1. Client Obligations
1.1 Client will pay for the Services at the Fee set out in the Order.
1.2 Client will use reasonable efforts to provide True Advisory with such cooperation and information as may reasonably be required for the proper performance of the Services, including access to appropriate members of its staff.
1.3 Client acknowledges that it is responsible for the completeness and accuracy of any data, fact, assumption, and all information that is provided to True Advisory under this Order. True Advisory will not independently verify any such material.
2. Intellectual Property Rights. Each party is and shall remain the owner of all intellectual property that it owns or controls as of the Effective Date or that it develops or acquires thereafter. Furthermore, this Order is not intended to transfer to either party any intellectual property or proprietary rights owned by the other party. Client agrees that any underlying raw data collected or received during the performance of the Services under an applicable Order can be used by True Advisory (a) to run analytics, (b) to create derivative works, or (c) in any other manner at True Advisory’s discretion for True Advisory’s business purposes, provided that any such use is anonymized and free from any identifiable information related to Client organization.
3. Warranties. Each party represents and warrants to the other party that: (a) its execution and performance of this Order has been duly authorized; (b) this Order is a valid and legally binding obligation enforceable against such party in accordance with its terms; and (c) it will at all times comply with all applicable laws and regulations.
4. Disclaimer of Warranties
4.1 EXCEPT AS EXPRESSLY SET FORTH IN SECTION 3, TRUE ADVISORY’S SERVICES ARE PROVIDED “AS IS” AND TRUE ADVISORY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH REGARD TO THE DELIVERABLES, TRUE ADVISORY IP, AND ANY OTHER SUBJECT MATTER OF THIS ORDER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY. TRUE ADVISORY DOES NOT WARRANT THAT ITS SERVICES OR TRUE ADVISORY IP WILL MEET ALL OF CLIENT’S BUSINESS REQUIREMENTS OR THAT ITS SERVICES OR TRUE ADVISORY IP WILL BE UNINTERRUPTED OR ERROR-FREE.
4.2 Client agrees that any decision it makes regarding or relating to or based on the use or implementation of any output, data, analysis, recommendation or advice provided in the performance of the Services is made solely by Client, and its agents and employees, at the sole and exclusive discretion of Client, and its agents and employees. Client further agrees that Client, and its agents and employees will not hold True Advisory liable for the use or implementation by Client, or any other party of the information or advice provided in the performance of the Services, or for any action, inaction or decisions made by Client or any other party based on the information or advice provided in the performance of the Services.
5. Limitation of Liability. TRUE ADVISORY WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS ORDER (HOWEVER ARISING, INCLUDING NEGLIGENCE), INCLUDING, BY WAY OF EXAMPLE, LOST REVENUE, LOST PROFITS, BUSINESS INTERRUPTION, AND INJURY TO REPUTATION, EVEN IF TRUE ADVISORY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE TOTAL CUMULATIVE LIABILITY OF TRUE ADVISORY RELATING TO THIS ORDER WILL NOT EXCEED THE TOTAL FEES PAID TO TRUE ADVISORY BY CLIENT UNDER THIS ORDER, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE.
6. Confidential Information. As used in this Order, “Confidential Information” means any nonpublic information disclosed or made available under this Order by a party to the other party that relates to this Order, the Services, the Deliverables, or either party’s technology, services, finances, operations, customers or business, regardless of whether such information is marked as “confidential”, provided only that the party receiving the information knows or should reasonably understand that it should be treated as confidential. True Advisory’s Confidential Information includes all Deliverables. Client’s Confidential Information includes the Client Data. Confidential Information does not include any information that: (a) was already lawfully known to a party at the time of disclosure by the other party; (b) is disclosed to a party by a third party who had the right to make such disclosure without any confidentiality restrictions or other disclosure obligations as to the information disclosed; or (c) is, or through no fault of a party has become, generally available to the public. Each party will protect and secure the other party’s Confidential Information with the same degree of care that party uses to protect its own similar confidential information, but in no case less than reasonable care. Each party agrees that, except as permitted herein or as expressly permitted in writing by the other party, it will not at any time during or for a period of 3 years after termination or expiration of this Order: (y) disclose any Confidential Information to any third party, except to such party’s own employees, affiliates, and consultants who have a need to know such information and is subject to a binding legal obligation to protect and secure such Confidential Information at least as protective as is required under this Order; or (z) use any Confidential Information other than for the purposes of fulfilling its obligations under this Order. Notwithstanding the foregoing, each party is allowed to disclose Confidential Information to the extent it is advised by counsel that the disclosure is required by law or by the order of a court or similar judicial or administrative body of competent jurisdiction, provided that the party notifies the other party of the required disclosure promptly and in writing and cooperates with the other party in any lawful action to contest or limit the scope of such required disclosure.
7. 1 Data Protection.
7.1 Client Data. With regards to all data, information, and other content and materials provided by or on behalf of Client (“Client Data”) in connection with this Order, Client will obtain and maintain all permissions, consents, and other rights in any Client Data necessary to disclose to True Advisory any Client Data and for True Advisory to use any Client Data to perform its obligations under this Order, in each case without any violation of applicable laws or any intellectual property rights or other rights of any third party. Client hereby grants True Advisory all permissions, consents, and other rights in and to the Client Data necessary for True Advisory to perform its obligations under this Order and to otherwise process Client Data. True Advisory is under no obligation to review any Client Data for accuracy or completeness, and it may rely on all Client Data as being accurate and complete. Furthermore, True Advisory has no duty to evaluate or limit the Client Data that Client elects to make available to True Advisory and True Advisory assumes no liability for use of the Client Data. Client will indemnify, defend and hold harmless True Advisory, its affiliates and their respective officers, directors, members, managers, shareholders, employees, contractors, agents, successors and assigns from and against any breach by Client of this Section.
7.2 Subprocessors. To the extent applicable, Client specifically authorizes the engagement of True Advisory’s affiliates as subprocessors as defined under the General Data Protection Regulation. In addition, Client authorizes the engagement of any other third-parties as subprocessors. Information about such subprocessors, including their functions and locations is available at https://trust.trueplatform.com. When any new third-party subprocessor is engaged during the term of this Order, True Advisory will notify Client of the engagement (including the name and location of the relevant subprocessor and the activities it will perform) by updating the website listed above. If Client objects to such engagement on reasonable grounds relating to the protection of personal data in a written notice to True Advisory within 15 days of being informed thereof, Client and True Advisory will work together in good faith to find a mutually acceptable resolution to address such objection. If the Parties are unable to reach a mutually acceptable resolution within a reasonable timeframe, Client may, as its sole and exclusive remedy, terminate the Order and cancel the Services by providing written notice to True Advisory.
7.3 Data Security. True Advisory will implement reasonable technical and organizational measures in accordance with applicable law to ensure a level of security appropriate to the risk posed to the Client Data. Subject to applicable law, True Advisory will notify Client within 72 hours if True Advisory becomes aware of a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to, Client Data, and will cooperate with Client in dealing with such breach. Client is solely responsible for complying with laws applicable to Client with respect to any such breach, including fulfilling any notification obligations related to such breach.
8. Third Parties. Certain of the Services may be provided through affiliates and subsidiaries of True Advisory, provided that True Advisory will remain responsible for the performance of such Services. In addition, True Advisory may utilize third parties to provide portions of the Services and True Advisory will contractually obligate such third parties to terms at least as protective of Client as this Order.
9. Governing Law. This Order will be governed by the laws of the State of New Jersey, without regard to conflicts of law principles thereof. Each party irrevocably submits to the exclusive jurisdiction of the state and federal courts of New Jersey sitting in Camden County with respect to all disputes and other matters relating to this Order. The parties expressly waive any applications of the U.N. Convention on Contracts for the International Sale of Goods with respect to the performance or interpretations of this Order.
10. Injunctive Relief. Client agrees that any unauthorized use of or access to any Deliverables or the True Advisory IP will cause True Advisory irreparable injury that cannot be adequately compensated for by means of monetary damages. Client therefore agrees that any breach of this Order by Client may be enforced by True Advisory by means of equitable relief (including, without limitation, injunction), without True Advisory being required to post a bond or make a showing of irreparable harm, in addition to any other rights and remedies that may be available to True Advisory under applicable law.
11. Notice. All notices required under this Order will be in writing and will be delivered by : (1) hand-delivery; (2) reputable overnight mail service; (3) certified mail, return receipt requested; or (4) by electronic mail transmission. All notices will be effective upon confirmation or acknowledgment of receipt (or when delivery is refused), except notice by electronic mail, which will be effective when sent only if an automated return response stating the electronic mail was not deliverable is received by the sender. Each party’s address for the purposes of notices will be the address(es) listed in the Order to which this Order is attached. Either party may change its address for notice by giving notice of the new address to the other party. A copy of all notices provided to True Advisory shall also be provided to legal@trueplatform.com.
12. Termination. This Order may be terminated by either party at any time by providing at least 30 days prior written notice to the other party. Termination or expiration of this Order will not relieve either party of any rights or obligations accruing prior to such termination or expiration, including those relating to a breach of this Order and its terms and conditions resulting in termination. Upon any termination or expiration of this Order: (a) if such termination is based on breach by Client, Client will cease using the Deliverables provided under this Agreement; (b) Client shall be responsible for all Fees and associated expenses billed up to the date of termination, plus a pro-rata amount, as determined by True Advisory and based on its then-current rates, of the next invoice and any additional expenses required to close out the Order; provided, however the first fee installment under any Order is considered earned in its entirety at the commencement of such engagement regardless of the date of termination; and (c) at the written request of the other party, the receiving party will promptly return to the other party or destroy all Confidential Information in its possession or control, including all copies thereof not required for the party’s compliance with applicable law. Upon request, each party will certify in writing to its compliance with the information return and destruction duties of this Section. The relevant portions of Sections 1-13 will survive any termination or expiration of this Order.
13. This Order consists of these terms and conditions, all of which are incorporated in and made a part of this Order. This terms and conditions supersede any and all oral or written agreements or understandings between the parties, as to the subject matter of the Order. Client may not assign, delegate or transfer, by operation of law or otherwise, this Order or any of its rights or obligations under this Order without True Advisory’s prior written consent. Any such assignment, delegation or transfer in violation of the foregoing will be null and void. This Order may be changed only by a writing signed by both parties. The waiver of a breach of any provision of this Order will not operate or be interpreted as a waiver of any other or subsequent breach. If any provision of this Order is held by a court of competent jurisdiction to be unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions of this Order will continue in full force and effect. Neither party will be liable for any delay or failure in performance (except for any failure to pay amounts due hereunder) to the extent resulting from any cause beyond such party’s reasonable control, provided that such party takes reasonable steps to minimize the extent and duration of any such failure in performance. Client will not use, acquire, ship, transport, export or re-export any Deliverables or True Advisory IP, directly or indirectly, into any country in violation of any applicable law (including the United States Export Administration Act and the regulations promulgated thereunder). The parties are independent contractors, and nothing in this Agreement will create an employer-employee relationship, a partnership, or a joint venture between the parties. Neither party is authorized to make any representation, contract, or commitment on behalf of the other party.