Unless otherwise agreed to by the Parties, by entering into a Platform Services Agreement (“PSA”) with AIX, or otherwise agreeing to these Terms and Conditions of Platform Services Agreement (“Terms and Conditions”), Customer accepts, without limitation or qualification, these Terms and Conditions, which form a legally binding agreement between the Parties. Capitalized terms used herein and not otherwise defined shall have the meanings attributed to them in the PSA.
1.1 Services. During the Term, AIX will use commercially reasonable measures to provide the Services to Customer. AIX may from time to time and at its sole discretion update, delete, change or revise the Services made available through the Platform and any Platform Data (as defined in the Data Processing Addendum) available therefrom. AIX shall in no way be liable to Customer or any Authorized User as a result of any update, deletion, change or revision to the Services, except to the extent any such update, deletion, change, or revision is directly made by AIX and causes AIX to be in breach by AIX of any representation, warranty, or covenant made by AIX in the Agreement (in which case AIX’s liability shall be limited as set forth in the Agreement). To the extent additional functionality or service offerings is or are made available through the Platform during the Term, Customer shall not be granted access to any such functionality or service offerings until the Parties amend the Agreement to incorporate same. If Customer did not enter into a PSA with AIX, “Services” means use of and access to AIX’s online, web-based electronic application for the collection, submission, transmission, monitoring, and maintenance of authorized documents, including new account applications and redemption requests, for investment products (the “Platform”), solely as made available by AIX to Customer in AIX’s sole discretion. Otherwise, “Services” has the meaning set forth in the PSA.
1.2 Additional Services. Customer may, from time to time during the Term, request that AIX perform certain additional professional or consulting services (including custom services and in-person training services as defined in the PSA) relating to the Platform or Services (such additional services, the “Additional Services”), which AIX may accept or reject in its sole discretion. The performance of all Additional Services will be as set forth in mutually agreed-to written work orders (each, a “Work Order”) setting forth the Additional Services, along with any additional terms, conditions, and fees relating to such Additional Services. All Work Orders will be issued under and subject to the terms of the Agreement (including these Terms and Conditions); provided, however, any Work Order may supersede, modify or amend the Agreement if expressly stated in such Work Order. Any inventions, conceptions, developments, discoveries, works of authorship (whether copyrightable or not), documents, ideas, processes, methods, software (including source code and object code) and/or other deliverables, materials, intellectual property, or work product that arise from, relate to, or are created, developed, reduced to practice, invented, suggested, authored, originated, or conceived by or on behalf of AIX, individually or jointly with others (including Customer and/or Customer’s Representatives), in connection with AIX’s performance of the Additional Services (collectively, the “Deliverables”), and all IPR therein or relating thereto, shall be exclusively owned by AIX and Customer, to the fullest extent permitted per applicable Law, hereby irrevocably transfers, conveys, and assigns to AIX, for no additional consideration, all rights, title and interests including, but not limited to, all IPR, in and to such Deliverables automatically upon their coming into existence or upon Customer acquiring any rights therein. Any Deliverables created by AIX for Customer’s use in connection with the Platform and that are accepted by Customer will be deemed included in the Platform and provided to Customer under the terms of the Agreement. Customer will have no additional licenses or others rights in or to any Deliverables, except as may be expressly set forth in a Work Order relating to those Deliverables.
1.3 Platform Access. Subject to the terms and conditions of the Agreement (including those contained herein) and Customer’s compliance therewith, during the Term AIX authorizes Customer to access and use the specific instance of the Platform as made available by AIX through Customer’s account provided by AIX (the “Customer Account”). Subject to the terms and conditions of the Agreement and Customer’s compliance therewith, during the Term, Customer may permit Authorized Users to access the Platform through the Customer Account. Before accessing the Platform, each Authorized User will be required to set up a User ID through the Customer Account and agree to the then-current EUAA. Customer may allow Authorized Users to access and use the Platform solely under the Customer Account through each such Authorized User’s User ID for purposes of facilitating Communications by Authorized Users on behalf of Investors, processing or completing a transaction, or reviewing Reports and Analyses for the Authorized Users’ own internal business purposes and for no other reason. Each User ID is issued to a specific Authorized User and each User ID is personal in nature to that Authorized User and may be used only by that Authorized User. Each Authorized User will need to provide certain information to Customer, as requested by AIX, when setting up a User ID. Customer will ensure that all information about each Authorized User provided to AIX in connection with establishing each User ID is accurate and complete and will ensure that such information is maintained as accurate and complete throughout the Term of the Agreement.
1.4 Customer Responsibilities. Customer is and will remain solely responsible and liable for all use of the Platform by each Authorized User and for compliance by each Authorized User with the applicable terms of the Agreement (including those contained herein) and any other agreement to which the Authorized User agrees in connection with the Platform, including the EUAA. Customer will maintain and will ensure that its Authorized Users maintain, the security and confidentiality of each User ID and will, and will cause its Authorized Users to, implement appropriate administrative, technical, and physical safeguards to prevent unauthorized access to or use of the Platform using a User ID or disclosure of any User IDs to another person. Customer will promptly notify AIX of any unauthorized access or use of the Platform, Services, or Additional Services or if any User ID is disclosed or otherwise compromised. During the Term and thereafter, Customer acknowledges that Customer is and will remain fully responsible for all costs, fees, liabilities, or damages incurred by any person or entity, including AIX, through or as a result of any access to or use of the Platform, through the Customer Account, or by any Authorized User (whether lawful or unlawful), and Customer further acknowledges that any Services or Additional Services used or Communications facilitated through the Customer Account or under any User ID will be deemed to have been completed or performed by Customer. In no event will AIX be liable for the foregoing obligations or any failure by Customer to fulfill such obligations. Customer will be solely responsible, at Customer’s own expense, for acquiring, installing and maintaining all hardware, software, systems (including Customer Systems), and other equipment, and procuring all necessary third party licenses, permissions, and authorizations as may be necessary for Customer and each Customer Authorized User to connect to, access, and use the Platform or any Services or Additional Services, including any specific Customer responsibilities included in the Agreement or any Work Order. AIX shall not be responsible or liable for any delay or failure of performance caused by Customer’s inability or delay in satisfying its obligations under the Agreement (including those contained herein).
1.5 Restrictions. Customer acknowledges that the databases, software (in source, object and machine code versions), hardware, intellectual property, and other technology used by or on behalf of AIX to provide the Platform, as well as the Platform itself (but excluding the Customer Data (as defined in the Data Processing Addendum)) (collectively, the “Technology”), and their structure, organization, and User IDs, as well as all Platform Data, Reports and Analyses (excluding Customer Data), and other materials or work product provided by AIX in performing the Services, constitute the valuable intellectual property, including trade secrets, of, as applicable, AIX, third parties, and/or their licensors, and that all rights, title and interest in which are expressly reserved and retained by, as applicable, AIX, third parties, and/or their licensors (other than the limited rights granted by AIX under the Agreement). As a condition to Customer’s or its Authorized Users’ use of and access to the Platform, Services, and Additional Services, Customer agrees that it and its Authorized Users will not, and that Customer will not authorize any Authorized User or other third party to, except as expressly permitted pursuant to the Agreement (or, as applicable, the EUAA) or to the extent the following restrictions are prohibited per applicable Law: (a) access or use the Platform or any Service or Additional Service; (b) access or use the Technology, in whole or in part, except through the Customer Account; (c) use the Platform to engage in any unlawful or illegal activity, or in any other manner that could damage, disable, overburden or impair the Platform, Services, Additional Services, or the Technology; (d) use automated scripts to collect information from or otherwise interact with the Platform, Services, Additional Services, or the Technology unless pre-approved in writing by AIX; (e) use the Platform or any Service or Additional Service to send spam or otherwise duplicative or unsolicited commercial electronic mail messages; (f) copy, alter, modify, reproduce, distribute, display, or create derivative works of the Platform, the Platform Data, Reports and Analyses, or the Technology; (g) distribute, sell, resell, lend, loan, lease, license, sublicense, assign, transfer, or otherwise make available the Platform, Services, Reports and Analyses, Platform Data, Additional Services, or any of Customer’s or its Authorized Users’ rights to access or use the Platform or any Service or Additional Service, including, without limitation, by providing outsourcing, service bureau, hosting, application service provider or on-line services to any third party; (h) decode, reverse engineer, disassemble, decompile or otherwise attempt to derive the source code or method of operation of or any trade secrets embodied in the Platform or the Technology; (i) attempt to circumvent or overcome any technological protection measures intended to restrict access to or safeguard any portion of the Platform or the Technology; (j) use the Platform, Services, Additional Services, or the Technology for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, business intelligence, data mining or competitive purposes; (k) upload to the Platform or through the Services or Additional Service any virus, Trojan horse, worm, or other harmful or malicious code; or (l) interfere in any manner with the integrity, accuracy or performance of the Platform, Services, Platform Data, Additional Services, or the Technology or otherwise disrupt or impair the Platform, Services, Platform Data, Additional Services or Technology or any other person’s or entity’s use thereof or access thereto. Customer will promptly notify AIX of any actual or threatened violations of any obligation in this Section 1.5 of which Customer becomes aware and will make reasonable efforts to stop such violations to the extent allowed per applicable Law.
2. Fees; Invoicing; Payment.
In exchange for AIX providing the Services, Customer agrees to pay to AIX all Fees. All Fees contained in, or referenced to, in the Agreement are quoted in US Dollars (USD) unless otherwise stated. Upon any extension of the Term as contemplated by the Agreement (if applicable), all Fees shall increase proportionally based on the Consumer Price Index, and Customer agrees to pay any such Fee increases. All Fees, and other amounts payable by Customer under this Agreement, are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on AIX’s income. Except as set forth herein, the Fees set forth in the Agreement may only be modified or amended by mutual consent of the Parties. Unless otherwise expressly provided in the Agreement or the applicable Work Order, all Fees shall be billed monthly by AIX and paid by Customer within thirty (30) days of Customer’s receipt of AIX’s corresponding invoice. Amounts invoiced but not paid on a timely basis and not being disputed by Customer in good faith shall accrue late fee charges equal to the lesser of one and one-half percent (1.5%) per month or the maximum rate of interest permitted by Law, until paid in full by the Customer. Customer shall be responsible for, and AIX shall be entitled to recover, the costs of collecting unpaid fees and charges, including, without limitation, reasonable attorneys’ fees.
The Term is as set forth in the PSA, unless earlier terminated pursuant to Section 4 hereof (or as set forth in the PSA). If the PSA does not provide for a term, or if the Customer did not enter into a PSA with AIX, “Term” means the date upon which Customer has accepted these Terms and Conditions and continuing until these Terms and Conditions are terminated pursuant to Section 4 hereof.
4.1 Termination for Cause. Either Party may terminate the Agreement or any Work Order upon written notice to the other Party if (a) such other Party materially breaches the Agreement or such Work Order, respectively, and such breach is incapable of cure or, if curable, the breaching Party fails to remedy such breach within ninety (90) days after receiving notice of the breach from the non-breaching Party; or (b) the other Party (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
4.2 Termination without Cause. AIX may terminate the Agreement or any Work Order for any reason upon ninety (90) days’ written notice to Customer. After the one-year anniversary of the Effective Date, Customer may terminate the Agreement or any Work Order (in whole or in part) for any reason upon ninety (90) days’ written notice to AIX.
4.3 Suspension. Without limiting AIX’s right to terminate the Agreement, AIX may suspend Customer’s or its Authorized Users’ access to or use of the Platform or any Services or Additional Services, with prompt notice, if deemed reasonably necessary by AIX, including (a) to prevent any damage, injury, or harm to the Platform, Services, Additional Services, Technology, AIX, any Authorized User, any other Platform customer or user, or any other person or entity; (b) if AIX receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires AIX to do so; (c) AIX believes, in its good faith and reasonable discretion, that Customer or any Authorized User has failed to comply with a material term of the Agreement, has been or is likely to be involved in any fraudulent, misleading, or unlawful activities, or has experienced a Security Breach; or (d) the Agreement terminates or expires.
4.4 Effect of Termination. Upon termination or expiration of the Agreement or any Work Order for any reason: (i) AIX may, without incurring any liability whatsoever, cease providing and disable Customer’s and its Authorized Users’ access to the Platform and all Services under the Agreement or any Additional Services under such Work Order, as applicable; (ii) all rights, licenses, and authorizations granted to Customer and its Authorized Users under the Agreement, the EUAA, or such Work Order, respectively, will automatically terminate and be revoked; (iii) Customer will, and will ensure that its Authorized Users immediately cease all use of and access to the Platform and all Services and Additional Services; (iv) all Fees and other amounts then owed by Customer under the Agreement or the Work Order will become immediately due and payable to AIX; (v) Customer will, and shall cause its Authorized Users to, immediately either return to AIX or, at AIX’s discretion, destroy, any Platform Data, User IDs, and AIX’s Confidential Information then in Customer’s or its Authorized Users’ possession, custody or control, provided that Customer may maintain all Customer Data and may maintain any copies of any Reports and Analyses in Customer’s possession, custody, or control solely for Customer’s internal business purposes and provided that Customer continues to treat such Reports and Analyses as AIX’s Confidential Information and comply with its confidentiality obligations hereunder and in the Data Processing Addendum, as applicable; and (vi) AIX will be under no further obligation to retain any Customer Data held by AIX but may do so for archival purposes or as required as per applicable Law, or as otherwise set forth in the Data Processing Addendum. In addition, upon termination of any Work Order under Section 4.1 by AIX or Section 4.2 by Customer, Customer shall reimburse AIX for all expenses incurred by AIX under that Work Order and pay AIX for all Additional Services provided under that Work Order prior to notice of such termination. The terms and conditions that by their express terms or nature should survive termination or expiration of the Agreement shall so survive, including those terms identified as surviving in the Terms and Conditions, and the following: Section 1.4 (Customer Responsibilities), Section 1.5 (Restrictions), Section 4.4 (Effect of Termination), Section 5 (Ownership), Section 6 (Data Security and Data Privacy), but excluding Section 6.4, Section 7.4 (Non-Infringement by Customer), Section 8 (Disclaimer), Section 9 (Indemnification), Section 10 (Limitation on Liability), Section 11 (Confidentiality), Section 13 (Defined Terms), and Section 14 (Miscellaneous).
5.1 Reservation of Rights. As applicable, AIX, third parties, and their licensors retain all rights, title and interest, including, without limitation, all IPR, in and to the Platform and all Services, Additional Services, Deliverables, Technology, Platform Data, Reports and Analyses, and any additions, improvements, updates, and modifications thereto (excluding, in each case, Customer Data). Customer acknowledges that Customer is not receiving any ownership interest in or to any of the foregoing, and no right or license is granted to Customer to use any of the foregoing apart from Customer’s limited rights to access and use the Platform, Services, Additional Services, Reports and Analyses, and Platform Data under and as expressly set forth in the Agreement, the EUAA, The Data Processing Addendum, and any Work Order. All rights not expressly granted hereunder are reserved. Customer will not remove or alter any proprietary rights legend, markings, or notices on the Platform or any Deliverables, Technology, Reports and Analyses, or Platform Data.
5.2 Feedback. From time to time during the Term, Customer or its Authorized Users may provide, upon AIX’s request or at Customer’s or its Authorized Users’ own volition, suggestions, comments, improvements, and other feedback concerning the Platform, Services, Additional Services, Technology, Reports and Analyses, or Platform Data (“Feedback”). The Parties understand and agree that all rights, title, and interest including, but not limited to, any and all IPR in and to such Feedback shall be exclusively owned by AIX. To the fullest extent permitted per applicable Law, Customer hereby irrevocably assigns, transfers, and conveys all rights, title and interest including, but not limited to, all IPR, in and to any Feedback to AIX for no additional consideration, automatically upon their coming into existence or upon Customer acquiring any rights therein.
5.3 Transaction Packages. Customer understands that the Platform may be used to facilitate the transmission and processing of certain transaction package documents, agreements, and other forms and reports that are required to support the sale or transfer of shares, account maintenance, redemption or other Services offered via the Platform based upon the inputs and other Customer Data submitted by an Authorized User, including, but not limited to Customer’s proprietary forms to the extent Customer has granted permission for the Platform to generate Customer’s proprietary forms (“Customer Forms”), and any additional non-proprietary forms or documents necessary (in the sole judgment of AIX) for the Platform to effect the foregoing Services, including, without limitation, any third-party brokerage, custodial, or clearing documentation (collectively, all of the foregoing, including Customer Forms, the “Transaction Package”). Except as expressly granted to Customer under the Agreement, all rights, title, and interest, including IPR, in and to the Transaction Packages and any improvements, modifications, or enhancements thereto, or derivatives thereof (excluding Customer Forms and any Customer Data contained in any of the Transaction Packages) are expressly reserved by AIX or its licensors, as applicable, and Customer, to the fullest extent permitted per applicable Law, hereby irrevocably assigns, transfers, and conveys all rights, title and interest including, but not limited to, all IPR, in and to any and all of the foregoing (excluding Customer Forms and any Customer Data contained in any of the Transaction Packages) to AIX for no additional consideration, automatically upon their coming into existence or upon Customer acquiring any rights therein. During the Term, AIX hereby grants to Customer a non-exclusive, revocable, non-transferable right and license to reproduce, privately display, privately distribute and prepare derivative works of such Transaction Packages solely as needed for Customer to facilitate a Communication or process an associated transaction. To the extent Customer uploads or otherwise makes available its Customer Forms to AIX for use via the Platform, Customer hereby grants to AIX a non-exclusive, irrevocable, worldwide, fully sublicensable, fully transferable, royalty-free right and license to reproduce, publicly and privately display, publicly and privately distribute and prepare derivative works of such Customer Forms as needed for AIX and its subcontractors to provide the Services and any Additional Services to or on behalf of Customer or its Authorized Users.
5.4 Backup License. If, for any reason, the Customer’s assignment in any Feedback, De-Identified Data (as defined in Section 6.3 below), Deliverables, Transaction Packages, Platform Data, Reports and Analyses, or other work product or intellectual property in accordance with the Agreement is not enforceable or is invalid, Customer hereby grants to AIX a worldwide, perpetual, irrevocable, fully transferable, fully sublicensable, non-exclusive right and license to make, use, have made, advertise, market, promote, import, export, offer for sale, sell, lease, rent, privately and publicly display, privately and publicly distribute, privately and publicly perform, reproduce, and prepare derivative works of the Feedback, De-Identified Data, Deliverables, Transaction Packages, Platform Data, Reports and Analyses, and such other work product or intellectual property for any reason and no reason whatsoever (excluding, in each case, Customer Data and Customer Forms).
5.5 Moral Rights Waiver. To the extent such rights are not assignable, Customer hereby waives to the fullest extent permitted per applicable Law any and all claims Customer may have against AIX or its Related Parties (as defined in Section 9.1 below) in any moral rights or rights of attribution in and to any Feedback, De-Identified Data, Deliverables, Transaction Packages, Platform Data, Reports and Analyses, or other work product or intellectual property assigned to AIX by Customer hereunder (excluding, in each case, Customer Data and Customer Forms).
5.6 Further Assurances; Representatives. During the Term and thereafter, Customer shall perform all actions and execute all documents necessary to effectuate the assignment of all rights, title, and interests in the Feedback, De-Identified Data, Deliverables, Transaction Packages, Platform Data, Reports and Analyses, and other work product or intellectual property assigned to AIX hereunder (excluding, in each case, Customer Data and Customer Forms) including, without limitation, obtaining appropriate assignment documents from Customer’s Representatives and Authorized Users to assign to AIX any and all rights in and to the foregoing. Prior to permitting any Representative of Customer or a Customer Authorized User to have access to the Platform, Deliverables, Platform Data, Transaction Packages, or Reports and Analyses, Customer shall enter into a written agreement with such Representative or Customer Authorized User whereby such person or entity: (a) presently assigns, to the fullest extent permitted per applicable Law, all rights, title, and interests (including IPR) in and to any work product, documents, works of authorship, inventions, discoveries, trade secrets, and ideas created or developed by such person or entity related to the Platform, Deliverables, Platform Data, Transaction Packages, or Reports and Analyses; (b) waives any moral rights such person or entity may have as against AIX and its successors, assigns, and licensees (as contemplated by Section 5.5); and (c) agrees to be bound by data security and confidentiality provisions at least as restrictive as set forth in the Agreement.
5.7 Third Party Materials from Customer. Customer represents, warrants, and covenants that the Customer Data, Customer Forms, Feedback, De-Identified Data, Deliverables, and other work product or intellectual property provided by Customer to AIX in connection with the Agreement do not contain, comprise, incorporate, or otherwise utilize any Third-Party Materials other than Third-Party Materials for which Customer has expressly procured appropriate and lawful consents, permissions, authorizations, and waivers necessary for AIX to perform its duties or obligations, and exercise its rights, under the Agreement. “Third-Party Materials” means materials, documents, data (including Personally Identifiable Information), intellectual property, and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components, and all IPR therein or related thereto, that are not proprietary to Customer or AIX.
5.8 Reports and Analyses. To the extent the Platform as made available via the Customer Account allows the Customer or its Authorized Users to create, download, or distribute Reports and Analyses, this Section 5.8 shall apply. Except for the limited rights granted to Customer or its Authorized Users hereunder, Customer agrees that all rights, title, and interests in and to the Reports and Analyses (excluding any Customer Data contained therein) are reserved by AIX. During the Term and thereafter (solely as permitted per Section 4.4), AIX hereby grants to Customer and its Authorized Users, a limited, non-exclusive, non-transferable, non-sublicensable, fully paid up, right to reproduce, privately display with Customer’s or its Authorized Users’ organization, and distribute Reports and Analyses solely for Customer’s or its Authorized Users internal business purposes, and subject to Customer’s and its Authorized Users’ compliance with the confidentiality obligations under the Agreement. Reports and Analyses constitute the Confidential Information of AIX. Except for the limited rights granted to Customer hereunder, AIX shall own all rights, title and interest in and to all Reports and Analyses (excluding Customer Data and Customer Forms), and Customer, to the fullest extent permitted per applicable Law, hereby irrevocably assigns, transfers, and conveys to AIX all rights, title and interest including, without limitation, all IPR therein, in and to such Reports and Analyses (excluding Customer Data and Customer Forms), for no additional consideration, automatically upon coming into existence or upon Customer acquiring any rights therein.
5.9 Rights to Third Party Platform Users. Customer understands and agrees that, in order to provide the Services to Customer, AIX must make certain Customer Data and/or Customer Forms available to certain third parties and other users of the Platform (“Platform Users”), who may need to reproduce, modify, enrich, or otherwise use such Customer Data or Customer Forms in order to effectuate a transaction or a Communication (including, without limitation, in the creation or review of a Transaction Package) for or on Customer’s behalf, and Customer hereby permits AIX to provide such Customer Data and/or Customer Forms to Platform users and other third parties for such purposes. Customer hereby grants to such third parties all rights and licenses in and to the Customer Data or Customer Forms solely as needed for such third parties to assist in effectuating transactions, Transaction Packages, or Communications for or on behalf of Customer as contemplated by this Section 5.9. AIX shall have no liability for the acts or omissions of such third parties and Customer is solely responsible for obtaining any agreements, including non-disclosure or confidentiality agreements and data processing agreements, with such third parties that Customer deems necessary or appropriate to protect and maintain the confidentiality, integrity, and/or privacy of Customer Data or Customer Forms with respect to such third parties.
6. Data Security and Data Privacy.
6.3 Data Privacy; De-Identified Data. Customer acknowledges that AIX will collect and generate data that is not Personally Identifiable Information, which without limitation includes data that is de-identified Personally Identifiable Information resulting from Customer and Authorized Users’ use of and access to the Platform (“De-Identified Data”). AIX shall own all rights, title and interest in and to such De-Identified Data and Customer, to the fullest extent permitted per applicable Law, hereby irrevocably assigns, transfers, and conveys to AIX all rights, title and interest including, without limitation, all IPR therein, in and to such De-Identified Data, for no additional consideration, automatically upon coming into existence or upon Customer acquiring any rights therein. Such De-Identified Data may be used by AIX for any lawful business purpose (e.g., analytics) without a duty of accounting to Customer, provided, that, the De-Identified Data is used only in an aggregated form, without directly identifying Customer, any Authorized User or other person or entity as the source thereof.
6.4 Restoring Customer Data. During the Term, in the event of any damage, loss, destruction, or corruption of Customer Data caused by AIX’s systems or the provision of the Services or Additional Services, AIX will use commercially reasonable efforts to restore the Customer Data from AIX’s most current back-up of such Customer Data in accordance with AIX’s then-current back-up policy. This shall be AIX’s sole obligation and liability, and Customer’s sole remedy, resulting from any damage, loss, destruction, or corruption of Customer Data caused by AIX’s systems or the provision of any Services or Additional Services.
7. Representations and Warranties.
7.1 General. AIX represents, warrants, and covenants to Customer that it has and will continue to have during the term hereof, all corporate or organizational power and authority necessary to enter into the Agreement and perform all of its obligations under the Agreement. Customer represents, warrants, and covenants to AIX that: (a) it has and will continue to have during the Term hereof, all corporate or organizational power and authority necessary to enter into the Agreement and perform all of its obligations under the Agreement; (b) the performance of its obligations under the Agreement does not and will not violate any Law applicable to such Party’s performance, any rights of any third party or any agreement by which such Party is bound; and (c) it will procure all rights, certificates, licenses, permits or other approvals required for its performance under the Agreement, including, without limitation, any financial or other counterparties, intermediaries or agents in possession of Customer Data.
7.2 Performance. During the Term of the Agreement, AIX represents and warrants to Customer that AIX will use commercially reasonable efforts to perform the Services and Additional Services. AIX’s sole obligation and Customer’s sole and exclusive remedy in the event of any failure by AIX to comply with the foregoing sentence will be for AIX to, at its option, remedy the failure or re-perform the affected Services or Additional Services.
7.3 Non-Infringement by AIX. AIX represents and warrants to Customer that, excluding Customer’s or its Authorized Users’ use, Processing, transmission, storage, reproduction, preparation of derivative works, display, or distribution of or access to Customer Data or third-party content, software, data, documents, information, or materials (including Third-Party Materials) made available through the Platform or in connection with the Services or Additional Services, the use by Customer of the Platform during the Term of the Agreement in accordance with the terms and conditions of the Agreement (excluding Customer’s or its Authorized Users’ use, Processing, transmission, storage, reproduction, preparation of derivative works, display, or distribution of or access to Customer Data or third-party content, software, data, documents, information, or materials (including Third-Party Materials) made available through the Platform or in connection with the Services or Additional Services, the “Covered Services”) will not infringe any valid and enforceable third-party U.S. patent or copyright. As AIX’s sole obligation and Customer’s sole and exclusive remedy for any failure by AIX to comply with the foregoing sentence, AIX will indemnify and defend Customer against any such failure as set forth in Sections 9.1 and 9.2.
7.4 Non-Infringement by Customer. Customer represents and warrants to AIX that the Customer Data (including Customer Forms), and AIX’s use, reproduction, display, preparation of derivative works, and distribution thereof in accordance with the Agreement, as well as any Feedback, does not and will not infringe upon, misappropriate, or otherwise violate the rights including, but not limited to, IPR, of any person or entity.
8.1 General. EXCEPT AS EXPRESSLY SET FORTH IN THE AGREEMENT, THE PLATFORM, TECHNOLOGY, SERVICES, ADDITIONAL SERVICES, PLATFORM DATA, TRANSACTION PACKAGES, REPORTS AND ANALYSES, AND OTHER DATA GENERATED, THROUGH THE PLATFORM, SERVICES OR ADDITIONAL SERVICES, ARE PROVIDED “AS IS” TO CUSTOMER AND ITS AUTHORIZED USERS WITHOUT WARRANTY OF ANY KIND, AND AIX, TO THE FULLEST EXTENT PERMITTED PER APPLICABLE LAW, EXPRESSLY DISCLAIMS, AND CUSTOMER DISCLAIMS ANY RELIANCE ON, ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD THERETO OR TO ANY OTHER SUBJECT MATTER OF THE AGREEMENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AVAILABILITY, OR THAT THE PLATFORM, SERVICES, OR ADDITIONAL SERVICES WILL BE FREE OF HARMFUL CODE, SECURE OR ERROR-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AIX OR ITS RELATED PARTIES WILL CREATE ANY WARRANTIES IN ADDITION TO, THE WARRANTIES EXPRESSLY SET FORTH IN THE AGREEMENT. IN NO EVENT WILL CUSTOMER MAKE ANY REPRESENTATIONS OR WARRANTIES TO AUTHORIZED PARTIES ON BEHALF OF AIX.
8.2 Affiliation. Customer understands and acknowledges that: (a) AIX is currently affiliated with Franklin Square Holdings, L.P. (“FS Investments”); and (b) certain personnel of FS Investments may perform services for AIX, subject to the confidentiality obligations under Section 11.1 hereof.
8.3 Services Not Provided. Customer understands, agrees and acknowledges that (a) AIX is a technology service provider, and is not a broker or dealer or other entity registered under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or with the Financial Industry Regulatory Authority, Inc. (“FINRA”); (b) the Platform shall not be considered, among other things, a “good control location” as such term is defined under the Exchange Act; (c) the Platform does not (i) process payments or hold payments in escrow related to any securities transaction; (ii) hold or transmit any funds or securities of any person or entity; (iii) provide investment advice or make any investment recommendations to any party; (iv) determine the suitability of any investment; (v) provide any anti-money laundering-related services or reviews, and is not responsible for any “know your customer,” customer identification program or customer verification of any kind; (vi) create or send 10b-10 confirmations or customer account statements, or otherwise agree to make or retain any required books and records whatsoever for or on behalf of Customer, any Authorized User, or any other third party; or (vii) provide any tax reporting.
8.4 Links to Other Websites; Third Party Services. For Customer’s convenience, the Platform may contain links to other websites not operated by or affiliated with AIX. AIX does not endorse or control such linked websites, and is therefore not responsible for any information contained on those websites. Customer understands and acknowledges that AIX will not be liable, directly or indirectly, for any damages resulting from the use or reliance on information or advertisements contained in a linked website. The Platform may also provide certain third party functionality that is governed by third party terms and conditions, which AIX will make available upon Customer’s reasonable written request. Customer agrees to comply with such third party terms and conditions, as applicable, when using such functionality. Such third party functionality is provided “AS IS” by AIX and AIX expressly disclaims, to the fullest extent permitted per applicable law, all representations and warranties, express or implied, with respect to such third party functionality or services.
8.5 Monitoring. AIX reserves the right to monitor Customer and any Authorized User’s use of the Platform and any communications by Customer and any Authorized User related to such use. Customer understands and acknowledges that AIX assumes no liability in connection with its monitoring activities.
8.6 Information Collected. It is not the responsibility or obligation of AIX to authenticate, confirm or otherwise verify the accuracy or propriety of the Platform Data or Customer Data. Customer understands and acknowledges that AIX shall not be liable for any damage or loss arising from inaccurate or unauthorized transmissions via the Platform or email.
9.1 General. Except as set forth in Section 9.2 with respect to Infringement Actions, each Party (the “Indemnifying Party”) will indemnify, defend and hold harmless the other Party, its affiliates and their respective officers, directors, partners, employees, representatives, contractors, and agents (collectively, “Related Parties”) from and against any claim, counterclaim, allegation or action (any “Action”) brought against the other Party or one of its Related Parties (other than by the other Party itself or its Related Parties) to the extent relating to, resulting from or arising out of (a) the Indemnifying Party’s performance (or failure to perform) any of its obligations under the Agreement or (b) any breach of warranties, representations or obligations of the Indemnifying Party under the Agreement. The Indemnifying Party will further pay those losses, liabilities, damages, fees, expenses and costs (including reasonable attorneys’ fees and court costs) (“Losses”) finally awarded against the other Party or one of its Related Parties in any such Action or those Losses agreed to in a monetary settlement of such Action, as applicable.
9.2 Non-Infringement. AIX will indemnify, defend and hold harmless Customer and its Related Parties from and against any Action brought against Customer or one of its Related Parties by a third party (other than by Customer or its Related Parties) that the use by Customer of the Covered Services infringes any valid and enforceable U.S. patent, trademark or copyright (“Infringement Actions”). If Customer is, or AIX reasonably believes Customer may be, enjoined from using any Covered Service due to an Infringement Action, AIX will either procure the right for Customer to continue using the Covered Service, replace or modify the Covered Service so that it becomes non-infringing or terminate the Agreement. Notwithstanding anything to the contrary in the Agreement, AIX will have no obligation with respect to any Infringement Actions or Losses in the case of or arising from or relating to any claim concerning: (a) any use of any Covered Service other than by Customer and Authorized Users; (b) any use of any Covered Service not under and in accordance with the Agreement; (c) any use of any Covered Service in combination with products, equipment, services, hardware, systems, processes, software, data (including, but not limited to Customer Data), or information not supplied by AIX to the extent that, but for such combination, the Covered Service would not have infringed any U.S. patent, trademark or copyright; or (d) any modification of or enhancement to any Covered Service other than by AIX. THIS SECTION CONSTITUTES AIX’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY, FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF IPR OR ANY OTHER RIGHTS RELATING TO THE PLATFORM, TRANSACTION PACKAGES, TECHNOLOGY, THE PLATFORM DATA, ANY SERVICE OR ADDITIONAL SERVICE.
9.3 By Customer. Notwithstanding anything to the contrary in the Agreement, Customer will indemnify, defend, and hold harmless AIX and its Related Parties from and against any Action or Losses brought against or incurred by AIX or any of its Related Parties arising out of or under or related to or resulting from (a) any technical disruption of or damage to the Platform, Services, Additional Services, or Technology caused directly or indirectly by Customer’s or its Customer Authorized Users’ use of the Platform, Services, or Technology; (b) Customer’s or its Customer Authorized Users’ unauthorized use of or access to the Platform, Services, or Additional Services; (c) the Customer Data, Customer’s Trademarks, the Customer Forms, or AIX’s or its Related Parties’ use, handling, storage, Processing, transmission, reproduction, display, distribution, or preparation of derivative works thereof in accordance with the Agreement including, without limitation, any claim that the Customer Data, Customer’s Trademarks, or Customer Forms or AIX’s use thereof infringes upon, misappropriates, or otherwise violates the rights including IPR, of any person or entity; (d) Customer’s or its Authorized Users’ input or transmission of corrupt, inaccurate, or incomplete data through the Platform or otherwise in connection with the Services or Additional Services; (e) the acts or omissions of Customer’s Authorized Users or Representatives; (f) Customer’s or any Authorized Users’ breech or violation of any Data Security Laws or Security Breach Laws or failure to obtain any consents, permissions, authorizations, or waivers necessary for AIX to exercise its rights or perform its duties or obligations under the Agreement; or (g) any Security Breach of Platform Data or Customer Data in Customer’s or its Authorized Users’ possession, custody or control.
9.4 Conditions. All obligations of each Party to defend or indemnify the other Party or any Related Party under the Agreement are conditioned upon the Party seeking defense or indemnification providing the Indemnifying Party with: (a) prompt notice of any such claim for indemnification or defense after receiving notice thereof, provided, that, failure to provide such prompt notice will not invalidate a Party’s right to indemnification hereunder unless and to the extent the Indemnified Party is materially prejudiced by such failure; (b) sole control over the defense and settlement of such claim, provided, that, any settlement will be subject to the other Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed; and (c) reasonable assistance in such defense or settlement (at the Indemnifying Party’s or defending Party’s expense).
9.5 Injunctive Relief. Customer acknowledges that its breach of the Agreement may result in immediate and irreparable harm to AIX, for which there will be no adequate remedy at law, and Customer agrees that AIX shall be entitled to equitable relief in the event of any breach or threatened breach by Customer, including injunctive relief, in addition to any other rights or remedies that may be available to AIX under law or in equity and any other remedies under the Agreement, without the requirement of proving irreparable harm or posting a bond.
10. Limitation on Liability.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED PER APPLICABLE LAW, IN NO EVENT WILL AIX OR ITS AFFILIATES AND ITS OR THEIR RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE), ARISING IN ANY WAY IN CONNECTION WITH OR OUT OF THE AGREEMENT, INCLUDING, WITHOUT LIMITATION, THE USE OF OR ACCESS TO THE PLATFORM OR ANY SERVICES, ADDITIONAL SERVICES, OR TECHNOLOGY (OR ANY PLATFORM DATA, TRANSACTION PACKAGES, REPORTS AND ANALYSES, OR CUSTOMER DATA OR CUSTOMER FORMS PROVIDED OR PROCESSED THROUGH THE PLATFORM OR ANY SERVICES OR ADDITIONAL SERVICES), EVEN IF AIX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, OPPORTUNITY, LOSS OF REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE SERVICES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT, TO THE FULLEST EXTENT PERMITTED PER APPLICABLE LAW, AIX’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THE AGREEMENT, THE PLATFORM AND ALL SERVICES AND ADDITIONAL SERVICES PROVIDED UNDER THE AGREEMENT, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE GREATER OF TWELVE (12) MONTH’S FEES PAYABLE TO AIX UNDER THE AGREEMENT OR TEN THOUSAND DOLLARS ($10,000). CUSTOMER AGREES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THE AGREEMENT AND ACKNOWLEDGE THAT AIX WOULD NOT ENTER INTO THE AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, AIX’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
11.1 Protection. Each Party (the “Receiving Party”) may from time to time receive or otherwise obtain data or information of a non-public, confidential or proprietary nature of the other Party (the “Disclosing Party”), including, without limitation, trade secrets, know-how, and other technical, advertising, marketing, sales, financial, pricing, employee, customer and planning information of a confidential or proprietary nature, whether or not such data or information is marked confidential or proprietary if, by its nature, such data or information would reasonably be deemed confidential or proprietary (“Confidential Information”). Subject to the terms and conditions of the Agreement, the Receiving Party will use the Confidential Information of the Disclosing Party only as needed for the Receiving Party to exercise its rights, or perform its duties or obligations under the Agreement, and for no other purpose. Except as expressly set forth elsewhere in the Agreement or the Data Processing Addendum, the Receiving Party will disclose the Confidential Information of the Disclosing Party only to its Representatives who have a need to know such Confidential Information for purposes of the Agreement, who are informed by the Receiving Party of the confidential nature of the Confidential Information and who agree to act in accordance with the confidentiality and data security/data privacy terms and conditions of the Agreement including, without limitation, the confidentiality provisions in this Section 11.1 and the data security and data privacy provisions in Section 6 (and in the Data Processing Addendum). AIX’s Representatives who are not performing services for AIX relating to the Platform will not have access to any Customer Confidential Information through the Platform. Except as expressly set forth in the Agreement or the Data Processing Addendum, the Confidential Information will be kept confidential by the Receiving Party and its Representatives and shall not, without the Providing Party’s prior written consent, be disclosed by the Receiving Party or its Representatives, in any manner whatsoever, in whole or in part, and shall not be used by the Receiving Party or its Representatives, other than in connection with and as expressly permitted under the Agreement. The Receiving Party will use no less than reasonable measures to protect the Confidential Information of the Disclosing Party from unauthorized access, disclosure, or use and to safeguard same. The Receiving Party will be solely responsible and liable for the actions or omissions of its Representatives and any breach or violation of any term or condition of this Section 11.1 by a Receiving Party’s Representative shall be a breach by such Receiving Party.
11.2 Exceptions. The term “Confidential Information” shall not (except for Personally Identifiable Information comprising Customer Data or Platform Data) include such portions of the Confidential Information that (i) are or become generally available to the public other than as a result of a disclosure by the Receiving Party or its Representatives in violation of the Agreement; (ii) become available to the Receiving Party or its Representatives on a non-confidential basis from a source other than the Disclosing Party or its Representatives; (iii) were already in the Receiving Party’s possession on a non-confidential basis prior to the date hereof and which were not obtained from the Disclosing Party or its Representatives; or (iv) were independently developed by the Receiving Party or its Representatives without reference to or use of the Confidential Information of the Disclosing Party, as evidenced by written records. In the event that the Receiving Party or any of its Representatives are requested or required under any applicable Law or legal, judicial or administrative process or pursuant to an audit or examination by a regulator, bank examiner or self-regulatory organization (including by oral questions, interrogatories, requests for information or documents, subpoena, regulatory examination requests, civil investigative demand or other process) or, in the case of Receiving Party’s Representatives that are accounting firms, the applicable professional standards of the American Institute of Certified Public Accountants, Public Company Accounting Oversight Board or state boards of accountancy or obligations thereunder to disclose any of the Confidential Information, the Receiving Party or such of its Representatives will, to the extent legally permissible, provide the Disclosing Party with prompt notice so that the Disclosing Party may seek, at the Disclosing Party’s sole expense, a protective order or other appropriate remedy or waive compliance with the provisions of the Agreement. In the event that such protective order or other remedy is not obtained, or that Disclosing Party waives compliance with the provisions of the Agreement, the Receiving Party or such Representative shall disclose such Confidential Information without liability hereunder; provided, however, that the Receiving Party or such Representative will furnish only that portion of the Confidential Information that, in the reasonable opinion of its counsel, it is compelled to disclose and will not oppose any action by the Disclosing Party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
11.3 Return of Confidential Information. Upon the Disclosing Party’s request or upon the termination or expiration of the Agreement for any reason, the Disclosing Party and its Representatives will return or, at the Receiving Party’s option, destroy, all copies of the Confidential Information in the Receiving Party’s or its Representatives’ possession, custody, or control; provided, however, that the Receiving Party and its Representatives (i) may retain copies of the Confidential Information in accordance with policies and procedures implemented in order to comply with applicable Laws, professional standards or bona fide document retention policies, or as otherwise permitted under the Agreement, and (ii) will not be required to destroy electronic versions of the Confidential Information to the extent such destruction is not reasonably practical; provided, however, that in the event of (i) or (ii) the Receiving Party will continue to be bound by the confidentiality obligations set forth in the Agreement with respect to such Confidential Information.
11.4 Survival. The provisions in this Section 11 shall survive termination or expiration of the Agreement for any reason (a) with respect to any trade secrets comprising the Confidential Information, for so long as such trade secrets are protected as such per applicable Laws; (b) with respect to Personally Identifiable Information comprising the Confidential Information, for so long as such is protectable or protected under or as otherwise required per applicable Law; and (c) with respect to any other Confidential Information not falling within (a) or (b), for (i) a period of five (5) years from termination or expiration of this Agreement; or (ii) the longest time permitted per applicable Law, whichever is shorter.
12. Force Majeure.
In no event will AIX be held responsible for failure or delay in the performance of any obligation under the Agreement if such failure or delay is due to acts of God or governmental authority, war, terrorism, strikes, boycotts, labor disputes, fire or other loss of facilities, accident or any other cause beyond its control (each, a “Force Majeure”). If the performance of any obligation under the Agreement by AIX is prevented, restricted or interfered with by reason of a Force Majeure event, AIX, upon giving prompt notice to Customer, will be excused from such performance to the extent of such Force Majeure event, provided, that, AIX will take all reasonable steps to avoid or remove such causes of nonperformance and will continue performance hereunder with dispatch whenever such causes are removed.
13. Defined Terms.
In addition to the terms defined elsewhere in the Agreement and herein, the following terms have the meanings specified in this Section:
“Agreement” means the Platform Services Agreement or EUAA entered into between Customer and AIX (and all exhibits, agreements, schedules, and addenda attached thereto or incorporated by reference therein), including the Terms and Conditions set forth herein.
“Authorized User” means Customer Authorized Users and, if Customer is a broker-dealer or if Customer otherwise obtains prior approval from AIX, Customer’s Third-Party Authorized Users.
“Communication” means the electronic transmission of a Transaction Package through the Platform.
“Customer Authorized User” means an agent, representative, director, officer, or employee of Customer, or an affiliate of Customer, in each case, who is expressly authorized by Customer to use and access the Platform pursuant to, and who agrees to be bound by, the then-current EUAA, and for whom a User ID is created and registered under the Customer Account.
“Customer Data” has the meaning attributed to it in the Data Processing Addendum.
“Data Processing Addendum” means the Data Processing Addendum available at https://aixplatform.com/data-processing-addendum/.
“Data Security Laws” means any Laws, statutes, common law, treaties, rules, regulations, codes, restrictions, ordinances, orders, decrees, approvals, directives, policy statements, judgments, rulings, injunctions, and writs of, or issued or entered by, any federal, state, local, municipal or foreign (a) government or (b) governmental body, entity, instrumentality, agency or subdivision thereof exercising or entitled to exercise any administrative, executive, judicial, legislative, police, regulatory or taxing authority, including any court, tribunal, arbitral body, commission, administrative agency or quasi-governmental or private body exercising any regulatory or taxing authority thereunder, which govern the collection, handling, storage, distribution, Processing, use, transmission, disclosure, importing, exporting, or maintenance of Personally Identifiable Information or other information or data of a private nature.
“EUAA” means the end-user access agreement governing an Authorized User’s use of the Platform, as may be amended from time to time by AIX in its sole discretion, available at https://aixplatform.com/end-user-access-agreement/.
“Investors” means prospective or existing investors in the investment products processed through or serviced on the Platform.
“IPR” means any and all intellectual property rights, proprietary rights, rights of publicity, rights of privacy, and any and all other legal rights protecting data, information, or intangible property throughout the world, including, without limitation, all worldwide right, title and interest in and to all rights of every kind and nature pertaining to or deriving from any of the following, whether protected, created or arising under the Laws of the United States or any other jurisdiction: (a) foreign and domestic patents and patent applications (including reissuances, divisions, renewals, provisional applications, continuations, continuations in part, substitutions, revisions, extensions and re-examinations), and all inventions (whether patentable or not), invention disclosures, and improvements to any of the foregoing; (b) trademarks, service marks, trade names, trade dress, designs, logos, slogan, or other source identifiers, including as defined in 15 U.S.C. § 1127, whether registered or unregistered or at common law, including all foreign and domestic applications, registrations and renewals in connection therewith, and all goodwill of the business or otherwise associated with any of the foregoing (“Trademarks”); (c) Internet domain names and other Internet addresses, and user names, accounts, including social networking accounts, pages, and online identities, and all goodwill associated therewith; (d) copyrights, original works of authorship (whether copyrightable or not), and all databases and data collections, whether registered or unregistered, and including all applications, registrations and renewals of any such thing, and all moral rights and/or neighboring rights associated therewith and sui generis rights in databases; (e) know-how, source code, object code, inventions, invention disclosures, discoveries, improvements, concepts, ideas, methods, processes, designs, plans, schematics, drawings, formulae, recipes, manufacturing processes, customer and market lists, technical data, specifications, research and development information, technology and product roadmaps, data bases, trade secrets, and other proprietary or confidential information; (f) all computer programs, including any and all software implementations of algorithms, models and methodologies, whether in source code or object code or other readable code; and (g) all income, royalties, damages, and payments with respect to the foregoing, the right to sue and recover damages and payments for past, present, and future infringements, misappropriations, or dilution of any of the foregoing, the right to file applications for and to secure and maintain registrations in any of the foregoing in any jurisdiction, and any and all corresponding rights that now or hereafter may be secured throughout the world.
“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.
“Personally Identifiable Information” means information that identifies, relates to, describes, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular individual and includes, without limitation, identifiers such as a real name, alias, postal address, unique personal identifier, online identifier Internet Protocol address, email address, account name, social security number, driver’s license number, passport number, or other similar identifiers, personally identifiable financial information, and other similar information about an individual and includes, without limitation, “personal information”,
“PII”, “personally identifiable information,” and “nonpublic personal information” (and other similar terms) as defined under applicable data privacy and data security laws including, without limitation, the California Consumer Privacy Act, the Gramm Leach Bliley Act, and the Security Breach Laws.
“Platform Data” has the meaning attributed to it in the Data Processing Addendum.
“Process” means to take any action or perform any operation or set of operations on any data, information, or other content, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Reports and Analyses” means reports, analyses, and other analytical output made available to the Customer or Customer’s Authorized Users via the functionality of the Platform as provided through the Customer Account by AIX, or otherwise provided by AIX to Customer in connection with the Services.
“Representatives” means directors, officers, employees, agents, consultants or advisers (including, without limitation, legal, financial or accounting advisers) or representatives of any of the foregoing.
“Security Breach” means any act or omission that compromises or threatens to imminently compromise the security, confidentiality or integrity of, or results in the unauthorized disclosure of or access to, Personally Identifiable Information or Confidential Information in a Party’s or its Representatives’ (including, with respect to Customer, its Authorized Users’) possession, custody or control, or a circumvention of the physical, technical, administrative or organizational safeguards established by a Party or its Representatives (including, with respect to Customer, its Authorized Users).
“Third-Party Authorized User” means a Customer’s third party financial advisor, or other third party of Customer approved by AIX, in each case, who is expressly authorized by Customer to use and access the Platform pursuant to, and who agrees to be bound by, the then-current EUAA, and for whom a User ID is created and registered under the Customer Account, excluding any Customer Authorized Users.
“User ID” mean a unique user identification and password.
14.1 Governing Law. The Agreement, and all claims or causes of action (whether in contract, tort or statute) that may be based upon, arise out of or relate to the Agreement, or the negotiation, execution or performance of the Agreement, shall be governed by, and enforced in accordance with, the internal Laws of the Commonwealth of Pennsylvania, including its statutes of limitation, without reference to the conflict of laws provisions thereof. Venue for any action (including arbitration) shall lie exclusively in Philadelphia, Pennsylvania.
14.2 Arbitration. Customer agrees that AIX, at its sole discretion, may require Customer to submit any dispute concerning the application, construction, validity, interpretation or enforcement of the Agreement or arising from the use of the Platform, Services, or Additional Services, to binding arbitration in accordance with this Section, to be held in Philadelphia, Pennsylvania, before a single arbitrator, who shall have formerly served as a federal judge, in accordance with the then-prevailing Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association, who shall have the exclusive authority to resolve the dispute. Customer agrees that Customer will be responsible for one-half of the arbitrator’s fees unless the arbitrator orders otherwise. Customer agrees that the arbitrator’s decision will be deemed final and binding in accordance with the Federal Arbitration Act and may be enforced in any court of competent jurisdiction. The arbitrator will not have the right to modify or change any of the terms of the Agreement or any EUAA. Customer agrees that the arbitrator, and not any court, shall have exclusive authority to resolve any dispute. Customer agrees that the arbitrator may provide all appropriate remedies at law and will have the power to summarily adjudicate claims, grant injunctive relief or other provisional remedies or enter summary judgment in appropriate cases. Notwithstanding these rules, however, such proceeding shall be governed by the Laws of the Commonwealth of Pennsylvania as set forth herein. Any award in an arbitration initiated under this Section shall be limited to monetary damages and shall include no injunction or direction to any Party other than the direction to pay a monetary amount. Further, the arbitrator shall have no authority to award punitive, consequential or other damages not measured by the prevailing Party’s actual damages in any arbitration initiated under this Section, except as may be required by statute.
14.3 Notices. All notices, requests, or communications required hereunder shall be in writing and shall be deemed to have been duly given (a) upon delivery, if delivered personally against written receipt; (b) three (3) days after posting by certified mail, postage prepaid, return receipt requested; (c) upon confirmed receipt, if delivered by e-mail or other means of electronic transmission; or (d) the next day if delivered by a recognized overnight commercial courier, such as Federal Express or DHL, addressed in each instance to the Parties at the addresses set forth on the signature page to the Agreement (or at such other addresses as shall be given by either of the Parties to the other in accordance with this Section 14.3).
14.4 Interpretation. Terms used in the Agreement will have the definitions given in the Agreement or, if not defined in the Agreement, will have their plain English meaning as commonly interpreted in the United States. The words “include,” “includes” and “including” means “include,” “includes” or “including,” in each case, “without limitation.”
14.5 Headings. Headings used herein are for convenience of reference only, and shall not be used in the construction or interpretation hereof.
14.6 Severability. If any provision of the Agreement is held to be unenforceable or invalid for any reason, that provision will be removed to the extent necessary to comply with the Law, and replaced by a provision that most closely approximates the original intent and economic effect of the original to the extent consistent with the Law, and the remaining provisions will remain in full force.
14.7 Amendments. Except as expressly set forth in the Agreement, the Agreement may be modified or amended only in writing signed by each Party. AIX reserves the right to amend these Terms and Conditions at any time to the extent AIX, in its sole discretion, deems it necessary or appropriate for the operation of the Platform. AIX shall provide notice of any material amendment to these Terms and Conditions and, once in effect, Customer’s continued use of the Platform shall indicate acceptance of the Terms and Conditions, as amended.
14.8 Waivers. Any delay or failure to exercise any rights hereunder shall not be construed as a waiver thereof. No term or provision hereof shall be deemed waived and no breach excused unless such waiver or consent shall be in writing and signed by the Party claimed to have waived or consented. Any consent by any Party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach.
14.9 Assignment. Neither the Agreement nor any rights or obligations of Customer hereunder may be assigned, delegated, or transferred by Customer (whether in whole or in part, including by sale, merger, consolidation, operation of law, or otherwise) without the prior written approval of AIX. Any assignment in violation of the foregoing will be null and void ab initio. AIX may assign the Agreement upon written notice to Customer. AIX may subcontract any or all of its obligations under the Agreement, provided, that, AIX remains responsible for compliance with the applicable terms of the Agreement as to those obligations.
14.10 Independent Contractors. The relationship between the Parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
14.11 Promotional Materials. AIX may reference Customer as a user of the Services or Additional Services and use Customer’s name, trademark, service mark, or logo, as applicable, in listings of users of the Services or Additional Services appearing on the AIX or Platform website and for other marketing and promotional purposes, including press releases, relating to the Platform, Services or Additional Services, and as otherwise agreed to by the Parties in the Agreement.
14.12 Use of Platform; Limited Availability. Should Customer’s use of the Platform or the Platform Data be contrary to the Laws of Customer’s jurisdiction from where Customer accesses the Platform, then the Platform is not intended for Customer’s use, and Customer should discontinue use of the Platform. Customer is solely responsible for knowing the Laws of Customer’s jurisdiction and for assuring Customer’s compliance with such Laws. Not all products or services described on the Platform may be available to all persons or entities or in all jurisdictions. The Platform was created in the United States. The Platform, Services and/or the Additional Services may not comply with legal requirements in foreign countries. The Platform Data is not provided for and may not be used by any person or entity in any jurisdiction in violation of applicable Laws. Customer shall not export or re-export any of the Services, the Platform, or Platform Data or any commodities using the Platform Data to, nor shall Customer or its Authorized Users access the Platform or Services in, any country to which the United States government forbids export or, at the time of export, requires an export license or approval, without first obtaining such license or approval and approval by the other Party. Customer shall not transfer Platform Data outside of the United States.
14.13 Further Actions. Each Party will, at the other’s request, execute all such documents and take such further actions as may be necessary to give full effect to the Agreement.
14.14 Entire Agreement. The Agreement, together with all exhibits, schedules, Work Orders and any other documents incorporated herein or therein by reference (including the Data Processing Addendum), constitutes the sole and entire agreement of the Parties to the Agreement with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter. In the event of any conflict between the terms and provisions of the Agreement and those of the Terms and Conditions, any schedule, exhibit, or Work Order, the following order of precedence shall govern: (a) first, the PSA, exclusive of its exhibits and any Work Orders; (b) second, the Terms and Conditions; (c) third, any exhibit to the PSA (except and unless the exhibit expressly states that it supersedes any of the foregoing, in which case it shall govern and control); (d) fourth, the Data Processing Addendum; and (e) fifth, any Work Order (except and unless the Work Order expressly states that it supersedes any of the foregoing, in which case it shall govern and control).