THIS SUBSCRIPTION AGREEMENT (THE “AGREEMENT”) IS A LEGAL AGREEMENT BETWEEN THE LEGAL ENTITY SPECIFIED ON THE REGISTRATION PAGE (OR IF NO LEGAL ENTITY IS SPECIFIED, THEN THE INDIVIDUAL DESIGNATED ON THE REGISTRATION PAGE AND ACCEPTING THIS AGREEMENT) (“SUBSCRIBER”) AND TRUELYTICS ANALYTICS, LLC (“TRUELYTICS”) AND CONTAINS TERMS AND CONDITIONS THAT GOVERN SUBSCRIBER’S ACCESS TO AND USE OF THE TRUELYTICS PLATFORM AND TRUELYTICS PROCESSED DATA. BY CLICKING “I ACCEPT”, SUBSCRIBER AGREES THAT (I) SUBSCRIBER’S USE OF THE TRUELYTICS PLATFORM WILL BE GOVERNED BY THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT, (II) THE INDIVIDUAL DESIGNATED ON THE REGISTRATION PAGE IS THE INDIVIDUAL ACCEPTING THIS AGREEMENT AND HE/SHE HAS THE LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF THE LEGAL ENTITY SPECIFIED ON THE REGISTRATION PAGE, AND (III) ALL INFORMATION PROVIDED ON THE REGISTRATION PAGE BY THE INDIVIDUAL ACCEPTING THIS AGREEMENT AND BY SUBSCRIBER TO TRUELYTICS IN CONNECTION WITH THIS AGREEMENT IS ACCURATE, CURRENT AND COMPLETE. SUBSCRIBER AGREES TO NOTIFY TRUELYTICS OF ANY CHANGES TO THE INFORMATION PROVIDED, PROMPTLY AND IN WRITING.
Intending to be legally bound hereby, Truelytics and Subscriber agree to the following terms and conditions:
1.1 “Advisor” means a professional financial advisor currently registered either with the State Securities Exchange Commission or Federal Securities Exchange Commission as an “investment adviser” or with FINRA as a “registered representative.”
1.2 “Advisor Data” means any data respecting an Advisor.
1.2 “Authorized User” means a user assigned by Truelytics a User ID and Password for any of the Services according to the role and/or access level associated with the User ID.
1.3 “Client” means a customer of the Advisor.
1.4 “Client Data” means any data respecting a Client which an Advisor has received in relation to a transaction or service or has otherwise been obtained by the Advisor.
1.5 “De-Identified” means any data in which all personal identifiers have been removed such that there is no reasonable basis to believe nor is there any actual knowledge that such information can be used to identify an individual.
1.6 “Fees” means the fees payable for the Services.
1.7 “Firm Data” means any data respecting a practicing entity (i.e., a “Firm”) of Advisors.
1.8 “Truelytics Platform” means (i) Truelytics’ proprietary code, application programs and other technology used to provide the Services, including, but not limited to, all associated user interfaces and knowledge bases and (ii) such other customized tools for Subscriber to access or use the Truelytics Processed Data.
1.9 “Truelytics Processed Data” means any data created by Truelytics as a result of De-Identifying, normalizing, analyzing, mapping, aggregating, or other processing of the Subscriber Data.
1.10 “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, trademarks, data, content, processes, prototypes and concepts, plans, ideas, inventions (whether patentable or unpatentable), discoveries, findings, conclusions, concepts, improvements, documentation, web sites, and any other intellectual property rights recognized in any country or jurisdiction in the world.
1.11 “Services” means use of the products and services provided by Truelytics through its Truelytics Platform by Subscriber for the Subscription Purpose, including its website located at www.truelytics.com and such other websites and/or applications designated or offered by Truelytics.
1.12 “Subscriber Data” means any Advisor Data, Firm Data, and/or Client Data provided to Truelytics by Subscriber under this Agreement.
1.13 “Subscription Purpose” means use of the Services for providing financial advisor practice analysis services, including, without limitation, tools and information for practice valuations, assessments, benchmarking, planning, and other analysis by Subscriber.
2. Subscriber Data and Subscriber Processed Data
2.2 Subscriber Data Access. Subscriber hereby grants to Truelytics a non-exclusive, fully-paid up, worldwide right and license to use and create derivative works of the Subscriber Data, including generating Truelytics Processed Data. Truelytics hereby agrees not to disclose or use the Subscriber Data, and the Client Data in particular, other than to carry out the Subscription Purpose.
2.3 Truelytics Processed Data Access. During the term, Truelytics hereby grants Subscriber, for the Subscription Purpose and for Subscriber’s own internal business purposes, (i) a non-exclusive, non-transferrable, fully-paid up, worldwide right and license to the Truelytics Processed Data and (ii) a right to use the Truelytics Platform to access the Truelytics Processed Data.
2.4 Ownership and Use of Truelytics Processed Data. Truelytics owns and retains all right, title and interest (including Intellectual Property rights) with respect to the Truelytics Processed Data, including the right to use and distribute Truelytics Processed Data that has been De-Identified (the “Truelytics De-Identified Data”).
2.5 No Other Rights. No rights or licenses are granted or conveyed except access rights as expressly set forth in this Section 2, whether expressly, by implication, estoppel, reliance or otherwise, all of which are specifically excluded and disclaimed. Without limiting the generality of the foregoing, this Agreement does not grant to Subscribers a license under to any Truelytics Intellectual Property or to reproduce, distribute, publicly display, or create derivative works of, Truelytics Intellectual Property, and any such license rights shall be granted pursuant to a separate written license agreement.
3. Use of the Application Services.
3.1 Availability of Application Services. Subject to the terms and conditions of this Agreement, commencing on the Effective Date and continuing throughout the remainder of the Term (as defined in Section 6.1), Truelytics agrees to make the Services available for use by Authorized Users according this Agreement. Truelytics’s service level standards for providing the Services include Advisor Level Access, Administrative Level Access, and Support Level Access (the “Service Level Account”). The number of seats for each Service Level Account will be specified on the Confirmation Page, as described in Section 5.1. The Service Level Standards may be amended by Truelytics from time to time with written notice to Subscriber. Each Authorized User shall be assigned a unique username-password combination by Truelytics to access and use the Application Services consistent with such Authorized User’s role. Subscriber shall provide Truelytics with all relevant information necessary to enable Truelytics to create a profile for each Authorized User, and Subscriber shall be solely responsible for updating such information regarding such Authorized Users. Each Authorized User will be bound by this Terms of Service Agreement in using the Services.
3.2 Transfer and other Restrictions. Subscriber hereby agrees that Subscriber will not use the Application Services for any purpose other than the Subscription Purpose and will not permit any other person or entity to gain access to or use the Services or the Truelytics Platform unless such person or entity is an Authorized User, and in such case, only in such Authorized User’s permitted role and/or access level. Subscriber shall not attempt to interfere with or disrupt the Services or the Truelytics Platform or attempt to gain unauthorized access to any other services, systems or networks owned, maintained or operated by Truelytics or its vendors. Subscriber shall not copy, relocate, move, sublicense, rent, timeshare, loan or lease the Services, Truelytics Platform, Truelytics Processed Data, or any other Truelytics Intellectual Property, or otherwise distribute to, or operate the Services for the benefit of, any third party. Subscriber shall not: (i) alter or remove any confidential or proprietary notice or legend from any Services, Truelytics Platform, Truelytics Processed Data, or any other Truelytics Intellectual Property; or (ii) attempt to decompile, disassemble or reverse engineer the Services, Truelytics Platform, Truelytics Processed Data, or any other Truelytics Intellectual Property. Subscriber acknowledges and agrees that Subscriber is responsible for the actions of its employees and contractors in connection with the Services. Subscriber further acknowledges and agrees that Subscriber shall be responsible for safeguarding (and ensuring that employees and contractors safeguard) the User IDs and passwords for access to the Services against unauthorized access.
3.3 Backup and Restore. In the event of any loss or corruption of the Subscriber Data and/or Truelytics Processed Data provided to Subscriber, Truelytics shall use commercially reasonable efforts to restore the lost or damaged Subscriber Data and/or Truelytics Processed Data provided to Subscriber. Truelytics’s efforts to restore lost or corrupted Subscriber Data and/or Truelytics Processed Data provided to Subscriber shall constitute Truelytics’s sole liability and Subscriber’s sole and exclusive remedy in the event of any loss or corruption of the Subscriber Data and/or Truelytics Processed Data provided to Subscriber, however caused. Subscriber acknowledges that the Truelytics Platform is not a backup or failover data service for the Subscriber Data and/or Truelytics Processed Data. Truelytics shall have no obligation to maintain copies of any Subscriber Data and/or Truelytics Processed Data upon the expiration or termination of this Agreement and may delete all Subscriber Data and/or Truelytics Processed Data upon expiration or termination of this Agreement.
3.4 Support. Truelytics shall provide basic technical support services to the Subscriber with respect to the Services. If in the sole opinion of Truelytics, the number of technical support requests becomes excessive, then Truelytics reserves the right to limit such requests or invoice Subscriber for the additional support.
3.5 Modification of Agreement. Subscriber acknowledges and agrees that Truelytics may amend this Agreement from time to time with written notice to Subscriber. The amended Agreement will be effective on the date indicated in the notice. The amended Agreement may be posted or otherwise provided within the Truelytics Platform. In such case, in order for Subscriber and any other Authorized Users to be able to continue to use the Services, they will be required to accept such amended Agreement by clicking on the “I have read and agree to the above modified and amended Terms of Service Agreement” button at the end of any such modified or amended Agreement. In addition, Subscriber’s and any Authorized User’s continued use of the Application Services after notice of a change indicates Subscriber’s acceptance of and consent to the terms of the amended Agreement.
3.7 Acknowledgment. Subscriber hereby acknowledges and agrees that the Services, Truelytics Platform, Truelytics Processed Data and all other Truelytics Intellectual Property contain confidential and proprietary information belonging exclusively to Truelytics and its licensors (“Confidential and Proprietary Information”). Confidential and Proprietary Information does not include: (i) information already known or independently developed by Subscriber outside the scope of this Agreement without use of the Confidential and Proprietary Information; (ii) information already in the public domain, or which becomes generally available to the public, through no wrongful act of Subscriber; (iii) information received by Subscriber from a third party who was free to disclose such information; or (iv) information independently developed by Subscriber without the use of or access to the Confidential and Proprietary Information.
4. Intellectual Property. Subscriber hereby acknowledges that, as between the parties, Truelytics and its licensors own all right, title and interest in and to the Application Services and any related documentation, and all Intellectual Property Rights therein or relating thereto (collectively the “Truelytics Intellectual Property”). Truelytics hereby grants to each Authorized User, during the Term, a worldwide, non-exclusive, non-transferable license to use the Truelytics Intellectual Property in connection with their use of the Services for the Subscription Purpose in accordance with this Agreement. Nothing in this Agreement shall be construed to grant any Authorized User any right, title or interest in or to the Truelytics Intellectual Property except as licensed hereunder.
5. Fees and Taxes
5.1 Fees. Subscriber shall pay to Truelytics the subscription fees set forth on order confirmation page (the “Confirmation Page”). Truelytics shall calculate and bill Fees and other charges due to Subscriber monthly based on the terms, conditions, and rates set forth on Confirmation. Truelytics shall invoice the Subscriber monthly at a billing address set forth on the Confirmation. Payments for all amounts specified in the invoice are due to Truelytics within thirty (30) days after the invoice date. Subscriber authorizes Truelytics to charge the credit card listed on the Confirmation on or about the 1st of each month for any charges that become payable under this Agreement. Subscriber agrees to notify Truelytics within ten (10) days of any change to the credit card assigned to this account. A certain number of Support Level seats will be provided per paid Advisor Level seats as provided on the Confirmation Page.
5.2 Payment. Truelytics shall invoice the Subscriber on an annual or monthly basis as selected by the Subscriber and provided on the Confirmation in accordance with Section 5.1, for the appropriate Fees due under this Agreement. Annual service Fees payable by the Subscriber are due prior to the commencement of each annual term. Monthly service Fees payable by the Subscriber will be due on the first day of each calendar month. Other Fees will be billed as incurred. All Fees will generally be paid to Truelytics by charging such Fees to the credit card account on any day during such month (the “Charge Date”). In the event that Truelytics has not collected full payment of Fees (excluding amounts disputed in good faith) within ten (10) business days after the charging Subscriber’s credit card, Truelytics shall send the Subscriber written notice of such delinquent amount. In the event that Truelytics has not collected full payment of such delinquent amount within thirty (30) days after giving notice of such delinquency to the Subscriber in accordance with this Section 5.2, Truelytics may, in its sole discretion, immediately suspend all Authorized Users’ access to and use of the Services and Truelytics Platform permanently or until such delinquent amount is paid.
5.3 Taxes. All fees stated or referred to in this Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges, other than taxes based on Truelytics’s net income (collectively, “Taxes”). If Truelytics is required to collect any such Taxes, then Truelytics will include those Taxes in its invoices. Subscriber shall be responsible for payment of all Taxes so stated on an invoice, and any related interest and/or penalties resulting from the Subscriber’s failure to pay any such Taxes when due.
6. Warranty Disclaimer. TRUELYTICS HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, THE TRUELYTICS PLATFORM, AND THE TRUELYTICS PROCESSED DATA. WITHOUT LIMITING THE FOREGOING, TRUELYTICS DISCLAIMS ANY REPRESENTATIONS OR WARRANTIES THAT THE SERVICES, THE TRUELYTICS PLATFORM, AND THE TRUELYTICS PROCESSED DATA WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. TRUELYTICS FURTHER DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SERVICES, THE TRUELYTICS PLATFORM, AND THE TRUELYTICS PROCESSED DATA AS TO NON-INFRINGEMENT, MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED AND FITNESS FOR A PARTICULAR PURPOSE.
7. Term and Termination.
7.1 Term. This Agreement shall commence on the Effective Date and shall continue thereafter for the period of one (1) year (the “Initial Term”). This Agreement shall automatically thereafter renew for like periods (each, a “Renewal Term”) unless this Agreement is terminated as provided herein. The Initial Term and the Renewal Terms are collectively referred to in this Agreement as the “Term”.
7.2 Termination. Either party may terminate this Agreement for any reason and at any time upon thirty (30) days’ written notice to the other party.
7.3 Termination for Cause. Truelytics may terminate this Agreement for cause only if an Authorized User breaches any obligations hereunder and fails to cure such breach or violation, if curable, within ten (10) days following Truelytics’s written notice thereof.
7.4 Rights Upon Termination. Upon termination of this Agreement for any reason, the access rights granted herein will terminate. Promptly upon termination of this Agreement, Subscriber shall, and shall cause each Authorized User to, cease using the Services.
7.5 Survival. Sections 1, 2.1, 5, 7.5, 7, 8, 9, and 10 shall survive any termination of this Agreement for any reason in accordance with their respective terms.
8. Indemnification and Exculpation. Subscriber agrees to, and shall, indemnify, defend and hold harmless Truelytics and its directors, members, partners, officers, agents, employees, successors and assigns from and against any and all claims, demands, suits, actions, judgments, damages, costs, losses, expenses (including reasonable attorneys’ fees and expenses) and other liabilities arising from, in connection with or related in any way to, directly or indirectly any (i) breach or alleged breach of this Agreement by Subscriber or any Authorized Users, (ii) Subscription Dispute, (iii) breach or alleged breach of any agreement between Subscriber and Clients, (iv) government enforcement actions and/or privacy law violation claims under the Laws.
9. Limitations of Liability.
9.1 IN NO EVENT SHALL TRUELYTICS, ITS MEMBERS, EMPLOYEES AND/OR AGENTS BE LIABLE TO SUBSCRIBER OR ANY AUTHORIZED USER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING UNDER THIS AGREEMENT OR IN RESPECT OF CLAIMS FOR PROFESSIONAL NEGLIGENCE, INCLUDING LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR COST OF SUBSTITUTE SERVICES, OR OTHER ECONOMIC LOSS, WHETHER OR NOT TRUELYTICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 EXCEPT FOR TRUELYTICS’S LIABILITY FOR BREACH OF SECTION 3.6, THE AGGREGATE LIABILITY OF TRUELYTICS, ITS MEMBERS, EMPLOYEES AND/OR AGENTS UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY SUBSCRIBER UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE ACCRUAL OF THE CLAIM OR ACTION.
9.3 Negotiation. The parties acknowledge that the limitations and exclusions contained in this Section 9 and elsewhere in this Agreement are reasonable and represent the parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement, and the payments made under this Agreement. Without limiting the generality of the foregoing, the parties acknowledge and agree that (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach of this Agreement, and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
10.1 Governing Law and Jurisdiction. The interpretation and performance of this Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Commonwealth of Pennsylvania without reference to conflicts of laws principles of any jurisdiction. Subscriber and Truelytics expressly agree that any action at law or in equity arising out of this Agreement shall be filed only in the local, state or federal courts with jurisdiction over Philadelphia County, Pennsylvania. The parties hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. Notwithstanding the foregoing, either party shall be entitled to seek injunctive relief to enforce the provisions of this Agreement in any court of competent jurisdiction.
10.2 Waiver. No waiver by either of the parties hereto of any failure by the other party to keep or perform any covenant or condition of this Agreement shall be deemed a waiver of any preceding or succeeding breach of the same or any other covenant or condition. In the event any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect.
10.3 Notices. All notices, including notices of address change, required or permitted to be sent under this Agreement shall be in writing and shall be sent to the addresses set forth at www.truelytics.com. The notices shall be deemed to have been given: (a) on the date actually delivered in person; (b) one (1) business day after deposit, charges prepaid, with a nationally-recognized overnight courier; or (c) three (3) business days following the date such notice was mailed by certified mail, returned receipt requested, postage prepaid.
10.4 Force Majeure. No party shall be liable under this Agreement by reason of any failure or delay in the performance of its obligations under this Agreement (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, failures of third party vendors, strikes, shortages, riots, insurrection, terrorism, explosions, acts of God, war, governmental action, labor conditions and material shortages (each a “Force Majeure Event”). Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance, provided that the party seeking relief under this Section 10.4 shall take all reasonable steps to mitigate the effects of such Force Majeure Event and shall resume its obligations hereunder as soon as practicable following cessation of the Force Majeure Event.
10.5 No Partnership. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between any of the parties. No party will have the power to bind any other party or to incur obligations on another party’s behalf without such other party’s prior written consent.
10.6 Parties to Agreement; Successors and Assigns. Upon Subscriber accepting this Agreement, Subscriber and Truelytics become party to and bound by the terms and conditions of this Agreement. This Agreement shall be binding upon the parties’ respective successors and permitted assigns. Subscriber may not assign this Agreement, and/or any of its rights and obligations hereunder, without the prior written consent of Truelytics and any such attempted assignment shall be void. Truelytics may assign this Agreement, in whole but not in part, without the consent of Subscriber.
10.7 Remedies. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
10.8 Counterparts. This Agreement may be executed in counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument.
10.9 Headings. The headings in this Agreement are for convenience of reference only and have no legal effect.
10.10 Entire Agreement. This Agreement, together with the exhibits, appendices and attachments hereto, constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement, including without limitation any Terms of Services on the Application Services web sites. This Agreement may only be modified or amended (a) in a writing signed by a duly authorized officer or individual of each party, or (b) Subscriber’s online acceptance of any updated version of this Agreement, or (c) by Subscriber’s continued use of the Services after this Agreement has been updated by Truelytics.