By using one or more aspects of the Service, you hereby agree to the Terms. You accept these terms by either (a) clicking to “agree” or to “accept” the Terms when opening a user account or logging onto your user account to access the Services, or by (b) using the Services. You may not use the Services or accept the Terms if (a) you are younger than 18 or you are not of legal age to form a binding contract with FusionIQ, or (b) you are a person barred from receiving the Services under any applicable laws or securities regulations. FusionIQ reserves the right to amend these Terms at any time by posting the amended terms to its web site or otherwise providing you notice of the amended Terms. Your continued use of the Services constitutes acceptance of such amended terms. If you do not agree with these Terms (as amended from time to time), your sole and exclusive remedy is to discontinue using the Services.
DO NOT PROVIDE INVESTMENT ADVICE
The Services are for informational purposes only and do not constitute investment advice or an investment recommendation offered by FusionIQ. FusionIQ is not registered with the Securities and Exchange Commission as an investment advisor or a broker-dealer. You agree and acknowledge that FusionIQ, its employees and its agents, are not financial advisors, financial planners or broker-dealers, and each cannot advise you or your clients through the Services or otherwise. You acknowledge that FusionIQ and/or its affiliates may earn revenue from third parties based on your use of its services.
You also agree and acknowledge that FusionIQ and its affiliates make no representation as to the suitability of the services for any purpose, and FusionIQ and its affiliates will not be held liable in any way for any consequences or damages that may arise through your use of the Services. Finally, you agree and acknowledge that FusionIQ may modify the Services from time to time.
You certify that you are a licensed investment advisor, a registered representative or a qualified administrator employed by a licensed entity or individual licensed to sell or offer securities under applicable law. You agree and acknowledge that if you choose to make any investment decisions for your clients based on information you receive from the FusionIQ’s services, that you do so at your own risk and based on your own independent judgment as a financial professional. You also acknowledge and agree that FusionIQ is not representing itself as a securities broker-dealer or financial advisor, and that FusionIQ does not independently evaluate the suitability or recommend any investments for you and/or your investment clients. You agree and acknowledge that the information provided in the Services will not be construed as an offer to sell, an offer to buy, or a recommendation for or against any security by FusionIQ. FusionIQ will not be responsible for any trading decisions, damages or other losses resulting from your use of the services. You also acknowledge and agree that FusionIQ does not conduct investment advisory, investment supervisory or investment management services, nor the initial or ongoing review or monitoring of the investment portfolio or individual particular needs. Therefore, no user of FusionIQ’s services should assume their use of FusionIQ’s services serve as a substitute for individual personalized advice provided to their clients by the investment professional. Finally, you agree that you as fiduciary for you client will be responsible for all underlying investment decisions and transactions for all accounts under your management and supervision.
SOFTWARE LICENSED THROUGH PRODUCT
Notwithstanding any references to “purchase”, the software accessed through the Product is licensed and not sold pursuant to this Agreement. This Agreement confers a limited license to the Product only and does not constitute a transfer of title to, or sale of, all or a portion of the Product or the underlying intellectual property. Customer acknowledges that FusionIQ or third parties own all right, title, and interest in and to the Product and all associated materials, including without limitation, the structure, organization, source code, all copyrights, patents, trade secrets, and other intellectual property rights throughout the world, in and to the original and all copies, portions, extracts, selections, arrangements, adaptations, compilations, and any derivatives of the Product, or software or content provided through or in conjunction with the Product, and all features, updates, releases, enhancements, bug fixes, workarounds, patches, and all associated documentation and product packaging.
FusionIQ shall deliver the Data through the Product platform for use by Authorized Customers and Authorized Clients. The Data content consists of financial information, data, analytics, scoring, model portfolios, and other information that is owned by FusionIQ or its licensor. Customer understands and agrees that the Data is based on proprietary algorithms for the scoring of various investments, but does not constitute any recommendation to buy, hold or sell securities, and is provided to Customer for its own use. Customer may use the data for managing its business, making investment decisions, providing such Data to its clients who are Authorized Clients, but shall not do the following:
a) represent that the Data constitutes investment advice or recommendations by FusionIQ;
b) make the Data accessible to unauthorized parties or publicly distribute it;
c) remove, obscure or alter any required notice or any notice of FusionIQ’s or its licensor’s intellectual property rights included as part of the Data;
d) directly or indirectly impair, dispute or contest the ownership, validity or enforceability of FusionIQ’s or its licensor’s intellectual property rights in the Data.
OUTSIDE DATA/MODEL PROVIDERS
FusionIQ may provide access to data, analytics, research, portfolio models, and/or algorithms that calculate potential securities trades which you may or may not choose to place with various custodians or broker-dealers that you utilize for the management of your client assets. Any third party asset managers, strategists or research firms who you access via FusionIQ are not making personalized recommendations to you, and are not acting as investment advisers or fiduciaries to your clients. You hereby agree and acknowledge that you are the sole investment adviser and are the sole fiduciary for your clients.
CLIENT DATA & INVESTMENT MONITORING
You agree that FusionIQ and any Third Party Asset Managers/Model Providers will not responsible for collecting or reviewing any information about your clients. Additionally, the aforementioned parties will not be responsible for determining whether any investments are or continue to be appropriate for the client’s objectives or restrictions. Finally, FusionIQ nor the any third parties are responsible for identity verifying of clients client or compliance with anti-money laundering (AML) rules and regulations administered by the US Treasury Department’s Office of Foreign Assets Control (OFAC) or any other regulatory agency. You agree that you, as the investment adviser and fiduciary to the investor, will provide all such services.
FusionIQ agrees to take appropriate security measures to protect against unauthorized access to or unauthorized alteration, disclosure or destruction of data. These include internal reviews of our data collection, storage and processing practices and security measures, including appropriate encryption and physical security measures. Regardless of the precautions taken by us we cannot ensure or warrant the security of any information you transmit to us, and you transmit such information at your own risk.
INTELLECTUAL PROPERTY RIGHTS
The Services are protected by a combination of copyright, trade secret laws and patent protection. Portions of the Services contain information and data from third party providers, subject to their own copyright provisions. You acknowledge and agree that FusionIQ and our third-party licensors retain ownership of all intellectual property rights of any kind related to the Services, including applicable copyrights, trademarks and other proprietary rights. We are not granting any license to you under any of those intellectual property rights by virtue of your use of the Services, except for the limited right to use the Services in accordance with the Terms. “Risk Number” and “FusionIQ” are registered trademarks owned by FusionIQ. Other product and company names that are mentioned in the Services or provided as part of the Services may be trademarks of their respective owners. The content contained in the Services is owned by or licensed to FusionIQ. This includes, without limitation, the text, software, scripts, graphics, photos, video, sounds, interactive features and the trademarks, service marks and logos contained therein. Any content or information provided by FusionIQ through the Services is provided to you “AS IS” for informational purposes only and may not be used, copied, reproduced, modified, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes. We reserve all rights not expressly granted in and to the Services. You agree not to copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Services or any part thereof.
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.
a) A party’s Confidential Information shall not be deemed to include information that (i) is or becomes publicly known other than through any act or omission of the receiving party; (ii) was in the other party’s lawful possession before the disclosure; (iii) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; (iv) is independently developed by the receiving party, which independent development can be shown by written evidence; or (v) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
b) Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
c) The Customer acknowledges that details of the Product, and the results of any performance tests of the Product, the Data, and this Agreement constitute FusionIQ’s Confidential Information.
USE OF SERVICES
You acknowledge that each FusionIQ account is designed, intended and licensed for use by a single named user only. You are responsible for maintaining the confidentiality of your account login information and are fully responsible for all activities that occur under your account. You agree to immediately notify us of any unauthorized use, or suspected unauthorized use, of your account or any other breach of security. FusionIQ cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements. If you become aware of any unauthorized use of your password or of your account, you agree to notify FusionIQ immediately at support@FusionIQ.io.
You agree to provide accurate and correct information about your identity, your firm, and your status as a licensed investment advisor, licensed insurance agent or qualified administrator of a licensed investment advisor or licensed insurance agent. You agree to use the Services only for purposes that are permitted by (a) the Terms, and (b) any applicable laws or regulations. You agree not to access any of the services by any means other than the interface provided by FusionIQ. You specifically agree not to use automated means (including the use of scripts or web crawlers) to access the Services. You agree not to engage in any activity that interferes with or disrupts the Services, or the servers and networks connected to the services. You may not use the Services for any illegal or unauthorized purpose. You agree to comply with all laws, rules and regulations (for example, federal, state, local and provincial) applicable to your use of the services. You agree that you will not reproduce, duplicate, copy, sell, trade or resell the services for any purpose, or use the outputs of the services in general mailings, mass communications or advertisements without the express written consent of FusionIQ.
PERFORMANCE BY FUSIONIQ
FusionIQ undertakes that it has undertaken commercially reasonable efforts to provide Data on a timely and accurate basis. Customer understands that FusionIQ is not responsible for the timeliness or accuracy of general stock and market data provided to it by third parties. Customer understands that the Data provided under this Agreement does not constitute investment advice or recommendations. FusionIQ does not provide investment advisory or brokerage services, and does not guarantee, promote, or market the Data or the Product as providing investment advice, nor does it represent that the Data has been used by any financial firm, investor or financial services company to manage investment funds or decisions.
Not Responsible for Misuse or Modification by Others. FusionIQ is not responsible for any non-conformance which is caused by use of the Product contrary to FusionIQ’s instructions, or modification or alteration of the Product by any party other than FusionIQ or FusionIQ’s duly authorized contractors or agents. If the Product does not conform with the foregoing undertaking, FusionIQ will, at its expense, use all reasonable commercial endeavors to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance.
CUSTOMER’S OBLIGATIONS AND ACCOUNT MANAGEMENT
COMPLIANCE WITH LAWS
The Customer shall comply with all applicable laws and regulations with respect to its activities under this Agreement, and ensure that the Authorized Users and Authorized Clients use the Product in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorized User’s and Authorized Client’s breach of this Agreement.
Export Control and Embargoes. Customer may only use the Product if Customer is not barred under any applicable laws from doing so. If Customer is located in a country embargoed by United States or under other applicable law from receiving the Product, or is on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, Customer is not permitted to purchase any paid Product from FusionIQ.
a) Management of Authorized Users. In relation to the Authorized Users, the Customer undertakes that: Customer shall maintain a written, up to date list of current Authorized Users and provide such list to FusionIQ within five (5) Business Days of FusionIQ’ written request at any time or times;
b) each Authorized User shall keep a secure password for its use of the Product, and that each Authorized User shall keep its password confidential and secure.
The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to the terms of this Agreement, will continue in effect until 36 months from such date (“Initial Term”). This Agreement shall automatically renew for successive two year periods (“Renewal Term”) unless Customer provides written notice of cancellation at least 180 days prior to the end of the Renewal Term.
Termination. In addition to any other express termination right set forth elsewhere in this Agreement:
(a) FusionIQ may terminate this Agreement, effective on written notice to Customer, if Customer: (i) fails to pay any amount when due hereunder, and such failure continues more than 30 days after FusionIQ’s delivery of written notice thereof; or (ii) breaches any of its obligations under Sections 1, 2, 5.1, 5.2, 5.3 or 6;
(b) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
DISCLAIMER OF WARRANTIES
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE PRODUCT IS PROVIDED “AS IS,” WITHOUT REPRESENTATION, WARRANTY OR CONDITION OF ANY KIND. FUSIONIQ AND ITS THIRD PARTY LICENSORS EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, PERFORMANCE AND ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. FUSIONIQ DOES NOT REPRESENT OR WARRANT THAT THE PRODUCT WILL MEET CUSTOMER’S REQUIREMENTS OR THAT ITS USE WILL BE UNINTERRUPTED OR ERROR FREE. THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE PRODUCT IS WITH CUSTOMER. SHOULD THE PRODUCT PROVE DEFECTIVE, CUSTOMER ASSUMES THE ENTIRE RISK AND COST OF ALL NECESSARY CORRECTIONS.
LIMITATION OF LIABILITY
TO THE EXTENT PERMITTED BY LAW FUSIONIQ AND ITS AFFILIATES (INCLUDING WITHOUT LIMITATION ITS AGENTS, SUPPLIERS, LICENSORS, AND PARTNERS) AND THEIR RESPECTIVE EXECUTIVES, EMPLOYEES, SHAREHOLDERS AND CONTRACTORS SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING FROM OR RELATED TO CUSTOMER’S USE OR INABILITY TO USE THE PRODUCT OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT, OR OTHERWISE) AND EVEN IF ANY SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF EACH OF FUSIONIQ, ITS AFFILIATES, OFFICERS, EMPLOYEES, SHAREHOLDERS AND CONTRACTORS ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT AND THIS
AGREEMENT WILL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO FUSIONIQ FOR THE SERIVCES AT ISSUE DURING THE THREE (3) MONTHS PRIOR TO THE EVENT WHICH GAVE RISE TO THE DAMAGES IN QUESTION. IF THE PRODUCT IS PROVIDED WITHOUT CHARGE, THEN THERE SHALL BE NO LIABILITY TO CUSTOMER WHATSOEVER. THE FOREGOING IS CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH.
Customer hereby indemnifies FusionIQ and its directors, officers, employees, and agents for, and shall hold them harmless against, every claim, loss, damage, injury, expense (including attorney’s fees), judgment, and liability of every kind, nature, and description arising in whole or in part from the Customer’s violation of, or failure to comply with, any applicable law, regulation or statute, including without limitation, the Investment Advisers Act of 1940, the Securities Act of 1933, and the Securities Exchange Act of 1934.
FusionIQ shall defend any suit or proceeding brought against Customer and its clients insofar as such suit or proceeding is based on a claim that the Product constitutes a direct infringement of any patent, copyright or trade secret, and FusionIQ will pay the costs and damages finally awarded in any suit or proceeding, provided that FusionIQ is promptly informed in writing and furnished a copy of each communication, notice or other action relating to the alleged infringement and is given full authority, information and assistance necessary to defend or settle said suit or proceeding. FusionIQ shall not be obligated to defend or be liable for costs and/or damages under this section if the alleged infringement arises out of noncompliance with FusionIQ’s specifications, or from a modification of the Product by any person after delivery other than FusionIQ. FusionIQ may, at any time it is concerned about the possibility of such an infringement, at its option and expense: (i) replace or modify the product so that infringement will not exist, (ii) remove the Product involved and refund Customer a portion of the price thereof as depreciated or amortized on a straight line basis over a five year period, or (iii) obtain for Customer the right to continue using the Product.
The following defined terms apply to this Agreement. Affiliates: FusionIQ’s directors, managers, officers, stockholders, members, agents, representatives, employees and affiliated entities. Advisor Module: the software module that includes features and functionality for registered investment advisors, financial advisors and other financial and investment professionals. Authorized Clients: Customer’s clients who are authorized to use the Product and/or access the Data for their personal investments and in accordance with the terms of this Agreement. Authorized Users: those employees, agents and independent contractors of the Customer who are authorized by the Customer to use the Product and/or access the Data, and who shall be included in the calculation of the Fees payable under this Agreement,. Business Day: any day which is not a Saturday, Sunday or federal public holiday in the United States.
Information that is proprietary or confidential and is either clearly labeled as such or identified as Confidential Information and as otherwise defined in Section 6.
Financial information, data, analytics, scoring, model portfolios, and other information that is owned by FusionIQ or its licensor, and provided to Customer and its Authorized Clients through the Product.
Effective Date: the date of this Agreement.
Fees: the fees payable by the Customer to FusionIQ as set forth in Exhibit A.
Investor Module: the software module that includes features and functionality for Authorized Clients to use the Product and access the Data.
Normal Business Hours: 8.00 am to 6.00 pm local Eastern US time, each Business Day.
Personal information including without limitation personal details, family and lifestyle details, education and training, medical details, employment details and financial details.
The product consists of the Investor Module, the Advisor Module, ADPs, the research and scoring programs, the interface, model portfolios, the online advisory framework and platform, and any related software available to run on a separate server. Term: has the meaning given in Section 3.1.
This Agreement shall be governed by the laws of State of New York, USA, exclusive of its conflicts of laws provisions, and any suit under this Agreement shall exclusively be brought in a federal or state court in city of New York.
The failure of FusionIQ to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. Any waiver of any provision of this Agreement will be effective only if in writing and signed by FusionIQ.
Any notice given hereunder, including without limitation any notice regarding breach of contract, non-renewal, or late payment, shall be sent in writing to the other Party to its address set forth above (or to such other physical or such other person that such addressee party may designate from time to time in writing).
If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
Customer may not assign or transfer any of Customer’s rights or obligations under this Agreement to a third party without the prior written consent of FusionIQ. FusionIQ may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void.
This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall be deemed to be one and the same agreement.
EXHIBIT A – FEES AND PRICING
Capitalized terms used but not defined in this Exhibit A have the meaning given to those terms in the Agreement.
ANNUAL MINIMUM FEE: $30,000
The initial Annual Minimum Fee shall be due and payable upon execution of this Agreement and thereafter at the beginning of each subsequent one year anniversary of the Effective Date.
$1 per month per Authorized Client.
FusionIQ will invoice, and the Customer shall pay FusionIQ, the fees due for each calendar quarter (each a “Payment Quarter”) by the fifth day of the month following such Payment Quarter; provided that no such fees shall be due until Customer’s aggregate Quarterly Fees during an Annual period exceed the Annual Minimum Fee, and then only to the extent such aggregate Quarterly Fees exceed the Annual Minimum Fee. FusionIQ will provide a statement with such payment explaining the calculation used in determining the compensation in reasonable detail, including the number of Authorized Clients for each calendar month of the respective Payment Quarter.
IMPLEMENTATION FEES AND MODIFICATIONS
In addition to the Quarterly Fees, Customer shall pay FusionIQ an implementation fee in the amount of Five Thousand Dollars ($5,000) (“Implementation Fee”) upon the execution of this Agreement. The Implementation Fee shall cover the costs and expenses associated with the onboarding, customization and launch of the Product for Customer. FusionIQ shall provide Customer with up to 25 hours of configuration services of the Product and integration with Customer’s systems. In the event that Customer desires more than 25 hours of implementation services, FusionIQ shall provide the Customer with a statement of work that includes a description of the work requested to be done and the number of estimated configuration hours required. Customer shall be charged on an hourly basis at the rate of $200 per hour.
Upon renewal of this Agreement the Fees, including the Annual Minimum Fee, shall be increased by the greater of 5% or the aggregate CPI Index.