BY CHECKING THE BOX AGREEING TO THESE ADVISORFINDER TERMS OF SERVICE (THE “AGREEMENT”), SUBMITTING THE REGISTRATION REQUEST FORM OR USING THE SERVICES, YOU (ON BEHALF OF YOUR COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY, THE “SUBSCRIBER” OR THE “CUSTOMER”) ACCEPT AND AGREE TO THIS AGREEMENT. THIS AGREEMENT CONSTITUTES A LEGAL AGREEMENT BETWEEN SUBSCRIBER AND ADVISORFINDER LLC, A VIRGINIA LIMITED LIABILITY COMPANY WITH A BUSINESS ADDRESS LOCATED AT 5215 COLLEY AVE, SUITE 134, NORFOLK, VA 23508 (“ADVISORFINDER”). SUBSCRIBER’S USE OF THE SERVICES (AS DEFINED BELOW) IS SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, SO SUBSCRIBER SHOULD TAKE THE TIME TO FULLY UNDERSTAND HOW THIS AGREEMENT GOVERN’S SUBSCRIBER’S RELATIONSHIP WITH ADVISORFINDER AND SUBSCRIBER’S USE OF THE SERVICES. SUBSCRIBER’S RIGHT TO USE THE SERVICES IS EXPRESSLY CONDITIONED ON ACCEPTANCE OF THIS AGREEMENT. BY ACCEPTING THIS AGREEMENT ON BEHALF OF A COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY, YOU AND THE APPLICABLE COMPANY, BUSINESS, CORPORATION, PUBLIC INSTITUTION OR OTHER ENTITY EACH REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU”, “YOUR” AND “SUBSCRIBER” WILL REFER TO SUCH ENTITY. IF SUBSCRIBER DOES NOT AGREE WITH ANY PROVISION OF THIS AGREEMENT, SUBSCRIBER MUST NOT AND MAY NOT ACCESS OR USE THE SERVICES IN ANY MANNER FOR ANY PURPOSE. THE “EFFECTIVE DATE” OF THIS AGREEMENT IS THE EARLIER OF THE DATE THAT SUBSCRIBER AGREES TO THIS AGREEMENT OR THAT SUBSCRIBER ACCESSES THE SERVICES.
1. AdvisorFinder Technology; Ordering.
1.1 AdvisorFinder Technology. AdvisorFinder licenses its software products on a subscription basis. AdvisorFinder’s software is made available as a hosted solution. Customer’s rights to use AdvisorFinder software apply only to the AdvisorFinder software licensed under an Order (defined below).
1.2 Order Process. Orders for AdvisorFinder software and services may be made through written Orders placed directly with AdvisorFinder or by accepting the online terms and associated fees described at https://advisorfinder.com. An order becomes part of this Agreement upon acceptance by AdvisorFinder. The terms of Customer’s form of purchase order or similar documents shall not apply to the relationship of Parties. In the event of any conflict between the terms of any Order and the terms of this Agreement, the terms of this Agreement shall govern.
1.3 Delivery. The AdvisorFinder Solution, access shall be provided through a password-protected web interface. Delivery occurs when such link or access is made available to Customer.
1.4 Integration with Non-AdvisorFinder Solution. The AdvisorFinder Solution contains features designed to interoperate with Non-AdvisorFinder Solutions. AdvisorFinder cannot guarantee the continued availability of such Non-AdvisorFinder Solutions, and may cease providing such functionality without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-AdvisorFinder Solution ceases to make the Non-AdvisorFinder Solution available for interoperation with the corresponding AdvisorFinder Solution features in a manner acceptable to AdvisorFinder. Customer acknowledges that Customer is solely responsible for the origination, payment and maintenance of any third-party applications it intends to use in connection with the AdvisorFinder Solution. Additionally, AdvisorFinder disclaims all responsibility for any acts or omissions of any Non-AdvisorFinder Solutions. Any Non-AdvisorFinder Solutions are governed by their own term and conditions to which Customer may agree. Customer engages such third-parties at its own risk.
1.5 Customer Responsibilities.
(A) Customer will (a) be responsible for Designated Users’ compliance with this Agreement, Documentation and Orders, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the AdvisorFinder Solution, and the interoperation of any Non-AdvisorFinder Solution with which Customer uses the AdvisorFinder Solution, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the AdvisorFinder Solution, and notify AdvisorFinder promptly of any such unauthorized access or use, (d) use AdvisorFinder Solution only in accordance with this Agreement, Documentation, Orders and applicable laws and government regulations, and (e) comply with terms of service of any Non-AdvisorFinder Solutions with which Customer uses the AdvisorFinder Solution. Any use of the AdvisorFinder Solution in breach of the foregoing by Customer or Designated Users that in AdvisorFinder’s judgment threatens the security, integrity or availability of AdvisorFinder’s services, may result in AdvisorFinder’s immediate suspension of Customer’s access to the AdvisorFinder Solution, however AdvisorFinder will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.
(B) Customer acknowledges and agrees that AdvisorFinder is not acting in any capacity as an investment adviser, nor is AdvisorFinder registered as an investment adviser or engaged in providing investment advice. Customer acknowledges and agrees that Customer shall be responsible for presenting information on AdvisorFinder in a manner that is consistent with the rules and requirements of the Investment Advisers Act of 1940 (the “Advisers Act”), including Rule 206(4)-1 regarding investment adviser marketing (the “Marketing Rule”). Customer acknowledges and agrees that AdvisorFinder (i) is relying on Customer’s representation and warranty that all information presented is in compliance with the Advisers Act and Marketing Rule, and (ii) takes no responsibility in reviewing the information that is presented by Customer on AdvisorFinder or reviewing such information’s compliance with the Advisers Act and the Marketing Rule. Customer acknowledges and agrees that Customer is responsible for periodically reviewing the information presented on AdvisorFinder and ensuring that the information presented is accurate at all times.
(C) Customer acknowledge and agrees that to the extent Customer allows or presents any reviews, testimonials, and/or endorsements, including any reviews, testimonials and/or endorsements published by third-parties, (collectively, “Reviews”) on AdvisorFinder, it shall be responsible for ensuring the accuracy of such Reviews and presenting such Reviews in a manner consistent with the rules and requirements, including, but not limited to, any disclosure requirements under the Advisers Act and the Marketing Rule. Customer acknowledges and agrees that AdvisorFinder is not responsible in any way for ensuring such Reviews (i) are accurate and (ii) in compliance with the Advisers Act and the Marketing Rule. Furthermore, Customer acknowledges and agrees that AdvisorFinder (i) is relying on Customer’s representation and warranty that all Reviews presented are in compliance with the Advisers Act and Marketing Rule, and (ii) takes no responsibility in reviewing the Reviews that is presented by Customer on AdvisorFinder or reviewing such information’s compliance with the Advisers Act and the Marketing Rule. Customer acknowledges and agrees that Customer is responsible for periodically reviewing the Reviews presented on AdvisorFinder and ensuring that the information presented is accurate at all times.
(D) Customer acknowledge and agree that AdvisorFinder is a subscription-based platform and that AdvisorFinder does not have any type of referral or solicitor arrangement in place with the Customer or the Investment Advisors. AdvisorFinder is not currently and will not in the future be acting as a placement agent, solicitor, promoter or broker-dealer for any of the Customer or the Investment Advisors on the website. Furthermore, You acknowledge and agree that AdvisorFinder (i) does not introduce or refer, in any way, potential investors to the Investment Advisors, (ii) does not take any form of compensation (including referral, promotor or other compensation) for the introduction of investors with Investment Advisors; (iii) does not receive any type of compensation (whether referral or other compensation) for any advice rendered on the website. Customer acknowledge and agree that the only compensation AdvisorFinder receives is the subscription fee from Investment Advisors for use of the AdvisorFinder website.
1.6 Subscription-based Fees.
Customer acknowledges and agrees that AdvisorFinder (i) takes no responsibility in reviewing the information or advice provided by an Investment Advisor on AdvisorFinder’s website and (ii) does not directly advise clients or assume responsibility for management or supervision of client assets. Customer acknowledges and agrees that AdvisorFinder makes no representation and bears no responsibility for the quality of the investment advice (whether general or personalized, oral or written) that an Investment Advisor renders to and on behalf of a client. Customer is responsible for reviewing all the information presented on the AdvisorFinder website and for conducting their own due diligence prior to forming a business relationship.
Unless otherwise specified, capitalized terms used in this Agreement will have the meanings attributed to them in this Section 2.
“AdvisorFinder Solution” means the object code versions of the AdvisorFinder software identified on an Order and includes related Server Software, Client Software, Updates, and Documentation, but does not include Open Source Software, which is provided pursuant to Section 3.6.
“Affiliate” means an entity, which directly or indirectly controls, is controlled by or is under common control with a Party to this Agreement.
“Client Software” means the object code versions of the desktop client software for the licensed AdvisorFinder Solution.
“Customer Data” means electronic data and information submitted by or for Customer to the AdvisorFinder Solution, excluding Non-AdvisorFinder applications.
“De-Identified Data” means any data, including data derived from Confidential Information, that anonymized such that Customer and its personnel may not be identified as being related to such data.
“Designated User” means the number of users with unique login credentials for whom Customer has purchased rights to use the AdvisorFinder Solution, as set forth on the applicable Order. Designated Users may consist of: (i) employees and independent contractors of Customer and its Affiliates, and (ii) individual representatives of vendors and/or service providers of Customer and its Affiliates.
“Documentation” means AdvisorFinder’s standard written materials and specifications for the AdvisorFinder Solution licensed by Customer.
“Effective Date” means for Orders submitted to AdvisorFinder, the date that AdvisorFinder accepts the Order.
“Hosted Services” means the remote access and use of a hosted version of the AdvisorFinder Solution as hosted by AdvisorFinder.
“License Term” means the subscription period for use of the AdvisorFinder Solution, as identified on the applicable Order. Each renewal is a separate License Term.
“Maintenance Support Services” means the support services provided by AdvisorFinder as described in Section 4.
“Release” means any new version of the AdvisorFinder Solution that AdvisorFinder may from time to time introduce and market generally as a distinct licensed product and which AdvisorFinder may make available to Customer at an additional cost under a separate Order.
“Server Software” means the object code server software version of the AdvisorFinder Solution, as identified on the applicable Order.
“Update” means additions, upgrades, or modifications to the AdvisorFinder Solution. Updates do not include Releases.
3.1 License Grant. Subject to the terms and conditions of this Agreement, AdvisorFinder hereby grants to Customer during the License Term, a non-exclusive, non-transferable and non-sublicenseable license to: (a) access, install and use the Client Software on supported environments for up to the number of Designated Users; and (b) use, access, and for AdvisorFinder Solutions not hosted by AdvisorFinder, copy the Server Software on supported environments for up to the number of copies identified on the Order for Customer’s internal business purposes.
3.2 Hosting. AdvisorFinder shall, at its own expense, provide for the hosting of the Services, provided that nothing herein shall be construed to require AdvisorFinder to provide for, or bear any responsibility with respect to any telecommunications or computer network hardware required by Subscriber, any Authorized User or any other user to provide access from the Internet to the Services.
3.3 License Restrictions. The AdvisorFinder Solution may not be modified, disclosed, reverse-engineered, disassembled, or decompiled except and to the extent allowed by applicable law. Customer shall not transfer, sell, license, sublicense, outsource, rent or lease the AdvisorFinder Solution or use it for service bureau or other third-party use. All rights not expressly granted hereunder are reserved. Customer is solely responsible and liable for the use of and access to the AdvisorFinder Solution by Designated Users and for all files and data transmitted, shared, or stored using the AdvisorFinder Solution. Customer acknowledges and agrees that the licenses granted herein are neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by AdvisorFinder with respect to future functionality or features.
3.4 Ownership. All right, title, and interest, including without limitation all intellectual property rights, in and to the AdvisorFinder Solution, including any and all modifications, enhancements, derivative works, Updates and Releases, are the sole and exclusive property of AdvisorFinder and its licensors. Customer shall not remove, and shall reproduce on any permitted copies, all proprietary, copyright, trademark and trade secret notices contained in or placed upon the AdvisorFinder Solution. Customer will take reasonable precautions (including the precautions used for Customer's own confidential information) to prevent the unauthorized use or disclosure of the AdvisorFinder Solution, the Documentation, or the results of any performance or benchmark tests of the AdvisorFinder Solution. Customer will not allow the Software or any performance or benchmark test results to be made available to any third party unless AdvisorFinder approves that disclosure.
3.5 Feedback. Customer may from time to time provide suggestions, comments for enhancements or functionality or other feedback to AdvisorFinder with respect to the AdvisorFinder Solution or other of AdvisorFinder’s products and services (“Feedback”). AdvisorFinder will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. Customer hereby grants to AdvisorFinder a royalty-free, fully paid up, worldwide, transferable, sublicensable (through multiple tiers), irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback in whole or in part; and (b) use the Feedback and/or any subject matter thereof, in whole or in part, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback in whole or in part.
3.6 Open Source Software. Customer agrees that any software or materials which may be made available by AdvisorFinder, or otherwise obtained or used by Customer, subject to an open source license or other open source terms (“Open Source Software”) shall be and shall remain subject to the terms and conditions of the original providers and are not part of the AdvisorFinder Solution. Open Source Software terms are made available either with the AdvisorFinder Solution or through the administration interface of the applicable AdvisorFinder Solution. The AdvisorFinder Solution shall not include any Open Source Software licensed under any “viral” or “copyleft” license.
AdvisorFinder provides Maintenance Support Services for the License Term at no additional charge under the terms set forth in the Order. As part of Maintenance Support Services, AdvisorFinder will make available to Customer all Updates to the supported AdvisorFinder Solution that AdvisorFinder makes generally available to its other customers. As needed, Customer shall provide AdvisorFinder access to the AdvisorFinder Solution to install such Updates if required by AdvisorFinder. Customer agrees to deploy any critical Updates, as identified by AdvisorFinder, within five (5) days following receipt. AdvisorFinder will not be liable to Customer for damages, liabilities, fines, costs, and/or expenses, including costs of litigation and reasonable attorneys’ fees, which Customer may incur, based upon or arising out of Customer’s failure to implement any critical Updates.
5.1 Payment. Customer shall pay the fees specified in the Order annually in advance of the commencement of Services, unless otherwise noted in the Order. Orders are firm commitments of Customer and are not cancelable by Customer. For Orders made directly with AdvisorFinder,(i) Customer shall pay invoices in U.S. dollars within thirty (30) days of the invoice date and without offset or deduction, and (ii) all payment terms are subject to approval of Customer’s creditworthiness, which approval may be withdrawn at any time; and (iii) payments are non-refundable except as otherwise explicitly stated in this Agreement and AdvisorFinder may apply a late charge on overdue invoices at a rate of one and one-half (1.5%) per month or the maximum allowed by law, whichever is less. AdvisorFinder reserves the right to suspend or terminate Customer’s access to the AdvisorFinder Solution for any invoices remaining unpaid at least forty-five (45) days after the date of the invoice.
5.2 Taxes. With the exception of applicable United States sales taxes, which shall be computed and set forth as a separate line item in an applicable invoice, all fees are exclusive of any other value-added tax, sales tax, customs duties, or similar taxes or imposts, including withholding taxes, and shall be made by Customer without deduction therefore. Customer shall pay all such taxes or duties, except taxes based on AdvisorFinder’s net income, and reimburse AdvisorFinder if either is required to pay any such taxes or duties.
5.3 Automated Reporting. Reporting data does not include the content of any emails or attachments, file names or any personally identifiable information. The transmitted information contains aggregate non-personal usage information for each day the AdvisorFinder Solution is in use, including but not limited to: (i)the number and type senders and recipients, (ii) account usage information, and(iii) the type of AdvisorFinder Solution features used and related data. Customer will not in any way attempt to configure the AdvisorFinder Solution or create systems that prevent the transmission or delivery of such usage data. AdvisorFinder uses such data only for Order and Agreement compliance and AdvisorFinder’s own internal business purposes and such data shall be considered AdvisorFinder’s Confidential Information AdvisorFinder only discloses such data (a) in an aggregated form with data from other customers in which neither Customer’s identity nor that of Designated Users are revealed, or (b) as required by applicable law. To the extent that such data demonstrates that Customer has exceeded the terms of the Order, either in the number of Designated Users or services accessed, then AdvisorFinder may issue Customer an invoice upon the Agreement anniversary date for the additional use of the AdvisorFinder Solution at AdvisorFinder’s then current rates.
6.1 Confidential Information. Each Party agrees not to use the Confidential Information of the other Party for any purpose other than strictly for the purpose of performing its obligations or exercising its rights under this Agreement. Additionally, except as authorized below, each Party agrees to maintain in confidence and not disclose any Confidential Information acquired directly or indirectly from the other Party. “Confidential Information” means unencrypted information and materials regarding matters that include, but are not limited to, those of a technical, financial, commercial, business, or other proprietary nature. The results of any performance, penetration and/or benchmark tests of the AdvisorFinder Solution shall be the Confidential Information of AdvisorFinder. Confidential Information does not include any information which (a) is or becomes publicly known other than through a breach of this Agreement by the receiving Party; (b) is already known to the receiving Party at the time of disclosure as evidenced by the receiving Party’s written documentation, provided that it was not previously obtained directly or indirectly by the receiving Party from the disclosing Party; (c) is lawfully received by the receiving Party from a third party having no obligation of confidentiality with respect thereto; (d) is proven by receiving Party to have been independently developed by employees of the receiving Party who have not had direct or indirect access to, or directly or indirectly received any, Confidential Information under this Agreement; or (e) is authorized in writing by the disclosing Party to be released from the confidentiality obligations herein. AdvisorFinder may share Customer Confidential Information with its parent and subsidiary companies (“Affiliates”), but shall remain liable for any act or omission of such Affiliates in violation of this Agreement. Each Party agrees that in the event of such Party’s actual or threatened violation of the provisions of this Section, the other Party will not have an adequate monetary remedy and shall be entitled to seek appropriated immediate injunctive relief without any requirement to post bond, in addition to any other available remedies.
Notwithstanding the foregoing, AdvisorFinder may use aggregated De-Identified Data for general research and development purposes, improving its existing products and services, marketing purposes, and any other business purposes. AdvisorFinder agrees that it shall not attempt tore-identify any aggregated De-Identified Data unless such re-identification complies with the terms of this Agreement. AdvisorFinder further agrees that it shall not transfer De-Identified Data to any other party unless that party agrees not to attempt re-identification; provided, however, that AdvisorFinder may transfer De-Identified Data to its successor pursuant to a merger, consolidation or sale of substantially all of its assets pursuant to Section 12of this Agreement.
6.2 Customer Protected Data. Customer acknowledges that AdvisorFinder does not need or require access to any files or attachments stored or transmitted with the AdvisorFinder Solution or any personally identifiable information about any Customer personnel, other than as described in Section 6.4, or customers (collectively, “Protected Data”). If Customer discovers that any Protected Date has been uploaded to the AdvisorFinder Solution, Customer agrees to remove such Protected Data immediately and to notify AdvisorFinder promptly so that such Protected Data may be permanently deleted, to the extent that it is accessible at all by AdvisorFinder.
6.3 Encryption. For avoidance of doubt, so long as AdvisorFinder implements measures to encrypt Confidential Information both in transit and at rest, AdvisorFinder will be deemed to satisfy its obligations to maintain the confidentiality and security of such information pursuant to this Agreement.
6.4 Notice and Consent Regarding Transfer of Data. Use of the AdvisorFinder Solution requires that when a Customer’s End Users contact AdvisorFinder for customer service issues, the personal data of the Customer’s End Users (including but not limited to End User’s email addresses, first and last names, geographic location, and phone number) be processed in the United States of America by AdvisorFinder LLC, where customer support teams, computing systems and infrastructure necessary for Customer’s exercise of its rights hereunder are located.
7.1 Virus Protection Warranty. AdvisorFinder warrants to Customer that, to the best of AdvisorFinder’s knowledge as of the date of delivery, the AdvisorFinder Solution will be free from any viruses, spyware, trojans, or disabling or malicious code, provided that Server Software includes disabling mechanisms that prevent access to the Server Software following expiration of the License Term.
7.2 Customer Warranty. Customer represents and warrants to AdvisorFinder that it: (i) has the right to disclose and share all data that it uploads to the AdvisorFinder Solution; (ii) complies with all applicable laws and regulations with respect to the conduct of its operations and management of the data shared with AdvisorFinder; (iii) uses industry standard methods, practices, and procedures to protect consumer data procured as a result of its use of the AdvisorFinder Solution; and (iv) confirms that all content uploaded to the AdvisorFinder Solution is accurate and factual. Customer agrees to indemnify, defend and hold harmless AdvisorFinder and its Affiliates, directors, employees, shareholders, agents, and assigns against any claims arising out of or in connection with its breach of this Section 7.2 or any other terms of this Agreement. Furthermore, Customer covenants and agrees that its use of AdvisorFinder and Customer’s presentation of information on AdvisorFinder, including any Reviews published by Customer or third-parties, shall at all times be in compliance with the rules and requirements of the Advisers Act and the Marketing Rule. Customer represents and warrants that it has internal compliance policies and procedures in place with respect to the presentation of information and marketing materials, and that Customer will periodically review and update any information presented on AdvisorFinder to ensure all information presented is accurate and in compliance with applicable laws, including the Advisers Act and the Marketing Rule. Furthermore, with respect to any Reviews published or presented on AdvisorFinder, Customer covenants and agrees that such Review shall be in compliance with the Advisers Act and the Marketing Rule, and that Customer shall make all required disclosures on AdvisorFinder with respect to such Reviews.
7.3 Disclaimer. THE EXPRESS LIMITED WARRANTIES IN THIS SECTION ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS EXPRESS OR IMPLIED, CONTRACTUAL OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. ADVISORFINDER DOES NOT WARRANT THAT THE USE OF THE ADVISORFINDER SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL NONMATERIAL DEFICIENCIES OR ERRORS ARE CAPABLE OF BEING CORRECTED. ADVISORFINDER MAKES NO REPRESENTATIONS OR WARRANTIES CONCERNING THE PRODUCTS OR ANY HOSTED SERVICES PROVIDERS, AND SHALL HAVE NO LIABILITY WITH RESPECT TO ANY ACT OR OMISSION OF ANY CHANNEL PARTNER OR HOSTED SERVICES PROVIDERS. NO HOSTED SERVICES PROVIDER SHALL HAVE ANY AUTHORITY TO BIND ADVISORFINDER TO ANY TERMS OR CONDITIONS OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
IN NO EVENT SHALL ADVISORFINDER, BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, REVENUE, DATA OR USE ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE USE OR PERFORMANCE OF THE PRODUCTS OR SERVICES SUPPLIED HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. ADVISORFINDER’S AGGREGATE LIABILITY FOR DAMAGES SHALL IN NO EVENT EXCEED THE TOTAL FEES RECEIVED FROM THE LICENSES GRANTED TO CUSTOMER UNDER THIS AGREEMENT IN THE PREVIOUS TWELVE MONTHS FOR THE APPLICABLE ADVISORFINDER SOLUTION. THE PARTIES EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE PRICES AND TERMS OF THIS AGREEMENT WERE MADE IN RELIANCE UPON THE LIMITATION OF LIABILITY SPECIFIED HEREIN, WHICH ALLOCATE THE RISK BETWEEN ADVISORFINDER AND CUSTOMER.
9.1 Term. This Agreement commences on the Effective Date and shall continue for the License Term on the applicable Order, unless terminated earlier as provided in this Agreement. Unless otherwise expressly set forth on the Order the License Term will be renewed automatically for additional periods unless the Customer provides AdvisorFinder with written notice of its intention to not renew at least thirty (30) days prior to the end of the then-current License Term (each a “Renewal Term”). AdvisorFinder may increase the License fees described in the Order to its then current rates for each such Renewal Term. The initial License Term together with any Renewal Terms will be considered the “Term” of the Agreement.
9.2 Termination. Either Party may terminate this Agreement or any license granted under this Agreement if: (i) the other Party breaches any material provision of this Agreement for any reason, which breach has not been cured within thirty (30) days of written notice; or (ii) the other Party becomes subject of a voluntary or involuntary petition in bankruptcy, or any proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors, which is not dismissed within sixty (60) days after commencement.
9.3 Consequences of Termination. Upon termination or expiration of this Agreement, for any reason, all rights granted under this Agreement shall terminate, and Customer will promptly return to AdvisorFinder or, at AdvisorFinder’s request, destroy, the applicable AdvisorFinder Solution and provide AdvisorFinder with written certification by an officer of Customer certifying compliance with the foregoing. Customer’s obligations to pay taxes and any amounts past due along with the following provisions shall survive any expiration or termination of this Agreement: Sections 3.3, 3.4, 3.5, 6, 7, 8, 9.3, and 10.
10.1 Notice. Notices under this Agreement shall in writing and delivered via electronic mail, facsimile (with confirmation of receipt), in person, by overnight courier, or by prepaid certified or registered mail, return receipt requested, to a Party at its addresses set forth on the Order, as amended by notice pursuant to this Section, with a copy of any notice under the terms of this Agreement (except for invoices and other routine correspondence) forwarded to: Kaleo Legal, 4456 Corporation Lane, Suite 135, Virginia Beach, VA 23465. Such copy shall not constitute effective notice. Notice by mail shall be deemed received five (5) days after deposit in the U.S. mails, with other notice deemed effective upon receipt.
10.2 Assignment. Neither Party may assign this Agreement without the prior written consent of the other Party, provided that either Party may transfer or assign this Agreement without such consent, whether by operation of law or otherwise, pursuant to a merger, corporate reorganization, acquisition or the sale of all or substantially all of the assets to which this Agreement relates. AdvisorFinder may delegate its obligations to AdvisorFinder Affiliates provided that AdvisorFinder shall remain liable for proper performance of this Agreement. Any other purported assignment by Customer shall be null and void. This Agreement shall bind the Parties and their permitted successors and assigns.
10.3 Modification, Waiver, and Remedies. No modification, alteration, amendment or addition shall be effective unless made in writing, dated and signed by a duly authorized representative of each Party. No waiver of any breach hereof shall be held to be a waiver of any other or subsequent breach. Each Party’s rights and remedies are in addition to any other rights and remedies provided by law or in equity. No choice of any remedy shall constitute an election of remedies.
10.4 Publicity. Customer hereby consents to AdvisorFinder's inclusion of Customer's name in a customer listing, provided that Customer is not the sole Customer listed.
10.5 Force Majeure. Neither Party shall be liable to the other for delays or failures in performance resulting from causes beyond the reasonable control of that Party, including, but not limited to, acts of God, labor disputes or disturbances, material shortages or rationing, riots, acts of war, governmental regulations, communication or utility failures, or casualties. The foregoing shall not apply to Customer’s payment and the mutual confidentiality obligations of the Parties.
10.6 Export. Customer acknowledges that the AdvisorFinder Solution is subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by Customer and the Designated Users with United States and local country laws and regulations and shall not export, use or transmit the AdvisorFinder Solution (i) in violation of any export control laws of the United States or any other country, (ii) to any country requiring as a condition of import the disclosure of source code, or (iii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
10.7 Government Licensing. If the AdvisorFinder Solution is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that (i) the AdvisorFinder Solution and accompanying materials constitute “commercial computer software” and “commercial computer software documentation” under paragraphs 252.227.7014 and 252.227.7202 of the DoD Supplement to the Federal Acquisition Regulations (“DFARS”) or any successor regulations, and the Government is acquiring only the usage rights specifically granted in this Agreement; (ii) the AdvisorFinder Solution constitutes “restricted computer software” under paragraph 52.227-19 of the Federal Acquisition Regulations (“FAR”) or any successor regulations and the government’s usage rights are defined in this Agreement and the FAR.
10.8 Governing Law. This Agreement shall be governed by the laws of the United States and the State of Virginia, without reference to conflict of laws principles. Any dispute between the Parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in the state of Virginia. Each Party hereby consent to the exclusive jurisdiction and venue of such courts. Each Party hereby waives its right to a trial by jury for any disputes between the Parties arising from this Agreement. The Parties agree that the Uniform Computer Information Transactions Act and the United Nations Convention on the International Sale of Goods will not apply to this Agreement. Any dispute by one Party to this Agreement against the other, which dispute arises from this Agreement, must be brought in accordance with this Section within one (1) year after the cause of action arises.
10.9 Arbitration. Except for collection actions for payment of fees and for the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, any controversy or claim arising out of or relating to this agreement or to its breach shall be settled by arbitration by a panel of three (3) arbitrators in accordance with the American Arbitration Rules, pursuant to arbitration to be held in Virginia Beach, Virginia. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction. The prevailing party shall be entitled to receive from the other party its attorney’s fees and costs incurred in connection with any action, proceeding or arbitration hereunder.
10.10 Severability. If any provision of this Agreement is finally determined to be contrary to, prohibited by, or invalid under applicable laws or regulations, this Agreement will be modified so as to give effect to the intent of the Parties to the maximum possible extent. The remaining provisions of this Agreement shall remain in full force and effect.
10.11 Entire Agreement; Construction. This Agreement constitutes the complete and exclusive agreement between the Parties and supersedes any and all prior communications, representations and understandings, whether written or oral. There are no third-party beneficiaries of Customer. Section headings are for convenience only and shall not affect interpretation of the relevant section. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall not be binding on the Parties hereto. All communications and notices to be made or given pursuant to this Agreement shall be in the English language. This Agreement may be executed in counterparts, each of which shall be considered an original, but all of which together shall constitute the same instrument. Each Party expressly agrees to the use and acceptance of signatures by digital or other electronic means. Execution and delivery of this Agreement may be evidenced by facsimile or PDF (Portable Document Format) and shall hold the same force and effect as an original signature for purposes of binding the Parties.
5215 Colley Ave, Suite 134
Norfolk, VA 23508
Attn: Legal Department