During the Service Term (as defined in the Order Form or the Broker Dealer Master Agreement, as applicable) of this Agreement, subject to Customer’s compliance with this Agreement Customer appoints Finalis as its exclusive independent contractor in connection with the Services (as defined in the Order Form or Broker Dealer Master Agreement, as applicable) (subject to any subcontracting by Finalis to Finalis affiliates or third-party providers or suppliers as set forth in this Agreement), and Customer agrees to not appoint any third party in connection with the Services.
The specific nature of the Services required will be determined based on the needs associated with Customer. Finalis shall consult with and advise Customer with respect to the applicability of the Services and, as applicable, shall provide those Services. It is contemplated that Finalis, with the approval of Customer, may employ the personnel necessary to provide certain of these Services. It is further contemplated that certain of these Services are to be provided to Customer by Finalis’ affiliates or third-party independent contractors engaged by Finalis on behalf of Customer. The provision of any Services shall in all respects be subject to the terms and conditions set forth in this Agreement. It is further acknowledged by Customer that the ability of Finalis to provide these Services is dependent upon the payment by Customer of the fees in respect thereof pursuant to this Agreement.
Subject to the terms and conditions of this Agreement, Finalis will provide Customer with access to the Services. The Services are subject to modification from time to time at Finalis’ sole discretion, provided Finalis will use reasonable efforts to give Customer prior written notice of any such modification. Customer may submit, from time to time, a written request to Finalis for the initiation of a new service to be provided by Finalis which Finalis may be accepted or denied by Finalis in its sole discretion. Each such request for new services shall be deemed to incorporate by reference the terms and conditions of this Agreement.
Subject to the terms hereof, Finalis will provide reasonable support to Customer for the Services on a 24/7 basis with commercially reasonable efforts to achieve a one-hour turnaround time for every email received on the Finalis Platform. Notwithstanding anything to thecontrary herein, Finalis reserves the right to limit Customer’s access to the Services for scheduled or emergency maintenance, or in the event Customeris in breach of this Agreement, including, without limitation, Customer’s failure to pay any amounts due to Finalis pursuant to this Agreement.
Finalis shall have the right, in its sole discretion, to subcontract certain of the Services and its responsibilities under this Agreement to its subsidiaries and/or third-party service providers. In the event of any such subcontracting, all costs and expenses incurred by Finalis and all amounts paid by Finalis in relation therewith shall be taken into account when making the determination of the cost reimbursements contemplated by this Agreement. Customer acknowledges and agrees that Finalis and/or its affiliates and/or third-party service providers may operate orprovide the Services and the Software in one or more jurisdictions outside of the United States from time to time. Finalis shall only be required to provide the Services and quality assurances related to the Services and the Software in the English language.
2. RESTRICTIONS AND RESPONSIBILITIES
Access to the Services may require Customer to utilize certain cloud-based software applications. Customer agrees to be bound by any end-user software agreements that govern the installation and use of such cloud-based software applications. If Finalis authorizes Customer to distribute any such cloud-based software application to its end user content customers (“End Users”), Customer may do so only after effectively binding End Users to the applicable end-user software agreement provided by Finalis for the benefit of Finalis.
Customer will not, and will not permit any third party to, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services or Finalis’ proprietary software or workflows (collectively, the “Software”; and together with the Services, the “Finalis Platform”); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use or for End Users; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including, but not limited to, applicable privacy, intellectual property, consumer, child protection, obscenity and defamation law). Specifically, but without limitation, Customerwill comply with the notice, “opt out”, and other provisions of the following California laws: California Business and Professions Code Sections 17538.4 and 17538.45.
Customer will cooperate with Finalis in connection with the performance of this Agreement by making available to Finalis such personnel and information of Customer as may be reasonably requested by Finalis, and take such other actions as Finalis may reasonably request. Finalis shall be permitted to rely on any information or data providedby Customer to Finalis in connection with the Services. Customer will also cooperate with Finalis in establishing passwords and other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services and the Software. Customer shall, and shall cause its affiliates to, allow Finalis and its representatives reasonable access to the facilities of Customer necessary for Finalis to fulfill its obligations under this Agreement. Finalis and its representatives shall fullycomply with all policies and procedures of Customer applying to such facilities.
Customer will designate an employee who will be responsible for all matters relating to this Agreement (the “Primary Contact”). Customer may, in its reasonable discretion, change the employee designated as the Primary Contact at any time by providing prior written notice to Finalis.
To the fullest extent permitted by law, Customer hereby agrees to indemnify and hold harmless Finalis (and any of its affiliates or current or former officers, directors, employees, partners, shareholders, members or agents) against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’fees) in connection with any claim, action, judgement, fine, settlements and other amounts, of any nature whatsoever, known or unknown, liquidated or unliquidated, arising arises from an alleged violation of the terms hereof, from Customer’s use of the Services or the Software or any act or omission taken or suffered by Finalis, including, without limitation, in performing or otherwise relating to the Services or the provision of the Software, due to Finalis managing an email address on any domain hosted by or provided by Customer or other email deliverability issues (including, without limitation, emails sent from the Finalis Platform that are undeliverable or received in therecipient’s spam folder)or any data or information provided by a Finalis subsidiary or to a third-party service provider or supplier (including, without limitation, any liability for any acts or omissions of its affiliates or current or former officers, directors, employees, partners, shareholders, members or agents in connection with each of the foregoing). The termination of an action, suit or proceeding by judgment, order, settlement or upon a plea of nolo contendere or its equivalent shall not, in and of itself, create a presumption or otherwise constitute evidence that Finalis (or any of its affiliates or current or former officers, directors, employees, partners, shareholders, members or agents) is not entitled to exculpation hereunder. Although Finalis has no obligation to monitor the content provided by Customer or Customer’s use of the Services or Software, Customer agrees and acknowledges that Finalis may do so and may remove any such content or prohibit any use of the Services or the Software if it believes in its sole discretion may be (or is alleged to be) in violation of the terms hereof. Finalis shall not be liable to Customer or its affiliates for any action taken by a third-party provider to the Services or the Software except as otherwise set forth herein. The provisions of this Section 2.5 shall survive the termination of this Agreement.
Customer will be responsible for maintaining the security of Customer’s account, passwords (including, without limitation, to administrative and user passwords) and files, and for all uses of Customer’s account with or without Customer’s knowledge or consent.
Customer acknowledges and agrees that the Services operate on or with or using application programming interfaces (APIs) and/or other services operated or provided by third parties (“Third Party Services”). Customer acknowledges and agrees that Finalis is not responsible for the operation of Third Party Services nor the availability or operation of the Services to the extent such availability and operation is dependent upon Third Party Services. Customer is solely responsible for procuring any and all rights necessary for it to access Third Party Services and for complying with any applicable terms or conditions thereof. Finalis does not make any representations or warranties with respect to Third Party Services or any third-party providers. Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party’sterms and conditions.
Finalis and Customer are herein referred to collectively as the “Parties” and each, a “Party”. Each Party (the “Receiving Party”) understands that the other Party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Solely in respect of Finalis as the Disclosing Party, “Proprietary Information” includes, without limitation, the Services and the Software.
The Receiving Party agrees: (i) not to divulge toany third person any Proprietary Information, (ii) to give access to ProprietaryInformation solely to employees or independent contractors with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of Proprietary Information that the Party takes with its own proprietary information, but in no event will a Party apply less than reasonable precautions to protect Proprietary Information. The Disclosing Party agrees that the foregoing will not apply to the Receiving Party with respect to information that (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, (b) was in its possession or known by the Receiving Party prior to receipt from the Disclosing Party, (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. In any event, Finalis may aggregate data and use such aggregated data to evaluateand improve the Services and the Software and otherwise for its business purposes.
Customer acknowledges that Finalis does not wish to receive Proprietary Information from Customer that is not necessary for Finalis to perform its obligations under this Agreement, and, unless the Parties agree otherwise in writing, Finalis may reasonably presume that any unrelated information received from Customer is not confidential or Proprietary Information.
Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or isincluded in a filing required to be made by a Party with a governmental authority (provided such Party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
The provisions of this Section 3 shall survive the termination of this Agreement for a period of two years hereafter.
4. INTELLECTUAL PROPERTY RIGHTS
Finalis alone (and its licensors, as applicable) will retain all rights relating to the Services and the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services or the Software, which are hereby assigned to Finalis. Customer will not copy, distribute, reproduce or use any of the foregoing. This Agreement is not a sale and does not convey to Customer any rights of ownership in, or related to, the Services or the Software, or any intellectual property rights. Except as set forth herein, Customer hereby grants, and shall cause its affiliates to grant, a royalty-free, fully paid-up, non-exclusive, limited right and license, with no right to sublicense for Finalis to access and use the intellectual property owned by Customer. Finalis shall retain all intellectual property rights in all modification or improvements to the source code of the Services and the Software, no matter which Party made such improvements or modifications to the source code. Customer will not sublicense, distribute, create derivative works of, or reverse engineer any of the Services or Software, or authorize any third party to do so, except as expressly permittedby Finalis in writing. Finalis shall own all new intellectual property arising under the Services, including any software developed for Customer. The licenses contemplated in this Agreement shall be subject to any required approvals, restrictions or reservations of any governmental authority and theParties shall use reasonable efforts in good faith to promptly notify the other Party of any such approvals, restrictions or reservations as early as possible and to obtain any and all such approvals that maybe required.
Finalis will obtain and process certain content and data provided by or on behalf of Customer (“Content”) only to perform its obligations under this Agreement. If Finalis receives any notice or claim that any Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a “Claim”), Finalis may (but is not required to) suspend activity hereunder with respect to that Content, and Customer will indemnify Finalis from all liability, damages, settlements, losses, settlements, fees and other costs and expenses (including, without limitation, attorneys’ fees) in connection with any Claim.
5. PAYMENT OF FEES
Customer will pay Finalis the fees set forth in the Order Form or the Broker Dealer Master Agreement, as applicable, referencing this Agreement. If Customer’s use of the Services and the Software exceeds the Service Capacity set forth in the Order Form or the Broker Dealer Master Agreement, as applicable, Finalis will make reasonable efforts to inform Customer when their use of the Services exceeds the Service Capacity. To the extent applicable, Customer will pay Finalis for additional services, such as integration fees or other consulting fees. All payments will be made in accordance with the Payment Schedule and the Method of Payment, each as set forth in the Order Form or the Broker Dealer Master Agreement, as applicable. If not otherwise specified, payments will bedue within thirty (30) consecutive calendar days of invoice and are nonrefundable. Notwithstanding anything to the contrary herein, the Parties may agree from time to time to difference fees, expense advancement and payment, invoicing and payment arrangements.
All amounts payable hereunder shall be payable on in United States currency, with immediately available funds. Customer shall pay the full amount of the fees and shall not set-off or counterclaim any amount owed to Finalis under this Agreement. The Parties shall reasonably cooperate to structure payments pursuant to this Agreement in a manner to minimize any withholding or deduction in respect of taxes pursuant to applicable law. The Parties will take reasonable steps to cooperate to minimize the imposition of, and the amount of taxes, required by applicable law.
Unpaid fees are subject to a finance charge of one percent (1.00%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. All fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Finalis’ net income) unless Customer has provided Finalis with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
This Agreement is for the Service Term set forth in the Order Form or the Broker Dealer Master Agreement, as applicable, unless terminated pursuant to this Section 6.
In the event of any breach of this Agreement, the non-breaching Party may terminate this Agreement prior to the end of the Service Term by giving thirty (30) days’ prior written notice to the breaching Party; provided, however, that this Agreement will not terminate if the breaching Party has cured the breach prior to the expiration of such thirty-day period. Either Party may terminate this Agreement, without notice,(i) upon the institution by or against the other Party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other Party’s making anassignment for the benefit of creditors, or (iii) upon the other Party’s dissolution or ceasing to do business.
All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, restrictions, accrued rights to payment, confidentiality obligations,intellectual property rights, warranty disclaimers, and limitations of liability.
7. CLIENT SOFTWARE SECURITY
Finalis represents and warrants that it will not knowingly include, in any Finalis software released to the public and providedto Customer hereunder, any computer code or other computer instructions, devices or techniques, including, without limitation, those known as disablingdevices, trojans, or time bombs, that intentionally disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data. If at any time Finalis fails to comply with the warranty in this Section, Customer may promptly notify Finalis in writing of any such noncompliance. Finalis will, within thirty (30) business days of its receipt of such written notice, either correct then on compliance or provide Customer with a plan for correcting the noncompliance. If the noncompliance is not corrected or if a reasonably acceptable plan for correcting them is not established during such period, Customer may terminate this Agreement as its sole and exclusive remedy forsuch noncompliance.
8. WARRANTY DISCLAIMER
HE SERVICES AND Finalis PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. Finalis (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED,INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
N NO EVENT WILL Finalis (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FORANY INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIALDAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES OR BY REASON OF COST OF CAPITAL, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF FINALIS HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF Finalis, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), VIOLATION OF ANY APPLICABLE DECEPTIVE TRADE PRACTICES ACT OR SIMILAR LAW, OR ANY OTHER LEGAL OR EQUITABLE PRINCIPLE, OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF (i) TEN THOUSAND DOLLARS, OR (ii) THE FEES PAID TO FINALIS HEREUNDER IN THE THREE MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. Finalis SHALL NOT BE RESPONSIBLE FOR ANY FAILURE IN PERFORMANCE UNDER THIS AGREEMENT TO THE EXTENT SUCH FAILURE ARISES, DIRECTLY OR INDIRECTLY, OUT OF CAUSES REASONABLY BEYOND ITS CONTROL, INCLUDING, WITHOUT LIMITATION, DEFAULT BY THIRD PARTY PROVIDERS OR SUPPLIERS ESSENTIAL TO THE PERFORMANCE OF THE SERVICES, ACTS OF GOD, WAR, TERRORISM, CYBERATTACK, GOVERNMENTAL ACTS IN SOVEREIGN CAPACITY, LABOR DISTURBANCES AND STRIKES, POWER FAILURES OR OTHER OUTAGES, FIRE, FLOOD OR EPIDEMIC. THE PROVISIONS OF THIS SECTION SHALL SURVIVE THETERMINATION OF THIS AGREEMENT.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or toor by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’sList of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined inFAR section 2.101, any software and documentation provided by Finalis are “commercial items” and according to DFAR section 252.227-7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to theminimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Finalis’ prior written consent. Except as set forth herein, each Party will be responsible for complying with all applicable laws and regulations. Finalis may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Nothing expressed or mentioned in this Agreement is intended or shall be construed to give any other person or entity other than the Parties and their respective permitted successors and assigns any legal or equitable right, remedy or claim under, or in respect of, his Agreement or any provision contained herein. No failure to exercise and no delay in exercising, on the part of any Party hereto, any right, remedy, power or privilege hereunder shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privileges hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law. No waiver of any provision hereto shall be effective unless it is in writing and is signed by the Party asserted to have granted such waiver. This Agreement may be executed in any number of counterparts (including facsimile counterparts), all of which together shall constitute a single instrument. It shall not be necessary that any counterpart be signed by each of the Parties so long as each counterpart shall be signed by one or more of the Parties and so long as the other Parties shall sign at least one counterpart which shall be delivered to the other Party. The Parties represent that the persons executing this Agreement on behalf of their respective entities have specific and express authority to execute this Agreement on behalf of their respective entities and that their respective entities intend to be legally bound. The headings of the sections of this Agreement have been inserted for convenience of reference only and shall not be deemed part of this Agreement. The Parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by the Parties, except as otherwise provided herein. The Parties hereby acknowledge and agree that Finalis shall be an independent contractor and not an agent, employee or representative of Customer. No agency, partnership, joint venture, enterprise, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Finalis in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid. Finalis will not be liable for any loss resulting from a cause over which it doesnot have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. Thefederal and state courts sitting in San Francisco County, California, U.S.A. willhave proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement, provided that either Party may seek injunctive relief in any court of competent jurisdiction. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH OF THE PARTIES HEREBY WAIVES TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING ANY DISPUTE, CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT. Customer agrees to participate in press announcements, case studies, trade shows, or other forms reasonably requested by Finalis, as set forth in further detail in the Order Form or the Broker Dealer Master Agreement, as applicable, referencing this Agreement. Finalis is permitted to disclose that Customer is one of its customers to any third party and on its website and other promotional marketing materials at its sole discretion.