This Software and Services License Agreement (including the
Schedules, the Privacy Policy and the Terms of Use, and any
applicable
company policies referenced therein, as in effect from time to
time, collectively and in their entirety, this "Agreement"), is
made and
effective as of the date set forth on the signature page
below (the "Effective Date"), contains the terms and
conditions upon which
North Capital Investment Technology, Inc. ("NCIT") grants to
the undersigned as licensee ("Licensee") a license to use
certain
software, computer programs, business processes, integrated
services and documentation more particularly described on
Schedule
A.
1. Definitions. When used in this Agreement, the
following terms shall have the respective meanings indicated,
such meanings to be applicable to both the singular and
plural
forms of the terms defined:
"Access Credentials" means any username, identification
number, password, license or security key, security token,
PIN or
other security code, method, technology or device used,
alone
or in combination, to verify an individual's identity and
authorization to access and use Hosted Services.
"Action" has the meaning set forth in Section 12.1.
"Agreement" has the meaning set forth in the preamble.
"Authorized User" means each of the individuals authorized
by
or on behalf of Licensee to use the Services pursuant to
Section
3.1.
"Confidential Information" means, as set forth in Section 9.1
and including, without limitation, the Services, the NCIT
Materials and terms and conditions of this Agreement.
"Disclosing Party" has the meaning set forth in Section 9.1.
"Documentation" means the documentation for the Software
and Services such as any manuals, instructions or other
documents or materials that NCIT provides or makes
available
to Licensee in any form or medium and which describe the
functionality, components, features or requirements of the
Services or NCIT Materials, including any aspect of the
installation, configuration, integration, operation, use, support
or maintenance thereof.
"Effective Date" has the meaning set forth in the preamble.
"Error" means a material and continuing failure of the
Software
and Services to function in conformity with the Specifications.
"Fees" has the meaning set forth in Section 8.1.
"Force Majeure Event" has the meaning set forth in Section
14.1.
"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: (a) permit unauthorized access to, or to
destroy, disrupt, disable, distort or otherwise harm or impede
in
any manner any (i) computer, software, firmware, hardware,
system or network or (ii) any application or function of any
of
the foregoing or the security, integrity, confidentiality or use
of
any data Processed thereby; or (b) prevent Licensee or any
Authorized User from accessing or using the Services or NCIT
Systems as intended by this Agreement. "Harmful Code"
does
not include any NCIT Disabling Device.
"Hosted Services" has the meaning set forth in Section 2.1.
"Indemnitee" has the meaning set forth in Section 12.3.
"Indemnitor" has the meaning set forth in Section 12.3.
"Initial Term" has the meaning set forth in Section 10.1.
"Intellectual Property Rights" means any and all registered
and
unregistered rights granted, applied for or otherwise now or
hereafter in existence under or related to any patent,
copyright,
trademark, trade secret, database protection
or other
intellectual property rights laws or practice, and all similar or
equivalent rights or forms of protection, in any part of the
world.
"Law" means any applicable statute, law, ordinance,
regulation,
rule, code, order, constitution, treaty, common law, judgment,
decree or other requirement of any federal, state, local or
foreign government or political subdivision thereof, regulatory
agency or arbitrator, mediator, court or tribunal of competent
jurisdiction.
"Licensee" has the meaning set forth in the preamble.
"Licensee Data" means, other than Resultant Data,
information,
data and other content, in any form or medium, that is
collected, downloaded or otherwise received, directly or
indirectly from Licensee or an Authorized User by or through
the
Services.
"Licensee Failure" has the meaning set forth in Section 4.2.
"Licensee Systems" means Licensee's information technology
infrastructure, including computers,
software, hardware,
databases, electronic systems (including database
management
systems) and networks, whether operated directly by
Licensee
or through the use of third party services.
"Losses" means any and all losses, damages, liabilities,
deficiencies, claims, actions, judgments, settlements, interest,
awards, penalties, fines, costs or expenses of whatever kind,
including reasonable attorneys' fees and the costs of enforcing
any right hereunder, collection and pursuing any insurance
providers.
"NCIT" has the meaning set forth in the preamble.
"NCIT Disabling Device" means any software, hardware or
other
technology, device or means (including any back door, time
bomb, time out, drop dead device, software routine or other
disabling device) used by NCIT or its designee to disable any
Person's (including, without limitation, Licensee's or any
Authorized User's) access to or use of the Services
automatically
with the passage of time or under the positive control of
NCIT or
its designee.
1
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"NCIT Indemnitee" has the meaning set forth in Section 12.2.
"NCIT Materials" means the Software, Documentation,
Specifications and NCIT Systems and any and all other
information, data, documents, materials, works and other
content, devices, methods, processes, hardware, software
and
other technologies and inventions, including any Licensee
and
other customizations, deliverables, technical or functional
descriptions, requirements, plans or reports, that are
provided
or used by NCIT or any Subcontractor in connection with
the
Services or otherwise comprise or relate to the Services or
NCIT
Systems. For the avoidance of doubt, NCIT Materials include
Resultant Data and any information, data or other content
derived from NCIT's monitoring of Licensee's access to or
use of
the Services, but do not include Licensee Data.
"NCIT Personnel" means all individuals involved in the
performance of Services as employees, agents or
independent
contractors of NCIT or any Subcontractor.
"NCIT Systems" means the information technology
infrastructure used by or on behalf of NCIT in performing the
Services, including all computers, software, hardware,
databases, electronic systems (including database
management
systems) and networks, whether operated directly by NCIT
or
through the use of third party services.
"Person" means an individual, corporation, partnership, joint
venture, limited liability entity, governmental authority,
unincorporated organization, trust, association or other entity.
"Privacy Policy" means NCIT's and its affiliates' data privacy
policies, as posted on a Website, as may be amended by
NCIT or
its affiliates from time to time.
"Process" means to take any action or perform any operation
or
set of operations that the Services are capable of taking or
performing on any data, information or other content,
including
to collect, receive, input, upload, download, record,
reproduce,
store, organize, compile, combine, log, catalog,
cross-reference,
manage, maintain, copy, adapt, alter, translate or make other
derivative works or improvements, process, retrieve, output,
consult, use, perform, display, disseminate, transmit, submit,
post, transfer, disclose or otherwise provide or make
available,
or block, erase or destroy. "Processing" and "Processed"
have
correlative meanings.
"Receiving Party" has the meaning set forth in Section 9.1.
engineered or otherwise identified from the inspection,
analysis
or further Processing of such information, data or content.
"Scheduled Downtime" has the meaning set forth in Section
5.2.
"Service Software" means the NCIT software application or
applications and any third party or other software, and all
new
versions, updates, revisions, improvements, customizations
(including, without limitation, in
connection with this
Agreement for or on behalf of Licensee) and modifications of
the foregoing, that NCIT provides remote access to and use
of as
part of the Services.
"Services" means any services provided by NCIT or its
contractors to Licensee in connection with this Agreement
and
supplemental time and materials ("T+M") contracts, including
software as a service (SaaS), installation, configuration,
integration, customization training, and/or technical support, as
specified in the Order Form and Schedule A, including
Hosted
Services.
"Software" means the computer programs specified in the
Order Form and Schedule A in machine-readable, object
code
form, and any computer programs delivered to Licensee in
machine-readable, object code form and any updates thereto,
or provided by NCIT in connection with any Services
hereunder,
and the Service Software.
"Specifications" means NCIT's current published product
release
definitions.
"Subcontractor" has the meaning set forth in Section 2.5.
"Term" has the meaning set forth in Section 10.2.
"Terms of Use" means NCIT's and its affiliates' terms of use,
as
posted on a Website, as may be amended by NCIT or its
affiliates from time to time.
"Third Party Materials" means materials and information, in
any
form or medium, including any software, documents, data,
content, specifications, products, equipment or components of
or relating to the Services that are not proprietary to NCIT.
"Website" means
xxxxx://xxx.xxxxxxxxxxxx.xxx,
xxxxx://xxx.xxxxxx.xxx,
xxxxx://xxx.xxxxxxxxxx.xx,
xxxxx://xxx.xxxx.xxx, xxxxx://xxx.x0xxxxx.xxx and NCIT's
or its Representative's other websites from time to time
(including all data and information services owned or
operated
by, on behalf of or through NCIT or its Representatives).
"Renewal Term" has the meaning set forth in Section 10.2.
2.
Services.
"Representatives" means, with respect to a Person, that
Person's affiliates and their employees, officers, directors,
consultants, agents, independent contractors, service
providers,
sub-licensees, subcontractors and legal, tax, financial and
other
advisors.
"Resultant Data" means information, data and other content
that is derived by or through the Services from Processing
or
aggregating Licensee Data and is sufficiently different from
such
Licensee Data that such Licensee Data cannot be reverse
2.1 Services. Subject to and conditioned on Licensee's
and
its Authorized Users' compliance with the terms and
conditions
of this Agreement, during the Term NCIT shall use
commercially
reasonable efforts to provide to Licensee and its Authorized
Users the Software and Services in accordance with the
terms
and conditions hereof, including to host, manage, operate
and
maintain the Service Software for remote electronic access
and
use by Licensee and its Authorized Users ("Hosted Services")
on
an ongoing basis, except for:
2
(NCIT SSLA 8/2020)
(a)
Scheduled Downtime in accordance with
Licensee's, any Authorized User's or any other Person's
access
Section 5.2;
(b) Service downtime or degradation due to a
Force Majeure Event;
(c) Any other circumstances beyond NCIT's
reasonable control, including Licensee's or any Authorized
User's use of Third Party Materials, misuse of Hosted
Services,
or use of the Services other than in compliance with the
express
terms of this Agreement; and
(d) Any suspension or termination of Licensee's
or
any Authorized Users' access to or use of Hosted Services
as a
result of a Licensee Failure or as otherwise permitted by this
Agreement.
2.2 Service and System Control. Except as otherwise
to or use of all or any part of the Services or NCIT Materials,
without incurring any resulting obligation or liability, if: (a)
NCIT
receives a judicial or other governmental or regulatory
demand
or order, subpoena or law enforcement request that expressly
or by reasonable implication requires NCIT to do so; or (b)
NCIT
believes, in its sole discretion, that (i) Licensee or any
Authorized User has failed to comply with Law or any term
of
this Agreement, or accessed or used the Services beyond
the
scope of the rights granted or for a purpose not authorized
under this Agreement, (ii) Licensee or any Authorized User
is,
has been, or is likely to be involved in any fraudulent,
misleading
or unlawful activities, or (iii) this Agreement expires or is
terminated. This Section 2.6 does not limit any of NCIT's
other
rights or remedies, whether at law, in equity or under this
Agreement.
expressly provided in this Agreement, as between the
parties:
3.
Authorization and Licensee Restrictions.
(a) NCIT has and will retain sole control over
the
operation, provision, maintenance and management of the
Services and NCIT Materials, including the: (i) NCIT
Systems;
(ii) selection, deployment, modification and replacement of
the
Service Software; and (iii) performance of maintenance,
upgrades, corrections and repairs; and
(b) Licensee has and will retain sole control over
the operation, maintenance and management of, and all
access
to and use of, the Licensee Systems, and sole responsibility
for
all access to and use of the Services and NCIT Materials by
any
Person by or through the Licensee Systems or any other
means
controlled by Licensee or any Authorized User, including any
information, instructions or materials provided by any of them
to NCIT or Subcontractors.
2.3 Service Management. Licensee agrees throughout
the
Term to maintain within its organization a service manager
to
serve as NCIT's primary point of contact for day-to-day
communications, consultation and decision-making regarding
the Services. Licensee shall ensure its service manager has
the
requisite organizational authority, skill, experience and other
qualifications to perform in such capacity. If Licensee's
service
manager ceases to be employed by it or it otherwise wishes
to
replace its service manager, Licensee shall promptly name a
new
service manager by written notice to NCIT.
2.4 Changes. NCIT reserves the right, in its sole
discretion,
to make any changes to the Services and NCIT Materials that
it
deems necessary or useful to: (a) maintain or enhance (i)
the
quality or delivery of NCIT's services to its customers, (ii)
the
3.1 Authorization. Subject to and conditioned on
Licensee's
payment of the Fees and compliance and performance in
accordance with all other terms and conditions of this
Agreement, NCIT hereby authorizes Licensee to nonexclusive,
nontransferable access and use, subject to the terms and
conditions herein and during the Term, the Services and
such
NCIT Materials as NCIT may supply or make available to
Licensee
solely for the use by and through Authorized Users in
accordance with the conditions and limitations set forth in this
Agreement. This authorization is non-exclusive and, other than
as may be expressly set forth in Section 15.6,
non-transferable.
3.2 Reservation of Rights. Except for the limited license
in
Section 3.1, nothing in this Agreement grants any right, title
or
interest in or to (including any license under) any Intellectual
Property Rights in or relating to, the Services, NCIT Materials
or
Third Party Materials, whether expressly, by implication,
estoppel or otherwise. All right, title and interest in and to
(including all license under) any Intellectual Property Rights in
or
relating to, the Services, NCIT Materials and Third Party
Materials are and will remain with NCIT and the respective
rights holders in the Third Party Materials.
3.3 Authorization Limitations and Restrictions. Licensee
shall not, and shall not permit any other Person to, access
or use
the Services or NCIT Materials except as expressly permitted
by
this Agreement and, in the case of Third Party Materials, the
applicable third party license agreement. For purposes of
clarity
and without limiting the generality of the foregoing, Licensee
shall not, except as this Agreement expressly permits:
competitive strength of or market for NCIT's services or (iii)
the
Services' cost efficiency or performance; or (b) to comply
with
Law.
(a) modify or create derivative
improvements of the Services or NCIT Materials;
works
or
2.5 Subcontractors. NCIT may from time to time in its
sole
discretion engage third parties to perform Services (each, a
"Subcontractor").
2.6 Suspension or Termination of Services. NCIT may,
directly or indirectly, and by use of a NCIT Disabling Device
or
any lawful means, suspend, terminate or otherwise deny
(b) copy the Software and Documentation,
unless
for archival or backup purposes only; in such case, all titles,
trademarks, and copyright, proprietary and restricted rights
notices shall be reproduced in all such copies, and all copies
shall be subject to the terms of this Agreement;
(c) rent, lease, lend, sell, sublicense, assign,
distribute, publish, transfer or otherwise make available any
3
(NCIT SSLA 8/2020)
Services or NCIT Materials to any Person, including on or in
connection with the internet or any time-sharing, service
bureau, SaaS, cloud or other technology or service;
(d) reverse engineer, disassemble, decompile,
decode, adapt or otherwise attempt to derive or gain access
to
the source code of the Services or NCIT Materials, in whole
or in
part;
(e) bypass or breach any security device or
protection used by the Services or NCIT Materials or access
or
use the Services or NCIT Materials other than by an
Authorized
User through the use of such Authorized User's own then
valid
Access Credentials;
(f) input, upload, transmit or otherwise provide
to or through the Services or NCIT Systems, any information
or
materials that are unlawful or injurious, or contain, transmit or
activate any Harmful Code;
(g) damage, destroy, disrupt, disable, impair,
interfere with or otherwise impede or harm in any manner
the
Services, NCIT Systems or NCIT's provision of services to
any
third party, in whole or in part;
(h) remove, delete, alter or obscure any
trademarks, Documentation, Specification, warranties or
disclaimers, or any copyright, trademark, patent or other
intellectual property or proprietary rights notices from any
Services or NCIT Materials, including any copy thereof;
(i) access or use the Services or NCIT Materials
in
any manner or for any purpose that infringes,
misappropriates
or otherwise violates any Intellectual Property Right or other
right of any third party (including by any unauthorized access
to,
4.2 Effect of Licensee Failure or Delay. NCIT is not
responsible or liable for any delay or failure of performance
caused in whole or in part by Licensee's delay in performing,
or
failure to perform, any of its obligations under this Agreement
(each, a "Licensee Failure").
4.3 Corrective Action and Notice. If Licensee becomes
aware of any actual or threatened activity prohibited by
Section
3.3, Licensee shall, and shall cause its Authorized Users to,
immediately: (a) take all reasonable and lawful measures
within
their respective control that are necessary to stop the activity
or
threatened activity and to mitigate its effects (including, where
applicable, by discontinuing and preventing any unauthorized
access to the Services and NCIT Materials and permanently
erasing from their systems and destroying any data to which
any
of them have gained unauthorized access); and (b) notify
NCIT
of any such actual or threatened activity.
4.4 Consent to Use Licensee Data. Licensee hereby
irrevocably grants a license and all such other rights and
permissions in or relating to Licensee Data: (a) to NCIT, its
Subcontractors and the NCIT Personnel as are necessary or
useful to perform the Services; and (b) to NCIT as are
necessary
or useful to enforce this Agreement and exercise its rights
and
perform its obligations hereunder.
4.5 Export Laws. Licensee shall adhere to all US Export
Administration Law and shall not export or re-export any
technical data or products received by or on behalf of NCIT,
or
the direct products of such technical data, to any proscribed
country listed in the then-current US Export Administration
Law
unless properly authorized by both NCIT and the US
Government.
misappropriation, use, alteration, destruction or disclosure of
5.
Service Levels.
the data of any other NCIT customer), or that violates any
Law;
(j) take any action that might lead a third party
(including an Authorized User) to conclude that the Services
or
NCIT Materials involve the provision of investment advice or
recommendations;
(k) access or use the Services or NCIT
Materials
for purposes of competitive analysis of the Services or NCIT
Materials, the development, provision or use of a competing
software service or product or any other purpose that is to
NCIT's detriment or commercial disadvantage; or
(l) otherwise access or use the Services or
NCIT
Materials beyond the scope of the authorization granted
under
Section 3.1.
5.1 Service Levels. Subject to the terms and conditions
of
this Agreement, NCIT will use commercially reasonable efforts
to make Hosted Services available for access and use by
Licensee and its Authorized Users over the Internet at least
99%
of the time as measured over the course of each calendar
month during the Term excluding unavailability due, in whole
or
in part, to any: (a) act or omission by Licensee or any
Authorized
User, access to or use of Hosted Services by Licensee or
any
Authorized User, or using Licensee's or an Authorized User's
Access Credentials, that does not strictly comply with this
Agreement; (b) Licensee Failure; (c) Licensee's or its
Authorized
User's Internet connectivity; (d) Force Majeure Event; (e)
failure,
interruption, outage or other problem with any software,
hardware, system, network, facility or other matter not
supplied
4.
Licensee Obligations.
by NCIT pursuant to this Agreement; (f) Scheduled Downtime;
or
(g) disabling, suspension or termination of the Services
pursuant
4.1 Licensee Systems and Cooperation. Licensee shall at
all
times during the Term: (a) set up, maintain and operate in
good
repair all Licensee Systems on or through which the
Software or
the Services are accessed or used; and (b) provide all
cooperation and assistance as NCIT may reasonably request
to
enable NCIT to exercise its rights and perform its obligations
under and in connection with this Agreement.
to Section 2.6. Service levels cannot be guaranteed and
NCIT
shall not be liable to Licensee or Authorized Users in the
event
Hosted Services are unavailable.
5.2 Scheduled Downtime. NCIT will use commercially
reasonable efforts to: (a) schedule downtime for routine
maintenance of Hosted Services between the hours of 12:00
a.m. and 6:00 a.m., Eastern Standard Time; and (b) give
Licensee
4
(NCIT SSLA 8/2020)
at least 24 hours prior notice of all scheduled outages of
Hosted
Services ("Scheduled Downtime").
6. Data Backup. NCIT will use commercially reasonable
Services; and (b) control the content and use of Licensee
Data,
including the uploading or other provision of Licensee Data
for
Processing by Hosted Services.
efforts to maintain regular data backups of Licensee Data;
8.
Fees; Payment Terms.
provided however, that NCIT HAS NO OBLIGATION OR
LIABILITY
FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE,
CORRUPTION OR RECOVERY OF LICENSEE DATA.
8.1 Fees. Licensee shall pay NCIT the fees set forth on
Schedule B and Schedule C ("Fees") in accordance with this
Section 8.
7.
Privacy.
8.2 Fee Increases. After the Initial Term (as defined
below),
7.1 NCIT Systems and Obligations. This Agreement
incorporates by reference the Privacy Policy and the Terms
of
Use. In the event of any conflict between this Agreement
and
the Terms of Use, the terms of this Agreement shall prevail.
To
the extent an Authorized User will be disclosing information
using the Services, Licensee shall ensure that its privacy
policy
and terms of use incorporate by reference a link to and an
acknowledgement by Authorized Users of the Privacy Policy
and
Terms of Use or otherwise incorporate terms with
substantially
the same effect and permit the use of such information by
NCIT
and its Representatives in connection with the Services.
7.2 Prohibited Data. Licensee acknowledges that the
Services are not designed with security and access
management
for Processing the following categories of information: (a)
data
that is classified and or used on the U.S. Munitions list,
including
software and technical data; (b) articles, services and related
technical data designated as defense articles or defense
services; (c) ITAR (International Traffic in Arms Regulations)
related data; or (d) protected health information (each of the
foregoing, "Prohibited Data"). Licensee shall not, and shall
not
permit any Authorized User or other Person to, provide any
Prohibited Data to, or Process any Prohibited Data through,
the
Services, the NCIT Systems or any NCIT Personnel.
Licensee is
solely responsible for reviewing all Licensee Data and shall
ensure that no Licensee Data constitutes or contains any
Prohibited Data.
7.3 Licensee Control and Responsibility. Licensee has
and
will retain sole responsibility for: (a) all Licensee Data
(excluding
data transmitted directly into the NCIT Systems by an
Authorized User unaffiliated with Licensee), including its
content
and use, except as set forth in the Privacy Policy; (b) all
information, instructions and materials provided by or on
behalf
of Licensee or any Authorized User in connection with the
Services; (c) Licensee Systems; (d) the security and use of
Licensee's and its Authorized Users' Access Credentials; and
(e)
all access to and use of the Services and NCIT Materials
directly
or indirectly by or through the Licensee Systems or its or its
Authorized Users' Access Credentials, with or without
Licensee's
knowledge or consent, including all results obtained from,
and
all conclusions, decisions and actions based on, such access
or
use.
7.4 Access and Security. Licensee shall employ all
physical,
administrative and technical controls, screening and security
procedures and other safeguards necessary to: (a) securely
administer the distribution and use of all Access Credentials
and
protect against any unauthorized access to or use of Hosted
NCIT may increase Fees by providing written notice to
Licensee
at least 30 days prior to the effective date of the Fee
increase,
and the Fees will be deemed amended accordingly without
further notice or consent; provided that NCIT will not
increase
Fees during the Initial Term. Licensee may terminate this
Agreement effective as of the date of the Fee increase upon
providing written notice to NCIT within 30 days of receipt of
the
notice of Fee increase.
8.3 Taxes. All Fees and other amounts payable by
Licensee
under this Agreement are exclusive of taxes and similar
assessments. Licensee is responsible for all sales, use and
excise
taxes, and any other similar taxes, duties and charges of any
kind imposed by any federal, state or local governmental or
regulatory authority on any amounts payable by Licensee
hereunder, other than any taxes levied or imposed on NCIT's
income.
8.4 Payment. All Fees will be invoiced monthly by the 5th
of
the month and will be charged automatically on the 15th of
each
month, or as otherwise set forth on Schedule B and Schedule
C,
to the credit card or other payment method used for the
purchase under this Agreement or in creating Licensee's
account
(as set forth on the signature page below). Licensee consents
to
NCIT retaining and using Licensee's payment information for
future invoices and as provided in this Agreement. Licensee
agrees and acknowledges that NCIT and its third party
vendors
may retain and use Licensee's payment information to
facilitate
the payments provided for in this Agreement. Licensee
agrees to
promptly provide NCIT with written notice of any update of or
changes to your payment information. All payments shall be
in
US dollars in immediately available funds.
8.5 Late Payment. If Licensee fails to make any payment
when due then, in addition to all other remedies that may be
available:
(a) NCIT may charge interest on the past due
amount at the rate of 1.5% per month, calculated daily and
compounded monthly, or if lower, the highest rate permitted
under Law; such interest may accrue after as well as before
any
judgment relating to collection of the amount due;
(b) Licensee shall reimburse NCIT for all costs
incurred by NCIT in collecting any late payments or interest,
including attorneys' fees, court costs and collection agency
fees;
and
(c) if such failure continues for 10 days
following
written notice thereof, NCIT may suspend performance of the
Services until all past due amounts and interest thereon have
5
(NCIT SSLA 8/2020)
been paid, without incurring any obligation or liability to
Licensee or any other Person by reason of such suspension;
provided that cumulative late payments are subject to the
overall limits set forth in Schedule B. A default under this
Agreement by Licensee shall constitute a default by Licensee
or
its affiliates under all other agreements any of them have
then
in effect with NCIT or its affiliates.
8.6 No Deductions or Setoffs. All amounts payable to
NCIT
under this Agreement shall be paid by Licensee to NCIT in
full
without any setoff, recoupment, counterclaim, deduction, debit
or withholding for any reason (other than any deduction or
withholding of tax as may be required by Law).
Representatives who: (i) need to know such Confidential
Information for purposes of Receiving Party's exercise of its
rights or performance of its obligations under and in
accordance
with this Agreement; (ii) have been informed of the
confidential
nature of the Confidential Information; and (iii) are bound by
confidentiality and restricted use obligations in substantially
similar effect as the terms set forth in this Section 9.3;
(c) safeguard and protect the
Confidential
Information from theft, piracy or unauthorized use, access or
disclosure using at least the degree of care it uses to protect
its
similarly sensitive information and in no event less than a
reasonable degree of care;
9.
Confidentiality.
(d) ensure its Representatives' compliance
with,
and be responsible and liable for any of its Representatives'
9.1 Confidential Information. In connection with this
Agreement, each party ("Disclosing Party") may disclose or
make available Confidential Information to the other party
("Receiving Party"). Subject to Section 9.2, "Confidential
Information" means information in any form or medium
(whether oral, written, electronic or other) that Disclosing
Party
considers confidential or proprietary, including information
consisting of or relating to Disclosing Party's or its affiliates'
technology, trade secrets, know-how, business operations,
plans, strategies, customers, and pricing, and information with
respect to which Disclosing Party has contractual or other
confidentiality obligations, in each case whether or not
marked,
designated or otherwise identified as "confidential". Without
limiting the foregoing, all Services and NCIT Materials,
including
the terms of this Agreement, are the Confidential Information
of
NCIT.
9.2 Exclusions. Confidential Information does not include
information that Receiving Party can demonstrate by written
or
other documentary records: (a) was lawfully known to
Receiving
Party without restriction on use or disclosure prior to such
information's being disclosed or made available to Receiving
Party in connection with this Agreement; (b) was or becomes
generally known by the public other than by Receiving
Party's or
any of its Representatives' noncompliance with this
Agreement;
(c) was or is received by Receiving Party on a
non-confidential
basis from a third party that was not or is not, at the time of
such receipt, under any obligation to maintain its
confidentiality;
or (d) Receiving Party can demonstrate by written or other
documentary records was or is independently developed by
Receiving Party without reference to or use of any
Confidential
Information.
9.3 Protection of Confidential Information. As a condition
non-compliance with, the terms of this Section 9; and
(e) notify Disclosing Party upon discovery of
any
prohibited use or disclosure of the Confidential Information, or
any other breach of these confidentiality obligations by
Receiving Party, and shall cooperate with Disclosing Party to
help Disclosing Party regain possession of the Confidential
Information and prevent the further prohibited use or
disclosure
of the Confidential Information.
9.4 Compelled Disclosures. If Receiving Party or any of
its
Representatives is compelled by Law
to disclose any
Confidential Information then, to the extent permitted by Law,
Receiving Party shall: (a) promptly, and prior to such
disclosure,
notify Disclosing Party in writing of such requirement so that
Disclosing Party can seek a protective order or other remedy
or
waive its rights under Section 9.3; and (b) provide reasonable
assistance to Disclosing Party in opposing such disclosure or
seeking a protective order or other limitations on disclosure. If
Disclosing Party waives compliance or, after providing the
notice
and assistance required under this Section 9.4, Receiving
Party
remains required by Law to disclose any Confidential
Information, Receiving Party shall disclose only that portion of
the Confidential Information that Receiving Party is legally
required to disclose and, on Disclosing Party's request, shall
use
commercially reasonable efforts to obtain assurances from the
applicable court or other presiding authority that such
Confidential Information will be
afforded confidential
treatment. Notwithstanding the foregoing, the restrictions and
requirements herein shall not apply to, and NCIT and its
Representatives may disclose and retain copies of,
Confidential
Information in connection with NCIT's or its Representatives'
compliance with legal, financial or regulatory filings, audits or
examinations or as otherwise required by Law.
to being provided with any disclosure of or access to
Confidential Information, Receiving Party shall:
10.
Term and Termination.
(a) not access or use Confidential Information
other than as necessary to exercise its rights or perform its
obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject
to
its compliance with Section 9.4, not reveal, disclose or
permit
access to Confidential Information other than to its
10.1 Initial Term. The initial term of this Agreement
commences as of the Effective Date and, unless terminated
earlier pursuant any of the Agreement's express provisions,
will
continue in effect for one year (the "Initial Term").
10.2 Renewal. This Agreement will automatically renew
for
additional successive one-year terms unless earlier terminated
pursuant to this Agreement's express provisions or either
party
6
(NCIT SSLA 8/2020)
gives the other party written notice of non-renewal at least
90
days prior to the expiration of the then-current term (each a
"Renewal Term" and, collectively with the Initial Term, the
"Term").
Licensee Data and Licensee Confidential Information in its
regular backup, archived or disaster recovery systems or files;
(c) Licensee shall promptly cease all use of
any
Services or NCIT Materials and (i) promptly return to NCIT,
or at
10.3
Termination. In addition to Section 8.2 and Section
NCIT's written request destroy, all documents and tangible
10.2:
(a) NCIT may terminate this Agreement, effective
on written notice to Licensee, if Licensee: (i) fails to pay any
amount when due hereunder, and such failure continues
more
than 30 days after NCIT's delivery of written notice thereof;
or
(ii) breaches any of its obligations under Section 3.3
(Authorization Limitations and Restrictions), Section 7.2
(Prohibited Data) or Section 9 (Confidentiality).
(b) Either party may terminate this Agreement,
effective on written notice to the other party, if the other
party
materially breaches this Agreement, and such breach: (i) is
incapable of cure within three business days of NCIT's
notice to
Licensee of the breach and NCIT's intent to terminate the
license granted in this Agreement; or (ii) being capable of
cure,
remains uncured 30 days after the non-breaching party
provides
the breaching party with written notice of such breach;
(c) Either party may terminate this Agreement,
effective immediately upon written notice to the other party, if
the other party: (i) becomes insolvent or is generally unable
to
pay, or fails to pay, its debts as they become due; (ii) files
or has
filed against it, a petition for voluntary or involuntary
bankruptcy or otherwise becomes subject, voluntarily or
involuntarily, to any proceeding under any domestic or
foreign
bankruptcy or insolvency Law; (iii) makes or seeks to make
a
general assignment for the benefit of its creditors; or (iv)
applies
for or has appointed a receiver, trustee, custodian or similar
agent appointed by order of any court of competent
jurisdiction
to take charge of or sell any material portion of its property
or
business; and
(d) Either party may terminate this Agreement
upon 90 days written notice to the other for any commercial
or
business reason.
10.4 Effect of Expiration or Termination. Upon any
expiration or termination of this Agreement, except as
expressly
materials containing, reflecting, incorporating or based on any
NCIT Materials or NCIT's Confidential Information; and
(ii) permanently erase all NCIT Materials and NCIT's
Confidential
Information from all systems Licensee directly or indirectly
controls; provided that Licensee may retain NCIT Materials or
NCIT's Confidential Information in its regular backup, archived
or disaster recovery systems or files, or as permitted by
Section
9.4; an officer or director of Licensee shall, within 30 days
from
the effective date of the termination, certify in writing that all
copies of the Software and Documentation have been
returned,
deleted and destroyed;
(d) NCIT may disable all Licensee and
Authorized
User access to Hosted Services and NCIT Materials;
(e) if Licensee terminates
this Agreement
pursuant to Section 10.3(b), Licensee will be relieved of any
obligation to pay any Fees attributable to the period after the
effective date of such termination; and
(f) if NCIT terminates this Agreement pursuant
to
Section 10.3(a) or Section 10.3(b), all Fees that would have
become payable had the Agreement remained in effect until
expiration of the Term will become immediately due and
payable, and Licensee shall pay such Fees, together with all
previously-accrued but not yet paid Fees, on receipt of
NCIT's
invoice therefor.
ALL SALES ARE FINAL; NO REFUNDS OR
EXCHANGES.
10.5 Surviving Terms. The provisions set forth in the
following sections, and any other rights or obligations of the
parties in this Agreement that, by their nature, should survive
termination or expiration of this Agreement, will survive any
expiration or termination of this Agreement (including, without
limitation, Section 9 (Confidentiality), Section 8 (Fees;
Payment
Terms), Section 10 (Term and Termination), Section 12
(Indemnification), Section 13 (Limitations of Liability) and
Section 15 (Miscellaneous)).
otherwise provided in this Agreement (including Section 10.5
below):
11.
Representations, Warranties and Covenants.
(a) all rights, licenses, consents and
authorizations
granted by either party to the other hereunder will
immediately
terminate;
(b) NCIT shall promptly cease all use of any
Licensee Data or Licensee's Confidential Information and
erase
all Licensee Data and Licensee's Confidential Information
from
all systems NCIT controls; provided that, (i) for clarity, NCIT's
obligations under this Section 10.4(b) do not apply to any
Resultant Data, (ii) NCIT and its affiliates may retain, use
and
disclose Licensee Data or Licensee Confidential Information
as
required by Law, and (iii) NCIT and its affiliates may retain
11.1 Mutual Representations and Warranties. Each party
represents and warrants to the other party that:
(a) it is duly organized, validly existing and in
good
standing as a corporation or other entity under the laws of
the
jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to
enter into and perform its obligations and grant the rights,
licenses, consents and authorizations it grants or is required
to
grant under this Agreement;
(c) the execution of this Agreement has been
duly
authorized by all necessary corporate or organizational action
of
such party;
7
(NCIT SSLA 8/2020)
(d) its signatory to this Agreement is authorized
to
execute this Agreement on such party's behalf; and
(e) this Agreement constitutes the legal, valid
and
binding obligation of such party, enforceable against such
party
in accordance with its terms.
11.2 Additional NCIT Representations, Warranties and
Covenants. NCIT represents, warrants and covenants to
Licensee
that NCIT will perform the Services using personnel of
required
skill, experience and qualifications and in a professional and
OTHER PERSON'S REQUIREMENTS,
OPERATE WITHOUT
INTERRUPTION, ACHIEVE ANY
INTENDED RESULT, BE
COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM
OR
OTHER SERVICES, OR BE SECURE, ACCURATE,
COMPLETE, FREE
OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY
MATERIALS ARE PROVIDED "AS IS" AND ANY
REPRESENTATION
OR WARRANTY OF OR CONCERNING ANY THIRD PARTY
MATERIALS IS STRICTLY BETWEEN LICENSEE AND THE
THIRD
PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY
MATERIALS.
workmanlike manner in accordance with generally
recognized
industry standards for similar services and will devote
adequate
12.
Indemnification.
resources to meet its obligations under this Agreement. NCIT
also represents to Licensee that: (a) during the Term, the
Software shall operate without any material Errors; and
(b) upon notification to NCIT of any Errors, NCIT's sole
liability,
and Licensee's sole remedy, will be NCIT's use of
reasonable
efforts during its normal business hours and at no cost to
Licensee to correct such Errors that are verifiable and
reproducible by NCIT, excluding any Errors caused by uses
of the
Software and Services not in accordance with the
Specifications.
Alternatively, in NCIT's sole discretion, NCIT may refund the
portion of the prepaid Fees applicable to the portion of the
Software that is defective.
11.3 Additional Licensee Representations, Warranties and
Covenants. Licensee represents, warrants and covenants to
NCIT
that Licensee owns or otherwise has and will have the
necessary
rights and consents in and relating to the Licensee Data so
that,
as received by NCIT and Processed in accordance with this
Agreement, they do not and will not infringe, misappropriate
or
otherwise violate any Intellectual Property Rights, or any
privacy
or other rights of any third party or violate any Law.
Licensee
acknowledges and agrees that the Services provided by
NCIT
under this Agreement are administrative and technological in
nature and that NCIT is not providing investment advice, or
otherwise acting in an investment advisory capacity, to
Licensee
or any Authorized User.
11.4 DISCLAIMER OF WARRANTIES. EXCEPT FOR
NCIT'S
EXPRESS WARRANTIES SET FORTH IN SECTION 11.1,
SECTION
11.2 AND SECTION 11.3, ALL SERVICES AND NCIT
MATERIALS
ARE PROVIDED "AS IS" AND NCIT HEREBY DISCLAIMS
ALL
WARRANTIES, WHETHER EXPRESS, IMPLIED,
STATUTORY OR
OTHER, AND NCIT SPECIFICALLY DISCLAIMS ALL
IMPLIED
WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT,
AND
ALL WARRANTIES ARISING FROM COURSE OF DEALING,
USAGE
OR TRADE PRACTICE. NCIT DOES NOT
PROVIDE ANY
INVESTMENT ADVISORY SERVICE, DUE DILIGENCE,
BROKERAGE,
FINANCIAL MANAGEMENT, TAX, ACCOUNTING OR ANY
OTHER
PROFESSIONAL SERVICE, AND ANY ADVICE
OR OTHER
INFORMATION OBTAINED THROUGH NCIT'S PRODUCTS AND
SERVICES WILL BE USED BY LICENSEE AND ITS
AUTHORIZED
USERS SOLELY AT THEIR OWN RISK. WITHOUT LIMITING
THE
FOREGOING, NCIT MAKES NO WARRANTY OF ANY KIND
THAT
THE SERVICES OR NCIT MATERIALS, OR ANY PRODUCTS
OR
RESULTS OF THE USE THEREOF, WILL MEET
LICENSEE'S OR ANY
12.1 NCIT Indemnification. Subject to the limitations on
liability in this Agreement, including as set forth in Section
13,
NCIT shall indemnify, defend and hold harmless Licensee
from
and against any and all Losses incurred by Licensee arising
out of
or relating to any legal suit, claim, action or proceeding
(each,
an "Action") by a third party (other than an affiliate of
Licensee)
to the extent that such Losses arise from any allegation in
such
Action that Licensee's or an Authorized User's use of the
Services (excluding Licensee Data and Third Party Materials)
in
compliance with this Agreement infringes a U.S. Intellectual
Property Right. The foregoing obligation does not apply to
any
Action or Losses arising out of or relating to any:
(a) access to or use of the Services or NCIT
Materials in combination with any hardware, system, software,
network or other materials or service not provided or
authorized in writing by NCIT;
(b) modification of the Services or NCIT
Materials
other than: (i) by or on behalf of NCIT; or (ii) with NCIT's
written
approval in accordance with NCIT's written specification;
(c) failure to timely implement any
modifications,
upgrades, replacements or enhancements made available to
Licensee by or on behalf of NCIT; or
(d) act, omission or other matter described in
Section 12.2(a)-(g), whether or not the same results in any
Action against or Losses by any NCIT Indemnitee.
12.2 Licensee Indemnification. Licensee shall and shall
cause
its affiliates, jointly and severally, to indemnify, defend and
hold
harmless NCIT and its Subcontractors and their
Representatives
and successors and assigns (each, a "NCIT Indemnitee")
from
and against any and all Losses incurred by such NCIT
Indemnitee
in connection with any Action that arises out of or relates to
this
Agreement or any of the following:
(a) Licensee Data, including any Processing of
Licensee Data by or on behalf of NCIT in accordance with
this
Agreement;
(b) securities offering facilitated by Licensee or
its
affiliates or their Representatives, including any and all data
and
documentation related to such offering, the due diligence
related to such offering, and/or the determination of suitability
or qualification of a prospective investor for an offering;
8
(NCIT SSLA 8/2020)
(c) any other materials or information (including
any documents, data, specifications, software, content or
technology) provided by or on behalf of Licensee or any
Authorized User, including NCIT's compliance with any
specifications or directions provided by or on behalf of
Licensee
or any Authorized User, to the extent prepared without any
contribution by NCIT;
(d) brokerage services or investment advice;
recommendations regarding any particular investment,
security
or course of action; offers to invest or to provide financial
analysis or management services; or similar advice, offers or
guidance to Authorized Users, which shall remain the sole
responsibility of Licensee;
modifications or replacements will constitute Services and
NCIT
Materials, as applicable, under this Agreement; or
(c) by written notice to Licensee, terminate this
Agreement and require Licensee to immediately cease any use
of and destroy or return all copies of the Services and NCIT
Materials in its possession or under its control.
THIS SECTION 12 SETS FORTH LICENSEE'S SOLE
REMEDIES AND
NCIT'S SOLE LIABILITY AND OBLIGATION FOR ANY
ACTUAL,
THREATENED OR ALLEGED CLAIMS THAT THIS
AGREEMENT OR
ANY SUBJECT MATTER HEREOF (INCLUDING THE
SERVICES AND
NCIT MATERIALS)
INFRINGES, MISAPPROPRIATES OR
OTHERWISE VIOLATES ANY THIRD PARTY
INTELLECTUAL
PROPERTY RIGHT.
(e) allegation of facts that, if true, would
constitute Licensee's breach of any of its representations,
13.
Limitations of Liability.
warranties, covenants or obligations under this Agreement;
(f) negligence or more culpable act or omission
(including recklessness or willful misconduct) by Licensee,
any
Authorized User, or any third party on behalf of Licensee or
any
Authorized User, in connection with this Agreement; or
(g) transaction for which the Services or NCIT
Materials is being used by or on behalf of Licensee.
12.3 Indemnification Procedure. Each party shall promptly
notify the other party in writing of any Action for which such
party believes it is entitled to be indemnified pursuant to
Section 12.1 or Section 12.2, as the case may be. The
party
seeking indemnification (the "Indemnitee") shall cooperate
with
the other party (the "Indemnitor") at the Indemnitor's sole
cost
and expense. The Indemnitor shall immediately take control
of
the defense and investigation of such Action and shall
employ
counsel reasonably acceptable to the Indemnitee to handle
and
defend the same, at the Indemnitor's sole cost and expense.
The
Indemnitee's failure to perform any obligations under this
Section 12.3 will not relieve the Indemnitor of its obligations
under this Section 12 except to the extent that the
Indemnitor
can demonstrate that it has been materially prejudiced as a
result of such failure. The Indemnitee may participate in and
observe the proceedings at its own cost and expense with
counsel of its own choosing.
12.4 Mitigation. If any of the Services or NCIT Materials
are,
or in NCIT's opinion are likely to be, claimed to infringe,
misappropriate or otherwise violate any third party Intellectual
Property Right, or if Licensee's or any Authorized User's use
of
the Services or NCIT Materials is enjoined or threatened to
be
enjoined, NCIT may, at its option:
(a) at NCIT's sole cost and expense, obtain the
right for Licensee to continue to use the Services and NCIT
Materials materially as contemplated by this Agreement;
(b) at NCIT's sole cost and expense, modify or
13.1 EXCLUSION OF DAMAGES. NCIT AND ITS
LICENSORS,
SERVICE LICENSORS AND SUPPLIERS SHALL NOT 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, BREACH OF
WARRANTY,
MISREPRESENTATIONS OR OTHERWISE, FOR ANY: (a)
LOSS OF
PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR
DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO
USE OR
LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (c)
LOSS,
DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR
BREACH OF
DATA OR SYSTEM SECURITY, OR
(d) CONSEQUENTIAL,
INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL,
ENHANCED OR
PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH
PERSONS
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. BOTH
PARTIES UNDERSTAND AND AGREE THAT THE
REMEDIES AND
LIMITATIONS HEREIN ALLOCATE THE RISKS OF
PRODUCT AND
SERVICE NONCONFORMITY
BETWEEN THE PARTIES AS
AUTHORIZED BY LAW. THE FEES HEREIN REFLECT, AND
ARE SET
IN RELIANCE UPON, THIS ALLOCATION OF RISK AND THE
EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH
IN THIS
AGREEMENT.
13.2 CAP ON MONETARY LIABILITY. IN ANY EVENT,
THE
COLLECTIVE AGGREGATE LIABILITY OR OBLIGATION OF
NCIT
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, BREACH OF
WARRANTY,
MISREPRESENTATIONS OR OTHERWISE, SHALL BE
LIMITED TO
THE AMOUNT PAID TO NCIT BY LICENSEE UNDER THIS
AGREEMENT IN THE PRECEDING 12 MONTHS. THE
FOREGOING
LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF
ANY
AGREED OR OTHER REMEDY OF ITS ESSENTIAL
PURPOSE.
replace the Services and NCIT Materials, in whole or in part,
to
14.
Force Majeure.
seek to make the Services and NCIT Materials (as so
modified or
replaced) non-infringing, while providing substantially
equivalent features and functionality, in which case such
14.1 No Breach or Default. In no event will NCIT be
liable or
responsible to Licensee, or be deemed to have defaulted
under
or breached this Agreement, for any failure or delay in
fulfilling
9
(NCIT SSLA 8/2020)
or performing any term of this Agreement (except for any
payment obligation) when and to the extent such failure or
delay is caused by any circumstances beyond such party's
reasonable control (a "Force Majeure Event"), including acts
of
God, flood, fire, earthquake or explosion, pandemic, war,
terrorism, invasion, riot or other civil unrest, embargoes or
blockades in effect on or after the date of this Agreement,
national or regional emergency, strikes, labor stoppages or
slowdowns or other industrial disturbances, passage of Law
or
any action taken by a governmental or public authority,
including imposing an embargo, export or import restriction,
quota or other restriction or prohibition or any complete or
partial government shutdown, or national or regional shortage
of adequate power or telecommunications or transportation.
NCIT may terminate this Agreement if a Force Majeure
Event
continues substantially uninterrupted for a period of 30 days
or
more.
14.2 Affected Party Obligations. In the event of any failure
or delay caused by a Force Majeure Event, NCIT will give
prompt
written notice to Licensee stating the period of time the
occurrence is expected to continue and use commercially
reasonable efforts to end the failure or delay and minimize
the
effects of such Force Majeure Event.
North Capital Investment Technology, Inc.
Attention: Xxxxx X. Xxxx, President & CEO
000 X. Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxx 00000
Email: xxxxx@xxxxxxxxxxxx.xxx
Notices sent in accordance with this Section 15.3 will be
deemed effectively given: (a) when received, if delivered by
hand, with signed confirmation of receipt; (b) when received,
if
sent by a nationally recognized overnight courier, signature
required; or (c) on the third day after the date mailed by
certified or registered mail, return receipt requested, postage
prepaid.
Licensee agrees that NCIT can provide notices to Licensee
through NCIT or its affiliates' website or by mailing them to
the
email or physical addresses on file with NCIT (as may be
initially
set forth on the signature page hereto). Such delivery of
notices
has the same legal effect as if NCIT provided Licensee with
a
physical copy and will be deemed to have been received
within
24 hours of the time a notice is posted or sent.
15.4 Interpretation. The parties intend this Agreement to be
construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an
15.
Miscellaneous.
instrument or causing any instrument to be drafted. Further,
the
headings used in this agreement are for convenience only
and
15.1 Relationship of the Parties. The relationship between
the parties is that of independent contractors. Nothing
contained in this Agreement shall 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 shall have authority to contract for
or
bind the other party in any manner whatsoever.
15.2 Public Announcements. Neither party shall issue or
release any announcement, statement, press release or other
publicity or marketing materials relating to this Agreement or
otherwise use the other party's trademarks, service marks,
trade names, logos, domain names or other indicia of
source,
affiliation or sponsorship, in each case, without the prior
written
consent of the other party, which consent shall not be
unreasonably withheld, conditioned or delayed; provided,
however, that NCIT may, without Licensee's consent, include
Licensee's name and logo in NCIT's promotional and
marketing
materials.
15.3 Notices. All notices, requests, consents, claims,
demands, waivers and other communications under this
Agreement ("notices") have binding legal effect only if in
writing
and addressed to NCIT as follows (or to such other address
or
such other Person that NCIT may designate from time to
time in
accordance with this Section 15.3):
North Capital Investment Technology, Inc.
Attention: Legal Department
000 X. Xxxx Xxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxx 00000
With a copy to (which shall not constitute notice):
are not intended to be used as an aid to interpretation.
15.5 Entire Agreement. This Agreement constitutes the sole
and entire agreement between the parties with respect to the
subject matter of this Agreement and supersedes and merges
all
prior and contemporaneous
proposals, understandings,
agreements, representations and warranties, both written and
oral, between the parties relating to such subject matter.
To the extent Licensee will be sharing personal or financial
information of a third party in connection with this Agreement,
Licensee shall maintain and obtain the agreement of each
such
third party, which shall permit the sharing of such third
party's
information with NCIT and its affiliates and service providers
for
NCIT and its affiliates and service providers to use, disclose
and
retain it in connection with this Agreement and the provision
of
the services hereunder and as required by Law. NCIT and its
affiliates each shall be a third party beneficiary to such
agreement.
15.6 Assignment. Licensee shall not assign or otherwise
transfer any of its rights, or delegate or otherwise transfer
any
of its obligations or performance, under this Agreement, in
each
case whether voluntarily, involuntarily, by operation of law or
otherwise, without NCIT's prior written consent. No delegation
or other transfer will relieve Licensee of any of its obligations
or
performance under this Agreement. Any purported assignment,
delegation or transfer in violation of this Section 15.6 is void.
Subject to this Section 15.6, this Agreement is binding upon
and
inures to the benefit of the parties and their respective
successors and assigns.
15.7 No Third Party Beneficiaries. Except as otherwise
set
forth in this Agreement, this Agreement is for the sole
benefit of
10
(NCIT SSLA 8/2020)
the parties and, subject to Section 12 and Section 15.6, their
respective successors and assigns, and nothing herein,
express
or implied, is intended to or shall confer upon any other
Person
any legal or equitable right, benefit or remedy of any nature
whatsoever under or by reason of this Agreement.
15.8 Amendment and Modification; Waiver. Except as set
forth herein, no amendment to or modification of this
Agreement is effective unless it is in writing and signed by
an
authorized representative of each party. No waiver by any
party
of any of the provisions hereof shall be effective unless
explicitly
set forth in writing and signed by the party so waiving.
Except as
otherwise set forth in this Agreement, no failure to exercise,
or
delay in exercising, any rights, remedy, power or privilege
arising from this Agreement shall operate or be construed as
a
waiver thereof; nor shall any single or partial exercise of any
right, remedy, power or privilege hereunder preclude any
other
or further exercise thereof or the exercise of any other right,
remedy, power or privilege.
15.9 Severability. If any provision of this Agreement is
invalid, illegal or unenforceable in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any
other
term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other
jurisdiction.
Upon such determination that any term or other provision is
invalid, illegal or unenforceable, the parties shall negotiate in
good faith to modify this Agreement so as to effect the
original
intent of the parties as closely as possible in a mutually
acceptable manner in order that the transactions
contemplated
by this Agreement be consummated as originally
contemplated
to the greatest extent possible.
15.10 Governing Law; Submission to Jurisdiction. This
Agreement is governed by and shall be construed in
accordance
with the internal laws of the State of Delaware without
giving
effect to any choice or conflict of law provision or rule that
would require or permit the application of the laws of any
other
jurisdiction. Any Action arising out of or related to this
Agreement, the licenses granted hereunder or the
transactions
federal courts of the United States of America or the courts of
the State of Utah, in each case located in Salt Lake City, and
each party irrevocably submits to the exclusive jurisdiction of
such courts in any such Action. In the event of any Action
arising
out of or related to this Agreement, the licenses granted
hereunder or the transactions contemplated hereby, the
prevailing party thereto shall be entitled to, in addition to any
other damages assessed, its reasonable attorneys' fees and all
other costs and expenses incurred in connection therewith,
including, without limitation, cost of collection and
enforcement
and in pursuit of insurance claims; provided that any
obligation
by NCIT hereunder remains subject to Section 13.2.
15.11 WAIVER OF JURY TRIAL. EACH PARTY
IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE
TO A TRIAL
BY JURY IN RESPECT OF ANY ACTION ARISING OUT OF
OR
RELATING TO THIS AGREEMENT, THE LICENSES
GRANTED
HEREUNDER OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
15.12 Equitable Relief. Each party acknowledges and
agrees
that a breach or threatened breach by such party of any of
its
obligations under this Agreement may cause the other party
irreparable harm for which monetary damages would not be
an
adequate remedy and agrees that, in the event of such
breach
or threatened breach, the other party will be entitled to seek
equitable relief, including a restraining order, an injunction,
specific performance and any other relief that may be
available
from any court, 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.
15.13 Counterparts. This Agreement may be executed in
counterparts, each of which is deemed an original, but all of
which together are deemed to be one and the same
agreement.
A signed copy of this Agreement by facsimile, email or other
means of electronic transmission or signature is deemed to
have
the same legal effect as delivery of an original signed copy
of
this Agreement.
contemplated hereby shall be instituted exclusively in the
[Signatures appear
on following page(s).]
11
(NCIT SSLA 8/2020)
In witness whereof, the Parties have executed this
Agreement as of the Effective Date.
12/2/2020
Effective Date:___________________________________
LICENSEE:
VinVesto, Inc
By:
Name:Xxxx Xxxx
CEO
Title:
Date:
NCIT:
North Capital Investment Technology Inc.
By:
Name:
Title:
Date:
Address: 0000 Xxxxxxxxx Xxx
Xxx. 000
Xxxxxxxx, XX 00000
Email:
Licensee to select from the following options for payment of
the Fees set forth in Schedule B and Schedule C:
?
X?
Credit Card
Name on Card:
Credit Card Number:
Expiration Date (Month/Year):
Security Code:
Billing Address:
Telephone Number:
ACH Draw
Bank Name: Xxxxx Fargo
Account Holder Name: Xxxxxxxx Xxxx
Routing Number: 000000000
Account Number: 5701978362
Account Type (Checking or Savings):
Checking
Please include the billing contact for Licensee below:
Main Contact:
Contact Name: Xxxxxxxx Xxxx
Contact Email: xxxx@xxxxxxxx.xxx
Contact Phone: 000-000-0000
Alternate:
Contact Name:
Contact Email:
Contact Phone:
12
(NCIT SSLA 8/2020)
Summary of Services (xxxx with "X" below; include
number of subscriptions, as applicable)
_
_
_
_
_
_
X
_
_
_
_
_
_
1. TransactAPI
? One instance of TransactAPI
to be used in a live production
environment (PROD).
? One instance of TransactAPI
to be used for pre-production
testing purposes (STAGING).
? Installation and functional
configuration of the two instances
above, according to the software
and
services specifications for
TransactAPI.
_
_
_
_
_
_
_
_
_
_
_
_
_
2. White-label Platform
? All of the services in (1.)
above.
? One instance of White-label
Platform Technology to be used
in a live production environment
(PROD).
? One instance of White-label
Platform Technology to be used
for pre-production testing
purposes
(STAGING).
? Installation and functional
configuration of the two instances
above, according to the software
and
services specifications.
_
_
_
_
_
_
_
_
_
_
_
_
_
3. DirectInvest Button
? TransactAPI Client ID and
access to the Client Admin
Environment.
? Creation of one offering in
TransactAPI.
? Embed and sharing
capabilities for integration of the
DirectInvest Button Technology.
_
_
_
_
_
_
_
_
_
_
_
_
_
4. DirectAccreditation Button
? TransactAPI Client ID and
access to the Client Admin
Environment.
? Embed and sharing
capabilities for integration of the
DirectAccreditation Button
Technology.
SCHED
ULE A
SOFTWARE
AND SERVICES
The following Services will be provided under this Agreement
(as marked below), subject to Licensee's payment of the
applicable
fees and expenses listed in Schedule B:
determined in NCIT's sole discretion.
13
(NCIT SSLA 8/2020)
SCHED
ULE B
FEES AND
EXPENSES
The following fees and expenses shall apply to the Services
to be provided by NCIT to Licensee, as applicable as set
forth on Schedule
A:
(1) TransactAPI Basic Licensing and Service Fee
A.
B.
C.
D.
Installation and set-up fee of $2,500, which includes basic
installation of a client instance in the TAPI Admin
Console, support and troubleshooting during the integration
period.*
Basic licensing and service fee of $1,250 per month, payable
monthly in advance, upon receipt of production
credentials.
If NCPS serves as escrow agent for Licensee securities
offerings, the basic licensing and service fee will be
discounted to $750 per month, payable monthly in advance,
upon receipt of production credentials.
If NCPS is the broker-of-record for Licensee securities
offerings, the basic licensing and service fee will be
discounted to $500 per month, payable
monthly in advance, upon receipt of production credentials.
(2) White-label Platform Basic Licensing and Service Fee
A.
B.
C.
D.
Installation and set-up fee of $5,000, which includes basic
installation of a dedicated portal instance and a client
instance in the TAPI Admin Console, support, and
troubleshooting during the integration period.* Also includes
basic customization and branding limited to 15 hours.**
Basic licensing and service fee of $2,500 per month, payable
monthly in advance, upon completion of installation.
If NCPS serves as escrow agent for Licensee securities
offerings, the basic licensing and service fee will be
discounted to $1,500 per month, payable monthly in advance,
upon completion of installation.
If NCPS is the broker-of-record for Licensee securities
offerings, the basic licensing and service fee will be
discounted to $1,000 per month, payable
monthly in advance, upon completion of installation.
(3) DirectInvest Button Basic License and Service Fee
A.
B.
Installation and set-up fee of $500, which includes basic
set-up of one offering and one DirectInvest Button
offering, a client instance in the TAPI Admin Console, support
and troubleshooting during integration period.*
Basic licensing and service fee of $500 per month, or part
thereof, per offering for the duration of the offering
beginning at the earlier of: (i) 120 days from
the date of installation; and (ii) the "go-live date" as
specified by the
Licensee, payable at the beginning of each
month.
(4) DirectAccreditation Button Basic License and Service Fee
A.
B.
Installation and set-up fee of $250, which includes basic
set-up of one DirectAccreditation Button offering, a client
instance in the TAPI Admin Console, support and
troubleshooting during integration period.*
Basic licensing and service fee of $250 per month, or part
thereof, beginning at the earlier of: (i) 120 days from the
date of installation; and (ii) the "go-live date"
as specified by the Licensee, payable at the beginning of
each month.
*Integration period limited to 60 days post-installation;
support and troubleshooting after the integration period
subject to "T+M"
rates set forth in Schedule C below.
**Basic customization and branding hours must be used
within 60 days of the date of installation; non-basic
customization and
branding and basic customization and branding after the
60-day post-installation period subject to "T+M" rates set
forth in Schedule
C below. Services not included in the prices above and
subject to the "T+M" rates set forth in Schedule C below
include, without
limitation, additional customization, project management and
general technical support, including, without limitation,
troubleshooting and debugging.
*** The fees payable under this Agreement, plus the other
relevant fees attributable to any public offering, shall be
capped at an
aggregate amount not to exceed as permitted by applicable
FINRA rules.
Any contractual agreements with third party vendors are not
subject to the terms of this Agreement, unless otherwise
provided for
herein. References to third party fees, expenses, expense
rates and cost estimates are for indicative purposes only.
Such fees may
include, but are not limited to, the following:
?
?
Design and branding
UX design
14
(NCIT SSLA 8/2020)
?
?
?
?
?
?
?
?
?
?
?
?
?
?
?
Independent project management
Custom development
System integration services
Testing services
System configuration, administration, support
Dedicated servers
Backups and storage
Disaster recovery
Bandwidth and load balancing
DNS management
Email marketing and support
Electronic document management systems
(Docusign/Echosign)
Identity verification (KYC/OFAC/AML) and accreditation checks
Payment processing fees
SSL Certificates
ALL SALES ARE FINAL; NO REFUNDS OR EXCHANGES.
15
(NCIT SSLA 8/2020)
SCHEDU
LE C
T+M FEES
AND EXPENSES
This Schedule C is provided for information purposes only.
Any and all custom development work, project management
and general
technical support, including, without limitation, troubleshooting
and debugging, will be charged on a time and material
("T+M")
basis.
The following hourly rates will apply, which NCIT reserves
the right to update with 30 days' prior written notice.
Solutions Architect
Senior Consultant
Project Manager
Developer
$250
$250
$150
$45
Discount for 100 hour prepaid block:
Discount for 250 hour prepaid block:
5%
10%
Materials and services provided by parties other than the
NCIT will be billed at cost.
16
(NCIT SSLA 8/2020)
