1. Definitions

“Affiliate” means, with respect to any entity, another entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity, where “control” means the possession, direct or indirect, of the power to direct or cause the direction of management and policies of the entity, whether through the ownership of voting securities, by contract, or otherwise.

“Agreement” means these Ts&Cs and any Supplemental Terms, together with each Service Order, and any amendments thereto. All executed Service Orders, in each case incorporating these Ts&Cs and any Supplemental Terms, create separate Agreements.

“AML Laws” means applicable laws, regulations, and orders relating to money laundering and the proceeds of criminal activity.

“Anonymous/Aggregate Data” means data provided, created or generated by, or through, a Client Entity’s use of the Service and that has been anonymized or aggregated in such a fashion that a Third Party user of such anonymized or aggregated data could not discern that a Client Entity is the source of the data.

“Authorized Business Group” means the business unit/division (if so designated on the Service Order) that may access and use the Technology Solution, Provider Data, Third Party Data and/or Third Party Services/Vendor Services pursuant to the terms of this Agreement.

“Authorized Region” means the geographic region set forth in a Service Order.

“Authorized User” means, if applicable, an employee, board member or member of the investment committee of a Client Entity who: (i) may access and use the applicable Provider Service via a unique username; and (ii) is based in the designated Authorized Region.

“Brand” if applicable, means the tradename that Client and, if applicable, Affiliates use in marketing and selling its products and/or services.

“Claim” means a claim, demand, allegation, suit, or proceeding.

“Claim Against Client” means a Third-Party Claim against which Client is indemnified by Provider hereunder.

“Claim Against Provider” means a Third-Party Claim against which Provider is indemnified by Client hereunder.

“Client” means the entity agreeing to the terms of this Agreement.

“Client Data" means information that a Client Entity submits to the Technology Solution and is either: (i) created or otherwise owned by a Client Entity; or (ii) licensed by a Client Entity, or that a Client Entity otherwise has the right to use, from Third Parties, other than the Vendors or Index Data Vendors. “Client Data” does not include Anonymous/Aggregate Data (as defined in the Supplemental Terms).

“Client Data Environment” means a distinct instance of the Technology Solution intended to store Client Data for an individual Client.

“Client Entity(s)” means Client, Affiliates, or Affiliates who operate under a Brand designated as such on a Service Order.

“Client Indemnitees” means Client, Client Entities and their employees, officers, directors, other agents, and authorized users.

“Confidential Information” means all information, technology, data, and other materials disclosed or made available by Disclosing Party, directly or indirectly, to Receiving Party, howsoever disclosed or made available and whether or not marked or otherwise identified as “confidential.” Notwithstanding the foregoing, Confidential Information does not include information, technology, data, or other materials that are: (a) generally available to or known by the public, other than as a result of a breach hereof by Receiving Party; (b) disclosed or made available to Receiving Party on a non-confidential basis from a Third Party, provided that such Third Party, to Receiving Party’s knowledge, is not prohibited from disclosing or making available such information, technology, data, or other materials to Receiving Party; (c) known by or in possession of Receiving Party on a non-confidential basis; or (d) independently developed by or for Receiving Party without use of or reference to Confidential Information.

“Disclosing Party” means Client, Client Entity or Provider, as the context so requires.

“Fees” means the fees for the Services set forth in the Service Order.

“Losses” means damages, losses, liabilities, costs, and expenses (including reasonable attorney fees).

“Manager Supplied Data” means, as applicable to private markets data, a subset of Provider Data that is supplied by managers to Provider or its Affiliates, which may include without limitation, firm strategy, fund names, fund strategies, fund performance, firm key professionals, key terms and fundraising information, that may be available through the Technology Solution and designated as manager supplied.

“Output” means charts, graphs, tables and reports that an Authorized User exports from the Technology Solution or generates outside of the Technology Solution using the Provider Data; provided that Output may not be used in lieu of a subscription to the Service. Output may only include Index Data to the extent necessary in order to serve as a benchmark for Provider Data. All Output shall identify Provider as the source of Provider Data contained therein.

“Portfolio Holdings Data” means, if applicable, a subset of Provider Data that includes the non-public portfolio holdings information, including without limitation, securities identifiers, ticker symbols, securities’ names, number of shares, portfolio weights, country, currency and/or security prices, that may be available through the Technology Solution.

“Pro-Rated Refund” means that portion of pre-paid fees paid by Client to the Provider, pro-rated on a straight-line basis over the period for which such fees are paid and attributable to the period of time occurring after termination.

“Provider” means the entity providing the Services that is a party to the applicable Service Order.

“Provider Data” means any data of Provider provided for use either in conjunction with, or through, the Technology Solution, a data feed or API, or if applicable, within a Third Party platform. “Provider Data” does not include Third Party Data.

“Provider Indemnitees” means Provider, its Affiliates, and its and their respective employees, officers, directors, third-party providers, and other agents.

“Provider Information” means: (i) all information related to the Technology Solution (including without limitation, any processing and transmission information) other than the Client Data; (ii) the Technology Solution; (iii) Provider Data; (iv) Anonymous/Aggregate Data; and (v), as between Provider and the Client Entities, the Index Data, Vendor Data and Vendor Services.

“Receiving Party” means Client, Client Entities or Provider, as the context so requires.

“Representatives” means an entity’s employees, officers, directors, consultants, professional advisers, lenders, and credit rating agencies.

“Restricted Party” means a person or entity designated on a restricted party list maintained by the United States Government (e.g., List of Specially Designated Nationals and Blocked Persons, Foreign Sanctions Evaders List, Sectoral Sanctions Identification List, Entity List, Denied Persons List, Unverified List or Debarred Parties List), the United Nations Security Council, the European Union, the United Kingdom, or any other applicable jurisdiction.

“Service(s)” shall mean the Technology Solution(s), Provider Data, Third Party Data and/or Third Party Services/Vendor Services, or Professional Services provided under an applicable Service Order.

“Service Order” means a service order form executed by Client and Provider pursuant to these Ts&Cs and any Supplemental Terms.

“Supplemental Terms” means any additional terms that are either attached to these Ts&Cs or attached to a Service Order referencing and incorporating these Ts&Cs.

“System Requirements” means those requirements set forth at www.nasdaq.com/solutions/evestment/browser-support. The System Requirements are incorporated into and made part of these Solovis Supplemental Terms.

“Tax” means any sales tax, value added tax, goods and services tax, or any other tax.

“Technology Solution” means the technology solution or product listed in Service Order and provided by any of the Provider to the Client Entities, provided that in no event shall Technology Solution be deemed to mean Provider Data, Third Party Data or Third Party Services/Vendor Services.

“Terms and Conditions” or “Ts&Cs” means these terms and conditions.

“Third Party” means any party other than any of the Provider, Client or the Client Entities, provided that this term as used in section (Indemnity) of these Ts&Cs shall mean any party other than the Provider, Client or any of their Affiliates.

“Third Party Data” means any data obtained by Provider from a Third Party and provided by the Provider for use either in conjunction with, or through, the Technology Solution, a data feed or API, or if applicable, within a Third Party platform, as may be further defined in the Supplemental Terms. This may include: (i) “Index Data” means any and all financial indices, classification codes and corresponding index data elements of a Third Party (an “Index Data Vendor”) which Provider has a right to redistribute to the Client Entities for use in conjunction with the Technology Solution or (ii) “Vendor Data” means one or more databases that a Third Party allows Provider to redistribute for use in connection with the Technology Solution.

“Third Party Services” or “Vendor Services” means services obtained by a Provider from a Third Party and provided by the Provider to Client and/or the Client Entities.

“Withholding Tax” means any tax, charge, or assessment that Client is required by applicable law to deduct or withhold from amounts payable to Provider.

2. Engagement.

Client may subscribe to a Service by entering into a Service Order with Provider. In the event Client enters into a Service Order on behalf of one or more Client Entities, Client represents and warrants that it has the right, power and authority to enter into such Service Order on behalf of such Client Entities. Client agrees to cause all Client Entities (including without limitation, all of the Client Entities’ Authorized Users) to comply with the terms of this Agreement as if they were Client. Client agrees to be responsible to Provider for any and all damages, losses and liabilities caused by the acts or omissions of all Client Entities (including without limitation, all of the Client Entities’ Authorized Users) which, if committed or omitted by Client, would be a breach of the terms of this Agreement or otherwise impose liability on Client. Each Service Order identifies the Service and all other applicable details including, but not limited to Provider, Client, Client Entity, Authorized Business Group, and Fees.

3. Right to Access and Use the Technology Solution, Provider Data, and Index Data; Restrictions on Use of the Technology Solution and Provider Data, and Index Data.

(a)    Right to Access and Use the Technology Solution, Provider Data and Index Data.  Provider grants to the Client Entities a non-exclusive, non-transferable, non-assignable, revocable, non-sublicensable, limited right in the Authorized Region(s), during the Initial Term and any Renewal Term, for their designated Authorized Users to access and use (i) the Technology Solution(s); and (ii) the Provider Data and Index Data, in each case subject to the terms of this Agreement, and solely to support each Authorized User’s normal duties on behalf of the Client Entities, provided such use shall not include commercial time-sharing, rental, outsourcing, service bureau or similar use. The license granted is not a perpetual, source code, or concurrent user license. If an Authorized User supports multiple Client Entities, such Authorized User may only access and use the Technology Solution, the Provider Data and Index Data for the sole support of the Client Entities set forth on the Service Order. Any use of Vendor Data and Third Party Services shall be in accordance with section (Vendor Data and Vendor Services). Unless otherwise stated in the Service Order, Client shall be licensed to use one (1) Client Data Environment.

(b)    Restrictions on Use of the Technology Solution, Provider Data and Index Data.  The Client Entities shall not be granted any rights to the Technology Solution, Provider Data or Index Data except as expressly set forth in this Agreement.  Client acknowledges and agrees that Provider retains all ownership and redistribution rights in and to the Technology Solution and Provider Data and any portion thereof. If Client’s subscription to additional datasets through any applicable Technology Solution terminates or expires, then Client Entities’ access to such terminated or expired datasets through other Technology Solutions shall also cease.

(i)    Without limiting the generality of the foregoing, the Client Entities shall not, directly, indirectly, or assist any Third Party to: (A) allow anyone other than the designated Authorized Users to access and use the Technology Solution, Provider Data or Index Data (except as expressly permitted in the next section with respect to Output); (B) use or permit the use of the Technology Solution, Provider Data and Index Data for any unlawful purpose; (C) make derivative works of, disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Technology Solution; (D) license, sell, resell, lease, redistribute, transfer, assign, commercially exploit, create internet "links" to the Technology Solution or "frame" or "mirror" any part of the Technology Solution, including any content contained in the Technology Solution, on any other server or device, or otherwise make the Technology Solution, or any portion thereof or any rights related to the Technology Solution; (E) license, sell, copy, transfer, distribute, reproduce or otherwise make available any Provider Data, Index Data, or any portion of Provider Data or Index Data to any party except as expressly permitted herein; (F) make derivative works of, reverse engineer, decrypt, decompile, reverse compile, merge into other software, disassemble or create data subsets from any part of the Provider Data or Index Data; (G) use Output in any manner that violates (1) any Third Party rights; (2) any of a Client Entity’s contractual obligations to a Third Party; or (3) any applicable law or regulation; (H) provide any Client Data or other data in connection with the Technology Solution that would result in a violation of applicable law by Client or infringe on the intellectual property rights of any Third Party, Provider or its Vendors. ; or (I) use, or assist a Third Party in using, any portion of the Technology Solution, Provider Data or Index Data in a way that competes with any of Provider's or its Affiliates' products or services, or to create: (1) a separately marketed data product (either alone or with other data); (2) a proprietary financial instrument or to list on its exchange facilities, if any; (3) a financial instrument based on an index; or (4) the return of a financial instrument based on an index. The Client Entities shall not use the Technology Solution to store or process sensitive personal information or personal data (including but not limited to Social Security numbers or other personal identifiers, health information, genetic data, biometric data, passport or other identification information, personal credit card or bank information, background check or criminal history information, or similar information to of any of the foregoing).

(ii)    Authorized Users may distribute Output to: an unlimited number of Client Entity employees, board members and, if applicable, investment committee members of a Client Entity; provided in no event may Output be provided to a firm (or employee of a firm) that competes with Provider or its Affiliates. Output may only be stored in internal systems that are restricted to those parties that are authorized to receive Output as set forth in this section and access-controlled via username and password, and in no event will Output be stored in a third-party system. In no event will any Provider Data (including Output) be distributed to any Affiliate that is not a Client Entity. For avoidance of doubt, the permitted distribution terms set forth in this Agreement only apply to Index Data to the extent Index Data is included in Output in accordance with the definition of Output. All other distribution of Index Data is expressly prohibited. 

(iii)    If the Technology Solution has functionality that allows exporting of Provider Data, the Authorized Users may utilize such functionality to export Provider Data, in compliance with any restrictions on export included in the Technology Solution.

(iv)    If an Authorized User has access to Manager Supplied Data through the Technology Solution, then Client agrees that the Client Entities and their Authorized Users will not use the Manager Supplied Data for marketing, sales or portfolio replication purposes.  In addition to (and without limiting) the restrictions set forth in this Agreement, Client acknowledges and agrees that Manager Supplied Data and Output containing any Manager Supplied Data may only be (A) accessed by or distributed to limited partner investors, fund of fund managers, consultants and/or financial advisors; and (B) used for purposes of a limited partner making investment decisions (or advising a limited partner investor in such capacity).

(c) In addition to the restrictions contained in this Agreement, and for the avoidance of confusion, none of the Client Entities may use, or assist a Third Party in using, any portion of any of the Technology Solutions, Provider Data or Index Data in a way that competes with any of Provider’s or its Affiliates’ products or services. As a condition of access to Provider Data and Index Data, the Client Entities may not use any part of Provider Data or Index Data to create: (i) a separately marketed data product (either alone or with other data); (ii) a proprietary financial instrument or to list on its exchange facilities, if any; (iii) a financial instrument based on an index; or (iv) the return of a financial instrument based on an index. Provider may terminate the Client Entities’ access to any of the applicable Technology Solutions, Provider Data and Index Data immediately and without notice if Provider believes, in good faith, that Client or its Affiliates are in violation of the restrictions in this section. 

4. Fees and Taxes.

4.1 Payment Terms and Fees. Client shall pay the Fees and any expenses (including Third Party Data and/or Third Party Services/Vendor Services fees) set forth or referenced in the Service Order. All Fees due under this Agreement (except those Fees being disputed by Client in good faith) shall be paid in US dollars (unless otherwise stated in an Service Order) in full (without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason) by Client by the later of: (i) the invoice due date as shown on an invoice; or (ii) thirty (30) days of the date of the invoice for such fees. All invoices will be deemed final and binding unless Client provides Provider notice of any good faith dispute within ten (10) days from the invoice date. Provider may charge Client a late fee of 1.5% per month or the highest lawful interest rate, whichever is lower, to all Fees not paid when due. Client further agrees to pay all reasonable and actual attorneys’ fees incurred by Provider in connection with the collection of any past due amount owed to the Provider under this Agreement. Unless otherwise set forth in a Service Order, all Fees for the Initial Term shall be invoiced upon execution of the Service Order. After the initial invoice for each Service Order, Client may be invoiced separately for additional Services ordered by Client under an amendment to a Service Order and for Fees for any Renewal Terms. Unless otherwise detailed in an applicable Service Order or Supplemental Terms, the Fees for any Renewal Terms (as defined in the applicable Supplemental Terms or Service Order) shall be calculated pursuant to Provider’s then-prevailing rates for the applicable Service.

4.2 Purchase Order. If Client requires that a purchase order (or any other of Client’s similar internal purchasing documentation) (“PO”) be issued before making payment under this Agreement, Client must submit to Provider such PO, conforming to the applicable invoice, in time for Client to meet its payment obligations. Notwithstanding the above, in no event shall Provider be bound by any terms and conditions in such PO.

4.3 Taxes

(a)    Fees and expenses set forth or referenced in the Service Order do not include any Tax. Client shall pay all Taxes applicable to the Services, provided that Provider shall pay any personal property tax or income tax imposed on Provider by the relevant tax authority in Provider’s tax jurisdiction to the extent such personal property tax or income tax is applicable to the Services. For clarity, any personal property tax or income tax payable by Provider pursuant to this section (Taxes) does not include any Withholding Tax, which will at all times be the responsibility of Client.
(b)    If Client is based in the United States and is legally entitled to an exemption from any Tax, Client is responsible for providing Provider with a legally sufficient tax exemption certificate, resale certificate, or a copy of the direct pay permit for each applicable taxing jurisdiction. Provider shall apply the tax exemption to invoices generated after the date that Provider receives such documentation.
(c)    If Client is required to deduct or withhold any Withholding Tax from amounts payable to Provider, Client shall promptly notify Provider of such Withholding Tax, and Client shall have liability to pay such Withholding Tax. Client shall increase amounts payable to Provider as necessary so that the net amount actually received by Provider after the deduction or withholding of the Withholding Tax is equal to one hundred percent (100%) of the Fees and expenses set forth or referenced in the Service Order.
(d)    In the event that a taxing authority or other entity asserts that Provider is responsible for the payment of any Taxes, interest, or penalties for which Client is responsible pursuant to this section, Client shall defend, indemnify, and hold harmless Provider, its Affiliates, and each of their successors, from any and all liability for the payment of such Taxes, interest, or penalties, and any expenses and fees (including reasonable attorneys’ fees) incurred by Provider as a result of such assertion. Client shall take all reasonable steps, including the posting of a bond, to remove any lien from Provider property, which arises from such assertion. This section survives the termination of this Agreement and shall be applicable regardless of the time frame in which the requirement of the payment of such Tax or assessment is asserted (e.g., a deficiency assessment by a taxing authority as a result of an audit after the termination of this Agreement).

5. Confidential Information.

5.1 Applicability. If, during the term hereof, Disclosing Party discloses or makes available Confidential Information, directly or indirectly, to Receiving Party in connection with the Agreement, this section (Confidential Information) shall apply.

5.2 Receiving Party Obligations. Receiving Party shall: (a) protect the Confidential Information with at least the same level of care that Receiving Party uses to protect its own similarly-valued proprietary or non-public information, technology, data, or materials, but in no event with less than reasonable care; (b) not disclose the Confidential Information to any person or entity, except as expressly permitted hereby; and (c) not use the Confidential Information for any purpose other than to exercise its rights or perform its obligations under the Agreement or in connection with the parties’ evaluation of a new business relationship.

5.3 Permitted Disclosures. Receiving Party may disclose Confidential Information: (a) as directed by or on behalf of Disclosing Party or as implied by the nature of the applicable Services (e.g., reporting services); (b) to its Affiliates and their respective Representatives on a need-to-know basis, provided that such Representatives are informed of the confidential nature of the Confidential Information disclosed or made available to them and are obligated to comply with terms and conditions covering such Confidential Information that are the same or substantially similar to the provisions of this section (Confidential Information) and enforceable, directly or indirectly, by Receiving Party; and (c) if required by applicable law, regulation, or regulatory or governmental request, provided that, in such event, Receiving Party shall, if permitted by applicable law, regulation, or regulatory or governmental request: (i) provide notice to Disclosing Party so as to provide Disclosing Party with a reasonable opportunity to seek an appropriate protective order; (ii) inform the requestor of the confidential nature of the Confidential Information; and (iii) only disclose that portion of the requested Confidential Information that, in the opinion of Receiving Party's legal counsel, it is legally required to disclose. Any act or omission of a Receiving Party’s Representative with respect to the Confidential Information disclosed or made available to it by Receiving Party that would be a breach of this section (Confidential Information) if such act or omission were that of Receiving Party shall be deemed a breach hereof by Receiving Party.

5.4 Obligation to Return or Destroy. Upon request by Disclosing Party at any time, Receiving Party shall promptly return or destroy the Confidential Information then in its possession or control and provide confirmation to Disclosing Party of any destruction. Notwithstanding the foregoing, Receiving Party may retain, but not use, Confidential Information to the extent that it is: (a) required by applicable law or regulation; (b) necessary to comply with Receiving Party’s bona fide document retention policies that are reasonably designed to comply with applicable law or regulation; or (c) maintained in such entity's automated electronic archiving or data back-up systems from which it is not reasonably practicable to delete such Confidential Information; provided that, in any event, the terms and conditions of this section (Confidential Information) shall continue to apply to such retained Confidential Information for the longer of the period of retention and the applicable survival period set forth herein.

5.5 Survival. This section (Confidential Information) will survive expiration or termination of the Agreement for a period of three (3) years. For Confidential Information that constitutes a trade secret under applicable law, this section (Confidential Information) will survive for the longer of the foregoing applicable survival period and so long as such information remains a trade secret under applicable law.

6. Representations and Warranties

6.1 Mutual. Each party represents and warrants to the other party that: (a) it has the requisite authority to enter into the Agreement and perform its obligations thereunder; (b) (i) neither it nor any of its Affiliates is a Restricted Party; (ii) no Restricted Party owns, individually or in the aggregate, fifty percent (50%) or more of its outstanding equity interests; and (iii) none of its officers or directors is a Restricted Party; (c) it will comply with all AML Laws in the performance of the Agreement;

6.2 Client. Client represents and warrants to Provider that: (a) it will not use the Services for the benefit of a Restricted Party or permit a Restricted Party to be a user of the Services or outputs thereof; and (b) it will not use the Services to violate or otherwise facilitate or aid in the violation of AML Laws or other similar applicable laws and regulations.

6.3 Service Warranty. Client has evaluated the Service(s), its functionality, and specifications, and has independently determined that the Service(s) is suitable for its use. Provider warrants that it will make commercially reasonable efforts to provide the Service as set forth in the applicable Service Order as it was designed to operate, provided that:

(a)    Client, the Client Entities and all of their Authorized Users (if applicable) have not violated any of the terms of this Agreement in a manner that impacts the ability of the Provider to provide the Service(s);

(b)    Client and the Client Entities are not in default of any provision of this Agreement with respect to the Service(s); and

(c)    Client, the Client Entities and all of their Authorized Users (if applicable) have not made or permitted any changes or modifications to be made to the Service, except changes that Provider has permitted in writing.

(d)    THE SOLE AND EXCLUSIVE REMEDY FOR THE PROVIDER’S BREACH OF THE WARRANTY SET FORTH IN SECTION (SERVICE WARRANTY) SHALL BE RE-PERFORMANCE OR RE-DELIVERY (AS THE CASE MAY BE) OF THE SERVICE IN COMPLIANCE WITH THE WARRANTY SET FORTH IN SECTION (SERVICE WARRANTY), PROVIDED THAT IF SUCH SOLE AND EXCLUSIVE REMEDY FAILS IN ITS ESSENTIAL PURPOSE AFTER CLIENT HAS GIVEN PROVIDER A REASONABLE PERIOD OF TIME (NO LESS THAN THIRTY (30) DAYS) TO RE-PERFORM OR RE-DELIVER (AS THE CASE MAY BE) THE SERVICE, CLIENT MAY TERMINATE THE APPLICABLE SERVICE.

7. Additional Disclaimers and Limitations of Liability

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, PROVIDER, VENDORS, INDEX DATA VENDORS, AND THIRD PARTY PROVIDERS OF INFORMATION MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TECHNOLOGY SOLUTION, OUTPUT, PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES, INDEX DATA, OR THIRD PARTY IDENTIFIERS PROVIDED UNDER THIS AGREEMENT. PROVIDER, VENDORS, INDEX DATA VENDORS, AND THIRD PARTY PROVIDERS OF INFORMATION THAT MAY FORM PART OF THE PROVIDER INFORMATION MAKE NO GUARANTEE AS TO THE INTEGRITY OR ACCURACY, COMPLETENESS OR RELIABILITY OF THE TECHNOLOGY SOLUTION, OUTPUT, PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES, INDEX DATA, OR THIRD PARTY IDENTIFIERS OR TO THE QUALITY OF TRANSMISSION OF PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES, INDEX DATA, OR THIRD PARTY IDENTIFIERS OVER ANY METHOD OF DELIVERY. CLIENT ACKNOWLEDGES THAT THE TECHNOLOGY SOLUTION, OUTPUT, PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES, INDEX DATA AND THIRD PARTY IDENTIFIERS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND UNDER NO CIRCUMSTANCES SHOULD THEY BE CONSIDERED AS A DIRECT, OR AN INDIRECT, OFFER OR SOLICITATION TO BUY OR SELL ANY SECURITIES, COMMODITIES, REAL ESTATE, DERIVATIVES, OR OTHER INVESTMENTS. CLIENT ACKNOWLEDGES AND AGREES THAT ANY PROVIDER INFORMATION, VENDOR DATA, OR INDEX DATA REGARDING FINANCIAL PERFORMANCE OR RESULTS SHOULD NOT BE INTERPRETED OR CONSTRUED AS FINANCIAL ADVICE BEING PROVIDED BY PROVIDER, ANY OF ITS AFFILIATES, VENDORS OR INDEX DATA VENDORS AND IS NO INDICATION OF FUTURE PERFORMANCE. NEITHER PROVIDER NOR ANY OF ITS AFFILIATES PROVIDE INVESTMENT, FINANCIAL, TAX, ACCOUNTING, VALUATION, REAL ESTATE, FIDUCIARY, LEGAL, OR OTHER PROFESSIONAL ADVICE AND SUCH IS EXPRESSLY DISCLAIMED. CLIENT UNDERSTANDS THAT PROVIDER IS NOT A REGISTERED INVESTMENT ADVISER, BROKER-DEALER, OR COMMODITY TRADING ADVISOR. THE CLIENT ENTITIES MAKE ANY AND ALL INTERPRETATIONS OF PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES AND INDEX DATA CONTAINED IN THE TECHNOLOGY SOLUTION OR OUTPUT WITHOUT ANY ANALYSIS, OPINION OR ADVICE OF PROVIDER, ITS AFFILIATES, VENDORS AND INDEX DATA VENDORS. TO THE MAXIMUM EXTENT PERMITTED BY LAW AND SUBJECT TO SECTION 10, CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER, ITS AFFILIATES, ITS VENDORS, INDEX DATA VENDORS AND THEIR RESPECTIVE RELATED ENTITIES, DIRECTORS, EMPLOYEES AND AGENTS SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE USE OF, OR ANY RELIANCE ON, ALL OR PART OF THE TECHNOLOGY SOLUTION, OUTPUT, PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES, INDEX DATA OR THIRD PARTY IDENTIFIERS. CLIENT AGREES THAT IT USES THE TECHNOLOGY SOLUTION, OUTPUT, PROVIDER INFORMATION, VENDOR DATA, VENDOR SERVICES, INDEX DATA AND THIRD PARTY IDENTIFIERS AT ITS OWN RISK IN THESE RESPECTS. CLIENT ACKNOWLEDGES AND AGREES THAT NONE OF THE TECHNOLOGY SOLUTION, OUTPUT OR PROVIDER DATA HAVE BEEN PASSED ON AS TO THEIR LEGALITY OR SUITABILITY, AND ARE NOT REGULATED, ISSUED, ENDORSED, SOLD, OR PROMOTED BY ANY VENDOR, INDEX DATA VENDOR OR LICENSOR OF PROVIDER. NO INDEX DATA VENDOR NOR ANY VENDOR REGULATES, ENDORSES OR PROMOTES THE INDEX DATA, VENDOR SERVICES OR VENDOR DATA OF ANOTHER VENDOR OR INDEX DATA VENDOR. CLIENT ACKNOWLEDGES AND AGREES THAT CERTAIN COMPONENTS OF THE TECHNOLOGY SOLUTION (INCLUDING GENERATION OF OUTPUT) USE VARIOUS METHODOLOGIES AND THESE METHODOLOGIES MAY DIFFER FROM METHODOLOGIES USED, OR EXPECTED TO BE USED, BY THE CLIENT ENTITIES, THEIR EMPLOYEES OR COMMONLY OR CUSTOMARILY USED IN THE MARKETPLACE IN GENERATING THE TECHNOLOGY SOLUTION OR INFORMATION SIMILAR TO THAT PROVIDED BY THE TECHNOLOGY SOLUTION. CLIENT ACKNOWLEDGES AND AGREES THAT THE TECHNOLOGY SOLUTION AND OUTPUT ARE NOT INTENDED TO PROVIDE ANY ASSESSMENT REGARDING THE WAY IN WHICH THE CLIENT ENTITIES SHOULD CONDUCT THEIR BUSINESS AND THERE IS NO GUARANTEE, WARRANTY OR REPRESENTATION BY PROVIDER OR ANY OF ITS AFFILIATES THAT THE FACTORS USED, THE SCORES CREATED OR THE CLIENT ENTITIES’ USE THEREOF WILL RESULT IN ANY INCREASE OR CHANGE IN GROWTH OR ASSETS UNDER MANAGEMENT.

8. Indemnification

8.1 Client Obligations. Client shall defend each Provider Indemnitee against any Third-Party Claim arising out of or relating to (a) the Client Data; (b) Client’s or Client Entities’ use of the Services; (c) Client’s breach of the representations and warranties made by Client in this Agreement; or (d) any violations of a Third Party’s intellectual property rights (including without limitation, trade secrets, copyrights, trademarks, patents or other proprietary rights) caused by any information or data provided by Client or any Client Entity to Provider and shall indemnify and hold harmless the Provider Indemnitee(s) against any Losses finally awarded against such Provider Indemnitee(s) as a result of, or for any amounts paid by such Provider Indemnitee(s) under a settlement of, any such Claim Against Provider.

8.2 Provider Obligations. Provider shall defend each Client Indemnitee against any Third-Party Claim made or brought against any Client Indemnitee alleging: (a) the infringement or misappropriation of such Third Party’s intellectual property rights (including without limitation, trade secrets, copyrights, trademarks, patents or other proprietary rights) caused by the Technology Solution as provided by Provider; or (b) the Provider’s breach of the representations set forth in section (Mutual Representations), and shall indemnify and hold harmless such Client Indemnitee(s) against any Losses finally awarded against such Client Indemnitee(s) as a result of, or for amounts paid by such Client Indemnitee(s) under a settlement of, any such Claim Against Client. The foregoing defense and indemnification obligations do not apply to the extent such Claim Against Client arises from or relates to: (i) Client Data; (ii) the combination of all or part of the Services with other products or technology not supplied by Provider; (iii) Client’s or Client Entity’s modification of all or part of the Services; (d) Provider’s compliance with any custom designs, specifications, or instructions provided by or on behalf of Client or Client Entity; (iv) Client’s or Client Entity’s use of the Services other than in accordance with the Agreement; or (v) Client’s or any Client Entity’s breach under this Agreement.

8.3 Conditions. Each party’s obligation to defend and indemnify the other party (and its associated indemnitees) under this section (Indemnification) in respect of a Third-Party Claim is conditioned on the indemnified party: (a) promptly, and in any event, in a timeframe that does not materially prejudice the rights of the indemnifying party, providing the indemnifying party with notice of such Claim; (b) giving the indemnifying party sole control of the defense and settlement of such Claim (provided that the indemnifying party may not settle such Claim unless such settlement includes a full and unconditional release of liability in favor of the indemnified party (and its associated indemnitees), does not impose any obligations on the indemnified party (or any of its associated indemnitees) other than the obligations expressly set forth in the Agreement or otherwise encumber such persons’ or entities’ business or assets, and the indemnifying party pays all monies due in connection with such settlement contemporaneously with its effectiveness); and (c) providing the indemnifying party with all reasonably requested assistance, at the indemnifying party’s expense, in the defense of such Claim.

8.4 Mitigation. If any Claim Against Client is made, or in Provider’s reasonable opinion, appears reasonably likely to be made, Provider may, at Provider’s sole option and cost: (a) implement measures to enable Client to continue to use the Services; (b) modify the Services so as to become non-infringing; or (c) replace affected data, content, or functionality of the Services; provided that, in any event, the Services remain functionally equivalent in all material respects. If none of the foregoing options are available on commercially reasonable terms, Provider shall have the right, upon notice to Client, to cancel the affected Services and provide Client with a prorated refund of prepaid Fees for the cancelled Services relating to the period after cancellation.

8.5 Exclusive Remedy. Indemnification is each party’s sole and exclusive remedy with respect to claims indemnifiable hereunder.

9. Term; Renewals; Termination.

9.1 Term. This Agreement shall be in effect as of the effective date of the first Service Order entered into until the Client Entities’ last subscription to the Service terminates or expires. Each Service Order shall set forth an initial term for the Service(s) provided under that Service Order (“Initial Term”) and each Service shall be subject to the renewal terms as set forth in the applicable Supplemental Terms or Service Order.

Notwithstanding anything to the contrary in the Agreement, as it relates to any Solovis Technology Solution under any Service Order: After the Initial Term indicated, said Technology Solution shall automatically renew for successive Renewal Terms indicated (each a “Renewal Term” and, collectively, together with the “Initial Term”, the “Term”) unless either party cancels the Technology Solution, to be effective at the end of the then current Term, by providing the other party written notice at least sixty (60) days prior to the end of the then current Term of its desire that the Technology Solution not be renewed.

9.2 Termination; Suspension.

(a)    Each party may terminate, or Provider may suspend, the Client Entities’ subscription to a Service or the Agreement as follows:
(i)    by a party giving notice to the other party if such party (or in the case of Client, any Client Entity) has breached a provision of this Agreement and has failed to cure such breach within thirty (30) days of receiving notice of such breach (provided that this shall not apply to non-payment); provided if the breach is related to a specific Service, the termination and/or suspension right shall be limited to the applicable Service;

(ii)    by a party if the other party becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, if such petition or proceeding is not dismissed within sixty (60) days of filing; or

(iii)    by Provider if Client has failed to pay any undisputed fees due under a Service Order with respect to such Service and has failed to cure such non-payment within ten (10) days after Provider gives Client notice of such non-payment.

(b)    Provider may immediately suspend or terminate the Client Entities’ subscriptions to all Services as follows:
(i)    if Client or any Client Entity violates the proprietary rights of any of Provider or any of their Third Party suppliers or vendors;

(ii)    to the extent that performance would cause it to violate applicable sanctions or export
control laws; or

(iii)    if Provider phases out or discontinues offering a particular Service.

(c)    In addition to the other remedies set forth in this Agreement, if the fees applicable to any Third Party Data or Third Party Service/Vendor Service provided by, or through, Provider are not paid when due, then Provider may immediately suspend the provision of such Third Party Data or Third Party Service/Vendor Service.

9.3 Effect of Termination. Upon termination or expiration of the Agreement, Provider’s obligation to provide the Services and Client’s right to access and use the Services will immediately terminate. If all Services set forth on a Service Order are terminated or cancelled pursuant to the terms of the Agreement, such Service Order will be deemed terminated. In the event Client terminates a Service pursuant to section (Termination; Suspension) of these T&Cs, Provider may provide a Pro-Rated Refund to Client, PROVIDED THAT, EXCEPT WITH RESPECT TO PROVIDER’S: (aa) INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTION (INDEMNIFICATION) OF THESE TS&CS; OR (bb) GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE PRO-RATED REFUND PROVIDED AND CLIENT’S TERMINATION OF THE AGREEMENT SHALL BE CLIENT’S SOLE AND EXCLUSIVE REMEDIES FOR PROVIDER’S BREACH OF THIS AGREEMENT THAT GIVES RISE TO SUCH TERMINATION RIGHT, AND SUCH REMEDIES ARE IN LIEU OF, AND NOT IN ADDITION TO, ANY OTHER REMEDIES. Except as otherwise detailed in the Agreement, termination itself shall not give rise to any right to receive a refund.

9.4 Handling of Client Data in the Event of Termination. Client acknowledges and agrees that following termination of this Agreement, Client shall return all Confidential Information (except that it may retain a non-production copy solely for archival purposes or as otherwise provided in this Agreement) to Provider and Provider may immediately deactivate Client’s access to the Technology Solution. Furthermore, unless otherwise agreed-upon by the parties in writing, Provider may at any time remove or overwrite all applicable Client Data following the effective date of termination of this Agreement. Prior to the termination of this Agreement, if Client is not in breach of any of the terms this Agreement, Provider may upon Client’s written request, transfer all Client Data to other media for delivery to Client. Client agrees that Provider shall not be liable to Client or to any Third Party for any termination of Client access to the Technology Solution or deletion or transfer of Client Data, provided that Provider is in compliance with the terms of this Section. Client understands that Third Party Vendor agreements and policies may not permit the retention of Vendor Information by Client after the termination of this Agreement, unless Client reaches a separate agreement with the applicable Third Party. Notwithstanding the foregoing, nothing shall preclude Provider from maintaining one archival copy of Client Data if required by law or commercially reasonable record retention policies, provided that it in such a case that is maintained confidentially.

9.5 Survival. The rights and obligations of the parties herein that, by their nature, are intended to survive termination or expiration hereof, will survive any such termination or expiration. Notwithstanding the foregoing provisions in this section, unless this Agreement replaces or supersedes a prior written agreement or has been replaced or superseded by a subsequent written agreement between the parties, the Client Entities’ use of the Service either before the Initial Term of an applicable Service Order or after termination or expiration of such Service Order shall be governed by the terms of this Agreement.

10. LIMITATION OF LIABILITY; INDEPENDENT OBLIGATIONS.

10.1 Damages Cap. EXCEPT AS EXCLUDED IN THIS SECTION (LIMITATIONS OF LIABILITY), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PROVIDER’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT AND THE SERVICE IT PROVIDES WILL NOT EXCEED THE AMOUNT OF FEES PAID TO PROVIDER FOR THE SPECIFIC SERVICE GIVING RISE TO THE LIABILITY DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, LESS ANY REFUNDS, CREDITS OR OTHER MONETARY REMEDY RECEIVED BY CLIENT DURING THE SAME PERIOD. THERE SHALL BE ONLY ONE AGGREGATE LIABILITY CAP UNDER THIS AGREEMENT EVEN IF THERE ARE MULTIPLE CLAIMS; EACH CLAIM SHALL REDUCE THE AMOUNT AVAILABLE IN THE AGGREGATE LIABILITY CAP. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

10.2 Consequential Damages Waiver. EXCEPT AS EXCLUDED IN THIS SECTION (LIMITATIONS OF LIABILITY), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL PROVIDER BE LIABLE FOR ANY (A) CONSEQUENTIAL, INDIRECT, EXEMPLARY, ENHANCED, PUNITIVE, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST DATA, LOST PROFITS OR OPPORTUNITY COSTS, LOST REVENUE, FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, LOSS OF GOODWILL, COST OF REPLACEMENT GOODS, LOSS OF TECHNOLOGY, RIGHTS OR SERVICES, LOSS OF INFORMATION, OR INTERRUPTION OR LOSS OF USE OF SERVICE OR EQUIPMENT EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR THE DAMAGES WERE OTHERWISE FORESEEABLE, ARISING UNDER ANY THEORY OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, ARISING FROM OR RELATING TO THIS AGREEMENT, THE SERVICES, THE CLIENT INFORMATION OR ANY OF THE FOREGOING, (B) DAMAGES (REGARDLESS OF THEIR NATURE) FOR ANY DELAY OR FAILURE OF PROVIDER TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT DUE TO ANY CAUSE BEYOND ITS REASONABLE CONTROL, (C) ANY PENALTIES, INTEREST, OR TAXES ASSESSED BY ANY GOVERNMENTAL OR REGULATORY AUTHORITY, OR (D) OR FOR CLAIMS MADE A SUBJECT OF A LEGAL PROCEEDING AGAINST PROVIDER MORE THAN TWO YEARS AFTER ANY SUCH CAUSE OF ACTION FIRST AROSE.

10.3 Exclusions. THE LIMITATIONS IN THIS SECTION (LIMITATIONS OF LIABILITY) DO NOT APPLY TO: (A) PROVIDER’S INDEMNIFICATION OBLIGATIONS UNDER THE AGREEMENT; (B) DAMAGES CAUSED BY A PROVIDER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (C) CLIENT'S OBLIGATIONS TO PAY FEES, TAXES, OR OTHER AMOUNTS DUE UNDER THE AGREEMENT; OR (D) ANY LIABILITY THAT MAY NOT BE CONTRACTUALLY LIMITED UNDER APPLICABLE LAW OR REGULATION.

10.4 CLIENT ACKNOWLEDGES THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT PROVIDER WOULD NOT ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON ITS LIABILITY. PROVIDER AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY OBLIGATIONS UNDER ANY SERVICE ORDER OR FOR ANY DAMAGES RELATED TO ANY SERVICE ORDER UNLESS THAT PROVIDER HAS EXECUTED THAT SERVICE ORDER. CLIENT AGREES NOT TO BRING ANY CLAIM AGAINST PROVIDER OR ITS AFFILIATES RELATED TO OR ARISING OUT OF ANY SERVICE ORDER THAT WAS NOT EXECUTED BY PROVIDER.

11. Beta Solutions.

11.1 Beta Solutions. From time to time, Provider may (but has no obligation to) provide the Client Entities with the right to access and use solutions or services that are not commercially available (the “Beta Solutions”) for the sole purpose of the Client Entities’ testing the Beta Solution and providing feedback on the Beta Solution to Provider. The Beta Solution shall be subject to the terms of this Agreement as if the Beta Solution were a Service, provided however the terms and conditions of this Section will apply to any Client Entity access to or use of a Beta Solution.

11.2 Feedback. During the period that the Beta Solution is made available to the Client Entities and for a reasonable period of time thereafter, the Client Entities will provide to Provider suggestions, comments or ideas and report issues or problems related to the Client Entities’ use of the Beta Solution (collectively, "Feedback") on a timely basis or as otherwise agreed by the parties. The Client Entities will not disclose Feedback to any Third Party and assign to Provider all right, title and interest in and to any Feedback, without any right to compensation or other obligation from Provider. Nothing in this Agreement prohibits or limits a Provider Entity from using any skills, knowledge or information acquired by Provider in the course of providing the Beta Solution. Provider may terminate the Beta Solution at any time, in its sole discretion.

11.3 Beta Solution Disclaimer. Client acknowledges and agrees that the Beta Solution is still in a development and testing phase, and it may contain errors and/or limitations. Client acknowledges and agrees that the Beta Solution and all data provided in connection with the Beta Solution is provided “AS IS” and “AS AVAILABLE.” Provider expressly disclaims any and all representations or warranties of any kind with respect to the Beta Solution and the data provided in connection with the Beta Solution. To the maximum extent permitted by law, Provider will have no liability whatsoever to the Client Entities related to the Beta Solution and/or the Provider Data, Third Party Data or Third Party Services/Vendor Services provided in connection with the Beta Solution. Without limiting the foregoing, Provider's total cumulative liability related to the Beta Solution and/or data provided in connection with the Beta Solution will not exceed one hundred U.S. dollars ($100.00). Client acknowledges that Provider has agreed to provide the Beta Solution for no cash consideration and has made the Beta Solution available in reliance upon the disclaimers and limitations on liability in this section (Beta Solution Disclaimer).

12. General.

12.1 Interpretation. For purposes hereof: (a) the words “include”, “includes”, and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to these Ts&Cs as a whole or the Agreement as a whole, as the context so requires; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) all amounts are in United States dollars, unless otherwise expressly stated. Unless the context otherwise requires, references hereunder to: (w) sections, exhibits, schedules, addenda, attachments, and appendices mean the sections of, and exhibits, schedules, addenda, attachments, and appendices attached hereto; (x) an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, or modified from time to time to the extent permitted by the provisions thereof; (y) a law or regulation means such law or regulation as amended from time to time and includes any successor legislation thereto and any rules or regulations promulgated thereunder; and (z) any URL or website includes any accessible successor URL or website. The parties intend for the terms and conditions hereof to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, addenda, attachments, and appendices referred to herein are an integral part of the Agreement to the same extent as if they were set forth verbatim herein. Section headings are included for convenience only and are not to be used to construe or interpret the terms and conditions hereof. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act do not apply hereto.

12.2 Force Majeure. Neither party shall be liable to the other party, nor be deemed in breach of any provision hereof, for any failure or delay in performing its obligations hereunder when and to the extent such failure or delay is caused by or results from circumstances beyond such party’s reasonable control. If a party’s failure or delay continues for thirty (30) days or more, the other party may cancel the affected Services upon notice with immediate effect. If Client cancels all or part of the Services pursuant to this section (Force Majeure), Client’s exclusive remedy and Provider’s sole liability will be to provide Client a prorated refund of prepaid Fees for such cancelled Services relating to the period after cancellation. Notwithstanding the foregoing, this section (Force Majeure) shall not apply to either party’s indemnification obligations hereunder or Client’s obligation to pay Fees, Taxes, or other amounts due under the Agreement.

12.3 Dispute Resolution.

(a)    The terms and conditions hereof will be governed and enforced by and construed in accordance with the applicable Governing Law specified in the table below, excluding any conflict of laws rules. Any dispute arising hereunder or relating hereto will be submitted to the applicable Association specified in the table below and will be subject to final binding arbitration in accordance with the applicable Rules specified in the table below. The arbitral tribunal will be composed of a sole arbitrator. The arbitrator will be selected in accordance with the applicable Rules and the arbitration will be conducted in English in the applicable Seat specified in the table below. The arbitrator may not award punitive damages and each party hereby waives the right to seek or recover punitive damages with respect to any dispute resolved by arbitration. The existence and content of the arbitral proceedings and any rulings or awards shall be kept confidential by the parties and the arbitrator except to the extent that disclosure may be required of a party to fulfill a legal duty, protect or pursue a legal right, or enforce or challenge an award in bona fide legal proceedings before a state court or other judicial authority. The arbitration award shall be final and binding on the parties, and the parties undertake to carry out any award without delay. Judgment on the award may be entered in any court of competent jurisdiction.

Provider	Association	Rules	Seat	Governing Law
Solovis, Inc.	American Arbitration Association	Commercial Arbitration Rules and Regulations of the American Arbitration Association	New York, NY	State of New York

 

(b)    Notwithstanding anything to the contrary herein, either party may bring an action for equitable relief in any court of competent jurisdiction in the event of a breach or anticipated breach of the provisions hereof governing the parties’ rights and obligations with respect to intellectual property or Confidential Information or any other provision hereof that would be reasonably likely to cause such party immediate harm or for which money damages would be inadequate.

(c)    EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY DISPUTE ARISING HEREUNDER OR RELATING HERETO

12.4 Waiver and Severability. Except as otherwise expressly provided herein, any waiver or failure of a party in insisting upon the performance of any provision hereof will not be construed as a waiver or relinquishment of such party’s rights to future performance of such provision and the other party’s obligation with respect to such future performance will continue in full force and effect. To be enforceable, a waiver must be made in writing and signed by the party to be bound. If any provision hereof that is not fundamental is found to be illegal or unenforceable, such finding will not affect the validity and enforceability of the remainder hereof.

12.5 Use of Name. During the Term of this Service Order, Client consents to Provider’s and its Affiliates’ use of Client Entities’ firm names and logos for reasonable and customary purposes, including for example, a public announcement that Client has licensed Provider’s Technology Solution.

12.6 Relationship of the Parties. The relationship of the parties is that of independent contractors. Nothing herein creates a partnership, joint venture, employment, agency, or fiduciary relationship between the parties, and neither party shall have authority to, nor shall, enter into any engagement or otherwise bind or oblige the other party.

12.7 Notices. All notices, requests, consents, claims, demands, and waivers hereunder must be in writing and, except as otherwise provided herein, addressed to Provider at 5030 Riverside Drive, Ste. 350, Irving, TX 75039 and to Client at the address specified on the most recently executed Service Order, or such other address as a party may notify to the other party in accordance with this section (Notice). A notice sent in accordance with the foregoing will be deemed to have been duly given: (a) upon actual receipt (or date of first refusal); (b) on the business day sent by email (provided that the email address is valid) if sent during normal business hours (based on the recipient’s location), otherwise on the next business day; (c) three (3) days after being sent by certified mail, postage prepaid and return receipt requested; or (d) the next business day (based on the recipient’s location) after being sent by internationally-recognized overnight courier, postage prepaid. The party sending a notice shall identify therein the Agreement or other subject matter to which the notice pertains.

12.8 Entire Agreement. The terms and conditions hereof, together with any other document incorporated by reference and all exhibits, schedules, and addenda hereto, constitutes the entire agreement of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.

12.9 Amendment. Provider may revise these Ts&Cs and/or any Supplemental Terms at any time. In the event of any conflict between these Ts&Cs, any Supplemental Terms or a Service Order, the following order of precedence shall be followed with the terms of the lower numbered document controlling over the terms of the higher numbered document: (1) the applicable Service Order; (2) the applicable Supplemental Terms; and (3) these Ts&Cs.

12.10 Assignment; Subcontracting. Neither party may assign or otherwise transfer (including by operation of law) any of its rights or obligations hereunder to a Third Party without the prior consent of the other party, such consent not to be unreasonably withheld, conditioned, or delayed. Notwithstanding the foregoing, Provider may: (i) assign a Service Order, in whole or in part, without Client’s prior consent if such assignment is to: (A) an entity controlling, controlled by or under common control with Provider; (B) the successor in interest in the event of a merger, share exchange or reorganization; (C) a purchaser of all or substantially all of that or any of Provider’s assets; or (D) as a collateral assignment to the lender of Provideror its Affiliates; and (ii) subcontract its obligations under this Agreement, provided that Provider or its successor or assign (as permitted by the terms of this subsection) remains ultimately responsible to Client for performance of such obligations under this Agreement. The Agreement is binding on and inures to the benefit of the parties and their respective permitted successors and permitted assigns. Any assignment or other transfer in breach hereof will be void ab initio.

12.11 Merger, Acquisition or Change of Control of Client. If the nature of the Client, Client Entity or Authorized Business Group changes, including if the Client or Client Entity merges with a Third Party, Client shall provide Provider with at least ninety (90) days prior written notice and Provider shall provide Client thirty (30) days advance written notice (email to suffice) of any applicable Fee increase. In the event of a Fee increase, Client shall have the option of paying such additional Fees or restricting access and usage to the Service to the original use.

12.12 Right to Audit. Provider may request information from Client pertaining to the Client Entities’ use of the Technology Solution, Provider Data and Index Data and distribution of Output, and Client shall reasonably cooperate with such request.

12.13 No Third-Party Beneficiaries. Except as expressly provided herein, there are no third-party beneficiaries hereto.

12.14 Counterparts; Electronic Signatures. These Ts&Cs, the Service Order, and each other agreement comprising a part of the Agreement may be executed in counterparts. An electronic copy hereof will be considered and treated like an original and an electronic or digital signature will be as valid as a handwritten signature.

12.15 Non-Solicitation. During the Term of the Agreement and for a period of six (6) months thereafter, Client shall not solicit for employment or hire technology-focused employees of Provider without obtaining Provider’s prior written consent; provided, however, that this restriction shall not prohibit Client from conducting general solicitations in connection with its hiring.

12.16 Export Control. Client understands that the Services are subject to export control laws and regulations. Client may not download or otherwise export, re-export, or transfer the Services or any underlying information or technology except in full compliance with all applicable laws and regulations, including United States export control laws and regulations. None of the Services or any underlying information or technology may be downloaded or otherwise exported or re-exported to (or to a national or resident of) any country to which United States comprehensive territorial sanctions apply (i.e., Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk regions of Ukraine).

12.17 Ethics and Compliance. Solovis, Inc. maintains a comprehensive ethics and compliance program aligned with accepted industry practices and regulatory requirements, which is reflected in its Code of Ethics and applies to all directors, officers, employees, and others working on behalf of Solovis, Inc. and its wholly owned subsidiaries, including Provider. As of the Effective Date, Solovis’ Code of Ethics is available at the following hyperlink: http://ir.nasdaq.com/static-files/aca3c338-f7ad-4f31-ae69-ef3a8d36fa6d.

12.18 Platform / Infrastructure as a Service. Client acknowledges Provider may utilize one or more Third Parties to host and maintain Provider and Client Data Environments in a Platform as a Service (“PaaS”) arrangement. Unless otherwise stated in the Service Order, Client shall be licensed to standard hosting. If Client requires or requests any infrastructure or protocol in excess of the standard environment offered by Provider to its clients, Client shall pay Provider additional incremental hosting fees as applicable.

12.19 Modification to the Technology Solution. Provider reserves the right at any time and from time to time to modify, temporarily or permanently, the Technology Solution (or any part thereof), provided such modification does not materially and adversely diminish the functionality of the Technology Solution as described herein. Notwithstanding the foregoing, except for routinely scheduled down time, or as otherwise provided in this Agreement, Provider shall use commercially reasonable efforts to notify Client prior to any such material modification.

12.20 Maintenance and Technology Solution Availability. Provider will use commercially reasonable efforts to keep the Technology Solution available for Client’s continuous access. However, in order to perform maintenance, including infrastructure and application upgrades, Provider reserves the right to conduct maintenance that may render the Technology Solution unavailable between 12am and 5am Eastern Time Monday through Friday or at any times on weekends. Major scheduled upgrades may also be commenced after 9pm Eastern Time on Fridays. Provider may conduct maintenance at other times but will make commercially reasonable efforts to minimize interruptions to the Technology Solution. Provider will make commercially reasonable efforts to notify Client prior to conducting maintenance outside of the aforementioned maintenance windows. Notice of maintenance may be provided in writing or on a primary web page of the Technology Solution. If the Technology Solution becomes unavailable to Client, Provider shall make commercially reasonable efforts to restore access as soon as practicable.

12.21 Safeguards. Provider will use commercially reasonable administrative, technical, and physical safeguards to preserve the security, integrity, and confidentiality of, and to prevent non-permitted or violating use or disclosure of, and to protect against unauthorized access to or accidental or unlawful destruction, loss, or alteration of, Client Data received from or on behalf of Client in connection with the Technology Solution. Such safeguards shall meet applicable legal standards.

12.22 Security Incidents. Provider will report to Client any privacy or security incident related to Client Data of which it becomes aware and for which notification is required by law. A privacy or security incident is an unauthorized access, use, disclosure, modification, destruction of information or interference, or any other breach of privacy or security, in connection with Client Data. Provider will further inform Client of the steps it has taken to mitigate the impact of the incident and shall cooperate as reasonably requested by Client in order to further investigate and resolve the incident.

(g) Backups. Upon Client’s written request, Provider will enable Client to download or receive backup copies of the SQL database(s) containing current Client Data from the Solovis Portfolio Analytics platform. Client may elect to download database backups on a periodic basis for archival purposes to hard disk, CD-ROM, tape, or other offline media, and Client is solely responsible for creating and maintaining copies of database backups. If Client has a business need for an alternative backup protocol, the parties shall discuss and agree on any such plan and any associated incremental fees. Provider will not be liable for any damages resulting from data loss due to failure of any backup service or protocol. Backup protocols described in this Agreement are not intended to replace the ability for Client to maintain regular data backups or redundant data archives.

[END OF TERMS AND CONDITIONS]

These Platform Supplemental Terms are hereby incorporated into and made part of the Terms and Conditions. All capitalized terms not otherwise defined in these Platform Supplemental Terms have the meanings given to those terms in the Ts&Cs or these Platform Supplemental Terms, as the case may be.

1. Right to Access and Use the Technology Solution, Provider Data and Index Data; Restrictions on Use of the Technology Solution, Provider Data and Index Data.

(a)    Client understands that its use of the Technology Solution may be subject to additional terms from Third Parties, including but not limited to those found at https://www.solovis.com/wp-content/uploads/2021/10/Solovis-License-Agreement-Third-Party-Terms_10.21.pdf as may be updated from time to time. In the event that Provider incurs any increased cost from one or more Third Parties during the Term of this Agreement and that related to Client’s use of the Technology Solution, Provider reserves the right to pass these costs onto Client.

(b)    Right to Access and Use the Technology Solution, Provider Data and Index Data. Provider grants to the Client Entities a non-exclusive, non-transferable, non-assignable, non-sublicensable, limited right in the territory detailed in the Service Order, during the Initial Term and any Renewal Term, for their designated Authorized Users to access and use (i) the Technology Solution(s); and (ii) the Provider Data and Index Data, in each case subject to the terms of this Agreement, and solely to support each Authorized User’s normal duties on behalf of the Client Entities. If an Authorized User supports multiple Client Entities, such Authorized User may only access and use the Technology Solution(s), the Provider Data and Index Data for the sole support of the Client Entities set forth on the Service Order. Any use of Vendor Data and Third Party Services shall be in accordance with section (Vendor Data and Vendor Services).

(c)    Restrictions on Use of the Technology Solution, Provider Data and Index Data. The Client Entities shall not be granted any rights to the Technology Solution, Provider Data or Index Data except as expressly set forth in this Agreement. Client acknowledges and agrees that Provider retains all ownership and redistribution rights in and to the Technology Solution and Provider Data and any portion thereof. If Client’s subscription to additional datasets through any applicable Technology Solution terminates or expires, then Client Entities’ access to such terminated or expired datasets through other Technology Solutions shall also cease.

(i)    Without limiting the generality of the forgoing, the Client Entities shall not, directly or indirectly: (A) allow anyone other than the designated Authorized Users to access and use the Technology Solution, Provider Data or Index Data (except as expressly permitted in the next section with respect to Output); (B) use or permit the use of the Technology Solution, Provider Data and Index Data for any unlawful purpose; (C) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Technology Solution; (D) license, sell, redistribute or otherwise transfer or assign the Technology Solution, any portion thereof or any rights related to the Technology Solution; (E) license, sell, copy, transfer, distribute, reproduce or otherwise make available any Provider Data, Index Data, or any portion of Provider Data or Index Data to any party except as expressly permitted herein; (F) reverse engineer, decrypt, decompile, disassemble or create data subsets from any part of the Provider Data or Index Data; and (G) use Output in any manner that violates (1) any Third Party rights; (2) any of a Client Entity’s contractual obligations to a Third Party; or (3) any applicable law or regulation.

(ii)    Authorized Users may distribute Output to: (A) an unlimited number of employees, board members and, if applicable, investment committee members of a Client Entity; and (B) to an unlimited number of customers or prospective customers of a Client Entity; provided in no event may Output be provided to a firm (or employee of a firm) that competes with Provider or its Affiliates. Output may only be stored in internal systems that are restricted to those parties that are authorized to receive Output as set forth in this section and access-controlled via username and password, and in no event will Output be stored in a third party system. In no event will any Provider Data (including Output) be distributed to any Affiliate that is not a Client Entity. For avoidance of doubt, the permitted distribution terms set forth in this Agreement only apply to Index Data to the extent Index Data is included in Output in accordance with the definition of Output. All other distribution of Index Data is expressly prohibited.

(iii)    If the Technology Solution has functionality that allows exporting of Provider Data, the Authorized Users may utilize such functionality to export Provider Data, in compliance with any restrictions on export included in the Technology Solution, into a standard, commercially-available Third Party sponsored spreadsheet program, provided that the exported Data (or any portion thereof): (A) may not be regularly or systematically accessed or retrieved; (B) may not have independent commercial value and/or could be used by any party in lieu of a subscription to the Technology Solution or Provider Data; and (C) is deemed Output.
(iv)    If an Authorized User has access to Portfolio Holdings Data through the Technology Solution, then Client agrees that the Client Entities and their Authorized Users will not use the Portfolio Holdings Data for portfolio replication and/or trading purposes. In addition to the restrictions set forth in this Agreement, Client acknowledges and agrees that the Client Entities and their Authorized Users will not distribute Portfolio Holdings Data or any Output related thereto to any person or entity involved in asset management or other investment-making decisions. Client represents and warrants that all Client Entities, Authorized Users and recipients of Output with access to Portfolio Holdings Data will only use Portfolio Holdings Data and any Output related thereto on behalf of a plan sponsor or in a consultant or financial advisory capacity.

(v)    If an Authorized User has access to Manager Supplied Data through the Technology Solution, then Client agrees that the Client Entities and their Authorized Users will not use the Manager Supplied Data for marketing, sales or portfolio replication purposes. In addition to (and without limiting) the restrictions set forth in this Agreement, Client acknowledges and agrees that Manager Supplied Data and Output containing any Manager Supplied Data may only be (A) accessed by or distributed to limited partner investors, fund of fund managers, consultants and/or financial advisors; and (B) used for purposes of a limited partner making investment decisions (or advising a limited partner investor in such capacity).

(vi)    The Provider Data, Index Data and Vendor Data are intended and available solely for accredited investors (as defined in Securities and Exchange Commission Rule 501(a), promulgated under the Securities Act of 1933, as amended) (“Accredited Investor”). Client represents and warrants to Provider that each Client Entity is an Accredited Investor and Client agrees to immediately notify Provider if any Client Entity’s status as an Accredited Investor changes in any respect. If Client orders the Hedge Fund Data or another restricted dataset from Provider, then: (A) Client must satisfactorily complete a questionnaire certifying how such Client Entity is an Accredited Investor; and (B) in addition to the foregoing restrictions, the Client Entities may only allow their Accredited Investor clients to receive recommendations based on, or review Output containing or based on, Provider Data from the Hedge Fund Data and/or other restricted dataset.

2. Right to Use Client Data. Client hereby grants Provider the right to use, copy, modify, manipulate and create derivative works of Client Data as necessary in order to deliver the Technology Solution. Client warrants that Client Data will not contain: (a) any confidential, proprietary, trade secret, or other information of a Third Party for which a Client Entity does not have the right to provide to Provider; or (b) any virus, worm, Trojan horse or other malicious code. The Client Entities shall have the sole responsibility for the integrity, accuracy, completeness, reliability, quality and legality of Client Data.

3. Client Acknowledgements.

(a)    Client acknowledges that Provider may use technical means to monitor the use of the Technology Solution for any of its business purposes, including without limitation, to ensure compliance with this Agreement, and Client consents to such monitoring. Provider may update the System Requirements from time to time for all similarly situated clients and the Client Entities should periodically check the System Requirements.

(b)    Client acknowledges that certain Provider Data and Index Data (which may include Index Data provided by a Provider Affiliate) are licensed from third parties for Provider’s redistribution through the Technology Solution. If, for any reason and at any time, Provider does not receive this licensed data or possess the necessary redistribution rights, then Provider will immediately discontinue the distribution of such certain Provider Data and Index Data that were predicated on Provider’s possession of such rights.

(c)    Certain components of the Technology Solution may allow a Client Entity to conduct comparative analyses against certain products contained in Provider Data or against certain benchmarks supplied by certain Third Party providers (each a “Benchmark Provider”), provided that such Client Entity has an existing agreement with that Benchmark Provider. Client hereby acknowledges and agrees that the Client Entities will comply with all terms and conditions set forth in each agreement they have with each Benchmark Provider and should any agreement with any Benchmark Provider terminate or expire for any reason, the applicable Client Entity’s use of such benchmark within the Technology Solution shall also terminate. Client shall immediately notify Provider of any termination or expiration of such agreement with a Benchmark Provider.

(d)    Client is responsible for all use of the Client Entities’ account and maintaining the confidentiality of all usernames, passwords, account numbers and related information. Client hereby agrees that it will not permit any internal or external sharing of usernames, passwords, account numbers and related information, provided that if an Authorized User leaves the employ of the Client Entities or transfers to an unrelated position in the Client Entities’ employ, then the Client Entities may designate, through Provider, a replacement Authorized User without charge. When selecting usernames, the Client Entities shall select, for each Authorized User, a unique username that is not obscene, defamatory, harassing, offensive or malicious. Provider reserves the right to inspect all usernames and reassign usernames that it feels, in its sole discretion, to be either obscene, defamatory, harassing or malicious.

(e)    Client acknowledges that Provider may create and use Anonymous/Aggregate Data in any way which is consistent with Provider’s or its partners’ business operations and, without limiting the generality of the foregoing, it may transfer, distribute, assign, copy, display, publicly perform, create derivative works from the Anonymous/Aggregate Data, and grant licenses or sublicenses, including through multiple tiers, to do any of the foregoing. Client receives no proprietary rights whatsoever in or to the Anonymous/Aggregate Data. The provisions of this section, including the right to distribute the Anonymous/Aggregate Data and to conduct further analysis on, and prepare reports incorporating or based on, such Anonymous/Aggregate Data shall continue in perpetuity and shall survive any termination of the Agreement. Provider shall not be required to delete or otherwise purge any Anonymous/Aggregate Data following the termination of the Agreement. The provisions of this Anonymous/Aggregate Data Section shall bind any successor in title to the ownership of the Client Data.

4. Vendor Data and Vendor Services. If Client orders any Vendor Data or Vendor Services for use within the Technology Solution, then: (a) Client may be required to execute a separate access or use agreement (the “Vendor Terms”), which will be provided by Provider; (b) the Vendor Terms (if any), along with the terms of this Agreement, shall establish the terms and conditions under which a Client Entity is authorized to access and use the Vendor Data or Vendor Services (as the case may be), provided that in the case of conflict, the Vendor Terms shall control but only with respect to the applicable Vendor Data or Vendor Services; and (c) Client may be required to pay an additional fee for access or use of the Vendor Data or Vendor Services. (d) Third Parties may impose additional restrictions on usage of their information, materials, data, products, or services and may change Vendor Terms from time to time. Provider will use commercially reasonable efforts to disseminate applicable Vendor information and changes to Client on a timely basis. Third Parties may have the right to require that Provider restrict, suspend, or terminate Client’s access to certain Vendor Data and/or Vendor Services. If Provider takes any such action, it will (i) use commercially reasonable efforts to provide Client with prior notice, and (ii) not be liable for any resulting damages Client may suffer as a result of a Third Party’s instructions. Provider may provide Third Parties with Client’s identity and details of Client’s usage of, and any suspected breach of this Agreement relating to, that Vendor Data and/or Vendor Services.

5. Third Party Platform. Provider Data provided through the Technology Solution may also be available to a Client Entity’s Authorized Users through a Provider-approved Third Party platform so long as the Client Entity subscribes to such platform on behalf of such Authorized Users. Approval of a Third Party platform is at Provider’s sole discretion and may be subject to additional fees. Except as otherwise expressly agreed in the writing by the parties, all access to or use of Provider Data within such Provider-approved Third Party platform shall be governed by the terms and conditions set forth in this Agreement, including without limitation all license grants, restrictions on use, disclaimers of warranties and limitations on liability contained in this Agreement. In addition to any disclaimers of warranty, Client acknowledges and agrees that Provider has no control over any Third Party platform and Provider makes no guarantee, representation or warranty as to any Third Party platform or a Client Entity’s ability to access or use all or any part of Provider Data through the Third Party platform. An Authorized User’s access to Provider Data through the Third Party platform shall terminate upon the earlier of: (i) termination or expiration of the Authorized User’s subscription to the Technology Solution; (ii) termination or expiration of the Authorized User’s access to the Third Party platform; (iii) upon the termination or expiration of the relevant agreement between Provider or its Affiliates and such Third Party; or (iv) at Provider’s option. Client assumes responsibility for any of its use, and shall remain liable for any unauthorized use by its Authorized Users, of Provider Data on a Third Party platform.

6. Proprietary Rights.

(a)    The Client Entities shall retain all right, title and interest (including without limitation, copyright and other proprietary rights) in and to Client Data. Client Data shall be deemed to be the Client Entities’ Confidential Information.

(b)    As between Provider and each Client Entity: (i) the Provider Information, Anonymous/Aggregate Data and all information related to the Technology Solution (including without limitation, any processing and transmission of information) shall be deemed to be Provider’s Confidential Information; and (ii) Provider shall retain all right, title, and interest (including without limitation, copyright and other proprietary rights) in the Provider Information, Anonymous/Aggregate Data, all information related to the Technology Solution (including without limitation, any processing and transmission of information), the Technology Solution(s) and all legally protectable elements or derivative works thereof. Notwithstanding the foregoing, Provider does not claim ownership interest in derivations of Provider Data that an Authorized User creates through his/her authorized use of the Provider Data provided that (i) such derivation(s) are sufficiently transformed so that any Provider Data on which it is based or forms one or more inputs into the derivation(s) cannot be readily understood, reverse engineered, disassembled or decompiled by someone reasonably knowledgeable of financial services or reasonably skilled in financial services software applications (such derivations, the “Derived Data”) and (ii) Derived Data cannot be used in a way that competes with Provider’s or its Affiliates’ products or services.

(c)    Without limiting the foregoing, all Third Party content made available in the Provider Data is owned by the respective authors of such content and used for informational purpose only, and Provider makes no claim of ownership to any such content. All trademarked names and images appearing on the Third Party content are the property of their respective owners and no affiliation or endorsement, express or implied, is provided by their use.

(d)    Index Data Vendors shall retain all right, title, and interest (including without limitation, copyright and other proprietary rights) in and to Index Data and all legally protectable elements or derivative works thereof.

(e)    Provider, Data Vendors and Index Data Vendors may place copyright and/or other proprietary notices within the Technology Solution, Provider Data, Vendor Data and/or Index Data. The Client Entities and their Authorized Users shall not alter or remove such notices without Provider’s written permission.

(f)    Except for the restriction on Provider’s use of a Client Entity’s Confidential Information, neither Provider nor its Affiliates shall be prohibited or enjoined at any time by a Client Entity or any Authorized User from utilizing any skills, knowledge or information acquired by Provider during the course of providing the Technology Solution.

7. Additional Disclaimer. IN ADDITION TO THE WARRANTY DISCLAIMERS SET FORTH IN THE TS&CS, PROVIDER, ITS AFFILIATES, VENDORS AND INDEX DATA VENDORS MAKE NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE TECHNOLOGY SOLUTION, OUTPUT, OR PROVIDER INFORMATION PROVIDED UNDER THIS AGREEMENT. PROVIDER, ITS AFFILIATES, VENDORS AND INDEX DATA VENDORS MAKE NO GUARANTEE AS TO THE INTEGRITY OR ACCURACY, COMPLETENESS OR RELIABILITY OF THE TECHNOLOGY SOLUTION, OUTPUT, OR PROVIDER INFORMATION OR TO THE QUALITY OF TRANSMISSION OF PROVIDER INFORMATION OVER ANY METHOD OF DELIVERY. CLIENT ACKNOWLEDGES THAT THE TECHNOLOGY SOLUTION, OUTPUT, AND PROVIDER INFORMATION ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND UNDER NO CIRCUMSTANCES SHOULD THEY BE CONSIDERED AS A DIRECT, OR AN INDIRECT, OFFER OR SOLICITATION TO BUY OR SELL ANY SECURITIES. CLIENT ACKNOWLEDGES AND AGREES THAT ANY DATA REGARDING FINANCIAL PERFORMANCE OR RESULTS SHOULD NOT BE INTERPRETED OR CONSTRUED AS FINANCIAL ADVICE BEING PROVIDED BY PROVIDER, ANY OF ITS AFFILIATES, VENDORS OR INDEX DATA VENDORS AND IS NO INDICATION OF FUTURE PERFORMANCE. NEITHER PROVIDER NOR ANY OF ITS AFFILIATES PROVIDE FINANCIAL ADVICE AND SUCH IS EXPRESSLY DISCLAIMED. THE CLIENT ENTITIES MAKE ANY AND ALL INTERPRETATIONS OF PROVIDER INFORMATION CONTAINED IN THE TECHNOLOGY SOLUTION OR OUTPUT WITHOUT ANY ANALYSIS, OPINION OR ADVICE OF PROVIDER, ITS AFFILIATES, VENDORS AND INDEX DATA VENDORS. CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER, ITS AFFILIATES, ITS VENDORS, INDEX DATA VENDORS AND THEIR RESPECTIVE RELATED ENTITIES, DIRECTORS, EMPLOYEES AND AGENTS SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE USE OF ALL OR PART OF THE TECHNOLOGY SOLUTION, OUTPUT, OR PROVIDER INFORMATION. CLIENT ACKNOWLEDGES AND AGREES THAT NONE OF THE TECHNOLOGY SOLUTION, OUTPUT OR PROVIDER DATA HAVE BEEN PASSED ON AS TO THEIR LEGALITY OR SUITABILITY, AND ARE NOT REGULATED, ISSUED, ENDORSED, SOLD, OR PROMOTED BY ANY VENDOR, INDEX DATA VENDOR OR LICENSOR OF PROVIDER. NO INDEX DATA VENDOR NOR ANY VENDOR REGULATES, ENDORSES OR PROMOTES THE INDEX DATA, VENDOR SERVICES OR VENDOR DATA OF ANOTHER VENDOR OR INDEX DATA VENDOR. CLIENT ACKNOWLEDGES AND AGREES THAT CERTAIN COMPONENTS OF THE TECHNOLOGY SOLUTION (INCLUDING GENERATION OF OUTPUT) USE VARIOUS METHODOLOGIES AND THESE METHODOLOGIES MAY DIFFER FROM METHODOLOGIES USED, OR EXPECTED TO BE USED, BY THE CLIENT ENTITIES, THEIR EMPLOYEES OR COMMONLY OR CUSTOMARILY USED IN THE MARKETPLACE IN GENERATING THE TECHNOLOGY SOLUTION OR INFORMATION SIMILAR TO THAT PROVIDED BY THE TECHNOLOGY SOLUTION. CLIENT ACKNOWLEDGES AND AGREES THAT THE TECHNOLOGY SOLUTION AND OUTPUT ARE NOT INTENDED TO PROVIDE ANY ASSESSMENT REGARDING THE WAY IN WHICH THE CLIENT ENTITIES SHOULD CONDUCT THEIR BUSINESS AND THERE IS NO GUARANTEE, WARRANTY OR REPRESENTATION BY PROVIDER OR ANY OF ITS AFFILIATES THAT THE FACTORS USED, THE SCORES CREATED OR THE CLIENT ENTITIES’ USE THEREOF WILL RESULT IN ANY INCREASE OR CHANGE IN GROWTH OR ASSETS UNDER MANAGEMENT.

8.    Third Party Identifiers. As part of the Technology Solution, Provider may provide the Client Entities access to Third Party classification systems and/or identifiers (the “Third Party Identifiers”). Client agrees that if the Client Entities’ are provided access to Third Party Identifiers, such access and use of the Third Party Identifiers are subject to the terms set forth at: www.evestment.com/ThirdPartyIdentifier.

[END OF PLATFORM SUPPLEMENTAL TERMS]

These Omni Supplemental Terms are hereby incorporated into and made part of the Terms and Conditions. All capitalized terms not otherwise defined in these Omni Supplemental Terms have the meanings given to those terms in the Terms and Conditions.

1. Definitions.

(a)    “Database” means one database or questionnaire listed in the Matrix.

(b)    “Matrix” means the matrix listing either the: (i) Products under the Omni Source Technology Solution; or (ii) Profiles or Products under the Omni Complete Technology Solution (as the case may be). The initial Matrix will be agreed to by the parties concurrently with execution of the Service Order. The Matrix may be updated when a Client Entity adds Products or Profiles pursuant to the terms of this Agreement. When applying the terms of this Agreement, all references to the Matrix used in these Omni Supplemental Terms shall mean the then-current Matrix in effect.

(c)    “OC Business Rules” means, in the case of Omni Complete, the rules and data processing requirements applicable to each Profile or Product.

(d)    “OS Business Rules” means, in the case of Omni Source, the information, traits, exceptions and practices required in order to map Client Data to the Technology Solution’s format.

(e)    “Portal” means the online website through which the Client Entities may access the applicable Technology Solution.
(f)    “Product” means one Client Entity strategy or a Client Entity’s firm information.

(g)    “Profile” means, in the case of Omni Complete, one Product as presented to one Database.

(h)    “Registration Fees” means, if applicable, the initial Profile or Product registration fees set forth on a Service Order, along with any subsequent fees for additional Profile or Product registrations.

(i)    “Requirements” means, in the case of Omni Source, the requirements set forth at https://www.nasdaq.com/docs/2023/12/28/Omni-Source-System-Requirements.pdf. The Requirements are incorporated and made part of these Omni Supplemental Terms. Provider may update these Requirements from time to time for all similarly situated clients and the Client Entities should periodically check the Requirements.

(j)    “Vehicles/Currencies” means an investment vehicle or currency associated with a Profile or Product.

2. Technology Solution.

(a)    Right to Access and Use the Portal and Technology Solution. Subject to the terms of this Agreement, Provider grants to the Client Entities a non-exclusive, non-transferable, non-sublicensable, limited right, during the Initial Term and any Renewal Term, for its designated Authorized Users to access and use the Portal and Technology Solution solely for activities related to the Client Entities’ subscription to the Technology Solution. The Portal and Technology Solution may be used solely for the Client Entities’ Products or Profiles, as the case may be.

(b)    Restrictions on Use of the Portal and Technology Solution. The Client Entities shall not be granted any rights to the Portal and Technology Solution except as expressly set forth in this Agreement. Without limiting the generality of the forgoing, the Client Entities and their Authorized Users shall not, directly or indirectly: (i) allow anyone other than the designated Authorized Users to access and use the Portal or Technology Solution; (ii) alter or permit any party other than any of Provider or its Affiliates to alter any part of the Portal or Technology Solution; (iii) use or permit the use of the Portal or Technology Solution in the operation of a service bureau, including within a Client Entity’s own organization, or for any unlawful purpose; (iv) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other trade secrets from the Portal or Technology Solution; or (v) license, sell, redistribute or otherwise transfer or assign the Portal or Technology Solution, any portion thereof or any rights related to the Portal or Technology Solution.

(c)    This Agreement does not cover the provision of the Technology Solution by Provider to any affiliated entities of the Client Entities. Further, Client represents that: (i) the Client Entities and all of their divisions are marketed as one organization; and (ii) the OS Business Rules or OC Business Rules (as the case may be) will be substantially the same for all Client Entities.

(d)    If a Database or Database layout (as the case may be) is no longer supported or made available by its provider, Provider will have no duty to provide the Technology Solution for such Database or Database layout (as the case may be) and there shall be no reduction or refund of fees due to such change.

(e)    Provider will not be obligated to deliver the Technology Solution for a particular quarter unless, prior to the date which is fifteen (15) days before the end of the immediately preceding quarter: (i) Client provides in writing, which may be by e-mail, all changes to: (A) OS Business Rules or OC Business Rules (as the case may be) that are non-material in nature; (B) existing reports (e.g. client type “corp” changes to “corporate” or a value change from a number to a percentage); (C) accounting systems; (D) products names; and (E) underlying characteristics; and (ii) for the first quarter under the applicable Service Order, the Service Order is executed and delivered and implementation has begun.

(f)    All Client Data to be used with the Technology Solution shall be submitted in a Microsoft Excel file. Client Data shall be submitted in the format agreed to by the parties (including to implement any changes noted as required Provider following its data assessment) and in conformance with the data requirements communicated by Provider to the Client Entities in its data assessment.

3. Omni Source. The terms of this Section shall only apply with respect to the Omni Source Technology Solution. Provider shall provide the Client Entities access to the Portal through which the Client Entities will initiate the Technology Solution.

(a)    Client Obligations. Promptly after the end of each calendar quarter, the Client Entities shall electronically submit all Client Data to be used with the Technology Solution for that quarter. For data security purposes, the Client Entities shall not e-mail Client Data to Provider; rather, they shall electronically submit Client Data to Provider pursuant to instructions provided from time to time by Provider. All Client Data for a calendar quarter shall be delivered to Provider in one single submission. The Client Entities shall maintain continuity of Client Data in all of its deliveries of Client Data and shall not change any fields, including without limitation, the number or fields, field headers, field order, or data type, except as directed by Provider as a necessary requirement to continue to deliver the Technology Solution. The Client Entities shall supply Client Data: (i) that is free from any manual formatting, including without limitation, any highlights or comments, and free from any gaps between rows or columns; (ii) such that each category or field within Client Data is able to be generated in a consistent fashion; (iii) such that each description of different types of Client Data is uniquely identified; (iv) such that each report generated with Client Data is capable of being repeated in a consistent fashion (e.g., the P/E ratio is always in Column C and it will always be identified as “P/E”, etc.); (v) such that the date and strategy name are consistently described; and (vi) that is complete in all material respects. Examples of acceptable formats for Client Data and reports that are compatible with the Technology Solution are as set forth at https://www.nasdaq.com/docs/omni-acceptable-data-formats.pdf. Acceptable data formats may change from time to time and the Client Entities should check this format at the webpage listed above before submitting Client Data to Provider.

(b)    Provider shall deliver the initial Database layouts and Client will be responsible to notify Provider of changes to the initial Database layouts, provided that Provider shall have no obligation to make any changes to the Technology Solution in order to account for any change to a layout as it appeared on the effective date of the applicable Service Order. If, due to changes in a layout occurring after the effective date of the applicable Service Order, Provider decides, in its sole discretion, to make changes to the Technology Solution without additional fees for all of its clients using the Technology Solution, then Provider will make changes to the Technology Solution without additional fees to Client once such modifications or changes (as the case may be) are developed. If, due to changes in a layout occurring after the effective date of the applicable Service Order, Provider decides, in its sole discretion, not to make changes to the Technology Solution and Client still desires changes to be made to the Technology Solution, then Client and Provider may (although neither party shall be under any obligation to do so) agree in writing to make such changes and such writing shall set forth the applicable additional fees for such changes.

(c)    All proposed final OS Business Rules shall be approved by Client and such approval shall not be unreasonably withheld or delayed. Any subsequent changes to the approved OS Business Rules may subject Client to additional fees.

(d)    Frequency. Unless caused by errors of Provider, Provider shall be under no obligation to: (i) update a particular category of a Client Entity’s quarterly Client Data more than five (5) times during any calendar quarter; (ii) update a Client Entity’s historical Client Data more than five (5) times during any calendar quarter; or (iii) update a Client Entity’s historical Client Data beyond the most recent five-year period at the time of such update. All updates of a Client Entity’s historical Client Data must occur after the first thirty (30) business days of a calendar quarter and will be subject to Database limitations and availability.

4. Omni Complete. The terms of this Section shall only apply with respect to the Omni Complete Technology Solution.

(a)    Registration.

(i)    A Client Entity may be registered and have an account with some or all of the Databases. If any Profiles or Products are designated for registration in the Matrix, then Registration Fees will apply, and Provider shall make commercially reasonable efforts to register such Client Entity’s Profiles or Products.

(ii)    Client acknowledges that Provider is performing only an administrative duty for the Client Entities in registering a Client Entity with Databases. Provider is not conducting any due diligence on Databases, nor is it conducting any diligence on behalf of a Client Entity or certifying to a Client Entity anything about any Database, including whether such Database has adequate security measures or is compliant with any applicable legal or regulatory guidance that may be applicable to the Client Data, Databases or the funds providing information to such Databases. It is the Client Entities’ responsibility to conduct all due diligence on Databases and after such has been done, inform Provider of the Databases in which it would like to be registered.

(iii)    If any registration with a Database requires the acceptance of legal terms by any Client Entity, then such Client Entity will be solely responsible for accepting those terms or negotiating acceptable terms with the Database provider and Provider will not be required to register the Profile or Product with any such Database until an acceptable agreement is agreed to between the Database provider and such Client Entity.

(iv)    Client further acknowledges that registration of Profiles or Products with Databases varies in time between Database providers and, while Provider will make reasonable efforts to register the Profiles or Products designated for registration, there is no guarantee as to the time in which such registration will actually be accomplished.

(v)    Profiles or Products will not be registered with any Database by Provider unless Client and Provider have agreed on such registration, as set forth in the Matrix. For the avoidance of confusion, the Registration Fees are in consideration of Provider’s efforts to register Profiles or Products with Databases and are not annual fees, rather they are one-time, non-refundable fees for each registration charged in addition to any annual processing fee for each Profile or Product, including without limitation, the initial annual fees and the additional fees that may be due for additional Profiles or Products.

(b)    Each calendar quarter, Provider will populate Client Data supplied by the Client Entities for the Profiles or Products set forth in the Matrix. Provider will also provide the Client Entities with access to the Portal so that the Client Entities can review Provider’s progress. All Profiles or Products shall be updated once each calendar quarter. Additional updates or more frequent updates shall be done only upon written agreement between Client and Provider, and such may subject Client to additional fees to be agreed upon by the parties. Client is permitted to request minor changes to OC Business Rules, for no additional fees, provided that such request must be made in writing (which may be by e-mail) within thirty (30) calendar days after the effective date of the applicable Service Order. Provider will determine, in good faith, what changes qualify as minor changes. Any changes to the OC Business Rules after such are established may subject Client to additional fees and must be agreed upon by Client and Provider.

(c)    Client Obligations. Promptly after the end of each calendar quarter, the Client Entities shall electronically submit all Client Data to be used with the Technology Solution for that quarter. For data security purposes, the Client Entities shall not e-mail Client Data to Provider; rather, they shall electronically submit Client Data to Provider pursuant to instructions provided from time to time by Provider. The Client Entities shall maintain continuity of Client Data in all of its deliveries of Client Data.

(d)    Frequency. Unless caused by errors of Provider, Provider shall be under no obligation to update Profiles or Products with a Client Entity’s quarterly Client Data more than once during any calendar quarter, provided that Provider will update Profiles or Products for performance data on a monthly basis. Provider will update up to five (5) Vehicles/Currencies for performance data for each Profile or Product. Except for performance data, historical data updates or Profile or Product population for all other categories of information is not part of the Technology Solution provided under these Omni Supplemental Terms. Historical population of performance data may be done upon request.

5. Right to Use Client Data.

(a)    Client hereby grants Provider: (i) the right to use, copy, modify, manipulate and create derivative works of Client Data as necessary in order to deliver the Technology Solution; and (ii) the right to use a Client Entity’s unique username(s) and password(s) for the Databases provided that such shall only be used for the purposes of providing the Technology Solution.

(b)    Client permits Provider to act as the Client Entities’ administrative agent with respect to the Databases solely in order to provide the Technology Solution.

(c)    Client represents that the Client Entities’ and Provider’s use of the Technology Solution does not violate any agreement a Client Entity has in effect with any of the providers of the Databases. Client warrants that Client Data will not contain: (i) any confidential or proprietary information of a Third Party for which a Client Entity does not have the right to provide to Provider; or (ii) any virus, worm, Trojan horse or other malicious code. The Client Entities shall have the sole responsibility for the integrity, accuracy, completeness, reliability, quality and legality of Client Data. This Agreement shall not supersede or modify any terms between Provider or its Affiliates and any Client Entity governing any of Provider’s use or distribution of Client Data once populated into Provider’s Database.

(d)    During the term of this Agreement, the Client Entities will provide Provider with all of the Client Entities’ information reasonably requested by Provider in order for Provider to provide the Technology Solution. Client acknowledges that Provider may request, review, and receive information, whether verbal or written, regarding a Client Entity from investment consultants, database managers, research firms, industry publications and other Third Parties. Provider will not make any independent investigation into the accuracy of information that it shall receive from a Client Entity or any such investment consultants, database managers, research firms, industry publications and other Third Parties. Provider shall have no liability to Client or a Client Entity whatsoever arising out of any inaccuracy of whatever nature therein.

6. Addition of Products, Profiles or Profile Registrations.

(a)    Client may order additional Products or Profiles during an Initial Term or a Renewal Term but may not decrease the number of Products or Profiles during an Initial Term or a Renewal Term. Client may request up to one (1) substitution of a Profile or Product per year during the Initial Term. In the event Client desires to order additional Products or Profiles during the Initial Term or Renewal Term, the price for such will be quoted at Provider’s then-current rates for such additional Products or Profiles and any Registration Fees associated with such substitutions. Client agrees that Provider requires at least ten (10) days from agreement on the additional Product or Profile to begin processing any such additional Product or Profile.

(b)    If applicable, Client may order additional registrations of Profiles or Products with a Database during an Initial Term or a Renewal Term. In the event Client desires to order additional registrations of Profiles or Products with a Database, the price for such will be quoted at Provider’s then-current rates for such additional registrations. The Additional Registration Fee will not be pro-rated.

7. Proprietary Rights.

(a)    The Client Entities shall retain all right, title and interest (including without limitation, copyright and other proprietary rights) in and to Client Data. Client Data shall be deemed to be the Client Entities’ Confidential Information.

(b)    Provider shall retain all right, title and interest (including without limitation, copyright and other proprietary rights) in and to the Technology Solution, including the Portal, OS Business Rules and OC Business Rules, and all legally protectable elements or derivative works thereof. The Technology Solution, any test plans and other materials and computer files used to deliver the Technology Solution shall be deemed to be Provider’s Confidential Information.

(c)    Provider may place copyright and/or other proprietary notices within the Technology Solution. The Client Entities and their Authorized Users shall not alter or remove such notices without Provider’s written permission.

(d)    Except for the restriction on Provider’s use of a Client Entity’s Confidential Information, neither Provider nor its Affiliates shall be prohibited or enjoined at any time by a Client Entity or any Authorized User from utilizing any skills, knowledge or information acquired by Provider during the course of providing the Technology Solution.

8. Additional Disclaimer. CLIENT ACKNOWLEDGES AND AGREEES THAT NEITHER PROVIDER NOR ITS AFFILIATES MAKE ANY REPRESENTATION, WARRANTY, OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE AND IT IS SOLELY THE CLIENT ENTITIES’ OBLIGATION TO VERIFY THAT THE POPULATION OF THE DATABASES BY THE TECHNOLOGY SOLUTION IS ACCURATE AND CORRECT AS PROVIDER MAKES NO WARRANTY OR GUARANTEE THAT THE TECHNOLOGY SOLUTION WILL POPULATE CLIENT DATA ACCURATELY, PROVIDED THAT WHEN NOTIFIED BY CLIENT OF ANY POPULATION ERROR (DEFINED AS A MATERIAL, RECURRING FAILURE OF THE TECHNOLOGY SOLUTION TO PROPERLY POPULATE THE DATABASES), PROVIDER SHALL RE-APPLY THE TECHNOLOGY SOLUTION IN AN ATTEMPT TO ELIMINATE THE POPULATION ERROR AND THIS SHALL BE CLIENT AND THE CLIENT ENTITIES’ SOLE AND EXCLUSIVE REMEDY FOR POPULATION ERRORS IN, OR CAUSED BY, THE TECHNOLOGY SOLUTION. CLIENT ACKNOWLEDGES AND AGREES THAT PROVIDER PROVIDES ONLY ADMINISTRATIVE SERVICES AND MAKES NO REPRESENTATION OR WARRANTY AS TO A CLIENT ENTITY’S OR ANY DATABASE’S COMPLIANCE WITH ANY APPLICABLE LAW OR REGULATION, INCLUDING ANY FEDERAL OR STATE SECURITIES LAWS.

[END OF OMNI SUPPLEMENTAL TERMS]

These Professional Services Supplemental Terms are hereby incorporated into and made part of the Terms and Conditions. All capitalized terms not otherwise defined in these Professional Services Supplemental Terms have the meanings given to those terms in the Terms and Conditions.

1. Definitions.

(a)    “Change Request” means a written proposal stating variations in the Professional Services, whether by way of addition, deletion, substitution or otherwise as requested by Client.

(b)    “Client” means the party identified as Client in the Professional Services Service Order. All references in this Agreement to a Client Entity or the Client Entities shall mean, with respect to the Professional Services and terms and conditions applicable thereto, only Client.

(c)    “Condition” means various assumptions, conditions and factors communicated by Client to Provider upon which the Professional Services are based.

(d)    “Intended Purpose” means the intended and allowed use of any deliverables provided to Client, as set herein and may include distribution of Output generated by the Professional Services in accordance with the terms set forth in the agreement governing the Underlying Technology Solutions.

(e)    “Professional Services” means the advanced services to help Client use Underlying Technology Solutions, as set forth in the Statement of Work. References to the Technology Solutions in this Agreement shall include the Professional Services.

(f)    “Statement of Work” means the statement of work that describes the project, scope and deliverables and may include additional terms, conditions, assumptions and requirements applicable to the project. Each Statement of Work must be executed by Provider and Client and is made part of this Agreement; provided, however, that in the event of a conflict in the terms of a Statement of Work and these Professional Services Supplemental Terms, these Professional Services Supplemental Terms shall prevail.

(g)    “Underlying Technology Solutions” means the other Technology Solution(s) that are required in order for Provider to perform the Professional Services. By way of example, if the Professional Services include the creation of reports using a Technology Solution, such Technology Solution is an Underlying Technology Solution.

2. Professional Services.

(a)    Client shall electronically submit all Client Data to be used with the Professional Services as set forth in the Statement of Work in a mutually agreeable format. Client shall make available in a timely manner, the documents and information that Provider reasonably deems necessary to complete the Professional Services. If the Professional Services include Provider performing services onsite at Client (for example, enhanced training), then Client shall use diligent efforts to accommodate Provider’s reasonable requests in connection with such onsite visit.

(b)    Client shall have an active subscription for the Underlying Technology Solutions and the Professional Services Fees are in addition to the applicable Fees for the Underlying Technology Solutions. If Client’s subscription to an Underlying Technology Solution lapses, Provider will no longer provide any aspects of the Professional Services that require such Underlying Technology Solution. If removing such aspects of the Professional Services requires Provider to perform additional work (including, without limitation, redevelopment and/or reformatting) then additional Fees may apply, as determined in Provider’s reasonable discretion. If Client does not pay the additional Fees, Provider may cease to provide the Professional Services and no refund shall apply. Nothing in these Professional Services Supplemental Terms is intended to, or shall, modify the terms applicable to the Underlying Technology Solutions.

(c)    If any of the Conditions or any information provided to Provider by or on behalf of Client is inaccurate, incomplete or changes, the Professional Services may be materially affected, and Provider may be unable or unwilling to provide the Professional Services.
 
(d)    To the extent that the Professional Services include any Client report templates or reporting functionality, Provider shall deliver the report template(s) and all proposed final templates shall be approved by Client, such approval not to be unreasonably withheld or delayed. Client will be responsible to notify Provider of any required changes to the report templates, provided that Provider shall have no obligation to make any changes to the templates that are outside of the scope set forth in the Statement of Work and any such changes shall be subject to the terms below.

(e)    Change Requests must be submitting to Provider as soon as practicable. The parties may mutually agree to changes in conditions, assumptions, requirements and specifications that do not materially change the scope of the Professional Services or alter the Professional Services Fees by Provider accepting the Change Request (which acceptance may be via email). Any material changes in the scope of the Professional Services or any change in the Fees for the Professional Services shall be evidenced in an amendment to the Statement of Work and shall be signed by the parties. Provider shall not be obligated to accept any variation in the Professional Services unless agreed and Client pays any additional Fees reasonably specified by Provider and agrees to extend the period of performance by an additional period determined in Provider’s reasonable discretion.

(f)    If Provider is unable to perform the Professional Services through no fault of Client, then Provider shall promptly notify Client of same, and the parties will work together in good faith to evaluate whether alternative services may be feasible and/or desirable and any associated fees therewith. If the parties are unable to reach mutually agreeable alternative services, then Provider may terminate the applicable Professional Services and refund the Fees for such Professional Services, less Provider’s reasonable costs and expenses incurred in connection with the work performed in connection with such Professional Services through the date of termination.

(g)    Client warrants that it has all necessary rights, consents and authorizations needed in order to provide Provider with the Client Data for the purposes of performing the Professional Services. Client agrees that: (i) it has legally collected the Client Data, and the Client Data does not violate any other party’s intellectual property rights; (ii) either there are no privacy or data protection laws or regulations that apply to the Client Data or it has all of the necessary consents, licenses and rights to provide the Client Data in light of any applicable privacy or data protection laws; and (iii) the Client Data will not contain any virus, worm, Trojan horse or other malicious code. Client shall have the sole responsibility for the integrity, accuracy, completeness, reliability, quality and legality of Client Data, including any Client Data included in Provider Materials (as defined below). Client agrees to indemnify, defend and hold harmless Provider, and any and all of their officers, directors, shareholders, employees, consultants, agents, partners, licensors and suppliers, from and against any and all claims, liabilities, damages, costs and/or expenses, including but not limited to reasonable attorneys' fees, relating to the Client Data (including Client Data included in the Provider Materials).

3. Proprietary Rights.

(a)    Client shall retain all right, title and interest (including without limitation, copyright and other proprietary rights) in and to Client Data. Client Data shall be deemed to be Client’s Confidential Information.

(b)    Provider shall retain all right, title and interest (including without limitation, copyright and other proprietary rights) in and to all copyrightable works, deliverables, designs, inventions, know-how, software, techniques, trade secrets, work product and other materials created by Provider (either alone or jointly with Client or others) and provided to Client under the Statement of Work, excluding any Client Data (collectively, “Provider Materials”) and all legally protectable elements or derivative works of the Provider Materials. Provider Materials shall be deemed to be Provider’s Confidential Information to the extent the Intended Purpose does not expressly include dissemination of such Provider Materials to Third Parties.

(c)    Provider may place copyright and/or other proprietary notices within the Provider Materials. Client shall not alter or remove such notices without Provider’s written permission. Client further shall not alter any of the Provider Materials without, in each instance, Provider’s written consent and shall not represent any altered materials as those of Provider.

(d)    Subject to the terms of this Agreement, Provider grants Client a non-exclusive, non-transferable, non-sublicensable, limited right, during the Initial Term and any Renewal Term, to use the Provider Materials solely for the Intended Purpose. Client shall not be granted any rights to the Professional Services or Provider Materials except as expressly set forth in this Agreement. Without limiting the generality of the forgoing, Client shall not, directly or indirectly: (i) alter or permit any party other than Provider or its Affiliates to alter any part of the Provider Materials; (ii) use or permit the use of the Professional Services, including any Provider Materials, in the operation of a service bureau, including within Client’s own organization, or for any unlawful purpose; (iii) disassemble, decompile, reverse engineer or otherwise attempt to derive source code or other
 
trade secrets from the Professional Services or Provider Materials; or (iv) license, sell, redistribute or otherwise transfer or assign the Professional Services, Provider Materials, any portion thereof or any rights related to thereto. For the avoidance of doubt, these Professional Services Supplemental Terms shall not modify any restrictions on Client’s use of the Underlying Technology Solutions (including, without limitation, any restrictions on the distribution of charts, graphs, tables, reports that are exported from the Underlying Technology Solutions or generated outside of the Underlying Technology Solutions using any data provided by Provider or its Affiliates (the “Output”), regardless of whether the Output is part of the Provider Materials or otherwise created in connection with the Professional Services).

(e)    Except for the restriction on Provider’s use of Client’s Confidential Information, neither Provider not its Affiliates shall be prohibited or enjoined at any time by Client or any of its employees or users from utilizing any skills, knowledge or information acquired by Provider during the course of providing the Professional Services.

4. Expenses. In addition to the Fees set forth on the Service Order, Provider will invoice Client for its reasonable and actual out of pocket expenses incurred in providing the Professional Services, and payment for such expenses shall be in accordance with the payment terms set forth in the Ts&Cs.

5. Additional Disclaimer.

THE DISCLAIMERS SET FORTH IN THESE PROFESSIONAL SERVICES SUPPLEMENTAL TERMS ARE IN ADDITION TO THE DISCLAIMERS SET FORTH IN THE TS&CS AND THE DISCLAIMERS SET FORTH IN THE TERMS GOVERNING THE UNDERLYING TECHNOLOGY SOLUTIONS (WHICH, FOR THE AVOIDANCE OF DOUBT, SHALL APPLY TO ANY UNDERLYING TECHNOLOGY SOLUTION, THIRD PARTY DATA, PROVIDER DATA, VENDOR DATA, VENDOR SERVICES OR INDEX DATA (EACH AS DEFINED IN THE TERMS AND CONDITIONS APPLICABLE TO THE UNDERLYING TECHNOLOGY SOLUTION) USED OR PROVIDED IN CONNECTION WITH THE PROFESSIONAL SERVICES). CLIENT ACKNOWLEDGES THAT THE PROFESSIONAL SERVICES ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND AGREES THAT PROVIDER AND ITS AFFILIATES, DIRECTORS, EMPLOYEES AND AGENTS SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR ANY LOSS OR DAMAGE OF ANY KIND ARISING OUT OF THE USE OF ALL OR PART OF THE PROFESSIONAL SERVICES, INCLUDING THE PROVIDER MATERIALS. CLIENT FURTHER AGREES THAT UNDER NO CIRCUMSTANCES SHOULD THEY BE CONSIDERED AS A DIRECT, OR AN INDIRECT, OFFER OR SOLICITATION TO BUY OR SELL ANY SECURITIES. CLIENT ACKNOWLEDGES AND AGREES THAT ANY DATA REGARDING FINANCIAL PERFORMANCE OR RESULTS SHOULD NOT BE INTERPRETED OR CONSTRUED AS FINANCIAL ADVICE BEING PROVIDED BY PROVIDER OR ITS AFFILIATES (AND, IF APPLICABLE, THEIR VENDORS OR INDEX DATA VENDORS) AND IS NO INDICATION OF FUTURE PERFORMANCE. CLIENT ACKNOWLEDGES AND AGREES THAT IT IS RESPONSIBLE FOR MAKING ANY AND ALL INTERPRETATIONS OF DATA (AND IF APPLICABLE, VENDOR DATA, VENDOR SERVICES AND INDEX DATA) AND VERIFYING THE QUALITY AND ACCURACY OF THE CLIENT DATA CONTAINED IN THE PROFESSIONAL SERVICES OR PROVIDER MATERIALS WITHOUT ANY ANALYSIS, OPINION OR ADVICE OF PROVIDER OR ITS AFFILIATES (AND, IF APPLICABLE, THEIR VENDORS AND INDEX DATA VENDORS).

NEITHER PROVIDER NOR ANY OF ITS AFFILIATES PROVIDE FINANCIAL, LEGAL OR REGULATORY ADVICE AND SUCH IS EXPRESSLY DISCLAIMED. CLIENT ACKNOWLEDGES AND AGREES THAT NONE OF THE PROFESSIONAL SERVICES, PROVIDER MATERIALS THIRD PARTY DATA OR PROVIDER DATA HAVE BEEN PASSED ON AS TO THEIR LEGALITY OR SUITABILITY, AND ARE NOT REGULATED, ISSUED, ENDORSED, SOLD, OR PROMOTED BY ANY VENDOR, INDEX DATA VENDOR OR LICENSOR OF PROVIDER OR ITS AFFILIATES. CLIENT FURTHER ACKNOWLEDGES AND AGREES THAT PROVIDER AND ITS AFFILIATES ARE NOT ACTING AS A FIDUCIARY OR AGENT FOR CLIENT AND DO NOT HAVE A FIDUCIARY OR ENHANCED DUTY TO CLIENT. THE PROFESSIONAL SERVICES MAY USE METHODOLOGIES, SUBJECTIVE DETERMINATIONS, INTERPRETATIONS OR ANALYSIS THAT DIFFER FROM THOSE USED, OR EXPECTED TO BE USED, BY CLIENT, ITS EMPLOYEES, CLIENTS OR PROSPECTIVE CLIENTS, OR COMMONLY OR CUSTOMARILY USED IN THE MARKETPLACE, AND CLIENT ACKNOWLEDGES AND AGREES THAT THE PROFESSIONAL SERVICES ARE NOT INTENDED TO PROVIDE ANY ASSESSMENT REGARDING THE WAY IN WHICH CLIENT OR ITS AFFILIATES SHOULD CONDUCT THEIR BUSINESS AND THERE IS NO GUARANTEE, WARRANTY OR REPRESENTATION BY PROVIDER OR ANY OF ITS AFFILIATES THAT THE PROFESSIONAL SERVICES OR PROVIDER MATERIALS WILL RESULT IN ANY INCREASE OR CHANGE IN GROWTH OR ASSETS UNDER MANAGEMENT. ALL DECISIONS IN CONNECTION WITH THE IMPLEMENTATION OF ANY ANALYSES, GUIDANCE AND/OR RECOMMENDATIONS COMMUNICATED IN THE PROFESSIONAL SERVICES SHALL BE THE SOLE RESPONSIBILITY OF, AND MADE BY, CLIENT. CLIENT FURTHER ACKNOWLEDGES AND AGREES IT IS RESPONSIBLE FOR MAKING ITS OWN ASSESSMENT OF WHETHER ITS PROPOSED USE OF THE PROFESSIONAL SERVICES, INCLUDING THE PROVIDER MATERIALS, MEETS THE REQUIREMENTS APPLICABLE TO CLIENT.

[END OF PROFESSIONAL SERVICES SUPPLEMENTAL TERMS]