Last updated on April 1, 2023
1. SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Sponsor the Portal (as described in Exhibit A of the Software and Services Agreement) in accordance with the Service Level Terms (as described in Exhibit B of the Software and Services Agreement.)
1.2 Subject to the terms hereof, Company will provide Sponsor with reasonable technical support services in accordance with the terms set forth in Exhibit C of the Software and Services Agreement.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Sponsor will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Company).
2.2 Sponsor represents, covenants, and warrants that Sponsor will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Although Company has no obligation to monitor Sponsor’s use of the Services beyond what is included in Exhibit A of the Software and Services Agreement, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Company includes non-public information regarding features, functionality and performance of the Service and the Portal. Proprietary Information of Sponsor includes non-public data provided by Sponsor to Company to enable the provision of the Services (“Sponsor Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by Receiving Party prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Sponsor shall own all right, title and interest in and to the Sponsor Data. Company shall own and retain all right, title and interest in and to (a) the Services, Portal and Software, and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3 Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Sponsor Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Sponsor will pay Company the then applicable fees described in this Agreement for the Services and Implementation Services in accordance with the terms therein (the “Service Fees”). If Sponsor’s use of the Services requires the payment of additional Premium Service fees (per the terms of this Agreement), Sponsor shall be billed for such additional fees in advance and Sponsor agrees to pay the additional fees in advance of the Premium Service being performed. Company reserves the right to change the Service Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Sponsor (which may be sent by email). If Sponsor believes that Company has billed Sponsor incorrectly, Sponsor must contact Company no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
4.2 Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company seven (7) days after the emailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Sponsor shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in this Agreement, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least sixty (60) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon sixty (60) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement and fails to cure that breach within such sixty (60) day period.
5.3 Sponsor will pay in full for the Services up to and including the last day on which the Services are provided.
5.4 Upon any termination, Company will make all Sponsor Data available to Sponsor for electronic retrieval for a period of ninety (90) days, but thereafter Company may, but is not obligated to, delete stored Sponsor Data.
5.5 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY GIVES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND WHATSOEVER RELATING TO THE SERVICES, THE PLATFORM OR THE SOFTWARE, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS, TITLE, OWNERSHIP, RESULTS, OR THE QUALITY, SUITABILITY, ADEQUACY, GENUINENESS, ACCURACY OR COMPLETENESS OF THE SERVICES. SPONSOR UNDERSTANDS AND AGREES THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN, COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS OF OR FAILURE TO CONTINUALLY PROVIDE THE SERVICES, OR FOR ANY LEVEL OF UPTIME. SPONSOR AGREES THAT FROM TIME TO TIME, THE SERVICES MAY BE INACCESSIBLE OR INOPERABLE FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, (I) EQUIPMENT MALFUNCTIONS; (II) PERIODIC MAINTENANCE PROCEDURES; OR (III) CAUSES BEYOND THE CONTROL OF COMPANY OR WHICH ARE NOT REASONABLY FORESEEABLE BY COMPANY INCLUDING, BUT NOT LIMITED TO, THE INTERRUPTION OF TELECOMMUNICATION OR DIGITAL TRANSMISSION LINKS. EXCEPT AS SPECIFICALLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS.”
NOTWITHSTANDING ANYTHING IN EXHIBIT E OR ELSEWHERE IN THIS AGREEMENT, SPONSOR IS SOLELY RESPONSIBLE FOR CHOOSING AND HIRING AN ATTORNEY, AND COMPANY SHALL HAVE NO LIABILITY OR RESPONSIBILITY FOR SPONSOR’S ENGAGEMENT OF AN ATTORNEY, OR FOR ANY LEGAL ADVICE PROVIDED BY ATTORNEYS TO SPONSOR. SPONSOR ACKNOWLEDGES AND AGREES THAT COMPANY DOES NOT AND WILL NOT PROVIDE ANY LEGAL ADVICE TO SPONSOR UNDER THIS AGREEMENT.
IN ADDITION TO THE FOREGOING, COMPANY WILL NOT BE LIABLE FOR DAMAGES OF ANY KIND RELATED TO A THIRD PARTY’S FRAUDULENT OR UNAUTHORIZED ACTIVITY IN CONNECTION WITH THE SERVICES, PORTAL, OR SOFTWARE, INCLUDING FOR DATA BREACH, CYBERWARE ATTACKS, OR COMPANY’S COMPLIANCE WITH DATA SECURITY LAWS OR POLICIES.
Each party (“Indemnitor”) will indemnify, defend, and hold harmless the other party, its affiliates and their respective officers, directors, shareholders, employees and agents (jointly and severally, the “Indemnitees”) from and against all Losses asserted directly or indirectly by any other person for any actual or alleged: (a) infringement of any intellectual property right of that other person, or misappropriation or unauthorized use or disclosure of any trade secret of that other person, by Indemnitor; (b) grossly negligent act or omission by Indemnitor; (c) Indemnitor’s material breach of any representation, warranty or covenant in this Agreement; (d) intentional misconduct by Indemnitor; and (e) violation of any applicable law by Indemnitor. Indemnitor’s obligations under this Section will not apply to the extent such Losses are caused by Indemnitee’s gross negligence, intentional misconduct, material breach of this Agreement, or violation of applicable law. As used herein, "Loss" or "Losses" means (i) all reasonable attorney fees paid or payable by an Indemnitee in defense of any claim subject to indemnification under this Section; and (i) all sums paid or payable to any other person, including all direct losses and damages, injuries, interest, costs, fines, taxes, premiums, assessments, penalties, expenses, and other liabilities of any kind or nature.
Without limiting the foregoing, Sponsor will indemnify, defend, and hold harmless Company from and against all Losses related to the Fund, including all claims by any Investor in Sponsor’s Fund.
Both parties agree that any indemnity or release of liability provided in this paragraph shall survive termination of this Agreement.
8. LIMITATION OFLIABILITY
UNDERNO CIRCUMSTANCES WILL COMPANY BE LIABLE UNDER ANY CONTRACT, STRICT LIABILITY,TORT (INCLUDING NEGLIGENCE) OR OTHER LEGAL OR EQUITABLE THEORY, FOR ANYSPECIAL, INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL COSTS OR DAMAGES,INCLUDING WITHOUT LIMITATION, LOST PROFITS, LITIGATION COSTS, LOSS OF DATA,PRODUCTION OR PROFIT, ARISING OUT OF OR RELATING IN ANY WAY TO THE SUBJECTMATTER OF THIS AGREEMENT, EVEN IF INFORMED IN ADVANCE OF THE POSSIBILITY OFSUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANYLIMITED REMEDY STATED HEREIN. IN NO EVENT WILL COMPANY’S TOTAL LIABILITY UNDEROR RELATED TO THIS AGREEMENT, THE TERMINATION THEREOF, AND/OR THE PROVISION OFTHE SERVICES, REGARDLESS OF THE FORM OF ACTION, EXCEED THE FEES ACTUALLY PAIDBY SPONSOR UNDER THIS AGREEMENT DURING THE SIX (6) MONTHS PRIOR TO THE EVENTGIVING RISE TO THE LIABILITY.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Sponsor except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Sponsor does not have any authority of any kind to bind Company in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of laws provisions. If Sponsor initiates any legal action against Company under this Agreement or related in any way to the Services, whether in contract, tort or otherwise, User agree to initiate that action only in a state or federal court located in the State of Oregon.
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