1.1 Services. 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 Section 6.1(a) below) 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. To the extent additional services are made available through the Platform, Customer shall not be granted access to any such additional services until the Parties amend the Agreement.
1.2 Additional Services. Customer may from time to time request that AIX perform certain additional professional or consulting services relating to the Platform (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, or other deliverables, materials, or work product that arise from, relate to, or are created, developed, reduced to practice, invented, suggested, or conceived 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 hereby transfers, conveys, and assigns to AIX, for no additional consideration, all of Customer’s rights, title and interest including, but not limited to, all IPR, in and to such Deliverables. To the extent such Deliverables relate to the Platform, the Deliverables will be deemed included in the Agreement 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), AIX will authorize Customer to access and use the Platform and provide Customer with an account on the Platform (the “Customer Account”). Subject to the terms and conditions of the Agreement (including those contained herein), 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. 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 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 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 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 and other equipment as may be necessary for Customer and each Authorized User to connect to, access, and use the Platform or any Services or Additional Services, including any specific customer responsibilities included 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, and other technology used by or on behalf of AIX to provide the Platform, as well as the Platform itself (collectively, the “Technology”), and their structure, organization, and User IDs, as well as all Platform Data, constitute the valuable intellectual property, including trade secrets, of, as applicable, AIX, third parties and their licensors, all rights, title and interest in which are expressly reserved and retained by, as applicable, AIX, third parties and their licensors. 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 permit any Authorized User or other third party to: (a) access or use the Platform or any Service or Additional Service except as expressly permitted by the Agreement and, as applicable, the EUAA; (b) access or use the Technology, in whole or in part, except through the Platform as expressly provided in the Agreement and, as applicable, the EUAA; (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 or create derivative works of the Platform, the Platform Data or the Technology except as expressly permitted in the Agreement; (g) distribute, sell, resell, lend, loan, lease, license, sublicense, assign, transfer, or otherwise make available the Platform, Services, 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, except as expressly provided in the Agreement and the EUAA; (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, Additional Services or the Technology or otherwise disrupt or impair the Platform, Services, 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.
2.1 Fees for Services. As consideration for the performance by AIX of the Services, Customer will pay AIX the fees set forth in the Agreement. The fees set forth in the Agreement may only be modified or amended by mutual consent of the Parties.
2.2 Fees for Additional Services. As consideration for the performance by AIX of any Additional Services, Customer will pay AIX the fees set forth in the applicable Work Order relating to such Additional Services.
2.3 Invoicing. Unless otherwise 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 receipt of AIX’s corresponding invoice. Amounts billed 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, whichever is less, until paid in full. 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 Agreement, unless earlier terminated pursuant to Section 4 hereof. If the Agreement does not provide for a term, the Agreement (including these Terms and Conditions) shall continue in effect until terminated pursuant to Section 4 hereof.
4.1 Termination for Cause. Either Party may terminate the Agreement or any Work Order if the other Party materially breaches the Agreement or such Work Order, respectively, and fails to remedy such breach within ninety (90) days after receiving notice of the breach from the other Party.
4.2 Termination without Cause. AIX may terminate the Agreement or any Work Order for any reason upon ninety (90) days’ 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’ 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 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.
4.4 Effect of Termination. Upon termination or expiration of the Agreement or any Work Order for any reason: (a) AIX may 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; (b) 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; (c) 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; (d) all fees and other amounts then owed by Customer under the Agreement or the Work Order will become immediately due and payable to AIX; (e) 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 Confidential Information then in Customer’s or its Authorized Users’ possession, custody or control, provided that Customer may maintain all Customer Data; and (f) 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. 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 the following: Section 1.5 (Restrictions), Section 4 (Termination), Section 5 (Ownership), Customer’s representation and warranty in Section 6.1(b), Section 6.3 (Data Privacy; De-Identified Data), Section 7.4 (Non-Infringement by Customer), Section 8 (Disclaimer), Section 9 (Indemnification), Section 10 (Limitation on Liability), Section 11 (Confidentiality), 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 and any additions, improvements, updates, and modifications thereto. 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 and Platform Data under and as expressly set forth in the Agreement, the EUAA 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 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, 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. Customer hereby assigns all of its rights, title and interest including, but not limited to, all IPR, in and to any Feedback to AIX for no additional consideration, including the right to sue for and collect damages arising out of the past, present, or future infringement of any Feedback.
5.3 Transaction Packages. Customer understands that the Platform may be used to facilitate the transmission 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 by 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 its proprietary forms (the “Customer Forms”) (collectively, all of the foregoing, including Customer Forms, the “Transaction Package”). All rights, title, and interest, including IPR, in and to the Transaction Packages (excluding Customer Forms and any Customer Data contained in any of the Transaction Packages) are expressly reserved by AIX. 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 (excluding Customer Forms) solely as needed for Customer to facilitate a Communication. To the extent Customer uploads or otherwise makes available its Customer Forms through the Platform, Customer hereby grants to AIX a non-exclusive, irrevocable, worldwide, sublicensable, transferable 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 contractors 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), or Deliverables 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, 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, and Deliverables for any reason and no reason whatsoever.
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, or Deliverables.
6. Data Security and Data Privacy.
(a) Platform Data. Customer may have access to data, information and other content through the Platform and the Services or in connection with the Additional Services, including product performance information, and accompanying data, documents and materials that may be produced by third parties (collectively, the “Platform Data”). Subject to the Agreement, Customer and its Authorized Users may use the Platform Data without modification solely for Customer’s own internal business purposes and to provide a Customer client (“Client”) information associated with the Client’s account. AIX is not responsible for the accuracy or completeness of any Platform Data. By accessing the Platform, Customer and its Authorized Users agree that AIX and its affiliates are not liable, directly or indirectly, for any damages resulting from the use of or reliance on any Platform Data. Except as expressly provided in the Agreement, Customer is granted no rights in or to the Platform Data, the rights in which are expressly reserved by, as applicable, AIX and its third-party licensors.
(b) Customer Data. Customer will be solely responsible for all data, information and other content, documents, and materials that Customer or any Authorized User may provide, upload, transmit or otherwise make available to AIX, including through the use of the Platform (“Customer Data”). Customer grants to AIX all rights and licenses in and to Customer Data necessary for AIX to provide the Services and Additional Services under the Agreement (including any Customer Data obtained from authorized third parties), all such rights and licenses on a non-exclusive, irrevocable (during the term of the Agreement), fully sublicensable, fully transferable, and worldwide basis. Customer owns and retains all of Customer’s rights in and to all Customer Data. Customer represents, warrants and covenants that: (i) none of Customer Data or AIX’s or its Representatives’ use thereof as contemplated by the Agreement or any EUAA violates or will violate any law, rule, regulation or ruling, or infringes upon, misappropriates or violates or will infringe upon, misappropriate, or violate any IPR or other rights of any third party, including without limitation any right of privacy; (ii) Customer has all necessary right, title, interest, consents and authorizations necessary to allow AIX to use Customer Data as necessary to provide the Services and Additional Services under the Agreement and to make available same to AIX’s Representatives including, without limitation, any authorizations required from any financial or other counterparties, intermediaries or agents and any consents required pursuant to any Data Security Laws; (iii) the Customer Data will be accurate and complete; and (iv) the Customer Data will not be obscene, threatening, libelous or otherwise unlawful, illegal or tortious. Customer will maintain an adequate back-up of all Customer Data. AIX will not be responsible or liable for any deletion, correction, destruction, damage, loss or failure to store or back-up any Customer Data. Customer will promptly provide AIX any updates to Customer Data if there is a material change.
6.2 Data Security. AIX and Customer will, and Customer will ensure its Authorized Users, comply with all applicable Data Security Laws, and all revisions and amendments thereto (whether existing prior to or after the Effective Date). Customer will establish and maintain reasonable and appropriate administrative, technical and physical safeguards and security measures to protect against the unintended or unauthorized destruction, loss, alteration or access of Platform Data in the possession or control of Customer (including Authorized Users), which safeguards and measures are consistent with applicable law, rules and regulations including, without limitation, the applicable Data Security Laws. Customer shall promptly notify AIX of any Security Breach or similar incident that has, or might have, compromised the privacy or security of any Platform Data in Customer’s possession, custody, or control (including Authorized Users). Other than as authorized in Section 6.1(a), Customer will not share, disclose, or transmit to any person or entity, or otherwise grant any person or entity access to, any Platform Data that is Personally Identifiable Information unless (a) such person or entity agrees, in writing, to abide by data security obligations at least as restrictive as set forth in this Section 6.2 and as required to be compliant with applicable law; and (b) Customer obtains AIX’s express, written consent before doing so, which consent will not be unreasonably withheld.
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 User’s 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 hereby assigns to AIX all rights, title and interest including, without limitation, all IPR therein, in and to such De-Identified Data to the extent such rights, title or interests may reside with Customer. 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. 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 rights, 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 rights, 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, rules or regulations 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 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 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 or misappropriate any third-party trade secret in existence under any laws of any state within the United States. 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 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 AND OTHER DATA GENERATED, THROUGH THE PLATFORM, SERVICES OR ADDITIONAL SERVICES, ARE PROVIDED “AS IS” TO CUSTOMER AND ITS AUTHORIZED PARTIES WITHOUT WARRANTY OF ANY KIND, AND AIX 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 be employed by and perform services for AIX, and certain personnel of AIX may be employed by and perform services for FS Investments; provided, in each case, such personnel will only use Customer Data and Customer Confidential Information obtained from the Agreement for AIX purposes in accordance with Section 11.
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. For your 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.
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. 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 or misappropriates any trade secret in existence under any laws of any state within the United States (“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 misappropriated any trade secret in existence under any laws of any state within the United States; 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 Authorized Users’ use of the Platform, Services or Technology; (b) Customer’s or its Authorized Users’ unauthorized use of or access to the Platform, Services or Additional Services; (c) the Customer Data 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; (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; or (f) any Security Breach of Platform 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 that will require the other Party to assume any liability other than the payment of monies will be subject to the other Party’s prior written consent; 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, IN NO EVENT WILL AIX OR ITS AFFILIATES AND ITS OR THEIR RELATED PARTIES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, 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, OR CUSTOMER DATA 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, 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”). The Receiving Party will not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by the Agreement, and 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 terms and conditions of the Agreement including, without limitation, the confidentiality provisions in this Section 11.1. AIX Representatives who are not affiliated with AIX will not have access to any Customer Confidential Information through the Platform. 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 the Agreement. The Receiving Party will use no less than reasonable measures to protect the Confidential Information from unauthorized access 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 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 Providing 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 Providing Party or its Representatives; or (iv) were independently developed by the Receiving Party or its Representatives without reference to the Confidential Information, 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, regulation 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 Providing Party with prompt notice so that the Providing Party may seek, at the Providing 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 Providing 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 Providing Party to obtain reliable assurance that confidential treatment will be accorded the Confidential Information.
11.3 Return of Confidential Information. Upon the Providing Party’s request or upon the termination or expiration of the Agreement for any reason, the Receiving 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 law, regulation, professional standards or bona fide document retention policies and (ii) will not be required to destroy electronic versions of the Confidential Information to the extent such destruction is not reasonably practical.
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 13:
“Agreement” means the Platform Services Agreement or AIX Access Agreement entered into between Customer and AIX, including the Terms and Conditions set forth herein.
“Authorized User” means a broker-dealer, financial advisor, other agent or third party, 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.
“Communication” means the electronic transmission of a Transaction Package through the Platform.
“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.
“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 proprietary 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, revisions, extensions and re-examinations), and all inventions (whether patentable or not), invention disclosures, and improvements thereof; (b) trademarks, service marks, trade names, designs, logos 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; (c) Internet domain names and other Internet addresses, and user names, accounts, including social networking accounts, pages, and online identities; (d) copyrights, original works of authorship, 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 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 and other proprietary or confidential information; and (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.
“Personally Identifiable Information” means information or data which identifies or can be used to identify an individual, such as, names, addresses, phone numbers or other unique or persistent identifiers, or which can be used to authenticate an individual, such as, social security numbers, driver’s license number, passwords, financial account numbers, credit card numbers, credit report information, health and medical information, or biometric identifiers.
“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 (as defined in Section 11.1 hereof) in a Party’s or its Representative’s (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).
“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 State of Delaware, 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 14.2, 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 State of Delaware as set forth herein. Any award in an arbitration initiated under this Section 14.2 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 14.2, 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 (i) upon delivery, if delivered personally against written receipt; (ii) three (3) days after posting by certified mail, postage prepaid, return receipt requested; (iii) upon confirmed receipt, if delivered by e-mail or other means of electronic transmission; or (iv) 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.
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, or operation of law or otherwise) without the prior written approval of AIX. Any assignment in violation of the foregoing will be null and void. 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 web site and for other marketing and promotional purposes, including press releases, relating to the Platform, Services or Additional Services.
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, rules or regulations.
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, Work Orders and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the Parties to the Agreement with respect to the subject matter contained herein, 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 any exhibit or Work Order, the following order of precedence shall govern: (a) first, the Agreement, exclusive of its exhibits and any Work Orders; (b) second, any exhibit to the Agreement (except and unless the exhibit expressly states that it supersedes any of the foregoing, in which case it shall govern and control); and (c) third, 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).