FDC Plan on Purpose (“FDC”) User Agreement
NOTICE ‑‑ READ these terms and
conditions carefully BEFORE ACCEPTING
THIS IS A LEGAL AGREEMENT BETWEEN EACH CUSTOMER (“CUSTOMER”, “YOU”, OR “YOUR”) THAT ACCEPTS THESE TERMS AND CONDITIONS (“AGREEMENT”) AND FDC. CLICKING “ACCEPT” BELOW INDICATES YOUR ACCEPTANCE OF THIS AGREEMENT.
If you are accepting this Agreement on behalf of a company or other legal entity, then you represent and warrant that you have the authority to bind such entity and its affiliates to this Agreement.
We may periodically update this Agreement, and, when updated, a revised copy will be posted on the FDC website. If the updates are material, then we may also directly notify you of the same. Your continued use of the Services after any such update shall constitute your assent to and acceptance of the updated Agreement in its entirety, and the revised Agreement shall govern your use of the Services thereafter.
This Agreement is effective between FDC and Customer as of the date of Customer’s acceptance of this Agreement (the “Effective Date”). The parties agree as follows:
1. DEFINITIONS. Capitalized terms will have the meanings set forth in this section or where they are elsewhere defined in this Agreement. Any term defined in the singular will have the corresponding definition in the plural (and vice versa):
1.1. “Account” means any account to access the Services created by FDC for Customer or by the Customer within the Services.
1.2. “Authorized Users” means any of Customer’s own clients or employees authorized by Customer to access the Services pursuant to Customer’s rights under this Agreement. The number of Authorized Users authorized by Company to access the Company Solution is set forth in the applicable Order Form.
1.3. “Business Hours” means the hours between 8:00 a.m. and 4:30 p.m. Central Time (US), Monday through Friday, except holidays recognized by Company.
1.4. “Confidential Information” means any non-public information of a party whether disclosed orally or in written or digital media, that is identified as “confidential” or with a similar legend at the time of such disclosure or that the receiving party knows or should have known is the confidential or proprietary information of the disclosing party.
1.5. “Customer Data” means any data, information or other content provided or submitted by or on behalf of Customer and/or its Authorized Users for use in connection with the Services.
1.6. “Documentation” means the then-current written materials as may be provided from time to time by FDC relating to the features, functions and use of the Services.
1.7. “Intellectual Property Rights” means any and all now known or hereafter existing rights in intellectual property, including (a) rights associated with works of authorship, including copyrights, mask work rights, and moral rights; (b) trademark, service mark, and trade dress rights; (c) trade secret rights and rights in proprietary information; (d) rights in inventions and ideas, patents, patent rights, design rights, and industrial property rights; (e) all other proprietary rights of every kind and nature; and (f) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world.
1.8. “Order Form” means the online order form between the parties setting forth Customer details.
1.9. “Personal Data” means any personal data about any living individual, or any other definition prescribed under applicable law.
1.10. “Services” means the access provided to Customer to FDC’s online software application, as more fully described in an applicable Order Form and as may be updated from time to time, along with any other services and/or support.
1.11. “Support Ticket” means a written report of an issue made by Customer to Company.
2. GRANT OF RIGHTS TO ACCESS AND USE.
2.1. Upon payment of the fees set forth in the applicable Order Form (the “Fees”), FDC hereby grants to Customer a non-exclusive, non-transferable, non-assignable (subject to Section 13.3 below), non-sub-licensable, time limited right and license to access and use the Services, subject at all times to this Agreement and the requirements set forth in the FDC End User License Agreement applicable to any individual users of the Services (as amended, restated or otherwise modified from time to time, the “EULA”).
2.2. Following the Effective Date, FDC will create one or more Accounts for Customer which will enable Customer to access, and provide its Authorized Users access to, the Services. Customer agrees to not make the Services available to any third party except as provided for in this Agreement. Customer is responsible for maintaining and keeping confidential its own Account information, including log-in credentials. Customer is responsible for all uses of and activities undertaken via its Account. Customer will immediately notify FDC of any unauthorized use of Customers Account of which Customer becomes aware. Customer and its Authorized Users shall only use the Services for the intended purposes and shall take reasonable measures to prevent the Services from being used or accessed in a manner that is inconsistent with such intended purpose or the terms and conditions of this Agreement.
2.3. Customer acknowledges and agrees that the display and distribution of the information made available on or through the Services may be restricted by law and persons who access it are required to comply with any such restrictions. Customer agrees to comply with all data protection regulations under applicable law, and to process Personal Data received in the course of its activities under this Agreement in accordance with all such applicable law, including obtaining any required authorization or consent to share and use Personal Data as required under this Agreement. Customer shall further (a) obtain and maintain all legal and regulatory approvals, consents, authorizations, registrations and licenses required for the conduct of its activities as they relate to the Services, including all necessary consents and authorizations to share and use personally identifiable information with FDC and via the Services, (b) if required by applicable law, be in good standing as a broker-dealer with the United States Securities and Exchange Commission (“SEC”) and maintain membership in good standing with the SEC and the Financial Industry Regulatory Authority (“FINRA”), (c) maintain all applicable licenses which may be necessary to operate Customer’s business in compliance with applicable law, and (d) be a member in good standing with any other applicable governmental or self-regulatory organization.
2.4. Notwithstanding the generality of any of the foregoing, Customer will not, and will not permit any Authorized User or other party to: (a) allow any third party to access the Services or Documentation, except as expressly allowed herein; (b) modify, adapt, alter or translate the Services or Documentation; (c) sublicense, lease, sell, resell, rent, loan, distribute, transfer or otherwise allow the use of the Services or Documentation for the benefit of any unauthorized third party; (d) reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Services; (e) interfere in any manner with the operation of the Services or the hardware and network used to operate the Services; (f) modify, copy or make derivative works based on any part of the Services or Documentation; (g) access or use the Services to build a similar or competitive product or service; (h) attempt to access the Services through any unapproved interface; or (i) otherwise use the Services or Documentation in any manner that exceeds the scope of use permitted under Section 3.1 or in a manner inconsistent with applicable law, the Documentation, or this Agreement.
2.5. Customer understands that the Services will automatically include a legal disclaimer on any reports generated by use of the Services (each, a “Report”). Customer covenants and warrants that each Report provided by it or any of its Authorized Users to any of Customer’s own customers or any other third party will include the exact legal disclaimer language generated by the Services or a similar legal disclaimer with no material differences.
3. INTELLECTUAL PROPERTY RIGHTS.
3.1. As between FDC and Customer, FDC owns all Intellectual Property Rights associated with the Services, including all such rights in any software and Documentation provided as part of or in connection with the Services. Customer shall preserve intact all applicable FDC copyright, patent and/or trademark notices presented in connection with the Services. FDC reserves all Intellectual Property Rights that are not expressly granted to Customer under this Agreement, and Customer will not assert any implied rights in or to any of FDC’s Intellectual Property Rights. All Intellectual Property Rights to improvements and enhancements to the Services shall vest in FDC. If the Customer has been involved in the development process by contributing in any manner, including but not limited to, input, ideas or feedback on the improvement and enhancement, any right the Customer may have due to such involvement is hereby transferred to FDC.
3.2. Customer hereby grants to FDC a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Authorized Users, relating to the Services. FDC will not identify Customer as the source of any such feedback.
4. FEES AND INVOICING.
4.1. Customer agrees to pay the Fees in the amounts and on the schedule set forth on the applicable Order Form. If you are paying by credit card you authorize us to (a) charge your credit card or bank account for all amounts payable during the Term, and (b) use a third party to process payments, and you consent to the disclosure of your payment information to such third party. If Customer is paying by invoice, we will invoice you at the beginning of the Term and at the beginning of each subsequent billing period, and other times during the Term when fees are due. Unless expressly provided otherwise in an applicable Order Form, all Fees are due and payable upon receipt of the invoice. Payments more than thirty (30) days overdue are subject to interest of 1.5% per month on any overdue amounts, or the maximum permitted by law, whichever is less.
4.2. The Fees are exclusive of all excise, sales, use, value added or other taxes, tariffs or duties (collectively, “Taxes”) that may be applicable to the Services, and Customer will be responsible for payment of all such Taxes (other than those based on FDC’s income) and any interest thereupon, arising from the payment of the Fees, the provision of the Services, or the license granted to Customer hereunder. Customer will make all payments of Fees to FDC free and clear of, and without reduction for, any withholding taxes; any such taxes imposed on payments of Fees to FDC will be Customer’s sole responsibility, and Customer will provide FDC with official receipts issued by the appropriate taxing authority, or such other evidence as the FDC may reasonably request, to establish that such taxes have been paid.
4.3. If Customer wishes to subscribe for additional services of any type during the Term, Customer may do so using their login to FDC.
4.4. No refunds or credits will be made if Customer does not use part of the Services or wishes to stop using any aspect of the Services during the Term.
5. CUSTOMER DATA.
5.1. As between Customer and FDC, Customer shall retain ownership of all Customer Data. Customer shall at all times be responsible to ensure that the Customer Data remains in compliance with applicable law and shall ensure that industry standard cyber security measures are in place in order to keep the Customer Data free from malicious code, including viruses, Trojan horses and other software or code that could cause damage to the Services.
5.2. Customer hereby authorizes FDC to access Customer’s Account and to use, modify, reproduce, distribute, display and disclose Customer Data as necessary to provide the Services and fulfil FDC’s obligations under this Agreement, including, without limitation, responding to Customer’s support requests. Customer further authorizes FDC to analyze and use the Customer Data for the purposes of contributing to analytical models used by FDC, improving the Services, and for other development, diagnostic, and corrective purposes in connection with the Services and any other FDC offerings. FDC agrees not to disclose any Customer Data to any third parties (other than its contractors engaged in providing the Services and who are subject to confidentiality obligations) unless such data has been anonymized.
6. SUPPORT.
6.1. FDC will provide Customer with access to FDC’s standard support by email at support@fdcplanonpurpose.com.
6.2. FDC will provide support and offer the Customer the ability to submit a Support Ticket via the email address set forth in Section 6.1 herein above. Responses will be provided promptly during normal Business Hours.
7. REPRESENTATIONS AND WARRANTIES.
7.1. Each party represents and warrants to the other party that it is a business organization duly organized, validly existing and in good standing under the laws of the jurisdiction of its formation, has all requisite power and authority to carry on its business and to own and operate its properties and assets.
7.2. FDC represents and warrants that: (a) it will provide the Services with commercially reasonable care and skill; (b) the Services will perform materially in accordance with the Documentation; and (c) the functionality of the Services will not be materially decreased during the Term. In the event of a breach of a warranty set forth in (a), (b) or (c), FDC shall correct the non-conforming Services at no additional charge to Customer, and in the event FDC is unable to correct such deficiencies after good-faith efforts, FDC shall refund Customer amounts paid attributable to the defective Services from the date FDC received such notice. Customer shall use commercially reasonable efforts to notify FDC in writing no later than thirty (30) days after identifying a deficiency, but Customer’s failure to notify FDC within that period will not affect Customer’s right to receive warranty remedies unless FDC is impaired in its ability to correct the deficiency due to Customer’s failure to notify. The remedies set forth in this section will be Customer’s exclusive remedy and FDC’s sole liability for breach of these warranties.
7.3. Customer represents and warrants that: (a) no Customer Data will i) infringe, misappropriate or violate any Intellectual Property Rights or any rights of privacy or contract, of any other person; (ii) contain any viruses, worms or other malicious computer programming codes intended to damage FDC’s systems or data, or (iii) otherwise violate the rights of a third party or any applicable law.
7.4. Except as expressly set forth above in this Section 7, to the maximum extent permitted by applicable law the Services are provided “as is” and “as available”, with all faults and without warranty of any kind. FDC makes no (and hereby disclaims all) other warranties or representations to Customer with respect to the Services or otherwise in connection with this Agreement, whether oral or written, express, implied or statutory, including, without limitation, any warranty or condition of merchantability, satisfactory quality, trade usage or practice, system integration, data accuracy, title, non-infringement, or fitness for a particular purpose. Without limiting the foregoing, FDC makes no warranty of any kind that the Services or the results of the use of the Services will meet Customer’s requirements, operate without interruption, achieve any intended result, be compatible or work with any other software, systems, programs or other services, or be accurate, complete or error free. Customer expressly acknowledges and agrees that FDC does not provide tax, insurance, legal, debt, budgeting or financial related advice, and FDC makes no representation or warranty with respect to Customer’s use of or any position taken in reliance on such information. Customer should consult with independent professionals in these respective fields before making any decisions or providing advice with respect to the same.
8. LIMITATION OF LIABILITY. FDC (defined for purposes of this section as FDC’s parent, affiliates, subsidiaries and their respective officers, directors and employees) shall not be liable to Customer or any third party for any indirect, incidental, special, consequential, punitive, or exemplary damages arising out of or related to this Agreement under any legal theory, including but not limited to lost profits, business interruption or infringement, or cost of substitute software, whether incurred by Customer internally or in connection with any third party. Except with respect to intellectual property indemnification obligations under this Agreement FDC’s aggregate liability under this Agreement shall not exceed the amount of the Fees paid by Customer for use of the Services under this Agreement during the twelve (12) month period immediately preceding the claim giving rise to such liability. The limitation provisions of this section shall be applicable to any claim filed by Customer arising out of or relating to any separately licensed software that may be used with the Services. Customer must, in order to preserve its right to compensation, give notice of any claim within three (3) months from when Customer became aware of the basis for the claim.
9. CONFIDENTIALITY.
9.1. Each party agrees that it will not use or disclose to any third party any Confidential Information of the other party, except as expressly permitted under this Agreement. The party receiving Confidential Information (the “Receiving Party”) will limit access to the Confidential Information to Authorized Users (with respect to Customer) and/or to those employees and professional advisors who have a need to know and who are subject to confidentiality obligations no less restrictive than those set forth herein, and who have been informed of the confidential nature of such information. In addition, the Receiving Party will protect the Confidential Information of the other party (the “Disclosing Party”) from unauthorized use, access, or disclosure in the same manner that it protects its own proprietary and confidential information of a similar nature, but in no event with less than reasonable care. At the Disclosing Party’s request or upon termination or expiration of this Agreement, the Receiving Party will return to the Disclosing Party or securely destroy (or permanently erase in the case of electronic files) all copies of the Confidential Information that the Receiving Party does not have a continuing right to use under this Agreement, and the Receiving Party will, upon request, certify to the Disclosing Party its compliance with this sentence; provided, however, that Customer may retain copies of any Confidential Information it reasonably deems necessary to comply with its regulatory obligations or its existing document retention policies so long as Customer maintains the confidentiality of such copies in accordance with this Section.
9.2. The confidentiality obligations set forth above will not apply to any information that (a) is at the time of disclosure or becomes generally available to the public through lawful means; (b) is lawfully provided to the Receiving Party by a third party free of any confidentiality duties or obligations; (c) was already known to the Receiving Party at the time of disclosure free of any confidentiality duties or obligations; or (d) the Receiving Party can demonstrate, by clear and convincing evidence, was independently developed by employees and contractors of the Receiving Party who had no access to the Confidential Information. In addition, the Receiving Party may disclose Confidential Information to the extent that such disclosure is required by law or by the order of a court or similar judicial or administrative body, provided that (to the extent legally permissible) the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and, if requested, reasonably cooperates with the Disclosing Party if the Disclosing Party seeks an appropriate protective order. Notwithstanding the foregoing, Customer may disclose Confidential Information to the Securities and Exchange Commission, or such other regulatory body with jurisdiction over Customer as an investment advisor, during an investment advisory examination and such disclosure shall not constitute a breach of this Section 9 or require any prior notice to FDC.
10. INDEMNIFICATION.
10.1. Customer agrees to indemnify, defend and hold harmless (“Indemnify”) FDC and its affiliates and representatives from and against any and all actions, claims, proceedings, suits or threats (“Claims”) and pay any liability, cost, loss, damage or expense (including attorneys’ fees and expenses) (“Losses”), in each case to the extent incurred by FDC related to or arising from: (a) the breach by Customer of any of its representations and warranties under Section 7.3; (b) the breach by Customer of any of its obligations hereunder; (c) any violation by Customer or any of its Authorized Users of any applicable law; (d) the gross negligence, willful misconduct or fraud of Customer or any of its Authorized Users.
10.2. FDC agrees to Indemnify Customer from Claims and pay all Losses incurred by Customer arising from or related to: (a) any claimed infringement or misappropriation by the Services of any third party Intellectual Property Right; (b) any violation by FDC of any applicable law; or (c) the gross negligence, willful misconduct or fraud of FDC. In the event the Services are held, or is believed by FDC to be likely to be held, to infringe or misappropriate any Intellectual Property Right of a third party, FDC will have the option, at its expense, to (i) replace the Services with an non-infringing equivalent, (ii) modify the Services to be non-infringing, (iii) obtain for Customer a license to continue using the Services, or (iv) refund the fees paid by Customer for the infringing Services during the twelve (12) month period immediately preceding the refund and require that Customer discontinue its use. The foregoing remedies constitute Customer’s sole and exclusive remedies and FDC’s entire liability with respect to infringement of Intellectual Property Rights.
10.3. The right to be indemnified hereunder is contingent upon: (a) the party seeking indemnification promptly notifying the indemnifying party in reasonable detail of the related Claims (however, the failure to give prompt notice shall only relieve the indemnifying party of its obligations to provide indemnification hereunder to the extent it is actually and materially prejudiced by the failure to provide timely notice); (b) the party seeking to be indemnified hereunder fully cooperating with the indemnifying party in the defense/prosecution/settlement of the related Claims (except that such cooperation does not require and is without waiver of a person’s attorney/client, work product, or other privilege); and (c) the indemnifying party having sole control of the defense/prosecution and all related settlement negotiations, except where: (x) the indemnifying party cannot show it has the reasonable resources to provide indemnification hereunder; (y) there is a conflict of interest that prevents a single counsel from representing the affected persons; or (z) the indemnifying party proposes to admit any liability on the part of an indemnified party, or there is a proposed settlement that would impose any obligation on an indemnified party beyond the payment of money that the indemnifying party will pay. In these cases, the indemnified party shall have a right to reasonably participate in the defense/prosecution and to consent to any settlement.
11. SECURITY.
11.1. FDC shall use commercially reasonable efforts to maintain reasonable administrative, technical and physical safeguards to protect against the unauthorized use or loss of Customer Data by or through the Services and to maintain the confidentiality, integrity and accessibility of Customer Data processed by FDC.
11.2. Customer shall ensure that it has implemented security systems and procedures designed to prevent unauthorized use or misuse of the Services that are consistent with industry standard security procedures, including the following: (a) Customer shall establish and maintain all reasonable procedures designed to ensure that the Services are accessible only by its Authorized Users; (b) Customer shall ensure that Authorized Users comply with Customer’s obligations under this Agreement and, if and as applicable, the EULA; and (c) Customer shall use industry standard anti-virus software and security measures designed to prevent any virus from adversely affecting the Services.
11.3. Customer shall immediately cease use of the Services if it is notified by FDC or otherwise becomes aware of, or suspects, a technical failure or security breach of the Services. Customer shall immediately notify FDC of such a failure or breach of security.
12. TERM AND TERMINATION.
12.1. This Agreement will begin on the Effective Date and remain in full force and effect as long as Customer has access to FDC.
12.2. FDC may suspend the Services for as long as Customer is in material breach of any provision of this Agreement (including nonpayment of the Fees) and such breach has not been cured within three (3) days of written notice to Customer. Prior notice of suspension will not be required if FDC determines, in its reasonable discretion, that suspension is necessary to protect FDC or its other customers from operational, security, or other material risk, or if the suspension is ordered by a court or other tribunal. In the event of suspension due to Customer’s breach of this Agreement, Customer will remain liable for portions of the Fees that would have been paid had the Services not been suspended.
12.3. Upon termination or expiration of this Agreement for any reason: (a) all licenses granted hereunder will immediately terminate; (b) promptly after the effective date of termination or expiration, each party will comply with the obligations to return all Confidential Information of the other party, as set forth in Section 9 (Confidentiality); and (c) any amounts owed to FDC under this Agreement will become immediately due and payable. Any section of this Agreement which by its nature should survive the termination or expiration of this Agreement will so survive, including without limitation, Sections 3, 5, 7 – 10, and 13.
12.4. For up to thirty (30) days after the end of the Term, as applicable, FDC will make Customer Data available to Customer on a limited basis solely for purposes of Customer retrieving Customer Data, unless FDC is instructed by Customer to delete such data before that period expires.
13. MISCELLANEOUS.
13.1. Governing Law and Venue. This Agreement and any action related thereto will be governed and interpreted by and under the laws of the State of Minnesota, without giving effect to any conflicts of laws principles that require the application of the law of a different jurisdiction. Customer hereby expressly consents to the personal jurisdiction and venue in the state and federal courts for Hennepin County, Minnesota for any lawsuit arising from or related to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
13.2. Relationship of the Parties. The parties are independent contractors and under no circumstances will any of the employees of one party be deemed the employees of the other for any purpose. Except as otherwise expressly agreed by the parties, this Agreement will not be construed as authority for either party to act for the other party in any agency or other capacity, or to make commitments of any kind for the account of or on behalf of the other. Nothing in this Agreement will be deemed to constitute a joint venture or partnership between the parties.
13.3. Assignment. Neither party will assign, delegate, or otherwise transfer this Agreement, or its rights and obligations herein, without obtaining the prior written consent of the other party, and any attempted assignment, delegation, or transfer in violation of the foregoing will be null and void; provided, however, that either party may assign this Agreement in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets, or other operation of law, without any consent of the other party. The terms of this Agreement will be binding upon the parties and their respective successors and permitted assigns.
13.4. Compliance with Laws. Customer will always comply with all international and domestic laws, ordinances, regulations, and statutes that are applicable to its access to, license and use of the Services. Notwithstanding any other provisions of this Agreement, the parties shall each comply with their respective obligations under any applicable data privacy and cybersecurity laws or regulations, including, to the extent applicable, responding to any consumer data rights requests and providing any required notice or disclosure regarding that party’s collection, receipt, use, and disclosure of personal or sensitive information under applicable law.
13.5. Publicity. FDC may display Customer’s name, logo and trademarks on FDC’s website and in marketing materials in connection with a list maintained by FDC designating Customer as a user of the Services.
13.6. Export. Customer agrees not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from FDC, or any products utilizing such data, in violation of the United States export laws or regulations.
13.7. Waiver and Severability. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will remain enforceable and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
13.8. Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of Fees owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the cause of such delay and to resume performance as soon as possible.
13.9. Notice. Each party shall give notice to the other party at the address for such party set forth at the beginning of this Agreement. Such notice shall be deemed given when received by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
13.10. Order of Precedence. If there is a conflict or ambiguity between any term of this Agreement and any Order Form, the terms of the Order Form will prevail but only with respect to that particular Order Form.
13.11. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matters hereof and supersedes and merges all prior discussions between the parties with respect to such subject matters. No modification of or amendment to this Agreement, or any waiver of any rights under this Agreement, will be effective unless in writing and signed by an authorized signatory of Customer and FDC.