Last modified: May 21, 2021
We provide subscriptions to access and use our Mandate Connect™ online service (the “Platform”), to investors seeking to post RFPs and other proposals (“Investors”) and banks and asset managers seeking to respond to and submit bids in connection with such RFPs or other proposals (“Asset Managers”) subject to the terms and conditions of this agreement (this “Agreement”). “We,” “us” and “our” as used throughout this Agreement refers to EQDerivatives, Inc., an Illinois corporation. “You” and “your” as used throughout this Agreement refers to the party other than us (i.e., the Investor or the Asset Manager) accessing and using the Platform by and through its Authorized Users.
The Platform is intended only for use by professional and business users. It is not intended for use by consumers, other non-business users or minors. If you are not a professional or business user, or are not 18 or over, then you must not use the Platform and we will not accept any responsibility for any loss or damage arising from your use of the Platform in breach of this restriction.
1. Acceptance. By executing an Order Form with us or by otherwise registering to use the Platform, you also accept the terms of this Agreement. You should read this Agreement carefully for the terms and conditions that govern your use of the Platform. The individual executing the Order Form or otherwise registering to use the Platform on your behalf represents and warrants to us that he or she is fully and duly authorized to agree to be bound by this Agreement on your behalf.
2. Changes to this Agreement. We may revise and update this Agreement from time to time in our sole discretion. Via a conspicuous posting within the Platform itself and via notice by e-mail to the e-mail address we have on file for you, we will notify you of any material changes to this Agreement. If you do not agree with any changes we make to this Agreement, you may, as your sole and exclusive remedy under this Agreement and within a 30-day window following your receipt of notice of such changes, elect to terminate this Agreement upon written notice to us. For clarity, if you terminate this Agreement in accordance with the immediately preceding sentence you will not be entitled to a refund of any fees prepaid by you for the future portion of your subscription term that would have remained but for such termination. Otherwise, changes to this Agreement are effective immediately when we post them, and your continued use of the Platform following the posting of a revised Agreement means that you accept and agree to the changes. You must immediately discontinue access or use of the Platform if you do not want to agree to the revised Agreement.
3. Our Services.
a. Services. During the Term, we will use commercially reasonable efforts to provide to you the following services (the “Services”): (i) the hosting, management and operation of the Platform for remote electronic access and use by you and your Authorized Users in accordance with the authorizations granted below; (ii) the Support Services described in Section 8; and (iii) any additional services we agree to provide in your Order Form or otherwise in writing.
b. Changes to the Platform. From time to time in our sole discretion, we may make any changes to the Platform that we deem necessary or useful to improve the Platform, comply with changes in applicable laws, rules or regulations, or for any other reason, but we will not make any changes to the Platform that would materially adversely affect the features and functionality that you use on the Platform. If a change we make to the Platform materially and adversely affects your use of the Platform, then you may, as your sole and exclusive remedy under this Agreement and within a 30-day window following such change taking effect, elect to terminate this Agreement upon written notice to us. For clarity, if you terminate this Agreement in accordance with the immediately preceding sentence you will not be entitled to a refund of any fees prepaid by you for the future portion of your subscription term that would have remained but for such termination.
c. Subcontractors. We may, in our discretion, engage subcontractors to perform Services under this Agreement, but such subcontractors will be bound by confidentiality terms, duties or obligations that are substantially equivalent to Section 9 below, and we will remain liable for any act or omission by such subcontractors that would be a breach or violation of this Agreement.
d. Suspension of Services and Access. We may suspend your or any Authorized User’s access to or use of all or any part of the Services or the Platform, immediately upon written notice to you, without any liability to you or others, if (i) we’re required to do so by applicable law, a valid court order or other valid legal process; or (ii) you have or any of your Authorized Users has (A) accessed or used the Platform beyond the scope of the rights granted under this Agreement, (B) failed to comply with the limitations and restrictions described in Section 4.b, (C) been involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Platform, (D) otherwise failed to comply with this Agreement and, in each case with respect to clauses (A) through (D) above, you have failed to cure such breach within 10 days after we provide written notice to you. Our remedies in this Section are in addition to, and not in lieu of, our termination rights in Section 13 or any other rights or remedies under this Agreement, at law or in equity.
4. Right to Access the Platform and Restrictions.
a. Platform Authorization. Subject to your timely payment of the fees listed on your Order Form (if any are applicable), and so long as you and your Authorized Users otherwise comply with this Agreement, we authorize you, during the Term, and on a limited, non-exclusive and non-transferable (except in accordance with Section 17.f below) basis, to access and use the Platform by and through your Authorized Users, solely for the Permitted Use, solely as (and in the form) in which we have provided the Platform to you, strictly in accordance with this Agreement and the Documentation, and strictly in accordance with any additional limitations and restrictions on usage, users, servers or similar set forth in your Order Form.
b. Limitations and Restrictions. You must use commercially reasonable efforts to prevent unauthorized access to or use of the Platform. You must not, and you must not permit any other person or entity to, access or use the Platform except as we’ve specifically allowed in this Agreement and, in the case of any third-party content or materials (including open source components) (“Third-Party Materials”) we provide to you with the Platform, as allowed in the applicable third-party license agreement. Without limiting the generality of the preceding sentence, and except as expressly permitted in this Agreement, you and your Authorized Users must not do any of the following:
i. copy the Platform or any portion thereof, provided that you may print or download a reasonable number of copies of certain content made available on or through the Platform by using the “print” and/or “download” / “export” features of the Platform that are specifically designed for this purpose, solely as (and in the form) such features are provided to you via the Platform;
ii. modify, adapt, translate or otherwise create derivative works or improvements of the Platform or any portion thereof;
iii. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Platform or any features or functionality of the Platform to any third party for any reason, including by making the Platform available on a network where it is capable of being accessed by more than one device at any time or through any time-sharing, service bureau or software as a service arrangement;
iv. reverse engineer, disassemble, decompile, decode, adapt or otherwise attempt to derive, gain access to or discover the source code of the Platform or the underlying structure, ideas, know-how or algorithms relevant to the Platform;
v. input, upload, transmit or otherwise provide to or through the Platform any information or materials that are unlawful or injurious, or contain, transmit or activate any Harmful Code;
vi. bypass, breach or disable any security device, copy control or digital rights management tool, or other protection used by the Platform;
vii. attempt to gain unauthorized access to, damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm in any manner (A) the Platform, (B) the server on which the Platform is stored, (C) any server, computer or database connected to the Platform, or (D) our ability to provide services to any third party;
viii. cause the Platform or portions of it to be displayed, embedded or appear to be displayed by framing, deep linking, in-line linking or similar method on any other site;
ix. use any robot, spider or other automatic device, process or means to access the Platform for any purpose, including monitoring or copying any of the material on the Platform;
x. access or use the Platform in any way that infringes, misappropriates or otherwise violates any intellectual property right, privacy right or other right of any third party, or that violates any applicable local, state, provincial, federal, foreign or international law, rule or regulation;
xi. access or use the Platform for purposes of (A) benchmarking or competitive analysis, (B) developing, producing, marketing, distributing, licensing or selling any product or service that may compete with the Platform, or (C) disclosing to our competitors, for any purpose, otherwise non-public information about the Platform; or
xii. knowingly aid or assist any Authorized User or other person or entity in taking any of the actions prohibited by this Section 4.b.
You must promptly notify us should you learn that you, any Authorized User or any other person or entity has taken any action prohibited by this Section 4.b. You agree you will ensure and be responsible for your Authorized Users’ compliance with the terms and conditions of this Agreement and you will be liable for any act or omission of such Authorized Users that would be a breach or violation of the terms and conditions of this Agreement had you performed such act or omission directly.
5. Using the Platform.
a. Accessing the Platform. We strive to provide a reliable and useful experience when using the Platform, but we do not guarantee that the Platform will be available at any specific time or that it will be free of errors, and we will not be liable for any reason if you cannot access the Platform or if an error in the Platform hinders any of its features or functionality.
b. Account Security. If you or your Authorized Users choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you (and the applicable individual) must treat such information as confidential, and you (and the applicable individual) must not disclose it to any other person or entity. If you permit any other person to use your account, you will be responsible for their activities while using the Platform. You agree to notify us promptly of any unauthorized access to or use of any user name or password assigned to you or any other breach of security. Accessing the Platform without proper user name and password is strictly prohibited, constitutes a breach of this Agreement resulting in the termination of your right to use the Platform, and may violate copyright and other laws.
d. Disclaimer – Platform as Neutral Facilitation Tool Only. The Platform is a communications and workflow management facilitation tool that attempts to enable connections between Investors and Asset Managers. We do not take part in the interactions between Investors and Asset Managers, other than to post information on the Platform and/or facilitate communications between Investors and Asset Managers using the tools on the Platform that are designed for this purpose, in each case as directed by you. We are not responsible for such interactions. You are solely responsible for such interactions. Our business is solely the provision of the Platform for use in the form provided by us to its users. We are not a party to any relationship or contract between Investors and Asset Managers. All such dealings are solely between Investors and Asset Managers. IN NO EVENT WILL WE OR OUR SUBCONTRACTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY DISPUTES BETWEEN YOU AND ONE OR MORE INVESTORS OR ASSET MANAGERS OR FOR ANY ALLEGED FAILURE OF PERFORMANCE BY ONE OR MORE INVESTORS OR ASSET MANGERS OF ANY CONTRACT OR ARRANGEMENT BETWEEN YOU AND SUCH INVESTORS OR ASSET MANAGERS. IN THE EVENT THAT YOU HAVE A DISPUTE WITH ONE OR MORE INVESTORS OR ASSET MANAGERS, YOU HEREBY AGREE TO FULLY INDEMNIFY AND RELEASE US (AND ALL OF OUR OFFICERS, DIRECTORS, SUBCONTRACTORS, AGENTS, INVESTORS, SUBSIDIARIES, AND EMPLOYEES) FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES.
6. Additional Terms Applicable to Investors. If you are an Investor, you hereby acknowledge and agree to the following additional terms and conditions set forth in this Section 6:
a. Use of Your Data on the Platform. As a condition to accessing and using (and as part of your registration for) the Platform, we may require you to submit certain historical information regarding you past RFPs and proposals to engage asset managers to manage your assets and investments, including information about prior investment strategies, amounts invested, and which asset managers were awarded contracts. For clarity, (i) this information is Your Data for all purposes under this Agreement, including for the purpose of the rights granted to us with respect to Your Data in Section 12.c below, and (ii) as part of the rights you grant to us with respect to Your Data in Section 12.c below, you specifically authorize us to, on your behalf, post this information on the Platform for display and review, on a non-confidential basis, by any Asset Managers participating on the Platform. We give no assurances regarding, are not responsible for, and will not be liable to you in any manner for, any use or disclosure of this information by any Asset Managers participating on the Platform.
b. Disclaimer of Endorsement or Results. The Platform and any content provided by us on the Platform is provided for general information purposes only and is not intended to be and does not offer financial, investment, professional, placement or other advice and should not be relied upon as such. The presence of any particular Asset Manager on the Platform does not in any manner constitute, and should not be construed as or relied upon as, an endorsement of any kind by us of any particular Asset Manager. Nothing on the Platform is intended to be, and should not be construed as or relied upon as, advice to you on the merits or shortcomings of any particular Asset Manager. We are not responsible for, and do not undertake in any manner to, screen, vet or assess the qualifications, certifications, registrations, or licensure status of any particular Asset Manager. You are solely responsible for assessing such qualifications, certifications, registrations and licensure status. Therefore, we cannot and do not control, are not responsible or liable for, and make no representations, warranties, guarantees or other commitments of any kind regarding (i) the quality, timeliness, availability, suitability, reliability, or legality of any particular Asset Manager or any services advertised or promoted by any Asset Managers, (ii) the truth or accuracy of any statements, advertisements or promotional materials supplied by Asset Managers, (iii) the skills, talents, experience and/or qualifications of any Asset Managers, or (iv) whether any service offered by any Asset Managers will meet your particular needs or requirements. We do not endorse or offer advice of any kind regarding any particular securities or investment strategy, and nothing on the Platform should be relied upon as such. YOU AGREE THAT YOUR ENGAGEMENT OF ANY PARTICULAR ASSET MANAGER AND YOUR INVESTMENT DECISIONS AND STRATEGIES (INCLUDING ON THE BASIS OF ANY ADVICE PROVIDED BY ANY PARTICULAR ASSET MANAGER) ARE AT YOUR SOLE RISK AND WE ARE NOT RESPONSIBLE OR LIABLE FOR THE PERFORMANCE OF ANY PARTICULAR ASSET MANAGER ENGAGED BY YOU OR THE RESULTS OF ANY INVESTMENT DECISIONS OR STRATEGIES MADE BY YOU.
7. Additional Terms Applicable to Asset Managers. If you are an Asset Manager, you hereby acknowledge and agree to the following additional terms and conditions set forth in this Section 7:
a. Use of Your Data on the Platform. In connection with (i) creating or updating a profile about your business to be posted on the Platform, or (ii) submitting responses to, submitting bids to, or otherwise communicating with a particular Investor in connection with RFPs and other proposals via the Platform, you may choose to submit to the Platform certain information about your business (including, but not limited to, information about your fees or the historical performance of your business). For clarity, (A) this information is Your Data for all purposes under this Agreement, including for the purposes of the rights granted to us with respect to Your Data in Section 12.c below, and (B) as part of the rights you grant to us with respect to Your Data in Section 12.c below: (x) if you choose to submit this information for the purpose described in clause (i), then you specifically authorize us to, on your behalf, post this information on the Platform for display and review, on a non-confidential basis, by all other users of the Platform; and (y) if you choose to submit this information for the purpose described in clause (ii), then you specifically authorize us to, on your behalf, share this information with the particular Investor to whom you have directed us, through the Platform, to submit your response, bid or other communication. We give no assurances regarding, are not responsible for, and will not be liable to you in any manner for, any use or disclosure of this information by any other user of the Platform.
b. Disclaimer of Endorsement or Results. The Platform and any content provided by us on the Platform is provided for general information purposes only and is not intended to be and does not offer financial, investment, professional, placement or other advice and should not be relied upon as such. Our inclusion of any particular RFPs or proposals from any particular Investor on the Platform does not in any manner constitute, and should not be construed as or relied upon as, an endorsement of any kind by us of any particular RFP or proposal or Investor or the suitability, availability, timeliness, legality or appropriateness of any of the same as a prospect or opportunity for your particular business. Nothing on the Platform is intended to be (and should not be construed as or relied upon as) an endorsement of any particular Asset Managers, and we do not advise Investors on the merits or shortcomings of any particular Asset Manager. Your access to and use of the Platform and payment of the associated Fees does not in any way guarantee that you will be awarded any particular contract or otherwise win any particular business with any particular Investor, does not provide you with “premium placement” or other superior visibility or promotional consideration vis-à-vis any other Asset Manager that may access and use our Platform, and does not even guarantee that your responses or bids will be seen or reviewed by any particular Investor. Whether any particular Investor chooses to award any particular contract or particular business to any particular Asset Manager is not our responsibility and not within our control.
8. Support Services. We will provide, during our normal business hours: (a) e-mail support (or other online support made available to our customers from time to time) to provide technical and operational assistance for the use of the Platform, including responses to questions about the documented features and functionality of the Platform and usage thereof, management of user accounts for Authorized Users, assistance with interpretation and use of the Documentation, and assistance with interpretation of error or warning messages appearing in dashboards or alerts, and (b) attempts to correct any reproducible failure of the Platform to perform in accordance with its Documentation, including case management to help track the status of any such failures (“Support Services”). You must provide all information and assistance that we reasonably request in connection with providing such Support Services. Unless otherwise agreed by us in writing, our Support Services do not include: (i) support outside of our normal business hours, (ii) support for software or hardware that is not ours; (iii) on-site training or assistance; or (iv) performance of any professional, customization or consulting services.
9. Confidentiality. During the Term and thereafter, each receiving party (each, a “Recipient”) will hold in strict confidence any proprietary or confidential information (collectively, “Confidential Information”) of the other party (the “Discloser”), and will not disclose Discloser’s Confidential Information to any third party (other than our subcontractors as permitted in Section 3.c above) nor use the Discloser’s Confidential Information for any purpose except for carrying out its obligations or exercising its rights under this Agreement. For the avoidance of doubt, all non-public information related to the Platform is our Confidential Information, and Your Data is your Confidential Information. These restrictions will not restrict the use or disclosure of information disclosed by one party to the other that (i) is or becomes publicly known other than as a result of any act by the Recipient, (ii) is lawfully received by the Recipient from a third party not in a confidential relationship with the Discloser, or (iii) was already rightfully known by the Recipient prior to receipt thereof from the Discloser. Additionally, the Recipient may disclose Confidential Information to the extent required to do so in order to comply with applicable law, a valid order of a court of competent jurisdiction or governmental agency, or other valid legal process, provided that the Recipient must give the Discloser reasonable prior written notice to permit the Discloser to challenge or limit such required disclosure.
10. Security and Data.
a. Privacy Practices. We process all Personal Data consistent with our Mandate Connect Data Processing Addendum available online at Mandate Connect Data Processing Addendum (the “DPA”), which is hereby incorporated into this Agreement by reference.
b. Security Program. We will implement commercially reasonable administrative, technical and physical safeguards to protect against anticipated threats or hazards to the security, confidentiality or integrity of Your Data that we process on your behalf, including the unauthorized or accidental acquisition, destruction, loss, alteration or use of, and the unauthorized access to, Your Data.
c. Security Incidents. We will promptly report to you any unauthorized acquisition, access, use or disclosure of Your Data maintained on servers owned or otherwise licensed by us from a third party (e.g., the Hosting Services Provider) of which we are aware (each, a “Security Incident”). We will also use diligent efforts to investigate and contain any such Security Incident in a timely manner and use reasonable best efforts to prevent a recurrence of any similar Security Incident. If any such Security Incident results from our material breach of Section 9 above or this Section 10, then we will reimburse you for the reasonable costs and expenses you may incur in providing any notification of such Security Incident that is required by applicable law.
d. Reputable Hosting Services Provider. During the Term, we may use Salesforce (the “Hosting Services Provider”) to host the Platform and to store and host Your Data, enabling remote electronic access via the cloud. You consent to our use of the Hosting Services Provider to provide hosting services and acknowledge and agree that the Hosting Services Provider’s (i) security programs, policies, procedures, controls and technologies, and (ii) data backup and disaster recovery policies and procedures, are consistent with industry best practices thereby resulting in compliance with the requirements of this Section 10. During the Term, we may in our discretion elect to engage another nationally-recognized, cloud hosting services provider that implements and maintains commercially reasonable security programs, policies, procedures, controls and technologies to perform this function, but we will provide at least 30 days’ prior written notice to you before implementing such change. If your reasonable, written objections to our change in the Hosting Services Provider, received within the 30-day window following our notice, are unable to be resolved by us prior to the change of Hosting Services Provider taking effect with respect to the storage and hosting of Your Data, then, as your sole and exclusive remedy under this Agreement, you may elect to terminate this Agreement upon written notice to us delivered within 60 days following your receipt of our original notice of change of Hosting Services Provider. For clarity, if you terminate this Agreement in accordance with the immediately preceding sentence you will not be entitled to a refund of any fees prepaid by you for the future portion of your subscription term that would have remained but for such termination.
11. Fees and Payment.
a. Fees. You will pay to us the fees and charges described in your Order Form, if any (the “Fees”) in accordance with your Order Form and this Section. Except as otherwise expressly provided in this Agreement or your Order Form, all purchases are final, all payment obligations are non-cancelable and all Fees once paid are non-refundable.
b. Taxes. The Fees do not include taxes and similar assessments. We will pass along to you the cost of all applicable sales, use and excise (and other similar) taxes, duties and charges of any kind imposed by a governmental authority on amounts payable under this Agreement, other than taxes imposed on our income. If you are exempt from such taxes, you must provide us with a true, up-to-date and complete copy of your direct pay permit or exemption certificate.
c. Payment. You will make all payments in US dollars. You will, upon our request, establish and maintain valid and updated credit card information or a valid ACH auto debit account (in each case, the “Automatic Payment Method”). Upon establishment of an Automatic Payment Method, you agree that we may charge the Fees using that Automatic Payment Method. If instead we invoice you for the applicable Fees, invoiced amounts are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information and notifying us of any changes to that information.
12. Ownership and Intellectual Property Rights.
a. EQDerivatives IP. You acknowledge and agree that we (or the respective rights holders in any Third-Party Materials) own all right, title and interest in and to in and to our name, logos and other trademarks, the Services and the Platform, including all associated features, functionality, software, content, materials and services made available thereon by us, including all new versions, updates, revisions, derivative works, improvements and modifications of the foregoing, the look and feel, ideas, algorithms, methods and concepts underlying or embedded in the foregoing and all related intellectual property rights (collectively, the “EQDerivatives IP”). To the extent we develop any corrections, enhancements, improvements, derivative works or software relating to the EQDerivatives IP based upon ideas, feedback, suggestions or joint contributions submitted by you to us (“Feedback”), you hereby grant to us a non-exclusive, worldwide, non-transferable (except in accordance with Section 17.f below), royalty-free, fully paid-up, perpetual and irrevocable right and license to use such Feedback as necessary for our business purposes. We are not granting you any right, license or authorization with respect to any of the EQDerivatives IP except as we’ve specifically provided in Section 4 above (and subject to the limitations and restrictions in Section 4.b above). We and the respective rights holders in any Third-Party materials reserve all other rights in and to the EQDerivatives IP.
b. Your Data. As between you and us, you are and will remain the sole and exclusive owner of all right, title and interest in and to all of Your Data, including all intellectual property rights relating to Your Data, subject to the rights you grant to us in Section 12.c.
c. Right to Use Your Data. During the Term, you hereby grant to us and our subcontractors all such rights and permissions in or relating to Your Data as are necessary to: (i) perform the Services and provide the Platform to you; and (ii) enforce this Agreement and exercise our rights and perform our obligations under this Agreement. Additionally, during the Term and thereafter, you hereby grant to us all such rights and permissions in or relating to Your Data, in de-identified and aggregated form only (i.e., not including any Personally-Identifiable Information or other information that identifies your business as the source), as are necessary or useful for our internal research purposes, to improve the quality of our analytics and to improve the Platform, and to prepare aggregated statistical information to be used for our business purposes.
d. Publicity Rights. We may, with prior written notice to you but without additional consent on your part, include your name, trademarks and/or logos (the “Marks”) on our website and/or in other sales and marketing materials in order to factually identify you as a current or former customer of the Platform (as the case may be). We may also, with your prior approval, include the Marks and additional information regarding the services provided to you hereunder in one or more press releases or case studies.
13. Term and Termination.
a. Term. If you are an Asset Manager, unless otherwise set forth in an Order Form executed by you and by us, (i) the initial term for your subscription is for a period of one year from the date of your Order Form, and (ii) after the initial term the subscription will automatically renew for additional one-year renewal terms, unless you cancel by giving us written notice at least 30 days prior to the start of the next renewal term, in each case unless earlier terminated by us or by you in accordance with Section 13.b below. If you are an Investor, this Agreement is effective until terminated by us or by you in accordance with Section 13.b below. The term of this Agreement (including, in the case of Asset Managers, the initial term and all renewal periods) is referred to herein as the “Term.”
b. Termination. In addition to any other termination rights described in this Agreement or your Order Form, this Agreement may be terminated at any time:
i. by us, effective upon 90 days’ prior written notice to you;
ii. if you are an Investor only, by you, effective upon 30 days’ prior written notice to us; and
iii. by either party, effective when that party provides written notice to the other, if the other party materially breaches this Agreement and such breach remains uncured 30 days after the non-breaching party provides the breaching party with written notice regarding such breach.
c. Effect of Termination.
i. The exercise of any right of termination under this Agreement will not affect any rights of either party (including rights to payment or reimbursement) that have accrued prior to the effective date of termination and will be without prejudice to any other legal or equitable remedies to which a party may be entitled.
ii. If this Agreement is terminated or expires, then: (A) except as provided in Section 12.c above, all rights, licenses and authorizations granted by one party to the other will immediately terminate, (B) we may disable your and your Authorized Users’ access to the Platform, and (C) except as provided in Section 12.c above, we each will cease all use of the other party’s Confidential Information and promptly destroy all of the other party’s Confidential Information, except that each party may retain Confidential Information in its backups, archives and disaster recovery systems until such Confidential Information is deleted in the ordinary course (so long as it remains subject to all confidentiality and other applicable requirements of this Agreement).
iii. In addition, if we terminate this Agreement in accordance with our rights in Sections 13.b.i 14.b or 15.c(iii), then we will promptly refund to you, on a pro rata basis, the share of any Fees prepaid by you for the future portion of the Term that would have remained but for such termination, calculated from the effective date of such termination and the cessation of your access to and use of the Platform.
d. Surviving Terms. Sections 4.b (Limitations and Restrictions), 9 (Confidentiality), 12 (Intellectual Property Rights), 13.c (Effect of Termination), 15 (Indemnification), 16 (Limitations of Liability), 17 (Miscellaneous), 18 (Definitions) and this Section 13.d will survive any expiration or termination of this Agreement.
14. Representations and Warranties.
a. By You. You represent and warrant to us that: (i) you either own or have the legal right to use (and permit us and our subcontractors to access and use in accordance with this Agreement) all of Your Data; and (ii) our and our subcontractors’ access to and use of Your Data in accordance with this Agreement will not infringe, misappropriate or otherwise violate any intellectual property right or privacy right of any third party or violate any applicable local, state, provincial, federal, foreign and international laws, rules and regulations. You will immediately notify us in writing if you become aware of any changes, inaccuracies or failures on your part to comply with the foregoing representations, warranties and covenants in this Section 14.a, and cooperate with us in every reasonable way in our resulting mutual efforts to ensure full compliance with applicable laws, rules and regulations.
b. Regarding the Platform – Beta Version. You acknowledge and agree that the Platform is a new product being provided to you in beta form and not in final production form; that we may discover errors, design flaws, inaccuracies or other problems (“Errors”) in the Platform that will need to be corrected; that it is common for beta versions of software products not to work as intended when first introduced and to experience Errors to be resolved during the normal troubleshooting and product development process; and that the Error correction process with respect to beta versions of software products may take longer than the period of time normally required to correct Errors for final production versions of software products. You agree that the existence of Errors in the Platform shall not be considered a breach or default under this Agreement. We will, at our sole cost and expense, use commercially reasonable efforts to correct such Errors within a period of time that is reasonable under the circumstances, but should we conclude that correcting a particular Error or related set of Errors is not feasible within commercially reasonable standards, then we may terminate this Agreement immediately upon written notice to you.
c. Disclaimer of Warranties. IN ADDITION TO THE DISCLAIMERS STATED ELSEWHERE IN THIS AGREEMENT, ALL SERVICES AND THE PLATFORM ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND WE HEREBY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, NEITHER WE NOR ANYONE ASSOCIATED WITH US REPRESENTS OR WARRANTS THAT THE PLATFORM WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED OR THAT THE PLATFORM WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
a. By Us. We will defend you from and against any Claims brought by a third party, and will indemnify and hold you harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that the Platform (excluding Your Data) or your use thereof in accordance with this Agreement and the Documentation infringe any U.S. patent, copyright, or trademark of such third party, or misappropriates the trade secret of such third party (each, an “Infringement Claim”). Notwithstanding the foregoing, we will have no liability or obligation with respect to any Infringement Claim to the extent based upon or arising out of: (i) access to or use of the Platform in combination with any hardware, system, software, network or other materials or service not provided by us (or authorized in the Documentation or otherwise in writing by us); (ii) modifications or configurations made to the Platform, as applicable, by anyone other than us (or a party acting under our direction) without our prior written consent; or (iii) any action taken by you or any Authorized User relating to use of the Platform, as applicable, that is outside the scope of the rights and authorizations granted in this Agreement.
b. By You. You will defend us and our subcontractors and our and their respective personnel from and against any Claims brought by a third party, and you will indemnify and hold us and our subcontractors and personnel harmless from any Losses associated with such third party Claims, in each case to the extent the same are based on allegations that you have breached any provision in Sections 4.b or 14.a.
c. Mitigation. If the Platform is, or in our opinion is likely to be, the subject of an Infringement Claim, or if your or any Authorized User’s use of the Platform is enjoined or threatened to be enjoined, we may, at our option and our sole cost and expense: (i) obtain the right for you to continue to use the Platform as contemplated by this Agreement, (ii) modify or replace the Platform to make it non-infringing, without causing a material loss of features or functionality, or (iii) if the remedies in clauses (i) and (ii) are not feasible within commercially reasonable standards, then we may terminate this Agreement upon written notice to you.
d. Indemnification Procedures. Each party must promptly notify the other party in writing of any Claim for which such party believes it is entitled to be indemnified pursuant to this Section 15. The party seeking indemnification (the “Indemnified Party”) must cooperate with the other party (the “Indemnifying Party”) at the Indemnifying Party’s sole cost and expense. The Indemnifying Party will immediately take control of the defense, investigation and/or settlement of such Claim and shall employ counsel of its choice to handle and defend the same, at the Indemnifying Party’s sole cost and expense; provided, however, that the Indemnifying Party may not without the Indemnified Party’s settle any Claim without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned or delayed. The Indemnified Party’s failure to perform any obligations under this Section 15.d will not relieve the Indemnifying Party of its obligations under this Section 15 except to the extent that the Indemnifying Party can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnified Party may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
e. Sole Remedy. THIS SECTION 15 SETS FORTH YOUR SOLE REMEDIES AND OUR SOLE LIABILITY AND OBLIGATION TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY ACTUAL, THREATENED OR ALLEGED CLAIMS THAT THIS AGREEMENT OR ANY SUBJECT MATTER HEREOF (INCLUDING THE SERVICES AND PLATFORM) INFRINGES, MISAPPROPRIATES OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
16. Limitations of Liability.
a. Exclusion of Damages. IN NO EVENT WILL WE OR OUR SUBCONTRACTORS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT; (ii) LOSS, IMPAIRMENT OR CORRUPTION OF ANY DATA, (iii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE PLATFORM, OR (iv) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER WE WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
b. Cap on Monetary Liability. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EQDERIVATIVES, INC. OR ITS SUBCONTRACTORS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE GREATER OF (1) $10,000, OR (2) THE AGGREGATE AMOUNT OF FEES PAID TO US UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST CLAIM AGAINST US HEREUNDER. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
a. Entire Agreement. This Agreement and each Order Form together constitute the entire agreement, and supersede all prior negotiations, understandings or agreements (oral or written), between the parties regarding the subject matter of this Agreement (and all past dealing or industry custom).
b. Counterparts. Any Order Form may be executed in one or more counterparts, each of which will be an original, but taken together will constitute one and the same instrument. Execution of a facsimile copy (including PDF) or execution through electronic means will have the same force and effect as execution of an original.
c. Amendment, Severability and Waiver. Except as expressly otherwise provided in Section 2 above, no change, consent or waiver under this Agreement will be effective unless in writing and signed by the party against which enforcement is sought. Any delay or failure of either party to enforce its rights, powers or privileges under this Agreement, at any time or for any period, will not be construed as a waiver of such rights, powers and privileges, and the exercise of one right or remedy will not be deemed a waiver of any other right or remedy. If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
d. Governing Law and Venue. Unless otherwise specified in your Order Form, this Agreement will be deemed to have been made in, and will be governed by and construed in accordance with the laws of, the State of Illinois, without regard to its conflicts of law provisions, and the sole jurisdiction and venue for actions related to this Agreement will be the state or federal courts located in Chicago, Illinois, and both parties consent to the exclusive jurisdiction of such courts with respect to any such action.
e. Notices. All notices under this Agreement will be in writing and may be delivered by electronic mail in portable document format (.pdf), certified or registered mail, overnight courier, or personal delivery, in each case to the address or e-mail address specified in the most recent Order Form or the address or e-mail address we otherwise have on file for you (or to such other address or e-mail address specified by a party pursuant to the provisions of this Section).
f. Assignment. Neither party may assign, delegate or otherwise transfer its rights or obligations under this Agreement without the other party’s prior written consent; provided, however, that either party may assign, delegate or otherwise transfer this Agreement without restriction: (i) in whole or in part to its affiliates, or (ii) in its entirety to an entity that acquires all or substantially all of the assigning party’s business or assets to which this Agreement pertains, whether by merger, reorganization, acquisition, sale, stock sale or otherwise. This Agreement will be binding upon, and inure to the benefit of, the successors and permitted assigns of the parties.
g. No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
h. Relationship of the Parties. The relationship between the parties is that of independent, contracting parties. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party will have authority to contract for or bind the other party in any manner whatsoever.
i. Force Majeure. Neither party will be liable for any delays or non-performance of its obligations arising out of causes not within such party’s reasonable control, including, without limitation, actions or decrees of governmental authorities, criminal acts of third parties, earthquakes, flood, and other natural disasters, war, terrorism, acts of God, or fire (a “Force Majeure Event”), except to the extent that the delay or non-performance was not reasonably safeguarded against (in accordance with industry standards).
j. Equitable Remedies. Each party acknowledges and agrees that a breach or threatened breach (i) by you of the limitations and restrictions in Section 4.b (Limitations and Restrictions), or (ii) by either party of any of its obligations under Section 9 (Confidentiality) would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
18. Other Definitions. Capitalized terms that are used in this Agreement have the meanings described below:
“Claim” means any claim, suit, action or proceeding.
“Documentation” means the online, electronic and written user guides and manuals we make available to you which describe the functionality, components, features or requirements of the Platform.
“Authorized User” means each of your and your third party contractors’ employees and individual contractors that have been granted valid access credentials to log in to the Platform.
“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (a) computer, software, firmware, hardware, system or network or (b) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data processed thereby.
“Loss” means any and all losses, damages, liabilities, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification and the cost of pursuing any insurance providers.
“Permitted Use” means accessing and using the Platform to post, manage, view and/or respond to RFPs and other proposals of the applicable Investor.
“Personal Data” means “Personal Data” (as defined in the DPA) of data subjects located in the European Economic Area (which, for the avoidance of doubt, includes all Personally-Identifiable Information of and about such persons).
“Personally-Identifiable Information” means individually identifiable information about a natural person, including, but not limited to, (a) a first and last name, (b) a physical or mailing address, including the street name combined with the name of a city or town, (c) an e-mail address, (d) telephone numbers(s), (e) any other identifier that permits the physical or online contacting of a specific individual, and/or (f) information concerning an individual maintained in personally-identifiable form in combination with an identifier in clauses (a)-(e) of this definition.
“Order Form” means the order form, purchase order, online checkout page, proposal, service order or similar document or instrument provided by us and executed by you in each case that references this Agreement, which is incorporated into this Agreement for all purposes.
“Your Data” means all data, information or records, including Personally-Identifiable Information, uploaded to the Platform by you or your Authorized Users in connection with your use of the Platform.