THIS LICENSE AGREEMENT IS BETWEEN YOU AND US AND GOVERNS YOUR ACCESS AND USE OF OUR SERVICES. BY CLICKING "AGREE," ACCEPTING THIS AGREEMENT, SIGNING AN ORDER FORM, OR BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.
1. OUR SERVICES
We may either offer (i) Equity Management Services or (ii) Equity Management Services together with 409A Services to You as specified in Your Order Form.
1.1 Equity Management Services. We offer free and purchased Equity Management Services to You, all of which are subject to the terms and conditions of this Agreement.
- 1.1.1 Access to Equity Management Services. Your access to the Startup Service will vary based on your subscription level.
- 184.108.40.206 Purchased Equity Management Services. For Purchased Equity Management Services, You may access and use the Equity Management Services on a paid basis. For Purchased Equity Management Services, We will (a) make the Equity Management Services available to You pursuant to this Agreement, the Documentation, and any applicable Order Forms, (b) provide standard support to You at no additional charge, (c) and (c) assist you with Initial Implementation, subject to an additional charge if specified on Our website, in an Order Form, or in the Documentation.
- 220.127.116.11 Free Trial Equity Management Services. For Free Trial Equity Management Services, You may access and use the Equity Management Services for a limited period on a trial basis, as described on Our website, in an Order Form or in the Documentation. At the end of such period, any Client Data or other data you enter, and any customizations made to the Equity Management Services by or for You, will be permanently lost unless you continue under a Free Equity Management Services basis (if applicable), Purchased Equity Management Services basis, or export such Client Data or other data before the end of the limited Free Trial Equity Management Services period.
- 18.104.22.168 Free Equity Management Services. For Free Equity Management Services, You may access and use the Equity Management Services on a free or without charge basis up to certain limits as described on Our website, in an Order Form, or in the Documentation. Usage over these limits requires Your purchase of the Equity Management Services for continued access and use.
- 1.1.2 Implementation Equity Management Services. Initial Implementation may include importing Your historical data prior to the start date of your use of the Equity Management Services. We will notify You of any discrepancies or omissions found during Initial Implementation and notify You when Initial Implementation is complete. You are expected to review the data for its completion and accuracy and sign off within 20 business days of receiving such notice. If You fail to sign off on the Initial Implementation or provide written notice of rejection within such 20 business days period, Initial Implementation will be deemed to be complete and accepted.
- 1.1.3 Equity Management Support Services. Limited online training and online support for routine questions on the functionality of the Equity Management Services is generally available at times specified by Us which are normally Monday to Friday (excluding New York Stock Exchange holidays) or as posted on Our website. For Purchased Equity Management Services, we also offer telephone support in addition to online support at times specified by Us which are normally Monday to Friday (excluding New York Stock Exchange holidays) or as posted on Our website. Additional or advanced training and support services require fees as detailed in Section 3.3 below.
- 1.1.4 New Equity Management Services Modules. We may, from time to time, develop certain enhancements, additional modules, or functionality to the Equity Management Services that We may choose to offer to You under separate terms and conditions and for additional fees.
1.2 409A Services. If you elect to purchase 409A Services in addition to Purchased Equity Management Services, We will provide 409A Services to assist You with the valuation of the common shares in Your company’s capital stock as of a specific date. You must complete a Statement of Work in order to receive 409A Services
2. TERMS APPLICABLE ONLY TO EQUITY MANAGEMENT SERVICES
2.1 Use of Equity Management Services. Subject to the terms and conditions of this Agreement, an Order Form or the Documentation, You may use the Equity Management Services to enter, modify, view, display, download, transmit, reproduce, and otherwise process Client Data and to perform other functions of the Equity Management Services. Additional or updated Purchased Equity Management Services may be added by amendment or Order Form during the Term, prorated for the remaining portion of the current Term, and any such additional or updated Purchased Equity Management Services will continue for such Term and any renewal Terms.
2.2 Equity Management Services Usage Limits.. Equity Management Services are subject to usage limits as specified on Our website, an Order Form, or in the Documentation, including, for example, the maximum number of allowable Users or Stakeholders. Unless otherwise specified, (a) a quantity in an Order Form refers to Users or Stakeholders, and the Equity Management Services may not be accessed by more than that number of Users or Stakeholders, (b) a User’s credentials may not be shared with any other individual, and (c) except as set forth in an Order Form, a User identification may only be reassigned to a new individual replacing one who will no longer use the Services. If You exceed a contractual usage limit, We may work with You to seek to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Equity Management Services promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 3.1 below.
2.3 Your Responsibilities. You will (a) be responsible for Your Users’ compliance with this Agreement, the Documentation and any Order Forms, (b) be responsible for the accuracy, quality and legality of Client Data, the means by which You acquired Client Data and Your use of Your Client Data with the Equity Management Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Equity Management Services, and notify Us promptly of any such unauthorized access or use, (d) use the Equity Management Services only in accordance with this Agreement, the Documentation, any Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any third-party products and services with which You use the Equity Management Services.
2.4 Equity Management Service Restrictions. Access to the Equity Management Services is limited to the commercially available version thereof as subscribed to by You, as such Equity Management Services may be updated from time to time. You will not (a) make any of the Equity Management Services available to anyone other than Users, or use any of the Equity Management Services for the benefit of, anyone other than You, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any of the Equity Management Services, or include any of the Equity Management Services in a service bureau or outsourcing offering, (c) use any of the Equity Management Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use any of the Equity Management Services to store or transmit viruses or malicious code, (e) interfere with or disrupt the integrity or performance of any of the Equity Management Services, (f) attempt to gain unauthorized access to any of the Equity Management Services or its related systems or networks, (g) permit direct or indirect access to or use of any of the Equity Management Services in a way that circumvents a contractual usage limit, (h) modify, copy, or create derivative works based on any of the Equity Management Services, (i) monitor the availability, performance, functionality, or any other benchmarking of the Equity Management Services for any competitive purpose, or (j) disassemble, reverse engineer, or decompile any of the Equity Management Services, or access it to (1) build a competitive product or service, or (2) build a product or service using similar ideas, features, functions or graphics of any of the Equity Management Services. Any use of the Equity Management Services in breach of this Agreement, the Documentation or any Order Forms, by You or Users that in Our judgment threatens the security, integrity or availability of the Equity Management Services, may result in Our immediate suspension of the Equity Management Services, however We will use commercially reasonable efforts under the circumstances to provide You with notice and an opportunity to remedy such violation or threat prior to such suspension.
2.5 Equity Management Services Downtime. From time to time, Your access and use of the Equity Management Services may be unavailable due to the following circumstances:
- (a) Planned downtime. We use reasonable efforts to schedule planned system maintenance and updates to occur after 7 p.m. (Mountain Time) and provide at least 5 business days’ advance notice of the actual down times for planned major maintenance upgrades which may require extended outages due to hardware or software upgrades that exceed 6 hours. Such upgrades will be performed weekends after Friday 7 p.m. (Mountain Time);
- (b) Emergency downtime. We may temporarily suspend any access and use of the Startup Service without prior notice to maintain the security or integrity of the Equity Management Services or Client Data. We may access Client Data in order to conduct audits, perform maintenance, or maintain the security of the Services and data contained in it; and
- (c) Other Downtime. Any unavailability caused by circumstances beyond Our reasonable control, including, for example, Internet service provider failure or delay, or denial of service attack.
2.6 Client Data Portability and Deletion. Whether using the Free Equity Management Services or Purchased Equity Management Services, You are solely responsible for exporting Client Data from the Equity Management Services upon termination. If You are using the Free Equity Management Services and We terminate Your account, except as required by law, We will provide You a reasonable opportunity to retrieve Client Data. If You are using the Purchased Equity Management Services, upon request by You made within 30 days after the effective date of termination or expiration of this Agreement, We will make Client Data available to You for export or download, as provided in the Documentation. After such 30-day period, We will have no obligation to maintain or provide Client Data. Also upon Your request within 30 days after the effective date of termination or expiration of this Agreement, We will delete or destroy all copies of Client Data in Our systems or otherwise in Our possession or control, unless (a) required to maintain such information by applicable law or regulatory requirement, or (b) such Client Data is in electronic back-up or archival media for which destruction is not reasonably practicable and not generally accessible, provided that any such Client Data is kept confidential and destroyed in due course.
3. FEES AND PAYMENT
(a) For (i) Purchased Equity Management Services and 409A Services purchased together or
(ii) Purchased Equity Management Services where Your Order Form specifies an annual term,
You will pay on an annual basis all Fees in accordance with this Agreement. Fees are
calculated for the initial Term based on the number of Stakeholders set forth in Your
Order Form. We reserve the right, upon the later to occur of (i) the expiration of the
ninety-day period beginning on the Effective Date set forth in Your Order Form or (2) the
completion of the Initial Implementation, to adjust the Fees for the Initial Term if the
number of Stakeholders as of such later time places You in a different tier than set forth
in Your Order Form. We reserve the right to adjust Fees for a renewal Term if the number of
Stakeholders in the current Term exceeds the amount of Stakeholders set forth in Your Order
Form or last invoice, as applicable. You acknowledge that (a) Fees are based on Services
purchased and the number of Stakeholders at any given contract Term and not based on actual
usage, (b) payment obligations are non-cancelable and Fees paid are non-refundable, and (c)
quantities purchased cannot be decreased during the Term.
- (b) For Purchased Equity Management Services where Your Order Form specifies a monthly term, You will pay on a monthly basis all Fees in accordance with this Agreement. Fees are calculated for each contract Term based on the number of Stakeholders at the time of payment. You acknowledge that (a) Fees are based on Services purchased and the number of Stakeholders at any given contract Term and not based on actual usage, (b) payment obligations are non-cancelable and Fees paid are non-refundable, and (c) quantities purchased cannot be decreased during the Term.
3.2 Renewal Fees. We reserve the right at any time to modify Fees for any renewal Term effective upon Us providing You with at least 45 days’ advance notice before the end of the current term, including if (i) the number of Stakeholders has changed or (ii) in Our reasonable opinion, the stage or profile of Your company requires a more comprehensive 409A valuation.
3.3 Additional Service Fees. Any additional consulting, training, support or other services occurring after the Effective Date, other than the Initial Implementation services and the standard support services for the Purchased Equity Management Services, are subject to hourly fees.
3.4 Invoicing and Payment. Unless Your Order Form specifies that payment will be by
credit card, We will invoice You for the initial Term in advance on the Billing Commencement Date.
We will invoice you for each renewal Term in advance on the anniversary of the Billing Commencement
Date. Unless otherwise stated in the Order Form, invoiced charges are due within 30 days of receipt
of invoice. You are responsible for providing complete and accurate billing and contact information
to Us and notifying Us of any changes to such information.
If Your Order Form specifies that payment will be by credit card, You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit card for all Services listed in the Order Form. Such charges shall be made monthly in advance starting on the Effective Date unless specified otherwise.
3.5 Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower. We will not exercise Our rights under this Agreement if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
3.6 Suspension of Service and Acceleration. If any amount owing by You under this Agreement or any other agreement for the Services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under this Agreement or other agreements with Us or Our Affiliates so that all Your obligations become immediately due and payable, and suspend Our Services to You until such amounts are paid in full.
3.7 Taxes. Fees do not include sales, use, excise, personal property, or similar taxes or levies. All such taxes or levies, however designated, paid by Us (other than taxes based on Our net income) attributable to this Agreement must be paid by You upon invoice to You.
4. PROPRIETARY RIGHTS AND LICENSES
4.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our Affiliates, and Our licensors reserve all of Our or their right, title and interest in and to the Services, including all of Our or their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. Nothing in this Agreement grants to You or any third party any license or rights to use Our intellectual property or proprietary rights except in conjunction with Your authorized use of the Services. We reserve all rights not granted herein.
4.2 License to Host Your Data and Applications. You grant Us, Our Affiliates and applicable contractors a worldwide, limited-term license to host, reproduce, display, use, transmit and prepare derivative works from Client Data or any other data or code created by You or for You as part of using the Services, as reasonably necessary for Us to provide, and ensure proper operation of, the Services and any associated systems in accordance with this Agreement. Subject to the limited licenses granted herein, Client Data is Your sole property and We acquire no right, title or interest from You under this Agreement in or to any of the Client Data.
4.3 Use of Aggregate Data. You agree that We and Our Affiliates may collect, use, analyze and disclose data derived from Your use of the Services, including Client Data, for analysis, benchmarking, analytics, marketing, and other business purposes as long as such data is made available only on an anonymous or aggregated basis and that neither Your identity nor the identity of any persons associated with You or any Users is made available or publicly disclosed.
4.4 License to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into Services and/or Our Affiliates’ services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of Services. Such feedback and any fixes or enhancements based on such feedback shall be treated as Confidential Information, unless otherwise agreed.
4.5 Third-Party Licenses. From time to time, We or third parties may make available Third-Party Applications. Third-Party Applications may have their own terms and conditions of use and Your use of Third-Party Applications will be governed by and subject to such terms and conditions of those third parties. You understand and agree that We do not endorse and are not responsible or liable for any behavior, feature, or content of any Third-Party Applications, even if it causes any disclosure, modification or deletion of Client Data or causes interruptions in the availability of the Services. If You choose to use Third-Party Applications, You grant Us all requisite and necessary permission to allow the Third-Party Application and its provider to access Client Data as required for the interoperation of the Third-Party Application with the Services.
5.1 Treatment of Confidential Information. The Receiving Party agrees to (a) protect the
Confidential Information of the Disclosing Party from unauthorized disclosure to any third party with
appropriate administrative, physical and technical safeguards, using the same degree of care as the Receiving
Party uses to protect its own highly confidential information and in no event using less than a reasonable
standard of care, (b) use the Confidential Information of the Disclosing Party only for a purpose within the
scope of this Agreement and (c) hold each other’s Confidential Information in strict confidence and not use
or disclose the Confidential Information except to those person that require access to perform such party’s
obligations under this Agreement. Such obligations with respect to Confidential Information will exist for
the Term of this Agreement and for a period for 3 years thereafter to the extent any Confidential Information
is retained by the Receiving Party after termination of the Agreement.
Any disclosure by such Party’s employees, officers, directors, agents, auditors, subcontractors or Affiliates shall be deemed to be disclosure by the Receiving Party and the Receiving Party shall be liable for any such disclosure as if the Receiving Party has disclosed the Confidential Information.
5.2 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the 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 that Confidential Information.
5.3 Return of Confidential Information. Subject to the requirements of Section 2.6 (Client Data Portability and Deletion), upon termination of this Agreement, at the Disclosing Party’s request, the Receiving Party will promptly return or destroy all documents and other materials or storage media comprising or containing Confidential Information in such Party’s possession or control and make no further use of such Confidential Information, unless (a) legally required to maintain such information by applicable law or regulatory requirement, or (b) such information is in electronic back-up or archival media for which destruction is not reasonably practicable and not generally accessible, provided that any such information is kept confidential and destroyed in due course.
6. WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
6.1 Our Warranties. Subject to Section 6.5 below, We warrant that during the Term (a) this Agreement, any Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, (b) We will not materially decrease the overall security of the Services, (c) the Equity Management Services will perform substantially in accordance with the applicable Documentation, (d) We have all rights necessary to perform the Services, and (e) We will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Our entire liability and Your sole and exclusive remedy is for Us, at Our option (1) to correct or provide a workaround for any documented and reproducible defect in the Services or any decrease in the overall security, or (2) to immediately terminate this Agreement and return a prorated portion of the Fees paid by You.
6.3 Your Warranties. You represent and warrant that You have the requisite legal rights to the Client Data and that such Client Data and Your and Our use thereof does not and will not violate the rights on any third party. You acknowledge that You are solely responsible for ensuring that the Client Data is accurate and reflects Your requirements.
6.4. Data Disclaimer. Notwithstanding anything to the contrary in this Agreement, We have no duty or liability in connection with, and We disclaim all liability for (1) the accuracy of any third-party information obtained by Us from You, (2) the accuracy, veracity, or completeness of the Client Data as provided to Us by You, (3) Your compliance with any laws, regulations, policies, or procedures relating to retention or integrity of Client Data, or (4) changes made to Client Data by parties approved by You (including changes made by Your agents). You acknowledge that changes to Client Data could materially impact the provision of the Services or the results thereof. You also acknowledge that there is potential for unauthorized access or use of Client Data in the event that You do not immediately discontinue access for a User when appropriate. You will be responsible for making the appropriate changes when a User’s access to the Services should be limited or blocked.
6.5 Disclaimers. IF YOU ARE USING (I) THE PURCHASED EQUITY MANAGEMENT SERVICES OR (II) THE
PURCHASED EQUITY MANAGEMENT SERVICES TOGETHER WITH THE 409A SERVICES, EXCEPT FOR THE EXPRESS LIMITED WARRANTY
PROVIDED ABOVE, WE DO NOT MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND
EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
IF YOU ARE USING THE FREE TRIAL EQUITY MANAGEMENT SERVICES OR THE FREE EQUITY MANAGEMENT SERVICES, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO ALL OF SECTION 6 (WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS) AND SECTION 7.1 "INDEMNIFICATION BY US", ANY USE OF THE FREE TRIAL EQUITY MANAGEMENT SERVICES OR THE FREE EQUITY MANAGEMENT SERVICES IS PROVIDED "AS-IS" WITHOUT ANY WARRANTY AND WE SHALL HAVE NO INDEMNIFICATION OBLIGATIONS WITH RESPECT TO SUCH EQUITY MANAGEMENT SERVICES.
WITHOUT LIMITING THE FOREGOING, WE AND OUR AFFILIATES AND OUR LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (a) YOUR USE OF THE SERVICES WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICES WILL ACCURATE. FURTHERMORE, NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, YOU SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO US AND OUR AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE OF THE SERVICES, ANY BREACH BY YOU OF THIS AGREEMENT AND ANY OF YOUR INDEMNIFICATION OBLIGATIONS HEREUNDER.
7. MUTUAL INDEMNIFICATION
7.1 Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that any of the Purchased Equity Management Service or 409A Service infringes or misappropriates such third-party’s intellectual property rights arising under the laws of the United States, Canada, or the European Union (a "Claim Against You"), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us sole control of the defense and settlement of the Claim Against You (except that We may not, without your consent, settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to the Services, We may in Our discretion and at no cost to You (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Our warranties above to You, (ii) obtain a license for Your continued use of the Services in accordance with this Agreement, or (iii) terminate Your subscription for the Services upon 30 days’ written notice and refund to You a pro rata portion of any prepaid Fees covering the remainder of the Term. The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against You, (2) a Claim Against You arises from the use or combination of Services or any part thereof with software, hardware, data, or processes not provided by Us, if the Services or use thereof would not infringe without such combination, (3) a Claim Against You arises from your use of the Free Equity Management Services or Free Trial Equity Management Services, (4) a Claim Against You arises from a Third-Party Application, or (5) Your use of the Services in violation of this Agreement, the Documentation or any Order Forms.
7.2 Indemnification by You. You will defend Us and Our Affiliates against any claim, demand, suit or proceeding made or brought against Us by a third party (i) alleging that (a) any of Client Data or Your use of Client Data with the Services, (b) a third-party application provided by or used by You, or (c) the combination of a third-party application provided by or used by You and used with the Services, infringes or misappropriates such third-party’s intellectual property rights or violates any applicable laws, (ii) arising from Your use of the Services , (iii) arising from or relating to the Client Data, or (iv) breach of obligations of confidentiality owed to any third party (each a "Claim Against Us"). You will indemnify Us from any damages, attorney fees and costs finally awarded against Us or for any amounts paid by Us under a settlement approved by You in writing as a result of a Claim Against Us provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense. We reserve the right to participate in the defense of any such claim at our own expense.
8. LIMITATION OF LIABILITY
8.1 Limitation of Liability. OTHER THAN OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 7 ABOVE, IN NO EVENT SHALL OUR AGGREGATE LIABILITY TOGETHER WITH ALL OF OUR AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE GREATER OF $20 OR THE TOTAL AMOUNT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE 12 MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.
8.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL WE OR OUR AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, REVENUES, GOODWILL, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9. TERM AND TERMINATION
9.1 Initial Term and Renewal Term - Annual. For (i) Purchased Equity Management Services together with 409A Services or (ii) Purchased Equity Management Services where Your Order Form specifies an annual term, this Agreement shall commence on the Effective Date and shall continue for one (1) year from Your Billing Commencement Date. Except as otherwise specified in an Order Form, the Term will automatically renew for successive additional periods (each successive period being a “Term”) of one year, unless either Party gives the other Party notice of non-renewal at least 30 days prior to the end of the applicable Term.
9.2 Initial Term and Renewal Term – Monthly. For Purchased Equity Management Services where Your Order Form specifies a monthly term, this Agreement shall commence on the Effective Date and shall continue for one (1) month from the Effective Date. The Term will automatically renew for successive monthly Terms, unless either Party gives the other Party notice of non-renewal at least 30 days prior to the end of the applicable Term.
(a) A Party may terminate this Agreement for cause upon 30 days’ notice to the other Party if a material
breach has occurred and such breach remains uncured at the expiration of such period, or if the other Party
becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency,
receivership, liquidation or assignment for the benefit of creditors.
(b) We may terminate this Agreement upon 10 days’ notice to You if, at any time during the Term, you fail
to meet the initial Know Your Customer (“KYC”) review conducted by Us on You or any ongoing KYC monitoring
We may conduct during the Term.
(c) For Free Equity Management Services, this Agreement may be terminated by either Party upon providing
at least 30 days’ notice to the other Party, or otherwise in accordance with this Agreement.
(d) For (i) Purchased Equity Management Services and 409A Services purchased together or (ii) Purchased
Equity Management Services, this Agreement terminates when it is no longer renewed or is otherwise
terminated in accordance with this Agreement or any Order Form.
- (e) If You are using Free Trial Equity Management Services, the Agreement terminates at the end of the Free Trial Equity Management Services time period or, in Our sole discretion, at any time and for any or no reason, We terminate Your access or any part thereof. You agree that any termination of Your access to the Free Trial Equity Management Services may be without prior notice (provided We will use reasonable efforts to provide advance notice), and You agree that We will not be liable to You or any third party for such termination.
9.4 Refund or Payment upon Termination. If this Agreement is terminated by You for cause in accordance with Section 9.3 (Termination), We will refund any prepaid Fees covering the remainder of the Term of any Order Forms after the effective date of termination. If this Agreement is terminated by Us in accordance with Section 9.3, You will pay any unpaid Fees covering the remainder of the Term of any Order Forms. In no event will termination relieve You of Your obligation to pay any Fees payable to Us for the period prior to the effective date of termination.
10. GENERAL PROVISIONS
10.1 Contracting Party. For this Agreement, You are contracting with Capshare, LLC, a Delaware
limited liability company. Any Notices to Us related to this Agreement should be addressed to:
Attention: Capshare, LLC c/o Solium Plan Managers LLC 221 Main Street Suite 1340, San Francisco, CA 94105 United States
10.2 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, or (b) the third business day after mailing. Billing-related notices to You will be addressed to the relevant billing contact designated by You. All other notices to You will be addressed to the relevant administrator designated by You. Notwithstanding the foregoing, the parties agree that (i) We may send You any notice of changes to Fees pursuant to Section 3.1 or 3.2 by electronic mail to the relevant billing or primary contact designated by You and (ii) You may send us a notice of non-renewal pursuant to Section 9.1 or Section 9.2 by electronic mail to the email address of the relationship manager assigned to You by Us.
10.3 Agreement to Governing Law and Jurisdiction. This Agreement shall be governed by and construed under the laws of the State of New York without regard to its rules regarding conflicts of laws. The Parties agree to the exclusive jurisdiction and venue of the state and federal courts located in New York City in the State of New York for all issues, claims, or causes of action based upon or arising out of this Agreement or the transactions contemplated in this Agreement. THE PARTIES EACH WAIVE THEIR RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT, INCLUDING CLAIMS BASED ON CONTRACT, TORT, BREACH OF DUTY, OR ANY AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR BOTH PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS LEGAL COUNSEL.
10.4 Export Compliance and Anti-Corruption. The Services and any other technology We make available, may be subject to export laws and regulations of the United States and other jurisdictions. Each Party represents that it is not named on any U.S. government denied-party list. You shall not permit Users to access or use any Service in a U.S. embargoed country or in violation of any U.S. export law or regulation. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any of Our employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Our Legal Department at: firstname.lastname@example.org
10.5 Force Majeure. Neither Party will be in breach or default of this Agreement by reason of its delay or failure to meet any obligation hereunder due to any event, circumstance, or cause beyond its control such as, but not limited to, acts of God or nature, disaster, strikes, lock-outs or other labor or industrial disturbances, accidents, fires, explosions, weather conditions materially preventing or impairing work, inability to secure fuel, power, materials, mechanical breakdown, failure of equipment or machinery, delays in transportation or telecommunications, terrorism, wars, civil commotion, riot, sabotage, failures of public infrastructure, applicable legislation and regulations thereunder, interruptions by government or court orders and future orders (lawful or otherwise) of any regulatory body of competent jurisdiction; but shall not include a lack of money, credit or financing, or any other financial difficulty. The affected Party will be excused from performance for as long as such force majeure event prevents such Party from performing its obligations under this Agreement.
10.6 Use of Name. You grant Us permission and the right to display, photograph, create derivative works, and otherwise use Your name, logo(s), official corporate images, trade names and other trademarks, and quotes from Your executives and/or employees that have been pre-approved by You in writing, and all materials created by Us or on Our behalf that incorporate any of the foregoing for publicity and advertising purposes without further consent from or payment to You. Such use may include the incorporation of the foregoing in Our marketing and communication materials, as well as inclusion on Our website. We acknowledge Your right, title and interest in and to Your logo(s), trade names and other trade-marks, and any copyright registration that has been issued thereon, and will not at any time do or cause to be done any act or thing contesting any such right, title or interest.
10.7 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of the Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. Except as otherwise provided herein, no modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the Party against whom the modification, amendment or waiver is to be asserted. The Parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding any Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be (1) the applicable Order Form (including any Statements of Work thereunder), (2) this Agreement, and (3) the Documentation.
10.8 Assignment. Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this Agreement in its entirety (together with any Order Forms or Statements of Work), without the other Party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the Parties, their respective successors and permitted assigns.
10.9 Relationship of the Parties. The Parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the Parties.
10.10 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.
10.11 Waiver. No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
10.12 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
10.13 Acceptance of Agreement. Acceptance of this Agreement may take the form of (a) a delivery of an executed counterpart of a signature page to this Agreement or any Order Form that references this Agreement (whether by print signature or by electronic signature), (b) in the case of Free Equity Management Services or Free Trial Equity Management Services, online action such as clicking a button or ticking a box indicating Your acceptance, or (c) in the case of Free Equity Management Services or Free Trial Equity Management Services, by using the Equity Management Services. Delivery of an executed counterpart of a signature page to this Agreement or any Order Form or Statement of Work that references this Agreement by facsimile or by e-mail in PDF format shall be as effective as delivery of a manually executed counterpart of this Agreement. The Parties agree that the electronic signatures appearing in any Order Form or Statement of Work are the same as handwritten signatures for the purposes of validity, enforceability and admissibility.
10.14 Authority. Each of the Parties hereto (if You are entering into this Agreement on behalf of a company or other legal entity) represents and warrants that it is duly formed and in good standing under the laws of the governmental entity of its formation; that it has all necessary rights, powers, and authority to enter into and perform this Agreement; that the execution, delivery, and performance of this Agreement has been duly authorized; and that the execution and performance of this Agreement will not breach any agreement, covenant, court order, judgment, or decree to which such Party is a party or by which it is bound. If You are entering into this Agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its Affiliates to the terms of this Agreement. Each Party further acknowledges that it has read this Agreement, understands it, and agrees to be bound by it.
10.15 Surviving Provisions. Section 2.6 "Client Data Portability and Deletion," Section 3 "Fees and Payment," "Section 4 "Proprietary Rights and Licenses," Section 5 "Confidentiality," Section 6.4 "Data Disclaimer," Section 6.5 "Disclaimers," Section 7 "Mutual Indemnification," Section 8 "Limitation of Liability," and Section 10 "General Provisions" will survive any termination or expiration of this Agreement.
10.16 Privacy and Security. To the extent that We process any personally identifiable information contained in Client Data, on Your behalf, or in the provision of the Services, the terms at https://startup.shareworks.com/privacy and https://startup.shareworks.com/security_policy, which are hereby incorporated by reference, shall apply and the Parties agree to comply with such terms. We reserve the right to modify or update these terms at any time upon notice to You.
10.17 Use of Subcontractors. We have the right to subcontract or delegate any obligations under this Agreement to Our Affiliates or to any third party; provided however that We shall remain solely responsible to You for fulfilling Our obligations under the Agreement.
“409A Services” means the Section 409A valuation provided by Us to assist You with the valuation of the common shares in Your company’s capital stock as of a specific date for the following exclusive purposes (a) compliance with Internal Revenue Code Section 409A, and (b) use as an input for reporting purposes related to FASB ASC 505-50 and ASC 718 (formerly SFAS 123R).
"Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control" for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Agreement" means this License Agreement and includes any Order Forms and Statements of Work thereunder.
“Billing Commencement Date” is the 1st day of the month that follows the Effective Date, if the Effective Date is on or between the 1st to 15th day of a month or (z) the 16th day of the month that follows the Effective Date, if the Effective Date is on or between the 16th to the last day of the month.
"Client Data" means electronic data and information submitted by or for You to the Services, including shareholder, transaction and other data uploaded to or processed by the Services.
"Confidential Information" means all information whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (such as Client Data and every type of information related to the Services). 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. With respect to the Services, the processes, methodologies, system design, source code, protocols, derived or anonymous data, documentation, and other material incorporated in, related or referring to the (including trade secrets) are Our Confidential Information. Aggregate and anonymous data derived from Client Data is not Confidential Information.
"Disclosing Party" means the Party that is disclosing Confidential Information to the Receiving Party.
"Documentation" means with respect to the Services, the usage guides, policies and other documentation provided to You via Our website, any documentation or any release notes, as updated from time to time.
"Effective Date" means the date You first accepted this Agreement in accordance with Section 10.13.
"Equity Management Services" means those capitalization table and share plan information management and administrative services and the ASC718 reporting services, as applicable, which may be provided by Us to You as more specifically set forth in Your Order Form. Equity Management Services exclude products and services offered to You by a third party.
"Fee(s)" means the amounts invoiced or agreed to be charged to You by Us for the Services as described on Our website, in an Order Form, a Statement of Work or in any other documentation.
"Free Equity Management Services" means those Equity Management Services that are offered to You on a free of charge basis.
"Free Trial Equity Management Services" means those Equity Management Services that are offered to You on a free of charge basis and for a limited period of time.
"Initial Implementation" means the Equity Management Services provided by Us to import Client Data and other data into Our system in order for You to Use the Services as stated in this Agreement.
"Order Form" means an ordering document or online order form that specifies the Services to be provided hereunder that is entered into and accepted between You and Us or any of Our Affiliates, including any exhibits, addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto.
"Party" means either You or Us, as the context may require, and "Parties" means both You and Us, collectively.
"Purchased Equity Management Services" means those Equity Management Services which are offered to You on a paid basis.
"Receiving Party" means the Party that is receiving Confidential Information from the Disclosing Party.
“Services” means, as applicable: (i) the Free Equity Management Services, (ii) the Free Trial Equity Management Services, (iii) the Purchased Equity Management Services or (iv) the Purchased Equity Management Services and 409A Services purchased together, as (i) – (iv) are made available hereunder or an applicable Order Form.
"Stakeholder(s)" means the number of unique holders, whether an individual or entity, of any type of ownership instrument or rights that would be listed on a capitalization table, including common and preferred stock, options, units, notes and warrants but does not include any unique holders who have expired or forfeited rights.
"Statement of Work" means a statement of work that specifies the 409A Services to be provided hereunder that is entered into and accepted between You and Us or any of Our Affiliates, including any exhibits, addenda and supplements thereto. By entering into a Statement of Work and the applicable Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original Party hereto.
"Term" means the period of this Agreement as set forth in Sections 9.1 and 9.2, as applicable.
"Third-Party Applications" means those products and services made available by a third party and which may interoperate with the Services.
"User(s)" means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by You to use the Service, for whom You have purchased a subscription (or in the case of Free Equity Management Services or Free Trial Equity Management Services, for whom such Service has been provisioned), and in cases where the Service requires user authentication, to whom You have supplied a user identification and password.
"We", "Us", "Our" or "Capshare" means Capshare LLC and its Affiliates.
"You" or "Your" means, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which You are accepting this Agreement, and any Affiliates of that company or entity which have entered into Order Forms. In the case of an individual accepting this Agreement on his or her own behalf, such individual.