Platform Access and Services Agreement
This Platform Access and Services Agreement (this “Agreement”) governs the rights to use the software as a service platform (such platform, along with all related updates, upgrades, documentation, related services, related activities, and new service offerings are referred to collectively herein as the “Product”) of Aumni, Inc., a Delaware corporation (“Aumni”), on a subscription basis. A “Customer” is a person or legal entity that: (a) has executed an Order Form (as defined below), or (b) otherwise gains access to the Product (or any portion thereof). Customer and Aumni are referred to collectively herein as the “parties” and each individually as a “party.” This Agreement is effective as of the earlier of: (i) the effective date set forth in the order form or other similar agreement pursuant to which Customer has agreed to access the Product on a subscription or trial basis (the “Order Form,” and, such date, the “Effective Date”), or (ii) Customer’s initial use of the Product. Capitalized terms defined in any applicable Order Form and used in this Agreement shall have the same meanings ascribed to such terms as in the applicable Order Form. The Product is protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. This Agreement is also subject to the provisions of Aumni’s Data Processing Agreement (“DPA”), which is incorporated herein by reference.
1. PRODUCT ACCESS
1.1 Provision of the Product. Aumni agrees that Customer may access the Product on a subscription or trial basis for the term set forth in the applicable Order Form. The Product is provided by Aumni or by a Supplier (as defined below) at Aumni’s request or direction. As used in this Agreement, “Supplier(s)” means, individually and collectively, persons or entities engaged: (a) to provide any part of the Product, (b) in connection with the development and operation of the Product, or (c) to facilitate access to the Product through third-party platforms or products. For the avoidance of doubt, a Customer, in its capacity as such, is not a Supplier. Subject to Section 7.1 (Limited Warranty) of this Agreement, Aumni may, from time to time and at its sole discretion, add, modify, replace or delete any component of the Product.
1.2 Accounts. In order to access and use certain features of the Product, Customer may be required to register for an account or multiple accounts (each, an “Account”).Use of and access to the Product, in whole or in part, is permitted to those persons so designated by Customer pursuant to the terms of this Agreement and/or the applicable Order Form (such persons, “Permitted Users”). If Customer is given Account login information (including, but not limited to, user IDs and passwords) to access the Product, Customer shall cause its Permitted Users to keep such Account login information strictly confidential and not share such information with any unauthorized person(s). Customer is solely responsible for maintaining the security and confidentiality of its Account information (including, but not limited to, login information) and is fully responsible for any activities of its Permitted Users.
1.3 Account Access. Customer acknowledges that while the security ofCustomer’s Account may be maintained through the use of passwords, it may be possible for Customer’s Account to be accessed by unauthorized third parties via communication between Customer and Aumni using the internet, other network communications, facilities, telephone, or other electronic means, and Aumni disclaims any and all liability resulting from or related to such events.Customer may permit its Customer Affiliates (as defined below) and independent contractors and consultants, in each case, who are not competitors of Aumni (“Contractors”)to serve as Permitted Users, provided: (a) Customer remains responsible for compliance by each such Contractor or Customer Affiliate with all of the terms and conditions of this Agreement and any Order Form, in each case, that is applicable to Permitted Users, and (b) any such use of the Product by any such Contractor or Customer Affiliate is for the sole benefit of Customer and is otherwise in accordance with the terms of this Agreement and any Order Form. “Customer Affiliate” means any entity under the control of Customer where “control” means ownership of or the right to control greater than 50% of the voting securities of such entity. Notwithstanding anything in this Agreement to the contrary, Aumni may: (i) refuse to register an Account, (ii) refuse to provide access to the Product, or (iii) revoke access to any user at any time in its sole and absolute discretion and for any reason.
1.4 General Restrictions. Customer shall not, and shall not allow, cause, or permit its Permitted Users to, in each case without the express written authorization of Aumni: (a) rent, lease, copy, provide access to, transfer, publish, assign, convey, translate, convert to another programming language, license or sublicense the Product or use the Product to provide a service to a third party, (b) reverse engineer, decompile, disassemble, deconstruct or otherwise seek to obtain the source code or application programming interfaces (“APIs”) to the Product, except to the extent expressly permitted by applicable law (and then only upon advance written notice to Aumni), (c) modify the Product, or create any derivative product or service from any of the foregoing, (d) remove or obscure any product identification, disclaimer, trademark, watermark, proprietary, copyright or other notices contained in the Product (including, but not limited to, any reports or data printed or otherwise obtained from the Product), (e) incorporate the Product into any other offering (whether software as a service or otherwise), or (f) publicly disseminate information or analysis regarding the performance of the Product.
1.5 Investment and Legal Advice. Customer hereby acknowledges and agrees that any information and content provided through the Product (including, but not limited to, that regarding or derived from Customer Data, as defined in this Agreement) is not intended, developed or provided by Aumni as legal, tax, insurance or investment advice and Customer shall not use or treat such information or content provided through the Product as legal, tax, insurance or investment advice. Customer acknowledges that Aumni does not operate the Product as an offer to, or solicitation of, any potential clients or investors for the provision by Aumni of a recommendation of any securities transaction or investment strategy involving securities, including, but not limited to, recommendations of types of accounts, investment management, advisory or any other similar service. Customer agrees not to construe any content or materials listed on the Product as tax, legal, insurance or investment advice or as an offer to sell, or as a solicitation of an offer to buy, any security or other financial instrument. The Product and content made available through the Product are intended to be used by Customer for informational purposes only. Neither Aumni nor any of its affiliates or Suppliers shall have any liability for any legal, tax, insurance, investment or other decisions made based upon Customer’s use of the Product.
1.6 Export. The Product may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. Customer agrees not to export, reexport, or transfer, directly or indirectly, any U.S. technical data acquired from Aumni, or any products utilizing such data, in violation of the United States export laws or regulations and/or in violation of any export or import regulations of any other relevant countries.
1.7 Security and Privacy. Aumni will implement and maintain commercially reasonable administrative, technical and physical safeguards including procedures and practices commensurate with the level of sensitivity of the Customer Data and the nature of its activities under this Agreement, to protect the security, confidentiality and integrity of Customer Data processed by Aumni in connection with the Product as further described in the DPA.
1.8 Hosting Services. Aumni may provide the hosting services for the Product (“Hosting Services”) through a third-party hosting facility (such as Amazon Web Services) and may update the identity, content, functionality and user interface of the Hosting Services from time to time in its sole discretion. Customer will be solely responsible for the Customer Data entered in the Product, however entered, including by Aumni on behalf of Customer.
1.9 Hosting Service Access. In order to use certain features of the Product, Customer and its Permitted Users may be required to have or obtain access to the internet. Customer agrees that Aumni is not providing access to the internet and that Customer and its PermittedUsers , as applicable, are solely responsible for obtaining and maintaining such internet access and for providing all equipment necessary to obtain and maintain such internet access. Aumni does not and cannot control the flow of data to or from Aumni’s network, designated hosting facility and/or other portions of the internet. Such flow depends in large part on the performance of internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt Customer’s and/or its Permitted Users’ connections to the internet (or portions thereof) and Aumni disclaims any and all liability resulting from or related to such events.
2. CUSTOMER DATA
2.1 Generally. “Customer Data” means information or other data of any type which is provided to Aumni by Customer, by its Permitted Users, by its Portfolio Companies, or by any other person at the direction, request, invitation or instruction of Customer, or by any other person otherwise acting on behalf of, or for the benefit of, Customer, in each case in connection with Aumni’s provision of the Product to Customer. Customer is solely responsible for the accuracy, content and legality of all Customer Data and its use by Customer. A “Portfolio Company” is any company in which the Customer, or one of its affiliates, holds an investment.
2.2 Customer Representations and Acknowledgments.Customer represents and warrants to Aumni that (a) Customer has sufficient rights in the Customer Data to authorize Aumni and its affiliates and Suppliers to use, process, collect, extract, distribute, display and create derivative works of the Customer Data as contemplated or authorized by this Agreement(including, but not limited to, Section 2.3 (Rights in Customer Data) herein),and (b) that the Customer Data and any use, processing, distribution, display thereof, or creation of derivative works based on such Customer Data, does not infringe the rights of any third party. In connection with Customer’s use of the Product, certain features may permit Customer to interact or share Customer Data with third-party websites or services. If Customer chooses to transmit Customer Data or provide any other information to such third parties, Customer agrees to be bound by any applicable third-party terms of use, and Aumni and its affiliates and Suppliers accept no responsibility or liability for any such third-party services. Customer acknowledges that any links to third-party websites or services contained in the Product or on Aumni’s website are provided as a convenience and for informational purposes only, and do not constitute an endorsement or approval by Aumni of any of the products, services or opinions of such third-party entity, organization or individual. Aumni bears no responsibility for the accuracy, legality or content of any external site or for any subsequent links thereon.
2.3 Rights in Customer Data.
(a) As between the parties, Customer shall retain all right, title and interest (including any and all intellectual property rights) in and to Customer Data provided by Customer to Aumni.
(b) Customer hereby grants to Aumni and its affiliates: (i) a perpetual, non-exclusive, irrevocable, worldwide, sublicensable and royalty-free right to use, reproduce, copy, store, share, distribute, perform, and modify Customer Data and to display such Customer Data(collectively, “Rights”) to the extent necessary: (1) to provide and enhance the Product or any other products or services offered by Aumni or any of its affiliates; and (2) to provide Customer with information on other products and services; and (ii) such Rights over the portion of Customer Data that is commonly available to all investors in a given fund or company financing transaction or to all investors in a given fund or company sufficient to permit sharing of such Customer Data with any other investors in such fund or company.
(c) In addition to the foregoing, Customer hereby grants to Aumni and its affiliates, to the fullest extent permissible under applicable law, the right to use Customer Data to create Derived Works (as defined below) and to use and share such Derived Works for any purpose, and hereby grants to Aumni and its affiliates such Rights as shall be necessary to enable such creation and use.
(d) “Derived Works” means any data, compilations of data, data models, information or any other material that is created from Customer Data, but that is not itself identifiable Customer Data.
(e) Notwithstanding the foregoing, nothing in this Agreement shall constrain or otherwise limit Aumni or its affiliates’ or Suppliers’ use or sharing of Customer Data that is or has become public, or publicly available, or that has been acquired from another source, including by another customer of Aumni, provided that such information or other data shall remain subject to any license grants applicable thereto.
3. OWNERSHIP
3.1 This is a subscription agreement for use of the Product and not an agreement for sale. Customer acknowledges that it is obtaining only a limited right to access or use the Product as provided in the applicable Order Form and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to Customer, its Contractors or any of its affiliates under this Agreement or otherwise, and Customer agrees that Aumni or its affiliates or Suppliers, as applicable, retain all right, title and interest (including, but not limited to, all patent, trademark, copyright, trade secret and other intellectual property rights) in and to: (a) the Product, (b) any documentation related to the Product (“Documentation”), (c) any deliverables related to the Product; and (d) any and all related and underlying software (including, but not limited to, interfaces and APIs), databases (including, but not limited to, data models, structures, de-identified Customer Data and aggregated statistical data contained therein), (e) any Derived Works created in accordance with the terms of this Agreement, and (f) all other technology (collectively(a)-(f), the “Aumni Technology”). Further, Customer acknowledges that Customer has no right to obtain a copy of the Product itself.
3.2 Customer acknowledges that, as between theCustomer and Aumni, all intellectual property rights, including, but not limited to, copyrights, patents, trademarks, and trade secrets, in and to the Product and its content and any other Aumni Technology are owned by Aumni, its affiliates or its Suppliers, as applicable, and Customer hereby assigns any rights in and to any Aumni Technology it may have or obtain to Aumni. Neither this Agreement (nor Customer’s access to the Product) transfers to Customer or any third party any right, title or interest in or to any Aumni Technology, except for the limited access rights set forth in this Agreement.
4. ACCEPTABLE USE POLICY
4.1 Customer hereby agrees to the following terms that constitute Aumni’s “Acceptable Use Policy”:
(a) Customer agrees that it will only use, and cause its Permitted Users to only use, the data and information obtained using the Product in a manner consistent with all applicable laws and regulations. Customer further agrees not to use, allow, cause or permit its Permitted Users to use, the Product to collect, upload, transmit, display, perform, reproduce, or distribute any Customer Data, or use Customer Data or other information collected or received through the Product in any way:(i) that violates any third-party right, including, but not limited to, any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;(ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that discloses the Customer Data to a third party in a manner that is identifiable to either an individual or a portfolio company without their prior express written permission or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
(b) In addition, Customer agrees to not, and not to allow, cause or permit its Permitted Users to: (i) upload, transmit, or distribute to or through the Product any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send through the Product unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise;(iii) use the Product to harvest, collect, gather or assemble information or data regarding other users, including, but not limited to, e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Product, or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Product (or to other computer systems or networks connected to or used together with the Product), whether through password mining or any other means; (vi) harass or interfere with any other user’s use and enjoyment of the Product; (vii) create any derivative works of the Product or any Aumni Technology therein; or (viii) use software or automated agents or scripts to produce multiple accounts on the Product, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Product.
4.2 Aumni reserves the right to investigate and/or take appropriate action against Customer or any of Customer’s Permitted Users in Aumni’s sole discretion if Customer or any of Customer’s Permitted Users violates this Acceptable Use Policy or any other terms of this Agreement or otherwise creates potential liability for Aumni or any other person or entity, or to comply with any applicable legal or regulatory requirement, request or instruction. Such action may include, but shall not be limited to, terminating access to Customer’s (or such Permitted Users’) Account(s) and/or reporting Customer or such Permitted User to law enforcement and/or regulatory authorities.
5. FEES AND PAYMENT
5.1. All fees owing by Customer to Aumni are set forth in the Order Form. Unless otherwise set forth in the Order Form, Aumni may, in its sole discretion, make changes to its pricing structure, including, but not limited to, making changes to fees due to Aumni following the end of the then-current service term; provided, that Aumni will notify Customer in writing of any such changes prior to their effectiveness. If Customer objects to the changes, then Customer may terminate this Agreement effective on expiration of the then-current service term, as applicable. Customer acknowledges that the expiration of any discount, trial or incentive programs to which Customer was previously entitled shall not constitute a fee increase or otherwise require notice thereof.
5.2. Except as expressly set forth in Section7.1 (Limited Warranty) or Section 10.1 (Aumni Indemnification), all fees paid by Customer to Aumni are non-refundable. Aumni’s fees are exclusive of all shipping costs and Customer is required to pay any applicable sales, withholding, or similar taxes or levies, other than taxes based on the income of Aumni.
5.3. Any late payments shall be subject to a service charge equal to 1.5% per month of the amount due or the maximum amount allowed by law, whichever is less.
6. TERM AND TERMINATION
6.1 Term; Aumni Termination. This Agreement is effective as of the Effective Date and will remain effective until the later of: (a) the date of the expiration or termination of the applicable Order Form, or (b) the date on which Customer ceases to make use of or ceases to access any component of the Product. Notwithstanding the foregoing, Aumni shall have the right to terminate this Agreement (and any associated Order Form) at any time and for any reason (including without cause), in writing, with immediate effect. If Aumni terminates this Agreement for convenience, Customer shall be entitled to receive a refund of the portion of the fees paid by Customer for services not provided to Customer during the remainder of its then-current service term.
6.2 Termination for Cause. Customer may terminate this Agreement and any associated Order Form (a) if Aumni (i) fails to cure any material breach of this Agreement or any associated Order Form within 10 days after written notice of such breach; (ii) ceases operation without a successor; or (iii) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition, or comparable proceeding, or if any such proceeding is instituted against Aumni (and not dismissed within 60 days thereafter), or (b) as otherwise provided in Section12.7 (Amendments; Waivers) below.
6.3 Effect of Termination. Upon any termination of this Agreement and any associated Order Form, Customer shall immediately cease any and all use of and access to the Product (including, but not limited to, any and all related Aumni Technology) and delete (or, at Aumni’s request, return) any and all copies of the Documentation, any Aumni passwords or access codes and any other Aumni Confidential Information in its possession. Customer acknowledges that following termination it shall have no further access to any Customer Data input into the Product, and that Aumni may delete any such data at any time. Termination of this Agreement and any associated Order Form is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.4 Survival. All provisions of this Agreement enforceable by Aumni following termination hereof shall survive termination of this Agreement, including, but not limited to: Section 1.4 (General Restrictions), Section 1.5 (Investment and Legal Advice) Section 1.6 (Export),Section 2 (Customer Data), Section 3 (Ownership), Section 5 (Fees and Payment),Section 6 (Term and Termination), Section 7.2 (Warranty Disclaimer), Section9 (Limitation of Remedies and Damages), Section 10 (Indemnification), Section11 (Confidential Information), and Section 12 (General Terms).
7. LIMITED WARRANTY
7.1 Limited Warranty. Aumni warrants, for Customer’s benefit only, that the Product will operate in substantial conformity with all applicable product descriptions provided (or made available) to Customer in writing. Notwithstanding the foregoing, Aumni does not warrant that Customer’s use of the Product will be uninterrupted or error-free, nor does Aumni warrant that it will review Customer Data for accuracy, or that it will preserve or maintain Customer Data without loss. Aumni’s sole liability (and Customer’s sole and exclusive remedy) for any breach of this warranty shall be, in Aumni’s sole discretion and at no charge to Customer, to use commercially reasonable efforts to provide Customer with an error correction or work-around that corrects the reported non-conformity, or if Aumni determines such remedies to be impracticable, to allow Customer to terminate the applicable service term and receive as its sole remedy a refund of any fees Customer has pre-paid for use of the Product or related services it has not received as of the date of the warranty claim. The limited warranty set forth in this Section 7.1 shall not apply: (a) unless Customer makes a claim within 30 days of the date on which the condition giving rise to the claim first appeared; (b) if the error was caused by misuse, unauthorized modifications or third-party hardware, software or services; or (c) to use provided on a no-charge or evaluation basis.
7.2 Warranty Disclaimer. EXCEPT FOR THE LIMITED WARRANTY IN SECTION 7.1 (LIMITED WARRANTY) ABOVE, THE PRODUCT, HOSTED SERVICES AND ALL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. NEITHER AUMNI NOR ANYOF ITS SUPPLIERS OR AFFILIATES MAKES ANY OTHER WARRANTIES, EXPRESS OR IMPLIED,STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT.NEITHER AUMNI NOR ANY OF ITS SUPPLIERS OR AFFILIATES SHALL BE LIABLE FOR DELAYS,INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OF THE REASONABLE CONTROL OF AUMNI. NEITHER AUMNI NOR ANY OF ITS SUPPLIERS OR AFFILIATES IS A LAW FIRM AND NO LEGAL, TAX, INSURANCE OR INVESTMENT ADVICE IS BEING PROVIDED THROUGH USE OF THE PRODUCT OR ANY RELATED AUMNI SERVICES.
8. PRODUCT SUPPORT
Aumni shall provide email support to Customer from 9AM to 5PM Mountain Standard Time, Monday through to Friday, on business days in Salt Lake City, Utah. Aumni shall use commercially reasonable efforts to respond to support requests within one business day and shall address (internally and externally) such support requests in a commercially reasonable manner. Support shall include, without limitation, troubleshooting system functionality, providing guidance on usage and workflow, and identifying and escalating issues which Aumni prioritizes, in its sole and absolute discretion, based on severity, scope and impact. Aumni may offer personalized training, implementation, and adoption programs at an additional cost. Aumni shall have no obligation to provide any custom code development, API scripting, or contractual engineering services for Customer. Subject to any limitations set forth in this Agreement, Aumni shall use commercially reasonable efforts to ensure that the Product is available for use and access at least ninety-nine and nine tenths percent (99.9%) of the time each calendar month, except in the case of scheduled maintenance for which Aumni will use reasonable efforts to provide advance notification to Customer.
9. LIMITATION OF REMEDIES AND DAMAGES
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,NEITHER PARTY, NOR ANY OF THEIR RESPECTIVE AFFILIATES, SHALL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL,INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT TO THE CONTRARY, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN RESPECT OF ANY CLAIM OTHER THAN ONE DETERMINED BY A COURT OF COMPETENT JURISDICTION BY FINAL AND NON-APPEALABLE JUDGMENT TO HAVE PRIMARILY RESULTED FROM THE GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BAD FAITH OF AUMNI, AUMNI’SAND ITS AFFILIATES’ AND ITS SUPPLIERS’ ENTIRE LIABILITY TO CUSTOMER SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER TO AUMNI DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY UNDER THIS AGREEMENT AND, WITH RESPECT TO ANY FREE TRIAL OF ANY PRODUCTS OR SERVICES, AUMNI’S AND ITS AFFILIATES’ AND ITS SUPPLIERS’ AGGREGATE LIABILITY WILL IN NO EVENT EXCEED ONE HUNDRED U.S. DOLLARS, REGARDLESS OF ANY THEORY OF LIABILITY, AND NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY.
9.3 The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed its essential purpose.
10. INDEMNIFICATION
10.1 Aumni Indemnification. Aumni shall indemnify and hold harmless Customer and Customer’s affiliates, officers, directors, employees, and agents (collectively, “Customer Indemnified Parties”) from and against all costs, damages awarded or agreed to in settlement, losses, liabilities and expenses (including any attorneys’ fees and costs that have been finally awarded by a court of competent jurisdiction)arising out of any third-party claims or causes of action in connection with breach by Aumni of any terms of this Agreement or the DPA, provided that Aumni shall have received from Customer: (a) prompt written notice of such claim (but in any event notice in sufficient time for Aumni to respond without prejudice);(b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonably necessary cooperation of the applicable Customer Indemnified Party. If Customer’s use of the Product is, or in Aumni’s opinion is likely to be, enjoined due to a claim of infringement, or if required by settlement, Aumni may, in its sole discretion: (i) substitute substantially functionally similar products or services; (ii) procure for Customer the right to continue using the Product; or if (i) and (ii) are commercially impracticable, (iii) terminate the Agreement and refund to Customer the fees paid by Customer for any unused portion of the Contract Term which was paid for by Customer. The foregoing indemnification obligations of Aumni shall not apply: (1) if the Product, or any portion thereof, is modified by any party other than Aumni, but solely to the extent the alleged breach is caused by such modification; (2) if the Product, or any portion thereof, is combined with other products or processes not authorized by Aumni, but solely to the extent the alleged breach is caused by such combination; (3) to any unauthorized or unlicensed use of the Product or any portion thereof; (4) if Customer continues to use the Product following a notification by Aumni of an allegedly infringing use or combination by Customer; or (5) to any action arising as a result of Customer Data or any third-party deliverables or components contained within the Product. The fore going indemnity shall not, as to Customer or any other Customer Indemnified Party, be available to the extent that such amounts are determined by a court of competent jurisdiction by final and non-appealable judgment to have primarily resulted from the gross negligence, willful misconduct or bad faith of such Customer Indemnified Party. THIS SECTION 10.1 SETS FORTH AUMNI’S ANDITS AFFILIATES’ AND SUPPLIERS’ SOLE LIABILITY TO CUSTOMER’ AND THE OTHER CUSTOMER INDEMNIFIED PARTIES AND CONSTITUTES CUSTOMER’S AND THE OTHER CUSTOMER INDEMNIFIED PARTIES’ SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF A BREACH OF THIS AGREEMENT AND/OR ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
10.2 Customer Indemnification. Customer shall indemnify and hold harmless Aumni, Aumni’s affiliates and its and their licensors, officers, directors, employees, and agents (collectively, “Aumni Indemnified Parties”) from and against all third-party claims, causes of action, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) any action taken (or not taken) by Customer based upon use of the Product; (b) any Customer Data;(c) any service or product offered by Customer in connection with or related to the Product; (d) violation by Customer of Customer’s representations and warranties in this Agreement; or (e) breach by Customer of any terms of this Agreement including the DPA. The foregoing indemnity shall not, as to Aumni or any other Aumni Indemnified Party be available to the extent that such amounts are determined by a court of competent jurisdiction by final and non-appealable judgment to have primarily resulted from the gross negligence, willful misconduct or bad faith of such Aumni Indemnified Party.
11. CONFIDENTIAL INFORMATION
11.1 Each party agrees that all Confidential Information such party (the “Receiving Party”) obtains from the other party (the “Disclosing Party”) constitutes the confidential property of the Disclosing Party, provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Aumni Technology, performance information relating to the Product, and the terms and conditions of this Agreement shall be deemed Confidential Information of Aumni without any marking or further designation. For the avoidance of doubt, Aumni Technology is not and shall not be deemed to be Confidential Information of Customer, and all Customer Data shall be deemed Confidential Information of Customer without any marking or further designation; provided that the use and ownership of such Customer Data shall be subject to the terms of Section 2 (Customer Data) above. “Confidential Information” shall mean any information, technical data, know-how, and any other information which derives independent economic value from not being generally known to, or ascertainable through proper means by, the public, including any customer lists, business forecasts, pricing information, sales and merchandising information, proprietary information, know-how, inventions, patent applications and trade secrets.
11.2 Except as expressly authorized herein (including pursuant to Section 2 (Customer Data) above), the Receiving Party will hold in confidence and not use or disclose any such Confidential Information.
11.3 The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (a) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (b) is or has become public knowledge through no fault of the Receiving Party; (c) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation to the Disclosing Party or its representatives; or (d) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. In the event of any conflict between the terms of this Section 11 and the confidentiality terms contained in any other agreements between the parties, the terms of this Section 11 shall prevail.
11.4 Nothing in this Agreement shall prohibit Aumni from(a) disclosing or using Customer Data in connection with any suit, action or proceeding for the purpose of defending itself, reducing its liability or protecting or exercising any of its rights, remedies or interests, or(b) disclosing information which is required to be disclosed by Aumni or its affiliates under compulsion of law (whether by oral question, interrogatory, subpoena, civil investigative demand or otherwise) or by order of any court or at the request of any governmental or regulatory body to whose supervisory authority Aumni or any of its affiliates is subject, or to Aumni’s independent auditors or accountants. For avoidance of doubt, nothing in this Agreement shall prohibit any party from disclosing or providing any information to any governmental, regulatory, or self-regulatory organization, voluntarily or otherwise.
12. GENERAL TERMS
12.1 Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors and assigns. Neither party may assign this Agreement except upon the advance written consent of the other party, except that either party may assign this Agreement in connection with a merger, reorganization(including internal reorganization), acquisition or other transfer of all or substantially all of such party’s assets or voting securities. Any attempt to transfer or assign this Agreement except as expressly authorized under this Section 12.1 will be null and void. Notwithstanding the above, Aumni may subcontract its obligations hereunder from time to time in its discretion.
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue. This Agreement and all claims, disputes or causes of action (whether sounding in tort, contract, or statute) that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution or performance thereof, shall be governed by, and enforced in accordance with, the internal laws of the State of New York and the United States without regard to conflicts of laws provisions thereof. Each party agrees that any action, suit or proceeding that may be based upon, arise out of, or relate to this Agreement, or the negotiation, execution or performance thereof, shall be brought in the United States District Court for the Southern District of New York, or, if such suit, action or proceeding may not be brought there, in the Supreme Court of the State of New York, NewYork County. Each party irrevocably and unconditionally waives any objection to the laying of venue of any such action, suit or proceeding in the United States District Court for the Southern District of New York, or the Supreme Court of the State of New York, New York County, as applicable, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in any such court that any such action, suit or proceeding has been brought in an inconvenient forum.
12.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.5 Notice. Subject to Sections 12.6 (Consent to E-Delivery) and 12.7(Amendments; Waivers) below, any notice or communication required or permitted under this Agreement shall be in writing to the parties at their respective email addresses, addresses of record (as listed in the applicable Order Form)or at such other address as may be given in writing by either party to the other party in accordance with this Section 12.5 and shall be deemed to have been received by the addressee: (a) if given by hand, immediately upon receipt;(b) if given by overnight courier service, the first business day following dispatch (c) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail; or (d) if given by email, immediately upon delivery to the recipient’s server.
12.6 Consent to E-Delivery. Notwithstanding anything herein to the contrary, Customer hereby consents to electronic delivery of any required or optional communication or document related to this Agreement or provision of the Product. Communications shall be deemed delivered to Customer when sent or provided, regardless of whether Customer actually access or review them. If signature or acknowledgment is required or requested with respect to any such document, and Customer or any Permitted User “clicks” in an appropriate space, or takes such other action as may be indicated, Customer will be deemed to have signed or acknowledged the document to the same extent and with the same effect (i.e., legally binding) as if Customer had signed the document manually. If Customer signs electronically, Customer represents that it has the ability to access and retain a record of the relevant documents.
12.7 Amendments; Waivers.
12.7.1 Except as otherwise set forth in the Order Form, and subject to the amendment process set out under Sections 12.7.2and 12.7.3, no supplement, modification, or amendment of this Agreement(including, but not limited to, any terms received through unsolicited electronic communication, click-wrap or click-through terms, or other terms and conditions received by Aumni from a Customer that have not been executed in writing by a duly authorized representative of Aumni) shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Customer will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.7.2 Notwithstanding Section 12.7.1, Aumni may supplement, modify or amend this Agreement or the DPA by providing not less than thirty (30) days’ written notice of such supplement, modification or amendment to the Customer via email (the “Amendment Notice”) and such supplement, modification, or amendment described in such Amendment Notice(the “Amendment”) shall automatically take effect and become binding on the parties upon the date indicated in such Amendment Notice (the “Amendment Effective Date”), unless the Customer exercises its termination rights in accordance with Sections 12.7.3 and 12.7.4.
12.7.3 Upon service of the Amendment Notice on Customer and, provided that the Amendment does not constitute a minor update, including, but not limited to correction of errors, Customer shall been titled to notify Aumni of its determination to terminate this Agreement by providing written notice of termination (a “Termination Notice”), via email to Aumni according to instructions to be contained in the Amendment Notice at least fourteen (14) days prior to the Amendment Effective Date. If Customer provides a Termination Notice in accordance with this Section 12.7.3, this Agreement shall, subject to Section 12.7.4, terminate on the date immediately preceding the Amendment Effective Date and Customer shall been titled to receive a refund of the fees paid by Customer for the portion of the Contract Term which was not rendered by Aumni to Customer. If Customer does not exercise its right to terminate under this Section 12.7.3, Customer’s continued use of the Product after the Amendment Effective Date shall constitute Customer’s acceptance of the Amendment terms.
12.7.4 If Customer provides Aumni with a Termination Notice pursuant to Section 12.7.3, Aumni shall have the option to notify Customer by email of its determination to revoke the Amendment Notice with respect to Customer, following delivery of which notice of revocation Customer shall have no further right to terminate under Section 12.7.3 and this Agreement shall not be supplemented, modified, or amended with respect to Customer, but will continue in full force and effect as though no Amendment Notice shall have been provided by Aumni to Customer.
12.8 Third-Party Beneficiaries. Except as expressly set forth in this Agreement, no provisions of this Agreement are intended, nor will they be interpreted, to provide for or create any third-party beneficiary rights or any other rights of any kind in any other party. Affiliates and Suppliers of Aumni shall be deemed third-party beneficiaries to this Agreement, unless Aumni determines otherwise in its sole discretion.
12.9 Feedback. If Customer provides Aumni with any feedback or suggestions regarding the Product (“Feedback”), Customer hereby irrevocably assigns to Aumni all rights in such Feedback and agrees that Aumni shall have the right to use and fully exploit such Feedback and related information in any manner Aumni deems appropriate. Aumni will treat any Feedback provided by Customer as non-confidential and non-proprietary.
12.10 Publicity; References. Customer hereby grants Aumni and its affiliates the right to use Customer’s logo in order to refer to Customer (including, but not limited to, on its website and in its related marketing materials and communications); provided that Aumni complies with any written trademark usage requirements that have been previously provided to Aumni by Customer. Upon prior written notice to Customer, Aumni and its affiliates may issue a press release announcing the relationship between Aumni and Customer. Customer may not (a) use the name, trademark or proprietary indicia of JPMorgan Chase & Co. (“JPMorgan”), or any subsidiary or Affiliate thereof (including Aumni), or branded service or offering (including the Product), as a reference, without the prior written consent of Aumni, such consent to be granted or withheld in the sole and absolute discretion of Aumni; or (b) represent (directly or indirectly) that any product or any service has been approved or endorsed by Aumni or JPMorgan.
12.11 Entire Agreement. This Agreement, together with the Order Form and the DPA, is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Customer acknowledges that the Product is an on-line, subscription-based product, and that Aumni may make changes to the Product. All exhibits to this Agreement, if any, are a part of this Agreement.
12.12 Force Majeure. Neither party, nor any of its respective affiliates, shall be liable for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur after the signing of this Agreement and which are beyond the reasonable control of such person, such as a strike, blockade, war, act of terrorism, riot, pandemics, quarantines, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
12.13 Independent Contractors. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
12.14 Counterparts; Electronic Execution. This Agreement may be executed in any number of counterparts which, when so executed, shall constitute an original and all of which together will constitute one and the same instrument. A signed copy of this Agreement delivered by email or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
12.15 Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
