2. USE OF THE SERVICES; USERS.
(a) License Grant. Upon RPAG’s receipt of full payment for the Services and on the terms set forth in this Agreement, RPAG hereby grants to Advisor a limited, non-exclusive, non-transferable, non-sublicensable, worldwide license to allow Advisor’s Users to access the Services and use the Services and Content (defined in subsection (b) below) solely for Advisor’s internal business use and in accordance with the terms of the Agreement.
(b) Restrictions on Use. Unless expressly permitted under the Agreement, Advisor and its Users shall not, directly or indirectly, and shall not permit any third party to: (i) allow anyone other than Users to access and use the Services, including any Data (defined below) submitted, published, disseminated or transmitted to or through, saved in, displayed on or otherwise contained in or communicated through the Services by RPAG (“Content”); (ii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Services or Content; (iii) modify, adapt, or translate the Services or Content; (iv) “scrape” or otherwise use any data mining, robots, or similar data gathering or extraction methods on the Services or Content; (v) market, rent, resell, copy, distribute, lease, lend, create derivative works of, sublicense, transfer, or provide access to the Services or Content or use the Services or Content for the benefit of anyone other than Users; (v) remove or modify any proprietary markings, restrictive legends or disclosures placed on the Services or Content; (vi) use the Services or Content in violation of any applicable law or regulation, (vii) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or for any purpose in violation of the Agreement; (viii) post or transmit any file through the Services which contains viruses, worms, Trojan horses, or any other contaminating or destructive features, or otherwise interfere or attempt to interfere with the proper working or security of the Services; or (ix) use the Services or Content with any other platform, software, or other manual or automatic tools without RPAG’s prior written consent, which, for the avoidance of doubt, includes as inputs into, for purposes of training or fine-tuning or otherwise in connection with, any artificial intelligence models or large language models. Advisor shall protect the proprietary nature of the Services and Content, using such efforts as Advisor uses to protect its own proprietary information, but in no event using less than a reasonable degree of care. Advisor shall not use the Services in any manner except as expressly permitted under the Agreement. Advisor shall immediately notify RPAG of any breach of the provisions of this Section 2(b). “Data” means financial, economic and other information from time to time available through the Services, the compilation, selection and arrangement of that information, and navigational aids within computer readable file copies of documents, reports and databases compiled from that information contained within the Services.
(c) Users. Users must be employees or independent contractors of Advisor. RPAG or an administrative User shall assign each User access credentials for the Services. Advisor and its Users are responsible for maintaining the confidentiality of all access credentials and for ensuring that set of access credentials is used only by the assigned User. Advisor is responsible for all activities that occur under any User account within its reasonable control. Advisor agrees to promptly notify RPAG of any known unauthorized use of the Services or Content, including any unauthorized person obtaining access to the Services or Content, or any other breach of security that may affect the Services. RPAG shall have no liability for any loss or damage arising from Advisor’s failure to comply with these requirements.
3. FEES AND TAXES.
(a) Fees. Advisor shall pay to RPAG the charges set forth in an Order, which consist of the fees for Services and, where applicable, any additional products and services (“Fees”). Except as otherwise expressly provided, all Fees are quoted in United States currency and are non-refundable. Fees for Services shall be paid annually in advance pursuant to the terms of the Agreement.
(b) Payment. All Fees are due and payable by Advisor within thirty (30) days of Advisor’s receipt of an invoice. Any payments, or portion, thereof not received on or prior to due date (except with respect to charges then under reasonable and good faith dispute) shall be subject to a service charge of two percent (2%) on the outstanding delinquent balance, first calculated as of the due date and then again, so long as the charges remain outstanding, on each monthly anniversary of the due date thereafter. Advisor shall also pay RPAG all sums expended by RPAG (including, without limitation, reasonable legal fees) in collecting overdue payments.
(c) Taxes. Advisor shall pay all applicable taxes and assessments as required by applicable law related to its receipt of Services, whether charged by RPAG or charged by a taxing authority.
4. TERM AND TERMINATION.
(a) Term. The Agreement shall commence on the Effective Date of the first Order between RPAG and Advisor and shall continue until the expiration or earlier termination of all Services under the Agreement (“Term”). Services will begin and continue in accordance with the initial term (the “Initial Term”) provided under an applicable Order. Upon expiration of the Initial Term, the term for the Services will automatically renew for additional terms of one (1) year (each, an “Extended Term“); provided, however, that either party may choose not to renew the Services at the end of either the Initial Term or any Extended Term upon written notice, for which email may suffice, to the other party delivered at least 90 days before the end of the Initial Term or the then-current Extended Term (whichever is applicable). Except as provided in this Section 4, Advisor may not cancel or terminate the Agreement as long as any Service subscription is in effect.(b) Material Breach. Either party may at any time (without prejudice to its other rights or remedies) terminate the Agreement in whole or in part upon thirty (30) days’ prior written notice to the other party in the event of a material breach of the Agreement by the other party, unless the other party cures such breach within such thirty (30) day period. If RPAG terminates the Agreement or any Order pursuant to this Section, Advisor shall, without limiting any rights of RPAG with respect to such breach, within ten (10) days of the effective date of such termination, pay all outstanding amounts owing to RPAG as of and including the effective date of the termination, plus the Fees that would be paid to RPAG through the end of the then-current term(s).
(c) Suspension. RPAG may, in its sole reasonable discretion, suspend some or all of the Services upon Advisor’s non-payment and/or misuse of the Services or delete, move, or edit any content provided by Advisor that violates or may violate the terms of the Agreement or any intellectual property right.
(d) Effect of Termination. Upon termination of the Agreement, Advisor shall (i) cease all use of the Services, including the Content; (ii) except as otherwise provided herein, including as set forth in Section 5(c), Section 6(b), and Section 7(c), return to RPAG or destroy all originals (and any copies thereof made by Advisor) of any tangible and intangible materials reflecting, constituting or relating to the Services being terminated; and (iii) certify to RPAG in writing that it has complied with the foregoing.
5. ADVISOR IP AND INFORMATION; RELIANCE.
(a) Advisor IP. Advisor hereby grants RPAG and/or its affiliates a limited use, non-exclusive, revocable, non-transferable, royalty-free license to view, reproduce, publish, modify, copy, use, transmit, and/or display the Advisor IP (as defined below) solely in connection with RPAG’s provision of the Services to Advisor. Notwithstanding anything to the contrary in the Agreement or any other agreement between the parties, Advisor and its licensors retain all right, title and interest, and all intellectual property rights, throughout the world in and to any and all Advisor IP. “Advisor IP” means all branded materials owned by Advisor, or licensed from a third party, and furnished by Advisor to RPAG in connection with Advisor’s use of the Services in any form or media, including, but not limited to, reports, projections, correspondence, memoranda, text, images, photos, designs, artwork, logos, trademarks and other similar content that Advisor uploads to or stores in the Services or otherwise provides to RPAG in connection with the Services during the term of the Agreement.(b) Advisor Information. Notwithstanding anything to the contrary in the Agreement or any other agreement between the parties, Advisor, on behalf of itself, and all Users, hereby grants to RPAG, its affiliates, and subcontractors a perpetual, irrevocable, sublicensable (through multiple tiers), transferrable, worldwide, non-exclusive, royalty-free license to use, reproduce, modify, display, distribute and otherwise exploit, without limitation, all information and data that Advisor and each of its Users enters in the Services or otherwise transmit or causes to be transmitted to RPAG in connection with the Services (“Advisor Information”).
(c) Representations, Warranties and Covenants. Advisor hereby represents and warrants on behalf of itself, and all Users that: (i) all Advisor IP and Advisor Information is owned by Advisor, or if not owned by Advisor, Advisor has the full power, authority, and valid right to use the Advisor IP and Advisor Information and sublicense such rights to RPAG as provided by Sections 5(a) and (b) hereof, (ii) Advisor has all rights necessary to permit RPAG to use Advisor IP and Advisor Information in connection with the Services as provided by the Agreement, and (iii) the permitted use of the Advisor IP and Advisor Information by RPAG pursuant to this Agreement will not misappropriate, violate, or infringe the intellectual property rights of any third party.
6. OWNERSHIP OF SERVICES.
(a) Ownership.- As between RPAG and Advisor, all Services, Content, information regarding or generated by the use of the Services by Advisor and its Users, including any end user profile, visit, session, impression, click through or click stream data and any statistical or other analysis, information or data based on or derived from any of the foregoing (“Usage Information”), and any output, information, or analysis provided through the Services, any materials or code provided by RPAG or a third party as part of the Services, any and all updates related to the foregoing, and all intellectual property rights therein, are and shall remain the property of RPAG and/or its sources, including any third party that licenses Third Party Data (defined below), software or other materials to RPAG for inclusion in the Services (“Third Party Licensors”), as applicable. Advisor acknowledges that the Services, Content and Usage Information are compiled, prepared, selected and arranged by RPAG and its sources, including its Third Party Licensors, through the expenditure of substantial time, effort and money and that they constitute valuable property of RPAG and its sources, including its Third Party Licensors. Advisor shall have no right, interest, or license in the Services, Content or Usage Information whether by implication, estoppel or otherwise, other than as expressly set forth in the Agreement.
- RPAG and the RPAG logo are registered marks of RPAG. All other RPAG trademarks, service marks, domain names, logos and company names or other proprietary designations of RPAG referred to in the Services are either trademarks, service marks, domain names, logos or company names or are otherwise the property of RPAG. In countries where any of the RPAG trademarks, service marks, domain names, logos or company names are not registered, RPAG claims other rights associated with unregistered trademarks, service marks, domain names, logos, trade name and company names. Other product or company names referred to in the Services may be trademarks of their respective owners. Advisor may not use any trademark, service mark, domain name, logo, company name or trade name of RPAG or any third party without permission from the owner of the applicable trademark, service mark, domain name, logo, company name or trademark.
(b) Feedback. Any feedback, enhancement requests, corrections, suggestions, modification or other information Advisor provides to RPAG regarding the features, functionality, or performance of the Services, or any information regarding the failures, errors, deficiencies, or other malfunctions in the Services (collectively, “Feedback”) may be treated by RPAG on a non-confidential and unrestricted basis. Advisor agrees that RPAG may use disclose, publish, or otherwise exploit any Feedback in any manner without any restriction, compensation or obligation to Advisor, and Advisor hereby assigns to RPAG all rights in and to Feedback.
(c) Third Parties. Advisor acknowledges and agrees that: (i) RPAG, Third Party Licensors, and other third parties enable RPAG to provide the Services, (ii) Data sourced from a third party (“Third Party Data”), software, materials and other content may be included in the Services, and (iii) RPAG may share information about the Services and Advisor’s use of the Services with Third Party Licensors to improve the Services, to make the Services available to Advisor, and as may be required by Third Party Licensors. From time to time, Advisor may be required to comply with the terms of a Third Party Licensor agreement, for example, as a condition of access to or use of Third Party Data, software or other materials provided by Third Party Licensors. Those terms shall be legally binding on Advisor and are available at https://rpag.com/third-party-terms.
7. CONFIDENTIALITY.
(a) Each party (the “Receiving Party”) shall preserve the confidentiality of all proprietary, non-public information which is in tangible form and labeled “confidential” (“Confidential Information”) and disclosed to it by the other party (the “Disclosing Party”). Confidential Information shall not include information which: (a) has become publicly known to the Receiving Party without breach of the Agreement or any other confidentiality obligation; (b) has been given to the Receiving Party by a third party with a legal right to so disclose; (c) was known to the Receiving Party at the time of disclosure as evidenced by its written records; or (d) was independently developed by the Receiving Party without reference to or use of the Confidential Information.(b) Neither party will use, or disclose to any third party, the Confidential Information of the Disclosing Party in violation of the terms and conditions of the Agreement without the prior written consent of the other Party, provided that, each party may disclose the Confidential Information of the Disclosing Party without notice, a protective order or other remedy (i) as compelled by law, including where disclosure is in connection with a routine audit or examination by, or a blanket document request from, a regulatory or self-regulatory authority, bank examiner or auditor that does not specifically target Advisor or this Agreement (ii) in confidence to its legal counsel, (iii) in connection with the exercise of its rights (including any license grants) or performance of its obligations under the Agreement. For the avoidance of doubt, notwithstanding the preceding sentence, the uses and disclosures of information by the parties that are permitted in Sections 2, 5 and 6 of the Agreement shall not constitute uses and disclosures of Confidential Information in violation of the terms and conditions of the Agreement.
(c) Notwithstanding anything to the contrary in the Agreement, the Receiving Party and its officers, directors, employees, affiliates, representatives, and agents (“Representatives”) may retain Confidential Information (i) stored in standard archival or computer back-up systems (including in email systems); retained pursuant to such person’s normal document retention practices; for litigation or regulatory purposes; or to the extent required by law, and/or (ii) pursuant to their professional accounting obligations.
(d) The Receiving Party acknowledges that the Disclosing Party may suffer immediate and irreparable harm in the event of actual or threatened breach of the obligations of non-disclosure assumed hereunder and the Disclosing Party shall be entitled to seek immediate injunctive relief restraining the Receiving Party from the breach or threatened breach, in addition to any other remedies available to it in law or equity. Each party shall be responsible for a breach of this provision by its Representatives and represents that its Representatives have undertaken general obligations of nondisclosure with regard to proprietary and Confidential Information to which they have access during the course of their employment or engagement no less restrictive than those imposed on each party hereunder.
8. INDEMNIFICATION.
(a) By RPAG.- RPAG will defend, indemnify, hold harmless and handle at its own expense, any third-party claim or action against Advisor, or any of its respective officers, directors, employees, agents, or successors, for actual or alleged infringement by the Services of any United States patent or copyright, provided that (i) Advisor notifies RPAG promptly in writing of any such claim; and (ii) Advisor’s use of the Services has been in accordance with applicable law, any written instructions, terms of use, or documentation provided by RPAG, and the terms of the Agreement.
- Notwithstanding Section 8(a)(i), RPAG shall have no liability for any claim of infringement to the extent such claim is based on: (a) Advisor’s or its User’s or other nominee’s unauthorized alteration, modification, or revision of the Services; (b) the combination, operation or use of the Services with applications or other products and services not furnished or approved by RPAG, if such infringement would have been avoided by the use of the Services without such other applications or other products and services; or (c) any matter for which Advisor is required to indemnify RPAG, its affiliates, nominees or any of its officers, directors, employees, agents, or successors pursuant to Section 8(b) of the Agreement.
- Subject to the limitations contained herein, in the event of a claim for infringement and Advisor’s use of the Services is enjoined, RPAG reserves the right to procure for Advisor the right to continue using the Services in accordance with the terms of the Agreement, substitute the infringing portion of the Services with a substantially similar software or service, or terminate the Agreement with respect to the allegedly infringing portion of the Services and refund to Advisor the portion of any fees paid hereunder relating to the infringing portion of the Services, prorated from the date Advisor’s use of the Services was enjoined.
(b) By Advisor. Advisor will defend, indemnify, hold harmless RPAG, its affiliates, or any of its and their nominees, officers, directors, employees, agents, or successors and handle at its own expense, any third party claim, action, liability, or obligation arising out of or relating to: (i) any breach of Section 2(a), Section 2(b), or Section 5(c) by Advisor, its Users, or any of its officers, directors, employees, agents, or successors, (ii) RPAG’s or its affiliates’ use of the Advisor IP in accordance with the terms of the Agreement, (iii) Advisor’s provision of data or information into or in connection with the Services, or (iv) Advisor’s gross negligence, fraud, or willful misconduct, in each case, except for claims that arise primarily from matters for which RPAG is required to indemnify Advisor pursuant to Section 8(a) of the Agreement.
(c) Procedure. The indemnifying party (“Indemnifying Party”) shall have the sole right to conduct the defense of any such claim or action and all negotiations for its settlement or compromise unless otherwise mutually agreed to in writing between the parties hereto, provided that the Indemnifying Party shall not have the right to execute any agreement, document or pleading that names the indemnified party (“Indemnified Party”) as a party, that imposes additional costs or obligations upon, or makes statements regarding, the Indemnified Party without such party's prior written consent, which consent will not be unreasonably withheld or delayed. Each party agrees to give the other party prompt notice of any written threat, warning, or notice of any such claim or action that may give rise to an indemnifiable event under this Section 8, and to deliver copies of all papers served upon or received by the other party relating to such claim or action that may be indemnified hereunder. The Indemnified Party shall provide reasonable assistance to the Indemnifying Party (at the Indemnifying Party's expense) regarding the defense of such claim or action.
9. DISCLAIMER OF WARRANTIES.
(a) RPAG IS NOT LICENSED TO AND DOES NOT PROVIDE ANY SERVICES OR ADVICE RELATED TO ASSETS, SECURITIES, COMMODITIES, OR INVESTMENT PRODUCTS OR THE PURCHASE OR SALE OF ANY ASSETS, SECURITIES, COMMODITIES, OR INVESTMENT PRODUCTS. AS SUCH, THE SERVICES DO NOT CONTITUTE A RECOMMENDATION TO BUY OR SELL ASSETS, SECURITIES, COMMODITIES, OR INVESTMENT PRODUCTS OF ANY KIND. RPAG HAS NOT UNDERTAKEN ANY LIABILITY OR OBLIGATION RELATING TO THE PURCHASE OR SALE OF ANY ASSETS, SECURITIES, COMMODITIES, OR INVESTMENT PRODUCTS FOR OR BY ADVISOR.
(b) ADVISOR SHALL BE SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL APPLICABLE LAWS, REGULATIONS AND RULES GOVERNING ITS ACTIVITIES AND USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION ALL STATE AND SECURITIES AND EXCHANGE COMMISSION RULES GOVERNING INVESTMENT ADVISERS AND BROKER-DEALERS, AS APPLICABLE. TO THE EXTENT RPAG HAS PROVIDED ADVISOR WITH ANY MODELS, REPORTS, MATERIALS, INCLUDING CHARTS, INFORMATION, ANALYSIS, DOCUMENTS, AGREEMENTS OR OTHER MATERIALS OF ANY NATURE, IT IS ADVISOR’S RESPONSIBILITY TO ENSURE ANY SUCH MATERIALS ARE FULLY COMPLIANT WITH LAWS AND REGULATIONS THAT APPLY TO ADVISOR’S USE THEREOF AND RPAG AND ITS AFFILIATES ARE NOT RESPONSIBLE THEREFOR. ADVISOR ACKNOWLEDGES THAT RPAG DOES NOT PROVIDE AN INVESTMENT ADVISORY OR BROKERAGE SERVICE, DOES NOT PROVIDE PERSONALIZED FINANCIAL ADVICE, AND DOES NOT ACT AS A FINANCIAL OR INVESTMENT ADVISOR, AND THAT NONE OF THE SERVICES PROVIDED BY RPAG UNDER THE AGREEMENT OR OTHERWISE WOULD BRING RPAG WITHIN THE MEANING OF AN “INVESTMENT ADVISER” UNDER THE INVESTMENT COMPANY ACT OF 1940, THE INVESTMENT ADVISERS ACT OF 1940, OR WITHIN THE MEANING OF A “BROKER-DEALER” UNDER THE SECURITIES EXCHANGE ACT OF 1934. THE SERVICES ARE INTENDED FOR INFORMATIONAL PURPOSES ONLY AND RPAG DOES NOT ENDORSE ANY INVESTMENT PRODUCTS, SECURITIES, COMMODITIES, ASSETS OR THIRD-PARTY SERVICES OR SERVICE PROVIDERS. UNDER THE AGREEMENT, NEITHER RPAG NOR ANY OF ITS AFFILIATES IS (I) SERVING AS A FIDUCIARY (II) PROVIDING ANY LEGAL, TAX, FINANCIAL PLANNING, INVESTMENT, PROFESSIONAL OR REGULATORY ADVICE OR OPINIONS, (III) MAKING ANY RECOMMENDATIONS, OR SUITABILITY DETERMINATIONS, OR (IV) SOLICITING ANY ACTION BY OR FROM ADVISOR OR ITS AFFILIATES OR THEIR RESPECTIVE CLIENTS OR PROSPECTIVE CLIENTS BASED ON THE SERVICES OR OUTPUTS PROVIDED BY RPAG UNDER THE RELEVANT ORDERS, THROUGH THE SERVICES, OR OTHERWISE, AND THE SERVICES DO NOT INVOLVE RPAG OR ANY OF ITS AFFILIATES TAKING ANY OF THE FOREGOING ACTIONS. NONE OF THE INFORMATION, REPORTS, ANALYTICS AND/OR OUTPUT FROM THE SERVICES IS INTENDED TO SERVE AS THE SOLE OR PRIMARY BASIS FOR ANY INVESTMENT DECISION BY ADVISOR OR ITS AFFILIATES, OR THEIR RESPECTIVE CLIENTS OR PROSPECTIVE CLIENTS. THE SERVICES SHOULD NOT BE USED AS A SUBSTITUTE FOR CONSULTATION WITH PROFESSIONAL ACCOUNTING, TAX, LEGAL OR OTHER APPROPRIATE ADVISERS.
(c) THE SERVICES ARE FURNISHED TO ADVISOR ON AN “AS IS” BASIS WITH ALL FAULTS AND DEFECTS CONTAINED THEREIN. RPAG, IN CONNECTION WITH PERFORMING THE SERVICES UNDER THE AGREEMENT, WILL BE RELYING UPON INFORMATION FROM INDUSTRY-SPECIFIC THIRD PARTY SOURCES AND THIRD PARTY LICENSORS. RPAG IS NEITHER RESPONSIBLE FOR THE ACCURACY OR COMPLETENESS OF, NOR WILL RPAG HAVE ANY OBLIGATION TO VERIFY THE INFORMATION, DATA OR MATERIALS PROVIDED OR MADE AVAILABLE FROM ANY SUCH SOURCE. RPAG DOES NOT ASSUME ANY LIABILITY FOR ANY INFORMATION PRESENTED IN THE SERVICES. RPAG DOES NOT WARRANT, GUARANTEE, OR MAKE ANY REPRESENTATIONS REGARDING THE USE, OR THE RESULTS OF THE USE, OF THE SERVICEs, ANY INFORMATION CONTAINED THEREIN OR OTHERWISE PROVIDED PURSUANT TO THE AGREEMENT, OR THAT THE SERVICEs WILL MEET ADVISOR’S REQUIREMENTS.
(d) NEITHER RPAG NOR ANY THIRD PARTY LICENSOR MAKES ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS, IMPLIED OR statutory, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, TITLE, NON-INFRINGEMENT, SECURITY, OR ACCURACY, WITH RESPECT TO ANY ASPECT OF THE SERVICES (INCLUDING ANY DATA, PRODUCTS, WORK PRODUCT, SOFTWARE OR OTHER SERVICES PROVIDED AS PART THEREOF). NEITHER RPAG NOR ANY THRIRD PARTY LICENCSOR MAKES ANY WARRANTY THAT THE SERVICES WILL RESULT IN ANY REVENUE OR PROFIT. NO PARTY’S AGENT OR EMPLOYEE IS AUTHORIZED TO MAKE ANY EXPANSION, MODIFICATION OR ADDITION TO THIS LIMITATION AND EXCLUSION OF WARRANTIES IN THE AGREEMENT.
10. LIMITATION OF LIABILITY
(A) WAIVER OF CONSEQUENTIAL DAMAGES. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, NEITHER PARTY NOR ITS AFFILIATES, RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, AGENTS, REPRESENTATIVES, SUCCESSORS, OR ASSIGNS BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, DATA, OR GOODWILL) RESULTING THEREFROM, REGARDLESS OF CAUSE, REGARDLESS OF WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.(B) LIMITATION ON DIRECT DAMAGES. EXCEPT WITH RESPECT TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREUNDER OR GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT, NEITHER PARTY’S LIABILITY, WHETHER ARISING FROM CONTRACT, TORT OR OTHERWISE, SHALL EXCEED THE AMOUNT THAT ADVISOR HAS PAID OR THAT IS PAYABLE HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT THAT DIRECTLY GAVE RISE TO THE DAMAGES CLAIMED, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE.
11. MISCELLANEOUS.
(a) The Agreement will be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles. Any controversy or claim arising out of or relating to the Agreement, the alleged breach hereof, the services rendered by RPAG, or the relationship of the parties, shall be conclusively settled by binding and non-appealable arbitration, in accordance with the Commercial Arbitration Rules of the American Arbitration Association and judgment upon the award rendered (which shall include the award of reasonable attorney’s fees to the prevailing party) may be entered in any court having jurisdiction hereof.
(b) The headings in the Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning or interpretation of the Agreement.
(c) Neither RPAG nor any of its sources shall be liable to Advisor for any delay in performance or failure to perform caused directly or indirectly by fire, explosion, accident, flood, labor trouble, weather condition, any regulation, rule or act of any government or governmental agency, or the inability to obtain or shortage of suitable material, components, parts, equipment, machinery, fuel, power, communication facilities or transportation, act of God, armed conflicts, civil commotion or any other cause of like character beyond the reasonable control of RPAG or any of its sources.
(d) Advisor may not assign the Agreement without the prior written consent of RPAG. RPAG may assign the Agreement without obtaining Advisor’s consent so long as such assignment is to an RPAG affiliate, or to acquirors or successors of all or substantially all of RPAG’s assets or business, or to acquirors or successors of all or substantially all of RPAG’s business group of which the Agreement is a part. The rights and obligations herein shall bind the parties and their successors and assigns.
(e) The parties agree that the Uniform Computer Information Transaction Act, whether enacted in whole or in part by any state or applicable jurisdiction, regardless of how codified shall not apply to the Agreement and is hereby disclaimed to the fullest extent permitted under applicable law.
(f) The Agreement contains the entire understanding with respect to the subject matter hereof and no oral or prior written statements or representations not contained herein will have any force or effect. The Agreement may not be amended except as agreed upon by both parties in writing. In the event of a conflict between these Platform Terms and an Order, an Order shall take precedence over these Platform Terms. Advisor agrees that its acceptance of future delivery of the Services shall constitute conclusive evidence of its agreement that the Services shall be subject to the terms and conditions of the Agreement.(g) Each paragraph and provision of the Agreement is severable from the Agreement and if one provision or part is declared invalid, the remaining provisions or parts shall nevertheless remain in full force and effect.
(h) Solely with respect to the subject matter it addresses, the Agreement constitutes the entire and exclusive statement of the terms and conditions between Advisor and RPAG. With the sole exception of adding Users or Services in accordance with the Agreement, any terms and conditions in a purchase order or similar document in addition to or different from the terms and conditions herein shall be of no effect.
(i) The provisions of Sections 2(b) through 11 of the Agreement shall survive its termination to the extent necessary for the enforcement of each party’s rights and obligations under the Agreement.
(j) The parties acknowledge that the parties are independent contractors. Neither party will be deemed to be an employee, agent, partner (notwithstanding the title of the Agreement or the terminology used herein), joint venturer, or legal representative of the other party for any purpose, and neither party will have any right, power, or authority to obligate the other party.
(k) Notice under the Agreement shall be considered delivered to recipient (i) on the date of receipt, if delivered by hand, overnight courier or, (ii) if sent by electronic means (email), on the date sent if sender does not receive a “failure to send” or “rejection response”, and (iii) six days after the date of mailing by sender, if mailed postage paid. Notice shall be given to each party at its physical address or email address and to the attention of the person set forth below the signature lines of the Agreement. Any such address may be changed by any party hereto by the delivery of written notice thereof to the other party.