Asset Vantage Software Licensing Agreement

Asset Vantage provides the software solely on the terms and conditions set forth in this agreement and on the condition that licensee accepts and complies with them.  By entering into this agreement licensee agrees to be legally bound by its terms and represents and warrants that licensee: (I) is of legal age to enter into a binding agreement and (ii) the person signing has the right, power and authority to enter into this agreement on behalf of licensee and bind licensee to its terms.

1. Definitions: For purposes of this Agreement, the following terms have the following meanings:
“Authorized Users” means the individual persons who are officers, employees or advisors to the Licensee (or who are Families or CPAs to Families) expressly authorized to use the Software by the Licensee pursuant to the license granted under this Agreement, provided that a User License may be reassigned from time to time by Licensee to a new Authorized User who is replacing a former Authorized User who is no longer permitted to use the Software.

“Documentation” means user manuals, technical manuals and any other materials made available by Company, in electronic or other form, that describe the operation, use or technical specifications of the Software.

“Licensee” has the meaning set forth in the preamble.

“License Fees” means the license fees, including all taxes thereon, paid by Licensee for the license granted under this Agreement.

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.

“Company” has the meaning set forth in the preamble.

“Person” means an individual, corporation, partnership, joint venture, limited liability company, governmental authority, unincorporated organization, trust, association or other entity.

“Personal Information” means any information that Company collects, receives or obtains, from or on behalf of Licensee or any Authorized User that does or can identify a specific individual or by or from which a specific individual may be identified, contacted or located, such as the individual’s name, address, social security number, and any other information relating to an identified or identifiable individual. Personal Information includes, without limitation, all “nonpublic personal information” as defined under the Gramm-Leach-Bliley Act (15 U.S.C. § 6801 et seq.), and all “protected health information” as defined under the Health and Insurance Portability and Accountability Act of 1996 (42 U.S.C. § 1320d), and all rules and regulations issued under any of the foregoing.

“Software” means the software product made available to Licensee on a software as a service (SaaS) basis for which Licensee is purchasing a license, being Asset Vantage Family Office Edition

“Term” has the meaning set forth in Section 9.

“Third Party” means any Person other than Licensee or Company.

2. License Grant and Scope: Subject to and conditioned upon Licensee’s material compliance with all terms and conditions set forth in this Agreement, Company hereby grants to Licensee a non-exclusive, non-transferable, non-sub-licensable, limited license during the Term to use, solely by and through its Authorized Users, the Software and Documentation, solely as set forth in this Section 2 and subject to all conditions and limitations set forth in Section 3 or elsewhere in this Agreement and conditional upon the payment of fees as per and on the terms set out in Appendix 1 to this Agreement. This license grants Licensee the right, to use and access the Software in accordance with this Agreement and the Documentation, solely as set forth in the Documentation and this Agreement.

3. Use Restrictions: Licensee shall not, and shall require its Authorized Users not to, directly or indirectly:

a. provide any other person, other than Authorized Users, with access to or use of the Software or Documentation;

b. modify, translate, adapt or otherwise create derivative works or improvements, whether or not patentable, of the Software or Documentation or any part thereof;

c. combine the Software or any part thereof with, or incorporate the Software or any part thereof in, any other programs;

d. reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain access to the source code of the Software or any part thereof;

e. remove, delete, alter or obscure any trademarks or any copyright, trademark, patent or other intellectual property or proprietary rights notices provided on or with the Software or Documentation, including any copy thereof;

f. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer or otherwise make available the Software, or any features or functionality of the Software, to any Third Party (other than Authorized Users) for any reason;

g. use the Software or Documentation in violation of any law, regulation or rule; or

h. use the Software or Documentation for purposes of developing or assisting a third party in developing a competing software or platform, product or service or any other purpose that is to the Company’s commercial disadvantage.

4. Responsibility for Use of Software: Licensee is responsible and liable for all uses of the Software and Documentation through access thereto provided by Licensee, directly or indirectly. Specifically, and without limiting the generality of the foregoing, Licensee is responsible and liable for all actions and failures to take required actions with respect to the Software and Documentation by its Authorized Users or by any other Person to whom Licensee or an Authorized User may provide access to or use of the Software and/or Documentation, whether such access or use is permitted by or in violation of this Agreement. If an audit or any of the measures reasonably taken or implemented under this Agreement determines that the Licensee’s use of the Software is in excess of the Licenses paid for in accordance with the terms of this Agreement then:

a. Licensee shall, within thirty (30) days following the date of Company’s written notification thereof, pay to Company the retroactive License Fees for such excess use and, unless Company terminates this Agreement pursuant to this Agreement obtain and pay for a valid license to bring Licensee’s use into compliance with this Agreement. In determining the Licensee Fee payable pursuant to the foregoing, unless Licensee can demonstrate otherwise by documentary evidence, all previously unknown excess use of the Software shall be deemed to have commenced on the commencement date of this Agreement or, if later, the completion date of any audit previously conducted by Company hereunder and continued uninterrupted thereafter, and (b) the rates for such licenses shall be determined without regard to any discount to which Licensee may have been entitled had such use been properly licensed prior to its commencement (or deemed commencement).

5. Support Services.

a. Subject to Section 5.b., the license granted hereunder entitles Licensee to the basic software support services described in the Pricing Proposal for the duration of the license.

b. Company has no obligation to provide support services:

i. if Licensee is in material breach under this Agreement; or
ii. for any Software that has been modified other than by Company, or that is being used with any hardware, software, configuration or operating system not specified in the Documentation.

6. Collection and Use of Information:

a. Licensee acknowledges that Company may, directly or indirectly through the services of Third Parties, collect and store information regarding use of the Software and about equipment on which the Software is used or through which it otherwise is accessed and used, through the provision of support services.

b. Licensee agrees that the Company may use such information for any purpose related to any use of the Software by Licensee or on Licensee’s equipment, including but not limited to:

i. improving the performance of the Software; and
ii. verifying Licensee’s compliance with the terms of this Agreement and enforcing the Company’s rights, including all Intellectual Property Rights in and to the Software.

7. Confidential Information: For the purposes of this Agreement, “Confidential Information” shall include all nonpublic information disclosed by the disclosing party to the receiving party, or the parties’ respective officers, directors, employees, agents, subsidiaries, business partners, assigns, or contractors that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be considered confidential. At a minimum, Confidential Information shall include, without limitation, all proprietary or confidential information, documents, data, or materials of any type or kind, including Personal Information, financial information, information related to a party’s business dealings and investments, and any other data (including but not limited to Personal Information) stored by Licensee in or uploaded by Licensee to the Software. The Parties agree to keep Confidential Information in strict confidence and not to release any Confidential Information to any third parties and to not use the disclosing Party’s Confidential Information for its own purpose or for the benefit of any third party except as expressly permitted in this Agreement. The receiving party shall treat the Confidential Information with at least the degree of care and protection with which it treats its own proprietary and confidential information of a like nature, but in any event with no less than reasonable care and protection, which includes, but is not limited to (i) limiting disclosure to employees who have a need to know such Confidential Information and instructing such employees not to release the information to unauthorized third parties and (ii) taking reasonable security measures to protect such information. Upon any termination, cancellation, or rescission of this Agreement, a receiving party shall: (i) surrender and deliver all Confidential Information of the other party, including all copies thereof; or (ii) destroy the Confidential Information and all copies thereof to the extent reasonably practicable, and provide satisfactory evidence of such destruction to the disclosing party within one (1) month following termination. Information will not be deemed Confidential Information if it: (a) is or becomes generally available to the public on a nonconfidential basis other than as a result of any breach of this Section 7 by the receiving Party, (b) is or becomes available to the receiving Party on a non-confidential basis from a source (other than the disclosing Party), which source is not prohibited from disclosing such Confidential Information to the receiving Party, (c) was known to the receiving Party on a non-confidential basis prior to its disclosure by the disclosing Party pursuant to this Agreement, or (d) is developed by the receiving Party independently and without benefit of the Confidential Information received pursuant to this Agreement. The Parties agree that as between the disclosing Party and the receiving Party, all Confidential Information remains the sole property of the disclosing Party. In the event that the receiving Party or anyone to whom the receiving Party transmits the Confidential Information pursuant to this Agreement is requested or becomes legally compelled (by oral questions, interrogatories, depositions, request for information or documents, subpoena, criminal or civil investigative demand, or similar process) to disclose any of the Information, the receiving Party will (to the extent not prohibited by law) provide the disclosing Party with prompt written notice and shall co-operate (at the expense of the disclosing party)with the disclosing party, should the disclosing party choose to avail of any legal remedy to prevent such disclosure, including the initiation of legal proceedings to prevent such disclosure. Further, in case the disclosing party is not successful in removing the requirement of disclosure, then the receiving party will furnish only that portion of the Confidential Information which is legally required. In the event of a security breach that materially threatens Confidential Information, receiving party shall notify disclosing party of a security breach as soon as practicable, but no later than twenty four (24) hours after Company becomes aware of it, and provide disclosing party with the name and contact information for an employee of receiving party who shall serve as disclosing party’s primary security contact and shall be available to assist disclosing Party during normal business hours as a contact in resolving obligations associated with such security breach.

Receiving Party shall take reasonable steps to remedy any such security breach and prevent any further security breach at receiving Party’s expense in accordance with applicable privacy rights, laws, regulations and standards. Receiving party agrees that it shall not inform any third party of any such security breach, except as required by law, without first obtaining disclosing party’s prior written consent, other than to inform a complainant that the matter has been forwarded to Licensee’s legal counsel, provided that in case of such security breach the Company may inform the relevant law enforcement or security agency as may be required.

8. Intellectual Property Rights: Licensee acknowledges and agrees that the Software and Documentation are provided under license, and not sold, to Licensee. Licensee does not acquire any ownership interest in the Software or Documentation under this Agreement or any other rights thereto other than to use the same in accordance with the license granted, and subject to all terms, conditions and restrictions, under this Agreement. Company reserves and retains its/their entire right, title and interest in and to the Software and all Intellectual Property Rights arising out of or relating to the Software. Licensee shall use commercially reasonable efforts to safeguard all Software from infringement, misappropriation, theft, misuse or unauthorized access. Licensee shall promptly notify Company if Licensee becomes aware of any violation of the Company’s Intellectual Property Rights in the Software and fully cooperate with Company in any legal action taken by Company (at Company’s sole expense) to enforce its Intellectual Property Rights.

9. Term and Termination:

a. This Agreement and the license granted hereunder shall remain in effect for the term set forth on the Order Form or until earlier/until terminated as set forth herein (the “Term”). The License is valid for 12 months from the date of activation unless otherwise indicated on the Order Form. This Agreement will renew automatically for another twelve month period at the expiration date unless the Licensee provides a written notice (by email or mail) of termination sixty (60) days prior to the date of expiry of the License.

b. Company may terminate this Agreement and license immediately, if Licensee materially breaches this Agreement.

c. Company may terminate this Agreement, effective immediately, if Licensee files, or has filed against it (and fails to obtain a dismissal within sixty (60) days thereof), a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver or custodian for a substantial part of its property.

d. Upon expiration or earlier termination of this Agreement, the license granted hereunder shall also terminate, and Licensee shall cease using and destroy (to the extent reasonably practicable) all copies of the Software and Documentation. No expiration or termination shall affect Licensee’s obligation to pay all Licensee Fees that may have become due before such expiration or termination, or entitle Licensee to any refund, in each case except as set forth in Section 10.c.

10. Limited Warranties, Exclusive Remedy and Disclaimer/Warranty Disclaimer:

a. Solely with respect to Software for which Company receives a License Fee, Company warrants that, for the term of the license, the Software will substantially contain the functionality described in the Documentation, and when properly accessed and used on a computer meeting the specifications set forth in, and operated in accordance with, the Documentation, will substantially perform in accordance therewith.

b. The warranties expressly set forth in this Section will not apply and will become null and void if Licensee materially breaches any provision of this Agreement, or if Licensee, any Authorized User or any other Person provided access to the Software by Licensee or any Authorized User, whether or not in violation of this Agreement:

i. installs or uses the Software on or in connection with any hardware or software not specified in the Documentation, provided that the warranties in this Section shall continue to apply to Software that is installed or used on any hardware, software, configuration or operating system in accordance with the Documentation; or
ii. misuses the Software, including any use of the Software other than as specified in the Documentation.

c. If, during the period specified in Section 10.a., any Software covered by the warranty set forth in such Section fails to perform substantially in accordance with the Documentation, and such failure is not excluded from warranty pursuant to Section 10.b., Company will, subject to Licensee’s promptly notifying Company in writing of such failure, at its sole option, either:

i. Use commercially reasonable efforts to repair the Software, provided that Licensee provides Company with all information Company reasonably requests to resolve the reported failure, including sufficient information to enable the Company to recreate such failure;
ii. Credit pro-rated portion of the License Fees paid for such Software during the period Licensee is unable to use the Software.
iii. The remedies set forth in this Section 10.c. are Licensee’s sole remedies and Company’s sole liability with respect to the warranties provided in this Section 10.a.

 d. The software and documentation are provided to licensee “as is” and with all faults and defects without warranty of any kind other than as expressly set forth in this section 10. Company, on its own behalf and on behalf of its affiliates expressly disclaims all warranties, whether express, implied, statutory or otherwise, with respect to the software and documentation, including all implied warranties of merchantability, fitness for a particular purpose, and warranties that may arise out of course of dealing, course of performance, usage or trade practice. Without limitation to the foregoing, the company provides no warranty or undertaking, and makes no representation of any kind that the licensed software will meet the licensee’s requirements, achieve any intended results, operate without interruption, meet any performance or reliability standards or be error free or that any errors or defects can or will be corrected.

11. Limitation of liability in no event will company or its affiliates, be liable to licensee or to any third party for any use, interruption, delay or inability to use the software, lost revenues or profits, delays, interruption or loss of services, business or goodwill, loss or corruption of data, loss resulting from system or system service failure, malfunction or shutdown, failure to accurately transfer, read or transmit information, failure to update or provide correct information, system incompatibility or provision of incorrect compatibility information, or breaches in system security, or for any consequential, incidental, indirect, exemplary, special or punitive damages, whether arising out of or in connection with this agreement, breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not licensee was advised of the possibility of such damages.

In no event will company’s and its affiliates’, collective aggregate liability under or in connection with this agreement or its subject matter, under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability and otherwise, exceed the total amount paid to the company under this agreement for immediately preceding three month period. The limitations set forth in this section shall apply even if the licensee’s remedies under this agreement fail of their essential purpose.

12. Export Regulation: The Software and Documentation may be subject to US export control laws, including the US Export Administration Act and its associated regulations. The Licensee shall not, directly or indirectly, export, re-export or release the Software or Documentation to, or make the Software or Documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. The Licensee shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval),
prior to exporting, re-exporting, releasing or otherwise making the Software or Documentation available outside the US.

13. Miscellaneous:

a. This Agreement is governed by and construed in accordance with the internal laws of United States of America without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any other jurisdiction. Any disputes arising from or related to this Agreement or any Company Software or service shall be subject to the exclusive jurisdiction and venue of the courts situated in New York, and both Parties hereby consent to such jurisdiction and venue.

b. Neither Party will be responsible or liable to the other Party, or deemed in default or breach hereunder by reason of any failure or delay in the performance of its obligations hereunder where such failure or delay is due to strikes, labor disputes, civil disturbances, riot, rebellion, invasion, epidemic, hostilities, war, terrorist attack, embargo, natural disaster, acts of God, flood, fire, sabotage, fluctuations or non-availability of electrical power, heat, light, air conditioning or Licensee equipment, loss and destruction of property or any other circumstances or causes beyond such Party’s reasonable control.

c. All notices, requests, consents, claims, demands, waivers and other communications hereunder shall be in writing and shall be deemed to have been given: (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by e-mail (with confirmation of transmission) if sent during normal business hours of the recipient, and on the next business day if sent after normal business hours of the recipient; or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid.

d. This Agreement constitutes the sole and entire agreement between Licensee and Company with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.

e. Licensee shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Company’s prior written consent, which consent Company may give or withhold in its sole discretion. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation or reorganization involving Licensee (regardless of whether Licensee is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations or performance under this Agreement for which Company’s prior written consent is required. No delegation or other transfer will relieve Licensee of any of its obligations or performance under this Agreement. Any purported assignment, delegation or transfer in violation of this Section 12.e. is void. Company may assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without Licensee’s consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.

f. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

g. This Agreement may only be amended, modified or supplemented by an agreement in writing signed by each party hereto. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

h. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein: (x) to Sections and Exhibits refer to the Sections of, and Exhibits attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.