1. APPLICABLE TERMS. Every engagement agreement (each, an “Agreement”) including all Orders entered into by CFO Advisors LLC, a California limited liability company (“Advisor”) are bound by (a) all the terms and conditions set forth below (these “Terms of Service”); (b) the Advisor terms of use located at www.CFOadvisors.com/terms-of-use/ (as the same may be updated from time to time, the “Terms of Use”); and (c) the Advisor privacy policy located at www.CFOadvisors.com/privacy-policy/ (as the same may be updated from time to time, the “Privacy Policy”). In addition, the commercial terms, to include the software and services provided and the applicable fees charged, of any prior contract or other agreement between Advisor and Client will now be bound by this Agreement and the terms and conditions of any such prior agreement will now be superseded in their entirety by this Agreement. Capitalized terms not defined herein have the same meaning as set forth in the applicable Agreement and capitalized terms not defined in an Agreement have the same meaning as set forth below.
2. DEFINITIONS. In this Agreement and each Order, the following terms shall have the following meanings, and such meanings shall apply to both singular and plural forms of any such terms:
“Advisor Materials” means the Software, APIs, Documentation and Advisor Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by Advisor or any subcontractor or Third-Party Provider in connection with the Services or otherwise comprise or relate to the Services or Advisor Systems, including, for the purposes of this Agreement, as between the parties, Advisor Third-Party Tools and Data. For the avoidance of doubt, Advisor Materials include Usage Data.
“Advisor Site” means https://CFOadvisors.com/ including all subdomains and as the same may be updated from time to time.
“Advisor Systems” means the information technology infrastructure used by or on behalf of Advisor in performing the Services, including all computers, software, Advisor Site, any Advisor application designed for mobile or other specific devices, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by Advisor or through the use of Third-Party services.
“Advisor Third-Party Tools and Data” means the Third-Party tools, software, services, content, materials, information, documents, specifications, products, equipment or components of or relating to the Services that are procured by Advisor from Third-Party Providers and with which any or all of the Services, including the Software, interoperate.
“Client Data” means information, data and other content, but excluding Usage Data, in any form or medium, which (a) is uploaded or transmitted directly or indirectly by Client or an Authorized User to Advisor by or through the Software Services; (b) is directly output from the Processing of such information, data or content by or through the Software Services; or (c) is created by Client and maintained by Client within the Software Services.
“Client Systems” means Client’s, or any Authorized User’s, information technology infrastructure, including without limitation or other computers, software, hardware, databases, electronic systems (including database management systems), networks, telephones, telecommunications connections, whether operated directly by Client or any Authorized User, Client third-party provider, or Client distributor.
“Client Third-Party Services and Data” means any Third-Party services, hardware, data, information, or content that are procured by Client from Third-Party Providers to interoperate with the Services.
“Access Methods” means the user identifiers and passwords used to verify an Authorized User’s credentials to use the Software Services and Support pursuant to this Agreement.
“Order” means either (a) this Agreement; (b) a written order agreed to between Client and Advisor; or (c) Client’s order of additional Software and/or Services directly through the Advisor Site, in each case for additional Software or Services to be purchased, licensed or otherwise provided by Advisor under the terms of this Agreement. All such Orders will be fully bound by the terms of this Agreement.
“Affiliate” means an entity either directly or indirectly Controlled by, Controlling or under common Control (as defined below) of a party.
“Agreement” also means this Agreement, all schedules and exhibits to this Agreement, and any additional Order entered into by the parties, all amendments to the foregoing, and all other documents incorporated by reference herein and therein.
“API” means any application program interface that Advisor makes available hereunder and the associated tools and documentation.
“Authorized User” means those employees, agents, independent contractors, and customers who are authorized by Advisor (or by Client’s Services Administrator, as defined in and specified in an Order) to use Services, and who have been supplied Access Methods, as may be further specified in an Agreement or an Order.
“Claim” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, whether at law, in equity, or otherwise by a Third-Party.
“Control” (and its variants set forth above) means having a more than fifty percent (50%) equity voting interest or the sole power to direct or cause the direction of the management or policies of the entity, whether through the ability to exercise voting power, by contract or otherwise.
“Confidential Information” means any non-public, confidential, technical and non‑technical information and materials in any form supplied to the other party any time before, on or after the Effective Date, related to a party’s business or current, future and proposed products and services, including either party’s respective information concerning research, development, design details and specifications, financial information, procurement requirements, engineering and manufacturing information, algorithms, formulas, customer lists, business forecasts, sales information, or marketing plans.
“Distributor” means a Third-Party distributor or vendor over whose network or through whose services Client may use the Services.
“Documentation” means any written specifications, manuals or instructions for the Software Services that Advisor specifically provides or makes available for Client through Client’s account, as well as any then-current general minimum system requirements as published by Advisor (as may be updated from time-to-time).
“Feedback” means all suggestions, input, information, comments, or other feedback provided by or on behalf of Client to Advisor with respect to the Services or Advisor’s business, but excludes Client Data.
“Fees” means the amounts Client pays to Advisor in consideration for the Software and Services Advisor provides hereunder.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network; or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby.
“Intellectual Property Rights” means all intellectual property and other proprietary rights of a party, including, without limitation, all rights provided under trade secret law, patent law, copyright law, trade mark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions, designs or know-how, whether registered or not and including all applications therefor.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all liabilities, losses, damages, deficiencies, Claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorney and professional fees, court costs, expense of investigation, and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers resulting from any Claim.
“Modifications” means any corrections, improvements, translations, alterations, adaptations, revisions, withdrawals, additions, developments, as well as new versions or regular enhancements, changes, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing. For clarity, Modification does not include additional or wholly new modules, products or services.
“Order” means this Agreement or any additional Order entered into by the parties, as the case may be.
“Process” means to create, obtain, acquire, record, access, organize, alter, use, store, maintain, copy, aggregate, disclose, erase, destroy, dispose of or otherwise process. “Processing” and “Processed” have correlative meanings.
“Professional Services” means the customization, integration, training, consulting, development and other professional services purchased pursuant to an Agreement or any Order, and any Modifications to such Services, but does not include Software Services or Support.
“Representatives” means, as to a party, its Affiliates and their respective officers, directors, employees, independent contractors, consultants, partners, members, managers, distributors, agents, professional advisors or private investors.
“Services” means the Software Services, including accompanying Support, and Professional Services.
“Software” means the Advisor software application(s) and other software, and all Modifications of the foregoing, that Advisor makes available for use as part of the Software Services whether through the Advisor Site or otherwise.
“Software Services” means the software services made available by Advisor for use by Client, including the making available of the Software and accompanying Support, and any Modifications to such services and/or software, as may be subscribed to or purchased by Client pursuant to and as specified in an Order, but not including Professional Services or Advisor Third-Party Tools and Data.
“Support” means the standard support services accompanying the Software Services and any Modifications to such support services, but not including Professional Services or Advisor Third-Party Tools and Data. For clarity, Support does not include Professional Services, hardware and related supplies and support thereof, or any onsite (e.g. onsite at a Client location) support.
“Third-Party” means any other person or entity who is not a direct party to this agreement.
“Third-Party Provider” means a supplier of data, information, content, software, services or other items or infrastructure that are part of or otherwise used in connection with the Services, including ChatGPT and Amazon Web Services.
“Use” or “use” (a) of the Software Services, including accompanying Support, means to “access and use” the Software Services and to “access, use and, to the extent applicable, receive” Support; and (b) of Professional Services, means to “receive” Professional Services.
“Usage Data” means information, data and other content collected from, as well as insights, ideas, observations and know-how generated from, Advisor’s monitoring of usage and interaction with the Services by Authorized Users that is sufficiently different from Client Data that Client Data cannot be reverse engineered other otherwise identified from the inspection analysis or further Processing of such data.
“Work Product” means (in any form including source code) any and all processes, methods, formulas, algorithms, reports, programs, manuals, software, flowcharts and systems and any improvements, enhancements, or modifications to any of the foregoing, which are developed, prepared, conceived, or made by Advisor as part of, in connection with, or in relationship to the performance of Services pursuant to this Agreement. Work Product also means all such developments as are originated or conceived during the term of this Agreement but are completed or reduced to practice thereafter.
Other terms are defined elsewhere in the text of these Terms of Service or an Agreement, as the case may be.
3. TERM & TERMINATION; FEES.
3.1 Term/Termination/Suspension.
3.1.1 Term of Agreement. This Agreement shall commence on the Effective Date and shall continue in effect thereafter for as long as any Order entered into pursuant to this Agreement remains in effect.
3.1.2 Termination for Breach; Insolvency. Either party may terminate this Agreement, or any or all Orders, in the event of a material breach thereof which is not cured within 45 days of written notice of such material breach. In addition, either party may terminate this Agreement or any or all Orders, upon written notice to the other if the other party is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party (and such petition is not dismissed within 45 calendar days) or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.
3.1.3 Suspension of Services. In the event that Advisor learns of any of the following described circumstances, then Advisor may immediately suspend or disable Client’s or any Authorized User’s use of any or all of the Services and Advisor Materials, without liability to Advisor: (a) any breach of Section 4, Section 5, or Section 6.2; (b) any circumstance that Advisor reasonably and in good faith believes requires temporary suspension of the Services in order to protect the Services, Advisor, Advisor Materials, any Advisor Third-Party Provider, or any of Advisor’s other customers or their data, for clarity including for example but not exclusively cases of cyber-attack, Client data breach or physical security risk to equipment; or (c) if Client does not cure any late payment hereunder within 10 days of the date of Advisor’s notice regarding such late payment, Advisor will attempt to provide Client advance notice of a suspension under this paragraph where practicable, unless Advisor determines, in its sole discretion, that an immediate suspension is necessary to protect the Services, Advisor, Advisor Materials, any Advisor Third-Party Provider, or any of Advisor’s or Client’s data from imminent risk. In the event that Advisor suspends use of the Service pursuant to this Section 3.1.3, Advisor will promptly inform Client in writing, and will use reasonable efforts to limit the suspension to the affected portion(s) of the Services, and will work with Client to resolve the issue(s) causing such suspension.
3.1.4 Effect of Termination. In addition to any other termination obligations hereunder, the below provisions shall apply upon the earlier of termination of this Agreement or termination of any Order.
(1) Client shall immediately cease using any terminated or expired Services, Advisor Third-Party Tools and Data and Advisor Materials. Client shall within 30 days: (a) pay all agreed upon sums owing to Advisor under the affected Order(s) to the date of termination; (b) return to Advisor, or at Advisor’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any Advisor Materials or other Advisor Confidential Information; (c) permanently erase all Advisor Materials and other Advisor Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on Advisor Confidential Information or Advisor Materials, from all Client Systems; and (d) upon Advisor’s request, certify to Advisor in a signed written instrument that it has complied with the requirements of this section.
(2) Notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (a) Advisor may retain Client’s Confidential Information and Advisor may retain Client Data, in each case, in its then current state and solely to the extent and only for so long as required by applicable law, rule or regulation; (b) Advisor may retain Client Data in its backups, archives and disaster recovery systems until such Client Data is deleted in the ordinary course (up to 180 days following the date of termination of this Agreement); and (c) Advisor may retain any non-personally identifiable information that has been created during the Term. All information and materials described in this Section will remain subject to all confidentiality, security and other applicable requirements of this Agreement.
3.1.5 Transition. Upon termination of this Agreement, at Client’s request, and for a period not to exceed 90 days from the date of termination, Advisor shall reasonably cooperate with Client in the transition of moving Client Data back to Client or Client’s designee using commercially reasonable efforts. If an Agreement is terminated by Advisor pursuant to Section 3.1.2, then such services shall be provided by Advisor at its then-current standard professional services rates plus expenses and Taxes, and Advisor may at its discretion require advance payment or other adequate security for payment as Advisor may consider appropriate in connection with or as a condition to the provision of services described in this section.
3.1.6 Survival. Notwithstanding the termination or expiration of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiration of this Agreement shall survive and remain in effect, including, without limitation, Sections 3.1.4, 3.1.5, 4, 5.2, 6 and 7. In addition, payment of any amounts due and owing under this Agreement shall survive any expiration or termination of this Agreement, to the extent any such amounts are due and owing as of the date of such expiration or termination.
3.2 General Services Restrictions and Obligations; Representations and Warranties.
3.2.1 General Obligations. Client shall: (a) obtain and maintain all necessary licenses, consents, and permissions necessary for Advisor, its contractors and agents to perform their obligations under this Agreement; and (b) comply with all applicable laws, rules, and regulations applicable to its use of the Services, Advisor Materials and Client Third-Party Services and Data, including privacy laws, securities laws, and export laws.
3.2.2 Responsibility. Client shall be responsible for its, and any Authorized User’s compliance with, and breach of, (a) this Agreement; and (b) any conclusions, decisions or actions based on their use of the Services, Advisor Materials or Client Third-Party Services and Data. None of Client or any Authorized User may use the Services or any Advisor Materials other than in the manner specifically identified in this Agreement.
3.2.3 Access Methods. Authorized Users may only use the Services via the Access Method(s) stated in the applicable Order(s). Client is responsible for protecting the security and integrity of all Access Methods. Client shall hold in strict confidence all administrative Access Methods. Client is responsible for any acts or omissions occurring under any administrative Access Methods, other than those administrative Access Methods which are under the control or care of Advisor.
3.2.4 Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by this Section 3, then Client shall, immediately: (a) take all reasonable and lawful measures within its control necessary to stop the activity or threatened activity and to mitigate its effects; and (b) notify Advisor of any such actual or threatened activity.
3.2.5 Client Systems. Client has and will retain sole control over the operation, maintenance and management of, and all use of, any Client Systems, and sole responsibility for all use and receipt of the Services and Advisor Materials by any person by or through Client Systems or any other means controlled or directed by Client or Authorized User, including any information, instructions or materials provided by same to the Services or Advisor.
3.2.6 Cooperation. Client shall: (a) provide reasonable cooperation and assistance as Advisor may reasonably request to enable Advisor to exercise its rights and perform its obligations under and in connection with this Agreement; (b) promptly communicate to Advisor all changes to Client’s resources, equipment, facilities and software, that impact or may impact the Services; and (c) carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner. Advisor is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement.
3.2.7 Relationship Management. The parties will each appoint a person to act as its representative for managing the overall relationship between the parties. The parties’ representatives will meet or otherwise confer no less than quarterly to review the status of the Services, and the parties’ satisfaction with this Agreement, and other relationship governance matters as mutually agreed from time to time.
3.2.8 Cross Hiring. If, during the term of this Agreement or for 12 months thereafter, the Advisor or the Company directly or indirectly retain the services (whether as an employee, independent contractor or otherwise) of any employee or contractor of the other party (or ex-employee or ex-contractor within six months of such individual’s termination from such party) who has been involved in the activities contemplated by this Agreement, the Advisor and the Company agree that such party will be damaged, but that the amount of this damage will be difficult to determine. Accordingly, for each such employee or contractor hired by the other party, the hiring party will pay such party an amount equal to 1 year of salary and bonus received in the prior 12 months by such employee or contractor as liquidated damages.
3.2.9 Modifications; Upgrades; New Services. Advisor reserves the right to Modify any of the Software Services or Advisor Materials and any portions or configurations thereof, from time to time; Advisor may, in its sole discretion, make available, for additional fees, additional or wholly new modules, services and products that have materially different functionality from the Software Services as described in an Order.
3.2.10 Client Third-Party Services and Data. Client may from time to time procure Client Third-Party Services and Data. Any acquisition by Client of any such Client Third-Party Services and Data, and any exchange of data between Client and any Third-Party Provider, is solely between Client and the applicable Third-Party Provider. Advisor does not warrant or support Client Third-Party Services and Data, except that (a) Advisor will use commercially reasonable efforts to support integration of the interoperability of the Software Services with Client Third-Party Services and Data; and (b) Advisor may agree to other support if specifically agreed to by the parties in a particular Order.
3.2.11 Promotional Material. If either party wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval before any such use.
3.2.12 Mutual Representations and Warranties. Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization; (b) it has the full right, power and authority to enter into this Agreement; (c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; (d) when executed and delivered by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; and (e) the fulfilment of its obligations under this Agreement will not breach its contractual or other obligations to third parties, and will not breach any applicable laws.
3.2.13 Advisor Representations and Warranties. Advisor represents and warrants that the Professional Services will be performed in a competent, professional and workmanlike manner. In the event such Work Product do not meet such acceptance criteria, Advisor will reasonably proceed to correct the deficiency until such Work Product are accepted (not to be unreasonably withheld) by Client. For a period of 90 days from such Acceptance (“Work Product Warranty Period”), Advisor warrants that such Work Product will materially conform to such applicable acceptance criteria, if any. During the Work Product Warranty Period, Advisor’s sole responsibility and Client’s sole remedy with respect to non-conforming Work Product is for Advisor to, at its option, either use commercially reasonable efforts to correct the deficiency or terminate the affected Order for Professional Services and refund to Client any amounts paid for such Work Product, but termination may only be selected if the deficiency cannot be corrected by Advisor, using commercially reasonable efforts, within 30 days of Client’s written notice of the deficiency. The warranty set forth in in this Section 3.2.13 does not apply to (a) any change, addition, deletion or other modification was made to the Work Product, except as specifically authorized in writing by Advisor; and (b) any failure by Client to report a deficiency within the specified Work Product Warranty Period.
3.3 Fees and Charges.
3.3.1 Fees and Charges; Payment Terms. Client shall pay fees and charges stated in the applicable Order(s), in United States Dollars, plus all applicable Taxes (as defined below), either direct through Advisor’s Site or within 15 days after the date of Advisor’s invoice. These fees and charges shall be due and payable by Client to Advisor regardless of whether Client uses any Services. In case of termination for breach or insolvency as per Section 3.1.2, only the unused portion of pre-paid fees is refundable. Without prejudice to any other right or remedy it may have, Advisor reserves the right to set off at any time any amount then due and owing to it by Client against any amount payable under this Agreement or otherwise.
3.3.2 Invoice Issue. Client will notify Advisor in writing of any issue it has with any fees, charges, autopayment, invoice, withholding or other reoccurring or scheduled payment or portion thereof within 15 days of same or within Client’s receipt of an invoice or other evidence of payment giving rise to such an issue (the “Invoice Issue Notice”). Advisor and Client will work in good faith to resolve any such issue within 15 days from the date of an Invoice Issue Notice. Advisor will continue performance while any such issue is resolved, provided Client pays all undisputed, proper charges when due. If Client and Advisor fail to resolve the issues underlying an Invoice Issue Notice through good faith negotiations within 30 days from the date of such Invoice Issue Notice, the dispute will be resolved in accordance with Section 7 below.
3.3.3 Fee Increases. There will be no increase in the fees and charges for the Software Services specified in a particular Order for at least 1 year following the Effective Date. Thereafter, Advisor may increase the fees and charges in such Order once per calendar year upon 30 day advance written notice to Celsius (email sufficing). Notwithstanding the foregoing, Advisor may increase fees in the event Client adds additional products or services or otherwise adjusts its business model.
3.3.4 Late Payment. Advisor may assess a late charge at a rate of (a) 1% per month; or (b) the maximum amount allowed under the law, whichever shall be greater, on all amounts due and not paid within 30 days of the date of Advisor’s invoice until the time of Advisor’s receipt of payment.
3.3.5 Taxes. Advisor’s rates, fees and other charges set forth in this Agreement do not include any and all present or future taxes, levies, customs, duties, deductions, charges or withholdings, and all liabilities (including penalties, additions to tax, interest and expenses) with respect thereto, including but not limited to value added tax, sales tax, consumption tax and similar taxes or duties, as well as any similar city, municipal, provincial or state taxes whether currently imposed or to be imposed in the future, but excluding always taxes or duties determined on Advisor’s gross or net income, personnel or property (collectively, hereinafter referred to as “Taxes”), for which Client will be responsible without deduction or withholding. For any Taxes that Advisor is required to withhold or remit to the applicable taxing authority, Advisor shall remit such Taxes to the applicable taxing authority. If any Taxes are found to be applicable or if Client or any person paying to Advisor on behalf of Client (including banks) shall be required by Law to deduct any Taxes from or in respect of any sum payable to Advisor hereunder, then: (a) the sum payable to Advisor shall (at the same time and on the same conditions as applied to the sum payable) be increased as may be necessary such that following all required deductions, Advisor receives the amount equal to the sum it would have received had no such deductions been made; and (b) Client shall pay the full amount deducted to the relevant taxation authority or other authority in accordance with the applicable Law. Upon the request of Advisor, Client shall promptly take all reasonable and proper actions, including, without limitation, the completion of forms, certificates and documents and the provision of information to the relevant taxing authority, of the kind required under the applicable Law.
4. Nondisclosure AND NONUSE of Confidential Information. Each party shall hold the Confidential Information of the other party in strict confidence and shall treat such Confidential Information with the same degree of care as it accords its own proprietary information of a similar nature, and in no event will it use less than reasonable care to protect such Confidential Information. Without limiting the foregoing, each party (a) shall store all of the other party’s Confidential Information in secure environments when not in use; (b) shall not remove or modify any burn-in warnings or watermarks included on physical assets containing any Confidential Information of the other party; (c) shall employ reasonable security procedures sufficient to prevent any theft or unauthorized access, copying, exhibition, transmission or removal of the other party’s Confidential Information from its facility; and (d) shall not use, transfer, reverse engineer, or otherwise exploit the Confidential Information of the other party to directly or indirectly compete with the disclosing party, or for any purpose other than the performance of its obligations under this Agreement, and will not use, transfer, reverse engineer, or otherwise exploit the Confidential Information to aid any individual or organization to directly or indirectly compete with the disclosing party for a period of 5 years following the termination or expiration of this Agreement. Each party acknowledges that the Confidential Information is highly confidential and that unauthorized use or disclosure of such Confidential Information will result in serious, irreparable harm for which the other party’s remedies at law would be inadequate. Each party agrees that if any unauthorized use or disclosure occurs, the other party will be entitled, in addition to any other remedies available to it at law, in equity or otherwise, to the issuance of injunctive or other equitable relief. Each party shall immediately notify the other party of any loss or theft of or unauthorized access to any of the Confidential Information and shall use its best efforts, at the receiving party’s own cost and expense, to recover all lost or stolen materials. Notwithstanding the above, neither party will have liability to the other with regard to any Confidential Information of the other which the receiving party can prove: (a) was in the public domain at the time it was disclosed or has entered the public domain through no fault of the receiving party; (b) was known to the receiving party, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; or (c) is disclosed with the prior written approval of the disclosing party. Confidential Information may be disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the receiving party will provide prompt notice of such court order or requirement to the disclosing party to enable the disclosing party to seek a protective order or otherwise prevent or restrict such disclosure, unless applicable law prohibits such notice. Confidential Information so disclosed will continue to be treated as Confidential Information hereunder. Notwithstanding the foregoing, either party may provide information about the terms and status hereof on a confidential basis to its subcontractors, lenders, private investors, legal counsel, accountants, auditors and other professional advisors, and either party may file a copy of this Agreement with the Securities and Exchange Commission or other applicable regulatory body on advice of counsel; provided, however, that the filing party will use reasonable efforts to seek confidential treatment of the economic terms of this Agreement and will notify the other (non-filing) party in writing in advance of such filing.
5. CLIENT DATA AND OWNERSHIP OF WORK PRODUCT.
5.1 Client Data. Client owns all right, title and interest in and to Client Data. Client hereby grants to Advisor and its Affiliates a non-exclusive, worldwide, royalty-free, fully paid-up license to use and Process (including, without limitation, to host, store, copy, record, transmit, maintain, and display), including via Advisor’s Third-Party Providers, Client Data and any Client Third-Party Services and Data for the purposes of (a) making available and providing the Services hereunder; and (b) research, statistical, data analysis, product improvement, service offering improvements, artificial intelligence model training, marketing, sales tracking or similar purposes, and to create and use deidentified and/or aggregate consumer data derived from Client Data for any business purpose. Client is solely responsible for the following with respect to any Client Data and Client Third-Party Services and Data: (a) all storage, backup and retrieval thereof not used by Advisor to provide or make available the Services; (b) any transmission errors, corruption, or compromise thereof transmitted via Distributors or other Third-Party Providers, or otherwise transmitted via the internet; and (c) the condition, completeness, timeliness, backup, legality, reliability, integrity, accuracy and quality thereof. Client agrees that Advisor does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Client Data or Client Third-Party Services and Data. For certainty, Advisor is not responsible for and has no liability for Client not storing and backing-up all Client Data. Client agrees that Advisor may transfer Client Data to, and Process Client Data via, providers of hosting and backup services for the purposes of Advisor providing and making available the Services.
5.2 Work Product Usage Rights. Advisor hereby grants Customer and its Affiliates (a) a fully paid-up, royalty-free, exclusive license to use Work Product to the extent necessary to make use of the Services; and (b) a perpetual, fully paid-up, royalty-free, exclusive license to use Work Product to the extent such Work Product is comprising or embodied in a deliverable for any internal purpose (including without limitation, reuse and derivate use), and for the use and maintenance of its facilities.
5.3 Government Demand. Notwithstanding anything to the contrary in this Agreement, Advisor may disclose Client Data as required by applicable law, rule or regulation, including Applicable Privacy Law. Advisor shall, to the extent legally permitted, give Client prompt notice of any such legal or governmental demand and reasonably cooperate with Client in any effort to seek a protective order or otherwise to contest such required disclosure, at Client’s expense.
6. ADDITIONAL TERMS AND CONDITIONS.
6.1 Feedback. Client may, from time to time, communicate Feedback. Client agrees that all Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential by Client shall not, absent a separate written agreement, create any confidentiality obligation for Advisor. Advisor is free to use, disclose, reproduce, license or otherwise distribute, and exploit all such Feedback as it sees fit, entirely without obligation or restriction of any kind on account of Intellectual Property Rights or otherwise.
6.2 Proprietary Rights; Equitable Relief. All right title and interest in and to the Services and Advisor Materials, and any Work Product, including, without limitation, all Intellectual Property Rights and other proprietary rights therein, are and shall remain the sole and exclusive property of Advisor, its Affiliates and their Third-Party Providers, as the case may be. This Agreement does not grant any Intellectual Property Rights or license under any Intellectual Property Rights in or to the Services or Advisor Materials. All rights in and to the Services and Advisor Materials are expressly reserved by Advisor and the respective Third-Party Providers and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or will confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. Client shall not violate the Intellectual Property Rights and other proprietary rights of Advisor, its Affiliates, and their Third-Party Providers in the Services and Advisor Materials, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement or of any Order. Client shall not remove any proprietary notice of Advisor, its Affiliates or their Third-Party Providers. Our Third-Party Providers have no obligations or liability to Customer under this Agreement but are Third-Party beneficiaries of this Agreement. Upon any termination of this Agreement or suspension of Services, Client shall immediately cease all use of Software, Software Services and Advisor Materials. Client shall comply with all reasonable requests made by Advisor to protect the rights of Advisor, its Affiliates, and their Third-Party Providers in the Services and Advisor Materials. All Client Data and Client Systems, and all Intellectual Property Rights therein, shall remain the sole and exclusive property of Client.
6.3 Equitable Relief. The parties agree that any breach or threatened breach of Section 4, Section 6.1 or Section 6.2 shall cause a party, its Affiliates and/or their Third-Party providers irreparable injury that cannot be adequately compensated for by means of monetary damages. Any breach thereof may be enforced by the affected party, its Affiliates, or their Third-Party Providers by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available, without the need to post a bond or other security.
6.4 Disclaimers. EXCEPT AS EXPRESSLY SPECIFIED IN THIS AGREEMENT, WITH RESPECT TO THE SERVICES, Advisor MATERIALS, THIRD-PARTY TOOLS AND DATA, CLIENT THIRD-PARTY SERVICES AND DATA, WORK PRODUCT, AND ANY DATA OR RESULTS OBTAINED OR OUTPUT BY USING ANY OF THEM: (A) CLIENT’S OR AUTHORIZED USER’S, USE THEREOF ARE ALL AT THEIR SOLE RISK; (b) ARE PROVIDED “AS IS” AND “AS AVAILABLE”; AND (C) THERE ARE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES, WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) (A) REGARDING ANY OF THEM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, QUALITY, MERCHANTABILITY, QUALITY, NON-INFRINGEMENT, CURRENCY, COMPLETENESS, ACCURACY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, OR UNINTERRUPTED USE; OR (B) THAT ANY OF THEM WILL MEET ANY REQUIREMENTS, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE (INCLUDING FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, SUCH AS DENIAL OF SERVICE ATTACKS), ERROR FREE, OR FREE OF HARMFUL CODE.
6.5 LIABILITY.
6.5.1 LIMITATION. IN NO EVENT WILL THE MAXIMUM CUMULATIVE LIABILITY OF CLIENT OR ITS AFFILIATES, OR ADVISOR OR ITS AFFILIATES, FOR ANY AND ALL LIABILITIES AND CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT (REGARDLESS OF WHEN MADE) EXCEED THE AMOUNTS PAID BY EITHER PARTY’S INSURANCE CARRIERS PLUS THE TOTAL FEES PAID BY CLIENT TO Advisor UNDER THE APPLICABLE ORDER FOR THE SERVICE IN QUESTION IN THE six month PERIOD PRECEDING THE DATE ON WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN, EXCLUDING SUCH AMOUNTS PAID TO ADVISOR DURING THAT PERIOD FOR REIMBURSEMENT OF COSTS AND EXPENSES. No action, regardless of form, arising IN CONNECTION WITH THIS Agreement may be brought by either party more than 1 year after THE DATE ON WHICH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN.
6.5.2 EXCLUSIONS. IN NO EVENT WILL ADVISOR OR ITS AFFILIATES, OR CLIENT OR ITS AFFILIATES, BE LIABLE FOR ANY OF THE FOLLOWING DAMAGES OR LOSSES WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT (A) INDIRECT, INCIDENTAL, SPECIAL, SPECULATIVE, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES OR LOSSES; (b) LOSS OF BUSINESS OR GOODWILL, SALES, USE, PROFITS, OR REVENUE, OR LOSS OF OR CORRUPTION TO DATA OR CONTENT; or (c) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OF SERVICES.
6.5.3 CARVE-OUT. THE LIMITATIONS AND EXCLUSIONS IN SECTION 6.6.1 AND SECTION 6.6.2 DO NOT APPLY TO LIABILITY FOR (A) DEATH OR PERSONAL INJURY RESULTING FROM A PARTY’S OR ITS REPRESENTATIVES’ FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR BAD FAITH; (b) THE INDEMNIFICATION OBLIGATIONS IN SECTION 6.5.5; (b) A PARTY’S BREACH OF SECTION 4 (TO THE EXTENT NOT DUE TO A SECURITY INCIDENT OR A SECURITY INCIDENT CAUSE); (c) a VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; OR (d) LOSSES TO THE EXTENT COVERED BY A PARTY’S INSURANCE.
6.5.4 APPLICATION. THIS SECTION 6.6 APPLIES TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR FUNDAMENTAL BREACH, HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES OR LOSSES IN QUESTION OR EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEABLE. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
6.5.5 INDEMNIFICATION. Client hereby agrees to save, defend, indemnify and hold Advisor and our officers, directors, employees, stakeholders, consultants and agents (each an “Indemnified Party”) from and against any and all Losses arising out of any claim, suit or demand (including any such claim, suit or demand from a Third-Party) related to or arising out of or related to the Services or any breach of this Agreement by Client, except to the extent such Losses result from the fraud, gross negligence, or intentional misconduct of such Indemnified Party. Under no circumstances will Client make any admission against any Indemnified Party’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on any Indemnified Party without the Advisor’s express prior written consent.
6.5.6 INDEMNIFICATION PROCEDURES. The indemnification obligations on the part of either party hereunder are conditioned upon: (a) the indemnifying party being notified in writing promptly of the indemnified party’s receipt of notice of the Claim (provided, however, that the failure to provide such notice shall not relieve the indemnifying party of its indemnification obligations hereunder, except to the extent of any material prejudice to the indemnifying party as a direct result of such failure); (b) the indemnifying party having sole control over the defense or settlement of such Claim; and (c) the indemnifying party being given the necessary authorization, information and full co-operation and assistance by the indemnified party for the defense of same (at the indemnifying party’s cost); provided in all cases, however, that the indemnifying party shall not make any admission against the indemnified party’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on the indemnified party without the indemnified party’s prior written consent not to be unreasonably withheld, conditioned, or delayed. Nothing in this section shall in any way diminish or abrogate an insurer’s duties, rights, or obligations pertaining to defense or otherwise.
7. MISCELLANEOUS.
7.1 Independent Contractors. Client and Advisor are independent contractors, and nothing in this Agreement will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between the parties. Each party is responsible for its own employees, representatives, agents, contractors, taxes, withholdings, insurance, benefits, and other employment-related obligations. Neither party is an agent or representative of the other or is authorized to make any warranties, representations, promises, or assume or create any other obligations on behalf of the other. Each party shall indemnify and hold harmless the other party from any claims, losses, or liabilities arising from its failure to comply with its employment-related obligations.
7.2 Force Majeure and Uncontrollable Events. Except for Client’s payment obligations under this Agreement, neither party will be liable for any interruption, delay or failure to perform any obligation under this agreement when such interruption, delay or failure results from causes beyond such party’s reasonable control, including any law or act of any governmental authority, war, riot, terrorism, insurrection or other hostilities, embargo, fuel or energy shortage, equipment breakdowns, power failure, pandemic, epidemic, fire, mass casualty event, flood, earthquake, act of God, strikes, lockouts, labor shortages, failure of a Third-Party to satisfy its contractual obligations, or any other similar cause.
7.3 Expenses. All expenses, including all legal, accounting, financial, advisory, consulting, and other fees incurred in connection with the negotiation or effectuation of this Agreement will be the obligation of the party incurring such expense, unless (and only to the extent) the parties may expressly agree otherwise in writing.
7.4 Export Controls. Client acknowledges and agrees that the Software Services, Support or Advisor Materials may be subject to export controls under United States and other export control Laws. Client shall not directly or indirectly, whether to an Affiliate or a Third-Party: (a) export, re-export, transfer, or release (herein referred to as “export”) any component of the Software Services, Support or Advisor Materials, to any prohibited or restricted destination, person, or entity; or (b) access or use or allow any Authorized User, Representative, or Third-Party to use the Software Services, Support or Advisor Materials in a manner prohibited or restricted by export control Laws. Client shall comply with all applicable export controls Laws at all times.
7.5 Governing Law; Jurisdiction; Dispute Resolution. This Agreement will be governed by and construed in accordance with the laws of the State of California and the federal laws of the United States of America (as applicable), without giving effect to any choice of law principles that would require the application of the laws of a different jurisdiction. Any and all controversies, Claims, or disputes arising out of or related to this Agreement or the interpretation, performance or breach thereof, including, but not limited to, alleged violations of state, federal or other national statutory or common law rights or duties, and the determination of the scope or applicability of this agreement to arbitrate (any such, a “Dispute”) will be resolved according to the procedures set forth in Section 7.6 below, which will constitute the sole dispute resolution mechanism hereunder. The parties further agree that any dispute over the enforceability or validity of this agreement to arbitrate shall be resolved by the arbitrator to the extent permitted by law.
7.6 Arbitration. In the event that the parties are unable to resolve any Dispute informally, then such Dispute will be submitted to final and binding arbitration pursuant to the substantive and procedural provisions of the U.S. Federal Arbitration Act (“FAA”). The arbitration will be initiated and conducted according to either the JAMS Streamlined (for Claims under $250,000) or the JAMS Comprehensive (for Claims over $250,000) Arbitration Rules and Procedures, except as modified herein, including the Optional Appeal Procedure, at the Los Angeles, California office of JAMS, or its successor (“JAMS”) in effect at the time the request for arbitration is made (the “Arbitration Rules”). The parties agree that the costs of the arbitration will be shared pro-rata to the extent permitted by law. The arbitration will be conducted in Los Angeles County before a single neutral arbitrator appointed in accordance with the Arbitration Rules. The arbitrator will follow substantive California law and the Federal Rules of Evidence in adjudicating the Dispute. The arbitrator will provide a detailed written statement of decision, which will be part of the arbitration award and admissible in any judicial proceeding to confirm, correct or vacate the award. Unless the parties agree otherwise, the neutral arbitrator and the members of any appeal panel will be former or retired judges or justices of any California state or federal court with experience in matters involving technology licensing. If either party refuses to perform any or all of its obligations under the final arbitration award (following appeal, if applicable) within 30 days of such award being rendered, then the other party may enforce the final award in any court of competent jurisdiction in Los Angeles County. The party seeking enforcement will be entitled to an award of all costs, fees and expenses, including attorneys’ fees, incurred in enforcing the award, to be paid by the party against whom enforcement is ordered. The parties shall maintain the confidential nature of the arbitration proceeding and the award, including the arbitration hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement or unless otherwise required by law. Notwithstanding the foregoing, either party will be entitled to seek injunctive relief in the state and federal courts of Los Angeles County. Any Dispute or portion thereof, or any Claim for a particular form of relief, that may not be arbitrated pursuant to applicable state or federal law may be heard only in a court of competent jurisdiction in Los Angeles County, California.
7.7 Assignment. Client shall not assign or transfer (including by operation of law) this Agreement, including any Orders, without the prior written consent of Advisor and any attempted assignment or transfer shall be null and void and shall constitute a material breach of this Agreement. In addition to and notwithstanding the foregoing, if the ownership of Client at any time shall pass out of the majority control of its then-current owners by sale of stock or assets, merger or otherwise, Client shall give Advisor not fewer than 30 days’ prior written notice to the effective date of any change of control. Advisor shall have the right to terminate this Agreement and any affected Orders by providing written notice to Client within the later of 60 days following (a) receipt of such notice of change of control; or (b) the date such change of control occurs. If Advisor elects not to exercise the foregoing termination right, any successor-in-interest to this Agreement and any affected Orders as a result of the change of control shall assume all rights and obligations of Client and shall be responsible for adhering to the terms thereof. Any attempted assignment in violation of this section will be null and void. Advisor can freely assign without consent to an Affiliate, or in the event of a merger, reorganization, or sale of substantially all of its assets. This Agreement shall be binding upon, shall inure to the benefit of, and shall be enforceable by the parties and their permitted successors and assigns.
7.8 Notices. All notices and other communications under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by hand or sent by nationally recognized overnight carrier, or prepaid registered or certified mail, return receipt requested, with acknowledgment by the receiving party as of the date received, to the address listed in the first paragraph above, or to such other address as either party shall specify in a written notice to the other. An electronic communication shall be deemed written notice for purposes of this Agreement if sent to the electronic mail address specified by the receiving party under separate cover. Such electronic notice shall be deemed received when sent, provided the sending party does not receive an automated or other response indicating the message was not delivered. THE PARTIES AGREE THAT SERVICE OF PROCESS MAY BE EFFECTED BY ANY NOTICE PROPERLY DELIVERED UNDER THIS SECTION, WITH ANY SUCH SERVICE CONSTITUTING PERSONAL, HAND SERVICE ON THE DATE OF SUCH DELIVERY.
7.9 Conflicts. In the event of any conflict among the terms of this Agreement or any Order, the terms of the Order shall prevail only with respect to the Services and pricing specified in such Order, as well as any provisions in an Agreement that are specifically excluded or modified in such Order. Except as may be explicitly set forth in a particular Order, any such exclusion or modifications contained in any Order shall not modify this Agreement with respect to any other Order.
7.10 Interpretation. For purposes of this Agreement (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
7.11 Waiver; Severability. The failure of a party to insist upon strict compliance with any term or condition of this Agreement on any occasion shall not be construed as a waiver with regard to any subsequent failure to comply with such term or condition. No waiver of any term or condition of this Agreement, including any Order, shall be effective unless agreed to in writing by the party making the waiver. If any provision herein is to any extent illegal, otherwise invalid, or incapable of being enforced, then such term shall be excluded to the extent of such invalidity or unenforceability, all other terms hereof remain in full force and effect, and to the extent permitted and possible, the invalid or unenforceable provision shall be deemed replaced by a provision that is valid and enforceable that comes closest to expressing the intention of such invalid or unenforceable provision.
7.12 Entire Agreement; Amendments. This Agreement represents the entire agreement between the parties with respect to its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with respect to its subject matter. There are no oral or written collateral representations, agreements or understandings. Commencement of the Service(s) prior to the signing of this Agreement or any applicable Order(s) by Advisor does not constitute acceptance by Advisor of any changes made by Client to the terms and conditions of this Agreement or any Order(s) and no such changes are binding on Advisor until Advisor has agreed to them in writing. This Agreement may not be modified except in a written document signed by the parties.
7.13 Counterparts; Digital Signature. This Agreement may be signed in any number of counterparts with the same effect as if the parties had signed the same document. Signature by digital means is as effective as delivery of an original of this Agreement.
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