Master Subscription Agreement

THIS AGREEMENT (the “Agreement”) governs your acquisition and use of Advicent Solutions’ (“Advicent”) Services. By accepting this Agreement, you agree to the terms of this Agreement on your own behalf, or on behalf of your company (the “Customer”), which you represent you have the authority to bind. If you do not have such authority, or you do not agree with the terms of this Agreement, you must not accept this Agreement and may not use the Services. This Agreement was last updated on August 25, 2016 and is effective as between Advicent and Customer as of the date Customer accepts the Agreement. Advicent and Customer agree as follow:

1. AGREEMENT STRUCTURE AND DEFINITIONS.

1.1 Agreement Structure and Order of Precedence. This Agreement states the terms and conditions under which Advicent will provide Services to Customer and Customer will obtain Services provided by Advicent, including under any applicable Schedule. The specific Services to be provided are identified on one or more Schedules signed by the parties. While this Agreement is intended to cover the provision of the Services generally, additional terms and conditions related to specific Services may be set out in individual Schedules, which terms and conditions shall govern the relationship of the parties only with respect to those specific Services covered by the particular Schedule. To the extent any terms and conditions of this Agreement conflict with the terms and conditions of a Schedule, the terms and conditions of this Agreement shall control unless the Schedule expressly states the intent to supersede a specific portion of the Agreement.

1.2 Definitions.

“Advicent Materials” means literary or other works of authorship (such as content, templates, information, data, text, software, music, sound, photographs, graphics, video messages or other material) other than Third Party Content that Advicent may deliver to Customer as part of the Subscription Services.

“Affiliate” means an entity directly or indirectly, controlled by or under common ownership of Advicent whereby “control” means the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such entity.

“Consumer(s)” means an Advisor’s clients who are the End Users of the Narrator Clients portal.

“Customer Content” means information and data that Customer or Users provide, including, without limitation, information and data that Customer or Users create, install, upload or transfer in or through the Services.

“Documentation” means the user instructions, release notes and on-line help files, as applicable to Customer, and as updated by Advicent from time to time, in the form generally made available by Advicent, regarding the use of the Hosted Application.

“Effective Date” means, with respect to this Agreement, the date first indicated above and with respect to a Schedule, the date set forth in such Schedule.

“End User Agreement” means the online click-through terms and conditions available for review here to which each and every User must assent prior to accessing or using any and all Advicent products. Advicent reserves the right to modify the End User Agreement from time to time in its sole discretion.

“Error” means a material failure of the Hosted Application to conform to its functional specifications described in the Documentation, which is reported by Customer and replicable by Advicent.

“Excluded Event” is defined in Section 2.8.

“Hosted Application” means the particular software product, in object code, identified in the Schedule, including Documentation and Updates, and excluding Third Party Content.

“Initial Term,” “Renewal Term” and “Term” have the meaning set forth in Section 2.2.

“Intellectual Property Rights” means patent rights (including patent applications and disclosures), copyrights, moral rights, trademarks, service marks, trade secrets, know-how and any other intellectual property rights recognized in any country or jurisdiction in the world, now or hereafter existing, and whether or not perfected, filed, registered or recorded.

“Intellectual Property” means technology, inventions, know-how, show-how, designs, formulae, processes, techniques, methodologies, procedures, tools, utilities, various concepts, ideas, methods, models, templates, content, photographs, audio and video clips, and other works of authorship, software, source code, algorithms, the generalized features of the structure, sequence and organization of software, user interfaces and screen designs, general purpose consulting and software tools, utilities and routines, and logic, coherence and methods of operation of systems, training methodology and materials, and any document or other materials embodying any of the foregoing, whether or not any of the same are patentable or copyrightable, and related documentation.

“License Metrics” means the metrics upon which Subscription Fees are based and associated Customer’s license to use the Subscription Services as designated and/or defined in the applicable Schedule by a term such as the number of employees, advisors, users, reports, and the like.

“Personal Information” means any personally identifiable information that relates to an individual, such as (i) an individual’s name, address and telephone number; (ii) an individual’s social security number or similar government issued identification number; (iii) the fact that an individual has a relationship with Customer; and (iv) information regarding the account numbers, balances, amounts or holdings of an individual.

“Privacy Laws” means those applicable privacy laws that govern the provision of Services under this Agreement that may include the Gramm-Leach-Bliley Act and the Personal Information Protection and Electronic Documents Act (Canada).

“Professional Services” means training, implementation, data conversion, and other consulting services.

“Professional Services Fees” means the fees paid by Customer to Advicent for the Professional Services.

“Schedule” means a specific agreement, regardless of its actual name, for the provision of particular Services by Advicent to Customer, executed by the parties specifically referencing this Agreement pursuant to which Customer orders, and Advicent accepts to supply, the particular Service under the terms and conditions of this Agreement.

“Services” means collectively (i) the Professional Services and/or (ii) Subscription Services.

“Statement of Work” or “SOW” is defined in Section 2.13.

“Subscription Fees” means the fees paid by Customer to Advicent for the Subscription Services.

“Subscription Services” means the provision of access to Advicent’s Hosted Application(s) and/or Advicent Materials and/or Third Party Content from a server that is hosted by Advicent, including off-line components.

“Third Party Content” means software, data, content or other products which Advicent has obtained rights from one or more third parties for use in conjunction with the provision of Services under this Agreement, the use of which is governed by the terms contained in this Agreement.

“Update” means any update, modification or enhancement of the Services that Advicent makes generally available to its customers without additional charge beyond the applicable Subscription Fees. Update shall include defect repairs, patches and maintenance releases.

“User” means an individual that has been authorized by Customer, and assigned a unique username-password combination, to access and use the Services or the results or products of the Services.

2. SERVICES.

2.1 Delivery of Subscription Services. Subject to the terms and conditions of this Agreement and timely payment of the Subscription Fees by Customer, Advicent will provide, during the Term, the Subscription Services identified in one or more Schedules signed by the parties.

2.2 Term and Renewal of Subscription Services. The initial term of the Subscription Services (the “Initial Term”) shall be as set forth in the Schedule, unless earlier terminated as set forth in Section 3. It shall be automatically renewed for successive periods of same duration (each a “Renewal Term”) commencing on the anniversary of the end of the Initial Term; unless either Party notifies the other in writing, on or before ninety (90) days prior to the end of the then existing term, of its intention not to renew the Services. The Initial Term and Renewal Term(s) are collectively referred to as the “Term”. In the event Customer expands its Subscription Services under this Agreement, the term for the additional Subscription Services shall be coterminous with the then existing Term, unless otherwise noted in the Schedule.

2.3 License Metrics. Customer understands that its license to use the Subscription Services and the Subscription Fees are based on the License Metrics specified in the Schedule, which represent minimum amounts that Customer has committed to for the Term. There shall be no fee adjustments or refunds for any decreases in usage or License Metrics during the Term. Additional License Metrics must be purchased in the event usage or actual metrics, as applicable, exceed the License Metrics specified in the Schedule.

2.4 Customer’s Other Obligations. Customer represents that it will comply with the use and restrictions applicable to the Services as follows. Additional use and restrictions may apply, as set forth in the applicable Schedule and the End User Agreement.

2.4.1 Use of the Services by Customer is limited to use by Customer for their own business purposes, solely in connection with servicing their clients and prospects. Redistribution, reselling, or providing access to the Services to any third-party or use of the Services for purposes not permitted in this Agreement or a Schedule is strictly prohibited.

2.4.2 Customer shall not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, display, or in any way exploit any of the Advicent Materials or Third Party Content or Hosted Application, in whole or in part, except as expressly permitted in this Agreement and shall not commit or permit any act or omission that would impair Advicent’s Intellectual Property Rights. The Hosted Application, Advicent Materials and Third Party Content may not be reverse engineered or decompiled. All Intellectual Property Rights notices must be reproduced and included on copies of the Advicent Materials or Third Party Content. Customer shall not use the Subscription Services in a service bureau, planning center, time sharing or other similar arrangement whereby any use of the Services is gained by someone other than as permitted by the applicable License Metrics.

2.4.3 Subject to the restrictions set forth in Section 2.5 (Acceptable Use Policy), Customer may upload into the Hosted Application any Customer Content owned by Customer (such as Customer’s original statements), Customer Content for which Customer has received express permission from the owner to upload, and content in the public domain. Customer assumes all risk and responsibility for determining whether any Customer Content is in the public domain or is permitted to be used by the owner of the Customer Content.

2.5 Acceptable Use Policy. Advicent does not monitor or police the Customer Content uploaded in or transmitted through the Services, and Advicent shall not be responsible for any such communications or transmissions. Customer shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws and regulations. Customer agrees not to upload into the Hosted Application any content or data which (a) is libelous, defamatory, obscene, pornographic, abusive, harassing or threatening; (b) contains viruses or other contaminating or destructive features; (c) violates the rights of others, such as data which infringes on any Intellectual Property Rights or violates any right of privacy or publicity; or (d) otherwise violates any applicable law (including, without limitation, the laws and regulations governing export control, unfair competition, antidiscrimination, or false advertising). Customer further agrees not to use the Services to solicit users to join or to procure products or services competitive to the Services. Advicent reserves the right to delete, move or edit any Customer Content that it may determine, in its sole discretion, violates this Agreement or is otherwise inappropriate for uploading.

2.6 Access to Services. Customer acknowledges that it is solely responsible for obtaining and maintaining at its own expense, all equipment needed to access the Services, including but not limited to computer and telephony equipment, cabling, software, Internet access and other materials at its facility(ies) necessary to access the Services.

2.7 Passwords. Customer will comply with the user authentication requirements for use of the Subscription Services. Customer will only permit authorized Users to access and use the Subscription Services. Advicent has no obligation to verify the identity of any person who gains access to the Subscription Services by means of an access ID. All usernames and passwords provided to Customer by Advicent in connection with the provision of Services shall be kept secret and secure and used only by authorized personnel. Customer shall be responsible for all misuse of usernames and passwords by it and its Users, and Customer shall promptly inform Advicent of any breach of password security or use of or possession of passwords by non-authorized persons. Customer is entirely responsible for any and all activities that occur under Customer’s account. Advicent shall have no liability for any loss or damage arising from Customer’s failure to comply with these requirements.

2.8 Availability of Internet-Provided Services. Advicent shall use commercially reasonable efforts to ensure that the Hosted Application is available ninety-nine point nine percent (99.9%) of the time in any given month, excluding any Excluded Events, as defined below (“Service Availability”). In any calendar month in which Advicent does not provide Service Availability, Customer is entitled to receive, upon written request no later than 30 days from the date of the Service impact, a credit against Customer’s Service account for the affected Subscription Service in the amount of 0.01 percent (0.01%) of the Subscription Fees for the affected month paid by Customer to Advicent under the impacted Schedule for each hour of downtime. Customer’s credit shall in no event be greater than the Subscription Fees Customer paid Advicent under the Schedule during that month. “Excluded Events” means: (i) scheduled maintenance; (ii) Internet unavailability, including, but not limited to failure or unavailability of Internet access; unauthorized use, theft or operator errors relating to Customer’s telephone, cable or Internet service provider; bugs, errors, configuration problems or incompatibility of equipment or services relating to Customer’s computer or network; or failure of communications networks or data transmission facilities; (iii) negligent acts or omissions or willful misconduct by Customer, its employees, consultants or third party agents; (iv) Customer’s or Customer’s employees’ improper use of Hosted Application or the failure of Customer’s equipment or applications; (v) issues relating to third party integrations or content; or (vi) circumstances beyond Advicent’s reasonable control including, without limitation, acts of any governmental body, war, sabotage, fire, flood, strikes, illegal third party actions or other force majeure event. Customer’s sole and exclusive remedy relating to the unavailability of Hosted Application is a refund of fees as described in this Section.

2.9 Technical Support. During the Term of the applicable Schedule, Advicent will provide Customer with technical support relating to the Subscription Services under Advicent’s support policies in effect at the time the support services are provided. The technical support availability, incorporated in this Agreement, is subject to change at Advicent’s discretion. All interactions with Advicent Technical Support and other Advicent personnel (“Advicent Personnel”) shall be conducted in a professional manner. Any abusive behavior toward Advicent Personnel shall result in a written request from Advicent to Customer for more professional interactions. Further abusive behavior following such written request will result in immediate suspension of services and termination of this Agreement. Upon termination pursuant to this section, Customer shall pay Advicent all fees remaining under the Agreement.

2.10 Backup and Recovery of Data. The provision of the Subscription Services by Advicent may include the provision of access to certain software and websites via the Internet. Advicent shall provide any such services using a co-location facility which: (a) uses a web server clustered environment with load balancing, twenty-four (24) hours a day performance monitoring, and prompt response to and correction of critical hardware failures; (b) provides both a logically and a physically secure and monitored environment and location with controlled access; (c) uses multiple power supply sources and maintains a power generator backup; (d) provides for regular backup and off-site storage of data and provides for restoration of data within reasonable time limits using backup data in the event of an emergency; (e) provides connectivity through redundant high-bandwidth backbones; and (f) has redundant firewall systems with frequently updated firewall rule sets and tools to monitor the network and firewalls for attacks and unauthorized intrusions. Advicent shall maintain commercially reasonable safeguards against the destruction, loss, and alteration of data contained within Advicent products, including the creation of daily backups. In the event of loss of data caused by Advicent or its hosting company, Advicent shall use commercially reasonable efforts to recover or reconstruct data contained within an Advicent product at the time of loss. Advicent agrees that it shall maintain and annually test a business continuity plan.

2.11 Security. Advicent agrees to use commercially reasonable efforts, such as the use of firewalls, access restrictions, and data flow monitoring, to protect the confidentiality of data contained within Advicent products. Advicent shall maintain and require all of its authorized third party service providers to maintain appropriate security measures and policies to protect Confidential Information. Advicent shall provide Customer with written notice within 72 hours of confirmation of any unauthorized disclosure of Customer’s client data. Advicent further agrees to provide Customer with information available to it and which it is entitled to disclose regarding its security measures and those of its third party providers, if any, that are applicable to the Services provided by Advicent pursuant to this Agreement upon reasonable request of Customer. Advicent shall not be responsible for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer data caused by any third party unless access to the Customer data by such third party is knowingly or negligently granted by Advicent. Customer will maintain commercially reasonable security procedures for the transmission of data to Advicent. Customer will notify Advicent immediately of any suspected security breach regarding transmissions to or from Advicent. Customer will not: (a) breach or attempt to breach the security of the Subscription Services or any network, servers, data, computers or other hardware relating to or used in connection with the Services, or any third party that is SaaS or interfacing with any part of the Subscription Services; or (b) use or distribute through the Services any software, files or other tools or devices designed to interfere with or compromise the privacy, security or use of the Services or the operations or assets of any other customer of Advicent or any third party. Customer is solely responsible for monitoring its authorized Users’ access to and use of the Subscription Services.

2.12 Any unauthorized use of the Subscription Services or breach of security by a User shall be deemed to be a material breach by Customer, and Advicent shall not be liable for any damages incurred by Customer or any third party resulting from such breach. Customer must immediately take all necessary steps, including providing notice to Advicent, to effect the termination of access for any User if there is any compromise in the security of that User’s access or if unauthorized use is suspected or has occurred.

2.13 Professional Services. Advicent will perform Professional Services for Customer described in one or more work orders, work authorizations or statements of work (individually and collectively a “Statement of Work” or “SOW”) as the parties may agree to in writing from time to time. Each SOW, once executed by the authorized representatives of the parties, shall become a part of this Agreement.

(a) Change Orders. Either party may propose a change order to add to or change the Professional Services ordered in an SOW. Advicent shall be responsible for determining the effect, if any, of the proposed additions or changes on the SOW and on the Professional Services Fees, due to the change. Both parties must agree to the change order in writing, and each change order shall specify the change(s) to the Services, and the change, if any, to the Professional Services Fees. Once executed by both parties, a change order shall become a part of the applicable SOW and be thereby expressly incorporated by reference herein and therein. After any such effective change order, references to such SOW will be deemed to refer to the applicable SOW, as amended to give effect to such change order. In the event of any delay in Customer’s performance of any of the obligations set forth herein or any other delays caused by Customer, the milestones, fees and date(s) set forth in the applicable SOW shall be adjusted as reasonably necessary to account for such delays, in accordance with the change order procedure set forth therein.

(b) Estimated Time/Cost Overruns. Professional Services are compensated on a time and materials basis at rates in effect at the time the Professional Services are purchased. Any estimates of the Professional Services Fees set forth in the applicable SOW are provided for budgeting purposes only. Advicent will bill Customer for reasonable and actual travel, living expenses (if applicable) and related incidental expenses incurred by Advicent’s personnel in rendering the Professional Services. Advicent shall promptly report to Customer at the earliest time it discovers that the time or cost of performance of such Professional Services will exceed the estimated time and/or cost authorized in the applicable Schedule, and in any event before proceeding with the portion of the Professional Services that will cause the estimated time and/or cost to exceed the then-current estimate(s). Advicent shall explain in reasonable detail the reason(s) for the anticipated overrun and shall estimate the revision in the estimated time and costs necessary to complete the work. Advicent shall not perform such additional work or any work performed in excess of any estimated amount identified in the applicable Schedule, unless the parties have executed a change order pursuant to this Section 2.13.

2.14 Mailing List. All Users will be added to the Advicent mailing list. Each User shall have the right to opt out of receiving mailings from Advicent.

2.15 Third Party Content and Integrations. The Hosted Application may contain Third Party Content and may include the ability to integrate with certain third party applications. Advicent will make commercially reasonable efforts to retain the Third Party Content and integrations existing as of the Effective Date of the applicable Schedule, but may from time to time, in its sole discretion, substitute substantially similar data, content, software or integrations. Such Third Party Content or integration providers may require Customer to agree to additional terms and conditions of use which shall be included in the applicable Schedule and/or provided by the third party to Customer. In the event of a conflict between such Third Party terms and conditions and the terms of this Agreement or a Schedule, the Third Party terms and conditions shall prevail.

3. TERM AND TERMINATION.

3.1 Term. This Agreement will commence on the Effective Date and continue until the last Schedule expires or is terminated in accordance with Sections 2.2, 2.9, 3.2 or 3.3 of this Agreement.

3.2 Termination by Advicent. Advicent may terminate this Agreement and any or all Schedules by providing Customer thirty (30) days prior written notice of such intent as follows: (i) if Customer has failed to pay any invoice required under this Agreement or a Schedule by its due date; (ii) if Customer is in material breach of this Agreement and the breach is not substantially cured within fifteen (15) days of Advicent’s notice to Customer; (iii) if performance under this Agreement by Customer is in violation of any law or regulation and such violation causes a substantial risk of material loss to Advicent or any party related to Advicent; or (iv) if the applicable laws and regulations related to the provision of the Services are revised or supplemented after the Effective Date hereof in a manner that Advicent determines will substantially increase its costs.

3.3 Termination by Customer. Customer may terminate this Agreement and any or all Schedules by providing Advicent thirty (30) days prior written notice of such intent as follows: (i) if Advicent is in material breach of this Agreement and the breach is not substantially cured within fifteen (15) days of Customer’s notice to Advicent; or (ii) if performance under this Agreement by Advicent is in violation of any law or regulation and such violation causes a substantial risk of material loss to Customer.

3.4 Partial Termination. Where the non-breaching party has a right to terminate this Agreement, the nonbreaching party may at its discretion either terminate this Agreement and all Schedules or only the applicable Schedule. The termination of a Schedule shall not affect either party’s rights and obligations under this Agreement and other Schedules which have not expired or have not been terminated.

3.5 Rights and Obligations Upon Termination. In the event this Agreement and all Schedules or a Schedule is terminated or otherwise expires for any reason:

(a) Customer’s and Users’ right to access and use the Services shall immediately terminate;

(b) Advicent shall cease and shall cause any agent or subcontractor to cease all Professional Services and minimize any additional costs or reimbursable expenses unless otherwise directed in writing by Customer. Except as may be expressly set forth in the applicable SOW Schedule, after such termination, Customer shall pay Advicent for Services performed up to and including the date of termination in accordance with the provisions of the applicable SOW Schedule, on a time and materials basis together with any expenses reasonably incurred in connection therewith.

(c) Within ninety (90) days of termination or expiration, Advicent shall return to Customer or destroy all Customer Confidential Information in its possession and shall cease all use thereof, and Customer shall return to Advicent or destroy all Advicent Confidential Information in its possession and shall cease all use thereof;

(d) Within thirty (30) days after such termination, Customer shall provide Advicent with a final Advisor count and Advicent shall furnish Customer an invoice for any remaining fees owed under this Agreement and any Schedules, and Advicent’s reasonable cost of collection, including but not limited to reasonable attorneys’ fees, if any (the “Final Accounting”); and

(e) Within thirty (30) days after receipt of the Final Accounting, Customer shall pay Advicent all remaining payments due and payable to Advicent under this Agreement and under any Schedules. Failure by Customer to pay the Final Accounting timely shall entitle Advicent to any and all Payment Default remedies.

3.6 Advicent will be entitled to suspend any or all Services upon 10 days’ written notice to Customer in the event Customer (including Users) is in breach of this Agreement, including failure to pay any fees. Further, Advicent may suspend Customer’s access and use of the Subscription Services immediately if, and so long as, in Advicent’s sole reasonable discretion, there is a security risk created by Customer that may interfere with the proper continued provision of the Subscription Services or the operation of Advicent’s network or systems.

4. FEES AND PAYMENT TERMS.

4.1 Fees. Customer will pay all fees due according to the Schedules.

4.2 Payment Terms. Advicent will invoice Customer for Services in accordance with the timing and terms provided in the Schedules. All fees shall be paid within thirty (30) days of the invoice date, unless otherwise provided in a Schedule. If Customer is delinquent in any payment under any Schedule, Advicent may, at its option, (i) suspend Customer’s access to any and all Services or (ii) modify the payment terms, to require full payment before the further provision of Services to Customer under any Schedule. In the event Customer does not pay fees when due, Customer shall pay to Advicent interest on the delinquent account at the rate of 1.5% per month or the maximum amount permitted under applicable law, whichever is lower.

4.3 Payment Default. Notwithstanding any of Advicent’s rights enumerated in Sections 3.2 and 3.5 of this Agreement, if Customer fails to timely pay two (2) or more consecutive invoices or does not cure a breach of Sections 2.3, 2.4, 2.5, 2.7 or 12.11, Advicent may in its sole discretion declare a “Payment Default” by providing Customer with written notice. Customer will have no right to cure a Payment Default unless prior written authorization from Advicent is obtained. In the event of a Payment Default, Advicent shall be entitled to Payment Default Remedies.

4.3.1 Payment Default Remedies. In the event of a Payment Default, Advicent shall be entitled to collect all past and current amounts due and owing, and to charge a termination fee to be calculated by multiplying the average periodic Subscription fee payment during the twelve-month period preceding the effective date of termination by 80% times the remaining installments of the Term. Advicent may commence an action to recover: the past and current amounts due; the termination fee; interest; expenses; reasonable attorneys’ fees, whether such attorneys’ fees are incurred in collection or otherwise; and, in addition, any and all other such damages as may be the result of the Payment Default.

4.3.2 Liquidated Damages. Customer understands and agrees that Advicent losses incurred as a result of a Payment Default would be difficult or impossible to calculate as of the effective date of termination. Accordingly, the amounts set forth in Section 4.3.1 represent Customer’s agreement to pay and Advicent’s agreement to accept as liquidated damages (and not as a penalty) such amount for any Payment Default.

4.4 Taxes. All fees charged by Advicent for Services are exclusive of all taxes and similar fees, now in force or enacted in the future, imposed on the delivery of the Services, for which Customer will be responsible in their entirety and will pay in full, except for taxes based on Advicent’s net income.

5. CONFIDENTIALITY AND PERSONAL INFORMATION.

5.1 All proprietary and other nonpublic information of Customer and its clients (including without limitation, Personal Information) disclosed to Advicent in the course of Advicent’s performance of Services under this Agreement (collectively, “Customer Confidential Information”) are valuable trade secrets of Customer and shall remain confidential.

5.2 All proprietary and other nonpublic information of Advicent, including, but not limited to, the source code and documentation pertaining to the Services, disclosed to Customer in the course of Advicent’s performance of Services under this Agreement as well as the terms and pricing (but not the existence) of this Agreement (collectively, “Advicent Confidential Information”) are valuable trade secrets of Advicent and shall remain confidential.

5.3 Neither party shall, during or after the Term, use or disclose any Confidential Information of the other party, except in furtherance of this Agreement or under a court order or subpoena, in which case notice of the order or subpoena shall, if permitted, be sent to the party disclosing the information (the “Disclosing Party”), without the prior written consent of the disclosing party. The recipient of Confidential Information (the “Receiving Party”) shall immediately deliver to the disclosing party (or destroy and certify the destruction of), at any time upon the disclosing party’s request, any data, records or documents in its possession or control which contain the disclosing party’s Confidential Information. Notwithstanding the foregoing, upon request from a broker-dealer affiliated with Customer, Advicent may disclose to the requesting broker-dealer Customer Confidential Information including, but not limited to (i) Customer and User names; and (ii) usage data, for any legitimate business purpose.

5.4 The obligations of this Section 5 shall not apply to the extent the Receiving Party can demonstrate that such information:

(a) is or has become generally known by persons engaged in the technology or financial services industries, without any breach by the Receiving Party of the provisions of the Agreement;

(b) was rightfully in the possession of the Receiving Party, without confidentiality restrictions, prior to the Receiving Party’s receipt pursuant to the Agreement;

(c) was rightfully acquired by the Receiving Party from a third party who was entitled to disclose such information without confidentiality or proprietary restrictions;

(d) was independently developed by the Receiving Party without using or referring to the Disclosing Party’s Confidential Information; or

(e) is subject to a written agreement pursuant to which the Disclosing Party authorized the Receiving Party to disclose the subject information.

5.5 Notwithstanding anything to the contrary contained in this Agreement, Customer hereby grants to Advicent a perpetual, non-cancelable, worldwide, non-exclusive right to utilize any data that arises from the use of the Products by Customer whether disclosed on or prior to the Effective Date for any legitimate business purpose, including the right to sublicense such data to third parties, subject to all legal restrictions regarding the use and disclosure of such information.

5.6 The parties recognize that the provision of Services by Advicent to Customer may include the uploading of certain information protected by Privacy Laws. Customer agrees that it shall not provide any information subject to such Privacy Laws in an unsecure manner. Advicent shall have no liability for any violation of Privacy Laws by Customer in the course of uploading any information.

6. WARRANTIES AND DISCLAIMERS.

6.1 Advicent Warranties. Advicent warrants to Customer as follows: (a) it will perform the Services using reasonable care and skill; and (b) it has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement.

6.1.1 Remedy. In the event of any breach of the warranties set forth in this Agreement, Advicent’s sole and exclusive responsibility, and Customer’s sole and exclusive remedy, shall be for Advicent to correct or replace, at no additional charge to Customer, any portion of the Services found to be defective; provided, however, that if within a commercially reasonable period Advicent neither corrects such defects nor replaces the defective Services, then Customer’s sole and exclusive remedy shall be to receive direct damages not to exceed the prepaid fees paid to Advicent for use of the defective Services.

6.2 Limitations on Advicent’s Warranties. THE SERVICES, INCLUDING THE ADVICENT MATERIALS, ARE DISTRIBUTED ON AN “AS IS, AS AVAILABLE” BASIS. EXCEPT FOR THE WARRANTIES EXPRESSED IN SECTION 6.1, ADVICENT MAKES, AND CUSTOMER RECEIVES, NO REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND ADVICENT, ITS LICENSORS AND SUPPLIERS SPECIFICALLY DISCLAIM TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, WITHOUT LIMITATION, (i) ANY WARRANTY THAT THE SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION OR THAT ALL ERRORS WILL BE CORRECTED; (ii) ANY AND ALL IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT; (iii) ANY WARRANTY THAT THE ADVICENT MATERIALS WILL BE ACCURATE, RELIABLE AND ERROR-FREE; AND (iv) ANY AND ALL IMPLIED WARRANTIES ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. Customer acknowledges that Advicent does not control the transfer of data over telecommunications facilities, including the Internet. Advicent does not warrant secure operation of the Services or that it will be able to prevent third party disruptions of the Services. Customer further acknowledges and agrees that Advicent is not engaged in providing legal, accounting, or other professional services. Assistance of legal counsel or other appropriate experts should be sought when applying the law, rules, or regulations to a particular set of facts or circumstances.

6.3 Customer Warranties. Customer warrants as follows:

(a) It has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement;

(b) It has obtained or will obtain the required consents and approvals, including without limitation all Intellectual Property Rights clearances, prior to uploading the Customer Content;

(c) It has obtained or shall obtain such consents as may be necessary in order for Advicent to provide the Services, prior to uploading client information;

(d) Customer agrees to comply and agrees that its Users will comply with all terms and provisions found in the End User Agreement provided to each such User prior to the User’s accessing or use of the Services; and

(e) Customer’s use of the Services and all Customer Content and Advicent Materials will comply with the Acceptable Use Policy set forth in section 2.5.

7. INDEMNIFICATION.

7.1 Indemnification by Customer. Customer shall, during and after the Term of this Agreement, defend, indemnify and hold Advicent, its affiliates and suppliers, harmless against any third party action or suit to the extent such action or suit is based on or results from: (i) Customer Content or Customer’s use of the Services violating Customer’s obligation in Sections 2.3 or 2.5 hereof; (ii) data transmitted, received or stored by Customer in violation of any of the provisions of this Agreement or applicable Schedules (iii) Customer’s failure to pay fees when due; (iv) a third party claim that Customer Content infringes a patent, trademark or copyright of others; or (v) claims by Users to the extent the claim is related, directly or indirectly, to any portion of the Services modified by Customer. Customer shall pay those costs and damages finally awarded against Advicent in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Customer obligations under this section are conditioned on: (i) Customer receives prompt notice in writing of such claim; (ii) Customer shall have sole control over the defense and settlement thereof; and (iii) reasonable cooperation from Advicent, as applicable, (at Customer’s expense) in response to Customer’s request for assistance.

7.2 Indemnification by Advicent. Advicent shall defend, indemnify, and hold Customer harmless against any third party action brought against Customer to the extent such action is based upon: (i) a claim that the Hosted Application or Advicent Materials (except for any content or materials posted or provided by third parties such as other users of Advicent’s Services) infringes a patent or copyright of a third party, or (ii) a breach of Advicent’s obligations in Section 5, and Advicent shall pay those costs and damages finally awarded against Customer in any such action that are specifically attributable to such claim, or those costs and damages agreed to in a monetary settlement of such action. Advicent obligations under this section are conditioned on: (i) Advicent receives prompt notice in writing of such claim; (ii) Advicent shall have sole control over the defense and settlement thereof; (iii) reasonable cooperation from Customer, as applicable, (at Advicent’s expense) in response to Advicent’s request for assistance, and (iv) Customer not being in breach of this Agreement. If the Hosted Application or Advicent Materials become, or in Advicent’s opinion are likely to become, the subject of an infringement or misappropriation claim, Advicent may, at its option and expense, either (i) procure for Customer the right to continue using the Hosted Application or Advicent Materials; (ii) replace or modify the same so that they become non-infringing; or (iii) terminate Customer’s right to use all or part of the Services and give Customer a refund or credit (at Advicent’s discretion) for the fees actually paid by Customer to Advicent for the prior twelve month period for the relevant Services as of the date of termination less a reasonable allowance for the period of time Customer actually used the relevant Services. Notwithstanding the foregoing, Advicent will have no obligation of defense or indemnification or otherwise with respect to any claim or demand based upon (i) any use of the Hosted Application or Advicent Materials not in accordance with this Agreement or a Schedule or for purposes not intended by Advicent; (ii) any use of the Hosted Application in combination with other products, equipment, software, or data not intended, recommended, supplied, or approved by Advicent in writing; (iii) any modification of the Hosted Application or Advicent Materials made by or content provided by any person other than Advicent; (iv) where Customer continues the allegedly infringing activity after being notified thereof and is provided modifications, replacements or other remedies that would have avoided the alleged infringement or (v) anything Customer or Users provide which is incorporated into the Advicent Materials. This Section states Advicent’s entire liability and obligation and Customer’s sole and exclusive remedy for infringement and misappropriation claims, demands, and actions.

8. EXCLUSION AND LIMITS OF LIABILITY.

8.1 Exclusions. IN NO EVENT WILL ADVICENT BE LIABLE TO CUSTOMER, USERS OR OTHER THIRD PARTIES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, STATUTORY OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE OR DATA, DAMAGE TO SYSTEMS OR EQUIPMENT, BUSINESS INTERRUPTION OR COST OF COVER) IN CONNECTION WITH OR ARISING OUT OF THE DELIVERY, PERFORMANCE OR USE OF THE HOSTED APPLICATION, THE ADVICENT MATERIALS AND ANY OTHER SERVICES OR MATERIALS PROVIDED BY ADVICENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE AND STRICT LIABILITY, EVEN IF ADVICENT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8.2 Limitations of Liability. OTHER THAN ADVICENT’S OBLIGATIONS TO INDEMNIFY CUSTOMER AS SET FORTH IN SECTION 7 HEREIN, ADVICENT’S MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY DAMAGES AND COSTS SHALL NOT, IN ANY EVENT, EXCEED THE FEES PAID BY CUSTOMER TO ADVICENT FOR THE PRIOR TWELVE MONTH PERIOD FOR THE SOFTWARE OR SERVICE UPON WHICH SUCH DAMAGES AND/OR COSTS ARE BASED. THE LIMITATIONS SET FORTH ABOVE SHALL BE DEEMED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDIES. EACH PARTY ACKNOWLEDGES AND AGREES THAT THEY HAVE FULLY CONSIDERED THE FOREGOING ALLOCATION OF RISK AND FIND IT REASONABLE, AND THAT THE LIMITATIONS HEREIN ARE INTEGRAL TO THE AMOUNT OF CONSIDERATION LEVIED UNDER THIS AGREEMENT.

9. INTELLECTUAL PROPERTY LICENSE AND OWNERSHIP.

9.1 To the extent required by the parties for the performance of the Services under the Schedules, each party hereby grants to the other a nonexclusive license to use its trademarks, trade names, and other source-identifying indicia (“Marks”) and Customer Content solely in connection with the provision of the Services and in a form approved or provided the owner. Advicent style guidelines are available upon request. The parties shall not be entitled to distort or otherwise manipulate the Marks of the other and all use of the same by a party shall inure to the benefit of owner of the Marks.

9.2 Advicent retains all rights, title and interest in the Hosted Application. Advicent grants Customer a nonexclusive, nontransferable, revocable license to access and use the Hosted Application solely in connection with the Services as provided under this Agreement. Customer agrees not to download or otherwise copy, reverse assemble, reverse compile, decompile, or otherwise translate the software portions of the Hosted Application. Customer further agrees not to remove or alter any copyright or other proprietary notice on or in the Hosted Application without Advicent written consent.

9.3 Except as otherwise provided in this Agreement, Customer acknowledges that as between Customer on the one hand, and Advicent on the other, any and all Intellectual Property Rights embodied in the Advicent Materials developed by Advicent in the performance of the Services are works of original authorship and confidential and trade secret information of Advicent, all rights in which shall be vested solely in Advicent. Such works shall be owned exclusively by Advicent or its licensors, as the case may be. Customer shall not commit or permit any act or omission that would impair Advicent’s Intellectual Property Rights. Customer further acknowledges and agrees that, except as expressly allowed in this Agreement or the Schedule, the Advicent Materials (i) may not be modified; (ii) may be used solely for Customer’s own use; and (iii) may not be used as part of a commercial time-sharing or service bureau or in any resale capacity. Customer further acknowledges and agrees that all Advicent Materials are proprietary to Advicent or its licensors, and Advicent or such licensors retain exclusive ownership of the same throughout the world, including all Intellectual Property Rights embodied therein.

10. GENERAL PROVISIONS.

10.1 Independent Contractor. At no time will Customer represent that it is acting as an agent of Advicent, nor will Advicent represent that it is acting as an agent of Customer. Customer on the one hand, and Advicent on the other, will act at all times as independent contractors. Nothing in this Agreement will be deemed to constitute a partnership, joint venture, employment, affiliated business arrangement, or agency relationship between the parties.

10.2 Notices. All notices, demands or other communications required or permitted under this Agreement will be made in writing and be deemed to have been duly given if delivered by hand or electronic mail or three (3) business days following being mailed by first class mail, postage paid or one (1) business day following being sent by a nationally recognized overnight courier service. If addressed to Advicent, notices shall be sent to Advicent Solutions, LP.; ATTN: Advicent Legal Department, 10700 W. Research Drive, Suite One, Milwaukee, WI 53226. If addressed to Customer, notices shall be sent to the name and address indicated in the signature blocks below. The parties may designate in writing other recipients for providing notice.

10.3 Assignment. This Agreement may not be assigned by Customer without the prior written notice to Advicent. In no event shall this Agreement be assigned by Customer to any competitor or potential competitor of Advicent. Any such assignment shall be null and void. Advicent may assign its rights and obligations under this Agreement, as a whole, as part of a merger or sale of substantially all the assets or stock of Advicent. Any permitted or approved assignees shall be bound by all the terms and conditions of this Agreement as if they were a party hereto.

10.4 Counterparts. This Agreement and the Schedules may be executed in counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument.

10.5 Severability. The invalidity or unenforceability of any provision in this Agreement will not affect the validity or enforceability of any other provision. However, it is intended that any invalid or unenforceable provision of this Agreement be construed by a court of competent jurisdiction by limiting or reducing it so as to be valid or enforceable to the extent compatible with applicable law.

10.6 Governing Law and Venue. This Agreement will be governed by and construed and enforced in accordance with the laws of Ontario, without application of conflicts of laws or choice of law principles. This Agreement is deemed entered into in Wisconsin. The parties agree that the exclusive venue and jurisdiction for any disputes relating to this Agreement or the rights or obligations of the parties, shall be the state and federal courts governing Milwaukee (Wisconsin), and the parties consent and submit to the personal jurisdiction and venue of such courts. The parties agree that this contract is not a contract for the sale of goods; therefore, this Agreement shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code, or any codification of the Uniform Computer Information Technology Act (“UCITA”), or any references to the United National Convention on Contracts for the International Sale of Goods.

10.7 Entire Agreement; Amendments. This Agreement, including any applicable Schedules and Exhibits, constitutes the entire agreement between the parties pertaining to the subject matter of the Services and supersedes all negotiations, preliminary letters of intent or agreements, and all prior or contemporaneous discussions and understandings of the parties. No amendment, change, modification or waiver of any of the terms of this Agreement or a Schedule are effective unless made in writing and executed by all parties to this Agreement. No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with the ordering of the Services will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of Advicent to object to such terms, provisions or conditions. Orders are non-cancelable, non-refundable and non-returnable.

10.8 Rights and Remedies; Waiver. The parties acknowledge that any breach or evasion by either party of any provision of this Agreement may result in injury to the other party, and may cause that other party to suffer damages that cannot be quantified monetarily. Accordingly, upon such a breach that has not been cured within fifteen (15) days after the injured party notifies the other party of such breach, or upon any breach of Sections 5 (Confidentiality and Personal Information) above, the injured party shall be entitled to a preliminary and permanent injunction, as well as to any other legal or equitable remedies to which such party may be entitled. All such rights and remedies shall be cumulative, and the exercise of any one of them shall not be deemed to be a waiver of any other. The failure of either party to enforce any of the provisions hereof will not be construed to be a waiver of the right to enforce such provision at a later time or to enforce any of the other provisions hereof.

10.9 No Third Party Beneficiaries. This Agreement is for the benefit of the parties and their successors and permitted assigns, and does not confer any rights or benefits on any third party, including any employee of a party, any client of a party, or any employee of a client of a party. Notwithstanding the above, the parties acknowledge that the Services may include software and materials licensed by Advicent from third parties (“Advicent Licensors”). Advicent Licensors may be direct and intended third party beneficiaries of this Agreement and may be entitled to enforce it directly against Customer to the extent (a) this Agreement relates to the licensing of Advicent Licensors’ products; and (b) Advicent fails to enforce the terms of this Agreement on their behalf.

10.10 Force Majeure. Notwithstanding any provision contained in this Agreement, neither party shall be liable to the other party to the extent fulfillment or performance of any terms of this Agreement is delayed or prevented by revolution or other civil disorders; wars; acts of terrorists or enemies; strikes; lack of available resources from persons other than parties to this Agreement; labor disputes or availability failure; fires; floods; acts of God; federal, state or municipal action; statute; ordinance or regulation; or, without limiting the foregoing, any other causes not within its control, and which by the exercise of reasonable diligence it is unable to prevent, whether of the class of causes hereinbefore enumerated or not. This clause shall not apply to the payment of any sums due under this Agreement by any party to another.

10.11 Compliance. During the Term and for a period of one (1) year thereafter, Customer shall maintain and make available to Advicent records sufficient to allow audit, upon ten (10) days’ written notice, of Customer’s full compliance with this Agreement; provided, that such audit shall not occur more than one (1) time in any twelve (12) month period and shall be performed during regular business hours. If such audit reveals any noncompliance by Customer, Customer shall reimburse Advicent for the costs and expenses of such verification process (including, but not limited to the fees of an independent auditor, if any) incurred by Advicent and pay Advicent for the period of time of any use of the Services beyond the scope, license terms authorized or granted in the applicable Schedule at Advicent’s then-current list price, and Customer shall promptly cure any such noncompliance; provided, however, that the obligations under this Section 10.11 do not constitute a waiver of Advicent’s termination rights or any other rights hereunder.

10.12 Survival. Sections 1, 3, 4, 5, 6.2, 8, 9 and 10 shall survive expiration or any termination of this Agreement for as long as necessary to permit their full discharge.