Enterprise
Terms And Conditions
These terms and conditions are a part of and are incorporated into those certain Master Agreements (each, the “Enterprise MA”) that reference these provisions. These terms and conditions, together with the Enterprise MA, the Privacy Policy, and any other agreements entered into by the parties from time to time (collectively, the “Agreement”), governs the terms and conditions under which Finalis provides services to the Client and each User. Capitalized terms used herein shall have the meaning ascribed to them in Section 17, and any terms without definition shall have the meanings ascribed to them in the Enterprise MA. Finalis may update these Terms and Conditions in its sole discretion with no prior notice or consent (unless required by law).
1. Finalis Platform
During the Term and subject to User’s compliance with this Agreement, Finalis® (“Finalis” is a registered trademark of Finalis, Inc.) may make available to User a revocable, limited, non-exclusive, non-transferable and non-sublicensable Account to access and/or use all or a part of the Platform solely pursuant to this Agreement. To use the Platform you must have your own Account, be logged into your Account on the Platform and have a valid payment method associated with your Account. The Platform may require an internet connection from a third-party provider for which Finalis is not responsible or liable; in such cases, your internet connection is subject to the fees, restrictions, terms and limitations imposed by your provider. All or part of the Platform may be unavailable, vary (by product and/or geography, for example), be offered for a limited time, or require separate subscriptions. You acknowledge and agree that Finalis may update the Platform from time to time at its discretion and that such updates may result in changes to its functionality or “look and feel.” Notwithstanding anything to the contrary herein, the availability of, access to and use by a User of the Platform is subject to Finalis’ prior review and written approval and may be suspended or terminated by Finalis in its discretion at any time without notice and such action shall not be deemed a breach hereof and Finalis is not responsible or liable therefor. Unless otherwise agreed to in writing by Finalis, (a) access to the Platform is purchased as a subscription with the number of authorized Users agreed to by Finalis in writing, (b) only the agreed number of Users shall be provisioned by User, and (c) each User is one Person and credentials for each of their Accounts may not be shared. Finalis attempts to be as accurate as possible, but Finalis does not warrant that descriptions or other content of the Platform is accurate, reliable, current or error-free. If the Platform is not as described, your sole remedy is to not use it. Each User is responsible for maintaining the confidentiality of their Account and credentials for restricting access to their Account, and User accepts responsibility for all activities that occur under their Account. If User believes that their Account is not secure, User agrees to notify us promptly in writing. Finalis will determine in its discretion the method, details and information in and means of performing and making available the Platform. Finalis may use Finalis Affiliated Persons to provide the Platform, and Finalis reserves the right to engage and substitute Finalis Affiliated Persons as it deems to provide the Platform. User shall promptly provide Finalis in writing with sufficient information in Finalis’ discretion to provide the Platform. User agrees to use the Platform, including to conduct Transactions and provide Transaction Services. Finalis reserves the right to, at any time, modify User access to the Platform that are in Beta Service, demonstration, free of charge, free trial and/or view only modalities without notice. With Finalis’ written consent, which consent may be revoked at any time, User may permit one or more User Affiliated Persons to access and use the Platform as Authorized User as contemplated hereby, provided that User in advance submits to Finalis in writing the information required by Finalis of each Person that User wishes to add as an Authorized User for Finalis’ consideration and denial or approval. Each User shall abide by the confidentiality requirements hereof and shall not allow other Persons to use the Platform without the prior written consent of Finalis, which consent shall not be withheld, conditioned or delayed. Reselling or leasing of Accounts or access to or use of the Platform is forbidden. Nothing herein shall prohibit Finalis from providing access to or use of the Platform to any Person.
2. Independent Contractor Relationship
Finalis shall perform its obligations hereunder as an independent contractor of User, and User shall be deemed an independent contractor of Finalis and nothing hereunder or thereunder shall create an employer/employee relationship. User shall not have a claim against Finalis for employee benefits, and User shall be responsible for its benefits, taxes, insurance and social security payments. No Party may bind the other or make representations, warranties or agreements on their behalf. Notwithstanding anything to the contrary herein or other agreement with Finalis, (a) Finalis is not involved in the negotiation or closing of a transaction sourced, circulated, evaluated or transacted through the Platform, (b) no confidentiality obligation or agreement between the User and their client or prospective client shall apply to a Finalis Affiliated Person, (c) User authorizes Finalis Affiliated Persons to communicate with any of the Principals of User’s OBA, in its sole discretion, and agrees that they may do so to include with Principals that manage User’s OBA, and (d) Finalis Affiliated Persons may communicate with Client’s designated contacts and customers to perform the Services and consistent with Client’s written supervisory procedures and prior consent except as required by law. Finalis is not acting as an agent or fiduciary of User or any other Person, and User waives any claim of such relationship. User agrees that it is relying on its own advisors and that Finalis Affiliated Persons are not undertaking to provide, do not provide and will not provide any legal, investment, accounting, insurance, tax or other advice, and are not assuming any responsibility for User’s or other Person’s decisions with respect to a Transaction or Letter Agreement. User is solely responsible for ensuring that Transactions comply with Applicable Law. Finalis Affiliated Persons may request information from User prior to acting with respect to any matter and may defer action thereon pending receipt thereof. Actions taken by Finalis Affiliated Persons in accordance therewith, or their failure to act pending the receipt of such information, shall be deemed to be proper conduct and not a breach hereof.
3. Intellectual Property
All ownership and right, title and interest to the Platform, the Confidential Information and all intellectual property rights in, arising out of or in connection with this Agreement (other than intellectual property rights in any materials expressly provided by User to Finalis or those of third-parties used by Finalis under license, which shall remain, as applicable, the property of such User or third parties except as set forth herein or to enable Finalis to exercise the rights granted to it hereunder) shall be owned by Finalis, Inc. and is protected by Applicable Law, including U.S. and international intellectual property laws. The look and feel of the Platform is copyright © of Finalis, Inc. d/b/a Finalis, all rights reserved. Users and User Affiliated Persons may use the Platform solely pursuant to this Agreement. We may manually or automatically update the Platform at any time and without notice. User, on behalf of itself, its OBAs and User Affiliated Persons, grants Finalis a non-exclusive, royalty-free, perpetual, irrevocable, worldwide and fully sublicensable license to ingest, retain, copy and modify any User Data and User-Generated Content provided through the Platform or to any Finalis Affiliated Person. Finalis may create and retain aggregated or anonymized data that does not identify any User or individual, which Finalis may use for analytics or product improvement. Finalis shall have the right to retain User Data and User-Generated Content as required by Applicable Law or Finalis’ retention practice or policies. If you provide, submit, send or post to the Platform or Finalis Affiliated Persons any content, review, comment, photo, video, feedback, idea, communication or other information, you grant us a non-exclusive, royalty-free, perpetual, irrevocable, worldwide and fully sublicensable right to use, reproduce, modify, adapt, publish, perform, translate, create derivative works therefrom, and distribute and display such content globally in any media and medium. User and User Affiliated Persons will not sub-license, assign or otherwise transfer our rights hereunder. User and User Affiliated Persons shall not, during the term hereof and indefinitely thereafter, directly or indirectly, create any application, artificial intelligence, content, document, event, feature, form, functionality, information, interface, model, product, program, service, support, system, template, tool, workflow or website that is, in whole or in part, identical, similar to, or in competition with all or any part of the Platform or other product or service of Finalis. If you are a U.S. Government end user, we are licensing the Platform to you as a “Commercial Item” as defined in the U.S. Code of Federal Regulations.
4. Data
The Platform may provide us with information about your use of the Platform and other content. User unconditionally grants Finalis Affiliated Persons a non-exclusive, irrevocable, perpetual, worldwide, royalty free and sublicensable license to (i) use, collect, copy, modify, create, incorporate, process, distribute, share, maintain and store User-Generated Content and User Data, (ii) use, copy, modify or incorporate into the Platform any suggestions, enhancement requests, recommendations and other feedback provided by User or a User Affiliated Person relating to the Platform or its operation and (iii) use, host, store, reproduce, modify, adapt, transmit, communicate, publish, publicly perform, publicly display, distribute, and create derivative works of User Data and User-Generated Content without attribution. We may also share User Data and User-Generated Content with our Vendors and partners that assist us in providing and improving the Platform, provided that such sharing is in compliance with our Privacy Policy. Manufacturers of the Platform may also provide us with similar information. The Platform and information provided to us may be processed in the cloud and may be stored on servers outside the country in which you reside or are located. User and User Affiliated Persons are solely responsible for all User Data and User-Generated Content, and for ensuring that User and User Affiliated Persons have obtained all consents and made all disclosures in connection with the foregoing grant, and User and User Affiliated Persons (and not Finalis) shall have the sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all User Data and User-Generated Content. User agrees that User Data and User-Generated Content may be accessed, transferred or processed inside and outside the U.S. Territory, including if User, User Affiliated Persons or Finalis Affiliated Persons access or transfer User Data and User-Generated Content while inside or outside the U.S. Territory. You agree that you are solely responsible for compliance with Applicable Law that applies to User Data and User-Generated Content and you will indemnify, hold harmless, pay and reimburse Finalis Affiliated Persons per the indemnification terms hereof for all Losses from and against any Claim from, arising out of or relating to your User Data and User-Generated Content. You agree that jurisdictions outside of the U.S. Territory may not provide the same privacy protection to User-Generated Content and User Data as U.S. Territory Applicable Laws. You may post content, send communications and submit information on and through the Platform if the foregoing is not illegal, obscene, threatening, defamatory, invasive of privacy, infringing of the rights of other Persons (including intellectual and property rights), or otherwise injurious or objectionable, and if it does not consist of or contain software viruses, political campaigning, chain letters, commercial solicitation, mass mailings or any “spam.” You may not use a false email address, impersonate any Person or otherwise mislead as to the origin of User Data or User-Generated Content. We reserve the right, but not the obligation, to remove or edit any content on the Platform, but do not regularly review such content. Finalis may use User Data and User-Generated Content to conduct research, create reports and perform analyses and compile, use and disclose anonymous, aggregated statistics, provided that such use is in compliance with our Privacy Policy. We reserve the right to access, read, preserve, and disclose information to the extent necessary to: (a) satisfy Applicable Law, legal process or Authority request; (b) enforce this Agreement, including without limitation, investigating potential violations; (c) detect, prevent, or otherwise address fraud, security and technical issues; (d) respond to User requests; or (e) protect the rights, property or safety of Finalis, our Accounts, Platform users and the public.
5. Acceptable Use
The Platform is offered only for your use and not for the use or benefit of any third-party unless otherwise agreed in writing by Finalis. We may, in our sole discretion, refuse to offer the Platform to any Person and to change our eligibility criteria at any time. You are responsible for ensuring that your activities on the Platform comply with this Agreement and Applicable Law. Your right to access the Platform will be immediately revoked: (i) if this Agreement, or your use of the Platform, is prohibited by Applicable Law; (ii) you breach this Agreement; (iii) if anything under or in connection herewith conflicts with Applicable Law; or (iv) as otherwise contemplated herein. In addition to all our other rights and remedies herein and under Applicable Law, any Account or Person determined by Finalis to be in breach hereof shall be liable to us pursuant to the indemnification terms herein for all our Losses relating to such breach. If you do not agree hereto, you are not authorized to access the Platform or use any of the Platform and your use of the Platform shall constitute a breach hereof. In order to create an Account or be a user of the Platform, you represent and warrant that you are at least 18 years of age and, if not, you are not permitted to access or use the Platform. At all times you must provide accurate and complete information and keep your information on the Platform current. You are solely responsible for the activity that occurs through your Account and for keeping your credentials secure. You may never use another Person’s Account or registration information to access the Platform. You must notify us of any change in your eligibility to use the Platform, (including any corporate change and changes to or revocation of any licenses required by any Authority), and any breach of security or unauthorized use of your Account. No Account may be shared with any Person other than the Finalis-authorized User. You agree not to: (a) provide false information about a User or Person; (b) misrepresent your relationship with other users or a Transaction; (c) provide false or misleading information to Finalis or any Platform user; or (d) engage in fraudulent activity of any kind. If we permit you to provide information on or through the Platform, you may not (and may not permit any third party) to input information or content that: (a) is false, misleading, untruthful or inaccurate; (b) is promotional in nature, including solicitations for funds or services; (c) constitutes junk mail, spam, chain letters, pyramid schemes or the like; (d) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, deceptive, fraudulent, invasive of privacy, offensive, profane, hateful or is racially (ethnically or otherwise) objectionable as determined by us in our sole discretion, or otherwise violates the rights of others; (e) you do not have the right to make available under Applicable Law or pursuant to any contractual or fiduciary obligation (such as ‘inside information’, proprietary or confidential information learned or disclosed pursuant to an employment or consulting relationship, or subject to an NDA); (f) infringes a patent, trademark, trade secret, copyright, right of publicity or other proprietary rights of any Person or violates any law or contractual duty; (g) impersonates any Person, including a Finalis Affilated Person; or contains software viruses or any other computer code, files, or programs designed to interrupt, destroy, gain access to or limit the functionality of any software, hardware or equipment. Neither User nor their OBAs nor User Affiliated Persons may, directly or indirectly, including by means of third parties, in whole or in part, (a) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source, source code, object codes, sequences, instructions, algorithms, underlying ideas of any part of the Platform (even if any such actions are found to be necessary or convenient to ensure Platform use), (b) remove, circumvent, tamper with, bypass or attempt to bypass any measures for the protection of the Platform or to prevent or restrict access to the Platform (or the accounts, systems or networks connected to the Platform), (c) dissemble, decompile, duplicate, copy, incorporate into other programs, compile, modify, create derivative works of, distribute, reproduce, reverse engineer, transform, adapt, improve, create successive versions, develop updates, adapt, assign any rights to, license or reuse all or any portion of the Platform, or visual designs, elements or concepts thereof (or correct any of their errors) without Finalis’ prior written consent, which consent shall not be withheld, conditioned or delayed, (d) take actions that impose or may impose (as determined by us) an unreasonable or large load or burden on our (or our third-party providers’) infrastructure; (e) interfere or attempt to interfere with the working of the Platform or any activities conducted on the Platform; (f) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Finalis Website; (g) harvest or scrape any content from the Platform; (h) modify, translate, or otherwise create derivative works of any part of the Platform; (i) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder; or (j) otherwise take any action in violation of this Agreement.
6. Termination
Without affecting any other right or remedy available to it, either party may terminate this Agreement, for any reason or no reason, by giving the other party three months’ prior written notice, unless otherwise agreed by the parties in writing; provided, that, any and all fees and expenses due to Finalis hereunder shall be paid by Client through to the effective termination date of this Agreement.
Without affecting any other right or remedy available to it, either party may terminate this Contract with immediate effect by giving written notice to the other party if: (a) the other party commits a material breach of any Agreement term and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing to do so; (b) Finalis may terminate this Agreement immediately for (i) Client’s or a Registered Representative’s fraud or violation of any representation or covenant herein, (ii) violation by Client or a Registered Representative of any written procedures (including the WSPs), FINRA rules, regulations or law or (iii) the suspension or termination of applicable licenses for Client to operate as a broker-dealer; (c) the other party takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of court, unless for the purpose of a solvent restructuring), having a receiver appointed with respect to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction; (d) the other party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business; (e) the other party’s business or a part of its business is suspended by a court of competent jurisdiction or any governmental or regulatory authority; (f) Client or a Registered Representative provides, or allows any other person to provide, Finalis and/or any Outsourced Person with false or misleading information to such an extent that Finalis and/or an Outsourced Person are put at risk of claims, losses, or regulatory actions by any competent authority.
Without affecting any other right or remedy available to it, Finalis may terminate this Agreement with immediate effect by giving written notice to Client if: Client fails to pay any amount due hereunder on the due date for payment; or there is a change of control of Client. Without affecting any other right or remedy available to it, Finalis may suspend the supply of Services hereunder or any other contract between Client and Finalis if Client fails to pay any amount due hereunder on the due date.
Any termination of this Agreement shall not affect compensation for Services properly performed prior to the effective date of termination. Client shall remain obligated to pay (i) all undisputed fees and expenses incurred through the effective date of termination, (ii) fees payable during any applicable notice period, and (iii) reasonable wind-down and transition costs incurred by Finalis. Prepaid fees, if any, are non-refundable. Except as expressly set forth herein, no acceleration of future fees shall apply upon termination.
Termination or expiry of the Contract shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
7. Non-Solicitation. Non-Circumvention
Neither User nor User Affiliated Persons shall, during the Term and for a period of 24 months immediately following the termination of this Agreement for any reason (as if the termination of this Agreement had not occurred), whether with or without cause, either directly or indirectly, solicit, induce, recruit or encourage any of the Outsourced Persons or Finalis’ affiliates, directors, employees, agents, customers, clients or consultants to terminate their relationship with Finalis, either for User or for any other person or entity. Further, during the Term of this Agreement and at any time following the termination for any reason, whether with or without cause, User shall not use any Confidential Information of Finalis to influence any of Finalis’s clients or customers not to work with Finalis or not purchase products or services from Finalis.
During the Term and for a period of 18 months thereafter, neither User nor User Affiliate Persons shall, directly or indirectly, use information, contacts or introductions garnered through Finalis, other representatives, persons or prospective clients or users engaged by or affiliated or in a contractual agreement with Finalis and/or through the Platform to initiate or conduct discussions, provide financial advisory or investment banking services or consummate a transaction. User acknowledges and agrees that any Letter Agreement entered into by User that contravene this Section are null and void.
8. Confidentiality
Client acknowledges and agrees to the Confidentiality Terms, which provisions shall apply to this Agreement and such Client and shall survive the termination of this Agreement. The Confidentiality Terms shall govern and supersede any NDA to which Client is a party. Finalis shall not be liable to any Persons for violation by User or a User Affiliated Person of such confidentiality obligations, and Client agrees to indemnify Finalis in accordance with the indemnification terms herein for any violation thereof.
9. Indemnification of Finalis
In addition to any rights or remedies available to Finalis under Applicable Law, User, on behalf of itself, its OBAs (if applicable), and each of its User Affiliated Persons, agrees to indemnify, defend, hold harmless, and reimburse Finalis, its Affiliates, and all Outsourced Persons (collectively, the “Finalis Indemnified Parties”), on a joint and several basis, from and against any and all Losses, as incurred, arising out of or relating to: (a) this Agreement, the Services, the Platform, or any use thereof by User, an OBA, or any User Affiliated Person; (b) any Transaction, Letter Agreement, engagement, communication, or activity conducted by or on behalf of User, an OBA, or a User Affiliated Person, whether before, during, or after the Term; (c) any actual or alleged breach of this Agreement or any other agreement entered into by User, an OBA, or a User Affiliated Person in connection with the Services or a Transaction; (d) any act, omission, negligence, misconduct, or default of User, an OBA, a User Affiliated Person, or any Person acting on their behalf; (e) any violation or alleged violation of Applicable Law, including securities laws, FINRA rules, or regulatory requirements, by User, an OBA, or a User Affiliated Person; (f) any regulatory examination, inquiry, investigation, deficiency letter, enforcement action, settlement, fine, penalty, remediation requirement, or undertaking imposed by any Authority in connection with (i) User, an OBA, or a User Affiliated Person, or (ii) the Services, Platform, or Transactions performed for or in connection with User; (g) any claim, demand, action, or proceeding by any current, former, or prospective client, counterparty, investor, issuer, broker-dealer, employer, regulator, or other third party relating to the activities of User, an OBA, or a User Affiliated Person; (h) any allegation that Finalis or an Outsourced Person acted as a supervisor, principal, broker-dealer, fiduciary, or regulated entity by virtue of performing the Services or providing access to the Platform; (i) any breach or compromise of security, unauthorized access to an Account, misuse of credentials, or improper disclosure of Confidential Information caused by or attributable to User, an OBA, or a User Affiliated Person; or (j) any use of third-party software, systems, data, or platforms by User, an OBA, or a User Affiliated Person in connection with the Services or the Platform.
10. Indemnification of User
Finalis shall indemnify and hold harmless User and its officers and directors (collectively, the “User Indemnified Parties”) from and against Losses incurred solely to the extent arising from (i) Finalis’s fraud or willful misconduct, or (ii) Finalis’s material breach of this Agreement, in each case as finally determined by a court of competent jurisdiction by a non-appealable judgment. In no event shall Finalis’s aggregate indemnification liability under this Section exceed the fees actually paid by User to Finalis under this Agreement during the twelve (12) months preceding the event giving rise to the Claim.
11. Indemnification Procedure
The indemnifying party hereunder may not settle a Claim without the indemnified party’s written consent unless such settlement: (a) includes a release of all covered Claims pending against the indemnified party; (b) contains no admission of liability or wrongdoing by the indemnified party; and (c) imposes no obligations upon the indemnified party other than an obligation to stop infringing activities or using infringing items. If any Finalis Affiliated Person or Outsourced Person is requested or required to appear as a witness or subpoenaed to produce documents in any Claim in which User, its OBA or a User Affiliated Person is a party to, User, its OBA and its User Affiliated Persons shall jointly and severally indemnify such Finalis Affiliated Person and Outsourced Person for Losses, per the indemnification provisions herein, for preparing and appearing as a witness or producing documents.
12. Disclaimer
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, FINALIS AFFILIATED PERSONS DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR NON-INFRINGEMENT, SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR ANY PURPOSE, WITH RESPECT TO THE PLATFORM, THE CONFIDENTIAL INFORMATION AND ALL CONTENT, INFORMATION, MATERIALS, PRODUCTS AND SERVICES INCLUDED OR OTHERWISE MADE AVAILABLE TO USER OR A USER AFFILIATED PERSON, EACH OF WHICH ARE PROVIDED ON AN "AS IS," “WITH ALL FAULTS” AND “AS AVAILABLE” BASIS, AT USER’S AND USER AFFILIATED PERSONS’ OPTION AND RISK, AND FINALIS AFFILIATED PERSONS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND DO NOT GUARANTEE ANY RESULTS, ACCURACY, COMPLETENESS OR PERFORMANCE. FINALIS AFFILIATED PERSONS DO NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY OF ITS DEFECTS WILL BE CORRECTED OR THAT THEY, OR THE SERVERS THAT MAKE THEM AVAILABLE, WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT ANY DESCRIPTION OF THE PLATFORM IS ACCURATE, RELIABLE, CURRENT OR COMPLETE. Under no circumstances shall a Finalis Affiliated Person be liable to a User or any other Person for any losses, damages or expenses that any of them may suffer, sustain, pay or incur by reason of any use of, or reliance upon, the Platform, the Confidential Information or any information, content, materials, products or services included or otherwise made available to any of them under or in connection herewith.
13. Limitation of Liability
To the maximum extent permitted by Applicable Law, User, on behalf of itself and its User Affiliated Persons, irrevocably releases and discharges Finalis Affiliated Persons and Outsourced Persons from any and all Claims arising out of or relating to this Agreement, the Services, or the Platform, in each case accruing prior to or as of the Effective Date. This release does not apply to Claims arising from Finalis’s fraud or willful misconduct as determined by a court of competent jurisdiction.
14. Force Majeure
In the event that Finalis is unable to perform any of its obligations under this Agreement due to a Force Majeure Event, Finalis shall give notice to User and shall take commercially reasonable steps to resume performance; provided, that, upon delivery of such notice, the obligations of Finalis hereunder shall be immediately suspended.
15. Member Program
User agrees to participate in the Member Program and may opt out within 90 days of the Initial Term by contacting us at customer-success@finalis.com.
16. General Provisions
(a) Entire Agreement; Severability. This Agreement represents the entire agreement between the Parties and supersedes any written or oral prior, conflicting, contemporaneous or additional communications between the Parties or between you and any Finalis Affiliated Person. If a court or arbitrator of competent jurisdiction determines that any part of this Agreement is unenforceable or invalid, such court or arbitrator may reform any such provision to make it legal and enforceable, and the remainder hereof will continue to be valid and enforceable. Each User acknowledges and agrees that it has read this Agreement in its entirety, understands all of its terms, knowingly, freely and voluntarily assents to all of its terms including, without limitation, the waiver and release contained herein, has had an opportunity to ask questions and consult with an attorney of their choice before signing it, is signing this Agreement, including the waiver and release, voluntarily in exchange for good and valuable consideration in addition to anything of value to which it is otherwise entitled, and that its signature hereof is an agreement to release Finalis Affiliated Persons and Outsourced Persons from any and all Claims that can be released hereunder and by Applicable Law. There shall be no construction of any provision against us because this Agreement was prepared by us. All sections (including the indemnification of Finalis herein) except for Sections 1, 2 and 14 hereof shall survive termination hereof. All rights, remedies and licenses granted to us herein shall survive termination hereof.
(b) Amendments. Finalis reserves the right to modify (a) this Agreement (c) and its fees; provided, that, with respect to clauses (a) any modifications will not take effect until posting the revised Agreement, on the Finalis Website; provided, further, that, with respect to clause (c), any modification shall not take effect until the commencement of a new Term. Finalis will attempt to use commercially reasonable efforts to provide notice of any modifications to this Agreement, or its fees to User through email or by posting a notification on the Finalis Website or on the Platform. By continuing to log into the Finalis Website or use the Platform after this Agreement has been modified or after we modify our fees, you agree to be bound by the applicable modification. User acknowledges and agrees that it is their sole responsibility to regularly check this Agreement and our fees for modifications. Finalis shall not be liable to User or any other Person for any of the foregoing modifications.
(c) Governing Law; Jurisdiction; Waiver of Jury Trial. This Agreement will be controlled by and construed under the laws of the State of New York without giving effect to any principles of conflicts of law. Each party hereby irrevocably consents and agrees that any proceeding between the parties arising out of or related to this Agreement shall be brought and maintained in any federal or state court of competent jurisdiction sitting in New York, New York. Each party irrevocably waives any right to trial by jury in any proceeding related to or arising out of this Agreement. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act. Any proceeding to resolve or litigate any dispute in any forum will be conducted solely on an individual basis. User will not seek to have any dispute heard as a class action, private attorney general action, or in any proceeding in which it acts or proposes to act in a representative capacity. No proceeding will be combined with another without the prior written consent of Finalis.
(f) Non-disparagement. User expressly agrees that it will not in any way disparage Finalis, which shall include, but not be limited to, writing disparaging remarks or making disparaging statements, about Finalis to any party. This clause shall survive the termination, expiration or completion of Finalis’s engagement under this Agreement.
(g) Transfer. This Agreement, and any rights granted herein or therein, are personal to parties and shall not be assigned, delegated, sub licensed, subcontracted, encumbered, or otherwise transferred; provided, however, that Finalis may assign all Finalis’ rights and obligations under this Agreement to to any Affiliate or Finalis Vendor or to any Person that succeeds to all or substantially all of Finalis’s business through merger, consolidation, corporate re organization or by acquisition of all or substantially all of Finalis’ assets. This Agreement shall bind and inure to the benefit of the parties hereto, their respective successors and permitted assigns, Any purported assignment by any User shall be null and void as of the purported assignment.
(h) Electronic Signature. This Agreement may be electronically signed and is the same as handwritten signatures for the purposes of validity, enforceability and admissibility. An electronic signature means any symbol, sound or process that is executed or adopted by a Party with the intent to sign this Agreement, including, but not limited to, clicking a box indicating acceptance, executing an agreement that references this Master Agreement and logging in and using the Platform. Each User agrees to use commercially reasonable efforts to authenticate the identity of a signatory, and to retain and store all records and signatures in a manner that is secure, reliable and accurate. By electronically signing or accepting this Agreement you represent and warrant that you have read, understand and agree to the terms hereof. When you use the Platform or send communications from your desktop or device to us, you may be communicating with us electronically. You consent to receive communications from us electronically to include on the Finalis Website or through the Platform, and Finalis can retain copies thereof. You agree that all agreements, notices, disclosures and other communications that we provide you electronically satisfy legal requirements that communications be in writing. Under no circumstance will we have liability for communicating with you. You may contact us at legal@finalis.com.
(i) Third-Party Beneficiaries; Remedies; Waiver. Except as otherwise expressly provided herein, there are no third-party beneficiaries hereunder or in connection herewith. No failure or delay by Finalis in exercising any right hereunder will constitute a waiver of that right. In the event of a breach or threatened breach by any User or User Affiliated Person of any provision hereof, each User, on behalf of itself and each of its User Affiliated Persons, hereby consents and agrees that money damages would not afford an adequate remedy and that we shall be entitled to seek a temporary or permanent injunction or other equitable relief against such breach or threatened breach from any court of competent jurisdiction, without the necessity of showing any actual damages, and without the necessity of posting any bond or other security. Any equitable relief shall be in addition to, not in lieu of, legal remedies, monetary damages or other available relief. The Parties agree that this Agreement can be specifically enforced in any court or proceeding globally and can be cited as evidence therein alleging breach hereof. Nothing herein shall constitute an exclusive remedy or course of action for the collection of any amounts due to us hereunder.
17. Definitions; Interpretation
For the purposes hereof, the following terms have the meanings set forth below. The neuter includes the feminine and masculine; wherever a singular expression is used herein, that expression is deemed as including the plural or the body corporate where required by the context. Section and subsection titles are for convenience of reference only and shall not affect in any way the interpretation hereof. All references to the term of this Agreement or the Agreement term shall include any extensions of such term.
“Account”: the Finalis-provided account to access the Platform.
“Affiliate”: any entity that, directly or indirectly, Controls, is Controlled by or is under common Control with the subject entity.
“Agreement”: collectively, these terms and conditions, the Privacy Policy and the Enterprise MA (together with any attachments thereto), each as modified from time to time.
"Authorized User": a User Affiliated Person of User’s OBA (excluding other entities that are part of the User’s group of companies and any User’s contractors or externals) expressly authorized in writing by both User and Finalis to use the Platform through an Account solely to assist such User with Transactions as set forth in this Agreement and pursuant to Applicable Law; provided, that, Authorized Users may not include, absent Finalis’ prior written consent, agents, employees, directors, officers, consultants, representatives, partners, contractors, advisors, management, owner, part-owner equity holders of a competitor of Finalis or of an Affiliate or subsidiary of a competitor of Finalis or any Finalis Affiliate.
“Beta Services”: all or part of the Platform made available by Finalis to a User to try.
“Claim”: any reasonably expected, potential, threatened, pending or completed claim, action, suit, proceeding, demand, loss, liability, damage, dispute, cause of action, right, fee, debt, obligation, inquiry, investigation, judgment, settlement, infringement, violation, expense (including attorneys’ expenses and fees), fine or other liability of any kind or nature whatsoever or misappropriation of copyright, patent, trademark or other proprietary rights of any third parties, whether known or unknown, at law or in equity.
“Confidential Information”: any information belonging to Finalis Affiliated Persons, in any form, in whole or in part, that is not generally available to the public, furnished to User or User Affiliated Person prior to, on or after the Effective Date, directly or indirectly, including but not limited to (i) the Enterprise MA and any attachments thereto, (ii) all agreements Finalis is a party to; (iii) the Platform; (iv) fee, pricing, commission and compensation agreements; (v) Account information; (vi) sales and distribution information, data, records, development, marketing, organizational, financial, management, administrative, production, specifications and processes presently owned or at any time in the future developed by Finalis; (vii) the identity of, and information relating to, Finalis’ customers or Finalis Affiliated Persons or Finalis Vendors and (viii) any information User or User Affiliated Persons knew, or reasonably should have known, was or is the confidential or proprietary information of Finalis, and User, on behalf of itself and User Affiliated Persons, acknowledges and agrees that neither User or User Affiliated Persons shall compete with Finalis in the use of any Confidential Information.
“Confidentiality Terms”: any Confidential Information is acknowledged by User to be proprietary information and will be maintained in a confidential manner by User; User agrees not to use, directly or indirectly, in whole or in part, any Confidential Information for any purpose except for this Agreement; User agrees to, at its expense, prevent and protect the Confidential Information, or any part thereof, from disclosure by or to any Person other than User Affiliated Persons provided that User (1) informs them of the confidential nature of the information and the terms hereof; (2) directs them to treat the Confidential Information in confidence and not to use it other than for this Agreement and (3) is responsible for the improper use of the Confidential Information (including by former User Affiliated Persons); provided, that, User shall not be subject to the foregoing restrictions where: (1) the information is now or becomes public through no violation of this Agreement or (2) the disclosure is required by Applicable Law, in which case, to the extent permitted by Applicable Law, User will promptly notify Finalis in writing and permit Finalis to seek a protective order or to take other appropriate action and User will use reasonable efforts to obtain confidential treatment of related disclosures; provided, further, that, User agrees that any breach or threatened breach of the Confidentiality Terms (which User agrees are reasonable in scope and content) may cause irreparable harm to Finalis that may be inadequately measurable or compensable in damages at law or equity, in which case Finalis may (1) seek an immediate injunction or restraining order to preclude any unauthorized disclosure or breach, without the requirement of posting a bond or other security and (2) pursue other legal or equitable remedy that may be available to Finalis.
“Control”: direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Dollar”: the lawful currency of the United States of America.
“Effective Date”: with respect to each User and Client under an Enterprise MA, the date of such Enterprise MA.
“Finalis”: Finalis Consulting LLC, Inc., and only its subsidiaries that it Controls that it designates to provide the Platform pursuant hereto.
“Finalis Affiliated Persons”: Finalis and its Affiliates, including, without limitation their respective officers, directors, employees, partners, agents, controlling persons, owners, advisors, contractors and other Persons, including Persons employed or contracted by Finalis or an Affiliate of Finalis that provides the Platform, including, in Finalis’ discretion, Finalis Vendors; provided, that, Finalis Affiliated Persons shall not include customers of Finalis or any of its Affiliates, Users or User Affiliated Persons even if engaged as an officer, director, employee, partner, agent, controlling person, owner, advisor, contractor or any other capacity; provided, further, that, “our” shall also refer to Finalis Affiliated Persons, as applicable, for all purposes hereunder.
“Finalis Website”: all web pages and subdomains owned and operated by Finalis and a part of the https://www.finalis.com website, including, but not limited to, https://my.finalis.com.
“Force Majeure Event”: a natural disaster, war, act of terror or aggression, actions or decrees of Authorities, communication line or internet failure, any event outside of the control of Finalis or actions or omissions of third-parties.
“Letter Agreement”: each letter agreement, as applicable, (a) by and between the applicable User(s) and their client (who may be an Issuer) and/or (b) by and between Finalis and the applicable User’s client (who may be an Issuer), in each case in respect of a Transaction.
“Losses”: collectively, losses, liabilities, Claims, causes of action, penalties, interest, fees, costs, premiums, deductibles and expenses, including any fees, costs and expenses of legal counsel arising under or in connection with any Claim.
“Material Breach”: (a) in respect of each User and User Affiliated Person: (i) fraud; (ii) material breach of any term, covenant or representation in this Agreement; (iii) violation of Applicable Law (vii) failure to pay fees due hereunder; and (xi) providing false or misleading information to a Finalis Affiliated Person; (b) suspension or termination of User’s licenses; (c) any circumstance that, in Finalis’ sole discretion, would materially adversely affect Finalis’ relationship with User; and (d) unauthorized use, disclosure or distribution of the fees hereunder.
“Member Program”: User agrees to participate in occasional product feedback sessions with us, surveys regarding the Platform and referral calls from our customers, prospective customers and investors.
“NDA”: any non-disclosure, confidentiality or similar agreement, as modified.
“OBA”: conduct described in FINRA Rule 3270; provided, that, notwithstanding anything to the contrary herein, User, on behalf of itself and their respective OBAs, agrees that each OBA of User affiliated with Finalis shall at all times be deemed a Firm hereunder and party hereto and that there shall be no need to amend this Agreement to admit each new User OBA as a party hereunder.
“Enterprise MA”: the executed master agreement between User and Finalis, as applicable, together with any amendments, joinders, attachments, schedules, exhibits, and modifications thereto.
“Parties”: Finalis and each signatory User.
“Person”: an individual, a partnership, a corporation, a limited liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization and any Authority or any department, agency or political subdivision thereof.
“Platform”: the applications, artificial intelligence, contents, documents, events, features, forms, functionalities, information, interfaces, models, products, programs, services, support, systems, templates, tools, workflows and websites made available, provided or used by Finalis from time to time in its discretion to include through the Finalis Website, which may include the Finalis Hub™ (“Finalis Hub” is a service mark of Finalis, Inc.), the Finalis Marketplace, Finalis Insights, the Chaperoning Product, Connect Product, Finalis Capital Introduction, Finalis Connect, Finalis Syndicate Network Management, Payments Product, Outside Broker Dealer Product any other websites or application programs through which Finalis makes its products and services available, including updates to each from time to time.
“Principals”: officers, management team and other personnel responsible for the management and operations or control of the Firm and/or OBA, as applicable.
“Privacy Policy”: Finalis’ Privacy Policy located at https://www.finalis.com/privacy.
“Transaction”: any transaction in securities for the account of others (including primary and secondary offerings) in the context of private placements under the Securities Act conducted by, as applicable, User or a Representative or Foreign Associated Person affiliated with a User and/or a User through Client as the broker-dealer thereunder pursuant to this Agreement.
“User”: as applicable, (a) if an individual accepts this Agreement, such individual (b) if an individual accepts this Agreement on behalf of a legal entity, such entity and (c) an Authorized User; provided, that, a Person may become a User by signing a joinder (or similar agreement) to an Order FormEnterprise MA with Finalis whereby such Person agrees to be a User and be bound by the terms hereof, subject to any terms set forth in such joinder (or similar agreement); provided, further, that, a User may not be, absent Finalis’ prior written consent, an employee, director, officer, agent, consultant, representative, partner, advisor, management, owner, part-owner equity holder of a competitor of Finalis or of an Affiliate or subsidiary of a competitor of Finalis; provided, further, that, “you” and “your” shall also refer to User for all purposes hereunder. For the avoidance of doubt, the Client and any Registered Representatives under the applicable Enterprise MA shall each be deemed Users for purposes of this Agreement.
“User Affiliated Persons”: collectively, Representatives, principals, employees, consultants, directors, partners, contractors, officers, agents, representatives, advisors, management, equity holders, executors, administrators, assigns and authorized Persons of User and of their respective OBAs as well as the Authorized Users, Representatives, NRFs and Foreign Associated Persons of each User.
“User Data”: any data, information or other materials submitted, uploaded, posted or sent by User or a User Affiliated Person to, through or in connection with the Platform, a Finalis Affiliated Person or a Finalis Vendor.
“User Default”: Finalis’ performance of any of its obligations under this Agreement being prevented or delayed by an act or omission by User or a User Affiliated Person or the failure by User or aUser Affiliated Person to perform any obligation under this Agreement.
“User-Generated Content”: content featured, displayed, communicated, transmitted, created or uploaded by User, a User Affiliated Person or a third party through the Platform or via a Finalis Affiliated Person or a Finalis Vendor; provided, that, User agrees that User (a) is solely responsible for the content of, and for any harm resulting from, any User-Generated Content, regardless of its form; (b) will only submit User-Generated Content that it owns or otherwise controls all of the rights to or for which it has rights to post and that such content is accurate; (c) will comply with any third-party licenses relating to such User-Generated Content and the use of such content does not violate this Agreement or Applicable Law and will not cause injury to any Person or entity; and (d) will indemnify, hold harmless, pay and reimburse Finalis Associated Persons for all Losses, as they are incurred by any of them, and Claims from content you supply; provided, further, that, Finalis is not responsible for any public display or misuse of User-Generated Content, it and its sublicensees have the right (but not the obligation) to use the name that you submit in connection with such User-Generated and Finalis and its sublicensees may refuse or remove any User-Generated Content that, in their discretion, violates this Agreement or Applicable Law. Applicable Law.
“Vendors”: Finalis’ third-party providers.