Skience offers a cloud-based product called “Skience Financial Solutions”, a wealth management platform for financial services firms. Skience is a bundled solution built on top of, and inclusive of, the Salesforce CRM solution. Skience offers prebuilt configuration of Salesforce for the wealth management industry, along with the transmission of normalized, aggregated and consolidated Client and Accounts data to the Salesforce CRM product, on behalf of the Subscriber;####WHEREAS, Skience also offers customer support, consulting and implementation services to its subscribers to assist with the deployment and use of Skience;####WHEREAS, Subscriber desires to have Skience, and Skience is willing to, offer Skience; such service shall be made available as a solution to aggregate, consolidate, and normalize Subscriber’s Clients and Account Information (as these terms are defined below) and for Skience to receive data from certain sources and transmit the resulting data to Salesforce CRM application (as defined below).####NOW, THEREFORE, in consideration of the foregoing and for other valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and with full intent to be legally bound, the parties hereby agree as follows: ##1. Skience Operation.##1.1. Skience shall (i) operate and maintain the Skience Service as contemplated by this Agreement (which activities shall include processing each Subscribing Firm’s data using the Skience Service), and (ii) perform such other data processing services (for one or more particular Subscribing Firms or for Subscribing Firms generally) as may be agreed to and set forth in one or more Statements of Work entered into by the parties from time to time (iii) transmitting the data aggregated and normalized by Skience, into the Salesforce.com product as a result of the subscription through the Agreement with Skience as provided for in Exhibit C to this Agreement.##2. Operational Matters.##2.1. Operation of the Skience Service. The Skience Service shall be hosted by Skience (or Skience’s service provider on behalf of Skience). Skience shall cause the Skience Service to perform such processing activities in accordance with the description of such processing activities, the processing requirements and the applicable service levels in accordance with industry standards and generally accepted practice.##2.2. Operation of the salesforce.com product(s). Skience is not responsible for the operation or the availability of the salesforce.com product(s). Skience is not liable for any issues resulting due to non-availability of the salesforce.com product(s). ##2.3. Restriction on Account Information Provided by Subscriber. Skience shall not provide to any third party any Account Information provided to Skience by Subscriber or any Affiliate of Subscriber without the written consent of Subscriber.##2.4. Restriction on usage of Skience features and Aggregated Data. Subscriber shall ensure that the Skience features and the aggregated data provided by Skience are not made available to any user inside Salesforce that is not an Authorized User of Skience.##3. Certain Matters Regarding the Skience Service.##3.1. Compatibility with Future Enhancements to the Skience Service. When designing and developing an Enhancement to the Skience Service, Skience shall (i) take into account all then-existing integration points between the Skience Service and Salesforce CRM Services and all transaction flows and data transmissions between the Skience Service (or any other Skience system), including the Salesforce CRM Services, (ii) to the extent possible using commercially reasonable efforts, make such Enhancement compatible with such integration points, transaction flows, and data transmissions in a manner that does not require any changes to the Salesforce CRM Platform or any other development effort or operational changes to be performed by Subscriber or any of its Affiliates, and (iii) to the extent the activities described in the preceding clause (ii) are not possible using commercially reasonable efforts, (1) Skience shall promptly notify Subscriber in writing of such situations, (2) Skience shall design and develop such Enhancements in a manner that is reasonably expected to minimize the changes to the Salesforce CRM or any other development effort or operational changes to be performed by Subscriber or any of its Affiliates, and (3) the parties shall collaborate to resolve the situation in a manner that does not adversely impact the Subscribing Firms’ use of the Salesforce CRM.##3.2. Compliance with Laws. Skience shall ensure that at all times during the Term, the Skience Service complies with (i) all applicable Laws, including those regarding the collection, use, storage, transmittal, protection, and/or destruction of personally identifiable information, and (ii) Skience’s own privacy policy regarding the use of information that Skience collects or processes. ##3.3. No Responsibility for Skience’s Products or Services. No Subscriber shall have any responsibility or liability to Skience, any Subscribing Firm, or any third party with respect to any error, malfunction, failure, lack of availability, or other problem relating to the Skience Service, Client Installation Services, or Client Consulting Services, except solely if and to the extent that such error, malfunction, failure, lack of availability, or other problem relating to the Skience Service, the Skience Service, or Client Installation Services was directly attributable to a Subscriber’s actions, or inactions, or an error, malfunction, failure, lack of availability or other problem in a product or service provided by Subscriber.##4. Intellectual Property.##4.1. Skience Intellectual Property.##(a) Skience Service. Skience owns and retains all of its rights, title, and interest in the Intellectual Property Rights in the Skience Service.##4.2. Subscriber’s Intellectual Property.##(a) Subscriber’s Trademarks. Skience agrees not to display or use, in advertising or otherwise, any of Subscriber’s name, logo(s), trademarks, service marks, and trade names (collectively, “Subscriber Marks”) without Subscriber’s prior written consent. Skience shall submit to Subscriber, for its prior written approval, any such use of a Subscriber Mark, including any marketing, promotional, informational, advertising, press release, or other material which incorporates any of the Subscriber Marks. Except for the limited right granted in this Section, (i) Skience shall not have or acquire any right, title, or interest in or to the Subscriber Marks, and (ii) Subscriber retains all of its rights, title, and interest in the Subscriber Marks. ####4.3. Client Data Provided to Skience. As between the parties, Subscriber shall own all information related to Subscriber (and their respective Clients) that Subscriber or a third party on behalf of Subscriber provides to Skience hereunder. All right, title and interest in and to any data provided by Subscriber, including all data provided by Subscriber or a third party on Subscriber’s behalf as part of the Services, shall remain with Subscriber. Skience acknowledges no right, title or interest in or to such data is granted under this Agreement. Skience shall treat such information as Client Confidential Information.##4.4. Similar Products and Services. Each party acknowledges and agrees that nothing in this Agreement shall preclude the other party and its Affiliates from developing, procuring, and/or marketing products, software, or services comparable to those offered by such party, provided that in doing so, the other party and its Affiliates do not use such party’s Confidential Information or any software owned by such party except as otherwise provided for in Section 10.7 (Residuals) below.##4.5. Feedback. Either party (or any of its Affiliates) may from time to time provide suggestions, comments, and other feedback (“Feedback”) to the other party with respect to one or more products or services of the other party. Both parties agree that all Feedback is, and shall be given, entirely voluntarily. The party offering the Feedback retains its rights in such Feedback subject to the receiver of the Feedback having the non-exclusive, worldwide, perpetual, non-cancellable, royalty- fee, non-fee-bearing right and license to use, disclose, reproduce, license or otherwise distribute, modify, exploit, and make derivative works of the Feedback provided to it (or any portion thereof) as it sees fit, entirely without any restriction or obligation to the other party. For the avoidance of doubt, Feedback shall not include any Contribution.##4.6. All Other Work Product. With respect to any work product or other material that is not expressly covered by any other subsection within this Agreement and is created by a party (or in the case of Subscriber, an Affiliate of Subscriber) in connection with its activities under this Agreement, such party (or in the case of Subscriber, such Affiliate of Subscriber) shall own and retain all of its rights, title, and interest, including all Intellectual Property Rights, in such work product or material, provided, however, that if and to the extent that any such work product or material is based upon or includes any concept, design, technique, process, specifications, business or technical requirements, software, documentation, other content, or other item, material or information that the other party (or in the case of Subscriber, an Affiliate of Subscriber) (the “contributing party”) provides, discloses or makes available to such party (whether orally, visually or in writing (including electronic form) for purposes related to such activity (a “Contribution”), the contributing party shall retain all of its rights to such Contribution, including, without limitation, the right to use, disclose, reproduce, license or otherwise distribute, modify, exploit and make derivative works of such Contribution as it sees fit, entirely without any restriction or obligation to the other party.##5. Term and Termination.##5.1. Term. This Agreement shall take effect on the Effective Date and, unless otherwise terminated as provided for herein, shall remain in effect for an initial term of three (3) years (the “Initial Term”). At the conclusion of the Initial Term and each subsequent Renewal Term, if any, this Agreement shall automatically renew for a successive term of one (1) year (each, a “Renewal Term”), unless either party has provided to the other party, at least seventy five (75) days prior to the end of the Initial Term or the then-current Renewal Term, as the case may be, written notice of such party’s decision to not renew this Agreement.####5.2. Termination for Cause. A party (the “non-breaching party”) shall have the right to terminate this Agreement if (i) the other party (the “breaching party”) materially breaches this Agreement, (ii) the non-breaching party gives the breaching party written notice of such material breach (the “default notice”) stating the non-breaching party’s intention to terminate this Agreement if such breach is not cured, (iii) the breaching party fails to cure such breach within thirty (30) days following its receipt of the default notice, and (iv) no later than ninety (90) days following such failure to cure, the non-breaching party gives the breaching party written notice of termination of this Agreement, which termination will be effective on the date specified in such termination notice (which date cannot be later than the expiration of the Initial Term or the then-current Renewal Term, as the case may be), or if no date is specified in such termination notice, on the date of the breaching party’s##receipt of such termination notice. As used herein, “material breach” means a breach of any provision, term, condition, obligation, warranty, or representation in this Agreement which will (or, if capable of being cured, if left uncured will): (a) substantially diminish the benefit which the party not in breach would otherwise derive from this Agreement, or (b) have a significant adverse impact on either the business, financial condition, or operations of the non-breaching party. A cure of a material breach of Section 9 (Confidential Information) of this Agreement shall mean the breaching party has successfully mitigated all significant adverse impacts to the non-breaching party with respect to such breach; and in such instances, the non-breaching party shall in good faith, and using reasonable commercial efforts, cooperate with the breaching party in mitigating such adverse impact to the non-breaching party.##5.3. Termination for Bankruptcy. A party shall have the right to immediately terminate this Agreement upon the occurrence of any of the following events: (i) an assignment by the other party for the benefit of creditors; (ii) the filing of a petition in bankruptcy by the other party; (iii) the filing of a petition in bankruptcy against the other party by its creditors which petition is not dismissed within sixty (60) days; (iv) the appointment of a receiver, trustee, liquidator, receiver-manager, or similar custodian for the other party and the appointment is not dismissed within sixty (60) days; (v) the other party has voluntarily or involuntarily commenced proceedings for dissolution, liquidation or winding up, or has ceased to carry on its business in the ordinary course; or (vi) the institution of any other proceeding involving the insolvency of the other party or the protection of, or from, its creditors, which proceeding remains un dismissed for a period of sixty (60) consecutive days. Each party will give written notice to the other party of any such event relating to it promptly following the occurrence of such event.##5.4. Nonexclusive Remedy. Termination of this Agreement is not an exclusive remedy and the termination of this Agreement by either party, or the exercise by either party of any remedy under this Agreement, shall be without prejudice to any other remedies such party may have under this Agreement, at law or in equity, or otherwise.##5.5. Limitation. In the event of expiration or termination of this Agreement as provided for herein, neither party shall be liable to the other party because of such expiration or termination for compensation, reimbursement, or damages on account of the loss of prospective profits or anticipated sales or on account of any costs, expenses, inventory, investment, leases, or commitments made or incurred by the other party in connection with its business. Such expiration or termination shall not, however, relieve either party of its obligations incurred prior to such expiration or termination or those that expressly survive the expiration or termination of this Agreement.##6. Confidential Information.##6.1. Certain Obligations With Respect to Confidential Information. Each party, as the Recipient of the other party’s Confidential Information, during the term of this Agreement and for so long afterwards -- for each bit of information -- that such information remains Confidential Information, shall maintain as confidential and shall not disclose, copy or use any of the Discloser’s Confidential Information except as needed in connection with the Recipient’s performance of its obligations or exercise of its rights under this Agreement or to carry out the activities contemplated by this Agreement. The Recipient may disclose the Discloser’s Confidential Information only to those employees, contractors, subcontractors, service providers, attorneys, accountants and other advisors of the Recipient or any of its Affiliates (collectively, “Representatives”) who need to know such information. The Recipient shall not disclose any of the Discloser’s Confidential Information to any third party (excluding its Affiliates) unless such third party is bound by written confidentiality and limited use obligations at least as stringent as those contained herein. The Recipient shall protect the Discloser’s Confidential Information with the same degree of care (but no less than a reasonable degree of care) that the Recipient uses to protect its own confidential information of like nature and similar importance and to prevent the unauthorized, negligent or inadvertent use, access, disclosure or loss thereof. The Recipient shall be liable under this Agreement to the Discloser for any use or disclosure in violation of this Section by it, its Affiliates or Representatives. As between the parties, the Discloser’s Confidential Information shall at all times belong solely and exclusively to the Discloser.##6.2. Exclusions. The Recipient shall have no confidentiality obligation under this Agreement with respect to any information that is (i) already known by the Recipient or any of its Affiliates at the time the Discloser disclosed such information to the Recipient without obligation of confidentiality,##(ii) publicly available at the time of the disclosure or becomes publicly available through no wrongful act of the Recipient; (iii) subsequently disclosed to the Recipient or its Affiliate on a non- confidential basis by a third party where such disclosure was not in violation of any confidentiality obligation between such third party and Discloser; or (iv) independently developed by the Recipient or any of its Affiliates without the use of any of Discloser's Confidential Information. However, the foregoing shall not apply to any Personal Information or any Account Information.##6.3. Compelled Disclosure. Nothing herein shall prevent the Recipient from disclosing any of the Discloser's Confidential Information as necessary pursuant to the lawful requirement of any governmental agency or by any subpoena, summons, order or other judicial process, provided that immediately on receipt of any order compelling such disclosure, the Recipient has notified the Discloser in writing of such requirement to disclose and has cooperated with the Discloser's reasonable, lawful efforts to resist, limit or delay disclosure. Disclosure of any Confidential Information pursuant to any such order or requirement shall not be deemed to render it non-##confidential and the Recipient’s obligations with respect to such Confidential Information shall not be changed or lessened by virtue of any such disclosure.## Survival. This Section 9.4 shall survive the expiration or termination of this Agreement.##7. Indemnification.##10.1 Indemnification by Subscriber. Subscriber shall defend, indemnify and hold Skience and its officers, directors, employees, agents, successors, and assigns (“Skience Indemnitees”) harmless from and against any Losses based on, arising out of or otherwise in connection with any claim (threatened or actual) made by a third party that is based on or results from (a) the gross negligence or willful misconduct of Subscriber or any of its Affiliates, (b) any breach of this Agreement by Subscriber or any of its Affiliates, or (c) use by a Subscriber Company of any Skience Mark in a manner other than as authorized in this Agreement or otherwise by Skience.##10.2 Indemnification by Skience. ##(a) Skience shall defend, indemnify and hold Subscriber, its Affiliates and their respective officers, directors, employees, agents, successors and assigns (“Subscriber Indemnitees”) harmless from and against any action, claim, demand, Losses or expense (including counsel fees) based on, arising out of or otherwise in connection with any claim (threatened or actual) made by a third party that:##(i) alleges that any of the following (or any portion thereof) infringes any patent, copyright, trade mark, trade secret, or similar Intellectual Property Right that (with respect to any of the foregoing): (a) the Skience Service; (b) any Skience Mark; (c) any Skience Marketing Material; (d) any other product or service of Skience used, or any activity performed by Skience, in connection with the performance of this Agreement; (e) Work Product, or (f) any other materials provided to Subscriber by Skience in connection with the performance of this Agreement, or##(ii) is based on or results from (a) any errors or mistakes in the processing of a Subscribing Firm’s data by the Skience Service, (b) the gross negligence or willful misconduct of Skience, (c) any breach of this Agreement by Skience, or (d) use by Skience of any Subscriber Mark in a manner other than as authorized in this Agreement or otherwise by Subscriber.##(b) Skience shall indemnify, defend, and hold harmless Subscriber from and against all liability, demands, claims, suits, losses, damages, causes of action, fines, or judgments including costs, attorneys' and witnesses' fees and expenses incident thereto for injuries (including death) to persons or property arising out of or in connection with Skience's faulty or negligent performance of its duties hereunder, except to the extent caused by the negligence of Subscriber. Subscriber shall give Skience prompt written notice of any such demand, claim, or suit against Subscriber by any third party of which Subscriber becomes aware and Skience shall have the right to defend the same.##(c) Skience shall defend, indemnify and hold harmless Subscriber from and against all liability, demands, claims, suits, losses damages, causes of action, fines, or judgments including costs, attorneys' and witnesses' fees and expenses incident thereto, including any cost of investigation, notice and credit monitoring, for any breach of Skience’s obligations with regard to the security of Subscriber’s data as detailed in Section 16, as well as any damages associated with unauthorized access to or use of such data.##7.2. Exclusions to Indemnification by Skience. The indemnification obligation set forth in Section 10.2 above with regard to claims described in clause (i) of such section shall not apply, and Skience shall have no obligation or liability to any Subscriber Indemnitee, if and to the extent that such claim is based on (1) any unauthorized modification or alteration by a Subscriber of a Skience Mark, (2) the combination or use of the Skience Service, an Skience Mark, or any other product, service, activity, or material described in such clause (i) with software, hardware, product, data, content, services, or other materials not provided by Skience, if such claim would have been avoided had such combination use not occurred, (3) use of any Skience Mark in a manner other than as authorized in this Agreement or otherwise by Skience, or (4) use of an older version of any Skience Mark or any product or service of Skience or any material provided to a Subscriber by Skience in connection with the performance of this Agreement, if such infringement would have been avoided by the use of the latest version of the same, provided that Skience provided Subscriber with notice of the latest version.####7.3. Indemnification Process. In the event of a claim for which an indemnified party seeks indemnification hereunder, the indemnified party shall promptly notify the indemnifying party in writing of such claim and forward all related documents to the indemnifying party. The indemnifying party shall then defend or settle such claim at its own expense, however the indemnified party(ies) reserve the right to (at the expense of such indemnified party(ies)) be represented by counsel at any proceeding or settlement discussions related thereto and participate in an advisory capacity. The indemnified party(ies) shall at the indemnifying party’s expense provide to the indemnifying party such information, assistance and cooperation as is reasonably required for the indemnifying party to defend and/or settle such claim. The indemnifying party shall have no liability for any settlements or costs that were incurred by any indemnified party without the indemnifying party’s prior written consent. The indemnifying party shall have sole control of the defense and settlement of such claim, provided, however, that (i) the indemnifying party shall not agree to any settlement that imposes restrictions on any indemnified party or requires any action by any indemnified party without the indemnifying party first obtaining the written consent of such indemnified party(ies), and (ii) if the indemnifying party fails or elects to neither defend nor settle such claim, the indemnified party(ies) may defend and/or settle such claim and##the indemnifying party shall pay to such indemnified party(ies) any and all Losses incurred and/or amounts paid in settlement by such indemnified party(ies) with respect to such claim.##7.4. Intellectual Property Remedy. If the use of the Services as detailed in 10.2 (i) by Subscriber is held to constitute an infringement and such use is enjoined temporarily or permanently, Skience, in addition to indemnifying Subscriber for any damages for infringement shall, at Skience's option and at Skience's expense:##(i) modify the Services so they becomes non-infringing without materially altering their capacity or performance; or##(ii) replace the Services with other services which are substantially equal in capacity and performance but is non-infringing; or##(iii) reimburse Subscriber for all Fees paid hereunder.####8. Limitation of Liability.##8.1. Disclaimer of Consequential Damages. IN NO EVENT SHALL EITHER PARTY (OR ANY OF THEIR RESPECTIVE AFFILIATES, LICENSORS, OR SUPPLIERS) BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES (INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS OR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES) HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO CONTRACT OR TORT (INCLUDING PRODUCTS LIABILITY, STRICT LIABILITY AND NEGLIGENCE), AND WHETHER OR NOT SUCH PARTY WAS OR SHOULD HAVE BEEN AWARE OR ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.##8.2. Exclusions. Notwithstanding the foregoing, the provisions of Section 11.1 above shall not apply to (i) amounts payable pursuant to a party’s indemnification obligations hereunder, or (ii) damages arising from or relating to (a) a breach of Section 7 (Intellectual Property) or 9 (Confidential Information) above, or (b) a party’s willful misconduct or gross negligence.##9. Representations and Warranties.##9.1. Skience Representations and Warranties. Skience represents and warrants to Subscriber that:##(i) Skience has the right and authority to enter into this Agreement, and the execution, delivery and performance by Skience of this Agreement (a) do not violate any provision of Law or any applicable order of any court or other governmental agency, and (b) do not breach the terms of any agreement, document, or instrument to which Skience is a party or which is binding upon Skience.##(ii) To Skience’s knowledge as of the Effective Date, there is no claim or pending or threatened litigation (a) against Skience which may adversely affect Skience’s ability to grant the licenses granted herein or perform its obligations under this Agreement, or (b) against Skience or a client of Skience alleging that the Skience Service or an Skience Mark infringes the rights, including the Intellectual Property Rights, of any third party;##(iii) The Skience Service (including any Enhancements thereto) shall each perform, in all material respects, in accordance with its respective published documentation and specifications; and##(iv) Skience shall perform its obligations and activities pursuant to this Agreement in a professional and workmanlike manner with due care and diligence and in accordance with industry standards and norms.##(v) Skience warrants that the Skience Service as furnished hereunder shall be free from material programming errors, defects and malfunctions.##(vi) Skience covenants, warrants and represents that it has taken all reasonable steps to test the Skience Service acquired hereunder for “Disabling Code” and that the Skience Service is free of Disabling Code and that Skience will continue to take such steps with respect to future enhancements or modifications to the Skience Service. Disabling Code is defined as computer instructions that alter, destroy or inhibit the Services, and/or Subscriber's processing environment, including but not limited to other programs, data storage and computer libraries (hereinafter “Disabling Code”). Disabling Code includes but is not limited to programs that self-replicate without manual intervention, instructions programmed to activate at a predetermined time or upon a specified event, and/or programs purporting to do a meaningful function but designed for a different function.##(vii) Skience warrants that it will take all reasonable steps to correct all known errors in the Skience Service and that the Skience Service will be operated in accordance with the Services Metrics as specified in the Skience Disaster Recovery Management Plan.##9.2. Subscriber Representations and Warranties. Subscriber represents and warrants to Skience that:##(i) Subscriber has the right and authority to enter into this Agreement, and the execution, delivery and performance by Subscriber of this Agreement (a) do not violate any provision of Law or any applicable order of any court or other governmental agency, and (b) do not breach the terms of any agreement, document, or instrument to which Subscriber is a party or which is binding upon Subscriber;##(ii) To Subscriber’s knowledge as of the Effective Date, there is no claim or pending or threatened litigation (a) against Subscriber which may adversely affect Subscriber’s ability to grant the licenses granted herein or perform its obligations under this Agreement, or (b) against Subscriber alleging that the Subscriber Mark infringes the rights, including the Intellectual Property Rights, of any third party; and##(iii) Subscriber shall perform its obligations and activities pursuant to this Agreement in a professional and workmanlike manner with due care and diligence and in accordance with industry standards and norms.##9.3. Disclaimer of Warranties. EXCEPT AS OTHERWISE EXPLICITLY STATED IN THIS AGREEMENT, AND SUBJECT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, EACH PARTY (INCLUDING ITS AFFILIATES, SUPPLIERS, AND LICENSORS) HEREBY DISCLAIMS ALL OTHER REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE PRODUCTS OR SERVICES OFFERED BY SUCH PARTY AND ANY OTHER MATERIALS OR SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
