THE FundKo SITE AND RELATED SERVICES COMPRISE AN ONLINE PLATFORM THROUGH WHICH YOU, THE END USER (DEFINED BELOW) MAY INTERACT WITH OR ENGAGE WITH OTHERS OR OTHER PROVIDERS, AND/OR THEIR AGENTS, AND/OR CONSUMERS. YOU UNDERSTAND AND AGREE THAT FundKo PROVIDES THIS SITE MERELY TO FACILITATE THE FOREGOING NETWORK AND IS NOT A PARTY TO ANY AGREEMENTS ENTERED INTO BETWEEN YOU AND ANY SUCH PERSON OR PARTY WITH WHICH YOU INTERACT WITH OR ENGAGE VIA THIS SITE. FundKo ITSELF IS NOT RESPONSIBLE FOR ANY SERVICES THAT MAY RESULT FROM ANY OTHER USERS OF THE SITE. IN THIS REGARD, FundKo ITSELF IS NOT ANY OF THE PARTIES WHO PERFORM ANY SUCH SERVICES TO YOU VIA THE SITE AND HAS NO OVERSIGHT OVER THOSE ENTITIES. FundKo HAS NO CONTROL OVER THE CONDUCT OF ANY SUCH PARTY OR ANY OTHER END USERS OF THE SITE OR SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD.
By either (i) completing the online registration at FundKo (the “site”) and/or any applicable registration order form (each such form, an “Order Form” and the registration in general, the “Registration Process”) or (ii) using any of the FundKo Services (as defined below) via the Site or (iii) clicking “agree” if prompted before accessing the Services, you (the “End User”) are agreeing to be bound by the terms of this End User License Agreement (this “Agreement”) with FundKo Incorporated on behalf of itself and its affiliates (hereinafter, “FundKo”). For purposes of this Agreement, affiliates shall mean any entity which is, directly or indirectly, controlling or controlled by FundKo. The terms set forth in an (i) Order Form and/or Registration Process, as applicable, and/or (ii) together with the terms of this Agreement and/or (iii) FundKo’s online terms of use and privacy policy (collectively, ”site Terms of Use”), are collectively referred to herein as the “Service Terms.” To the extent, any provision set forth in this Agreement conflicts with any provision set forth under any Site Terms of Use, such provision in this Agreement shall prevail. As of the date on which the End User has completed the Registration Process or uses the Services, or clicks the “I Agree” button (the “Effective Date”), in consideration of the mutual agreements contained herein and intending to be legally bound hereby, the End User and FundKo agree as follows:
1. Services
FundKo will provide to End User the online hosted services, including the FundKo online platform application and/or other services provided on the Site (the “Hosted Services”) and/or professional services, if any (the “Professional Services”), as set forth in the Order Form and/or Registration Process (such Hosted Services and Professional Services each on their own or collectively being referred to in this Agreement as the “services”).
2. Fees and Payments
Please refer to any applicable document as part of the Registration Process.
3. Term
Unless stated otherwise, this Agreement will commence upon the first date of service and continue for so long as End User uses the Services, and/or for so long as there is an agreement in place between the parties hereto.
4. Termination
FundKo may terminate this Agreement immediately upon written notice to End User in the event End User has committed a material breach of this Agreement that remains uncured five (5) days after initial written notice of such breach. Immediately, but in any event within twenty-four (24) hours upon expiration or any termination, End User shall remove all materials, tags, and code placed on End User’s website as part of the Services. FundKo may terminate this Agreement immediately (a) if End User fails to pay any outstanding invoices or fees due for the Services herein or (b) due to any breach by End User of Section 7 herein.
5. Use of Brands; Press Releases
End User may not use FundKo’s name, trade name, trademarks, and icons in connection with marketing promotional or other purposes unless agreed to in advance in writing by FundKo.
6. License and Reservation of Rights
6.1 License
So long as End User is in full compliance with all of the Service Terms, and is a proper End User, FundKo grants to End User during the Term of this Agreement a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Hosted Services, and any software provided by FundKo (the “software”) to access those Hosted Services, solely for the commercial purposes of using FundKo’s platform on the Site. FundKo may, in its discretion, offer modifications, updates, upgrades, patches, and/or new versions (collectively, the “standard Upgrades”) of the Site or underlying Software to End User. End User shall promptly install (if applicable) or download all Standard Upgrades, unless installation is not otherwise required by FundKo. The FundKo Services are delivered via an internet “cloud” based medium, however, so any modifications, “patches” or other changes to the Software or Services shall only be made by FundKo.
6.2 Reservation of Rights
Except for the limited license set forth above, FundKo reserves all rights in and to the Services and Software, and End User shall have no rights to the Services or Software except as expressly granted herein. FundKo reserves the right to discontinue or disable certain features and/or functionality of the Hosted Services. All rights not granted herein are hereby reserved by FundKo.
7. Acceptable Use of the Services
End User agrees that it will not: (a) modify, decompile, disassemble or reverse engineer, or cause or permit any other party to modify, decompile, disassemble or reverse engineer, FundKo’s Software or another software provided by FundKo, or any other technology and/or other services; (b) sublicense any intellectual property of FundKo to third parties or sell, resell, rent, sublicense or lease the Services or any Software to third parties; (c) otherwise violate the license grant or restrictions set forth in Section 6 above; (d) use the Services to store or transmit malicious code; (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; (f) attempt to gain unauthorized access to the Services or their related systems or networks; (g) alter, copy, move or delete any tags or code placed as part of the Services except as provided for in Section 4; (h) place tags on website pages not pre-approved by FundKo in writing; or (i) misappropriate any of FundKo’s software, technology or other services or use the Services, or permit enable or assist any third party, to create competing products or services, or modify FundKo’s intellectual property or use any of FundKo’s intellectual property unless otherwise agreed to by FundKo in a signed writing.
8. Compliance with Terms and Laws
End User shall (a) as required by Applicable Law (as defined below), provide notice to End User’s customers and obtain consent if required for use of FundKo’s technology under End User’s privacy policy and as otherwise required; (b) be responsible for its employees, subcontractors, representatives and agents that use the Services provided hereunder; (c) comply with any limitations or restrictions agreed between the parties hereto; and (d) use the Services in compliance with all Applicable Laws. End User shall ensure that its implementation and use of the Services complies with all Applicable Laws and shall inform FundKo if such compliance requires any modification to FundKo’s standard Services offerings. Upon End User’s request, FundKo will endeavor to support End User’s specific requirements for compliance with Applicable Laws and regulations, and any modification to FundKo’s standard Services offerings requested or required by End User may require professional services work by FundKo and/or additional fees. For purposes of this section, “Applicable Law” shall mean all laws, rules, regulations, treaties (and similar governmental obligations), including local, national, and multinational that applies to End User and its/his/her assets.
9. Intellectual Property Rights
As between FundKo and End User, FundKo has and shall retain all rights to its Services and Software (including without limitation any materials or code provided as part of the Services), FundKo’s brands, technologies, information, trade secrets, know-how, intellectual property, information and data generated by FundKo or FundKo’s systems, whether pre-existing or created after the Effective Date, including any modifications, enhancements, and derivatives thereof (including, without limitation, metrics, data, and information generated by such Services and software), without regard to the basis of such modifications, enhancements or derivations. No implied licenses are granted herein to any of the foregoing.
10. Confidential Information
FundKo and End User understand and agree that in connection with the negotiation and performance of this Agreement, each party hereto may have had or gain access to or may have been or be exposed to, directly or indirectly, private or confidential information of the other party hereto, including, but not limited to, trade secrets, computer programs and code, scripts, algorithms, features and modes of operation, inventions (whether or not patentable), techniques, processes, methodologies, schematics, testing procedures, software design and architecture, design and function specifications, analysis and performance information, documentation, details of its products and services, know-how, ideas, and technical, business, financial or marketing information, models, pricing, plans and strategies, as well as names and expertise of, and information relating to, insurance carriers and/or related agents, vendors, employees, consultants, customers and prospects and any other information that the receiving party reasonably should know is confidential (“Confidential Information”). Each party hereto agrees to hold and treat all Confidential Information of the other party hereto in confidence and will protect the Confidential Information using all reasonable efforts, but in any event not less than the same degree of care as such party uses to protect its Confidential Information of like nature. The Confidential Information will not, without the prior written consent of the other party, be disclosed to any third party except that the receiving party may disclose the Confidential Information or portions thereof to (a) its directors, officers, employees, agents, and representatives on a need-to-know basis, so long as each such recipient agrees to be bound in writing to maintain the confidentiality of such information as set forth herein, or (b) as may be required by applicable law or judicial process, provided, however, that if the receiving party is required to disclose such Confidential Information under this clause (b), the receiving party shall promptly notify the disclosing party of such pending disclosure and consult with the disclosing party prior to such disclosure as to the advisability of seeking a protective order or other means of preserving the confidentiality of the Confidential Information. Notwithstanding anything contained herein to the contrary, Confidential Information does not include any information that (i) at the time of the disclosure or thereafter is lawfully obtained from publicly available sources generally known by the public (other than as a result of a disclosure by the receiving party or its representatives); (ii) is available to the receiving party on a non-confidential basis from a source that is not and was not bound by a confidentiality agreement with respect to the Confidential Information; or (iii) has been independently acquired or developed by the receiving party without violating its obligations under this Agreement or under any applicable law, and without using any Confidential Information. This Section shall supersede any previous agreement relating to confidential treatment and/or non-disclosure of Confidential Information; provided, however, that any information disclosed pursuant to that earlier agreement shall be deemed to be Confidential Information and protected under the terms of this Agreement as if this Agreement had been in place at the time of such disclosures. FundKo takes very seriously the protection of Confidential Information you provide during your use of the Site and will take all reasonable steps to safeguard such Confidential Information in accordance with this Section 10.
11. Warranties
End User represents and warrants that (a) it has the right to enter into this Agreement and perform its obligations hereunder in the manner contemplated by this Agreement and the person agreeing to the Service Terms either is the person so agreeing or has the power and authority to bind the End User, (b) this Agreement does not and shall not during the Term conflict with any other agreement entered into by it, (c) use of the Services (or any results of the Services, including but not limited to the collection of any of End User’s customer or other third party’s data) by End User will not violate any law or End User’s privacy policy, and (d) it owns (or has been duly licensed to use) all rights in its brands required in order to grant the licenses granted herein. The Services are provided as-is. Except for the foregoing warranties, and to the fullest extent permissible under applicable law, both parties hereto expressly disclaim all representations and warranties, whether express or implied, concerning or related to this Agreement, including but not limited to the implied warranties of non-infringement, merchantability and/or fitness for a particular purpose. FundKo does not warrant, guarantee or make any representations regarding the use, the results of the use or the benefits, of the Services, or any information contained therein or otherwise provided pursuant to this Agreement. No FundKo personnel is authorized to make any expansion, modification, or addition to this limitation or the exclusion of warranties in this Agreement.
12. Limitation of Liability
In no event shall FundKo be liable for any indirect, incidental, consequential, or punitive damages, including but not limited to lost profits, loss or delay of use, loss of business, loss of revenue, or loss of data, or any such damages resulting from death or labor or employment-related liabilities or costs, arising out of or in relation to this Agreement or the Services. FundKo shall not be liable for any acts or omissions of third parties. In the event that applicable law does not allow the limitation of liability as set forth above, this limitation will be deemed modified solely to the extent necessary to comply with applicable law.
In no event shall FundKo be liable for any cause or claim whatsoever arising out of or related to this Agreement in excess of the amounts FundKo has been paid hereunder by End User during the twelve (12) month period immediately preceding the date on which the cause of action arose. In the event that applicable law does not allow the limitation of liability as set forth above, this limitation will be deemed modified to the extent necessary to comply with applicable law.
The foregoing limitations and exclusions will apply regardless of whether the cause of action arises in contract, in tort, or otherwise and notwithstanding the failure of the essential purpose of any remedy or negligence
13. Indemnity
If a third party claims (each such claim a “Third Party Claim”) against FundKo that (a) End User’s intellectual property, data, or content provided to FundKo infringes such third party’s patent issued as of the Effective Date, copyright, or trademark or other intellectual property rights; or (b) the third party has been damaged by an act or omission constituting End User’s breach of this Agreement (including but not limited to any misuse of patient or other data provided by End User, any death, labor or employment-related costs resulting from End User’s use of the Site); or (c) the third party has been damaged from End User’s use of the Services under this Agreement, End User will defend, indemnify and hold FundKo harmless from and against that claim at End User’s sole expense and pay all costs, damages, and reasonable attorney’s fees finally awarded by a court of competent jurisdiction. For the avoidance of doubt, a “Third Party Claim” for which End User shall indemnify and hold FundKo harmless, includes any claim against FundKo by a third party which arises out of or results from any services engaged by and between End User and any supplier or consumer through the Site, whether such third-party claimant is End User, a provider or some other third party.
14. Force Majeure
FundKo shall not be liable to End User or any other person for any delay or failure in the performance of this Agreement or loss or damage of any nature whatsoever suffered by such party due to disruption or unavailability of communication facilities, utility, or Internet service provider failure, acts of war, acts of terrorism, acts of vandalism, lightning, fire, strike, unavailability of energy sources or any other causes beyond FundKo’s reasonable control.
15. Login
End User shall maintain its login name and password in confidence and shall not share its login information with any third party. End User shall be responsible for any and all activity on the login, regardless of whether such activity was performed or approved by End User.
16. Independent Applications
From time to time, third-party software applications, plugins, or other add-on online applications that integrate, interoperate, or interact with FundKo’s Services (the “Applications”) may become available. If End User chooses to install, access, or enable an Application, End User agrees that the third party Application provider may acquire access to End User’s account data and information data as required for the interoperation or integration of such Application and Applications are not, for the avoidance of doubt, considered Services under this Agreement and are not maintained, monitored, tested, controlled, endorsed, provided, verified, validated or reviewed by FundKo. Accordingly, such Applications are governed by their own terms and conditions and are not considered Services under this Agreement.
17. Entire Agreement
This Agreement, together with the Order Form and/or the Registration Process, as applicable, contains the entire agreement of the parties hereto, and supersedes any and all previous agreements addressed herein or with respect to the subject matter hereof, whether oral or written.
18. Notices
Subject to Section 19 below, all notices shall be in writing and shall be sent by certified mail, return receipt requested, or by wire communications (e.g., facsimile) to the respective contact at the addresses listed in the Order and/or Registration Process, or as otherwise provided to the other party in writing, or via email if receipt is validly confirmed. Subject to Section 19 below, the effective dates of such notice shall be (1) upon evidence of a successful facsimile or email transmission, or (2) five days following the date of mailing for certified or registered letters and two days following the date sent for overnight letters. The above addresses may be changed at any time by giving prior written notice as above provided.
19. Miscellaneous
FundKo hereby rejects any terms or conditions appearing on any purchase order or other supplements that are in addition to, or different from, the terms and conditions of this Agreement (the “Modifications”), and the parties hereto agree that all such Modifications shall be void and of no force or effect. Use of one or more of the Services shall indicate End User’s agreement with these terms without modification. This Agreement shall be binding and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns. This Agreement may not be assigned by End User without FundKo ‘s express prior written consent. FundKo may assign this Agreement freely, including to any successor to its business in whole or in part without requiring any consent or notice to End User. No failure by either party to exercise or enforce any rights under this Agreement shall act as a waiver of such rights. The parties hereto are independent contractors and neither this Agreement nor the performance of Services shall create any association, partnership, joint venture, or relationship of principal and agent, master and servant, or employer and employee, between the parties hereto; and neither party hereto will have the right, power or authority (whether expressed or implied) to enter into or assume any duty or obligation on behalf of the other party. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and the unenforceable provision shall be interpreted so as to render it enforceable while approximating the parties” intent as closely as possible. This Agreement shall be governed in all respects, including validity, interpretation, and effect, by the laws of the state of New York. Each party hereto expressly waives its right to a trial by jury. This Agreement should not be construed in favor of or against any party hereto by reason of the extent to which any party hereto or its professional advisors participated in the preparation or drafting of this Agreement. Amendments to this Agreement may be made by FundKo at any time. The modified agreement will be effective immediately upon posting on the FundKo website and End User agrees to the new posted agreement by continuing the use of the Services. FundKo will use reasonable efforts to notify End User of modifications that are material to End User’s use of the Services or Software, which modification may be provided by email or notification posted to End User’s account. If End User does not agree with the modified agreement, End User’s only remedy is to (a) discontinue using the Services and discontinue using any and all independent applications, adapters, and labs applications, and (b) terminate this Agreement in accordance with its terms. The headings in this Agreement are for purposes of reference only and shall not limit or otherwise affect the meaning hereof. Sections 7 through 13 (and, particularly of note, the limitations set forth in Section 12) and Sections 18 through 19 shall survive the expiration or termination of this Agreement.