THESE TERMS OF USE GOVERN CUSTOMER’S USE OF THE SERVICES DESCRIBED HEREIN. BY EXECUTING AN ORDER FORM FOR SUCH SERVICES OR OTHERWISE ACCESSING AND USING THE SERVICES DESCRIBED HEREIN, CUSTOMER HEREBY ACCEPTS AND AGREES TO COMPLY WITH THIS AGREEMENT. PLEASE READ THIS AGREEMENT CAREFULLY AS IT SETS FORTH EACH PARTY’S RIGHTS, OBLIGATIONS, AND LIABILITIES. THE SITE AND THE SERVICES DESCRIBED HEREIN ARE PROVIDED FOR FINANCIAL PROFESSIONALS ONLY AND ARE NOT INTENDED FOR INDIVIDUAL INVESTOR USE. BY UTILIZING THE SITE AND THE SERVICES DESCRIBED HEREIN, YOU ACKNOWLEDGE YOU ARE AN INSTITUTIONAL INVESTOR, INCLUDING A DULY REGISTERED INVESTMENT ADVISER OR BROKER-DEALER OR APPROPRIATELY LICENSED REPRESENTATIVE OF A REGISTERED INVESTMENT ADVISER OR BROKER-DEALER.
WE RESERVE THE RIGHT TO UPDATE THIS AGREEMENT AT ANY TIME BY POSTING AN UPDATED COPY OF THIS AGREEMENT TO THE SITE AND YOU WAIVE THE RIGHT TO NOTICE OF ANY SPECIFIC CHANGES. BY CONTINUING TO ACCESS AND USE THE SERVICES AFTER THE POSTING OF AN UPDATED COPY OF THIS AGREEMENT, YOU AGREE TO THE UPDATED TERMS OF USE.
These Terms of Use (the “Agreement”) are between Institutional Capital Network, Inc., which is the parent company of iCapital Advisors, LLC, 60 East 42nd Street, New York, NY 10165 USA (“iCapital,” “us,” “we”) and the individual or legal entity that subscribes to, or otherwise accesses and uses, the services and products defined herein (the “Customer” or “you”). For purposes of this Agreement, iCapital and Customer may be referred to individually as a “party” and collectively as the “parties”.
WHEREAS, iCapital owns and operates Portfolio Intelligence, which is an online technology designed to provide analytics for assets and portfolios;
WHEREAS, Customer is an Institutional Investor (as defined below) and desires to access the Portfolio Intelligence Services subject to this Agreement;
NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1 Definitions. As used in this Agreement:
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with a party to this Agreement. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2 “Authorized User” means Customer and Customer’s employees, consultants, contractors, and agents, each of which qualifies as an Institutional Investor (i) who are authorized by Customer to access and use the Portfolio Intelligence Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Portfolio Intelligence Services has been purchased hereunder.
1.3 “Confidential Information” shall be ascribed the meaning set forth in Section 8 of this Agreement.
1.4 “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or any Authorized User through the Portfolio Intelligence Services. For the avoidance of doubt, Documentation and iCapital IP are not considered Customer Data.
1.5 “Documentation” means any user guides, assistance, instructions, technical or operational notes provided or otherwise made available by iCapital to Customer regarding the access, use, security, performance, or operation of the Portfolio Intelligence Services.
1.6 “iCapital IP” means the Portfolio Intelligence Services, the Documentation, and all trademarks, logos, and other intellectual property rights embedded therein as the same may be made available to Customer and its Authorized Users during the Term.
1.7 “Institutional Investor” means: (i) a bank, savings and loan association, insurance company, or registered investment company; (ii) an investment adviser registered either with the Securities and Exchange Commission or with a state securities commission (or any agency or office performing like functions); (iii) Any other entity (whether a natural person, corporation, partnership, trust, or otherwise) with total assets of at least $50 million; (iv) a governmental entity or subdivision thereof; (v) an employee benefit plan that meets the requirements of Section 403(b) or Section 457 of the Internal Revenue Code and has at least 100 participants, but does not include any participant of such plan; (vi) a qualified plan, as defined by Section 3(a)(12)(c) of the act, that has at least 100 participants, but does not include any participant of such a plan; (vii) a FINRA member or registered associated person of such member; or (vi ) Any person acting solely on behalf of any of the foregoing.
1.8 “Order” or “Order Form” means a signed order form document, or other online subscription process made available on the Site, by which Customer agrees to subscribe to a specifically identified packages or suite of Portfolio Intelligence Services.
1.9 “Portfolio Intelligence Services” means iCapital’s online, web-based software applications, tools, and platforms related to Portfolio Intelligence that are available on the Site, including any ancillary products and services.
1.10 “Site” means https://s.icapitalnetwork.com/, https://portfolio-intelligence.icapitalnetwork.com/ or any successor website and any mobile application thereof where Customer can access and use the Portfolio Intelligence Services.
1.11 “Fees” means the amount Customer pays, or is required to pay, for the Portfolio Intelligence Services during the Term.
1.12 “Package” means the specific selection of features and functions of the Portfolio Intelligence Services that Customer receives. Not all Portfolio Intelligence Services available on the Site may be available to Customer depending upon their Package.
1.13 “Third-Party Products” means any products, content, services, information, websites, or other materials that are owned by third parties and are incorporated into or accessible through the Portfolio Intelligence Services, including any open-source components.
2 Services
2.1. Provision of Services. During the Term, and subject to and conditioned upon Customer’s payment of the Fees and its compliance with the terms and conditions of this Agreement, iCapital agrees to make the Portfolio Intelligence Services and Documentation available to Customer for Customer’s internal business purposes only (e.g., no commercial resale or commercial redistribution of the Portfolio Intelligence Services). Customer agrees that its access to the Portfolio Intelligence Services is limited to the features and functions included in Customer’s Package and is neither contingent upon the delivery of any future functionality or features, nor dependent upon any oral or written public comments made by iCapital with respect to future functionality or features. The Portfolio Intelligence Services are available subject to the usage limitations and restrictions set forth in the Order. Other than as expressly set forth in this Agreement, no license or other rights in or to the Portfolio Intelligence Services or iCapital intellectual property rights are granted to Customer, and all such licenses and rights are hereby expressly reserved.
2.2. Third-Party Products. Customer acknowledges that use of certain Portfolio Intelligence Services may require the installation of certain software components owned or licensed by iCapital from a third-party (collectively “Third Party Software”) or that are subject to an open source license agreement, including components available under the GNU Affero General Public License (AGPL), GNU General Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public License (MPL), Apache License, BSD licenses, or any other license that is approved by the Open Source Initiative (“Open Source Software” and collectively with Third Party Software, the “Third Party Products”). Any use of Third Party Products by Customer shall be solely governed by the terms and conditions of the applicable Third Party Software license or Open Source Software license and not by the terms of this Agreement. Any such Third Party Products license terms shall be set forth in the readme or about files of the Portfolio Intelligence Services or otherwise made available by iCapital. Customer hereby agrees to comply with any additional terms and conditions applicable to the Third Party Products.
2.3. Authorized Users. Customer shall, and shall cause each Authorized User to, abide by the terms of this Agreement. Any action or omission of an Authorized User shall constitute an act or omission of Customer. iCapital may terminate or suspend any User’s access to the Portfolio Intelligence Services for any breach without notice.
2.4. Upgrades. iCapital shall provide all necessary bug fixes, patches, corrections or other updates to the Portfolio Intelligence Services (“Updates”) to keep the Portfolio Intelligence Services operating in accordance with the Documentation. iCapital may also provide new releases (“Upgrades”) to the Portfolio Intelligence Services in its sole discretion. All such Updates or Upgrades shall be considered part of the Portfolio Intelligence Services and shall be subject to the terms and conditions of this Agreement. To the extent necessary, Customer shall install, download, run, or otherwise employ all such Updates or Upgrades as soon as practicable upon its receipt or notification of the availability of the Updates or Upgrades for download.
2.5. Support and Maintenance. During the Term, the Portfolio Intelligence Services will perform in accordance with the Documentation and any service level representations, if any, set forth in the Order. If specified in the Order, iCapital may provide Customer with technical support services related to the Portfolio Intelligence Services (“Support Services”). In providing the Support Services described herein, iCapital may be required to access, perform operations on and/or in, and transmit information and data to, Customer’s information technology networks, assets, and environment, and Customer (i) acknowledges and consents to iCapital undertaking, in iCapital’s sole and reasonable discretion, all of the foregoing to perform the Support Services, (ii) represents and warrants to iCapital that it has the legal authority to consent with the same, and (iii) iCapital has procured the consent from any other applicable third party to allow Customer to perform the Support Services.
3 Customer Responsibilities and Restrictions
3.1. Customer Responsibilities. Customer is responsible for all activities conducted by itself and its Authorized Users. Except for iCapital’s obligations described in Section 8 (Confidentiality), Customer shall have sole responsibility for (i) the accuracy, security quality, and legality of the Customer Data and the means by which Customer acquired the Customer Data and the right to provide the Customer Data for the purposes of this Agreement (including ensuring the receipt of all permissions from individuals and other third parties as may be necessary in order to provide the Customer Data for the purposes contemplated in this Agreement); (ii) the security and confidentiality of Customer’s and its Authorized Users’ account information; (iii) maintaining a backup of all Customer Data; and (iv) preventing unauthorized access to, or use of, the Portfolio Intelligence Services. Customer will notify iCapital promptly of any such unauthorized access or use of the Portfolio Intelligence Services or its Authorized User’s access credentials. Customer further acknowledges and agrees that iCapital is not a data “processor” and does not, and shall not, collect, retain, or otherwise process personal data on the behalf of Customer.
3.2. Compliance with Laws. Customer shall comply with all applicable federal, state, and local laws, rules, and regulations in connection with its use of the Portfolio Intelligence Services, the collection and other processing of all Customer Data, and performance under this Agreement. Customer acknowledges that iCapital exercises no control over the Customer Data transmitted by Customer or Authorized Users to or through the Portfolio Intelligence Services. iCapital may impose limits on the use or access to the Portfolio Intelligence Services as required by applicable laws or otherwise to protect or improve the functionality, operability, or availability of the Portfolio Intelligence Services.
3.3. Restrictions. Customer and its Authorized Users shall not, and shall not permit any third party to do any of the following except to the extent expressly authorized herein: (i) copy or republish the Portfolio Intelligence Services or Documentation; (ii) make the Portfolio Intelligence Services available to any person other than Authorized Users; (iii) rent, lend, sell, sublicense, or use the Portfolio Intelligence Services to provide service bureau, timesharing or other services to third parties; (iv) send or store in the Portfolio Intelligence Services any sensitive or special categories of personal data, or connect to the Portfolio Intelligence Services in any country that has data residency or data transmission restrictions, including, but not limited to, Russia and the People’s Republic of China; (v) send or store viruses, spyware, ransomware, timebombs, Trojan horses, or other harmful or malicious code, or files to or in connection with the Portfolio Intelligence Services; (vi) send or store infringing, offensive, harassing or otherwise unlawful material in connection with the Portfolio Intelligence Services; (vii) modify or create derivative works based upon the Portfolio Intelligence Services or Documentation; (viii) remove, modify, or obscure any copyright, trademark, or other proprietary notices contained in the Portfolio Intelligence Services or Documentation; (ix) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code used or embodied in the Portfolio Intelligence Services, which for the avoidance of doubt includes the related algorithms, methods, and techniques; (x) access or use the Portfolio Intelligence Services or Documentation in order to build a similar or competitive product, or (xi) exploit the Portfolio Intelligence Services or Documentation in any unauthorized way whatsoever, including by trespassing or burdening network capacity. If for some reason these restrictions are prohibited by applicable laws or by an agreement iCapital has with one of its licensors, then the activities are permitted only to the extent required to comply with such laws or agreement.
4 Intellectual Property
4.1. Ownership and Reservation of Rights. iCapital and its Affiliates retain all right, title, and interest in and to the Portfolio Intelligence Services and the iCapital IP. Customer acknowledges and agrees that all iCapital IP is and remains the sole and exclusive intellectual property of iCapital and that Customer is granted only a limited, non-exclusive, non-transferable, revocable right to access and use the Portfolio Intelligence Services and iCapital IP during the Term as set forth herein.
4.2. Rights in Customer Data. As between iCapital and Customer, Customer owns the Customer Data. Customer hereby grants to iCapital and its Affiliates a worldwide, nonexclusive, transferable, sublicensable, royalty-free license to host, copy, transmit, display, and process the Customer Data as reasonably necessary to (i) provide the Portfolio Intelligence Services and Support Services, (ii) monitor, modify, and improve (including develop) the Portfolio Intelligence Services, and (iii) enforce and defend its rights and obligations set forth in this Agreement. Customer further grants iCapital the right to utilize anonymized and aggregated Customer Data to improve the Portfolio Intelligence Services and to develop new products and services.
4.3. Feedback. To the extent Customer or any of its Authorized Users provides any suggestions for modification or improvement or other comments, code, information, know-how, or other feedback (whether in oral or written form) relating to the Portfolio Intelligence Services or the iCapital (“Feedback”), Customer hereby grants to iCapital a perpetual, irrevocable, worldwide, non-exclusive, transferable, sublicensable, royalty-free license to use and commercially exploit the Feedback in any manner iCapital sees fit without accounting or other obligation.
4.4. Statistical Usage Data. iCapital may collect, retain, and use, during and after the Term for purposes of iCapital’s business, usage data that is derived from the operation of the Portfolio Intelligence Services, including patterns identified through the use of the Portfolio Intelligence Services and algorithms, log data, and data regarding the performance and availability of the Portfolio Intelligence Services (“Usage Data”). If iCapital provides Usage Data to any third party, such Usage Data shall be aggregated and anonymized so as not to disclose Customer’s or any Authorized Users’ identity.
5 Order and Payment
5.1. Orders. Customer shall procure the Portfolio Intelligence Services by executing an Order with iCapital (which Orders may be accepted via an electronic acceptance process via the Site). Packages are offered on a monthly, quarterly or annual basis and shall be non-cancelable and non-refundable during applicable period (the “Initial Term”). All Portfolio Intelligence Services are governed exclusively by this Agreement and the applicable Order.
5.2. Fees; Price Increase; Automatic Renewals. Fees shall be payable in advance either annually or monthly as elected by Customer in the Order. All Fees will remain fixed during the Term, unless Customer upgrades to receive additional or enhanced Portfolio Intelligence Services (e.g., upgrades to a different Subscription Package). iCapital may increase the Fees for Customer’s Package during a Renewal Term by providing Customer at least thirty (30) days advanced notice. If Customer does not terminate prior to the start of the next Term, in accordance with Section 6 of this Agreement, Customer’s subscription will automatically renew for additional periods of the same duration (each, a “Renewal Term”) at the new price set forth in the price increase notice. Customer’s Initial Term and all Renewal Terms shall be referred to herein as the “Term.”
5.3. Payment. Customer shall pay all Fees via credit card or such other payment method available on the Site such as ACH. Customer hereby authorizes iCapital to charge Customer’s credit card or bank account for all Fees payable during the Term. Customer further authorize iCapital to use a third party to process payments, and consents to the disclosure of Customer’s payment information to such third party. Customer will keep Customer’s contact information, billing information and credit card information (where applicable) up to date. Except as otherwise provided herein, Fees are non-refundable, non-cancellable and not subject to set-off. All Fees shall be paid by the Customer in U.S. dollars ($). If any Fees (except with respect to charges then under reasonable and good faith dispute) remain unpaid by their due date, in addition to any other rights or remedies it may have under this Agreement or by matter of law, (i) iCapital reserves the right to suspend the Portfolio Intelligence Services upon ten (10) days written notice to Customer until such amounts are paid in full, and (ii) any such unpaid Fees may accrue, at iCapital’s discretion, interest at the rate of the lesser of one and one-half (1.5%) percent of the outstanding balance per month or the maximum rate permitted by law from the date such Fees were due until the date paid. Further, Customer shall be responsible for all costs and expenses associated with iCapital’s collection of such Fees, including reasonable attorneys’ fees iCapital may incur in connection with such collection efforts. Suspension of the Portfolio Intelligence Services under this section shall not release Customer of its payment obligations under this Agreement.
5.4. Discounted and Free Trials: From time to time, to the extent legally permitted, iCapital may offer discounted and/or free trials of certain Portfolio Intelligence Services or Packages for specified periods of time without payment or with a discounted price. All discounted or free trial offerings will be subject to the specific terms of trial or discount made available at the time of order. ONCE CUSTOMER’S DISCOUNTED OR FREE TRIAL ENDS, ICAPITAL (OR ITS THIRD-PARTY PAYMENT PROCESSOR) WILL BEGIN BILLING CUSTOMER’S DESIGNATED PAYMENT METHOD ON A RECURRING BASIS AT THE THEN APPLICABLE PRICE FOR THE SELECTED PORTFOLIO INTELLIGENCE SERVICES (PLUS ANY APPLICABLE TAXES AND OTHER CHARGES) UNLESS CUSTOMER CANCELS ITS USE PRIOR TO THE END OF THE FREE OR DISCOUNTED TRIAL. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT WILL NOT RECEIVE A NOTICE FROM ICAPITAL THAT ITS DISCOUNTED OR FREE TRIAL HAS ENDED OR THAT THE PAID PORTION OF THE TERM HAS BEGUN. ICAPITAL RESERVES THE RIGHT TO MODIFY OR TERMINATE ANY DISCOUNTED AND/OR FREE TRIALS AT ANY TIME, WITHOUT NOTICE AND IN ITS SOLE DISCRETION
5.5 Taxes. Customer is responsible for payment of all sales and use taxes, value added taxes (VAT), or similar charges relating to Customer’s purchase and use of the Portfolio Intelligence Services, excluding taxes based on iCapital’s net income. If iCapital has a legal obligation to pay or collect taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Order and invoiced to and paid by Customer, which amounts are in addition to the Fees for the Portfolio Intelligence Services, unless Customer provides iCapital with a valid tax exemption certificate authorized by the appropriate taxing authority.
6 Term and Termination
6.1. Term. The Term of this Agreement shall continue for so long as Customer subscribes to the Portfolio Intelligence Services. Customer may terminate its use by furnishing iCapital written notice of its intent to terminate the Agreement at least ten (10) days prior to the automatic renewal date. Customer is not entitled to any refunds of prepaid Fees or unused portions of the Portfolio Intelligence Services upon termination. Termination notices shall be sent to iCapital via email at: [email protected].
6.2. Termination for Material Breach. Either party may terminate this Agreement if the other party fails to cure any material breach within thirty (30) days after receipt of written notice of such breach. Upon any termination of this Agreement by Customer for a material breach by iCapital pursuant to this Section 6.2, iCapital will refund Customer a pro-rata portion of any prepaid Fees paid by Customer to iCapital that cover the remainder of the Term after the effective date of termination and a pro-rata portion of any prepaid Fees paid by Customer for the Portfolio Intelligence Services that address the Portfolio Intelligence Services that have not been delivered as of the effective date of termination.
6.3. Suspension. iCapital reserves the right to suspend delivery of the Portfolio Intelligence Services if iCapital reasonably concludes that Customer’s or an Authorized User’s use of the Portfolio Intelligence Services is causing immediate and ongoing harm to iCapital or the security, integrity, or availability of the Portfolio Intelligence Services. iCapital will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to such suspension. In the extraordinary case that iCapital must suspend delivery of the Portfolio Intelligence Services, iCapital shall promptly notify Customer of the suspension and the parties shall diligently attempt to resolve the issue. iCapital shall not be liable to Customer or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the Portfolio Intelligence Services in accordance with this Section 6.3. Nothing in this Section 6.3 will limit iCapital’s other rights under this Section 6.
6.4. Effect of Suspension, Expiration and Termination. Upon suspension, expiration or termination of this Agreement, all licenses and access to the Documentation and the Portfolio Intelligence Services granted to Customer under this Agreement and all Orders placed hereunder shall immediately terminate and Customer will cease using the Portfolio Intelligence Services and iCapital Confidential Information. Customer acknowledges and agrees that in the event of suspension, expiration or termination of an account, Customer shall no longer have access to any data it has provided nor any reports generated from the use of the Portfolio Intelligence Services. Suspension, expiration or termination of this Agreement for any reason other than termination by Customer for a material breach by iCapital pursuant to Section 6.2 (Termination for Material Breach) shall not relieve Customer of the obligation to pay all future amounts due under all Orders. Sections 3.3 (Restrictions), 4 (Intellectual Property), 5 (Order and Payment), 6.4 (Effect of Termination), 7 (Representations and Warranties), 8 (Confidentiality), 10 (Indemnification), 11 (Limitations of Liability) and 12 (Miscellaneous) shall survive the suspension, expiration or termination of this Agreement for any reason.
7 Representations and Warranties
7.1. General. Each party represents and warrants that it has the legal power and authority to enter into and perform under this Agreement and shall comply with all laws applicable to it under this Agreement. iCapital represents that the Portfolio Intelligence Services will be performed in a professional manner in accordance with industry standards. Customer represents and warrants that it and each Authorized User is an Institutional Investor as defined above (and not operating in a personal capacity).
7.2. SERVICES AND SUPPORT SERVICES. CUSTOMER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS PROVIDED IN SECTION 7.1 OF THIS AGREEMENT, THE PORTFOLIO INTELLIGENCE SERVICES, ICAPITAL IP AND SUPPORT SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT (NOT LIMITED TO) ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHICH WARRANTIES ARE HEREBY DISCLAIMED. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE PORTFOLIO INTELLIGENCE SERVICES AND SUPPORT SERVICES MAY NOT MEET CUSTOMER’S REQUIREMENTS, MAY NOT BE COMPATIBLE WITH ANY PARTICULAR INFORMATION SYSTEM, AND MAY NOT RESULT IN ANY ACTUAL BUSINESS OPPORTUNITIES, REVENUE OR SAVINGS. CUSTOMER FURTHER ACKNOWLEDGES AND AGREES THAT THE PORTFOLIO INTELLIGENCE SERVICES AND SUPPORT SERVICES MAY NOT BE CONTINUOUSLY AVAILABLE AND MAY CONTAIN ERRORS, BUGS, AND OTHER GLITCHES THAT MAY NOT BE CORRECTED. THE PORTFOLIO INTELLIGENCE SERVICES AND SUPPORT SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS AND ICAPITAL IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, VIRUSES, LOSS OR COMPROMISE TO CUSTOMER DATA, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. THE ENTIRE RISK AS TO THE USE OF THE PORTFOLIO INTELLIGENCE SERVICES, AND SUPPORT SERVICES IS ASSUMED BY CUSTOMER.
7.3. DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1 OF THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS, ICAPITAL MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ACCURACY OF INFORMATIONAL CONTENT, SYSTEMS INTEGRATION, NON-INFRINGEMENT, NON-INTERFERENCE WITH ENJOYMENT OR OTHERWISE. ICAPITAL DOES NOT WARRANT THAT THE PORTFOLIO INTELLIGENCE SERVICES OR SUPPORT SERVICES WILL BE ERROR FREE OR UNINTERRUPTED.
8 Confidentiality. As used in this Agreement, “Confidential Information” means all proprietary, non-public information disclosed by iCapital (the “Disclosing Party”) to Customer (the “Receiving Party”), directly or indirectly, which, (i) if in written, graphic, machine-readable or other tangible form, is marked as “confidential” or “proprietary,” (ii) if disclosed orally or by demonstration, is identified at the time of initial disclosure as confidential and is confirmed in writing to the Receiving Party to be “confidential” or “proprietary” within thirty (30) days of such disclosure, or (iii) reasonably appears to be confidential or proprietary because of the circumstances of disclosure and the nature of the information itself, including the terms of this Agreement and each Order, the Portfolio Intelligence Services, and Documentation. For the avoidance of doubt, iCapital IP will be considered Confidential Information of iCapital, regardless of whether or not it is designated as confidential. The Receiving Party shall not (i) use the Confidential Information of the Disclosing Party except to exercise its rights and perform its obligations under this Agreement or (ii) disclose such Confidential Information to any third party, except those of its employees, service providers, agents, and representatives who are subject to confidentiality obligations at least as stringent as the obligations set forth herein and have a “need to know” in order to carry out the purpose of this Agreement. The Receiving Party shall use at least the same degree of care it uses to protect its own confidential information of like nature, but not less than a reasonable degree of care, to protect the Confidential Information of the Disclosing Party. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent such disclosure is required by laws or order of a court or other governmental authority; provided that the Receiving Party shall use commercially reasonable efforts to promptly notify the Disclosing Party prior to such disclosure to enable the Disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure.
9 Information Security and Data Protection
9.1. iCapital Security Program. iCapital will implement and maintain commercially reasonable administrative, physical, and technical safeguards designed to protect the security and confidentiality of Customer Data, including measures designed to prevent unauthorized access, use, modification, or disclosure of Customer Data. iCapital will, to the extent required by law, promptly notify Customer in the event it identifies any compromise to the security or confidentiality of Customer Data. For the avoidance of doubt, Customer shall not provide or otherwise input into the Portfolio Intelligence Services any personal data, personal information, or similar personally identifiable information that requires, or is otherwise afforded, special or enhanced legal protection pursuant to a data protection law, statute, or regulation, such as social security numbers, driver’s license numbers, or health data, provided however, the foregoing restriction shall not apply to Customer’s obligation to furnish payment information to iCapital or iCapital’s payment processor.
9.2. Security Controls. Customer is solely responsible for all actions taken by Authorized Users and for maintaining the security and confidentiality of all usernames, passwords, and access credentials provided to, or generated by, an Authorized User. Customer agrees to notify iCapital immediately of any unauthorized use of any username, password, access credentials, or account related to the Portfolio Intelligence Services, or of any other known or suspected breach of security.
9.3. Data Privacy. Customer acknowledges and agrees that it has received, reviewed, and understand iCapital’s Privacy Notice with respect to these Portfolio Intelligence Services, and that iCapital may, from time to time, update the Privacy Notice by posting a new notice or disclaimer on the Site, and such actions shall satisfy all applicable requirements to provide notice of the same.
10 Indemnification. Customer shall indemnify, defend and hold harmless iCapital and its Affiliates, employees, agents, officers, directors, shareholders, representatives, successors and assigns from and against any loss, liability, cause of action, cost or expense (including reasonable attorneys’ fees) arising from, in connection with, or related to (i) a breach of this Agreement by Customer, or any employee or agent of Customer; (ii) any and all acts and omissions of Customer and its employees and agents in connection with its use of the Portfolio Intelligence Services; (iii) iCapital’s processing or storage of the Customer Data, or (iv) the violation, infringement or misappropriation by Customer, any employee, agent or Authorized User of Customer, of iCapital IP.
11 Limitations of Liability; Disclaimers
11.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ICAPITAL’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OF THE PORTFOLIO INTELLIGENCE SERVICES OR SUPPORT SERVICES, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER UNDER THE ORDER GIVING RISE TO THE CLAIM IN THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATION SHALL APPLY WHETHER AN ACTION IS IN CONTRACT, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY. IN NO EVENT SHALL EITHER PARTY, OR ICAPITAL’S LICENSORS OR THIRD PARTY PRODUCT SUPPLIERS BE LIABLE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, INCLUDING (BY WAY OF EXAMPLE AND NOT AN EXHAUSTIVE LIST), LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION, LOSS OF USE, OR OTHER COMMERCIAL DAMAGES OR LOSSES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS AGREEMENT, HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT, OR OTHERWISE AND REGARDLESS OF THE THEORY OF LIABILITY. THE FOREGOING LIMITATIONS SHALL NOT APPLY TO A PARTY’S GROSSLY NEGLIGENT ACTS OR OMISSIONS OR TO THE INFRINGEMENT OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS.
11.2. ACKNOWLEDGMENT OF RISK. THE LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN WILL APPLY REGARDLESS OF THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. BOTH PARTIES HEREUNDER SPECIFICALLY ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY AND EXCLUSION OF CERTAIN DAMAGES STATED HEREIN ARE REFLECTED IN THE PRICING OF THE SERVICES AND AGREED UPON BY CUSTOMER AND ARE AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAINING BETWEEN THE PARTIES.
11.3. CHARTS; GRAPHICS. CERTAIN CHARTS UTILIZE SIMULATED RETURNS ASSOCIATED WITH PROPRIETARY RISK FACTORS WHICH HAVE BEEN CREATED USING VARIOUS INDICES AND PROPRIETARY MULTI-FACTOR ANALYSIS, AND THEREFORE DO NOT REFLECT ACTUAL PERFORMANCE. HYPOTHETICAL PERFORMANCE IS BEING SHOWN FOR ILLUSTRATIVE PURPOSES ONLY AND HAS INHERENT LIMITATIONS INCLUDING THE BENEFIT OF HINDSIGHT, AND MAY NOT REFLECT THE EFFECT THAT MATERIAL ECONOMIC AND MARKET FACTORS WOULD HAVE HAD ON ACTUAL INVESTMENT DECISIONS. HYPOTHETICAL PERFORMANCE IS UNAUDITED AND SUBJECT TO CHANGE. THERE CAN BE NO ASSURANCE ANY SUCH HYPOTHETICAL PERFORMANCE WILL ULTIMATELY BE REALIZED. THE ACTUAL RESULTS DEPEND ON A VARIETY OF FACTORS WHICH MAY BE OUTSIDE THE CONTROL OF ICAPITAL. NO REPRESENTATION IS BEING MADE AS TO THE LIKELIHOOD THAT SUCH HYPOTHETICAL RETURNS WILL BE ACHIEVED.
11.4 DISCLAIMERS. ANY ANALYSIS PROVIDED VIA THE PORTFOLIO INTELLIGENCE SERVICES IS NOT INTENDED TO MEET THE INVESTMENT OBJECTIVES OR NEEDS OF SPECIFIC INDIVIDUALS OR ACCOUNTS, AND IT IS NOT INTENDED FOR INDIVIDUAL INVESTOR DISTRIBUTION. ACCORDINGLY, NOTHING ON THE SITE OR THE PORTFOLIO INTELLIGENCE SERVICES SHOULD BE CONSTRUCTED AS A SOLICITATION, OFFER, OR RECOMMENDATION TO ACQUIRE OR DISPOSE OF ANY INVESTMENT OR TO ENGAGE IN ANY OTHER TRANSACTION, AND NOTHING CONTAINED THEREIN CONSTITUTES INVESTMENT ADVICE. ICAPITAL DOES NOT RENDER OR OFFER TO RENDER PERSONAL INVESTMENT ADVICE OR FINANCIAL PLANNING ADVICE THROUGH THIS SITE OR THE PORTFOLIO INTELLIGENCE SERVICES. ICAPITAL’S SPECIFIC ADVICE IS GIVEN ONLY WITHIN THE CONTEXT OF ICAPITAL’S WRITTEN CONTRACTUAL AGREEMENTS WITH EACH ICAPITAL CLIENT. NOTHING IN THIS AGREEMENT OR THE ARRANGEMENTS CONTEMPLATED BY IT WILL BE DEEMED TO CREATE A CONTRACTUAL, FIDUCIARY, INVESTMENT ADVISORY, BROKERAGE OR OTHER RELATIONSHIP BETWEEN ANY CLIENT OF CUSTOMER AND ICAPITAL FOR ANY PURPOSE, INCLUDING UNDER THE INVESTMENT ADVISERS ACT OF 1940, AS AMENDED, THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED, OR OTHER APPLICABLE LAWS, RULES OR REGULATIONS. CUSTOMER WILL BE SOLELY RESPONSIBLE FOR MANAGING THE FINANCIAL ACCOUNTS OF EACH OF CUSTOMER’S CLIENTS IN ACCORDANCE WITH ANY AGREEMENTS BETWEEN CUSTOMER AND CUSTOMER’S CLIENT AND ALL APPLICABLE, LAWS, RULES AND REGULATIONS. ICAPITAL WILL HAVE NO OBLIGATION TO SUPERVISE OR MONITOR ANY ADVICE OR OTHER SERVICES PROVIDED BY CUSTOMER TO CUSTOMER’S CLIENTS. ALL INVESTMENTS INVOLVE RISK AND MAY LOSE VALUE. THE VALUE OF AN INVESTMENT CAN DECREASE DEPENDING UPON MARKET CONDITIONS. MODEL PERFORMANCE DOES NOT REFLECT THE RESULTS OF ACTUAL TRADING AND MAY NOT REFLECT THE IMPACT THAT MATERIAL ECONOMIC AND MARKET FACTORS MIGHT HAVE HAD ON ICAPITAL’S DECISION-MAKING IF ACTUALLY MANAGING A CUSTOMER’S MONEY. THE INVESTMENTS MADE BY THE INVESTMENT FUNDS AND OTHER PRODUCTS INCLUDED IN ANY MODEL PORTFOLIO WERE NOT MADE IN THE CONTEXT OF A SINGLE INVESTMENT PROGRAM WITH COORDINATED OBJECTIVES, GUIDELINES, AND RESTRICTIONS. ACCORDINGLY, THERE CAN BE NO ASSURANCE THAT AN INVESTMENT IN THE INVESTMENT FUNDS OR PRODUCTS INCLUDED IN ANY MODEL PORTFOLIO WOULD PRODUCE THE RESULTS INDICATED. BEFORE PURCHASING THE SHARES OF ANY INVESTMENT FUND, READ THE FUND’S PROSPECTUS OR OFFERING MATERIALS.
11.5. Conflicts of Interest. Customer acknowledges and agrees that the model portfolios provided through the Portfolio Intelligence Services may include, or consist exclusively of, products advised by iCapital and, accordingly, iCapital has a conflict of interest, as an investment in such iCapital products or funds will increase compensation to iCapital. iCapital has an incentive to provide model portfolios that contain iCapital funds or products that would result in higher levels of compensation being paid to iCapital than other funds or products not advised by iCapital or for which iCapital would charge lower fees or expenses. Customer further acknowledges and agrees that Customer will exercise its own judgment with respect to any investment recommendation or decision and, in Customer’s sole discretion, may include in any model portfolio products that are not advised by iCapital and/or deviate from any model portfolio in making investment recommendations or decisions on behalf of Customer’s clients
12 Miscellaneous
12.1. Assignment. Neither party may assign this Agreement or otherwise transfer any right or obligation under this Agreement, without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, either party may assign this Agreement in its entirety to an acquirer of all or substantially all of the assets or equity of such party to which this Agreement relates, whether by merger, asset sale, or otherwise so long, in the event of an assignment by Customer, as all Fees then due and payable to iCapital have been paid. Any attempt by a party to assign or transfer its rights or obligations under this Agreement other than as permitted by this Section 12.1 shall be void and of no effect. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns. iCapital may employ subcontractors in performing its duties under this Agreement.
12.2. Notices. Except as otherwise expressly permitted in this Agreement, notices under this Agreement shall be in writing and shall be deemed to have been given (i) five (5) business days after mailing if sent by registered or certified U.S. mail, (ii) when personally delivered, or (iii) one (1) business day after deposit for overnight delivery with a recognized courier for U.S. deliveries (or three (3) business days for international deliveries). Notwithstanding the forgoing, iCapital may provide any and all notice required to Customer under this Agreement via electronic communication (e.g., email) and such electronic communication shall be deemed to have been given one (1) minute after being sent from iCapital. iCapital may also provide notice of any updates to the terms of this Agreement or to any Documentation or updated Package pricing by posting the same to the Site.
12.3. Force Majeure Event. If the performance of this Agreement or any obligation hereunder (other than obligations of payment) is prevented, delayed or restricted by reasons beyond the reasonable control of a party, including acts of God, pandemic, labor disputes or other industrial disturbances, fire, explosion, electrical or power outages, utilities or other telecommunications failures, earthquake, flood, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism (including cyber terrorism), war, computer related attacks or hacking, acts or omissions of Internet traffic carriers, acts or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the provision of the Portfolio Intelligence Services) (each, a “Force Majeure Event”), the party so affected shall be excused from such performance and liability to the extent of such prevention, delay or restriction.
12.4. Equitable Relief. The parties agree that a material breach by Customer of Section 8 (Confidentiality) or Section 3.3 (Restrictions) would cause irreparable injury to iCapital for which monetary damages alone would not be an adequate remedy, and therefore iCapital shall be entitled to equitable relief in addition to any other remedies it may have hereunder or at law, without the requirement of posting bond or proving actual damages.
12.5. Changes to These Terms. iCapital reserves the right to change or modify the terms of this Agreement, in whole or in part, at any time in its sole discretion upon notice to Customer by electronic means, including by the posting of the updated Agreement to the Site. Any changes or modifications to this Agreement will be effective immediately upon the posting of the revisions to the Site and Customer waives any right to receive specific written notice of such changes. Customer’s continued use of the Portfolio Intelligence Services following the posting of revised terms of use constitutes its acceptance of the changes. Notwithstanding the foregoing, Customer may terminate this Agreement by providing written notice to iCapital at any time within 90 days of the effective date of the change if it does not agree with any changes. In such event, Customer will receive a pro rata refund of any unused Fees for the then-current Term.
12.6. Entire Agreement. This Agreement, together with any documents incorporated herein by reference, contains the entire agreement of the parties with respect to the subject matter hereof and supersedes all previous oral and written communications, representation, understandings, and agreements by the parties concerning the subject matter of this Agreement. No terms, provisions or conditions contained in any purchase order, sales confirmation, or other business form that Customer may use in connection with the transactions contemplated by this Agreement will have any effect on the rights or obligations of the parties or will otherwise modify this Agreement. If there is any conflict between the terms of this Agreement and any Order, the terms of this Agreement shall control, unless iCapital and Customer expressly agree otherwise in the applicable Order or other document signed by both parties by specific reference to this Section and the Section(s) of this Agreement that are modified.
12.7. Publicity; Communications. During the term of this Agreement, iCapital may include Customer’s name and logo in its customer lists, marketing materials, and Site. To the extent Customer provides standard trademark usage guidelines, iCapital shall use Customer’s name and logo in accordance with such guidelines. Customer hereby acknowledge and agree that iCapital may contact Customer via email or telephone (inclusion SMS/text messaging) to market other products or services to Customer.
12.8. Government End User. Customer represents and warrants to iCapital that Customer is not a U.S. government entity and this Agreement shall not be subject, under any condition, to the U.S. Federal Acquisition Regulations.
12.9. Domestic Use. Customer agrees to only use, and shall ensure each Authorized User only uses, the Portfolio Intelligence Services from within the United States of America.
12.10. Independent Contractors, No Third-Party Beneficiaries. The parties have the status of independent contractors, and nothing in this Agreement nor the conduct of the parties will be deemed to place the parties in any other relationship. Except as provided in this Agreement, neither party shall be responsible for the acts or omissions of the other party or the other party’s personnel. This Agreement shall not create any rights or benefits to parties other than iCapital and Customer. No third party shall have the right to rely on the Portfolio Intelligence Services.
12.11. Governing Law, Attorneys’ Fees, and Severability. This Agreement is governed by the laws of the State of New York, excluding any of its conflict of law principles that would apply laws of another jurisdiction, and the exclusive venue for any dispute relating to this Agreement shall be the courts located in New York, New York. In any court action at law or equity, which is brought by one of the parties to enforce or interpret the provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys’ fees, in addition to any other relief to which that party may be entitled. The United Nations Convention on Contracts for the International Sale of Goods does not apply. If any term of this Agreement is held to be invalid or unenforceable, that term shall be reformed.
12.12. Interpretation. For purposes of interpreting this Agreement, (i) unless the context otherwise requires, the singular includes the plural, and the plural includes the singular; (ii) unless otherwise specifically stated, the words “herein,” “hereof,” and “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular section or paragraph; (iii) the words “include” and “including” will not be construed as terms of limitation, and will therefore mean “including but not limited to” and “including without limitation”; (iv) unless otherwise specifically stated, the words “writing” or “written” mean preserved or presented in retrievable or reproducible form, whether electronic (including email but excluding voice mail) or hard copy; and (v) the captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.