BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OF THESE MASTER TERMS AND CONDITIONS (THE "AGREEMENT") OR BY OTHERWISE USING OR ACCESSING THE LENDAL PLATFORM (AS DEFINED BELOW) (THE "ACCEPTANCE"), YOU AGREE YOU HAVE READ AND ARE BOUND BY THE TERMS OF THIS AGREEMENT. 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 TO THIS AGREEMENT, IN WHICH CASE THE TERM "YOU" WILL ALSO REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE LENDAL PLATFORM.
This Agreement, by and between you ("You" or "Your") and Lendal Pro Technologies, Inc. ("Lendal"), is effective as of the date of Acceptance (the "Effective Date") and governs Your use of the Lendal Platform. Each of Lendal and You may be referred to herein individually as a "Party" or collectively as "Parties." Lendal reserves the right to revise this Agreement at any time, and will provide electronic notice to You upon when such revisions have been made to allow you to review such revisions and confirm Your continued Acceptance. Any new terms will go into effect upon the earlier of (i) Your acceptance of the new terms, or (ii) thirty days after the date notice of such new terms was sent to You.
1 ACCESS TO PLATFORM.
1.2 License Restrictions and Responsibilities. You will not use the Lendal Platform for any purpose other than the purposes expressly set forth herein. You may not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Lendal Platform; (b) modify, translate, or create derivative works based on the Lendal Platform (except to the extent expressly permitted by Lendal); (c) use the Lendal Platform for timesharing or service bureau purposes or otherwise for the benefit of a third party; or (d) remove any proprietary notices or labels.
1.3 License to Your Data. You hereby grant to Lendal: (a) a non-exclusive, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the electronic data, algorithms, strategies or information submitted, created or uploaded by You to the Lendal Platform (the "Customer Data") solely to operate the Lendal Platform and perform its obligations under this Agreement; and (b) a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid up, sublicenseable (through multiple tiers), transferable right and license to copy, distribute, display and create derivative works of and otherwise use the Customer Data for Lendal's business purposes; provided, that, Lendal may only share the Customer Data with third parties to the extent such Customer Data is aggregated and/or anonymized such that Your identity cannot be determined by such third parties.
1.4 Feedback. You may from time to time provide suggestions, comments for enhancements or functionality or other feedback ("Feedback") to Lendal with respect to the Lendal Platform. Lendal will have full discretion to determine whether or not to proceed with the development of the requested enhancements, new features or functionality. You hereby grant to Lendal a royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable, perpetual license to (a) copy, distribute, transmit, display, perform, and create derivative works of the Feedback, and (b) use the Feedback and/or any subject matter thereof, including without limitation, the right to develop, manufacture, have manufactured, market, promote, sell, have sold, offer for sale, have offered for sale, import, have imported, rent, provide and/or lease products or services which practice or embody, or are configured for use in practicing, the Feedback and/or any subject matter of the Feedback.
1.5 Evaluation Services. From time to time, You may be invited to try certain services at no charge for a free trial or evaluation period or if such services are not generally available to customers (collectively, "Evaluation Services"). Evaluation Services will be designated as beta, pilot, evaluation, trial, limited release or the like. Evaluation Services are for Your evaluation purposes only and are provided "as is" without warranty of any kind, and may be subject to additional terms. Unless otherwise stated, any Evaluation Services trial period will expire sixty (60) days from the trial start date. Lendal may discontinue Evaluation Services at any time in its sole discretion and may never make them generally available. Lendal will have no liability for any harm or damage arising out of or in connection with any Evaluation Services.
2 OWNERSHIP; RESERVATION OF RIGHTS. You acknowledge and agree that, as between the Parties, Lendal retains all right, title and interest in and to the Lendal Platform and all intellectual property rights therein and thereto. Lendal grants no, and reserves any and all, rights other than the rights expressly granted to Customer under this Agreement with respect to the Lendal Platform. You will acquire no right, title, or interest in and to the Lendal Platform other than the limited licensed rights expressly granted under this Agreement. Notwithstanding the foregoing, You retains all right, title and interest in and to the Customer Data.
3 FEES; PAYMENT TERMS.
3.1 Fees. You will pay to Lendal any fees set forth on the ordering page in accordance with the terms and conditions set forth on the ordering page. Payment obligations are non-cancelable and fees paid are non-refundable.
3.2 Net of Taxes. All amounts payable to Lendal hereunder are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and Platform taxes (collectively "Taxes"). You will be solely responsible for payment of any Taxes, except for those taxes based on the income of Lendal. You will not withhold any Taxes from any amounts due Lendal.
4 TERM; TERMINATION.
4.1 Term; Termination. Subject to earlier termination as set forth in this Agreement, the term of this Agreement will commence on the Effective Date and continue unless either Party provides written notice of termination. In addition, a Party may terminate this Agreement immediately if the other Party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof.
4.2 Effect of Termination. In the event that this Agreement expires or is terminated for any reason, all rights with respect to the Lendal Platform will immediately terminate, and You will (a) cease use of the Lendal Platform; (b) return to Lendal or destroy, in Lendal' sole discretion, all copies or other embodiments of Lendal's Confidential Information; and (c) pay to Lendal all amounts due and owing under this Agreement.
4.3 Survival. Upon termination of this Agreement, all obligations in this Agreement will terminate, provided that Sections 1.2 (License Restrictions and Responsibilities), 1.3 (License to Your Data), 1.4 (Feedback), 2 (Ownership; Reservation of Rights), 3 (Fees; Payment Terms), 4 (Term; Termination), 5 (Confidentiality), 6.2 (Disclaimer), 7 (Limitations of Liability), 8 (Indemnification) and 10 (General) will survive.
5.1 Definition of Confidential information. "Confidential Information" means, subject to the exceptions set forth in Section 5.2 hereof, any information or data or materials, regardless of whether it is in tangible form, that is disclosed or otherwise made available by a party (the "Discloser") to the other party (the "Recipient") and that (a) the Discloser has marked as confidential or proprietary, or (b) the Discloser identifies as confidential at the time of disclosure with written confirmation within fifteen (15) days of disclosure to the Recipient; provided, however, that reports and/or information related to or regarding the Discloser's business plans, business methodologies, strategies, technology, specifications, development plans, customers, prospective customers, partners, suppliers billing records, and products or services will be deemed Confidential Information of the Discloser even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in Section 5.2 hereof. For the avoidance of doubt, the Lendal Platform is Confidential Information of Lendal.
5.2 Exceptions to Confidential Information. Confidential Information will not include any information which: (a) the Recipient can show by written record was in its possession prior to disclosure by the Discloser hereunder, provided that the Recipient must promptly notify the Discloser of any prior knowledge; (b) appears in issued patents or printed publications in integrated form or which otherwise is or becomes generally known by the public other than through the Recipient's failure to observe any or all terms and conditions hereof; or (c) subsequent to disclosure to the Recipient by the Discloser, is obtained by the Recipient from a third person who is not subject to any confidentiality obligation in favor of Discloser.
5.3 Use and Disclosure of Confidential Information. The Recipient may only use the Confidential Information for the purpose of performing its obligations and exercising its rights hereunder. The Recipient must keep secret and will never disclose, publish, divulge, furnish or make accessible to anyone any of the Confidential Information of the Discloser, directly or indirectly, other than furnishing such Confidential Information to (a) the Recipient's employees who are required to have access to such Confidential Information in connection with the performance of the Recipient's obligations, or the exercise of the Recipient's rights, hereunder, and (b) professional advisers (e.g., lawyers and accountants), in each case, during the time that the Recipient is permitted to retain such Confidential Information hereunder; provided that any and all such employees are bound by written agreements or, in the case of professional advisers, ethical duties, respecting the Confidential Information in the manner set forth in this Agreement. The Recipient will use at least reasonable care and adequate measures to protect the security of the Confidential Information of the Discloser and to ensure that any Confidential Information of the Discloser is not disclosed or otherwise made available to other persons or used in violation of this Agreement.
5.4 Disclosures Required by Law. In the event that the Recipient is required by law to make any disclosure of any of the Confidential Information of the Discloser, by subpoena, judicial or administrative order or otherwise, the Recipient will first give written notice of such requirement to the Discloser, and will permit the Discloser to intervene in any relevant proceedings to protect its interests in the Confidential Information, and provide full cooperation and assistance to the Discloser in seeking to obtain such protection.
6 REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
6.1 Representations and Warranties. Each Party represents and warrants to the other Party that (a) such Party has the required power and authority to enter into this Agreement and to perform its obligations hereunder, (b) the execution of this Agreement and performance of its obligations thereunder do not and will not violate any other agreement to which it is a party, and (c) this Agreement constitutes a legal, valid and binding obligation when signed by both Parties. Lendal will use reasonable efforts consistent with prevailing industry standards to maintain the Lendal Platform in a manner which minimizes errors and interruptions. Notwithstanding the foregoing, the Lendal Platform may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Lendal or by third-party providers, or because of other causes beyond Lendal's reasonable control, but Lendal will use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
6.2 Publisher Disclaimer. To the extent any content, data, or functionality of the Lendal Platform involves a trading or investment strategy, including those built and/or testing using algorithms, Your actual results may differ from results reported for the strategy for many reasons, including, without limitation: (i) performance results for the strategy do not reflect actual trading commissions that you may incur, (ii) performance results for the strategy do not account for the impact, if any, of certain market factors, such as lack of liquidity, that may affect your results, (iii) the investments chosen for the strategy may be volatile, and server, delivery delays and other factors may cause the price you obtain to differ substantially from the price at the time of the alert, (iv) you may not have the capital to trade as frequently as the strategy, and (v) the size and timing of a purchase or sale of a security may affect its price. Details regarding this Publisher Exemption can be found at https://lendalpro.trade/policy/publisher-exemption.
6.3 General Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE LENDAL PLATFORM IS PROVIDED ON AN "AS-IS" BASIS AND LENDAL DISCLAIMS ANY 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. LENDAL EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. LENDAL DOES NOT WARRANT THAT THE LENDAL PLATFORM IS ERROR-FREE OR THAT OPERATION OF THE LENDAL PLATFORM WILL BE SECURE OR UNINTERRUPTED.
7 LIMITATIONS OF LIABILITY.
7.1 Disclaimer of Consequential Damages. IN NO EVENT WILL LENDAL BE LIABLE FOR ANY SPECIAL, INDIRECT, RELIANCE, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND, LOST OR DAMAGED DATA, LOST PROFITS OR LOST REVENUE, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF LENDAL HAS BEEN NOTIFIED OF THE POSSIBILITY THEREOF.
7.2 General Cap on Liability. EXCEPT FOR (A) YOUR BREACH OF SECTION 1.2 (LICENSE RESTRICTIONS AND RESPONSIBILITIES) ABOVE, (B) EITHER PARTY'S BREACH OF SECTION 5 (CONFIDENTIALITY) ABOVE, AND (C) LIABILITY ARISING FROM A PARTY'S INDEMNIFICATION OBLIGATIONS SET FORTH IN SECTIONS 8.1 AND 8.2 BELOW, AS APPLICABLE, UNDER NO CIRCUMSTANCES WILL EITHER PARTY'S LIABILITY FOR ALL CLAIMS ARISING UNDER OR RELATING 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 AGGREGATE FEES PAID AND PAYABLE BY YOU TO LENDAL UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM. THIS LIMITATION OF LIABILITY IS CUMULATIVE AND NOT PER INCIDENT.
7.3 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. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF THEY HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
8.1 Indemnification by Lendal. Lendal will indemnify, defend and hold You harmless from settlement amounts and damages, liabilities, penalties, costs and expenses ("Liabilities") that are payable to any third party by You (including reasonable attorneys' fees) arising from any claim, demand or allegation by a third party that the Lendal Platform infringes any United States patent or copyright (except for claims for which Lendal is entitled to indemnification under Section 8.2, in which case Lendal will have no indemnification obligations with respect to such claim). Lendal will have no liability or obligation under this Section 8.1 with respect to any Liability if such Liability is caused in whole or in part by: (a) modification of the Lendal Platform by any party other than Lendal; (b) the combination, operation, or use of the Lendal Platform with other product(s), data or services where the Lendal Platform would not by itself be infringing; or (c) unauthorized or improper use of the Lendal Platform. This Section 8.1 states Lendal's entire obligation and Your sole remedies in connection with any claim regarding the intellectual property rights of any third party.
8.2 Indemnification by You. You will indemnify, defend and hold Lendal and the officers, directors, agents, and employees of Lendal ("Lendal Indemnified Parties") harmless from Liabilities that are payable to any third party by the Lendal Indemnified Parties (including reasonable attorneys' fees) arising from, directly or indirectly, any claim, demand or allegation by a third party that arises out of or is in connection with any (i) use by You of the Lendal Platform in violation of this Agreement or (ii) losses resulting from advice, instructions, products or services offered to third parties by You.
8.3 Action in Response to Potential Infringement. If the use of the Lendal Platform by You has become, or in Lendal's opinion is likely to become, the subject of any claim of infringement, Lendal may at its option and expense (a) procure for You the right to continue using the Lendal Platform as set forth hereunder; (b) replace or modify the Lendal Platform to make it non-infringing so long as the Lendal Platform has at least equivalent functionality; (c) substitute an equivalent for the Lendal Platform or (d) if options (a)-(c) are not reasonably practicable, terminate this Agreement.
8.4 Indemnification Procedure. If You or a Lendal Indemnified Party (each, an "Indemnified Party") becomes aware of any matter it believes it should be indemnified under Section 8.1 or Section 8.2, as applicable, involving any claim, action, suit, investigation, arbitration or other proceeding against the Indemnified Party by any third party (each an "Action"), the Indemnified Party will give the other Party (the "Indemnifying Party") prompt written notice of such Action. The Indemnified Party will cooperate, at the expense of the Indemnifying Party, with the Indemnifying Party and its counsel in the defense and the Indemnified Party will have the right to participate fully, at its own expense, in the defense of such Action with counsel of its own choosing. Any compromise or settlement of an Action will require the prior written consent of both Parties hereunder, such consent not to be unreasonably withheld or delayed.
9 GOVERNMENT MATTERS. You may not remove or export from the United States or allow the export or re-export of the Lendal Platform, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Lendal Platform (including the software, documentation and data related thereto) are "commercial items" and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
10 GENERAL. The terms and conditions of this Agreement are severable. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. Neither Party may assign this Agreement without the other Party's prior written consent; provided, that, either Party may assign this Agreement without such consent to an affiliate or to a successor to all or substantially all of the business or assets to which this Agreement relates, whether by sale of stock, sale of assets, merger, reorganization or otherwise. Any assignment or attempted assignment by either Party in violation of the foregoing will be null and void. Subject to the foregoing, this Agreement will be binding on the Parties and their successors and assigns. Both Parties agree that this Agreement and the Order Page are the complete and exclusive statement of the mutual understanding of the Parties and supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both Parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and a Party does not have any authority of any kind to bind the other Party in any respect whatsoever. All notices under this Agreement will be in writing and sent to the recipient's address set forth above and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Each Party will be excused from performance for any period during which, and to the extent that, it is prevented from performing any obligation or service, in whole or in part, as a result of a cause beyond its reasonable control and without its fault or negligence, including, but not limited to, acts of God, acts of war, epidemics, fire, communication line failures, power failures, earthquakes, floods, blizzard, or other natural disasters (but excluding failure caused by a Party's financial condition or any internal labor problems (including strikes, lockouts, work stoppages or slowdowns, or the threat thereof)) (a "Force Majeure Event"). Delays in performing obligations due to a Force Majeure Event will automatically extend the deadline for performing such obligations for a period equal to the duration of such Force Majeure Event. Except as otherwise agreed upon by the Parties in writing, in the event such non-performance continues for a period of thirty (30) days or more, either Party may terminate this Agreement by giving written notice thereof to the other Party. This Agreement will be governed by the laws of the State of New York without regard to its conflict of laws provisions. For all disputes relating to this Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Manhattan, New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts. You acknowledge that any unauthorized use of the Lendal Platform will cause irreparable harm and injury to Lendal for which there is no adequate remedy at law. In addition to all other remedies available under this Agreement, at law or in equity, You further agree that Lendal will be entitled to injunctive relief in the event You use the Lendal Platform in violation of the limited license granted herein or uses the Lendal Platform in any way not expressly permitted by this Agreement. In any action or proceeding to enforce rights under this Agreement, the prevailing Party will be entitled to recover costs and attorneys' fees. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.