In consideration of the mutual promises, covenants, and agreements made and contained herein, and intending to be legally bound hereby, the parties hereto agree as follows.
THE COMPANY RESERVES THE RIGHT TO CHANGE, MODIFY, ADD OR REMOVE PORTIONS OF THESE TERMS AT ANY TIME FOR ANY REASON. WE SUGGEST THAT EACH USER REVIEWS THESE TERMS PERIODICALLY FOR CHANGES. SUCH CHANGES SHALL BE EFFECTIVE IMMEDIATELY UPON POSTING. EACH OF THE USERS ACKNOWLEDGES THAT BY ACCESSING THIS LICENSED CONTENT, SERVICES OR CONFIDENTIAL INFORMATION AFTER WE HAVE POSTED CHANGES TO THESE TERMS, EACH OF THE USERS ARE AGREEING TO THESE TERMS AS MODIFIED.
Decisions based on information contained on this Licensed Content, Services or Confidential Information are the sole responsibility of the Users. In exchange for using this Licensed Content, Services or Confidential Information, you agree to indemnify and hold the Company, its officers, directors, employees, affiliates, agents, licensors and suppliers harmless against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from a User’s use of this Licensed Content, Services or Confidential Information, from any User’s violation of these Terms or the Membership Agreement or from any decisions that you or any of your Users makes based on such information.
The Licensed Content, Services or Confidential Information may not be suitable for all persons and are not obligations of the Company or any of its affiliates or guaranteed by the Company or any of its affiliates. The Company makes no representations that the contents are appropriate for use in all locations, or that the transactions, products, instruments, or Services are available or appropriate for sale or use in all jurisdictions or countries, or by all investors or counterparties. By making available information in the Licensed Content, Services or Confidential Information, the Company does not represent that any product or Services is available or suitable for any particular user. All persons and entities accessing this Licensed Content, Services or Confidential Information do so on their own initiative and are responsible for compliance with applicable local laws and regulations.
Licensed Content, Services or Confidential Information are provided “AS IS” and without warranties of any kind, either expressed or implied. To the fullest extent permissible pursuant to applicable law, the Company disclaims all warranties, including, but not limited to, any warranty of non-infringement of third-party rights and any implied warranties of merchantability and fitness for a particular purpose. The Company does not warrant, either expressly or impliedly, the accuracy or completeness of the information, text, graphics, links or other items contained on this Licensed Content, Services or Confidential Information or with respect to the Services and does not warrant that the functions contained in this Licensed Content, Services or Confidential Information or that the provision of Services will be uninterrupted or error-free, that defects will be corrected, or that the Licensed Content, Services or Confidential Information will be free of viruses or other harmful components. The Company expressly disclaims all liability for errors and omissions in the materials on this Licensed Content, Services or Confidential Information and for the use or interpretation by others of information contained on the Licensed Content, Services or Confidential Information. Users agree that the maximum liability owed by the Company to a user arising from the Licensed Content, Services or Confidential Information shall be one times the gross fee paid to the Company in the past year.
The Agreements shall together constitute the entire understanding between you and the Company, unless otherwise agreed to between you and the Company, and shall govern your and any of your User’s use of the Services, Licensed Consent, or Confidential Information or any other written or electronic materials prepared by any User or any other party to the extent containing, reflecting or based upon, in whole or in part, any of the foregoing, in each case, which are related to the Services or to any other information relating to and identified with respect to any customers, former or prospective customers or applicants, business volumes or usage, financial information, pricing information, information related to mergers or acquisitions, systems, software, software documentation, software source documents, manuals, formulas, security procedures, practices, specifications, information concerning business plans or business strategy, presentations, proposals, technical and non-technical information including patent, copyright, trade secret, and proprietary information, techniques, sketches, drawings, models, samples, data, inventions, know-how, processes, apparatus, equipment, algorithms, formulae, and all information related to the party’s current, future, and proposed products and services (the “Confidential Information”).
2. PERMITTED PURPOSE
The Licensed Content and Confidential Information is solely for the Users’ internal business purposes to assist in the engagement, contracting, and retention of high net worth individuals and clients by the contracting Member (the “Permitted Purpose”). User acknowledges that the pricing used for User is dependent on the scope of the Permitted Purpose and the number of Users. As such, should User use the Licensed Content and Confidential Information in a manner beyond the Permitted Purpose, such as making the Licensed Content and Confidential Information, available to affiliates or unauthorized users, then User will be charged additional fees.
3. INTELLECTUAL PROPERTY
The Company retains, and shall at all times retain, the sole and exclusive right to, title to, and interest in, all rights associated with the Licensed Content and Confidential Information, of whatever nature anywhere in the world (registered or unregistered) including copyright, design rights, know-how, trade secrets, technology, systems, methods, expertise, patents, data base rights, trademarks and trade names or any other intellectual property in connection with the Agreements (collectively, the “Intellectual Property”), and no User shall acquire any rights to, title to, or interest in, any portion of the Intellectual Property. Each User further agree that such User shall not remove any copyright, trademark, trade name, or similar notice contained in the Intellectual Property. The Company may alter, modify all or any part of the Confidential Information and/or Intellectual Property as the Company considers necessary or appropriate, in its sole discretion. No User shall modify, adapt, disclose, or make available to third parties, extract or publish, create any derivative works for third parties, reverse engineer, disassemble or decompile, in each case, in whole or in part, any portion of the Confidential Information. Each User agree that all work product of any type or kind whatsoever, whether tangible or intangible, which the Company invents, creates, composes, authors, discovers or otherwise produces for any User under this Agreement shall not be considered works made for hire to the fullest extent accorded the meaning of that term under any copyright laws of the United States or any other jurisdiction, or under any other applicable statutes, case law, common law, and/or common usage (collectively “Copyright Laws”). If and to the extent any work product hereunder constitutes a work made for hire as so defined under any Copyright Laws, each User hereby irrevocably grants, assigns and transfers all rights, title, and interest of any kind in and to such work product to the Company. The Company’s rights and each User’s obligations under this section and section 5 below shall be continuing and shall survive the expiration or termination of the Agreements by either party for any reason.
Upon entering into the Membership Agreement, the Company grants each User a non-exclusive, non-transferrable, fully revocable, non-sublicenseable license to use the Intellectual Property for the Permitted Purpose during the Term of the Membership Agreement. The Company reserves the right to revoke the licenses at any time at its sole discretion, for violations of the Membership Agreement. At the completion of the Term, the User agrees to destroy, deleted, and otherwise obliterate any Licensed Content and Confidential Information in User’s possession.
5. CONFIDENTIAL INFORMATION
You and your Users shall keep the Confidential Information confidential and shall not use any of the Confidential Information other than solely for the Permitted Purpose and not in any manner that is detrimental to the Company. You shall direct all of your Users on the confidential nature of the Confidential Information. You shall cause all of your controlled Users, and direct all of your third-party Users, to adhere to the non-use and non-disclosure obligations under these Terms as if they were parties hereto. You shall promptly notify the Company of any breach of this these Terms or the Membership Agreement by you or your Users of which you have knowledge, and shall fully cooperate with the Company in any effort to enforce the Company’s rights in relation to any such breach. You shall be responsible for any breach of these Terms or the Membership Agreement by any of your Users. You shall (at your sole expense) undertake all commercially reasonable precautions to safeguard and protect the confidentiality of the Confidential Information and restrain your Users from prohibited or unauthorized disclosure or use of the Confidential Information. Without the prior written approval of the Company (except as required by applicable law, rules, regulations or other applicable legal process (collectively, “Law”) or requested by United States governmental authority), you shall not, and shall direct your Users not to, disclose to any person (other than your Users who have a need to know), all or any portion of the Confidential Information, that the Confidential Information has been made available to you or your Users or any of the terms, conditions or other facts with respect to the Agreements. In the event that you or any of your Users are required by Law or requested by United States governmental authority to disclose all or any part of the Confidential Information, you shall promptly, to the extent legal, use best efforts to notify the Company in writing of the request so that the Company may seek an appropriate protective order or other appropriate remedy and/or waive compliance with the applicable provisions of the Agreements. You shall cooperate reasonably (and shall cause your relevant Users to cooperate reasonably) with the Company in its efforts to obtain a protective order. You also agree, to the extent legally permissible, to provide (and to cause your relevant Users to provide) the Company, in advance of any such disclosure, with a list of any Confidential Information you (or your relevant Users) intend to disclose (and, if applicable, the text of the disclosure language itself). In the absence of such protective order or other remedy or such receipt of a waiver by the Company, if you are nonetheless required by Law or requested by United States governmental authority (as reasonably determined in the opinion of your counsel) to disclose the Confidential Information, you may disclose only such minimal portion of the Confidential Information as is required by Law or requested by United States governmental authority; provided, however, that you shall cooperate reasonably (and shall cause your relevant Users to cooperate reasonably) with the Company in its efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such Confidential Information.
Nothing contained in the Agreements shall be construed as granting you or any of your Users any rights, by license or otherwise, to any Confidential Information, other than as expressly set forth herein. However, the term “Confidential Information” does not include any information that (a) at the time of disclosure, is, or thereafter becomes, known and available to the public, other than as a result of a disclosure by you or any of your Users, (b) is already in your or your Users possession or becomes available to you or any of your Users on a non-confidential basis from a source other than the Company or its representatives, agents or advisors (provided, however, that such source is not bound by a contractual, legal or fiduciary obligation of confidentiality to the Company or any of its affiliates with respect to such information) or (c) has been independently developed by you or your Users without violation of these Terms and without any reference to or use of any Confidential Information.Money damages and other remedies at law would not be a sufficient remedy for any actual or threatened breach by you or any of your Users of any agreements contained in these Terms, and therefore the seeking of specific performance and injunctive or other equitable relief shall be a right and entitlement of the Company as a remedy for any actual or threatened breach of these Terms without proof of actual damages or irreparable harm. You shall waive, and shall direct your Users to waive, any requirement for the securing or posting of any bond in connection with equitable relief sought by a party pursuant to the foregoing sentence. The foregoing remedies shall not be exclusive, but shall be in addition to all other remedies available at law or in equity to the Company. In the event of litigation between you and the Company in connection with the Agreements, if a court of competent jurisdiction determines a final, non-appealable order, then the non-prevailing party shall reimburse the prevailing party for its reasonable costs and expenses (including legal fees) incurred in connection with such litigation.
6. TERM AND TERMINATION
Your Membership Agreement shall continue for the period noted therein (the “Term“) unless terminated earlier upon receipt of due written notice (as set forth below) prior to the conclusion of the Term. Either your or the Company may terminate the Membership Agreement for any reason with thirty (30) days’ prior written notice after the first ninety (90) days of the Term. Either party may terminate this Agreement effective immediately in the event of a material breach.
7. INVOICING AND PAYMENT
You agrees to pay the fee set forth in the Membership Agreement for access to the Confidential Information and for the provision of any Services during the Term (“License Fee”). All Services, Confidential Information, and deliverables (if any) shall be deemed accepted by you and your Users upon receipt. License Fees shall be payable net thirty (30) days from receipt of invoice, unless otherwise stated in the Membership Agreement. Should you fail to pay on time, we reserve the right to charge you an additional 1.5% per month late fee. Such fee may be amended on any renewal of the Membership Agreement or as otherwise agreed to in writing by you and the Company. The License Fee is stated exclusive of any applicable sales, use, or other taxes or surcharges chargeable thereon and you shall pay such taxes, surcharges and the License Fee in full and without deduction, set-off or withholding of any kind. If you are under any legal obligation to make any withholding or deduction against the License Fee, it shall be deemed to be grossed by an amount equal to such withholding or deduction such that the net amount that you shall pay to the Company shall always be equal to the License Fee as set out in the invoice provided to you by the Company. The License Fee is due one quarter in advance, unless otherwise stated in the Membership Agreement. You shall reimburse to the Company any pre-approved out of pocket expenses incurred by the Company or its representatives in connection with the provision of the Services or otherwise under the Agreements.
Promotion. For the avoidance of doubt, each of the User’s agrees that the Company may use the name, trademark, logo, acronym or other designation of such Users in connection with any press release, advertising, publicity materials or otherwise without the prior written consent of such User.
Governing Law. The Agreements shall be governed by, and construed in accordance with, the laws of the State of New York, without giving effect to the principles of conflict of laws thereof. Each of the Users and the Company hereby irrevocably and unconditionally consents to personal jurisdiction in, and agrees that venue for any action to enforce the provisions of the Agreements shall be properly laid in, any federal or state court located in New York, New York, and service of any process, summons, notice or document by U.S. registered mail to its address set forth in the Membership Agreement, or with respect to the Company, on the Licensed Content, Services or Confidential Information, shall be effective service of process for any action, suit or proceeding brought against such party in any such court. Neither you nor any of your Users shall plead or claim that any such action, suit or proceeding has been brought in an inconvenient forum, and you shall not commence any action, suit or proceeding in connection with the Agreements and the transactions contemplated therein except in such courts.
Assignment. Neither you nor your Users may assign any of your rights under the Agreements without the prior written consent of the Company. Any purported assignment in violation of this section shall be null and voided.
Amendments and Waivers. The Agreements may be modified or waived only by a separate writing executed by you and the Company expressly so modifying or waiving such agreement. No failure or delay by the Company in exercising any right, remedy, power or privilege under the Agreements shall operate or be construed as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof.
Notices. All notices must be in writing and addressed to the relevant party at its address as listed in the Membership Agreement, or with respect to the Company, on the Licensed Content, Services or Confidential Information. All notices must be personally delivered, sent prepaid by nationally recognized courier or email, and are effective upon receipt.
Miscellaneous. The Membership Agreement may be signed by facsimile or other electronic means (including PDF) and in one or more counterparts, each of which shall be deemed an original and all of which shall constitute a single instrument. The Agreements, collectively, contain the entire agreement between you and the Company regarding its subject matter and supersedes all prior agreements, understandings and discussions between such parties regarding such matters. If any provision of the Agreements is later deemed to be invalid, illegal or unenforceable, it shall not affect any other provision of the Agreements, and the validity, legality and enforceability of the remaining provisions contained in the Agreements, or the application of such provision to such persons or circumstances other than those as to which it has been held invalid or unenforceable, shall remain in full force and effect and shall in no way be affected, impaired or invalidated thereby. In the case of any such invalidity, illegality or unenforceability, a suitable and equitable provision shall be substituted therefore in order to carry out, so far as may be valid and enforceable, the intent and purpose of such invalid or unenforceable provision and the Agreements. The headings in the Agreements are for convenience only and shall not be considered a part of or affect the construction or interpretation of any provision of the Agreements.