Last Updated: September 6, 2017

These Online Service Terms and Conditions (the “Terms and Conditions”) constitute the legal agreement between you (“you” or “Customer”) and (a) Computershare Governance Services Inc., if you reside or hold your principal place of business in the United States, its territories or possessions, or (b) Computershare Governance Services Ltd., if you reside or hold your principal place of business in Canada (such contracting entity, “CGS”), with respect to your purchase and use of the  online service  (the “Online Service”) and any associated professional services pursuant to an Order Form (as defined below).  Your use of the Online Service is expressly conditioned on your consent to these Terms and Conditions and the Order Form(s) (collectively, the “Agreement”).  If you are entering into these Terms and Conditions on behalf of any entity, you represent and warrant that you are authorized to accept these Terms and Conditions on such entity's behalf.

The effective date of the Agreement (the “Effective Date”) will be the date upon which you enter into an Order Form for the Online Service.

By accessing and using the Online Service, you hereby agree to these Terms and Conditions, including the limitations on liability set forth herein and the provisions governing CGS’s ability to modify these Terms and Conditions set forth in Section 22.  IF YOU DO NOT AGREE WITH ALL OF THE TERMS AND CONDITIONS SET FORTH HEREIN, YOU ARE NOT PERMITTED TO ACCESS AND USE THE SERVICES.

  1. DEFINITIONS.

    “Affiliate” means any person or entity directly or indirectly Controlling, Controlled by or under common Control with a party.   

    “Authorized User” means any of your or your Affiliates’ directors, officers, employees, independent contractors or agents who have been granted access to the Online Service by CGS pursuant to the Agreement as set forth on the Order Form. Third party administrators must be approved in writing by Computershare.  You will be responsible for your and your Affiliates’ Authorized Users’ compliance with the terms of the Agreement. 

    “CGS Site” means the website CGS designates to provide the Online Service, or any successor website thereto. 

    “Customer Data” means all data entered into the Online Service by or on behalf of Customer and its Authorized Users. 

    “Control” and its derivatives means with regard to an entity the legal, beneficial or equitable ownership, directly or indirectly, of fifty percent (50%) or more of the capital stock (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights, or effective control of the activities of such entity regardless of the percentage of ownership.

    “Documentation” means all help files available in an online format to users of the Online Services, as updated from time to time.

    “Entities” has the meaning set forth on your Order Form.

    “Initial Term” has the meaning set forth on your Order Form.

    “Intellectual Property Rights” means all patents, copyrights, moral rights, trademarks, trade secrets, trade dress and any other form of intellectual property rights recognized in any jurisdiction, including applications and registrations for any of the foregoing.

    “Order Form” means your order for the Online Service or professional services submitted to CGS either online via the CGS Site or through other means.

    “Renewal Term” has the meaning set forth on your Order Form.

    "Service Providers" means any of CGS’s suppliers and Affiliates that may provide services or software for purposes of supporting the Online Service.

    “Services” means the Online Service and any professional services provided hereunder.

  2. SERVICES.  You hereby authorize CGS to provide the Services set forth in the Order Form(s) in accordance with the Agreement.  CGS will, subject to the terms and conditions of the Agreement, use commercially reasonable efforts to provide the Online Service.  You acknowledge that CGS may use Service Providers to perform certain aspects of the Online Service provided to you hereunder, provided that CGS shall be responsible for the acts and omissions of such Service Providers.  CGS may provide you with support services as reasonably necessary to facilitate its performance of the Online Service.  In order to use the Online Service, your computer hardware, software and internet connectivity must meet certain minimum requirements as may be specified in the Documentation made available from time to time.  CGS bears no liability or responsibility if you cannot access the Online Service due to a failure to meet such minimum requirements.  All electronic data transmitted by you to CGS for implementation purposes shall be exchanged in accordance with CGS then-current security protocols and policies, including without limitation, minimum encryption and password requirements.  The Online Service is subject to the Service Level Agreement located here.
  3. REGISTRATION; ACCOUNTS.  Any Order Form submitted by you in connection with the Agreement shall include all required information to enable CGS to perform the Online Service for you, including your company name, the number of Authorized Users included in the Online Service and any other instructions or requirements pertinent to your use of the Online Service.  For the GEMS (Global Entity Management System) Online Service, you will activate and deactivate access privileges for your Authorized Users.  For the BoardWorks Online Service, CGS will activate and deactivate access privileges for your Authorized Users. You are responsible for (a) protecting and safeguarding any keys, certificates, passwords, access codes, user IDs or other credentials and login information that have been provided to you or that are generated in connection with your use of the Online Service and (b) all activities that occur in connection with your account.  You agree to provide true, current and accurate information to CGS as required for your Authorized Users to access and use the Online Service and you will update the same information as necessary from time to time. 

  4. LIMITED RIGHTS.  Subject to the terms and conditions of the Agreement, CGS hereby grants you a limited, revocable, non-exclusive, non-transferable right to use and access the Online Service via the CGS Site during the Term (a) solely for the internal business purposes of you and your Affiliates; and (b) solely for the number of Authorized Users and Entities set forth on the applicable Order Form.  You may use the Online Service only as permitted in the Agreement and in compliance with relevant laws.  CGS hereby reserves all rights not expressly granted to you in the Agreement.

  5. PROPRIETARY RIGHTS.  Subject to Customer’s ongoing ownership of the Customer Data, CGS or its Service Providers owns and reserves all right, title, and interest in and to the Online Service, including without limitation any software or technology utilized in the provision or use of the Online Service and all Intellectual Property Rights therein. You acknowledge that (a) all right, title and interest in and to the Online Service, including the Online Service and all Intellectual Property Rights embodied therein or associated therewith, are and shall remain with CGS and its Service Providers; (b) no right or interest in the Online Service is conveyed other than the limited license granted herein; (c) the Online Service is protected by copyright and other laws covering Intellectual Property Rights; and (d) the Online Service embodies valuable confidential and secret information of CGS and its Service Providers, the development of which required the expenditure of considerable time and money.  You will not take or encourage any action during or after the Term of the Agreement that will in any way impair the rights of CGS or its Service Providers in and to the Online Service, any proprietary software or technology of CGS or any Intellectual Property Rights in and to any of the foregoing.

  6. LIMITATIONS ON USE.  You may not and will not encourage or permit any Authorized User to rent, lease, sell or lend the Online Service or access thereto or use the Online Service on a service bureau basis and provide services to third parties through the use thereof.  You may not and will not encourage or permit any Authorized User to allow the use of the Online Service by any third party.  You may not, and will not encourage or permit any Authorized User to: (a) use the Online Service in any manner or for any purpose other than as expressly permitted by the Agreement; (b) access or use the Online Service in a way intended to avoid incurring fees to be paid to CGS pursuant to the Agreement; (c) access or use the Online Service in any way that violates the Agreement or any applicable laws, rules, or regulations (including without limitation, applicable export and privacy laws); (d) modify, alter, adapt, tamper with, repair or otherwise create derivative works of any software, technology, content or any Intellectual Property Rights of CGS included in or used to provide the Online Service, including disabling or bypassing any security features of the Online Service; (e) reverse engineer, disassemble or decompile the Online Service or any software or technology of CGS included in or used to provide the Online Service; or (f) attempt to discover or recreate the Online Service or any software, technology or Intellectual Property Rights of CGS.  Further, you may not and will not encourage or permit any Authorized User to distribute, share, or facilitate the distribution of unauthorized data, malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code in connection with your or their use of the Online Service, or to send, receive or support email messages that are unsolicited, deceptive, anonymous, excessively voluminous or that contain falsified identifying information, including spamming and phishing, and you shall be solely responsible for any of the foregoing introduced through your own or your Authorized Users’ use of the Online Service.  Further, you may not and will not encourage or permit any Authorized User to use the Online Service in a manner that, or introduce any materials or content to the Online Service that, infringes, misappropriates or otherwise violates the Intellectual Property Rights or privacy rights of any person or entity.  You shall not remove any trademark, copyright, or any other proprietary notices from the Online Service or any printouts or reports derived from the Online Service.  

  7. CHANGES TO SERVICES.  CGS may improve the Online Service without prior notice to you, Authorized Users or others.  CGS may also update or revise the Documentation during the Term. 

  8. SUSPENSION, LIMITATION OR TERMINATION.  CGS may, without liability to you, immediately suspend, terminate or limit access to the Online Service at any time in the event (a) CGS determines that the Online Service is being used by you or any Authorized User in violation of applicable federal, state, provincial or local law or ordinance, the Agreement, or any agreement or policy applicable to the Online Service; (b) CGS determines that the Online Service is being used by you or any Authorized User in an unauthorized or fraudulent manner or that you have submitted fraudulent or inaccurate information to CGS; (c) CGS determines that your use of the Online Service adversely affects CGS’s equipment or service to others; (d) CGS is prohibited by an order of a court or other governmental agency from providing the Online Service; (e) of a denial of service attack or any other event which CGS determines, in its sole discretion, may create a risk to the Online Service or to any other customers if the Online Service were not suspended, limited or terminated; or (f) of a security incident or other disaster that impacts the Online Service.  CGS shall have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of your use of the Online Service in accordance with this Section 8.  Service Fees will continue to accrue during any period of suspension or limitation.

  9. THIRD PARTY PRODUCTS AND SERVICES.  Except as otherwise expressly provided under the Agreement, you are solely responsible for obtaining and maintaining, at your sole cost and expense, hardware, equipment, third party software, and any warranties and support and maintenance services related to each of the foregoing, and all internet browsers and connections required to access or use the Online Service and CGS shall have no liability or responsibility in connection therewith.  Without limiting the foregoing, you must obtain and maintain, and pay all charges, taxes and other costs and fees related to, internet access, telephone, computer, and other equipment, and any communications necessary for your access and use of the Online Service.

  10. FEES.   You agree to pay to CGS the non-refundable fees set forth in the Order Form for your access and use of the Online Service (the “Service Fees”).  Except as otherwise set forth in the Order Form, the Service Fees are billed in advance of the provision of the corresponding Online Service ordered.  All Service Fees invoiced by CGS must be paid by you in full within thirty (30) days of the date of receipt of such invoice unless otherwise set forth on the Order Form.  Failure to pay your Service Fees within fifteen (15) days of the due date may result in immediate suspension of your access to the Online Service, in CGS’s sole and absolute discretion.  You will be charged interest on any overdue fees at a rate of the lesser of (a) 1.5% per month (18% per annum); and (b) the maximum rate of interest permitted by applicable law.  CGS will have the right to increase the Service Fees from time to time in its discretion upon forty-five days’ notice, provided that such increase shall not apply to any current subscription period in effect at the time of such increase, but rather to the Renewal Term following such current subscription period.  You are responsible for the payment of all taxes that may now or in the future be associated with the Agreement or your use of any of the Online Service (other than taxes based on CGS’s net income).   Any necessary, reasonable and direct travel and subsistence expenses incurred by CGS in the provision of additional services will be billed additionally to Customer at the cost of such expense.  Such expenses shall be promptly reimbursed provided they are accompanied by reasonable supporting documentation.

  11. TERM AND TERMINATION.  The Agreement commences on the Effective Date and continues in effect until the expiration of the Initial Term and any Renewal Term(s) set forth in the Order Form (the “Term”). Either party may terminate the Agreement (a) at the end of the Initial Term or any Renewal Term by providing written notice to the other party at least thirty (30) days before the expiration of the current term; or (b) upon any material breach of the Agreement by the other party that, if remediable, has not been corrected within thirty (30) calendar days after written notice.   Upon any expiration or termination of the Agreement, (i) any and all liabilities accrued prior to the date of such expiration or termination will survive (including the payment of Service Fees for Online Service performed); and (ii) you will promptly discontinue use of the Online Service.  The following sections will survive any expiration or termination of the Agreement: Sections 5, 12, 13, 14, 15, 18, 20, and 21.

  12.  NO WARRANTY.  CGS represents and warrants to Customer that the Services provided under this Agreement shall be performed in a professional and workmanlike manner in accordance with industry standards.  CGS AND ITS SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF NON-INFRINGEMENT, OF COMPLIANCE WITH LAWS, OF LACK OF VIRUSES, OF ACCURACY OR COMPLETENESS OF DATA, OF RESPONSIVENESS, OF RESULTS, OF LACK OF NEGLIGENCE OR LACK OF WORKMANLIKE EFFORT, OF CONDITION OR WARRANTY OF TITLE, OF QUIET ENJOYMENT, OF QUIET POSSESSION, OR OF CORRESPONDENCE TO DESCRIPTION. TO THE MAXIMUM EXTENT PERMITTED BY LAW, CGS MAKES NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL OPERATE IN AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE MANNER OR THAT YOUR DATA WILL NOT BE LOST OR DAMAGED.  YOU ASSUME SOLE RESPONSIBILITY AND ENTIRE RISK AS TO THE SUITABILITY AND RESULTS OBTAINED FROM USE OF THE SERVICES. 

  13. CONFIDENTIALITY.  You acknowledge and agree that by using the Online Service you may be granted access to certain confidential information of CGS, its Affiliates or Service Providers that may be marked as “Confidential” or that otherwise, by its nature, would be reasonably understood to be confidential, including without limitation the Online Service (“CGS Confidential Information,” collectively with the Customer Data, the “Confidential Information”), and you agree to keep such CGS Confidential Information strictly confidential and not disclose such information to any third party. CGS personnel may access Customer Data and Customer’s account for diagnostic purposes or as instructed by Customer. CGS will not disclose the Customer Data other than as reasonably required in connection with performance of the Agreement, and will return the Customer Data upon termination of the Agreement at your request in the database format supported by the Online Service.  Confidential Information does not include information (a) known to the receiving party at the time of disclosure; (b) received from a third party having the right to disclose such information to a party; (c) available to the public other than by a breach of an agreement with a party or its Affiliates; or (d) produced in compliance with applicable law or a court order, provided the disclosing party is given reasonable notice of such law or order if legally permissible. Computershare shall establish and maintain a written Information Security Program designed to (a) insure the security and confidentiality of Customer Data; (b) protect against any anticipated threats or hazards to the security or integrity of such Customer Data; and (c) protect against unauthorized access to or use of such Customer Data that could result in substantial harm or inconvenience to the person that is the subject of such Customer Data.  CGS may use, disclose, market, and sell market data and statistics derived from Customer accounts provided such data is non-individualized, anonymous, and aggregated and such data is not attributable to any particular client.

  14. INFRINGEMENT INDEMNITY.  If a third party asserts a claim against you that the Online Service infringes that party’s patent or copyright or constitutes the misappropriation of a trade secret or proprietary interest (a “Claim”), CGS will defend you against that Claim and pay damages that a court finally awards against you or that are included in a settlement approved by CGS, provided that you promptly notify CGS in writing of the Claim (although failure to do so will only relieve CGS of its obligations hereunder to the extent CGS is prejudiced thereby), supply information reasonably requested by CGS, and allow CGS to control the defense and settlement (provided that no settlement or compromise that imposes any monetary damages or obligates you to take any affirmative actions shall be entered into or agreed upon without the your prior written approval (such approval not to be unreasonably withheld or delayed)). CGS reserves the right to modify or replace the Online Service with an equivalent non-infringing one or, if replacement is not reasonably available, discontinue the Online Service and terminate the Agreement and provide a credit for any pre-paid and unearned Service Fees for the unexpired term. CGS has no liability for claims that include, in whole or part, items or information not provided by CGS. You are responsible for any violation of law or any third party rights caused by your content or, except as provided in this paragraph, your use of the Online Service in violation of the Agreement.  The foregoing represents CGS’s sole responsibility to Customer in the event of a third party infringement claim of any kind. 

  15. LIMITATION OF LIABILITY.  CGS (WHICH, FOR PURPOSES OF THIS SECTION 15 INCLUDES CGS AND ITS AFFILIATES AND SERVICE PROVIDERS) WILL NOT BE LIABLE TO YOU OR ANY COMPANY WITH WHICH YOU ARE ASSOCIATED FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, OR INCIDENTAL DAMAGES, LOSSES, COSTS OR EXPENSES IN RESPECT OF OR ARISING FROM THE AGREEMENT (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE SERVICES), WHETHER FOR, AMONG OTHER THINGS, BREACH OF WARRANTY OR ANY OBLIGATION ARISING THEREFROM, AND WHETHER LIABILITY IS ASSERTED IN, AMONG OTHER THINGS, CONTRACT OR TORT, EVEN IF CGS IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, LOSSES, COSTS OR EXPENSES.

    FURTHER, CGS WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR YOUR AUTHORIZED USERS’ INABILITY TO USE THE SERVICES AS A RESULT OF ANY DOWNTIME OF ALL OR A PORTION OF THE ONLINE SERVICE FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES OR OTHER INTERRUPTIONS; (B) THE COST OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (C) PENALTIES, INTEREST OR FINES ASSESSED AGAINST YOU BY ANY GOVERNMENT OR REGULATORY AUTHORITY; OR (D) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE, ANY OF YOUR DATA.

    CGS’S AGGREGATE LIABILITY UNDER THE AGREEMENT OR RELATING TO CGS’S SERVICES WILL BE LIMITED TO THE AMOUNT ACTUALLY RECEIVED BY CGS FOR THE PERFORMANCE BY CGS OF THE SERVICES THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM.  THIS SECTION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THE AGREEMENT IS DEEMED TO HAVE FAILED ITS ESSENTIAL PURPOSE.

    The exclusions and limitations in this Section 15 will apply regardless of whether any action is brought under statute, in contract, tort, or strict liability, or for negligence, breach of a fundamental term or fundamental breach (and regardless of the number of claims).

  16. FORCE MAJEURE.  In the event that either party is prevented from performing, or is unable to perform, any of its obligations under the Agreement due to any cause beyond the reasonable control of the party invoking this provision, the affected party’s performance will be excused and the time for performance will be extended for the period of delay or inability to perform due to such occurrence; provided, that the affected party: (a) provides the other party prompt notice of the nature and expected duration of the event, (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such event, (c) provides periodic notice of relevant developments, and (d) provides prompt notice of the end of such event.

  17. Third Party Beneficiaries.  The Agreement is entered into solely for your and CGS’s benefit. Neither you nor CGS intends that the Agreement shall benefit any person or entity other than you and CGS, or create any right or cause of action in or on behalf of, any person or entity other than you or CGS.

  18. INJUNCTIVE RELIEF.  Each party acknowledges and agrees that breach by the other of the confidentiality and proprietary rights sections of these Terms and Conditions will give rise to irreparable harm, and that the injured party shall be entitled to injunctive relief in such event.

  19. NOTICES.  All notices delivered under the Agreement shall be in writing and deemed given upon receipt when delivered personally or upon confirmation of receipt following delivery by (i) nationally recognized overnight courier service or (ii) registered or certified mail, return receipt requested, postage prepaid, addressed to each party at its last known address, to the address set forth on the Order Form or at such other address furnished by the respective party in writing.

  20. PUBLICITY.  You grant CGS the limited right to use Customer’s name in full or partial client lists published by CGS in any medium.

  21. GENERAL TERMS.   If you reside or hold your principal place of business in the United States, its territories or possessions, then the Agreement shall be construed and interpreted, and the rights of the parties shall be determined, in accordance with the laws of the State of New York, without regard to conflicts of law principles. If you reside or hold your principal place of business in Canada, then the Agreement shall be construed and interpreted, and the rights of the parties shall be determined, in accordance with the laws of the Province of Ontario, without regard to conflicts of law principles.  The parties will submit, as applicable, to the exclusive personal and subject matter jurisdiction of (a) the state and federal courts located in the City and County of New York, New York; or (b) the courts of Ontario located in Toronto, Ontario.  In the event of dispute between the parties hereto that goes to litigation or arbitration, the prevailing party shall be entitled to collect and be paid all costs and expenses, including reasonable attorneys’ fees, paid or incurred by it to enforce the terms of the Agreement and to collect amounts due hereunder. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced.  CGS’s failure to act with respect to a breach by you or others does not waive CGS’s right to act with respect to subsequent or similar breaches.  The section titles in these Terms and Conditions are for convenience only and have no legal or contractual effect.  You may not assign the Agreement or any of the rights granted to you hereunder, including your right to use or access the Online Service.  CGS may assign the Agreement without your consent to an Affiliate of CGS or to a successor in interest or to a party acquiring all or substantially all of CGS’s business through a merger, acquisition, reorganization or other transaction. The Agreement constitutes the entire agreement between CGS and you regarding the Online Service and supersedes all prior written and oral agreements.  The Agreement may not be amended or modified nor any obligation waived, except as contemplated herein or as otherwise agreed by a writing signed by both you and CGS.

  22. MODIFICATIONS TO THE TERMS AND CONDITIONS.  CGS may modify these Terms and Conditions at any time by posting a revised version on the CGS Site.  The revised terms shall be effective upon the earlier of (a) ten (10) days after posting and/or notifying you of the changes; or (b) upon your acceptance if CGS provides a mechanism for the acceptance of the revised terms, such as a click-through confirmation or acceptance button.  By continuing to use or receive the Online Service after the effective date of any revisions to these Terms and Conditions, you agree to be bound by the revised Terms and Conditions.  It is your responsibility to check the CGS Site regularly for changes to these Terms and Conditions.  If you disagree with such modifications, your sole and exclusive remedy shall be to terminate the Agreement and the receipt of Online Service by sending written notice to CGS and receive a refund of any unused annual Service Fees.