THIS AGREEMENT GOVERNS THE CLIENT’S ENGAGEMENT WITH FINALLY FUND ADMIN (REFERRED TO AS “FINALLY” IN THIS AGREEMENT). BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING ACCEPTANCE OR BY EXECUTING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT, THE CLIENT AGREES TO THE TERMS OF THIS AGREEMENT AND WILL BE REFERRED TO AS “CLIENT” OR “CUSTOMER” IN THIS AGREEMENT. "PARTY" OR "PARTIES" SHALL MEAN, INDIVIDUALLY, CUSTOMER OR FINALLY AS THE CONTEXT REQUIRES AND, COLLECTIVELY, CUSTOMER AND FINALLY.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” AND "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE FINALLY’S SERVICES.
You or the Client may not use or access Finally’s services if You or the Client are a competitor of Finally, except with Finally’s prior written consent. In addition, You and the Client may not access the Finally’s Hosted Services or other platform for purposes of monitoring their availability, performance, or functionality, or for any other benchmarking or competitive purposes.
This agreement was last updated on Sept 25th, 2022 (the “Agreement”). It is effective between You, the Client, and Finally, a Delaware corporation with offices at 1700 Montgomery St, Suite 440, San Francisco, CA 94111 ("Finally") as the date of being accepted by this Agreement (the "Effective Date").
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows:
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Customer Data" means any data, information or other materials submitted by Customer to Finally.
"Customer Trademarks" means any trademarks that Customer provides Finally for the purpose of referring to Customer within the user interface for the Hosted Service.
"Dispute Period" means fifteen (15) days from receipt of invoice.
"Documentation" means Finally's then current on-line help, guides, and manuals published by Finally and made generally available by Finally for the Hosted Services. Documentation shall include any updated Documentation that Finally provides.
"Effective Date" means the date Customer executes this Agreement. The “effective date” of an Order Form shall be the date Customer executes such Order Form.
“Fees” means the fees the Customer is required to pay Finally (i) for use of Hosted Services during a Subscription Term or (ii) to receive Professional Services, as such fees are reflected on an Order Form of SOW.
"Hosted Services" means the generally available online, Web-based applications and services provided by Finally or a 3rd party solution provider used by Finally with the Client.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
“Order Form” means the ordering documents for Customer purchases from Finally that are executed hereunder by Customer and Finally from time to time. All Order Forms shall be deemed incorporated herein. The initial Order Form is attached hereto as Exhibit A.
“Professional Services” includes but is not limited to training, consulting, onboarding or implementation services (not including support) that Finally provides to Customer pursuant to a mutually executed SOW or Order Form.
"Provider" means a third-party service provider (e.g. law firm or accounting firm), that Customer authorizes to use the Hosted Services for the benefit of Customer. Providers shall be deemed Users for purposes of this Agreement.
"Security Holders" means a unique individual or entity listed in the Customer's capitalization table.
"Subscription Term" means the period of time that Customer may use and access Finally’s services and Hosted Service beginning on the Effective Date and as set forth in the applicable Order Form. The Hosted Service may automatically deactivate and become non-operational at the end of the Subscription Term, and Customer shall not be entitled to access the Hosted Services unless the Subscription Term is renewed.
“SOW” means a mutually executed statement of work detailing the Professional Services that Finally will perform for Customer, and any related Fees.
"Users" means individuals who are authorized by Customer to use Finally’s services and the Hosted Services on a Customer’s behalf or for Customer’s benefit. Users may include but are not limited to employees, consultants, contractors and agents of Customer, or third parties with which Customer transacts business. Users may not include employees, consultants, contractors, representatives or agents of a Finally competitor.
“User-Generated Content” means content featured, displayed, communicated or transmitted through the Hosted Services, including, without limitation, text, data, articles, images, photographs, graphics, software, applications, designs, features and other materials that is created or uploaded by Customer or Users.
2. HOSTED SERVICES.
2.1 Finally shall make the Hosted Services available to Customer and its Users pursuant to this Agreement and the applicable Order Form during each Subscription Term. Customer agrees that its purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Finally regarding future functionality or features. The Customer shall be responsible for Security Holders’ and Users' compliance with this Agreement.
2.3 Customer shall not: (i) except as permitted by this Agreement, directly or indirectly: sell, rent, lease, transfer, assign, distribute, display, host, outsource, disclose or otherwise commercially exploit or make the Hosted Services available to any third party other than Users; (ii) modify, make derivative works of, disassemble, reverse compile, reverse engineer, or subvert the intrinsic security, integrity, or performance of any part of the Hosted Services for any purpose including without limitation discovering individual Customer Data or re-identifying anonymous data; (iii) access or use the Hosted Services in order to build a similar or competitive product or service; (iv) copy any features, functions or graphics of the Hosted Services for any purpose other than what is expressly authorized under this Agreement; (v) interfere with or disrupt the integrity or performance of the Hosted Services; (vi) use any e-mail addresses and other contact information provided on Hosted Services for marketing or advertising purposes; or (vii) send, store, access, post, transmit, link to, or otherwise distribute any spam, unlawful, infringing, obscene or libelous materials, or Malicious Code. Except as expressly stated herein, no part of the Hosted Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. The Customer shall make reasonable efforts to prevent unauthorized third parties from accessing the Hosted Services, and notify Finally promptly of any such unauthorized access or use.
2.4 Customer shall be solely responsible for: (a) the accuracy and legality of Customer Data, the means by which it acquires and uses such Customer Data (including, without limitation, privacy and data protection), and has obtained all rights in the Customer Data necessary to permit Finally’s compliance with its obligations under this Agreement; (b) complying with all applicable local, state, national and foreign laws, treaties, regulations and conventions in connection with its use of the Hosted Service, including without limitation those related to data privacy, international communications, and the exportation of technical or personal data from locations other than the location from which Finally controls and operates the Hosted Services; and (c) any acquisition, implementation, support, or maintenance of third-party products or services purchased by Customer that may interoperate with the Hosted Services.
2.5 The Customer may create, post, upload, link to, display, communicate or transmit User-Generated Content while or through using the Hosted Services. Customer: (a) is solely responsible for the content of, and for any harm resulting from, any User-Generated Content, regardless of the form of such User-Generated Content; (b) will only submit User-Generated Content for which it has sufficient rights to post; and (c) will comply fully with any third-party licenses relating to User-Generated Content. Finally is not responsible for any public display or misuse of User-Generated Content by Customer or Users. Further, Finally does not pre-screen User-Generated Content, but it has the right (though not the obligation) to refuse or remove any User-Generated Content that, in its sole discretion, violates any Finally terms and policies.
3. PROFESSIONAL SERVICES. Upon Customer’s request for Professional Services, Finally will provide an SOW detailing such Professional Services. Each SOW is binding on both Parties upon execution by the Parties and any Professional Services will be governed by the terms of the applicable SOW and this Agreement. In the event of any conflict between the terms of this Agreement and any SOW, the terms of this Agreement will control. Finally will perform the Professional Services described in each SOW according to the timeframes set forth in such SOW. Finally will control the manner and means by which the Professional Services are performed and reserves the right to determine which personnel are assigned to perform the Professional Services. Finally may use third parties to perform the Professional Services, provided, however, that Finally remains responsible for such third parties’ acts and omissions. Customer acknowledges and agrees that Finally retains all right, title, and interest in and to anything used or developed in connection with performing the Professional Services, including but not limited to software programs, tools, specifications, ideas, concepts, inventions, processes, techniques, and know-how. To the extent Finally delivers anything to Customer during the course of performing the Professional Services, Finally grants Customer a non-exclusive, non-transferable, worldwide, royalty-free, limited-term license to use those deliverables during the term of this Agreement or the related SOW, if such SOW terminates prior to the termination of this Agreement, solely in conjunction with Customer’s use of the Hosted Services.
4. THIRD-PARTY PROVIDERS. The Customer may authorize Provider(s) to use the Hosted Services. A Provider's use of the Hosted Services and provision of services to Customer related thereto including but not limited to any terms, conditions, warranties or representations associated with such services and any exchange of data between Customer and such Provider is solely between Customer and the applicable Provider. Finally shall have no liability or obligation for, and does not endorse or accept any responsibility for any Provider, the contents or use of third-party websites or any transactions completed with any Providers or any third parties. Customer is responsible for all acts and omissions of any Provider or any third-party User.
5.1 As between the Parties, Finally shall own and retain all right, title and interest in and to the Hosted Services, Professional Services, and Finally Confidential Information (defined below), including all intellectual property rights. The look and feel of the Hosted Services is copyright © eShares, Inc. dba Finally, Inc., All rights reserved. The Customer may not duplicate, copy, or reuse any portion of the Hosted Services, or visual design elements or concepts without prior written permission from Finally. No rights are granted to Customer hereunder other than as expressly set forth herein. As between the Parties, Customer shall own all right, title and interest in and to any Customer Data, Customer Confidential Information, and User-Generated Content. Customer grants to Finally the free, non-exclusive, worldwide right to use, host, store, reproduce, modify, adapt, transmit, communicate, publish, publicly perform, publicly display, distribute, and create derivative works (including but not limited to those resulting from translations, adaptations or other changes Finally makes so that Customer’s content works better with the Hosted Services) of the Customer Data, Customer Confidential Information, and User-Generated Content without attribution for the purposes of operating, providing, supporting, improving, or developing the Hosted Services, including developing additional functionality or services. Subject to the confidentiality obligations of this Agreement, Customer agrees that Finally may use Customer Data to compile, use and disclose anonymous, aggregated statistics, provided that no such information will directly identify and cannot reasonably be used to identify Customer or Customer's Users. Customer shall be solely responsible for ensuring that Customer has obtained all necessary third-party consents and made all required disclosures in connection with the foregoing grant. Customer acknowledges and agrees that Customer Data may be transferred outside of the United States if Customer’s Users or Security Holders access the Customer Data while outside of the United States. In addition, Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability and copyright of all Customer Data.
5.2 Customer retains all moral rights to Customer Data, Customer Confidential Information, and User-Generated Content, including the rights of integrity and attribution; however, Customer waives these rights and agrees not to assert them against Finally, solely to enable it to reasonably exercise the rights granted to it under this Agreement.
5.3 Finally shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Hosted Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the operation of the Hosted Services.
6. BILLING AND PAYMENT.
6.1 General. Customer agrees to pay in advance for Fees in full, without deduction or setoff of any kind, in U.S. Dollars, unless otherwise specified in an Order Form or SOW. All Fees under this Agreement are non-refundable except as otherwise set forth herein. Finally's Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, even if such amounts are not listed by Finally. If an applicable tax authority requires Finally to pay any taxes that should have been payable by Customer, Finally will advise Customer in writing, and Customer will promptly reimburse Finally for the amounts paid. Except as otherwise provided in an Order Form or SOW, payment for invoices is due within fifteen (15) days of Customer’s receipt of the applicable invoice. If payment is not received by the due date, Finally reserves the right to, in addition to taking any other action at law or equity, to (i) charge interest on past due amounts at one and a half percent (1.5%) or the highest interest rate allowed by law, whichever is less, and to charge all expenses of recovery (including reasonable attorneys’ fees), (ii) suspend Customer’s access to the Hosted Services until overdue amounts are paid in full, including any interest assessed on the overdue amounts, and (iii) terminate the applicable Order Form or SOW.
6.2 Initial Subscription Term. Except as otherwise provided in the applicable Order Form or SOW, the Fees during the initial Subscription Term shall be: (i) based on the number of Security Holders as of the Effective Date; (ii) fixed during the initial Subscription Term; and (iii) charged or invoiced upon execution of such Order Form or SOW.
6.3 Renewal Subscription Term. Except as otherwise provided in the applicable Order Form, Fees for any renewal Subscription Term shall be: (i) based on the Security Holder count as of the start of such renewal Subscription Term; (ii) subject to up to a seven percent (7%) increase above the applicable pricing in the prior Subscription Term, unless Finally provides notice of different pricing at least thirty (30) days prior to the applicable renewal Subscription Term; and (iii) charged automatically at the start of each renewal Subscription Term, or if applicable, invoiced approximately thirty (30) days prior to the start of each subsequent Subscription Term. Except as expressly provided in the applicable Order Form or SOW, renewal of promotional or one-time priced Subscription Terms will be at Finally’s applicable list price in effect at the time of the applicable renewal Subscription Term. Additionally, to the extent the assessment provided for in Section 2.2 demonstrates additional Fees are payable by Customer, Finally shall invoice or charge the Customer for such additional prorated Fees at the end of such quarter. In no event will the Fees for the renewal Subscription Term be lower than the Fees for the previous Subscription Term.
7. SUPPORT. During the Subscription Term, Finally shall provide assistance to Customer by telephone, e-mail or online chat as set forth in the applicable Order Form. Finally reserves the right, from time to time, to make modifications to support services (or particular components thereof), provided that such modifications do not materially reduce the support services in effect as of the Effective Date of this Agreement. Finally agrees to use commercially reasonable efforts to notify Customer of any material modifications to the support services by posting a notice on the Hosted Services. Finally shall use reasonable commercial efforts to correct at no additional charge any reproducible errors reported by Customer. Finally shall review all requests for improvements and new functionality, but Finally shall have no obligation to provide any modifications to the Hosted Service.
8. LIMITED REPRESENTATIONS & WARRANTIES.
8.1 Authority. Each Party represents and warrants that: (a) it has the power and authority to enter into this Agreement; (b) this Agreement and each Order Form and SOW is entered into by an employee or agent of such Party with all necessary authority to bind such Party to the terms and Conditions of this Agreement; (c) its execution of this Agreement does not violate any other agreement by which it is bound; and (d) it is a legal entity in good standing in the jurisdiction of its formation.
8.2 Non-Competition. Customer represents and warrants that: (a) it is not a competitor of Finally or a Finally Affiliate with respect to any of the Hosted Services, and (b) shall not become Finally’s or a Finally Affiliate’s competitor with respect to any of the Hosted Services, except with Finally’s prior written consent. In addition, Customer represents and warrants that it will not access the Hosted Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
8.3 Product Warranty. Finally warrants that (i) it will provide the Hosted Service in a manner consistent with generally accepted industry standards, (ii) the Hosted Service will perform substantially as described in the applicable Documentation when used in the hardware, software and browser operating environment described therein and supported by Finally, (iii) the functionality of the Hosted Service will not be materially decreased during a Subscription Term; and (iv) the configuration of the Hosted Services will conform in all material respects to this Agreement and/or the applicable Order Form. In the event of breach of (i)-(iv) above, Customer’s sole and exclusive remedies are those described in the Section 12.3 titled “Termination Rights.” Notwithstanding the foregoing, Finally is not obligated to correct errors caused by: (a) unauthorized modification to the Hosted Services, (b) Customer modifications, (c) using the Hosted Services other than as described in the Documentation, (d) non-Finally software, or (e) combining the Hosted Services with any other hardware or software not authorized by Finally in writing.
8.4 Professional Services Warranty. Finally warrants that any Professional Services performed under an SOW to this Agreement will be performed in a professional and workmanlike manner by appropriately qualified personnel. Finally’s only obligation, and Customer’s only remedy, for a breach of this warranty will be, at Finally’s option and expense, to either: (i) promptly re-perform any Professional Services that fail to meet this warranty or (ii) terminate the SOW and refund any unused prepaid Fees.
9. DISCLAIMER OF WARRANTIES. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE OR USE OF TRADE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE HOSTED SERVICES ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. FINALLY SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE HOSTED SERVICES AND/OR PROFESSIONAL SERVICES COMPLIES WITH APPLICABLE LAWS AND REGULATIONS IN CUSTOMER’S JURISDICTION(S). CUSTOMER ACKNOWLEDGES AND AGREES FINALLY IS NOT ENGAGED IN PROVIDING LEGAL, ACCOUNTING, TAX, OR FINANCIAL SERVICES OR ADVICE, AND MAY USE 3RD PARTY SOLUTION PROVIDERS TO FOR CERTAIN TASKS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, PROVIDED BY FINALLY WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT.
10. LIMITATION OF LIABILITY.
10.1 LIMIT ON DIRECT DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF OBLIGATIONS IN SECTION 2, THE AGGREGATE, CUMULATIVE LIABILITY OF EACH PARTY (INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, SHALL BE LIMITED TO THE FEES PAID OR PAYABLE BY CUSTOMER TO FINALLY DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM (PROVIDED THAT, IF NO FEES ARE PAID OR PAYABLE, SUCH AMOUNTS WILL BE LIMITED TO FIVE THOUSAND DOLLARS (U.S. $5,000.00)). THE FOREGOING SHALL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 6.
10.2 NO INDIRECT DAMAGES. EXCEPT FOR A BREACH BY CUSTOMER OF OBLIGATIONS IN SECTION 2, IN NO EVENT SHALL EITHER PARTY OR THIRD-PARTY PROVIDERS OF FINALLY (INCLUDING THEIR DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS AND SUPPLIERS) BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES FOR LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE HOSTED SERVICE, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD-PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10.3 ALLOCATION OF RISK. The provisions of this Agreement fairly allocate the risks between Finally, on the one hand, and Customer, on the other. Customer acknowledges and agrees that the pricing of Professional Services and Hosted Services reflects this allocation or risk and the limitation of liability specified herein, and that Finally would not enter into this Agreement without such allocation and limitation.
11.1 Indemnification by Finally. Finally shall defend, indemnify and hold Customer harmless against any claims, actions, suits, proceedings, and demands (each a "Claim") made or brought against Customer by anyone other than a Customer Related Party (as defined below) against Customer and its Related Parties where the third party expressly asserts that Hosted Services: (i) infringe such third party’s patent, trademark or copyright arising under the laws of the United States; (ii) Finally misappropriated such third party’s trade secrets in the development of the Hosted Services arising under the laws of the United States; or (iii) arising out of Finally’s breach of its confidentiality obligations relating to Customer Data. “Related Party” means directors, officers, employees, Affiliates, successors, assigns of a party. In the event that Finally believes the Hosted Services, or any part thereof, may be the subject of an infringement or a misappropriation claim as to which this Section 11.1 applies, then Finally may, in its discretion and at its sole expense: (w) procure for Customer the right to continue using the Hosted Service or any applicable part thereof under the terms of this Agreement; (x) replace or modify the Hosted Service, or any applicable part thereof, with a non-infringing version (or part thereof), (y) modify such Hosted Service, or applicable part thereof, so as to make it non-infringing; or (z) terminate this Agreement with respect to the infringing portion of the Hosted Services, and refund any prepaid, unused Fees for such portion of the Hosted Services for the remainder of the then-current Subscription Term after the date of termination. THIS SECTION 11.1 REPRESENTS FINALLY’S SOLE LIABILITY TO, AND CUSTOMER’S EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS OF ANY KIND IN CONNECTION WITH THE HOSTED SERVICES DELIVERED UNDER OR IN CONNECTION WITH THIS AGREEMENT.
11.2 Finally Indemnification Exclusions. Finally shall not have any indemnification obligation for any Claim pursuant to this Agreement to the extent a Claim is based upon (i) modifications to the Hosted Service by anyone other than Finally or its agents (provided that Finally shall not be liable if Finally or its agents made the modifications using requirements documents, written specifications or other written materials submitted by Customer or its agents or representatives); (ii) the modification of the Hosted Services or the use, combination, or operation of the Hosted Service with equipment, devices, software, systems, or data, other than expressly authorized by this Agreement; (iii) use of the Hosted Services in violation of this Agreement; (iv) Customer’s continued use of any version of the Hosted Service other than the then-current, unaltered version, if infringement would have been avoided by use of a current, unaltered version thereof that has been made available to Customer; (v) where Customer continues to use the Hosted Services after being notified of allegedly infringing activity or being informed of modifications that would have avoided the alleged infringement; (vi) third party software or services, Customer software, Customer Data, or User-Generated Content.
11.3 Indemnification by Customer. Customer shall defend, indemnify and hold Finally harmless against any Claims made or brought against Finally by anyone other than a Finally Related Party against Finally and its Related Parties where the third party expressly asserts (i) misappropriation, misuse or breach of applicable law related to Customer Data; (ii) that the Customer Data or Finally’s transmission or hosting thereof infringes or violates the rights of such third party; (iii) that Customer's breach of Section 2 of this Agreement violates the rights of such third party; (iv) that Customer failed to comply with applicable laws, rules or regulations in its performance of this Agreement; or (v) Claims based on any third party equipment, devices, software, systems, or data Customer combined, operated or used with the Hosted Services.
11.4 Indemnification Procedure. Promptly after a party seeking indemnification obtains knowledge of the existence or commencement of a Claim, the party to be indemnified will notify the other party of the Claim in writing; provided however, that the indemnifying party’s indemnity obligations will be waived only if and to the extent that its ability to conduct the defense are materially prejudiced by a failure to give notice. The indemnifying party will assume the sole control of defense and settlement of the claim at the indemnifying party’s expense; provided, however, the indemnified party: (i) may join in the defense and settlement of the Claim and employ counsel at its own expense; and (ii) will reasonably cooperate with the indemnifying party in the defense and settlement of the Claim. The indemnifying party may not settle any Claim without the indemnified party’s written consent unless the settlement: (x) includes a release of all covered Claims pending against the indemnified party; (y) contains no admission of liability or wrongdoing by the indemnified party; and (z) imposes no obligations upon the indemnified party other than an obligation to stop using any infringing items. If both the indemnified party and the indemnifying party are named parties in any action relating to the Claim and the counsel chosen by the indemnifying party cannot represent both the indemnified party and indemnifying party due to any present or potential conflict in representing the interests of both of them, then the indemnifying party will retain separate counsel for the indemnified party.
11.5 ENTIRE LIABILITY. THIS SECTION 11 STATES THE ENTIRE LIABILITY OF THE INDEMNIFYING PARTY AND THE INDEMNIFIED PARTY’S EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM BY A THIRD PARTY DESCRIBED IN THIS SECTION.
12. TERM AND TERMINATION.
12.1 Term of Agreement. Unless otherwise provided in an Order Form, this Agreement shall commence on the Effective Date listed above and shall continue until expiration or termination of this Agreement or Order Forms executed hereunder.
12.2 Subscription Term. Except as specified otherwise in an Order Form, a standard Subscription Term is for a one (1) year Subscription Term commencing on the Effective Date. Customer's subscription to the Hosted Service will automatically renew for additional one (1) year periods unless either party notifies the other of its intent not to renew in writing at least fifteen (15) days prior to the expiration of the then-current Subscription Term. In the event that any Subscription Term expires before Customer makes a payment for a renewal Subscription Term, Finally reserves the right to charge: (a) a proportionate fee for the elapsed time period during which the Subscription Term was expired and (b) a reactivation fee to process the renewal.
12.3 Termination Rights. Either Party may terminate this Agreement (including all related Order Forms) (i) upon breach of this Agreement if such breach has not been cured within 30 days of written notice from the non-breaching Party specifying the breach in detail and, if Finally is the non-breaching Party, Finally may terminate Customer's password, account, access to and/or use of the Hosted Service; (ii) immediately upon written notice if the other Party seeks protection of a bankruptcy, insolvency, receivership, liquidation, assignment for the benefit of creditors or similar proceeding, or if any such proceeding is instituted against such party (and not dismissed within sixty (60) days; (iii) if either Party undergoes a change of Control in favor of a competitor of the other Party; (iv) if either Party ceases operation without a successor; or (v) as otherwise provided herein. Finally may immediately terminate this Agreement (x) if at any point Customer ceases to use Finally as its designated transfer agent pursuant to regulations and laws of the United States, or (y) if Customer breaches any of the terms of this Agreement, including those relating to Finally’s intellectual property (including Customer’s non-compliance with the license grant or any license restrictions). If this Agreement is terminated by Customer in accordance with subsection (i) of this Section 12.3, except as specified otherwise in an Order Form or separate agreement, Finally will refund Customer any prepaid fees covering the remainder of the then-current Subscription Term of all Order Forms after the effective date of termination. In no event will termination relieve the Customer of its obligation to pay any fees payable to Finally for the period prior to the effective date of termination.
12.4 Effect of Termination. Upon termination of this Agreement: (i) the Subscription Term for the Hosted Services or Professional Services shall immediately end; (ii) Customer will no longer have the right to use the Hosted Services or the Professional Services, and any licenses or access granted to Customer relating to same shall automatically cease to exist as of the date of termination; (iii) to the extent Finally served as the Customer’s private transfer agent under the laws of the United States, Finally shall cease to be such transfer agent; and (iv) if any Fees were owed prior to termination, other than for termination by Customer for Finally’s uncured breach, Customer must pay those Fees immediately. Within thirty (30) days of termination of this Agreement, upon Customer's request, provided Customer is not in breach of the Agreement including but not limited to payment obligations, Finally will make available to Customer a file of the Customer Data then in its possession. Customer agrees and acknowledges that, thirty (30) days following the effective termination date of this Agreement or if Customer's account is thirty (30) days or more past due, Finally will have no obligation to maintain or produce Customer Data under this Agreement, and may, in Finally’s sole discretion, delete or destroy all copies of Customer Data in the Hosted Services or otherwise in Finally’s possession or control, unless legally prohibited.
12.5 Survival. The following provisions shall survive any termination of this Agreement: Sections 1, 2.2, 2.3, 2.4, 2.5, 3, 5, 6, 10, 11, 12.4, 13, and 14, provided that Sections 10 and 11 shall only survive to the extent applicable to a Claim.
13. CONFIDENTIAL INFORMATION.
13.1 Each Party may have access to information that is confidential to the other Party. As used herein, "Confidential Information" means all confidential and proprietary information of a Party ("Disclosing Party") disclosed to the other Party ("Receiving Party"), whether orally or in writing, that is clearly identified as confidential as well as any information that, based on the circumstances under which it was disclosed, a reasonable person would believe to be confidential, including but not limited to the terms and conditions of this Agreement (including pricing and other terms reflected in an Order Form hereunder), the Customer Data, the Hosted Service, business and marketing plans, technology and technical information, product designs, trade secrets and business processes. A Party's Confidential Information shall not include information that (i) is or becomes a part of the public domain through no act or omission of the other Party; (ii) was in the other Party's lawful possession prior to the disclosure and had not been obtained by the other Party either directly or indirectly from the Disclosing Party; (iii) is lawfully disclosed to the other Party by a third party without restriction on disclosure; (iv) is independently developed by the other Party without use of or reference to the other Party's Confidential Information. The Parties agree to use all reasonable care to prevent disclosure of the other Party's Confidential Information to any third party. Notwithstanding the foregoing, Customer acknowledges and agrees that Finally may disclose Customer's Confidential Information to its employees, consultants, Providers and other third-party providers solely to the extent necessary to provide the Hosted Service under this Agreement, provided that Finally has a non-disclosure agreement in place with such third-party provider that protects such Confidential Information against disclosure in a manner no less protective than this Agreement. This Section 13 constitutes the entire understanding of the Parties and supersedes all prior or contemporaneous agreements, representations or negotiations, whether oral or written, with respect to Confidential Information.
13.2 If Receiving Party receives a request to disclose any Confidential Information of Disclosing Party pursuant to a subpoena, order, civil or criminal investigative demand, agency administrative demand, law, rule, regulation, or a judicial or similar process issued by a court of competent jurisdiction, the Receiving Party’s regulators or any other administrative body (each such request, a “Disclosure Request”), the Receiving Party is permitted to disclose such Confidential Information only to the extent necessary to comply with the Disclosure Request or as otherwise required by law. If legally permitted, the Receiving Party shall provide the Disclosing Party with prompt prior notice of such Disclosure Request and reasonable assistance, at Disclosing Party's expense, if the Disclosing Party wishes to seek protection or confidential treatment of the Confidential Information relevant to the Disclosure Request. If the Receiving Party receives a Disclosure Request as part of a proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the Disclosure Request or is requesting the Disclosure Request, the Disclosing Party shall reimburse the Receiving Party for its reasonable cost and fees incurred in compiling and providing secure access to the Confidential Information relevant to the Disclosure Request.
13.3 If Receiving Party discloses (or threatens to disclose) any Confidential Information of Disclosing Party in breach of this Section 13, Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being acknowledged by the Parties that any other available remedies may be inadequate.
13.4 Upon any termination of this Agreement, the Receiving Party shall continue to maintain the confidentiality of the Disclosing Party's Confidential Information for five (5) years and, upon request, return to the Disclosing Party or destroy (at the Disclosing Party's election, and subject to applicable law or regulation) all materials containing such Confidential Information.
14. GENERAL PROVISIONS.
14.1 If Customer is a federal government entity, Finally provides the Hosted Service, including related software and technology, for ultimate federal government end use solely in accordance with the following: Technical data and computer software rights related to the Hosted Service include only those rights customarily provided to the public as set forth in this Agreement. The license rights hereunder are provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included as part of this Agreement.
14.2 Each Party will comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Hosted Services.
14.3 Either Party may identify the other as a user or customer, as applicable, and may use the other's name and logo in Customer or vendor lists, press releases, blog posts, advertisements, and on their respective websites. Customer further grants Finally a non-exclusive license to use Customer Trademarks for the purpose of referring to Customer within the user interface for the Hosted Service.
14.4 Any action related to this Agreement will be governed exclusively by the internal laws of the state of California, without regard for its conflicts of laws rules, and all disputes hereunder shall be subject to the exclusive jurisdiction of the state or federal courts located in San Francisco County, California. The Parties hereby irrevocably consent to the jurisdiction of such courts. This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods or the Uniform Computer Information Transactions Act.
14.5 This Agreement and the Terms, together with any applicable Exhibits, Order Forms, Engagement Agreements, and SOWs represent the Parties' entire understanding relating to the use of the Hosted Services and Professional Services and supersedes any prior or contemporaneous, conflicting or additional, communications. No amendment or waiver of any provision of this Agreement shall be effective unless in writing and signed by authorized representatives of the Parties hereto. Notwithstanding any language to the contrary therein, any purchase order, Order Form, SOW, or any other document that contains terms that are different from or in addition to the terms of this Agreement shall be void and of no effect to the extent of such different or additional terms.
14.6 If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
14.7 No joint venture, partnership, employment, or agency relationship exists between Finally and Customer as a result of this Agreement or use of the Hosted Services.
14.8 Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other (not to be unreasonably withheld). Notwithstanding the foregoing, (i) either Party may assign this Agreement in its entirety (including all Order Forms hereunder) to its successor in interest in connection with a merger, reorganization, or sale of all or substantially all assets or equity not involving a direct competitor of the other Party; and (ii) Finally may assign its rights and obligations to an Affiliate, partner or Vendor (defined below). Any attempted assignment in breach of this section shall be void. This Agreement shall bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
14.9 In the ordinary course of its business, Finally uses third-party service providers (collectively, “Vendors”) to support the provision of the Hosted Services, Professional Services, or general support. In addition, Finally may provide the Hosted Services, Professional Services, or general support through one or more Affiliates or 3rd Parties. Finally reserves the right to engage and substitute Vendors, Affiliates, and 3rd Parties, as it deems appropriate to provide the Hosted Services, Professional Services, and general support hereunder, but shall remain responsible for the acts or omissions of such Vendors or Affiliates undertaken in connection with this Engagement Agreement.
14.10 Neither Party shall be liable to the other for any delay or failure to perform hereunder (excluding payment obligations) during any period in which such performance is delayed or rendered impracticable or impossible due to circumstances beyond such Party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (excluding those involving such Party's employees), internet or other Hosted Service disruptions involving hardware, software or power systems not within such Party's possession or reasonable control, and denial of Hosted Service attacks.
14.11 Finally may give notice by means of a Customer Notification on the Hosted Service, electronic mail to the Customer's e-mail address on record in Finally's account information, or by written communication sent by first class mail or pre-paid post to Customer's address. The Customer may give notice to Finally at any time by letter sent by e-mail to admin@FinallyFundAdmin.com or by letter delivered first class mail to Finally at 1700 Montgomery Street, Suite 440, San Francisco, CA 94111. All notices shall be deemed to have been given five days after mailing (if sent by first class mail) or twenty-four (24) hours after sending by e-mail.
14.12 The failure of either Party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. In the event of any litigation of any controversy or dispute arising out of or in connection with this Agreement, its interpretation, its performance, or the like, the prevailing party shall be awarded reasonable attorneys' fees and expenses, court costs, and reasonable costs for expert and other witnesses attributable to the prosecution or defense of that controversy or dispute. Any rights not expressly granted herein are reserved.
14.13 Finally reserves the right to alter the terms of this Agreement at any time. Customer agrees to review the latest version of the Agreement on Finally's website periodically to remain aware of any modifications to the Agreement about which Customer is not alerted by Finally. The Agreement available on the website will be dated so as to make clear what version is currently in force. Any use of the Hosted Services after alteration of the Agreement will constitute acceptance by the Customer of such changes. Customer's sole remedy should Customer not agree with the altered Agreement shall be to cease Customer's use of the Hosted Services and to comply with Customer's termination obligations outlined in Section 12 of this Agreement.