Terms and Conditions
Rev. Date March, 2021
EACH USER IS OBLIGATED TO COMPLY WITH ALL OF THE OBLIGATIONS OF SUBSCRIBER SPECIFIED IN THESE TERMS OF SERVICE AND THE ORDER FORM (TOGETHER, THE “AGREEMENT”). BY ENTERING INTO THE AGREEMENT SUBSCRIBER ACKNOWLEDGES AND AGREES THAT CERTAIN OF THE FABRIC CONTENT (DEFINED BELOW) IS BASED ON OR DERIVED FROM BARRA, LLC’S DATA, AND HAS BEEN PREPARED AND PROVIDED TO SUBSCRIBER SOLELY FOR ITS INTERNAL USE AND MAY NOT BE REDISTRIBUTED IN ANY FORM OR MANNER TO ANY THIRD-PARTY OTHER THAN AS EXPRESSLY PERMITTED BY THE AGREEMENT OR AS REQUIRED BY APPLICABLE LAW AND SUCH CONTENT IS SUBJECT TO ADDITIONAL LIMITATIONS WHICH ARE IDENTIFIED IN ANNEX A HERETO (WHICH IS INCORPORATED BY REFERENCE INTO THE AGREEMENT).(a) The Platform. Fabric’s risk analytics electronic platform (the “Platform”) is made available to investment advisers, financial advisers and others in the global investment community to provide tools and information to assist such persons of their own responsibilities by providing factor analysis and advanced scenario modeling capabilities for technology-driven investment risk analysis. The term “Platform” includes (i) all financial and market data, financial research, analytic tools, charts, graphs, reports, text, video, digital media, audio, and all other content displayed, stored or created on, or submitted to, the Platform (other than Subscriber Data (defined below)) (collectively, “Fabric Content”) and (ii) all software contained on or associated with the Platform and all associated documentation (collectively, the “Platform Software”), and (iii) all hardware infrastructure of Fabric or its Third-Party Service Providers (defined below) associated with the Platform. The term “Services” means the delivery of financial analytics, data and other services on or through the Platform. For the avoidance of doubt, Fabric Content and Services delivered through the Platform may include content or services supplied to Fabric by and owned by Fabric’s third-party licensors or suppliers, including Barra, LLC (“Third-Party Suppliers”).
- SUBSCRIBER ELIBILITY AND REGISTRATION
(c) Subscriber Eligibility. Subscriber’s and its User’s eligibility to access and use the Platform is at all times subject to continuing compliance with the Agreement. Subscriber represents, warrants, and covenants that as of the date hereof and at all times during the Subscription Term: (i) Subscriber is a registered as an investment adviser; (ii) User is an authorized employee or representative of Subscriber, authorized to use the Platform on behalf of Subscriber, and is at least 18 years of age; (iii) Subscriber has the power and capacity to enter into and to perform its obligations under the Agreement; the Agreement has been duly authorized, executed, and delivered by Subscriber, and constitutes a valid and binding obligation of Subscriber enforceable in accordance with its terms; and Subscriber’s execution, delivery, and performance of this Agreement does not violate or result in any default under any other contract or agreement to which Subscriber is a party or its assets may be bound, or any law, statute, rule, regulation, or order of any country or political subdivision, or any regulatory, self-regulatory, or membership organization that has jurisdiction over Subscriber, or of which Subscriber is a member; (iv) Subscriber has received all consents and other approvals, and has met any and all applicable legal and other requirements, necessary for Subscriber to enter into this Agreement and use the Platform, including to make Client Account Data (defined below) available, and to access and process such data on the Platform; (v) The Profile Information submitted by Subscriber is true, accurate, and complete; (vi) Subscriber will use the Platform and the Services only for Subscriber’s own business and not for the use or benefit of any third-party (other than Subscriber’s actual or prospective investment advisory clients (the “Clients”)); and (vii) Subscriber and its Users will not use the Platform and the Services as a basis for any of their investment decisions, and the Platform and the Services will be used solely as a tool to facilitate Subscriber’s and its User’s own analysis and decision making. Subscriber shall notify Fabric in writing before or as soon as practicable upon the occurrence of, or if it knows or has reason to know of the occurrence of or likelihood of the occurrence of, any event which causes any change in any of the foregoing representations or warranties.
(d) Credentials. Each User will be issued a unique user ID, and an associated password, or other login credentials (which the User may change) (collectively, “Credentials”), which will be associated with Subscriber’s account. All Credentials shall be kept strictly confidential, may be used only by the User to whom the Credentials are assigned. Fabric may rely on any activity on the Platform conducted through use of Credentials associated with Subscriber’s account as originating and being authorized by Subscriber. Subscriber must notify Fabric immediately in writing if: (i) it becomes aware of or reasonably suspects any breach of security or unauthorized use of Subscriber’s account or any Credentials and (ii) if any User ceases to be employed by or an authorized representative of Subscriber. Upon receipt of the foregoing notice, Fabric may in its sole discretion undertake commercially reasonable efforts to suspend or disable the applicable Credentials and Subscriber shall be responsible for any actions taken on its behalf that occur prior to such notification. Subscriber is responsible for the compliance with these Terms of Service by each User and any other person who gains access to the Platform by use of the Credentials or otherwise as a result of Subscriber’s failure to use reasonable security precautions.
- RIGHT TO USE THE PLATFORM AND SERVICES; RESTRICTIONS ON USE.
(a) Limited Right to Use. Subject to compliance with these Terms of Service and the Order Form, Fabric grants to Subscriber a limited right to access the Platform and use the Services, including to process, download and print content provided on or through the Platform, including Subscriber Data (defined below) and Fabric Content (collectively, “Platform Content”), solely by the registered User and solely for use in Subscriber’s own business of providing investment and financial advisory services to Clients, in accordance with the Permitted Use Policy specified in Section 3(b) and the marketing license specified in Section 3(c). The rights granted herein are non-exclusive, non-sublicensable and non-transferable. Subscriber’s right to access the Platform and Services may be revoked where Subscriber or its User violates these Term of Services, or where the Agreement or use of the Platform or Services is prohibited, or to the extent the offer, sale, or provision of the Platform or Services conflicts with any applicable law, rule, regulation, policy, procedure, contract, agreement, or understanding. Fabric may, in its sole discretion, revoke or refuse to offer access to the Platform or Services to any User or change the Platform’s eligibility criteria, at any time.
(b) Permitted Use Policy. Subscriber agrees that the Services are subject to a Permitted Use Policy, which is detailed below. If Fabric provides notice of non-compliant usage, and Subscriber refuses to correct such non- compliance, Fabric reserves the right to charge up to twelve (12) months in arrears for any actual usage of the Services that exceeds the Permitted Use Policy, and to adjust Subscriber’s billing for the remainder of the current Subscription Term to reflect such actual usage of the Platform and Services at the time of notice. The Permitted Use Policy is as follows:
(i) User accounts may not be shared between multiple individuals, or used by one individual to produce the outputs of the Services for multiple individual financial advisers.
(ii) Permitted Use for a single User is up to 200 Client profiles per month (inclusive of actual and prospective Clients), and Fabric may invoice Subscriber additional fees if any User exceeds 200 unique Client profiles in any month.
(iii) A User account that is licensed only for administrative/operations assistants (an “Assistant License”) may not be used by an individual holding a securities registration who meets with Clients and/or provides investment or financial advice. By way of example and not limitation, if an individual is identified on Subscriber’s website as an adviser or client-facing representative of Subscriber, such individual does not qualify for an Assistant License. Fabric reserves the right to determine which named individuals may qualify, to change that determination if such individuals role with Subscriber changes, and to limit the number of assistant licenses available to Subscriber.
(c) Marketing License. During each Subscription Term and subject to Subscriber’s continued compliance with the Agreement, Fabric hereby grants Subscriber a limited, non-exclusive, non-transferrable license to utilize its “Fabric” trademark, logo and brand images (“Fabric Trademark”), marketing copy, content resources, white papers, print collateral, slide decks and other marketing resources (collectively, the “Marketing Resources”) provided to Subscriber and its Users, for the sole purpose of promoting Subscriber’s use of Fabric’s Services and solely in Subscriber’s marketing communications directed at acquiring and/or retaining Clients. Subscriber agrees to utilize the Marketing Resources in accordance with any brand image guidelines provided to Subscriber by Fabric. Any use by Subscriber of any Fabric Trademark shall include, proximate to the Fabric Trademark and in a prominent manner, the following disclaimer in a legible size and font: “Fabric is not affiliated with Subscriber, and does not participate in or endorse any of Subscriber’s activities”. On request of Fabric, Subscriber shall provide copies of all Subscriber materials that incorporate the Fabric Trademarks or any other Marketing Resources. Notwithstanding any such production to Fabric, and at any time, in its discretion and for any reason, Fabric has the right to direct Subscriber to, and Subscriber shall, cease and desist any or all uses of the Marketing Resources.
(d) Security. Subscriber shall comply with all applicable security and other procedures imposed by or applicable to the network or platform that Subscriber uses to access and use the Platform.
(e) Reservation of Rights. No rights in the Platform or Services, or the Fabric Content or any intellectual property rights in the foregoing, are granted to Subscriber or User except as expressly stated herein, including by implication or estoppel or otherwise. All rights in the Platform or Services to Fabric Content not expressly granted herein are reserved to Fabric.
(f) Limitations on Access and Use. In no event shall Subscriber use the Platform or Services, or any Fabric Content, for any purpose other than as expressly permitted hereunder. Without limiting the foregoing, Subscriber shall not (or assist any others to attempt), directly or indirectly: (i) redistribute, reproduce, republished, download, display, post, copy, frame, mirror or otherwise retransmit the Platform, Services or any Fabric Content, by electronic, mechanical, photocopying, recording or any other form or means; (ii) except to the limited extent applicable laws specifically prohibit such restriction, adapt, translate, decompile, reverse engineer, reprint, transcribe, extract, reproduce, modify, alter, disassemble, create derivative works based on, or obtain, in any manner, the source code, algorithms, architecture or underlying ideas of the Platform the Fabric Content or any software contained thereon, or any portion thereof, or otherwise copy the Platform or any Platform Software; (iii) redistribute, retransmit, reproduce, republish, upload, post, lease, or otherwise provide any other person access to the Platform, Services or Fabric Content, or any portion thereof, or otherwise transfer to any third-party any portion of the rights that Subscriber receives hereunder; (iv) transfer or exploit the Platform, Services or any Fabric Content, or any portion thereof, to create a site or service that is in any way competitive with the Platform and/or Fabric or for any commercial use; (v) compare the Platform with competing platforms for any purpose other than Subscriber’s internal use of the Platform; (vi) take any action that imposes or may impose (as determined by Fabric in Fabric’s sole discretion) an unreasonable or disproportionately large load on Fabric’s (or its Third-Party Service Providers’) infrastructure, unless Subscriber obtains Fabric’s prior express written consent in each instance, which Fabric may rescind at any time, with or without notice or cause; (vii) interfere or attempt to interfere with the proper functioning of the Platform or any activities conducted on the Platform, or bypass or circumvent, or attempt to bypass or circumvent, any measures Fabric may use to prevent or restrict access to the Platform (or other accounts, computer systems, or networks connected to the Platform); (viii) run any form of auto-responder or “spam” on the Platform; (ix) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Platform or “harvest” or “scrape” any Fabric Content from the Platform, or otherwise create a database of any Fabric Content, except for limited download or printing of Fabric Content as reasonably necessary for Subscriber’s own business use in support of its Clients; (x) use the Platform, Services or Fabric Content in violation of law, (xi) allow any Client direct access or use of the Platform or the Services, or (xii) otherwise take any action in violation of this Agreement.
(g) No Financial Advice. Subscriber acknowledges and agrees that that the Platform, Services and Platform Content are provided solely as analytic tools for investment risk analysis by Subscriber, and are intended solely to assist Subscriber and its Users in rendering investment advice to Subscriber’s Clients. The Platform, Services and Platform Content and not intended and do not reflect any advice or recommendation by Fabric for any financial investment, nor any course of action for Subscriber to render advice to its Clients.
- CLIENT ACCOUNT DATA
(a) Processing of Client Account Information. Fabric will establish means by which account information of Subscriber’s Clients (“Client Account Data”) may be transferred from the systems of the account custodians and into the Platform. Subscriber will have the discretion to select, and will be solely responsible to identify, those Clients and accounts for which Client Account Data will be made available to Subscriber on the Platform. Subscriber acknowledges, understands and agrees that the Client Account Data is supplied to the Platform by the account custodians and other third-parties (“Third-Party Account Providers”) that are not under the control of or in privity with Fabric. Without limiting the foregoing, Fabric will deliver the Client Account Data as provided by the account custodian, but has no obligation to review or confirm any Client Account Data, or to consider or provide any other information about any Client.
(b) CONTENT DISCLAIMER. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, FABRIC IS NOT RESPONSIBLE FOR THE CONTENT, COMPLETENESS, ACCURACY OF THE CLIENT ACCOUNT DATA OR ANY OTHER FINANCIAL AND OTHER DATA, PRODUCTS AND SERVICES OBTAINED FROM SUCH THIRD-PARTY ACCOUNT PROVIDERS, OR THAT SUCH DATA IS SUITABLE FOR SUBSCRIBER’S USE OR ANY PURPOSE.
(c) Subscriber Data. By uploading or otherwise delivering to Fabric data for inclusion on the Platform (including by designating Client Account Data to be delivered to the Platform by the Third-Party Account Providers) (all such data submitted by or on behalf of Subscriber (the “Subscriber Data”), Subscriber grants to Fabric (and its successors and assigns) rights to use, edit, modify, truncate, aggregate, reproduce, prepare derivative works of, display, store, analyze, process, perform, and otherwise fully use such Subscriber Data as necessary to provide the Services to Subscriber, and to operate, develop, and maintain the Platform. Subscriber is solely responsible for obtaining and maintaining all rights and consents necessary for Subscriber to receive, process and maintain such Subscriber Data on the Platform as contemplated hereunder, and represents and warrants that it has and will ensure that it continues to have such rights and consents, and such use of such Subscriber Data is in compliance with all applicable laws, rules, regulations, and employer policies.
- Billing, Payment and Subscription Term.
The fees payable for the Services are as specified in the Order Form. Unless stated otherwise on your Order Form, the following contractual terms apply.
(a) Except as otherwise provided in an Order Form, the initial term of the Subscription Term is twelve (12) months from the date Service commences, and each User’s subscription will automatically renew for successive subsequent twelve (12) month renewal terms, unless notice of non-renewal is provided by either party at least thirty (30) days in advance of each renewal. Fabric may not apply future pricing increases during the then-current Subscription Term. If Fabric determines in its discretion to change any subscription fees, Fabric will provide at least thirty (30) days’ prior notice to Subscriber and such pricing change will automatically become effective as of the beginning of next renewal term.
(b) Any additional licenses, add-ons or other Services added during the course of a Subscription Term will be committed for the remainder of the current Subscription Term, unless otherwise noted on an Order Form for the additional licenses, add-ons or Services.
(c) Subscriber will be billed annually in advance via the method specified by Fabric in the Order Form (which will be determined by Fabric in its discretion and may include by invoice, Subscriber’s credit card or ACH withdrawal from such Subscriber’s bank account). Billing by credit card may incur an additional service charge as determined by Fabric. If so provided in an Order Form, monthly billing may be available at a higher license fee. All fees are non-refundable once billed. If Subscriber believes it has been billed in error, please email email@example.com and Fabric will be glad to assist.
- FABRIC CONTENT
(a) Notices. Fabric Content may include material protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws, or subject to particular legal or contractual limitations or disclaimers. Please read any and all notices or disclaimers posted on the Platform with respect to any Fabric Content. Subscriber agrees to comply with any and all such notices or limitations, including, all copyright notices, information, and restrictions contained in any Fabric Content.
(b) Availability of Platform Content. Fabric shall at all times have the exclusive right to determine the Services, Platform Software, and/or Fabric Content that Fabric will offer on the Platform and may in its sole discretion exercise full editorial control over the Platform and the Fabric Content and appearance thereof. Fabric reserves the right, in its sole discretion, to modify the Platform, Services, Platform Software, Fabric Content, and any other Platform components. Fabric does not guarantee that any Platform Content will be made available or will continue to be available on the Platform, and may in its discretion, for any reason, at any time and without notice to Subscriber or liability, suspend, or discontinue the Platform, modify the Platform or remove, edit, modify, or block any Platform Content, including, the analytics, Platform Software, Platform Content, or any other Platform components. Subscriber may provide notice of any such suspension or modification by posting a notice on the Platform, or by sending Subscriber notice through the Platform, via e-mail, or by another appropriate means of electronic communication. Such modifications may be made due to, without limitation: (A) external factors including, changes in law or legal or regulatory guidance, changes to industry practice, market factors, and changes to external costs; (B) internal factors including, personnel changes, changes to proprietary technology, security concerns, or updated cost/benefit analyses; or (C) any combination of the foregoing or other factors. Modifications may be inherently unpredictable and may lead to unexpected outcomes, which ultimately may have an adverse impact on one or more Subscribers. Subscriber is responsible for maintaining all records that may be required by laws, rules and regulations applicable to the Subscriber and should not rely on the Platform as a recordkeeping service.
(c) Third-Party Content. Certain of the Fabric Content may be supplied and/or licensed to Fabric by Third-Party Suppliers (including Barra. LLC) that are not under the control of or affiliated with Fabric (“Third-Party Content”). The Third-Party Content may include financial information, market data, analytic tools, commentary, quotes, financial research and analysis, news, graphs or charts. Third-Party Content is provided for informational purposes only. Fabric makes no representations or warranties with respect to, and does not guarantee, the accuracy, timeliness, completeness, or usefulness of any Third-Party Content. Subscriber further acknowledges and agrees that Fabric shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Subscriber’s downloading, installing, use of, or reliance on any Third-Party Content. Fabric does not undertake any responsibility to update, correct, or amend any Third-Party Content. Subscriber acknowledges and agrees that all Third-Party Content is provided “AS IS” and Fabric shall not have any liability related to the use or misuse of any Third-Party Content provided on the Platform. Subscriber acknowledges and agrees that the availability of any Third-Party Content on the Platform will not be construed as Fabric’s endorsement of or affiliation with the Third-Party Content, or any endorsement by or affiliation of such Third-Party Suppliers with Fabric’s products or services. Third-Party Content may be protected by United States or international copyrights and may not be copied, used, or distributed without the permission of the relevant Third-Party Suppliers. All trademarks and service marks identifying Third-Party Suppliers are property of their respective owners. Third-Party Content may be subject to additional limitations or disclaimers as set forth in an annex to these terms or use or as otherwise provided in a notice on the Platform.
(d) Third-Party Sites. Fabric may include on the Platform hyperlinks that permit Subscriber to link to third-party websites, services, or resources on the Internet (“Third Party Sites”), and Third-Party Sites may contain hyperlinks to the Platform. When Subscriber accesses such Third-Party Sites, Subscriber does so at its own risk. Third Party Sites are not under Fabric’s control, and Subscriber acknowledges that Fabric is not responsible or liable for the content, functions, accuracy, legality, appropriateness, or any other aspect of such Third-Party Sites. The inclusion in the Platform of a hyperlink to a Third-Party Site does not imply Fabric’s endorsement of or any association between Fabric and the Third-Party Suppliers of such Third-Party Site. Subscriber further acknowledges and agrees that Fabric shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any content, goods, or services available on or through any such Third-Party Site.
(e) No Offer to Buy or Sell Securities; No Advice. Subscriber acknowledges and agrees that no Platform Content or other information or services made available on the Platform constitutes an offer (or solicitation of an offer) to buy or sell securities, commodities, currencies, financial instruments, or contracts for the exchange of value, services, or risk nor does the Platform of the Services represent recommendations or investment advice with respect to the foregoing. Each Party understands that the other Party or its affiliates may transact in, provide services regarding, or publish research or views on, the markets, issuers, securities, commodities, currencies, financial instruments, or contracts for the exchange of value, services, or risk, including, as may be contained in Platform Content, related commodities, currencies, financial instruments, or contracts for the exchange of value, services, or risk, at any time, including, without limitation, prior to making the Platform Content available, or in a manner that is inconsistent with the substance or meaning of the Platform Content Subscriber acknowledges that the Platform is one of many resources employed by Subscriber in analyzing investment portfolios and that all Platform Content accessed by Subscriber through its use of the Platform is at Subscriber’s own risk and Subscriber will be solely responsible for any use of Platform Content, including, any damage or loss to Subscriber or any other party resulting therefrom.
- USE OF PLATFORM
(a) User Environment. Subscriber is solely responsible to obtain and maintain all equipment, software, and network connectivity needed to access the Platform. It is anticipated that technology generally, and the Platform and Services specifically, will evolve over time, and Subscriber understands that the requirements for such equipment or software may also change from time to time. Subscriber is responsible for all connection and line charges, including, without limitation, long distance and data plans. For the avoidance of doubt, it is understood that telecommunications systems and connectivity by Subscriber to the Internet, and otherwise on Subscriber’s side of the Internet, are complex and outside of Fabric’s control and responsibility, and therefore Fabric’s ability to make the Platform accessible may be dependent on the availability and operation of such third-party systems.
(c) Reservation of Rights. Fabric reserves the right to access, read, preserve, and disclose any information as Fabric reasonably believes is necessary to: (i) satisfy any applicable law, regulation, legal process, governmental, exchange, self-regulatory organization, or market data vendor request; (ii) enforce this Agreement, including, investigation of potential violations hereof; (iii) detect, prevent, otherwise address fraud, or security or technological issues; or (iv) protect the rights, property, or safety of Fabric and Platform users.
(d) Suspension of Services or Access. Fabric has the right to take appropriate action to address risks to the Platform, Services or Platform Content. Without limiting the foregoing, Fabric may immediately suspend Subscriber’s right to access or use any portion of the Platform or any Services, at any time, with or without notice, including, if: (i) Fabric reasonably believes that the Platform or Services are being used in violation of this Agreement or applicable law; (ii) Fabric believes Subscriber’s use of the Platform or Services interferes with the normal operations of the Platform or Services or creates any threat to the security of the Platform, Services, or the information or business of any other user of the Platform; (iii) Fabric becomes aware of what Fabric, in Fabric’s sole discretion, deems a credible claim that the Platform or Services or any portion thereof infringes upon the intellectual property rights of a third-party; or (iv) required to do so by law. In each case, Fabric will use commercially reasonable efforts to give Subscriber prior notice of any pending suspension, unless Fabric determines that a suspension on no or short notice is necessary to protect Fabric, the Platform, Fabric’s other users, or others. Fabric will not be liable for any claims or damages of any kind arising out of a suspension under this Section. Fabric may maintain a suspension of the Platform or portion thereof for as long as reasonably necessary to address risks to the Platform, Services or Platform Content. Fabric’s right under this Section to suspend access to the Platform or Services is in addition to Fabric’s right to terminate this Agreement pursuant to Section 11.
- INTELLECTUAL PROPERTY
(a) IP Ownership. Subscriber acknowledges and agrees that, as between the Parties: (i) all rights, title, and interest in the Platform, including the Platform Software and Fabric Content, Activity Metadata, Feedback (defined below) and Derived Data (defined below), and all intellectual property rights in the foregoing (collectively “Fabric Property”), are owned by Fabric, and nothing herein shall restrict Fabric from sharing or otherwise using Fabric Property for any purpose; (ii) Subscriber does not acquire any ownership interest in any Fabric Property as part of Subscriber’s access to the Platform or the receipt of any Services; and (iii) no license rights (including, rights arising by implication or estoppel) are granted to Subscriber other than those expressly granted hereunder. If Subscriber provides or suggests any changes or modifications to the Platform or portion thereof (collectively, “Feedback”), Fabric will own all right, title, and interest in, and shall have all rights to use, such Feedback for any purpose. Subscriber hereby irrevocably assigns to Fabric all right, title, and interest in and to the Feedback and any rights Subscriber may have in any Fabric Property and agrees to provide any assistance Fabric may require to document, perfect, and maintain Fabric’s rights in the Feedback and other Fabric Property. Subscriber will not remove, modify, or obscure any copyright, trademark, or other proprietary rights notices that appear on the Platform or any Platform Software or Fabric Content therein.
(b) Derived Data. Subscriber agrees and acknowledges that Fabric has the right to derive data from any Subscriber Data and/or from the activity of Users on the Platform, including in reports, memoranda, presentations, performance rankings or other aggregations, analyses, publications, materials, and manuals. All such derived data (excluding any of Subscriber’s Confidential Information or Personal Data) created by Fabric (the “Derived Data”) is owned by Fabric and may be used for any purpose.
- NON-DISCLOSURE AND CONFIDENTIALITY
(a) Protection of Confidential Information. Each Party acknowledges that it may be exposed to certain information that is not generally known to the public and which is considered confidential or proprietary by the other Party (“Confidential Information”). Subscriber’s Confidential Information includes the Client Account Data. Fabric’s Confidential Information includes, the terms of this Agreement, the Platform (other than Subscriber Data), and Fabric Property. Each Party agrees that, in the event such Party (“Recipient”) is exposed to the Confidential Information of the other Party (“Discloser”), the Recipient shall maintain the secrecy of such Confidential Information, and not disclose such Confidential Information to any third-party except as is expressly provided hereunder. The foregoing limitations on disclosure shall not apply to information that a Recipient can demonstrate is or becomes: (i) publicly available other than through breach of this Agreement; (ii) disclosed or provided to Recipient by a third-party and that is not subject to any obligation of confidentiality to Discloser; or (iii) independently developed by Recipient without use of or reference to the Confidential Information of Discloser.
(b) Permitted Disclosures. Fabric may disclose Subscriber’s Confidential Information to Fabric’s affiliates and to Fabric’s and its affiliates’ respective directors, officers, personnel, employees, representatives, contractors, agents (“Representatives”) who are responsible for or who assist Fabric or such affiliates with a security, technology, legal, compliance, administrative, or similar function, who need to know such information only as is necessary for Fabric to provide the Platform to Subscriber, to exercise Fabric’s rights under this Agreement and/or to perform Fabric’s obligations under this Agreement, and who are subject to an obligation of confidentiality with respect to such information that is substantially similar to the confidentiality obligations set forth herein. Subscriber may disclose Fabric Content to its Representatives and Client as necessary to exercise the rights expressly granted to Subscriber under Section 3(a). A Recipient may disclose Confidential Information of the other Party to persons or for purposes not included in the foregoing only with the prior express written consent of the other Party. A Recipient shall not use Confidential Information of the other Party for any unlawful purpose. If a Recipient is required to disclose any Confidential Information of the other Party pursuant to a subpoena, court order, statute, law, rule, regulation, or other similar requirement, Recipient shall provide prompt written notice of such legal requirement to Discloser (unless prohibited by law) so that Discloser may seek a protective order or other appropriate remedy. Recipient shall cooperate with Discloser in such opposition, including providing to Discloser, upon reasonable advance request, any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to the Recipient and is reasonably necessary to Discloser for such opposition. Any expenses actually and reasonably incurred by the Recipient in so cooperating shall be borne by Discloser.
(c) Treatment After Termination. Following expiration or termination of this Agreement, upon the request of a Discloser made within thirty (30) Business Days’ (defined below) of such expiration or termination, to the extent feasible or practicable, a Recipient will delete or destroy all materials or media containing Confidential Information of Discloser. Notwithstanding anything to the contrary herein, Fabric may retain any Subscriber Data that is contained in any archived or other business records kept in the ordinary course, and may retain one or more copies of any or all Subscriber Data for record-keeping purposes, as necessary to comply with any regulatory requirements or other applicable law, and/or to protect and enforce its rights hereunder, provided that Fabric’s confidentiality obligations hereunder will continue to apply such retained Subscriber Data for a period of three (3) years after the termination of this Agreement. The term “Business Day” means each day of the week excluding Saturday, Sunday, or a day on which banking institutions in New York, New York, U.S.A. are closed.
- OPERATION OF THE PLATFORM
(a) Interruptions. Fabric does not represent or warrant that the Platform will be uninterrupted, error-free, or completely secure. Subscriber acknowledges that Fabric relies on third-party systems, equipment, and networks for communications and connectivity. Further, there are risks inherent in Internet connectivity that will result in interruptions in services, loss or corruption of data, loss of Subscriber’s privacy and property, and/or disclosure of Subscriber’s Confidential Information.
(b) Third-Party Service Providers. Subscriber acknowledges that Fabric may use the services of one or more affiliates or third-party service providers to provide the Platform and the Services, or any portion of the foregoing (each, a “Third-Party Service Provider”), including, to develop, host, operate, maintain, update, process, and support the Platform or Platform Content, and/or and provide training with respect thereto. Subscriber agrees that all rights granted to Fabric hereunder may be exercised by the Third-Party Service Providers to the extent reasonably necessary to provide the Platform. Subscriber further agrees that such Third-Party Service Providers are third-parties not under the control of Fabric, and subject to Section 12, neither Fabric nor any Representative shall have any liability hereunder or otherwise for any act or omission by such Third-Party Service Providers.
(c) Security Measures. Fabric will implement reasonable and appropriate measures to maintain the security of Subscriber Data while it is in the Platform. Fabric’s security measures will be consistent with reasonable standards used in the applicable software or information technology industry, and will reasonably protect the privacy, confidentiality, integrity, and availability of Client Account Data. Fabric’s security measures and procedures shall include, reasonable administrative, physical, technical, and procedural safeguards.
(d) Platform Support. Personnel of Fabric may, at the request of and at the direction of Subscriber, provide services to Subscriber in support of Subscriber’s usage of the Platform. Fabric’s standard support hours and contact information will be posted on the Platform. Unless expressly stated in a separate agreement, any such support services will be provided under and governed by this Agreement.
(a) Termination. Subscriber may terminate this Agreement at any time on thirty (30) days’ prior written notice to Fabric, provided that if Subscriber so terminates the Agreement any fees payable for the balance of the then current term shall be immediately payable, and any prepaid fees for such term shall not be refundable. Either Party may terminate the Agreement on thirty days’ notice if the other party is in material breach of the Agreement and such material breach is not cured within thirty (30) days of notice of breach.
(b) Effect of Termination. On expiration or termination of this Agreement for any reason: (i) all of Subscriber’s rights hereunder to access and use the Platform automatically shall terminate; (ii) Subscriber shall cease all access to and use of the Platform; (iii) Subscriber shall uninstall any Platform Software; (iii) Fabric shall cease all use of the Marketing Resources on expiration of termination of the Agreement. and (iv) all rights and obligations of the Parties hereunder shall terminate, except that Sections 2(c), 3(e)-3(g), 4(b), 4(c), 6, 7(c), 8, 9, 10(b), 11(b), 11(c), 12, 13, and14 shall survive expiration or termination of this Agreement.
(c) Availability of Subscriber Data After Termination. For thirty (30) days after expiration or termination of this Agreement, Fabric will maintain, and upon the written request of Subscriber will allow Subscriber to download, a copy of the Subscriber Data in a non-proprietary file format. Except as set forth in the preceding sentence, Fabric has no obligation to maintain a copy of the Subscriber Data.
- LIMITATIONS OF LIABILITY
(a) Content Liability. Subscriber releases Fabric from all liability for Subscriber’s having acquired or not acquired Platform Content through the Platform. Fabric makes no representations or warranties with respect to, and does not guarantee, the accuracy, timeliness, completeness, usefulness, or legality of any Platform Content. Subscriber further acknowledges and agrees that Fabric and its affiliates shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Subscriber’s downloading, installing, use of, or reliance on any Platform Content.
(b) Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE PLATFORM AND THE SERVICES, INCLUDING THE PLATFORM SOFTWARE AND PLATFORM CONTENT, ARE PROVIDED “AS IS”, “AS AVAILABLE,” AND WITHOUT WARRANTY OF ANY KIND BY FABRIC OR ITS REPRESENTATIVES, THIRD-PARTY SERVICE PROVIDERS OR THIRD-PARTY SUPPLIERS WHETHER EXPRESS OR IMPLIED, INCLUDING, THE IMPLIED WARRANTIES OF TITLE, ORIGINALITY, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. THE RELEVANT PERSONS DO NOT WARRANT THAT: (I) THE PLATFORM WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; (II) ANY DEFECTS OR ERRORS WILL BE CORRECTED; (III) ANY PLATFORM CONTENT OR PLATFORM SOFTWARE, OR ANY SYSTEMS, EQUIPMENT, NETWORK OR COMMUNICATIONS AND CONNECTIVITY AVAILABLE ON OR THROUGH THE PLATFORM OR SERVICES IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (IV) THE RESULTS OF USING THE PLATFORM OR SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS. SUBSCRIBER’S USE OF THE PLATFORM IS SOLELY AT SUBSCRIBER’S OWN RISK. SUBSCRIBER ASSUMES THE ENTIRE RISK OF ANY USE OF THE SERVICES, PLATFORM AND PLATFORM CONTENT.
(c) Further Limitations. IN NO EVENT SHALL FABRIC, ANY ITS REPRESENTATIVES, THIRD-PARTY SERVICE PROVIDERS, OR THIRD-PARTY SUPPLIERS BE LIABLE UNDER ANY THEORY OF LIABILITY, INCLUDING, CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE PLATFORM OR SERVICES: (I) FOR ANY LOST PROFITS, LOST SAVINGS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, COMPENSATORY, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER EVEN IF FABRIC, ITS REPRESENTATIVE, THIRD-PARTY SERVICE PROVIDERS, OR THIRD-PARTY SUPPLIER HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES; OR (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION). IN NO EVENT WILL THE TOTAL LIABILITY OF FABRIC, ANY REPRESENTATIVE, OR THIRD-PARTY SERVICE PROVIDERS FOR ALL DAMAGES, LOSSES OR CAUSES OR ACTION IN THIS AGREEMENT, EXCEED THE FEES PAID BY SUBSCRIBER FOR THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT GIVING RISE TO THE LIABILITY. THIRD-PARTY SUPPLIERS, INCLUDING BARRA, LLC., SHALL NOT BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING DIRECT DAMAGES.
Subscriber shall, to the fullest extent permitted by law, defend, indemnify, and hold harmless Fabric, its Representatives, Third-Party Service Providers and Third-Party Suppliers (collectively, the “Fabric Indemnitees”) from any and all liability, claims, actions, suits, proceedings, losses, damages, and expenses, including, reasonable attorneys’ fees (collectively, “Losses”), as and when incurred, whether judicial, administrative, investigative, or otherwise, of whatever nature, known or unknown, liquidated or unliquidated, that arise from or relate to: (a) Subscriber’s use or misuse of the Platform Content; (b) Subscriber’s breach of this Agreement; (c) Subscriber’s fraud, willful misconduct, gross negligence, or breach of law; and (d) any claim that a Fabric Indemnitee’s use or possession of and Subscriber Data, including any Client Account Information, infringes or violates any intellectual property or other right or property of any person or entity or any law, except to the extent that the gross negligence or willful misconduct of the Fabric Indemnitee directly causes any such Losses. Upon the assertion of a claim, Fabric shall promptly notify Subscriber of such assertion, and thereafter keep Subscriber reasonably advised with respect to all material developments concerning such claim; provided that any failure by any Fabric Indemnitee to so notify Subscriber or keep Subscriber advised shall not relieve Subscriber of its indemnification obligations hereunder. Subscriber shall pay the expenses incurred by a Fabric Indemnitee in defending a civil or criminal, claim, action, suit, or proceeding in advance of the final disposition of such claim, action, suit, or proceeding, upon receipt of an undertaking by such Fabric Indemnitee to repay such payment if there shall be a final non-appealable adjudication or determination that it is not entitled to indemnification as provided herein. Such Fabric Indemnitee reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by Subscriber, in which event Subscriber will assist and cooperate with such Fabric Indemnitee in asserting any available defenses.
(a) Rules of Interpretation and Construction. The section and paragraph headings in this Agreement are for convenience only and shall not affect their interpretation. The words “include”, “includes” and “including” shall be deemed to be followed by the phrase “without limitation”. The word “will” shall be construed to have the same meaning and effect as the word “shall”. The word “any” shall mean “any and all” unless otherwise clearly indicated by context.
(b) Governing Law. This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York without giving effect to any conflict of laws provision thereof or rule thereof that might lead to a contrary choice of law.
(c) Litigation. In any litigation arising under or relating to this Agreement or the relationships created hereunder, for whatever cause or reason, [and whether related to a required arbitration or otherwise], the Parties: (i) consent to the exclusive jurisdiction of, and venue in, the state and federal courts located in the County and State of New York; (ii) irrevocably waive to the fullest extent permitted by applicable law, any objection, including, without limitation, any objection to the laying of venue or based on the grounds of forum non conveniens, which the parties may now or hereafter have to the bringing of any such action or proceeding in such court; and (iii) irrevocably waive, to the fullest extent permitted by applicable law, any objection or opposition to the other party’s motion to seal and/or close to the public any portion of the record or any hearings, motions, or trials.
(d) Entire Agreement and Severability. This Agreement constitutes the entire agreement between the Parties with respect to the subject of this Agreement and supersedes all prior or contemporaneous communications and proposals (whether oral, written, or electronic) between the Parties with respect to the subject of this Agreement. If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
(e) Electronic Signatures. The Parties agree and acknowledge that this Agreement may be signed by means of an electronic signing process, provided that such signing process complies fully with all applicable laws (including, the U.S. ESIGN Act of 2000 and any applicable state laws).
(f) Force Majeure. Notwithstanding anything to the contrary, if the occurrence of a Force Majeure Event (defined below) prevents or delays a party’s compliance (the “non-complying party”) with respect to any one or more obligations under this Agreement (other than a payment obligation hereunder), that failure or delay will not constitute a breach of this Agreement by the non-complying party. “Force Majeure Event” means an event or circumstance, or series of related events, whether or not foreseeable, that is beyond the reasonable control of, and impacts on, the non-complying Party, including without limitation: an act of God, fire, flood, storm, natural disaster, epidemic, pandemic, quarantine; serious accidents, total or constructive total loss; war, acts of war (whether war be declared or not), armed conflict, failure of transportation; riot, civil commotion, terrorist act, explosion, malicious damage, embargo, insurrection, riot, civil commotion; lockout, strike, or other industrial dispute or labor disturbance causing cessation, slowdown or interruption of work that is not directly or indirectly related to or the result of the non-complying Party’s actions or inactions; delay after due and timely diligence to procure materials, accessories, software, equipment, parts and documentation; acts, omission or delay in acting by any governmental authority or the other Party that is not directly or indirectly related to or the result of the non-complying Party’s actions or inactions; power or other utility failure, failure of the Internet or any public telecommunications network, hacker attack, denial of service; ransomware or malware attack, virus or other malicious software attack or infection, including in each case any such event that impacts on a party’s Third-Party Service Provider or Third-Party Supplier. The non-complying Party’s obligation affected by the Force Majeure Event will be suspended for the duration of the Force Majeure Event.
(g) Internet Risks; Network Utilities. Subscriber acknowledges that there are risks inherent in maintaining Subscriber Data in a remote server and software network (“cloud-based”) environment, including, without limitation, the risk of hacking or other unauthorized third-party access to Subscriber Data, and Fabric is not responsible to Subscriber for any unauthorized access to Subscriber Data or the unauthorized use of the Platform or Services. Subscriber acknowledges that, in order to provide the Platform and the Services, Fabric will use networking and communication utilities, infrastructure, internet service providers (ISPs) and services that are not under Fabric’s control (“Network Utilities”). Fabric’s ability to provide the Platform and Services will depend on the provision and availability of such Network Utilities, and Fabric is not responsible to Subscriber under this Agreement for any failure by Fabric that is directly or indirectly caused by the unavailability or performance of such Network Utilities.
(h) Export Restriction. Subscriber represents and warrants that: (i) Platform and all documentation related thereto will not be used in or transported to a country that is subject to a U.S. Government embargo or has been designated by the U.S. Government as a “terrorist-supporting” country; and (ii) Subscriber is not listed on any U.S. Government list of prohibited or restricted parties.
(i) Assignment. The Agreement, including, without limitation, the licenses granted by Fabric hereunder, is personal to Subscriber, and is not assignable, transferable, or sub-licensable in whole or part by Subscriber except with Fabric’s prior written consent.
(j) Agency. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement, and neither Party has any authority of any kind to bind the other in any respect.
(k) Amendments. Fabric may from time to time amend these Term of Services in its sole discretion. Fabric will provide prior notify to Subscriber of amendments to this Agreement. Such notice may be provided, without limitation, by posting a notice on the Platform or by email to the address provided in the Profile Information. Subscriber’s use of the Platform following such notice constitutes acceptance of the Terms of Service as amended. Notwithstanding the foregoing, Fabric shall not be required to notify Subscriber of any amendments to cure any ambiguity or correct or supplement any provision hereof which is incomplete or inconsistent with any other provision hereof, or correct any printing, stenographic or clerical error or omissions, provided, that any such amendment does not adversely affect the interests of Subscriber.
(l) Notices and Contact Information. Unless otherwise specified in this Agreement, all notices, requests, and approvals under this Agreement will be in writing and will be deemed to have been duly given when posted on the login or home page of the Platform, or by sending Subscriber notice through the Platform, or when sent via e-mail (including, without limitation, e-mail to address specified in the Profile Information) or by another appropriate means of electronic communication, including via the Platform. Communications regarding the Platform may involve the electronic transmission of information to any e-mail address that Subscriber and/or its Users register with Fabric (including, without limitation, the transmission of potentially sensitive financial information) and Subscriber agrees and consents to such electronic transmission of such information. Fabric may rely on contact information provided by Subscriber to Fabric. Notice to Fabric shall be sent to the following address: Fabric RQ, Inc. 900 Pearl Street, Suite 200 Boulder, CO 80302 or electronic notices should be sent to firstname.lastname@example.org.
(m) No Waiver. Fabric’s failure to enforce any part of this Agreement shall not constitute a waiver of rights to later enforce that or any other part of this Agreement. Waiver of compliance in any particular instance does not mean that Fabric will waive compliance in the future. In order for any waiver of compliance with this Agreement to be binding, Fabric must provide Subscriber with written notice of such waiver through one of Fabric’s authorized representatives.
Limitations Applicable to Platform Content Based on Data Provided by Barra, LLC
- Certain of the Fabric Content Data is based on or derived from Barra, LLC’s data, and has been prepared and provided to Subscriber solely for Subscriber’s internal use and may not be redistributed in any form or manner to any third party other than as expressly permitted by the Agreement or as required by applicable law.
- THE DATA IS PROVIDED ON AN “AS IS” BASIS. FABRIC, ITS INFORMATION PROVIDERS (INCLUDING WITHOUT LIMITATION BARRA, LLC), AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA IN THIS REPORT (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). FABRIC RQ, INC., ITS INFORMATION PROVIDERS (INCLUDING WITHOUT LIMITATION BARRA, LLC) AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
- YOU ASSUME THE ENTIRE RISK OF ANY USE IT MAY MAKE OF THE DATA. IN NO EVENT SHALL FABRIC RQ, INC., ITS INFORMATION PROVIDERS (INCLUDING WITHOUT LIMITATION BARRA, LLC) OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA, BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDUNG, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR YOUR INABILITY TO USE THE DATA, REGARDLESS OF THE FORM OF ACTION, EVEN IF FABRIC RQ, INC., ANY OF ITS INFORMATION PROVIDERS (INCLUDING WITHOUT LIMITATION BARRA, LLC), OR ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.