These Terms of Use (this “Agreement”) are by and between Aurean Technologies, Inc., a Texas corporation (“Company”), and you (“Customer”). This Agreement sets forth the terms pursuant to which Customer will be permitted to use and receive access to the Software (as defined herein) identified in one or more Order Forms (as defined herein). Company and Customer are each referred to herein as a “Party” and collectively as the “Parties.”
BY (1) CLICKING A BUTTON INDICATING ACCEPTANCE, (2) EXECUTING THIS AGREEMENT, (3) EXECUTING AN ORDER FORM OR OTHER DOCUMENT THAT REFERENCES THIS AGREEMENT, (4) USING (OR MAKING ANY PAYMENT FOR) THE SOFTWARE (AS DEFINED HEREIN), OR (5) OTHERWISE AFFIRMATIVELY INDICATING ACCEPTANCE OF THIS AGREEMENT, CUSTOMER: (A) AGREES TO THIS AGREEMENT ON BEHALF OF ITSELF, OR THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH CUSTOMER ACTS; AND (B) REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND CUSTOMER AND ITS AFFILIATES (AS DEFINED HEREIN), IF ANY, TO THIS AGREEMENT. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT, CUSTOMER MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE THE SOFTWARE.
1. SERVICES
1(a) Software.
This Agreement sets forth the terms and conditions on which Customer may use and access Company’s proprietary software, which may include, as specified in the applicable Order Form: (a) software-as-a-service trading tools and analytics platforms accessed via web browser, mobile application, or desktop application (the “Aurean Platform”); and/or (b) proprietary trading algorithms, models, strategies, and related code licensed for integration into Customer’s trading systems or infrastructure (the “Aurean Algorithms”) (collectively, the “Software”). The specific Software licensed or made available to Customer shall be expressly identified in an order form that is accepted by the Parties (each, an “Order Form”). Customer acknowledges that the Software was not designed or produced to Customer’s individual requirements and that Customer is solely responsible for confirming that the Software meets its requirements. Customer further acknowledges that the Software is based on standardized products and services made available by Company to a variety of customers.
1(b) Product-Specific Terms.
Certain provisions of this Agreement apply differently depending on whether the applicable Order Form identifies the Aurean Platform, Aurean Algorithms, or both. Where a provision of this Agreement states that it applies “For the Aurean Platform” or “For Aurean Algorithms,” such provision shall apply solely with respect to the identified product type. Where a provision does not contain such a qualifier, it applies to all Software. If an Order Form identifies both the Aurean Platform and Aurean Algorithms, the product-specific provisions for each shall apply concurrently to the respective product types.
1(c) Order Form(s).
Each Order Form is subject to the terms of, and is deemed incorporated into, this Agreement. By executing an Order Form, Customer agrees to be bound by all terms of this Agreement as if Customer had executed this Agreement directly; no separate execution of this Agreement shall be required. Customer acknowledges that only the features or functionalities of the Software included in the Order Form will be made available to Customer. Company may accept or reject any proposed Order Form in its sole discretion. Order Forms may only be executed by individuals authorized to bind Customer, and Customer represents and warrants that any individual executing an Order Form on Customer’s behalf has such authority. In the event of a conflict between the terms of any Order Form and the terms of this Agreement, the terms of the Order Form will control; provided, however, that an Order Form may not limit or reduce Company’s rights, remedies, or protections under this Agreement unless such limitation expressly references the specific provision of this Agreement being modified and is signed by an authorized officer of Company. If Customer executes multiple Order Forms, the terms of the later-executed Order Form shall control with respect to any conflict between Order Forms, but the terms of this Agreement shall continue to apply to all Order Forms. No amendment, modification, or supplement to any Order Form shall be binding unless in writing and signed by an authorized representative of Company. Customer’s obligation to pay all Fees set forth in an Order Form is absolute and unconditional, and Customer shall not be entitled to any refund, credit, or reduction of Fees based on Customer’s actual usage, underutilization, or failure to use the Software during the applicable Order Form Term.
1(d) Access and License Grant.
Subject to Customer’s compliance with this Agreement and payment of all applicable Fees, Company grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right and license during the applicable Order Form Term to:
(i) For the Aurean Platform: access and use the Aurean Platform identified in an Order Form, solely for Customer’s own trading, analytical, and business purposes;
(ii) For Aurean Algorithms: install, execute, and use any Aurean Algorithms identified in an Order Form, solely in connection with Customer’s proprietary trading operations.
All use of the Software shall be in accordance with all applicable Documentation (defined below), the restrictions set forth in this Agreement, and any additional terms, specifications, or limitations set forth in the applicable Order Form. The scope, capacity, and permitted use of the Software may be limited by the Order Form (including, without limitation, by number of users, assets under management, trading volume, number of API calls, or other metrics).
1(e) Accounts.
To use the Software, Customer must register in the Software for an “Account.” During the registration process, Customer will be asked to provide personal or business information. Customer represents and warrants that all such information is accurate at the time first provided to Company by Customer, and Customer will keep such information up-to-date at all times during the Term (defined below). Customer is responsible for any and all activities that occur under any Customer account or any Registered User’s (defined below) account; and Customer is solely responsible for maintaining the confidentiality of any of its Account information including passwords or other login information for the Software. If Customer believes that any of its Accounts is no longer secure, then Customer will immediately notify Company. Customer acknowledges and accepts the risk that any information Customer elects to transmit over the Internet to Company may not be secure.
Customer may be permitted to designate additional authorized users (“Registered Users”). Such Registered Users will be required to configure individual Accounts on the Software and accept Company’s then-current online terms of service. Customer will ensure that each such Registered User: (a) is an employee, contractor, or agent of Customer who has a need to access the Software consistent with the purpose of this Agreement; and (b) uses the Software in compliance with this Agreement. As per the applicable Order Form, additional charges may apply to adding Registered Users. Customer agrees that a Registered User Account cannot be shared with more than one individual. However, Registered User Accounts may be reassigned to new individuals replacing former individuals who no longer require ongoing use of the Software. Customer agrees to pay for any overuse of the Software in violation of the applicable Order Form. Customer acknowledges that Company collects, stores, and uses certain data about visitors to its websites and users of the Software (including Registered Users), as further described in Company’s privacy policy available at https://aurean.ai/privacy.
1(f) Compliance.
Customer will ensure that all activities under an Account are compliant with all applicable laws and regulations as well as any privacy notices or other obligations in the Agreement.
1(g) Documentation.
As part of the Software, Company may make available documentation, user manuals, and help files related to the Software (“Documentation”). Company hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable right and license to use the Documentation solely in connection with Customer’s exercise of its rights in the Software during the Term.
1(h) Service Availability (Aurean Platform Only).
Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Aurean Platform in a manner which minimizes errors and interruptions in the operation of the Aurean Platform. The Aurean Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance by Company, or because of other causes beyond Company’s reasonable control, but Company shall provide reasonable advance notice in writing or by e-mail of any scheduled service disruption. For the avoidance of doubt, this Section 1(h) does not apply to Aurean Algorithms installed or deployed in Customer’s own infrastructure; availability of such Aurean Algorithms is solely Customer’s responsibility.
1(i) Support.
Company will provide at no additional charge, consistent with prevailing industry practice, standard customer support for the Software. As part of the Software, Company will make available to Customer error corrections and improvements that Company makes available to its customers generally as part of their subscriptions, but specifically excluding any new products, offerings, applications or add-ons for which Company charges a separate fee, unless Customer separately purchases a subscription memorialized in an Order Form.
1(j) Changes to Software.
Company reserves the right to make changes to the Software.
For the Aurean Platform: If any such change materially diminishes the functionality and value of the Aurean Platform as a whole, in Company’s sole discretion, Company shall notify Customer at least sixty (60) days prior to implementing such change (except in cases where Company determines that expedited implementation is required); and if Customer disapproves of any such change, Customer shall have the right, exercisable no later than thirty (30) days after such change has been implemented, as Customer’s sole remedy, to terminate this Agreement upon notice to Company and recover a prorated refund of any prepaid subscription fees.
For Aurean Algorithms: Company shall notify Customer of any material updates to Aurean Algorithms at least ninety (90) days prior to sunsetting the prior version. During such ninety (90) day period, Customer may continue to use the prior version of the Aurean Algorithm to validate and test the updated version before deployment. Upon expiration of such ninety (90) day period, Customer’s license to the prior version shall terminate, and Customer’s continued use of the Aurean Algorithm shall be governed by the updated version. If Customer disapproves of any such update, Customer shall have the right, exercisable no later than the end of the ninety (90) day validation period, as Customer’s sole remedy, to terminate the applicable Order Form upon notice to Company and recover a prorated refund of any prepaid license fees attributable to the remaining Order Form Term.
1(k) Future Functionality.
Customer agrees that its subscription to the Software is not contingent on the delivery of any future functionality or features, or dependent on any statements made by Company regarding possible future functionality or features.
1(l) Prior Versions of Software.
Unless otherwise agreed by the Parties in a separate Order Form or except as provided in Section 1(j) with respect to Aurean Algorithms, after each update to the Software, Customer will not be able to use the previous version and, even in cases where Company may be able to accommodate and has expressly authorized Customer’s continued use of a previous version, any such previous version is provided solely on an “as is” basis and none of the covenants, obligations, representations or warranties of Company set forth herein shall apply.
1(m) Free Trial.
If Customer registers on Company’s or an Affiliate’s website for a free trial of the Software, Company will make the Software available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered, or (b) the start date of any purchased subscriptions ordered by Customer, or (c) termination by Company in its sole discretion. Additional trial terms and conditions may appear on a trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by this reference and are legally binding.
ANY CUSTOMER DATA ENTERED INTO THE SOFTWARE, AND ANY CUSTOMIZATIONS MADE TO THE SOFTWARE BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SOFTWARE, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. NOTWITHSTANDING THE “WARRANTIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION” SECTION BELOW, DURING THE FREE TRIAL THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND COMPANY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE COMPANY’S LIABILITY WITH RESPECT TO THE SOFTWARE PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED THE GREATER OF $1,000.00 OR THE VALUE OF THE FREE TRIAL. WITHOUT LIMITING THE FOREGOING, COMPANY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SOFTWARE DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SOFTWARE DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) ANY USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATIONS OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO COMPANY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SOFTWARE DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. CUSTOMER SHALL REVIEW THE APPLICABLE DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SOFTWARE BEFORE MAKING A PURCHASE.
2. RESTRICTIONS; UNAUTHORIZED USE
2(a) Use Restrictions.
Except as otherwise expressly provided in this Agreement or as may be expressly permitted by applicable law, Customer will not, and will not permit or authorize anyone to: (a) rent or lease the Software, or otherwise permit third parties not authorized under this Agreement to use the Software, or to provide access to the Software to third parties (e.g., as a service bureau); provided, however, that if Customer is a registered investment adviser, hedge fund, family office, or other investment manager, Customer’s use of the Software (including both Aurean Algorithms and the Aurean Platform) to execute trades, perform analysis, or manage investments on behalf of Customer’s clients, investors, or beneficiaries in the ordinary course of Customer’s investment management business shall not be deemed a violation of this restriction, so long as such clients, investors, or beneficiaries do not have direct access to the Software; (b) use the Software for any benchmarking purpose or in connection with the development of any product that is competitive with, or derivative of, a product of Company or its Affiliates; (c) circumvent or disable any security or other technological features or measures of the Software or use the Software in a manner that Company reasonably believes poses a threat to the security of Company-controlled computer systems; (d) modify, translate, reverse engineer, decompile, disassemble, or otherwise derive the source code or the underlying ideas, algorithms, structure, or organization from the Software; (e) use or access the Software in any manner that materially impacts or burdens Company or Company’s servers and other computer systems, or that interferes with Company’s ability to make the Software available to any third party; (f) use the Software in violation of any acceptable use policy applicable to the Software and made available by Company to Customer, as may be updated from time to time; (g) remove any attributions or other similar markings from the Software (e.g., copyrights notices); or (h) provide Company with personal data unless required pursuant to an Order Form, or expressly requested by Company. Customer will use the Software in compliance with all applicable laws and regulations, and will comply with all applicable data protection laws and regulations in relation to any personal data (or equivalent term as defined under applicable law) shared by Customer with Company pursuant to this Agreement.
2(b) Notification of Unauthorized Use.
Customer will prevent any unauthorized use of the Software and will immediately notify Company in writing of any unauthorized use of which Customer becomes aware, including by Registered Users. Customer will immediately terminate any unauthorized use by persons having access to the Software through Customer.
3. OWNERSHIP; INTELLECTUAL PROPERTY RIGHTS
3(a) Company Ownership.
Customer acknowledges that as between the Parties, Company owns all right, title, and interest, including all intellectual property rights, in and to the Software (collectively, “Company IP”) and Company reserves all rights not expressly granted to Customer under this Agreement. To the extent that Customer has or obtains any ownership interest in any Company IP, Customer hereby assigns to Company all right, title, and interest, including all intellectual property rights, in and to Company IP. Customer will not undertake any act or omission that would impair Company’s (or its licensors’) rights in any Company IP or any other materials, information, processes, or subject matter owned by Company or its licensors.
3(b) Customer Intellectual Property.
Subject to the conditions of this section, Customer authorizes Company to use its name, logo, and/or trademark(s) (“Customer Marks”) without notice or consent in connection with promotional materials that Company may disseminate to the public. Such materials may include, but are not limited to, brochures, internet websites, press releases, and other advertising relating to the fact that Company provides services to Customer. Nothing herein obligates Company to use Customer Marks in any promotional materials. Notwithstanding the foregoing, Company may not attempt to (a) claim any rights in Customer Marks, (b) dilute or degrade the distinctiveness of Customer Marks, (c) use Customer Marks to disparage or misrepresent Customer. Notwithstanding the foregoing, Company shall not, nor permit their Affiliates to, issue a press release or other public disclosure, that discloses any Customer Data (as defined below) owned by Customer or any Confidential Information (defined below).
3(c) Customer Data.
As between Company and Customer, Customer retains all right, title, and interest, including all intellectual property rights, in and to: (a) any data or information that Customer uploads or inputs into the Software or otherwise makes available to Company; and (b) data that is generated and made available to Customer by the Software through use of the data described in part (a) above (collectively, “Customer Data”). Customer hereby grants Company a non-exclusive, worldwide, royalty-free, fully paid, sublicensable, fully transferable license to use, process, transmit, store, and disclose Customer Data during the Term, and for a reasonable period thereafter as necessary for Company to perform its post-termination obligations under this Agreement, for the purpose of exercising Company’s rights and performing its obligations under this Agreement.
Notwithstanding the foregoing, as between Company and Customer, Company shall own all right, title, and interest in and to any data that is derived from, based on, or generated through the processing of Customer Data and that is anonymized, de-identified, or aggregated such that it does not identify Customer or any individual natural person (“Aggregated Data”). Customer hereby assigns to Company all right, title, and interest in and to any Aggregated Data, and Customer agrees that Company may use, disclose, publish, commercialize, and otherwise exploit Aggregated Data for any purpose without restriction, including to develop, improve, benchmark, and market Company’s and its Affiliates’ products and services, and Customer shall have no rights in or claims to such Aggregated Data. Customer represents and warrants that Customer has all rights necessary to grant Company the licenses set forth in this section and to enable Company to exercise its rights without violation or infringement of the rights of any third party. Notwithstanding the foregoing, between the Parties, Company owns any improvements to the Software made as a result of Company’s use, processing, or generation of Customer Data.
3(d) Algorithm Outputs.
For the avoidance of doubt, any trading signals, recommendations, alerts, scores, rankings, model outputs, algorithmic outputs, or other results generated by or through the Software (collectively, “Algorithm Outputs”) are not Customer Data. Ownership and use rights in Algorithm Outputs are determined as follows:
For the Aurean Platform: Algorithm Outputs generated through the Aurean Platform using Customer Data shall be owned by Customer, subject to the following limitations: (i) Customer shall not use such Algorithm Outputs to reverse-engineer, reconstruct, or derive the underlying logic, methodology, model weights, or trade secrets of the Aurean Platform or any algorithm or model used therein; (ii) Company retains all right, title, and interest in and to the Aurean Platform itself, including its underlying code, models, methodologies, and architecture; (iii) unless otherwise specified in the applicable Order Form, Customer shall not resell, redistribute, or sublicense Algorithm Outputs as a standalone data product or service; and (iv) Customer shall not use Algorithm Outputs to develop, train, or improve any product or service that competes with Company’s offerings. For the avoidance of doubt, Customer’s ownership of Algorithm Outputs under this paragraph does not grant Customer any rights in or to the Aurean Platform, any underlying algorithm or model, or any Company IP.
For Aurean Algorithms: Algorithm Outputs generated by an Aurean Algorithm using Customer’s data in Customer’s own infrastructure or environment shall be owned by Customer, subject to the following limitations: (i) Customer shall not use such Algorithm Outputs to reverse-engineer, reconstruct, or derive the underlying logic, methodology, model weights, or trade secrets of the Aurean Algorithm; (ii) Company retains all right, title, and interest in and to the Aurean Algorithm itself, including its underlying code, models, methodologies, and architecture; and (iii) unless otherwise specified in the applicable Order Form, Customer shall not resell, redistribute, or sublicense Algorithm Outputs as a standalone data product or service. For the avoidance of doubt, Customer’s ownership of Algorithm Outputs under this paragraph does not grant Customer any rights in or to the Aurean Algorithm or any Company IP.
3(e) Customer Feedback.
If Customer provides any feedback to Company concerning the functionality, characteristics, or performance of the Software (including identifying potential errors and improvements) (the “Feedback”), Customer hereby assigns to Company all right, title, and interest in and to the Feedback, and Company is free to use the Feedback without payment or restriction.
4. FEES AND PAYMENT
4(a) Payment Terms.
Customer will pay Company all fees, charges, and other amounts owing under this Agreement as specified in the applicable Order Form (“Fees”). Fees may include, without limitation and as specified in the applicable Order Form: (a) subscription fees for access to the Aurean Platform; (b) license fees for Aurean Algorithms (which may be structured as one-time fees, recurring fees, or a combination thereof); (c) implementation, onboarding, integration, or setup fees; (d) usage-based fees calculated by reference to trading volume, number of trades, API calls, or other usage metrics; (e) fees calculated by reference to assets under management or assets under advisement; (f) performance-based fees, revenue share, or profit participation, calculated in accordance with the methodology specified in the Order Form; and (g) fees for professional services, support, training, or customization. For the avoidance of doubt, any performance-based fees, revenue share, or profit participation represent consideration for the license of Company’s proprietary software technology and do not constitute compensation for investment advice, portfolio management, or any advisory services.
Customer will provide Company with valid and updated credit card information, valid Automated Clearing House (“ACH”) auto debit account information, a valid purchase order, or other payment authorization document reasonably acceptable to Company. If the Order Form specifies that Customer will submit a purchase order or other payment authorization document, Company will invoice Customer for the Fees as per the terms of the Order Form. For any Fees calculated by reference to Customer’s trading volume, assets under management, or similar metrics, Customer shall provide Company with accurate reports of such metrics on a monthly basis (or such other frequency as specified in the Order Form), and Company shall have the right to audit Customer’s records to verify such reports upon reasonable notice. Unless otherwise specified in such Order Form, Customer will pay all Fees due within thirty (30) days after the date of the applicable invoice. Any Fees not paid when due will be subject to finance charges equal to 1.5% of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Company to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Customer for any reason. Company reserves the right to suspend access to the Software for non-payment of Fees.
4(b) Renewal Payments.
Customer acknowledges that its subscription may automatically renew, and to the extent indicated in an Order Form, Company may periodically charge Customer Fees for such subscription renewals (each a “Renewal”) until Customer terminates its Account(s) as per this Agreement. Fees for Renewals will be charged automatically as specified in the Order Form for the applicable subscription period. Customer must cancel its subscription before the next Renewal in order to avoid incurring Renewal Fees. If Customer provides credit card information to Company, Customer authorizes Company to charge such credit card for the Fees listed on the Order Form for any Renewal. If Customer provides ACH authorization information to Company, Customer authorizes Company to debit its account for the Fees listed on the Order Form for any Renewal. Company will continue to bill Fees for Renewals to the payment method Customer provided to Company during registration until Customer updates its payment information. Customer may, subject to the terms of this Agreement, cancel its subscription(s) for the Software by contacting vijay@aurean.ai. Subscriptions can also be cancelled through Customer’s Account in the Software.
4(c) Taxes.
Other than net income taxes imposed on Company, Customer will bear all taxes, duties, and other governmental charges (collectively, “Taxes”) resulting from this Agreement. Company will invoice Customer for any Taxes for which Company believes it has a legal obligation to collect.
4(d) Payment Portals.
If Customer mandates Company to use a vendor payment portal or compliance portal that charges Company a fee to any uploaded invoice as a cost of doing business, Company will invoice Customer for such fee charged to Company.
5. TERM AND TERMINATION
5(a) Term.
This Agreement will remain in effect so long as an Order Form is in effect unless otherwise terminated as per the terms of this Agreement (the “Term”).
5(b) Order Form Term.
Unless earlier terminated in accordance with this Agreement, each Order Form will continue for the term specified in such Order Form including any Renewals (“Order Form Term”). Notice of non-renewal of an Order Form must be provided by a Party at least 30 days prior to the end of the applicable Order Form Term. Renewal of any Order Form may be conditioned on and subject to Customer’s agreement to an updated version of the terms of this Agreement. Termination of this Agreement for cause will terminate all Order Form Terms then in effect. Customer acknowledges that its access to the Software may be automatically disabled upon expiration or termination of the applicable Order Form Term.
5(c) Termination for Material Breach.
Either Party may terminate this Agreement or one or more Order Forms if the other Party does not cure its material breach of this Agreement or the applicable Order Form(s) within 30 days of receiving written notice of the material breach from the non-breaching Party. Termination in accordance with this section will take effect when the breaching Party receives written notice of termination from the non-breaching Party, which notice must not be delivered until the breaching Party has failed to cure its material breach during the 30-day cure period. Notwithstanding the foregoing, Company may immediately terminate this Agreement upon notice to Customer if Company reasonably believes that Customer has attempted to assign or sublicense any right granted by this Agreement except as expressly permitted herein, or has otherwise taken any actions that threaten or challenge Company’s intellectual property rights, including rights in and to the Software. Without limiting any other provision of this section, if Customer fails to timely pay any Fees, Company may, without limitation to any of its other rights or remedies, suspend Customer’s access to the Software until it receives all amounts due.
5(d) Termination for Bankruptcy or Insolvency.
Either Party may terminate this Agreement if the other Party ceases to do business in the ordinary course, is declared bankrupt, is the subject of any liquidation or insolvency proceeding which is not dismissed within one hundred twenty (120) days, or makes any assignment for the benefit of creditors.
5(e) Post-Termination Obligations.
If this Agreement is terminated for any reason, Customer will pay to Company any Fees or other amounts that have accrued prior to the effective date of the termination. Any and all liabilities accrued prior to the effective date of the termination will survive. Upon request, Customer will certify that all use of Software by Customer has been discontinued and that all Confidential Information of Company in Customer’s possession or control has been returned or destroyed.
5(f) Suspension without Termination.
Company reserves the right to restrict the functionality or suspend use of the Software (or any part thereof) and remove, disable or quarantine any Customer Data or other content if Company reasonably believes that (a) Customer has violated the Agreement, or (b) Customer’s use of the Software will harm any Company assets or disrupt the use of other users of the Software. In such case, unless legally prohibited from doing so, Company will use commercially reasonable efforts to contact Customer via email. Company may refer any suspected fraudulent, abusive, or illegal activity by Customer or any Registered Users to law enforcement at Company’s sole discretion.
5(g) Export of Data.
As provided in the Documentation, Customer may export or download Customer’s Data for thirty (30) days after the effective date of termination, expiration, or migration of an Account, unless Company has suspended or terminated an Account due to Customer’s breach of the Agreement. In such case, Customer’s Data will only be available for download until Company notifies Customer of such suspension or termination. Thereafter, Company has no obligation to maintain or provide any Customer Data.
6. CONFIDENTIALITY
6(a) Definition.
As used herein, “Confidential Information” means all confidential information disclosed by or otherwise obtained from a Party (“Disclosing Party”) to or by the other Party (“Receiving Party”), whether orally, visually, or in writing, that is designated as confidential. Without limiting the foregoing, the Confidential Information of Company includes all Documentation, and the technical characteristics of the Software, and the Confidential Information of Customer includes all non-public information shared with Company. However, “Confidential Information” does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party.
6(b) Protection of Confidential Information.
Except as otherwise permitted in writing by the Disclosing Party, the Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (b) limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7. WARRANTIES AND DISCLAIMERS
7(a) Mutual Warranties.
Each Party represents and warrants to the other that: this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such Party in accordance with its terms; and no authorization or approval from any third party is required in connection with such Party’s execution, delivery, or performance of this Agreement.
7(b) General Disclaimer.
EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION OR AN ORDER FORM, COMPANY MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. COMPANY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SOFTWARE. COMPANY DOES NOT WARRANT THAT THE SOFTWARE IS ERROR-FREE OR THAT OPERATION OF THE SOFTWARE WILL BE SECURE OR UNINTERRUPTED. COMPANY DOES NOT WARRANT THAT ANY INFORMATION PROVIDED BY OR IN CONNECTION WITH THE DOCUMENTATION IS ACCURATE OR COMPLETE OR THAT ANY SUCH INFORMATION WILL ALWAYS BE AVAILABLE. COMPANY DOES NOT WARRANT THAT ANY OUTPUT, SIGNAL, DATA, ANALYTICS, OR ALGORITHMIC RESULT GENERATED BY THE SOFTWARE IS ACCURATE, COMPLETE, TIMELY, OR SUITABLE FOR ANY PARTICULAR TRADING STRATEGY, INVESTMENT OBJECTIVE, OR FINANCIAL DECISION. COMPANY EXPRESSLY DISCLAIMS ANY WARRANTY THAT THE SOFTWARE WILL GENERATE PROFITABLE TRADES OR POSITIVE INVESTMENT RETURNS. CUSTOMER ACKNOWLEDGES THAT TRADING AND INVESTING INVOLVE SUBSTANTIAL RISK OF LOSS AND THAT PAST PERFORMANCE, INCLUDING ANY BACKTESTING, SIMULATIONS, OR HISTORICAL DATA, IS NOT INDICATIVE OF FUTURE RESULTS.
7(c) No Investment Advice; Trading Disclosure.
(i) Company is not a registered investment adviser, broker-dealer, futures commission merchant, commodity trading adviser, or fiduciary under the Securities Act of 1933, the Securities Exchange Act of 1934, the Investment Advisers Act of 1940, the Commodity Exchange Act, or any rules or regulations promulgated thereunder by the U.S. Securities and Exchange Commission (“SEC”), the Financial Industry Regulatory Authority (“FINRA”), the Commodity Futures Trading Commission (“CFTC”), or any other federal, state, or foreign regulatory authority. Nothing in this Agreement or in the Software shall be construed to register or qualify Company as any of the foregoing. Company is a software technology company that licenses proprietary software tools and algorithms; any fees paid by Customer represent consideration for the use of Company’s software technology and not for investment advisory, portfolio management, or trading advisory services.
(ii) The Software does not provide investment advice, trading recommendations, financial planning services, or personalized financial guidance of any kind. Any outputs, signals, alerts, analytics, data, scores, rankings, algorithms, models, backtesting results, simulations, or other results generated by or through the Software (collectively, “Software Outputs”) are provided for informational and analytical purposes only. Software Outputs do not constitute, and shall not be construed as, a recommendation, solicitation, or offer to buy, sell, hold, or otherwise transact in any security, derivative, commodity, currency, financial instrument, or investment product of any kind. For the avoidance of doubt, Algorithm Outputs (as defined herein) are Software Outputs.
(iii) Customer acknowledges and agrees that all trading and investment decisions made by Customer or any Registered User are made solely at Customer’s own discretion and risk. Customer is solely responsible for evaluating, verifying, and independently confirming the appropriateness of any trading or investment decision before acting on any Software Output. Company shall have no responsibility or liability for any trading or investment decision made by Customer or any Registered User, regardless of whether such decision was informed or influenced, in whole or in part, by any Software Output.
(iv) Neither this Agreement, Customer’s use of the Software, nor any communication between the Parties creates or shall be deemed to create a fiduciary, advisory, agency, partnership, or other special relationship between Company and Customer. Company owes Customer no duty of care with respect to any trading or investment decision, and no such duty shall be implied from any course of dealing, custom, or usage of trade.
(v) Customer is solely responsible for ensuring that its use of the Software and any trading or investment activities conducted in connection therewith comply with all applicable federal, state, and foreign laws, rules, and regulations, including without limitation securities laws, commodities laws, financial industry regulations, anti-money laundering laws, and any applicable rules or requirements of self-regulatory organizations. Company makes no representation that the Software is appropriate for use in any particular jurisdiction or that Customer’s use of the Software will satisfy any applicable regulatory obligation.
(vi) COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE, EXPRESS OR IMPLIED, REGARDING THE ACCURACY, TIMELINESS, COMPLETENESS, RELIABILITY, OR SUITABILITY OF ANY SOFTWARE OUTPUT, MARKET DATA, OR OTHER INFORMATION PROVIDED THROUGH THE SOFTWARE FOR ANY PARTICULAR TRADING STRATEGY, INVESTMENT OBJECTIVE, RISK TOLERANCE, OR FINANCIAL CIRCUMSTANCE. SOFTWARE OUTPUTS MAY BE BASED ON HISTORICAL DATA, STATISTICAL MODELS, OR THIRD-PARTY DATA SOURCES THAT ARE SUBJECT TO ERROR, DELAY, OR INTERRUPTION, AND COMPANY SHALL HAVE NO LIABILITY ARISING FROM CUSTOMER’S RELIANCE ON SUCH OUTPUTS. COMPANY IS NOT RESPONSIBLE FOR ANY ERRORS, OMISSIONS, DELAYS, OR INTERRUPTIONS IN ANY DATA, INFORMATION, OR CONTENT PROVIDED BY THIRD-PARTY DATA PROVIDERS, EXCHANGES, OR OTHER SOURCES, AND CUSTOMER’S SOLE REMEDY FOR ANY SUCH ERRORS SHALL BE AGAINST THE APPLICABLE THIRD-PARTY PROVIDER.
(vii) CUSTOMER ACKNOWLEDGES THAT TRADING IN SECURITIES, DERIVATIVES, COMMODITIES, CURRENCIES, AND OTHER FINANCIAL INSTRUMENTS INVOLVES A SUBSTANTIAL RISK OF LOSS AND IS NOT SUITABLE FOR ALL PERSONS. CUSTOMER ACKNOWLEDGES THAT IT HAS RECEIVED NO ASSURANCE FROM COMPANY THAT CUSTOMER WILL PROFIT FROM USE OF THE SOFTWARE OR AVOID LOSSES. PAST PERFORMANCE OF ANY STRATEGY, SIGNAL, OR ALGORITHM, WHETHER ACTUAL OR REFLECTED IN BACKTESTING, SIMULATIONS, OR HYPOTHETICAL RESULTS, IS NOT INDICATIVE OF FUTURE RESULTS. HYPOTHETICAL OR SIMULATED PERFORMANCE RESULTS HAVE INHERENT LIMITATIONS AND DO NOT REFLECT ACTUAL TRADING OR ACTUAL RESULTS, AND COMPANY MAKES NO REPRESENTATION THAT ANY SUCH RESULTS WILL BE ACHIEVED.
(viii) For Aurean Algorithms: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES, RELEASES, AND DISCHARGES ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND LIABILITY OF ANY KIND AGAINST COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUCCESSORS ARISING OUT OF OR RELATED TO: (A) CUSTOMER’S OR ANY REGISTERED USER’S RELIANCE ON ANY SOFTWARE OUTPUT; (B) ANY TRADING OR INVESTMENT DECISION MADE OR NOT MADE BY CUSTOMER OR ANY REGISTERED USER; OR (C) ANY TRADING LOSSES, INVESTMENT LOSSES, LOST PROFITS, OR OTHER FINANCIAL HARM SUSTAINED BY CUSTOMER IN CONNECTION WITH OR ARISING FROM CUSTOMER’S USE OF THE SOFTWARE, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES. THIS WAIVER IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO THIS AGREEMENT AND TO PROVIDE THE SOFTWARE AT THE FEES SET FORTH IN THE APPLICABLE ORDER FORM. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTION 9 (LIMITATIONS OF LIABILITY) SHALL APPLY TO ANY CLAIMS NOT WAIVED UNDER THIS SECTION.
(ix) For the Aurean Platform: TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES, RELEASES, AND DISCHARGES ANY AND ALL CLAIMS, DEMANDS, CAUSES OF ACTION, AND LIABILITY OF ANY KIND AGAINST COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, LICENSORS, AND SUCCESSORS ARISING OUT OF OR RELATED TO: (A) CUSTOMER’S OR ANY REGISTERED USER’S RELIANCE ON ANY SOFTWARE OUTPUT; (B) ANY TRADING OR INVESTMENT DECISION MADE OR NOT MADE BY CUSTOMER OR ANY REGISTERED USER; (C) ANY TRADING LOSSES, INVESTMENT LOSSES, LOST PROFITS, OR OTHER FINANCIAL HARM SUSTAINED BY CUSTOMER IN CONNECTION WITH OR ARISING FROM CUSTOMER’S USE OF THE AUREAN PLATFORM, REGARDLESS OF WHETHER COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES; OR (D) ANY CLAIM THAT ANY SOFTWARE OUTPUT WAS INACCURATE, INCOMPLETE, DELAYED, OR OTHERWISE DEFECTIVE. CUSTOMER ACKNOWLEDGES AND AGREES THAT ALL TRADING AND INVESTMENT DECISIONS ARE MADE AT CUSTOMER’S OWN RISK AND THAT CUSTOMER ASSUMES FULL RESPONSIBILITY FOR ANY AND ALL RESULTING LOSSES. THIS WAIVER AND ASSUMPTION OF RISK IS A MATERIAL INDUCEMENT FOR COMPANY TO ENTER INTO THIS AGREEMENT AND TO PROVIDE THE SOFTWARE AT THE FEES SET FORTH IN THE APPLICABLE ORDER FORM. THE LIMITATIONS AND EXCLUSIONS SET FORTH IN SECTION 9 (LIMITATIONS OF LIABILITY) SHALL APPLY TO ANY CLAIMS NOT WAIVED UNDER THIS SECTION.
8. INDEMNIFICATION
8(a) Defense by Company.
Company will, at its expense, either defend Customer from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Customer alleging that the Software infringes or misappropriates any patent, copyright, or trademark if: Customer gives Company prompt written notice of the Claim; Customer grants Company full and complete control over the defense and settlement of the Claim; Customer provides assistance in connection with the defense and settlement of the Claim as Company may reasonably request (at Company’s expense); Customer complies with any settlement or court order made in connection with the Claim; and Customer takes all commercially reasonable steps to mitigate losses which would otherwise be indemnified under this Agreement. Customer will not defend or settle any Claim subject to indemnification under this section without Company’s prior written consent. Customer will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Company will have sole control over the defense and settlement of the Claim.
8(b) Indemnification by Company.
Company will indemnify Customer from and pay all damages, costs, and attorneys’ fees finally awarded against Customer in any Claim under this section; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Customer in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Company’s consent after Company has accepted defense of the Claim); and all amounts that Company agrees to pay to any third party to settle any Claim.
8(c) Exclusions from Obligations.
Company will have no obligation under this section for any infringement or misappropriation to the extent that it arises out of or is based upon any of the following (the “Excluded Claims”): use of the Software in combination with other products or services not provided by Company if such infringement or misappropriation would not have arisen but for such combination; any customizations to the Software made to comply with designs, requirements, or specifications required by or provided by Customer, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; use of the Software by Customer for purposes prohibited by, not intended by, or outside the scope of, the license granted to Customer; or Customer’s failure to use the Software in accordance with the Documentation provided by Company, if the infringement or misappropriation would not have occurred but for such failure.
8(d) Remedy.
If Company becomes aware of, or anticipates, a Claim subject to indemnification under this section, then Company may, at its option (a) modify the Software so that it becomes non-infringing; (b) obtain a license to the third-party intellectual property rights giving rise to the Claim; or (c) terminate the affected Order Form(s) on written notice to Customer and refund to Customer any pre-paid but unused fees.
8(e) Limited Remedy.
This section states Company’s sole and exclusive liability, and Customer’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third-party intellectual property right by the Software.
8(f) Defense by Customer.
Customer will defend Company from any actual or threatened third-party Claim arising out of or based upon Customer’s use of the Software, provision of Customer Data, or breach of any of the provisions of this Agreement, or any Claim that is an Excluded Claim, or any Claim arising out of or relating to (i) Customer’s trading or investment decisions, (ii) Customer’s reliance on any output, signal, data, or result generated by the Software, (iii) any regulatory investigation, enforcement action, or proceeding relating to Customer’s use of the Software, (iv) any allegation that Customer’s use of the Software violated applicable securities laws, trading regulations, or financial industry rules, (v) Customer’s use, distribution, commercialization, disclosure, or other exploitation of any Algorithm Outputs, including any claim that such Algorithm Outputs infringe or misappropriate any third-party intellectual property rights or violate any applicable law, or (vi) any claim by Customer’s clients, investors, beneficiaries, or other third parties relating to trading or investment performance, losses, or decisions made using the Software or any Algorithm Outputs, if: Company gives Customer prompt written notice of the Claim; Company grants Customer full and complete control over the defense and settlement of the Claim; Company provides assistance in connection with the defense and settlement of the Claim as Customer may reasonably request (at Company’s expense); and Company complies with any settlement or court order made in connection with the Claim. Company will not defend or settle any Claim subject to indemnification under this section without Customer’s prior written consent. Company will have the right to participate in the defense of the Claim at its own expense and with counsel of its own choosing, but Customer will have sole control over the defense and settlement of the Claim.
8(g) Indemnification by Customer.
Customer will indemnify Company from and pay all damages, costs, and attorneys’ fees finally awarded against Company in any Claim; all out-of-pocket costs (including reasonable attorneys’ fees) reasonably incurred by Company in connection with the defense of a Claim (other than attorneys’ fees and costs incurred without Customer’s consent after Customer has accepted defense of the Claim); and, all amounts that Customer agrees to pay to any third party to settle any Claim.
9. LIMITATIONS OF LIABILITY
9(a) Disclaimer of Indirect Damages.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT, COMPANY WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO CUSTOMER FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO ANY LOSS OF PROFITS, BUSINESS, CONTRACTS, ANTICIPATED SAVINGS, GOODWILL, OR REVENUE, OR ANY WASTED EXPENDITURE, TRADING LOSSES, INVESTMENT LOSSES, LOSSES FROM FAILED OR DELAYED TRADES, LOSSES ARISING FROM MARKET MOVEMENTS OR VOLATILITY, LOSSES ARISING FROM RELIANCE ON ANY SOFTWARE OUTPUT, OR ANY OTHER FINANCIAL LOSSES OF ANY KIND, IN EACH CASE ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, EVEN IF COMPANY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. WITHOUT LIMITING THE FOREGOING, UNDER NO CIRCUMSTANCES WILL COMPANY BE LIABLE FOR ANY LOSS OR CORRUPTION OF DATA STORED IN, OR IN CONNECTION WITH, THE SOFTWARE. CUSTOMER ACKNOWLEDGES AND AGREES THAT ANY TRADING OR INVESTMENT LOSSES, REGARDLESS OF HOW CHARACTERIZED, SHALL BE DEEMED CONSEQUENTIAL DAMAGES FOR PURPOSES OF THIS SECTION AND ARE EXPRESSLY EXCLUDED FROM COMPANY’S LIABILITY.
9(b) Limits of Liability.
UNDER NO CIRCUMSTANCES WILL COMPANY’S AGGREGATE LIABILITY OF ALL KINDS FOR ANY AND ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO COMPANY UNDER THE ORDER FORM WITH RESPECT TO WHICH THE LIABILITY AROSE DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). CUSTOMER UNDERSTANDS THAT THIS AGREEMENT IS ENTERED INTO BETWEEN CUSTOMER AND COMPANY AND THAT AFFILIATES OF COMPANY ARE NOT PARTIES TO THIS AGREEMENT. ACCORDINGLY, CUSTOMER AGREES THAT UNDER NO CIRCUMSTANCES WILL ANY AFFILIATE OF COMPANY BE LIABLE TO CUSTOMER FOR ANY DAMAGES RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT. ANY CLAIMS OR DAMAGES THAT CUSTOMER MAY HAVE AGAINST COMPANY SHALL ONLY BE ENFORCEABLE AGAINST COMPANY AND NOT ANY OTHER ENTITY, NOR ANY OFFICERS, DIRECTORS, REPRESENTATIVES OR AGENTS OF COMPANY OR ANY OTHER ENTITY.
9(c) Independent Allocations of Risk.
EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO CUSTOMER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
9(d) Jurisdiction-Specific Exclusions.
Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages or for a Party’s own fraud, willful injury to the person or property of another, or violation of law which means that some of the above limitations may not apply to Company. IN THESE JURISDICTIONS, COMPANY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT NOT PROHIBITED BY LAW.
10. GENERAL
10(a) Relationship.
Company will be and act as an independent contractor (and not as the agent or representative of Customer) in the performance of this Agreement.
10(b) Assignability.
Customer may not assign its rights, duties, or obligations under this Agreement without Company’s prior written consent, which consent will not be unreasonably withheld or delayed, except that Customer may assign this Agreement to an Affiliate or a successor (including a successor by way of Change of Control or operation of law), or in connection with the sale of all of the assets or business to which this Agreement relates so long as the successor is not a direct competitor of Company and agrees in writing to be bound by the terms of this Agreement. For the avoidance of doubt, “direct competitor of Company” means an entity that develops, markets, or licenses software products or services that are substantially similar to, or directly competitive with, the Software. “Affiliate” means any corporation, partnership, joint venture, or other entity: (i) as to which a Party owns or controls, directly or indirectly, stock or other interest representing more than 50% of the aggregate stock or other interest entitled to vote on general decisions reserved to the stockholders, partners, or other owners of such entity; (ii) if a partnership, as to which a Party or another Affiliate is a general partner; or (iii) that a Party otherwise is in common control with, controlled by, or controls in matters of management and operations. A Change of Control shall be deemed to cause an assignment of this Agreement. “Change of Control” means a merger, acquisition, divestiture, sale of assets or equity, or similar transaction.
10(c) Export.
Customer will comply with all applicable export and import laws, rules, and regulations in connection with Customer’s activities under this Agreement. Customer acknowledges that it is Customer’s responsibility to obtain any required licenses to export and re-export the Software. The Software, including technical data, are subject to U.S. export control laws administered by the U.S. Commerce Bureau of Industry and Security, U.S. Treasury Office of Foreign Assets Control or other governmental entity imposing export controls and trade sanctions, including the U.S. Export Administration Act and its associated regulations, and may be subject to export or import regulations in other countries. Customer represents and warrants that (a) it is not on any U.S. government denied-party list, and that (b) the Software is not being used in, shipped, transferred, or re-exported, directly or indirectly, to proscribed or embargoed countries or their nationals and persons on the Table of Denial Orders, the Entity List, the List of Specifically Designated Nationals or similar list, unless specifically authorized by the U.S. Government and (c) the Software is not being used in violation of any U.S. export law or regulation.
10(d) Anti-Corruption.
Each Party shall comply with applicable laws concerning anti-bribery and anti-corruption, including the U.S. Foreign Corrupt Practices Act of 1977. Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If a Party learns of any violation of the above restriction, that Party shall immediately notify the other Party.
10(e) Subcontractors.
Company may utilize subcontractors or other third parties to perform its duties under this Agreement so long as Company remains responsible for all of its obligations under this Agreement.
10(f) Notices.
Customer consents to receiving electronic communications from Company. These communications may include notices about an Account and information concerning or related to the Software. Customer agrees that any notices, agreements, disclosures, or other communications sent electronically by Company to the email address associated with Customer’s Account will satisfy any legal communication requirements, including that such communications be in writing. Email notice to Customer will be effective upon receipt. Except as otherwise provided herein, Customer will provide any notices required or permitted to be given in accordance with this Agreement in writing and sent by certified or registered mail, or overnight courier, return receipt requested, with the appropriate postage affixed, to Aurean Technologies, Inc. Such notices to Company are deemed effective upon receipt by Company.
10(g) Force Majeure.
Neither Party will be liable for, or be considered to be in breach of or default under this Agreement (except for failure to make payments when due) on account of any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that Party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
10(h) Governing Law.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Texas, and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each Party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Texas in connection with any action arising out of or in connection with this Agreement.
10(i) Waiver of Jury Trial.
The Parties fully understand and acknowledge that they are WAIVING THEIR RIGHT TO A JURY TRIAL for all controversies, claims or disputes (each a “Dispute”) between them arising under or relating to the Agreement.
10(j) Alternative Dispute Resolution.
(i) Negotiation. The Party with a Dispute under the Agreement shall bring the Dispute to the representative of the other Party for resolution. If the Dispute cannot be resolved by the representatives of the Parties within ten (10) business days, the Dispute shall be escalated to a senior executive of each Party for resolution. If after another ten (10) business days, the Dispute has not been resolved, then the Parties shall resolve the Dispute through mediation.
(ii) Mediation. The Party with a Dispute under this Agreement will submit the Dispute to a mutually agreed-upon mediator in Texas. Any costs or fees associated with mediation, other than attorney’s fees, will be shared equally by the Parties. If the Parties have not arrived at a mutually satisfactory resolution 30 days after the beginning of mediation, the Parties shall resolve the Dispute by binding arbitration.
(iii) Arbitration. Should negotiation and mediation fail, the Parties agree to binding arbitration. The Parties agree to submit the Dispute to binding arbitration under the Federal Arbitration Act (the “FAA”). The FAA will govern and apply to the arbitration provisions of the Agreement with full force and effect, and any state court of competent jurisdiction may stay proceedings pending arbitration or compel arbitration in the same manner as a federal court under the FAA. The Parties also agree to arbitrate all disputes relating to the interpretation, application, or enforceability of the arbitration provisions of the Agreement. The arbitration will be conducted under the procedures of the American Arbitration Association’s (“AAA”) Commercial Arbitration Rules. The arbitrator shall apply Texas substantive law to the merits of any Dispute. The Parties agree that the arbitrator will have the power to award any remedies available under applicable law, and that the arbitrator may award attorney’s fees and costs to the prevailing party, where permitted by applicable law. The Parties agree that the decree or award the arbitrator renders may be entered as a final and binding judgment in any court of competent jurisdiction. The Parties agree that any arbitration under the Agreement will be conducted in Texas.
(iv) Confidentiality. Except as prohibited by law, the Parties agree that any dispute resolution proceeding initiated under the Agreement will be kept in strictest confidence, meaning the Parties agree not to disclose or cause to be disclosed to any third party the Dispute(s) being resolved, or any of the underlying facts and circumstances relating to the Dispute(s).
10(k) Survival.
Notwithstanding anything to the contrary herein, the following Sections shall survive termination or expiration of this Agreement: Section 1(m) (Free Trial), Section 2 (Restrictions; Unauthorized Use), Section 3 (Ownership; Intellectual Property Rights), Section 4 (Fees and Payment), Section 5(e) (Post-Termination Obligations), Section 5(g) (Export of Data), Section 6 (Confidentiality), Section 7 (Warranties and Disclaimers), Section 8 (Indemnification), Section 9 (Limitations of Liability), and Section 10 (General).
10(l) Waiver.
The waiver by either Party of any breach of any provision of this Agreement does not waive any other breach. The failure of any Party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such Party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
10(m) Severability.
If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Software under this Agreement is found to be illegal, unenforceable, or invalid, Customer’s right to use the Software will immediately terminate.
10(n) Interpretation.
For purposes of this Agreement, words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and whenever the context may require, any pronouns used in this Agreement will include the corresponding masculine, feminine or neuter forms, and the singular form of nouns and pronouns will include the plural, and vice versa. The headings set forth in this Agreement are for convenience of reference purposes only and will not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof. Any law defined or referred to herein means such law as from time to time amended, modified or supplemented, including (in the case of statutes) by succession of comparable successor laws.
10(o) Entire Agreement.
This Agreement, including all exhibits, is the final and complete expression of the agreement between these Parties regarding the subject matter hereof. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement, except that this Agreement does not supersede any nondisclosure or comparable agreement between the Parties executed prior to this Agreement being executed. No employee, agent, or other representative of Company has any authority to bind Company with respect to any statement, representation, warranty, or other expression unless the same is specifically set forth in this Agreement. No usage of trade or other regular practice or method of dealing between the Parties will be used to modify, interpret, supplement, or alter the terms of this Agreement. Company will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Customer in any receipt, acceptance, confirmation, correspondence, or otherwise, unless Company specifically provides a written acceptance of such provision signed by an authorized agent of Company.
10(p) Electronic Signatures.
The Parties agree to do business electronically, that an electronic signature is of equal force and effect as a wet signature, and that each Party has the capacity to electronically store and retrieve or print the Agreement.