THIS IS A LEGAL AGREEMENT BETWEEN ADVISOR AND TGS GOVERNING YOUR ACCESS TO AND USE OF THE SERVICES. BY ELECTRONICALLY CLICKING OR SIGNING TO ACCEPT THIS AGREEMENT OR BY ACCESSING AND/OR USING THE SERVICES, ADVISOR IS AGREEING, ON BEHALF OF AN INDIVIDUAL AND/OR A LEGAL ENTITY, TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
1. DEFINITIONS. As used in the Agreement, the following defined terms shall apply:
1.1. Affiliate means, with respect to a party, any entity which directly or indirectly controls, is controlled by, or is under common control with such party, where “control” means the power, directly or indirectly, to direct, or to cause the direction of, the management and policies of an entity, through majority ownership of voting securities or equity interests.
1.2. Agreement means this Advisor User Agreement and any other documents incorporated herein by reference.
1.3. Advisor means the legal entity or individual that has ordered any Services from TGS. The term Advisor includes any individual that is authorized by Advisor to access the Services through Advisor’s assignment of a single user ID, which includes its Personnel and its Affiliates.
1.4. Advisor Account means an account for Advisor that is required to access and use the applicable Services.
1.5. Advisor Content means, other than Aggregated Statistics, any data uploaded to Advisor’s RA account for analysis and/or storage or data in Advisor’s computing environment to which TGS is provided access in order to perform Services.
1.6. Client means each legal entity or individual that is an advisory client or prospect of Advisor.
1.7. Fees means all TGS fees applicable to the Services, which are charged on a monthly or annual basis.
1.8. Personnel means Advisor’s employees, independent contractors, advisors, broker of or to Advisor, and agents to whom Advisor allows to access to the Services and the Advisor Account.
1.9. RA means TGS’s Retirement Analyzer software-as-a-service offering, which is an online web-based solution hosted by TGS.
1.10. Services means the RA software-as-a-service offering, technical support services, Training Services, Updates, Upgrades, and any other related or additional services offered from time to time by TGS. TGS may update the Services with Updates at any time in its sole discretion. The Services (except for certain aspects of the Training Services) are of an electronic nature delivered to you remotely via a technology infrastructure and with minimal human intervention.
1.11. Taxes means all applicable transactional taxes on Services (including but not limited to withholding tax, sales tax, services tax, value-added tax (VAT), goods and services tax (GST), and tariffs and/or duties) imposed by any government entity or collecting agency based on the Services. Taxes shall not include those taxes based on TGS’ net income, and/or those taxes for which Advisor has provided a valid certificate confirming Advisor is exempt.
1.12. Third-Party Request means a request from a third-party for records relating to Advisor’s or its Personnel’s use of the Services including information in or from the RA. Third-Party Requests may include valid search warrants, court orders, or subpoenas.
1.13. Training Services means the training and support Services provided in connection with use of the RA.
1.14. TGS means Thomas Gold Solutions, LLC, a Washington limited liability company.
1.15. TGS Marks means any name, logo, or mark belonging to TGS or its Affiliates.
1.16. Updates means any corrections, bug fixes, new features or functions added to or removed from the Services, but shall not include any new Service(s) not generally included with the Services purchased. Updates shall not substantially diminish or eliminate the core functionality of the Services subject to the exclusive remedy set forth in Section 4.2.
1.17. Upgrades means additional features or functions with materially new functionality offered as a new or additional modules of the Services for which TGS generally charges additional Fees.
2. RIGHTS.
2.1. Right to Use Service. Subject to these terms and conditioned on Advisor’s continued payment of Fees, TGS, with the assistance of TGS third-party service providers, will provide the Services in accordance with this Agreement. The Services may be used by Advisor in support of Advisor’s service offerings, and any access by Advisor’s Clients is: (i) subject to the terms of a separate user agreement between TGS and each such Client and (ii) limited to output of the Services and certain limited functionality of the Services. Advisor may use Services only for business and professional purposes and as expressly granted in this Agreement. TGS hereby grants Advisor a limited, personal, non-exclusive, non-transferable right to access and use the Services up to the number of subscriptions purchased. Technical support for the Services is currently provided over the TGS PowerLine between the hours of 7am – 4pm CST every business day. Updates to the Services are managed by TGS and included in the Fees. Advisor shall use the then-current version of the Services, including any Updates, as made available by TGS. To the extent that Affiliates use the Services, Advisor warrants that it has the authority to bind under this Agreement those Affiliates. Advisor will be liable to TGS in the event any Affiliate or its Personnel fail to comply with any term or condition of this Agreement. Advisor may also purchase Upgrades to the Services, new Services, additional Training Services, or consulting services in support of Services as made available by TGS all of which will be subject to these terms and any additional terms that may be applicable to such Upgrades or new Services.
2.2. Limitations on Use. Except to the extent permitted by applicable law, Advisor agrees, on behalf of itself and its Affiliates Personnel, as applicable, not to (i) copy, modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to the Services; (ii) knowingly or negligently access or use the Services in a manner that abuses or disrupts TGS’s security systems or the Services of TGS or any third party, or attempt to gain unauthorized access to TGS’s security systems or the Services of TGS through unauthorized means, (iii) harvest, collect, or gather information or data regarding third parties, including Advisor’s Client, without their consent unless permitted by applicable law; (iv) upload to or post on the Services any material that may infringe the intellectual property rights or other rights of third parties, including, without limitation, trademark, copyright, data privacy or right of publicity; (v) transmit or post on the Services any material that contains software viruses or other harmful or deleterious computer code, files or programs; (vi) use or access the Services in a manner that violates the terms of this Agreement or applicable law; or (vii) make any representations with respect to TGS or this Agreement (including, without limitation, that TGS is a warrantor or co-seller of any of Advisor’s products and/or services).
2.3. Violations of Limitations on Use. If Advisor becomes aware or receives notice from TGS that any Advisor Content or any Advisor access to or use of Advisor Content or the Services violate Section 2.2, Advisor must take immediate action to remove the applicable part of the Advisor Content or to suspend its Personnel’s violating access or use of the Services, as applicable. TGS may ask Advisor to remediate, and if Advisor fails to comply with such request, TGS may suspend the Services pursuant to Section 9.3. TGS will have no liability for any damage, liabilities, losses, or any other consequences that Advisor may incur as a result of such a Service suspension.
2.4. Proprietary Rights; Rebranding. Except for the limited use rights expressly granted herein, Advisor has no right, title or interest in or to the TGS Marks or Services or any components provided by TGS in connection with the Services or any intellectual property rights related thereto. Advisor acknowledges that TGS or its licensors retain all proprietary right, title and interest in and to, or practiced in connection with, the TGS Marks and the Services and any components, including, without limitation, all modifications, improvements, enhancements, derivative works, configuration, translations, upgrades and interfaces thereto. This includes any information, including Aggregate Statistics, that TGS and its service providers collect and analyze in connection with the Services, such as usage patterns, Feedback, defined below, and other information to improve and enhance the Services. If Advisor or any of its Personnel sends or transmits any communications or materials to TGS by mail, email, telephone, or otherwise, suggesting or recommending changes to the Services, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), TGS is free to use such Feedback irrespective of any other obligation or limitation between Advisor and TGS governing such Feedback. Advisor hereby assigns to us on its behalf, and shall cause its Personnel to assign, all right, title, and interest in, and we are free to use, without any attribution or compensation to Advisor or any third party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although TGS is not required to use any Feedback. In no event will TGS’ use of Feedback be subject to any limitation or restriction. No other rights with respect to the Services, any related TGS product, or any related intellectual property rights are implied. TGS may, in its discretion and subject to any terms and conditions as TGS may require (including related to the display of any TGS Marks or the use of copyrighted materials), authorize Advisor’s rebranding of the RA or other components of the Services. With respect to TGS consulting services, all intellectual property rights in all deliverables, pre-existing works and derivative works of such pre-existing works, as well as developments, made, conceived, created, discovered, invented or reduced to practice in the performance of consulting services, are and shall remain the sole and absolute property of TGS, subject to a worldwide, non-exclusive license to Advisor for internal use during the term of the Agreement.
2.5. Advisor Content. TGS does not sell or otherwise disclose Advisor Content to third parties unaffiliated with TGS, with the exception of service providers TGS has engaged to perform services on TGS’s behalf (such as RA development, support and maintenance services). These service providers are contractually required to safeguard the information provided to them and are restricted from using or disclosing such information except as necessary to perform services on TGS’s behalf or to comply with legal requirements.
2.6. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, TGS may monitor Advisor’s use of the Services and collect and compile data and information related to Advisor's use of the Cloud Services to be used by TGS in an aggregated and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). As between TGS and Advisor, all rights, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by TGS. Advisor acknowledges that TGS may compile Aggregated Statistics based on Advisor Content input into the Services. Advisor agrees that TGS may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify Advisor or Advisor’s Confidential Information.
2.7. Responsibility for Use of Services. Advisor is responsible and liable for all uses of the Services resulting from access provided by Advisor and its Personnel and Affiliates, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Advisor is responsible for all acts and omissions of its Personnel and Affiliates, and any act or omission by its Personnel and Affiliates that would constitute a breach of this Agreement if taken by Advisor will be deemed a breach of this Agreement by Advisor. Advisor shall use reasonable efforts to make all Personnel and Affiliates aware of this Agreement’s provisions as applicable to such Personnel’s and Affiliate’s use of the Services and shall cause Personnel and Affiliates to comply with such provisions.
3. FEES AND PAYMENT. Until this Agreement is terminated, Advisor is responsible for paying either TGS’s monthly or annual Fees, as agreed between TGS and Advisor shall make all payments due hereunder in US dollars on or before the due date. TGS may adjust its Fees charged based on costs and other factors at any time after the first year of this Agreement. If TGS adjusts its Fees, it will provide Advisor with notice of the change, either in person or at the email address or direct mail address provided to TGS by Advisor. The first monthly or annual Fees are due when Advisor enters into this Agreement. The next monthly Fee will be billed directly to a credit or debit card or a PayPal or bank account that Advisor provides to TGS, unless Advisor requests an annual invoice (in which case, Advisor will be billed via annually recurring invoices). By signing or clicking through to agree to this Agreement, Advisor affirmatively consents to TGS’s continuous provision of Services under this Agreement and the charge of the first and ongoing Fees to Advisor’s credit or debit card or PayPal or bank account provided to TGS by Advisor. TGS reserves the right, in its discretion, to suspend or terminate the Services or any portion thereof for non-payment of Fees. All renewals and extension of this Agreement are subject to acceptance by TGS in its discretion. All purchases are final, with no right to a refund, except as expressly provided under Sections 4.2, 6.1 and 7.2 of this Agreement. All Advisor information provided by or on behalf of Advisor for a subscription (including credit card, account, and contact information) must be current, complete and accurate, and Advisor is responsible for keeping such information updated. If Advisor fails to make any payment when due, without limiting TGS's other rights and remedies: (i) TGS may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Advisor shall reimburse TGS for all costs incurred by TGS in collecting any late payments or interest, including attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for 30 days or more, TGS may suspend Advisor’s and all other Personnel's access to any portion or all of the Services until such amounts are paid in full. All Fees and other amounts payable by Advisor under this Agreement are exclusive of Taxes, and Advisor is responsible for all Taxes on any amounts payable by Advisor hereunder.
4. TERM AND TERMINATION.
4.1. Term. The initial term of this Agreement shall commence on the sooner of (a) the date Advisor accepts this Agreement, or (b) the date Advisor commences access to or use of the Services (the “Effective Date”) and, unless terminated earlier as provided below, continue until the first anniversary of the Effective Date (the “Initial Term”). This Agreement will automatically renew for additional successive one year terms unless earlier terminated as provided below or either Party gives the other Party written notice of non-renewal at least thirty (30) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term”).
4.2. Termination for Cause. Either party may terminate this Agreement if the other party breaches any of its material obligations under the Agreement and fails to cure within thirty (30) days of receipt of written notice from the non-breaching party. In the event of termination by Advisor for TGS material breach, Advisor shall be entitled to a refund of any unused prepaid Fees, and relief from any subsequent monthly payments due, with respect to such Services. With respect to any breach of Section 1.14 by TGS, Advisor must give written notice within thirty (30) days of introduction of the relevant Update, or be deemed to waive its claims as to such Update, and termination with such refund and relief shall be its exclusive remedy. Either party may immediately terminate the Agreement if the other party becomes insolvent or bankrupt, liquidated or is dissolved, or ceases substantially all of its business. In the event Advisor terminates this Agreement following TGS’s bankruptcy or insolvency, then upon Advisor’s request, TGS will provide Advisor with thirty (30) days post-termination to access and download Advisor Content. Advisor must contact TGS technical support for download access and instructions. TGS may immediately terminate the Agreement if Advisor breaches Sections 2 or 5.
4.3. Termination for Convenience. Either party may terminate this Agreement for convenience, for any reason or no reason, upon thirty (30) days prior written notice to the other party; provided that none of Advisor’s unused prepaid Fees for the Services are refundable if Advisor elects to terminate the Agreement under this provision.
4.4. Effect of Termination. Upon termination of the Agreement, Advisor will immediately discontinue all access and use of all Services under the Agreement. Neither party shall be liable for any damages resulting from termination of the Agreement, including without limitation unavailability of Advisor Content arising therefrom; provided, however, termination shall not affect any claim arising prior to the effective termination date.
5. CONFIDENTIALITY; ADVISOR CONTENT AND ADVISOR ACCOUNTS.
5.1. Confidential Information. From time to time during the term, TGS and Advisor may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as "confidential" at the time of disclosure (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party's employees, agents, or subcontractors who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder and who are required to protect the Confidential Information in a manner no less stringent than required under this Agreement. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the date such Confidential Information is first disclosed to the receiving party and will expire five years thereafter; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
5.2. Advisor Content. Advisor retains all rights it may have to any and all Advisor Content, including that considered confidential by Advisor, subject to a non-exclusive, worldwide, royalty-free, license to TGS as necessary to provide the Services hereunder, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Advisor Content incorporated within the Aggregated Statistics. Each party shall apply reasonable technical, organizational and administrative security measures, as appropriate relative to the Services, to keep Advisor Content protected in accordance with industry standards. If TGS reasonably believes a problem with the Services may be attributable to Advisor Content or use of the Services, Advisor shall cooperate with TGS to identify the source of and to resolve the problem. Advisor is solely responsible for the development, content, operation, maintenance, and use of Advisor Content. Advisor shall comply with all intellectual property, information privacy and data security laws and obligations related to the Advisor Content (including the Gramm-Leach-Bliley Act and rules and regulations promulgated thereunder), as well as all legal duties applicable to Advisor by virtue of using the Services, including providing all required information, notices, and legally required opt-outs and obtaining all required consents. This Agreement states TGS’ exclusive obligations with respect to care of Advisor Content. TGS has no obligation to maintain Advisor Content following expiration or termination of the Agreement or the affected Services. TGS reserves the right to delete all Advisor Content (i) at any time following expiration or termination of the Agreement or (ii) if an Advisor Account remains inactive for a period of one (1) year or more.
5.3. Advisor Accounts. Advisor is solely responsible for (i) the configuration of each Advisor Account, (ii) the operation, performance and security of Advisor’s equipment, networks and other computing resources used to connect to the Services, (iii) ensuring all Personnel exit or log off from the Services at the end of each session, (iv) maintaining the confidentiality of each Advisor Account, ids of Personnel, conference codes, passwords and/or personal identification numbers used in conjunction with the Services, including not sharing login information among Personnel, and (v) all uses of the Services that occur using Advisor’s or its Personnel’s password or Advisor Account. The parties will immediately notify each other of any unauthorized use of an Advisor Account or any other breach of security. Ownership of each Advisor Account is directly linked to the individual or entity that completes the registration process for the account. Advisor acknowledges that TGS will rely on the information provided for issues arising with the Advisor Account.
5.4. Advisor Account Access/Instructions. The Advisor Account owner, and any authorized Personnel, will have access to information in the Advisor Account. TGS will not provide access to any other Personnel at any time. Advisor agrees that TGS may rely on instructions given by the Advisor Account owner either through the Advisor Account dashboard or via email from the address on file for the Advisor Account owner. Advisor agrees not to request access or information about an Advisor Account that is not owned by Advisor and to resolve any Advisor Account related disputes directly with the other party.
5.5. Third-Party Requests. Advisor is responsible for responding to Third-Party Requests via its own access to information. Advisor will seek to obtain information required to respond to Third-Party Requests and will contact TGS only if it cannot comply with the Third-Party Request despite diligent efforts. TGS will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-Party Request, to: (i) promptly notify Advisor of TGS’ receipt of a Third-Party Request; (ii) comply with Advisor’s commercially reasonable requests regarding its efforts to oppose a Third-Party Request; and (iii) provide Advisor with information or tools required for Advisor to respond to the Third-Party Request, if Advisor is otherwise unable to respond to the Third-Party Request. If Advisor fails to promptly respond to any Third-Party Request, then TGS may, but will not be obligated to do so.
6. WARRANTIES AND WARRANTY DISCLAIMER.
6.1. TGS WARRANTS THAT THE SERVICES, INCLUDING WITHOUT LIMITATION THE RA, WILL MATERIALLY CONFORM TO THE SERVICE DESCRIPTIONS. TGS’ ENTIRE LIABILITY AND ADVISOR’S EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE, AT TGS’ SOLE OPTION AND SUBJECT TO APPLICABLE LAW, TO PROVIDE CONFORMING SERVICES, INCLUDING REPLACEMENT SOFTWARE COMPONENTS AS REQUIRED, OR TO TERMINATE THE NON-CONFORMING SERVICES, AND PROVIDE A PRORATED REFUND OF ANY UNUSED PREPAID FEES FROM THE PERIOD OF NON-CONFORMANCE, AND RELIEF FROM ANY SUBSEQUENT PAYMENTS DUE, WITH RESPECT TO SUCH SERVICE. TGS SHALL PROVIDE TRAINING SERVICES AND CONSULTING SERVICES, IF PURCHASED, IN A PROFESSIONAL AND WORKMANLIKE MANNER. TGS’ ENTIRE LIABILITY AND ADVISOR’S EXCLUSIVE REMEDY UNDER THIS WARRANTY IS RE-PERFORMANCE OF THE TRAINING SERVICES AND/OR CONSULTING SERVICES, OR IF RE-PERFORMANCE IS NOT POSSIBLE OR CONFORMING, THEN TGS SHALL PROVIDE A REFUND THE AMOUNT PAID FOR THE NON-CONFORMING TRAINING SERVICES AND/OR CONSULTING SERVICES.
6.2. THE FOREGOING LIMITED WARRANTY DOES NOT COVER PROBLEMS ARISING BY ACCIDENT, ABUSE OR USE IN A MANNER INCONSISTENT WITH THIS AGREEMENT OR RESULTING FROM EVENTS BEYOND TGS’ REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, UNAVAILABILITY OF OR OPERATION IN COMBINATION WITH A THIRD PARTY NETWORK OR SYSTEM, HARDWARE, SOFTWARE, SERVICE OR DATA. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND TGS AND ITS AFFILIATES, LICENSORS AND SERVICE PROVIDERS DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY EXPRESS OR IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, TITLE, QUIET ENJOYMENT, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE, AND ANY CONDITIONS OF QUALITY, AVAILABILITY, RELIABILITY, SECURITY, OR LACK OF VIRUSES, BUGS OR ERRORS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES AND CONDITIONS, THEREFORE SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY IF ADVISOR IS LOCATED IN SUCH A JURISDICTION.
6.3. ADVISOR WARRANTS THAT IT OWNS ALL RIGHTS, TITLE, AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY RIGHTS, IN AND TO ADVISOR CONTENT AND THAT BOTH THE ADVISOR CONTENT AND ADVISOR’S USE OF THE SERVICES ARE IN COMPLIANCE WITH THE LAW AND THIS AGREEMENT.
7. INDEMNIFICATION.
7.1. Indemnification by TGS. Subject to Sections 7.2 and 7.3 below, TGS shall indemnify and defend Advisor against any third party Infringement Claim, and pay reasonable attorneys’ fees, court costs, damages finally awarded, or reasonable settlement costs (collectively “Losses”) with respect to such Infringement Claim; provided that: (i) Advisor promptly notifies TGS in writing of an Infringement Claim such that TGS is not prejudiced by any delay of such notification; (ii) TGS will have sole control over the defense and any settlement of any Infringement Claim; and (iii) Advisor will provide reasonable assistance in the defense of same. For the purposes of these terms, “Infringement Claim” means any claim, suit or proceeding brought against an Advisor based on an allegation that the Services, as delivered by TGS, infringes upon any patent or copyright or violates any trade secret rights of any third party.
7.2. Infringement Cures. If Advisor’s use of any of the Services is, or in TGS’ opinion is likely to be, enjoined as a result of an Infringement Claim, TGS shall, at its sole option and expense, either (i) procure for Advisor the right to continue to use the Services as contemplated herein, or (ii) replace or modify the Services to make their use non-infringing without degradation in performance or a material reduction in functionality and notify Advisor to discontinue use of the prior version, which Advisor shall do immediately. If options (i) and (ii) above are not reasonably available, TGS may, in its sole discretion and upon written notice to Advisor, terminate this Agreement, cancel access to the Services and refund to Advisor any prepaid, but unused, Fees on the Services.
7.3. Limitation. TGS assumes no liability, and shall have no liability, for any Infringement Claim based on (i) Advisor’s access to and/or use of the Services following notice of an Infringement Claim; (ii) any modification of the Services by Advisor or at its direction; (iii) Advisor’s combination of the Services with third party programs, services, data, hardware, or other materials; or (iv) any trademark or copyright infringement involving any marking or branding not applied by TGS or involving any marking or branding applied at Advisor’s request.
7.4. Indemnification by Advisor. Advisor shall indemnify, hold harmless, and defend TGS and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all Losses arising from or relating to any third-party claim: (i) that the Advisor Content, or any use of the Advisor Content in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; (ii) based on Advisor's or any Personnel’s negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement; and (iii) that Advisor or any Personnel’s use of the Services violates any applicable law; provided that Advisor may not settle any third-party claim against TGS unless TGS consents to such settlement, and further provided that TGS will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice.
7.5. Exclusive Remedy. THE FOREGOING STATES TGS’ SOLE LIABILITY AND ADVISOR’S EXCLUSIVE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM HEREUNDER.
8. LIMITATION ON LIABILITY. EXCEPT FOR (a) A PARTY’S INDEMNIFICATION OBLIGATIONS, AND (b) A BREACH BY ADVISOR OF SECTIONS 2 OR 5, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR TO ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, OR EXEMPLARY DAMAGES, WHETHER DIRECT OR INDIRECT, ARISING OUT OF OR RELATING TO: (i) LOSS OF DATA, (ii) LOSS OF INCOME, (iii) LOSS OF OPPORTUNITY, (iv) LOST PROFITS, (v) COSTS OF RECOVERY, REPLACEMENT OR RESTORATION OF ANY LOST OR ALTERED ADVISOR CONTENT, (vi) UNAVAILABILITY OR NON- PERFORMANCE OF ANY OR ALL OF THE SERVICES, (vii) COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (viii) UNAUTHORIZED ACCESS TO, COMPROMISE, OR ALTERATION OF ADVISOR CONTENT, IN EACH CASE, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR VIOLATION OF STATUTE, WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY. THE TOTAL CUMULATIVE LIABILITY OF TGS AND ITS RESPECTIVE AFFILIATES, LICENSORS AND SERVICE PROVIDERS ARISING OUT OF THIS AGREEMENT AND/OR THE TERMINATION THEREOF, SHALL BE LIMITED TO THE SUM OF THE AMOUNTS PAID FOR THE APPLICABLE SERVICE DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY, AND IN THE CASE OF CONSULTING SERVICES, THE AMOUNTS PAID FOR THE APPLICABLE CONSULTING SERVICE. THE FOREGOING SHALL NOT LIMIT ADVISOR’S OBLIGATIONS TO PAY ANY FEES AND/OR OTHER SUMS DUE UNDER ANY ORDER. THE SERVICE DESCRIPTIONS MAY CONTAIN ADDITIONAL LIMITATIONS OF LIABILITY RELATED TO INDIVIDUAL SERVICES.
9. ADDITIONAL TERMS.
9.1. Modifications. Advisor acknowledges and agrees that TGS has the right, in its sole discretion, to modify this Agreement from time to time, and that modified terms become effective on posting. Advisor will be notified of modifications through direct email communication from TGS. Advisor is responsible for reviewing and becoming familiar with any such modifications. Advisor’s continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms. TGS will provide Advisor with at least 60 days advance notice of material changes or any changes to any service level that TGS reasonably anticipates may result in a material reduction in quality or Services.
9.2. Third Party Services or Content. Third party services or content are not part of the Services and are not supported by TGS.
9.3. Consent to Use Logs. TGS and its service providers may collect and use Logs for purposes of facilitating the Services, including securing, managing, measuring and improving the Services and for other purposes specified in the Privacy Policy applicable to the Services, if any. Logs may be used for purposes not specified in this Section 9.2 only in aggregate form.
9.4. Suspension of Service. TGS reserves the right to suspend Advisor’s access to a Service if it determines, in its sole discretion, that (i) payment for the Services is not received within 30 days from the date on which payment is due, (ii) Advisor’s or its Personnel’s use of the Services are in breach of this Agreement and not cured as required by Section 4.2, (iii) Advisor failed to timely address TGS’ request to take action pursuant to Section 2.3, (iv) Advisor’s use of the Services poses a security or other risk to the Services or to other users of the Services, or (v) suspension is required pursuant to a subpoena, court order or other legal process. TGS agrees to notify Advisor of any such suspension, if permitted by applicable law. Advisor will remain responsible for all fees incurred before or during any suspension. TGS reserves the right, in its discretion, to impose reasonable Fees to restore archived data from delinquent accounts.
9.5. Assignment. Neither party may assign its rights under this Agreement either in whole or in part without the other party’s prior written consent, except that either party may assign this Agreement in whole to an Affiliate, or a successor in interest as part of a corporate reorganization, consolidation, merger, stock purchase, or sale of all or substantially all of its assets. Any attempted assignment in violation of the foregoing shall be void. This Agreement will bind and inure to the benefit of each party’s successors or permitted assigns.
9.6. Governing Law. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. All disputes hereunder shall be resolved in the applicable state or federal courts of Allegheny County in the Commonwealth of Pennsylvania. The parties hereby consent to the jurisdiction of such courts and waive any jurisdictional or venue defenses otherwise available.
9.7. Waiver; Amendment. No waiver by either party of any default shall be deemed as a waiver of any prior or subsequent default of the same or other provisions of this Agreement. No waiver or amendment to any provision of this Agreement shall be effective unless set forth in writing and signed by the parties hereto.
9.8. Severability. If any provision hereof is held invalid or unenforceable by a court of competent jurisdiction, such invalidity shall not affect the validity or operation of any other provision and any such invalid provision shall be deemed to be severed from the Agreement.
9.9. Relationship of Parties; Subcontractors; No Third Party Beneficiaries. The parties are independent contractors and nothing in this Agreement creates a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between or among the parties. TGS may subcontract responsibilities under this Agreement, but remains responsible for its breach of this Agreement, whether caused by the acts or omissions of TGS or its subcontractors. No person or entity not a party to this Agreement will be deemed to be a third party beneficiary of this Agreement or any provision hereof.
9.10. Acceptance of Agreement. This Agreement may be agreed to online, by use of the Services and/or executed by electronic or hard-copy signature and in one or more counterparts.
9.11. Force Majeure. Neither party will be responsible or have any liability for any delay or failure to perform to the extent due to unforeseen circumstances or causes beyond its reasonable control, including acts of God, earthquake, fire, flood, sanctions, embargoes, strikes, lockouts or other labor disturbances, civil unrest, failure, unavailability or delay of suppliers or licensors, riots, terrorist or other malicious or criminal acts, war, failure or interruption of the internet or third party internet connections or infrastructure, power failures, acts of civil and military authorities and severe weather (“Force Majeure”). The affected party will give the other party prompt written notice (when possible) of the failure to perform due to Force Majeure and use its reasonable efforts to limit the resulting delay in its performance.
9.12. Notices. Any notice required to be given pursuant to this Agreement shall be in writing and delivered to the other party by way of one of the following: (i) mailed by certified or registered mail, return receipt requested; (ii) delivered by a national overnight express service with a tracking number; or (iii) via email with electronic proof of delivery. Notice shall be deemed effective upon (a) personal delivery, (b) if delivered by overnight express service, upon confirmation of receipt, (c) five (5) days after deposit with in the mail, or (d) receiving a reply email from an email recipient explicitly confirming receipt. Each party is responsible for providing the other party with its most current contact information throughout the term of this Agreement.
