2.3 Right of Access; Limitation on Number of Concurrent Users. Subject to terms and condi- tions of this Agreement and Advizr's acceptance of an applicable Order Form, Advizr grants to Customer a non-exclusive, non-transferable right during the Term to allow Authorized Users to access the Application Services solely for the purpose of developing financial plans on behalf its Advisees. Customer's right to access the Application Services is limited to the number of Authorized Users listed in the applicable Order Form(s).
2.4 Customer Data. Use of the Application Services will permit or require Customer to provide Customer Data to Advizr for purposes of processing, analyzing and storing such Customer Data and otherwise performing the Services. Customer hereby grants to Advizr a limited li- cense: (a) during the Term to use, copy, display, disclose, modify and distribute the Customer Data solely for the purpose of providing the Services and (b) on a perpetual basis, to use, copy, display, disclose, modify and distribute the Customer Data solely to create and compile aggre- gated data and/or statistics; provided, however, in any such aggregated data or statistics, Ad- vizr will ensure that the Customer Data is used in aggregated form only and in a manner that is not directly attributable to or identified with Customer or its Advisees. Advizr will use appropri- ate administrative, physical and technical safeguards to protect sensitive Customer Data, in- cluding, as appropriate, encryption technology.z
2.5 Restrictions on Use. Customer will not: (a) modify, adapt, alter, translate or create derivative works of the Services, including the Application Services; (b) sublicense, lease, rent, loan or otherwise transfer Customer's rights hereunder (except in connection with an assignment of Customer's rights permitted under Section 12.3 ("Assignment") to any third party; (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the human readable, source code version of the Application Services or the technology underlying the Application Services; (d) publish or post false or misleading information about Advizr; (e) remove any proprietary no- tices of Advizr or third parties found on, in or in association with the Services; (f) publish any performance or benchmark tests or analysis relating to the Services, including the use thereof, without the approval of Advizr; (g) use the Services in any way that infringes any third party in- tellectual property right, breaches the terms of any agreement between Customer and any third party or violates applicable law.
2.6 Advisee Agreement. Customer acknowledges that prior to accessing the Application Ser- vices, Advisees may be required to enter into an end user license agreement that includes a disclaimer that Advizr is not liable for any decisions, acts or omissions of the Advisee based upon any financial plan developed by Customer.
2.7 Ownership. Advizr retains all right, title and interest in the Services, including the Applica- tion Services, and all intellectual property rights therein. All rights not expressly granted by Ad- vizr is reserved. Customer retains all right, title and interest in the Customer Data and all intel- lectual property rights therein. All rights not expressly granted by Customer is reserved.
2.8 Feedback. Advizr may request that Customer provide feedback regarding the use, opera- tion and functionality of the Services ("Feedback"), which Customer will provide at its discre- tion. Feedback will include any information about operating results, known or suspected bugs, errors or compatibility problems and user-desired features. Customer agrees that Advizr, with- out any compensation to Customer, will have an irrevocable right to use the Feedback and re- lated information in any manner it deems appropriate.
3. TERM AND TERMINATION.
3.1 Term. The term of this Agreement will commence on the Date of the Customer's signature and will continue for as long as any Order Form is in effect, unless terminated in accordance with this Section or as otherwise expressly provided in this Agreement (the "Term").
3.2 Termination for Material Breach. Either party may terminate this Agreement or any Order Form, at its discretion, effective immediately upon written notice to the other if the other party materially breaches any provision of this Agreement and does not substantially cure the breach within thirty (30) days after receiving written notice.
3.3 Suspension of Service(s). At any time during the Term, Advizr may, immediately upon notice to Customer, suspend access to any Service, at its discretion, including a threat to the techni- cal security or technical integrity of the Services or any amount due under this Agreement is not received by Advizr within fifteen (15) days of the due date.
3.4 Termination upon Bankruptcy or Insolvency. Advizr may, at its option, terminate this Agreement immediately upon written notice to Customer, in the event (a) that Customer be- comes insolvent or unable to pay its debts when due; (b) Customer files a petition in bank- ruptcy, reorganization or similar proceeding, or, if filed against, such petition is not removed within ninety (90) days after such filing; (c) Customer discontinues its business; or (d) a receiver is appointed or there is an assignment for the benefit of Customer's creditors.
3.5 Termination for Convenience. Advizr may terminate any Order Form and this Agreement at any time at its convenience upon no less than thirty (30) days notice. In the event of any such termination, Advizr will refund to Customer any prepaid, but unused fees, on a straight-line, pro-rata basis, based on a 365 day year.
3.6 Effects of Termination. Upon termination or expiration of this Agreement for any reason: (a) any amounts owed to Advizr before such termination or expiration will be immediately due and payable; and (b) all access rights granted will immediately cease to exist. The following provi- sions will survive termination: Sections 1 ("Definitions"), 3 ("Term and Termination"), 4 ("War- ranties, Disclaimers and Limitations on Damages"), 5 ("Indemnity"), 6 ("Confidential Informa- tion"), 7 ("Payment Terms") and 8 ("Miscellaneous") of this Agreement will survive any termina- tion or expiration of this Agreement.
4. WARRANTIES, DISCLAIMERS AND LIMITATION ON DAMAGES
4.1 General Representations. Each party hereby represents and warrants: (a) that it is duly or- ganized, validly existing and in good standing under the laws of its jurisdiction of incorporation or organization; (b) that the execution and performance of the Agreement will not conflict with or violate any provision of any law having applicability to such party; and (c) that the Agree- ment, when executed and delivered, will constitute a valid and binding obligation of such party and will be enforceable against such party in accordance with its terms.
4.2 General Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THE AGREEMENT, INCLUD- ING ANY SCHEDULE, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT OR FROM A COURSE OF DEALING OR USAGE IN TRADE. ADVIZR DOES NOT WARRANT, AND SPECIFICALLY DISCLAIMS, THAT THE SERVICES WILL BE ACCURATE, SECURE, WITHOUT INTERRUPTION, OR ERROR- FREE.
4.3 Use; Decision Support Disclaimer. Customer acknowledges that the Application Services are provided to Customer and its Authorized Users as a decision support tool to aid in its fi- nancial planning business. Customer agrees that Customer will not rely solely on the output of the Application Services and that Customer and its Authorized Users will rely on their profes- sional judgment in providing any financial planning services to any Advisee. Customer is solely responsible for (i) Customer's and its Authorized Users' use of the Services, including the Ap- plication Services and the Professional Services and (ii) any decision Customer or Advisees make, in whole or in part, therefrom, including any trades and investment decisions or strate- gies. Customer further agrees that Advizr will not be responsible for any loss or damage to Customer, its Authorized Users, or any Advisees caused by the failure of the Application Ser- vices or any error or data produced or derived therefrom.
4.4 No Professional Advice. Advizr is not engaged in rendering any investment, trading or other professional advice. If investment, trading or other professional advice is required, the services of a competent, licensed professional should be sought. No employee, agent or representative of Advizr is authorized to provide any such advice of any nature whatever, and any such ad- vice, if given, is in violation of Advizr's policies, is unauthorized and may not be relied upon.
4.5 No Guaranteed Results. THE SERVICES ARE NOT GUARANTEED TO ACHIEVE ANY PAR- TICULAR RESULTS. The use of any trading system or strategy, including any system or strate- gy integrated within the Services, does not and cannot guarantee that Customer or Advisees will make profits, increase profits or minimize losses.
4.6 Customer is Solely Responsible for Input Correctness and Accuracy: The quality of the product's analysis and optimization depends on the inputs provided. While automated guid- ance and value generation has been made available in the product to ease and expedite entry of the parameters required for the product's analysis and optimization, Customer and its Au- thorized Users are solely responsible for ensuring the quality of all of inputs. As such, Cus- tomer must carefully review and update all input parameters and modify their values in all ways necessary to ensure their accuracy and fidelity. While there are other factors governing analysis and optimization accuracy, the quality of the product outputs depends on the accuracy of Cus- tomer or Advisee inputs. To the extent that Customer retains Advizr to manually enter inputs provided by Customer or any Advisees into the product (the “Data Entry Services”), Customer remains solely responsible for gathering information from Advisees, verifying the accuracy and completeness of information provided by Advisees, and reviewing and verifying the accuracy of information entered by Advizr or its employees. Advizr will not be responsible for any misinter- pretation of any information provided by Customer or any Advisee or for typographical errors resulting from its input of data into the product. Customer agrees to indemnify and hold Harm- less the Advizr Indemnified Parties (as defined below) from any and all Losses (as defined be- low) resulting from any Data Entry Services provided by Advizr. For the avoidance of doubt, the Data Entry Services are provided as a convenience to Customer and Advisees, and Advizr is not responsible for any errors in data entry regardless of fault. This provision will survive the termination of this Agreement.
4.7 Beta Feature Disclaimers: Any input, feature of function marked "Alpha", "Beta" or similar designation invokes a Beta version of the Applications Services. The Beta version is intended for the sole purpose of obtaining product feedback from the product's future customers, and Advizr's partners. Accordingly, these additional terms and disclaimers apply to any Beta ser- vice.
(a) Beta-Quality Testing: The basic functionality of this Beta version has been tested by Advizr's internal users but it has not yet undergone production quality testing. As such, reports of soft- ware malfunctions and bugs are fully anticipated and are solicited by Advizr.
(b) Beta-Quality Performance: The performance of the optimization algorithms has not been performance-enhanced. Specifically, the current Beta version run times may exceed product release performance parameters for optimization runs.
4.8 Specific Disclaimers. As the Services evolve, Advizr may provide Customer and Authorized Users explanations on how the Services work and certain specific disclaimers. Any such spe- cific disclaimers acknowledged by any Authorized User, including through a clickwrap made available within the Applications Services, are agreed to be incorporated by reference into this Agreement. The following specific disclaimers appear within the Application Services:
(a) No Guarantee. The recommendations above are not guarantees of investment performance or the full attainment of Customer or Advisee’s goal. The results of this plan are based on as- sumptions for, among other things, historical investment performance, client savings rates, av- erage inflation rates and estimated tax rates. In addition, investment expenses have not been considered in any of the calculations.
(b) Investment Disclosures: The projected investment returns are hypothetical in nature and do not reflect actual investment returns in the future.
(c) Data Integrity: The results of this plan are based, in large part, by the data that Customer or Advisee has either entered into the Advizr application or provided to Customer’s financial pro- fessional. Any underestimations or overestimations of data entered by Customer could drasti- cally change the recommendations made by Customer’s financial professional. It is important to update Customer or Advisee financial information frequently.
(d) Tax & Legal Advice: The creation and results of this plan do not constitute legal or tax ad- vice. Customer or Advisee should consult with an attorney or an accountant for advice in those areas.
(e) Investment Advice: Advizr is not an investment adviser and does not provide investment advice to Customers or Advisees. None of the Services (including, but not limited to, the Ap- plication Services) provided by Advizr should be interpreted as investment advice. Customer or Advisee should consult with an investment adviser or other financial professional for advice in those areas.
(e) IRS Circular 230 Notice: Any tax information provided herein is not intended or written to be used, and cannot be used, for the purpose of avoiding penalties that may be imposed on any taxpayer.
(f) Limits of financial modeling. Market volatility may be more extreme than what is represented by the simulation. The accuracy of the simulation is reduced in periods of market crisis. The simulation does not consider all investments, and those not considered might have character- istics similar or superior to those analyzed in this report.
(g) Customer Future Situation: It is possible that Customer or Advisees’ income, cash flow and ability to save may change in the future. The projections, in large part, are based on the data that Customer or Advisee have provided. It is important to update plans frequently to account for any changes in Customer or Advisees’ financial status. Therefore, the results of this plan today cannot account for future changes in Customer or Advisees’ financial situations.
(h) Investment and Insurance Product Fees: Depending on what investment or insurance prod- uct Customer or Advisee purchase, Customer or Advisee may incur front-end charges, annual expenses or performance fees. For certain products, Customer or Advisee may incur surrender charges, income taxes and penalties if the product is sold before a pre-determined period. For variable life insurance and annuity products, Customer or Advisee will incur mortality and ex- pense fees. None of these expenses have been factored into the projections. If included, fees and other expenses would materially reduce the projections.
4.9 Disclaimer of Indirect Damages. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAM- AGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF MARKET CAPITALIZATION, INTERRUPTION OF SERVICE, OR LOSS OF BUSINESS OR BUSINESS OPPORTUNITY, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT WILL ADVIZR BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SER- VICES.
4.10 Limitations on Liability. ADVIZR'S MAXIMUM AGGREGATE LIABILITY UNDER ANY OR- DER FORM WILL NOT EXCEED THE TOTAL AMOUNT OF FEES RECEIVED BY ADVIZR'S UN- DER SUCH ORDER FORM DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST DATE ON WHICH THE LIABILITY AROSE.
5.1 Advizr Indemnity. Advizr will indemnify, defend and hold Customer, its directors, officers, employees and representatives (each a "Customer Indemnified Party"), harmless from and against any and all losses, damages, liability, costs and expenses awarded by a court or agreed upon in settlement, as well as all reasonable and related attorneys' fees and court costs, (collectively "Losses") arising out of any third party claim alleging that the Application Services infringe any U.S. patent or copyright or breach any Advizr warranty.
5.2 Exclusions. Section 5.1 will not apply if the alleged claim arises, in whole or in part, from (i) a use or modification of the Services by any Customer or any Authorized User in a manner out- side the scope of any right granted or in breach of this Agreement, (ii) a combination, operation or use of the Services with other software, hardware or technology not provided by Advizr if the claim would not have arisen by the exclusive use of the Application Services alone, (iii) the Customer Data or (iv) any financial plans, advice or other information provided by Customer to any Advisee (any of the foregoing circumstances under clauses (i), (ii), (iii) or (iv) will be collec- tively referred to as a "Customer Indemnity Responsibility").
5.3 Customer Indemnity. Customer will indemnify, defend and hold harmless Advizr, its direc- tors, officers, employees and representatives (each a "Advizr Indemnified Party"), from and against any and all Losses arising out of any third party claim alleging a Customer breach of any Customer warranty or arising out of any Customer Indemnity Responsibility.
5.4 Indemnification Process. The foregoing indemnification obligations are conditioned on the indemnified party: (a) notifying the indemnifying party promptly in writing of such action, (b) reasonably cooperating and assisting in such defense and (c) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prej- udices the indemnified party without consent.
5.5 Infringement. If any Service is, or in Advizr's opinion, is likely to become the subject of any infringement-related claim, then Advizr will, at its expense and in its discretion: (a) procure for Customer the right to continue using the Service; (b) replace or modify the infringing technolo- gy or material so that the Service becomes non-infringing and remains materially functionally equivalent; or (c) terminate the Schedule(s) pursuant to which the Service is provided and give Customer a refund for any pre-paid but unused fees.
5.6 THE PROVISIONS OF THIS SECTION 5 STATE ADVIZR'S ENTIRE LIABILITY AND CUS- TOMER'S EXCLUSIVE REMEDIES FOR ANY CLAIM THAT THE SERVICES, ANY DELIVER- ABLE, OR THE TECHNOLOGY UNDERLYING ANY OF THE SERVICES, INFRINGE A THIRD PARTY'S INTELLECTUAL PROPERTY RIGHT.
6. CONFIDENTIAL INFORMATION.
6.1 Confidentiality. Each party will maintain in confidence all Confidential Information disclosed by the other party hereto. As used herein "Confidential Information" will mean all tangible in- formation which is marked as "confidential" or "proprietary" and all information which is dis- closed and should reasonably be considered confidential. Notwithstanding the foregoing, (a) the Advizr Confidential Information will include the Application Services, and the algorithms, know-how and technology underlying the Application Services and (b) Customer Confidential Information will include the Customer Data. Advizr may disclose Customer Confidential Infor- mation to employees, contractors and trainees who have agreed in writing to hold such Cus- tomer Confidential Information in confidence and not to use such information for any purposes other than those authorized by this Agreement. Customer may disclose Advizr Confidential In- formation to employees and contractors who are not Advizr competitors who have agreed in writing to hold such Advizr Confidential Information in confidence and not to use such informa- tion for any purpose other than those authorized by this Agreement. Each party will use at least the same standard of care as it uses to protect its own most confidential information to ensure that such employees or contractors do not disclose or make any unauthorized use of such Confidential Information.
6.2 Exceptions. The obligations of confidentiality contained in Paragraph 6.1 ("Confidentiality") will not apply to the extent that it can be established by the receiving party ("Recipient") by competent proof that such Confidential Information: (i) was already known to Recipient, other than under an obligation of confidentiality, at the time of disclosure by the other party; (ii) was generally available to the public or otherwise part of the public domain at the time of its disclo- sure; (iii) became generally available to the public or otherwise part of the public domain after its disclosure other than through any act or omission of Recipient in breach of this Agreement; (iv) was disclosed to Recipient, other than under an obligation of confidentiality, by a third party who had no obligation to the other party not to disclose such information to others; or (v) was independently developed by Recipient without use of the disclosing party's Confidential Infor- mation.
7. PAYMENT TERMS.
7.1 Invoice for Professional Services. Fees for professional services will be due and payable in accordance with Section 7.2 ("Payment Terms") below. Except as may otherwise be provided in an Order Form, fees for Professional Services will be provided on a time and materials basis; that is, Customer will pay Advizr for the time spent performing such Professional Services, plus materials, taxes, and expenses. Any estimated price will be an estimate only for Customer's budgeting and Advizr's resource scheduling purposes.
7.2 Payment Terms. All fees will be invoiced upon execution of each Order Form by Customer. Payment will be due immediately upon invoice and each month's service will be paid for at the beginning of the month. Overdue payments will accrue interest at the lesser of 1.5% per month or the maximum allowable interest under applicable law, and Customer will pay Advizr's asso- ciated cost of collection including reasonable attorneys' fees.
7.3 Expenses. Customer will reimburse Advizr for all reasonable and customary expenses in- curred by Advizr in providing Professional Services pursuant to this Agreement and for all rea- sonable travel and lodging expenses incurred by Advizr.
7.4 Taxes. Prices do not include taxes or duties. If Advizr is required to pay or collect any local, value added, goods and services taxes, or any other similar taxes or duties arising out of or related to this Agreement (not including taxes based on Advizr's income), then such taxes and/ or duties will be billed to and paid by Customer.
8.1 Reference. Customer hereby grants Advizr permission to identify Customer by name as a Customer of Advizr on the Advizr website and in any publicly filed document, press release and/or any other marketing materials.
8.2 Assignment. Neither party may assign or transfer its rights or obligations under this Agree- ment without the prior written consent of the other party, and any assignment or transfer in derogation of the foregoing will be null and void; provided, however, that Advizr will have the right to assign its rights to receivables hereunder to a bank or other financial institution and that either party will have the right to assign the Agreement, without the prior written consent of the other party, to the successor entity in the event of merger, corporate reorganization or a sale of all or substantially all of its assets. The terms of this Agreement will be binding upon such as- signees.
8.3 Force Majeure. Neither party will be liable to the other under this Agreement for any delay or lack of performance (other than nonpayment) resulting from a Force Majeure event. "Force Majeure" event means any act of God, war, fire, typhoon, flood, earthquake, natural disasters, governmental action, labor disruptions, materials shortages, or any other event beyond the reasonable control of the prevented party.
8.4 Notices. All notices and other communications provided for hereunder will be in writing and will be required to be delivered by email (but solely to the extent that an email address is pro- vided in the Cover Page) and one of the following additional means: personal delivery, overnight courier, confirmed facsimile, or certified or registered mail, return receipt requested. Notices will be sent to the parties using the notice information provided in the Cover Page, or to such other address as that party may specify in writing pursuant to this section.
8.5 Governing Law. All matters arising in connection with this Agreement or the enforcement or construction thereof will be governed by and resolved in accordance with the laws of the State of New York without reference to its conflicts of laws principles or any other principles that would result in the application of a different body of law. For any claim arising from or related to this Agreement, each party hereby expressly consents to exclusive jurisdiction and venue of the state or federal courts located in the County of New York.
8.6 Independent Contractors. The parties hereto are independent contractors and this Agree- ment will not be construed as creating any joint venture, partnership or other like relationship.
8.7 Waiver. No provision of this Agreement, unless such provision otherwise provides, will be waived by any act, omission or knowledge of a party or its agents or employees except by an instrument in writing expressly waiving such provision and signed by a duly authorized officer of the waiving party.
8.8 Severability. If any provision of this Agreement is unenforceable or illegal, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
8.9 Counterparts; Electronic Signatures. This Agreement may be executed in two or more counterparts, anyone of which need not contain the signatures of more than one party, but all such counterparts taken together will constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by electronic means (including by PDF or facsimile) will be effective as delivery of a mutually executed counterpart to this Agreement.
8.10 Entire Agreement. This Agreement, together with the exhibits attached hereto, constitute the entire agreement between the parties and supersede all prior oral or written negotiations and agreements between the parties with respect to the subject matter hereof. In the event of any conflict between this Agreement and any statement of work, the terms of this Agreement will control. No modification, variation or amendment of this Agreement will be effective unless made in writing and signed by the parties. Purchase orders provided by Customer, including any terms and conditions contained therein, will be for administrative purposes only and will have no force or effect.