processing of Client’s Personal Data by instructing Baker Hill to carry out the audits as described in this section 10(c) and/or pursuant to the terms of section 10(a). If Client wishes to change this instruction regarding the audit and inspection, Client shall provide Baker Hill with written notice of such request in accordance with the notice provisions of the Agreement and the Parties shall jointly discuss how to implement any requested change and the resulting business implications thereof.
11. Ownership. The Programs are licensed, not sold, to Client and can only be used in accordance with this Agreement. Baker Hill’s suppliers retain all right, title, interest, and ownership of any Third Party Add-ons and Third Party Products. Baker Hill retains all right, title, interest, and ownership of Baker Hill’s Intellectual Property. Client will not delete or in any manner alter the copyright, trademark, or other proprietary rights notices or markings that appear within or on the Programs. To the extent Client provides any suggestions or comments related to the Programs or Services to Baker Hill, Client hereby irrevocably assigns to Baker Hill all right, title, and interest in and to such suggestions and comments and acknowledges that Baker Hill has the right to retain and use the same in current or future products or services without Client approval or any compensation to Client. Baker Hill may use the following in Baker Hill’s customer lists and marketing or promotional materials: Client’s name, quotes from Client employees, and other information received from Client regarding Client’s use of the Programs and/or Services. Client may identify Baker Hill as a supplier of the Software and Services provided Client does not imply that Baker Hill approves, recommends, or certifies the products and/or services of Client and, in so identifying, Client only uses the “Baker Hill Solutions, LLC” trade name. Client obtains no right to use any trademark of Baker Hill under this Agreement. Client consents to receiving marketing materials and other updates on Baker Hill offers, news, and promotions from time to time. Client can withdraw this consent at any time by providing written notice to Baker Hill in accordance with section 20 hereof.
12. Compliance with Laws.
(a) Client acknowledges that its activities of assessing credit risk and lending and the handling of Personal Data and/or protected financial information are subject to various international, federal, state, and local laws, regulations, rules, administrative opinions, ordinances, and industry standard security practices, such as, without limitation, all applicable data protection and privacy laws, economic and trade sanctions administered by the Office of Foreign Assets Control of the U.S. Department of Treasury, and the safeguarding regulations promulgated by the relevant regulatory authorities in accordance with Title V of the Gramm-Leach-Bliley Act, the Equal Credit Opportunity Act, the Truth in Lending Act, the Dodd-Frank Act, the Fair Credit Reporting Act, the USA Patriot Act, The Bank Secrecy Act of 1970, and the Consumer Protection Act (collectively, the “Laws and Standards”). Client warrants that it complies with all Laws and Standards that are applicable to Client, Client’s use of the Programs and Services, the Client Data, and Client’s use and provision thereof, and shall continue to comply with the same during the Term. To the extent required by the Laws and Standards in connection with the activities contemplated under this Agreement, Client shall be solely responsible for developing and delivering any required initial and annual privacy notices, the content of which shall be consistent with the terms of this Agreement.
(b) Baker Hill will comply with all United States federal, state, local laws, and regulatory requirements that are applicable to Baker Hill as a general supplier of software and technology in connection with the provision of the Software and Services under this Agreement. To the extent Baker Hill’s activities contemplated under this Agreement are subject to the safeguarding regulations promulgated by the relevant regulatory authorities in accordance with Title V of the Gramm-Leach-Bliley Act, the Parties intend that disclosures of Customer Information to Baker Hill hereunder qualify under the “service provider exception” set forth at 15 U.S.C. § 6802(e)(1)(A).
(c) Client acknowledges that Client: (i) remains solely responsible for its legal and regulatory compliance obligations in connection with Client’s use of the Services and Programs; and (ii) has sole control over the jurisdictions in which Client uses the Programs and Services and the manner of such use. Prior to entering into any Order Form or SOW, Client shall assess if the Programs, Services, and then-current Security Measures satisfy all requirements that apply to Client’s use of the Programs and Services as a result of Client’s regulatory obligations. Such assessment shall include, but not be limited to, a review of the Security Annex to ensure continued compliance with industry standards and laws applicable to Client in connection with Personal Data that will be Processed by the Services and Programs hereunder. The Parties may make future alterations to this Agreement as necessary to conform to any laws and standards applicable to the provision of the Programs and Services hereunder provided that, in Baker Hill’s sole discretion, such alterations do not conflict with the objectives of this Agreement nor alter the economics of this Agreement or the allocation of risk hereunder.
(a) The Party receiving information (“Recipient”) from the other Party (“Discloser”) shall treat the Discloser’s information as confidential and proprietary (“Confidential Information”) unless the Recipient is able to demonstrate the information: (i) was known to Recipient before the disclosure; (ii) is part of the public domain through no act, disclosure, or involvement of the Recipient; or (iii) is wholly and independently developed by Recipient’s personnel who did not have knowledge of the Confidential Information. Both Parties acknowledge that the terms of each Order Form and SOW (and any addendum, attachment, or appendix to either of the foregoing) are the Confidential Information of each Party and Baker Hill’s Intellectual Property is considered the Confidential Information of Baker Hill. Notwithstanding anything to the contrary in this section 13(a), Personal Data and Customer Information are not Confidential Information under this Agreement, but instead addressed in section 8 of this MSA and in the Security Annex.
(b) As a Recipient, each Party shall: (i) protect the secrecy of the other Party’s Confidential Information using the same degree of care it accords to its own confidential information, which in no event will be less than a reasonable degree of care; (ii) not disclose the other Party’s Confidential Information to anyone other than its employee, subcontractor, or agent that has (1) a reason to know the Confidential Information for either performing a Party’s obligations under this Agreement, using the Programs or Services, or to effect, administer, or enforce this Agreement; (2) been advised of the confidential nature of the information; and (3) written confidentiality obligations to the Recipient that are substantially similar to those contained in this section 13; and (iii) not use the other Party’s Confidential Information except to perform its obligations under this Agreement.
(c) Recipient may disclose the Discloser’s Confidential Information as authorized by a court order or as otherwise required by law provided that, where legally permitted, Recipient (i) first provides Discloser with written notice and a reasonable opportunity to oppose that disclosure; and (ii) reasonably cooperates, at the Discloser’s cost, with Discloser to limit the disclosure. A Party may disclose the terms of this Agreement as required to implement and enforce the terms hereof or as may be required by legal procedures. The Parties acknowledge that the Discloser retains all right, title, and interest in and to the Discloser’s Confidential Information. Recipient shall do all things reasonably deemed necessary by the Discloser to confirm the Discloser’s ownership of those materials.
14. Term and Termination.
(a) This MSA and the Agreement commence on the Effective Date of the first Order Form or SOW executed hereunder and continue, unless earlier terminated as permitted by this MSA, for the duration of each term (including the Initial Term and any Renewal Terms) identified in the Order Form(s) or SOW(s) (the “Term”). If no term length or end date is specified in a SOW for Professional Services, then the term of the SOW shall commence upon the SOW Effective Date and terminate upon completion of the Professional Services or early termination as permitted by this Agreement. For the avoidance of doubt, the Term of this MSA and Agreement shall continue as long as at least one Order Form or SOW remains valid and in effect. Termination or expiration of any Order Form or SOW shall leave other Order Forms or SOWs unaffected.
(b) If either Party breaches the Agreement, the other Party may terminate this Agreement in its entirety by providing a termination notice explaining the breach and providing the breaching Party a time period to cure as follows: (i) if Client breaches the terms of sections 5 or 13 of this MSA, Baker Hill may immediately terminate the Agreement upon notice to Client without any opportunity to cure; (ii) if the breach is a failure of Client to make any payment under the Agreement, Client has a period of fifteen (15) days from the date of Client’s receipt of the termination notice to cure; and (iii) in all other cases, the breaching Party has a period of thirty (30) days from the date of its receipt of the termination notice to cure. If the breaching Party fails to cure the breach in the applicable period of time, the Agreement will automatically terminate at the end of the applicable time period. A Party may terminate an individual Order Form or SOW without terminating the entire Agreement if there is another active Order Form or SOW under this MSA and the Parties have mutually agreed to, and the terminating Party complies with, the termination conditions herein and in the applicable Order Form or SOW.
(c) Unless otherwise specified in the applicable Order Form, upon termination of the Initial Term or a Renewal Term of an Order Form, such ORDER FORM and thE Agreement will automatically renew for A successive renewal term. A Party may terminate an Order Form (and the Agreement in its entirety if such Order Form is the only active Order Form or SOW under this MSA) at the end of the Initial Term or the then-current Renewal Term (as the case may be) by giving written notice to the other Party of its intention to do so at least ninety (90) days prior to the end of the Initial term or then-current Renewal Term. If the length of a Renewal Term for an Order Form is not otherwise expressly specified in that Order Form, each renewal term shall be equal to the length of the Initial Term of such Order Form. To be effective, in addition to complying with this subsection 14(c), a notice of non-renewal by a Client shall be: (i) on Client letterhead; (ii) sent via U.S. certified mail, return receipt requested, postage prepaid, and in accordance with the notice provisions of section 20; and (ii) marked as C/O Baker Hill Accounts Receivable on the envelope.
(d) If this Agreement is terminated for any reason (including by reason of non-renewal): (i) if applicable, all outstanding Order Forms and SOWs shall immediately terminate; (ii) Client shall immediately discontinue accessing the Programs and immediately cease all use of the Programs and Services; (iii) all amounts owed to Baker Hill hereunder through the end of the Term, including all amounts to be charged through the end of the then-current initial or renewal term but not yet invoiced to Client, shall immediately become due and payable; and (iv) each Party shall destroy the other Party’s Confidential Information in its possession or control except as it relates to a Party retaining a copy of the Confidential Information to comply with applicable law or its document retention practice or in electronic backup files made in the ordinary course of business. Notwithstanding the foregoing sentence, upon termination or completion of any Professional Services, Baker Hill may retain all information collected or created by Baker Hill during the performance of such Services, subject to its ongoing compliance with section 13, as applicable. Sections 1, 2(e), 3(b), 5, 6, 7(c), 8(d), 11, 12(c), 13, 14(d), and 15-20 shall survive termination of this Agreement.
(e) If Client desires a copy of the Client Data stored in Baker Hill’s Systems upon termination of this MSA, Client shall provide Baker Hill a written request of the same prior to the termination effective date. Baker Hill shall only return such Client Data pursuant to a SOW mutually entered into between the Parties, subject to payment of a fee specified therein, and provided Client has paid all amounts owed hereunder in full. Unless otherwise specified in the applicable SOW, such Client Data shall be provided in .csv file format.
15. Benchmark Data. Baker Hill may on one or more occasions monitor and collect Benchmark Data to: (a) improve the Programs, Services, and/or the overall user experience; (b) aggregate de-identified data to offer trending and/or statistical information to Baker Hill’s user base; (c) monitor Client’s use of the Programs and Services; (d) create new service or product offerings; and (e) identify third-party offerings that may provide value to Baker Hill’s user base. Prior to using any such gathered Benchmark Data, Baker Hill will de-identify the same so that the Benchmark Data does not identify Client, Client’s customers, Client’s personnel, or any other individuals. Benchmark Data in its de-identified form shall be the property of Baker Hill and Baker Hill shall have the right to retain, use, distribute, sell, and otherwise exploit the Benchmark Data in its de-identified form.
16. Non-Solicitation of Employees. During the Term and for one (1) year thereafter, Client will not, without the prior written consent of Baker Hill, directly or indirect, on Client’s behalf or in the service of or on behalf of others, solicit or attempt to solicit, offer employment to, employ, or engage as a subcontractor, or hire any person employed then or within the preceding twelve (12) months by Baker Hill (an “Employee”). Client acknowledges that Baker Hill may condition such consent upon Client paying Baker Hill one hundred and fifty percent (150%) of the individual’s then-current annual salary as compensation. For the avoidance of doubt, it is not considered a breach of this section if Client hires an Employee as a result of that person responding to a general solicitation of employment without being directed to the same by Client or another on Client’s behalf.
(a) Client shall indemnify and defend Baker Hill, its affiliates, employees, officers, agents, and directors from and against any and all claims, actions, losses, damages, expenses, judgments, costs (including any attorneys’ fees, court costs, and related legal expenses) and liability arising from or in connection with one or more or all of the following: (i) Client’s breach of any provision of this Agreement or any Third Party Terms; (ii) Client’s actual or alleged violation of the Laws and Standards, the GDPR or other laws or regulations related to EU Data, and/or any other law, regulation, rule, administrative opinion, or ordinance applicable to Client; (iii) any Client Data or an actual or alleged business or lending decision made (or not made) by Client; (iv) any conduct of Client or its employees or agents (whether actual or alleged) with respect to a customer of Client; (v) all administrative fines arising from or related to Baker Hill’s activities performed on behalf of Client, provided Baker Hill was not grossly negligent and, where the administrative fine is associated with the misuse of Personal Data, Baker Hill did not act outside of or contrary to Client’s written instructions with respect to any Personal Data; and (vi) Client’s use of the Templates and/or any Third Party Add-on. Client shall comply with its obligations of this section regardless of whether or not the claim, damage, loss, or expense is caused or alleged to be caused, in whole or in part by the negligence or strict liability of Baker Hill or any other party to be indemnified hereunder.
(b) If either Party receives a notice, or becomes aware, of any claim or the commencement thereof that is subject to indemnification and defense under this Agreement, it shall promptly give the other Party written notice thereof (however, the failure to so notify shall relieve the indemnifying Party of its liability to the indemnified Party only to the extent that the indemnifying Party is prejudiced thereby). Subject to the terms of this section 17(b), Client shall have sole control of the defense and settlement of any such claim and Baker Hill will provide Client with reasonable cooperation and assistance, at Client’s sole expense, in the defense or settlement of any claim. Baker Hill shall have the right, at its own expense, to participate in any legal proceeding to contest and defend a claim and to be represented by legal counsel of its choosing and cost, but shall have no right to control the defense of or settle a claim without Client’s written consent (provided Client assumes its obligations under this section 17). Notwithstanding the foregoing sentence, Client shall not agree to a settlement that requires Baker Hill to make an admission of liability by, or that materially adversely impacts, Baker Hill without Baker Hill’s advance written consent.
18. Disclaimer and Limitation of Liability.
(a) EXCEPT FOR THE REPRESENTATIONS, WARRANTIES, AND COVENANTS EXPRESSLY STATED IN THIS AGREEMENT, EACH PARTY DISCLAIMS ALL OTHER REPRESENTATIONS, WARRANTIES, AND COVENANTS, EXPRESS OR IMPLIED, RELATING TO ITS OBLIGATIONS UNDER THIS AGREEMENT, THE PROGRAMS, SERVICES, AND/OR THIRD PARTY PRODUCTS, INCLUDING (BUT NOT LIMITED TO) THOSE REGARDING MERCHANTABILITY, NONINFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE. BAKER HILL DOES NOT WARRANT THAT THE PROGRAMS, SERVICES, OR THIRD PARTY PRODUCTS WILL MEET CLIENT’S REQUIREMENTS OR OPERATE IN THE COMBINATIONS THAT MAY BE SELECTED FOR USE BY CLIENT, OR THAT OPERATION OF THE SERVICES, PROGRAMS, OR THIRD PARTY PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DATA STORED BY THE PROGRAMS, SERVICES, OR THIRD PARTY PRODUCTS WILL NOT BE LOST.
(b) EXCEPT AS SET FORTH IN SECTION 3(b) HEREOF IN CONNECTION WITH PROFESSIONAL SERVICES, Baker Hill’s total liability to Client in the aggregate for any claim arising from or related to the Agreement shall not exceed three (3) months’ worth of the annual Fees paid to Baker Hill by Client for the Program(s) or Services that gave rise to the liability. IN NO EVENT WILL BAKER HILL BE LIABLE TO CLIENT UNDER THIS AGREEMENT OR ANY ORDER FORM OR SOW HEREUNDER, FOR LOST PROFITS, LOSS OF GOOD WILL, COMPUTER FAILURE, WORK STOPPAGE, LOST DATA, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES, WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE, EVEN IF THE AFOREMENTIONED WERE FORESEEABLE OR BAKER HILL HAS BEEN ADVISED OF ITS POSSIBILITY, OR FOR ANY claim: (i) against Client by a third party; (ii) arising out of or relating to (1) the use by Baker Hill of Client parameters that were inaccurate or incomplete when supplied by Client, (2) Client’s use of the Third Party Add-ons, even if Baker Hill has been advised of the possibility of such claim, (3) THE TRANSMISSION OF CLIENT DATA TO BAKER HILL IN VIOLATION OF THE AGREEMENT; AND/OR (4) THE USE OF THE PROGRAMS OR SERVICES IN VIOLATION OF THE AGREEMENT.
19. Export Control. Without the prior written authorization of Baker Hill and any other authorizations required under applicable United States laws and regulations, Client will not knowingly export or re-export, directly or indirectly, the Programs or Services to (a) a third party that Client knows will directly assist in the design, development, production, stockpiling or use of missiles, nuclear weapons or chemical/biological weapons; (b) any entity on the Department of Commerce Entity List; (c) any person or entity on the Department of Commerce Denied Persons List; (d) any country subject to sanctions administered by the Department of Treasury’s Office of Foreign Assets Control; or (e) any entity or individual contained in the lists of prohibited entities and persons maintained by the Office of Foreign Assets Control. If Client obtains Baker Hill’s authorization to export the Programs or Services, Client is solely responsible for compliance with all applicable laws, including export and import regulations of other countries.
20. General Terms.
(a) This Agreement is the complete and exclusive statement of the Parties’ agreement and supersedes all proposals, prior agreements, and other communications (oral or written) between the Parties relating to the subject matter hereof.
(b) In all matters relating to this Agreement, Client and Baker Hill shall act as independent contractors. Neither Baker Hill nor Client shall represent that it has any authority to assume or create any obligation, express or implied, or to make a representation on behalf of the other Party.
(c) To be effective, any modification to this Agreement needs to be in writing and signed by both Parties. A waiver by either Party of, or a Party’s delay in exercising, its rights under this Agreement does not constitute a waiver of any other provision, breach, or default. If any provision of the Agreement is held invalid, illegal, or unenforceable, the remaining provisions will remain in effect. Headings used herein are for convenience only and shall not affect the meaning or construction of this Agreement.
(d) All notices under this Agreement shall be in writing and delivered to the other Party at the address in the applicable Order Form. Client shall provide Baker Hill with accurate, current, and complete information on Client’s legal business name, address, email address, and phone number, and maintain and promptly update this information with Baker Hill should it change. To that end, a Party may from time to time change its address for notification purposes by giving the other Party ten (10) days’ prior written notice of such information and the date upon which it shall become effective. Notice is deemed received by a Party at the earlier of: (i) when received, if hand delivered; (ii) five (5) days after being mailed by U.S. certified mail, return receipt requested, postage prepaid; or (iii) one (1) business day after mailed if sent by a reputable overnight delivery service with tracking capabilities.
(e) Client shall not assign, transfer, or delegate any of its rights, duties, or obligations under this Agreement, in whole or in part, without the prior written consent of Baker Hill, provided, however, that Client may assign this Agreement to a successor-in-interest in conjunction with a transfer of all or substantially all of the Client’s assets or equity provided that: (i) the successor-in-interest is not a competitor of Baker Hill; (ii) Client provides reasonably prompt written notice of such assignment to Baker Hill; and (iii) the successor-in-interest agrees in writing to be bound by the terms hereof. Any attempted assignment in contravention of this section is null and void and permits Baker Hill to terminate this Agreement immediately upon written notice to Client. This Agreement inures to the benefit of and binds the Parties, their permitted successors, heirs, and assigns.
(f) This Agreement is to be interpreted and construed in accordance with the laws of the state of Indiana without regard to any conflict of law principles to the contrary. Any proceeding arising from this Agreement shall be exclusively brought and exclusively maintained in the state courts situated in Marion County, Indiana or Hamilton County, Indiana, or the federal district courts located in the Southern District of Indiana, Indianapolis Division, and each Party irrevocably consents to and irrevocably waives any objection to the exclusive personal jurisdiction and exclusive venue of those courts.
(g) This Agreement shall not be construed against any Party by reason of its preparation. This Agreement is made and entered into for the sole benefit of the Parties hereto and no other entity shall be a direct or indirect beneficiary of, or shall be entitled to bring, any direct or indirect cause of action or claim in connection with, this Agreement.
(h) With respect to execution of this Agreement and any Order Forms, SOWs, or addenda hereto: (i) a facsimile or scanned file of a Party’s signature transmitted via email by the signing Party to the other Party binds, and shall be considered an original signature of, the signing Party; and (ii) such documents may be executed in counterparts, each of which shall be deemed an original, but all of which taken together constitute one and the same instrument.