Please read these Terms and Conditions (these "Terms") carefully as they govern your use of www.greenboard.com and www.greenboard.io (the "Websites") and access to, and use of, our platform, and all of our websites and software applications that incorporate, link to or are provided at our Websites or link to these Terms (collectively, the "Greenboard™ Services" or "Services").
These Terms and Conditions (these “Terms”) are made and entered into effective as of the Effective Date set forth in the Order Form (the “Effective Date”), and are by and between Greenboard, Inc., a Delaware corporation (“Greenboard”) and the entity designated as “Subscriber” in the Order Form (“Customer”). These Terms govern and are incorporated into the Order Form to which they are attached (the “Order Form,” and together with these Terms, this “Agreement”).
SERVICES.
Services Provision. Subject to the terms and conditions of this Agreement, Greenboard will provide Customer with access to its online RIA compliance technology platform designated as the “Web Product” (or similar technology product) in the Order Form (the “Services”) for Customer’s business purposes in accordance with any documentation or instructions provided by Greenboard (the “Documentation”). Customer will be responsible for any acts or omissions of any user that it allows to access the Services.
Resale of Technology and/or Services. Greenboard may resell licenses to certain third-party technology or may resell third-party services as an authorized reseller thereof, as set forth in the Order Form (such third-party technology and/or services described in such Order Form, “Resold Products/Services”). Resold Products/Services are separate and distinct from the Services, are not owned or controlled by Greenboard, and Greenboard hereby disclaims any and all liability and responsibility for any Resold Products/Services. Customer will fully comply with any third-party terms and conditions applicable to the Resold Products/Services as made available by Greenboard to Customer. Greenboard will use commercially reasonable efforts to make available to Customer any warranties for the Resold Products/Services that are provided to Greenboard as the reseller from the applicable vendor, service provider, or manufacturer. Notwithstanding the foregoing, the Resold Products/Services are provided “as is” and without warranty of any kind, and no representations, warranties, indemnities, or other obligations or liability of Customer under this Agreement applicable to the Services will apply to the Resold Products/Services, including without limitation Sections 7 and 9, however Greenboard’s rights under the Agreement will continue to apply.
Regulation S-P Compliance. Greenboard will, to the extent applicable to the Services, comply in all material respects with Regulation S-P (17 C.F.R. Part 248), promulgated under Title V of the Gramm–Leach–Bliley Act (15 U.S.C. §§ 6801–6809), as amended, and will implement policies designed to safeguard “nonpublic personal information” to the extent required by Regulation S-P, including without limitation with regard to notification requirements related to affected individuals upon a determination that unauthorized access to “sensitive customer information” (as defined by Regulation S-P) has occurred.
PAYMENT.
Fees. Customer will pay the Fees and any expenses as set forth in the Order Form. Greenboard may bill through invoices, in which case, full payment for invoices issued by Greenboard to Customer in any given month are due within thirty (30) days of the date of invoice. Unpaid amounts are subject to 1.5% per month interest for any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and Greenboard may suspend or terminate the Services if any amounts due remain unpaid, pursuant to Section 6.3.
Taxes. Customer will be responsible for all sales, use, ad valorem and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state, multinational or local governmental regulatory authority on any amount payable by Customer to Greenboard hereunder, other than any taxes imposed on Greenboard’s income.
CUSTOMER RESPONSIBILITIES. Customer will provide information, make available personnel, and take other such actions as requested by Greenboard that is reasonably necessary for delivery of the Services. Customer will reasonably cooperate with Greenboard in establishing login and authentication control mechanisms or other procedures for verifying that only designated users of Customer have access to the Services and Greenboard Materials.
INTELLECTUAL PROPERTY.
Access Restrictions. Customer will not at any time and will not permit any third party to, directly or indirectly: (i) use the Services in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify or create derivative works of the Services or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component of the Services, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease use of the Services to any third party, or otherwise allow any third party to use the Services for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Services, or any data or content contained therein or transmitted thereby; (vii) access or search the Services (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Services features provided by Greenboard for use expressly for such purposes; (viii) provide the Services or make their functionality available to third parties as an application services provider or service bureau, or by hosting, time sharing or providing any other type of services in a manner which makes the Services available to third parties; or (ix) use the Services, Documentation or any other Greenboard Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Services.
Customer Materials. Customer will own and retain all right, title, and interest to any data, information, software, systems, materials and other content provided by Customer to Greenboard in connection with Customer’s use of the Services, or otherwise transmitted or stored through the Services (“Customer Materials”). Greenboard may use and modify the Customer Materials solely in connection with the provision, operation, and improvement of the Services and to create aggregate and derivative data solely in de-identified form.
Reservation of Rights. Greenboard will own and retain all right, title and interest in and to the Services, the underlying tools, know-how, methodologies, algorithms, models and proprietary information used to provide or power the Services, any aggregate, derivative or usage data collected or generated in connection with the Services in de-identified form, all improvements, derivatives, enhancements and modifications to any of the foregoing, and all intellectual property rights therein (collectively, “Greenboard Materials”). All rights not expressly granted hereunder are hereby reserved.
Professional/Implementation Services. Greenboard may perform for Customer certain implementation, installation, configuration, or related professional services for the Services, as set forth in the Order Form (“Professional Services”). Greenboard will use commercially reasonable efforts to provide such Professional Services, which are provided subject to Section 8. If any Professional Services are not performed in a good and workmanlike manner, Customer will immediately notify Greenboard in writing, whereby Greenboard may, as Customer’s sole and exclusive remedy and Greenboard’s entire liability, use commercially reasonable efforts to re-perform such affected Professional Services.
Feedback. From time to time Customer or its employees, contractors, or representatives may provide Greenboard with suggestions, comments, feedback or the like with regard to the Services (collectively, “Feedback”). Customer hereby grants Greenboard a perpetual, irrevocable, royalty-free and fully-paid-up license to use and exploit all Feedback in connection with Greenboard’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Services.
CONFIDENTIALITY. Neither party will disclose any information to any third party that is marked as “confidential” or “proprietary” or should otherwise reasonably be considered to be confidential or proprietary (“Confidential Information”) without the express written consent of the other party, other than (a) in confidence, to its employees or contractors as necessary with respect to this Agreement or (b) pursuant to an order or requirement of a court, administrative agency or other governmental body (provided that the party receiving such Confidential Information provides reasonable written notice to the other party to allow the other party to seek a protective order or otherwise contest the disclosure). In addition, neither party will use any Confidential Information other than in the performance of obligations or exercise or enforcement of rights under this Agreement. Confidential Information excludes any information: (a) generally available to or known to the public absent breach of this Agreement, (b) previously known to the receiving party, (c) independently developed by the receiving party outside the scope of this Agreement, or (d) disclosed by a third party absent breach of its confidentiality obligations or applicable laws or regulations. For the avoidance of doubt, Customer Materials constitutes Confidential Information of Customer and Greenboard Materials constitute Confidential Information of Greenboard.
TERM AND TERMINATION.
This Agreement commences on the Effective Date and will continue in full force and effect until the end of the term (i.e., the Initial Subscription Term) as set forth on the Order Form (the “InitialTerm”), unless earlier terminated as permitted herein. Thereafter, except as otherwise set forth in the Order Form, this Agreement will automatically renew for successive periods of the same length as the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”) unless either party sends the other party written notice declining to renew at least thirty (30) days prior to the end of the then-current Term.
Either party may terminate this Agreement in the event of a material breach by the other party that, if able to be cured, has not been cured for a period of thirty (30) days.
Greenboard may suspend or otherwise terminate this Agreement in the event (i) it determines or believes in its discretion that continuing to provide the Services may result in harm to Greenboard, (ii) there is unauthorized access or misuse of the Services or Greenboard Materials, including any breach of the license restrictions set forth in Section 4.1; or (iii) there are any fees which are unpaid when due.
In the event of any termination or expiration of this Agreement, all rights and licenses granted hereunder will immediately cease, but the following provisions will survive any termination or expiration of this Agreement: Sections 2, 4, 5, 6.4, 8, 9, 10, and 11.
REPRESENTATIONS AND WARRANTIES. Each party represents and warrants to the other that (a) it has all right, power and authority to enter into this Agreement and (b) its duties and obligations under this Agreement do not conflict with any other duties or obligations assumed by it under any agreement with another party. Customer represents and warrants to Greenboard that (i) it has and will continue to have all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy notice ) as contemplated by this Agreement; and (ii) Greenboard’s use of Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.
DISCLAIMER. THE SERVICES, PROFESSIONAL SERVICES, ANY RESOLD PRODUCTS/SERVICES, GREENBOARD MATERIALS AND ANYTHING ELSE PROVIDED BY GREENBOARD, ITS VENDORS AND LICENSORS, AS APPLICABLE, IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED ON AN “AS IS” BASIS AND GREENBOARD MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT, THAT THE SERVICES, PROFESSIONAL SERVICES, ANY RESOLD PRODUCTS/SERVICES, OR GREENBOARD MATERIALS ARE FREE FROM DEFECTS, ERRORS, INACCURACIES OR BUGS.
INDEMNIFICATION.
Indemnification by Greenboard. Subject to Section 9.2, Greenboard will defend Customer against any claim, suit or proceeding brought by a third-party (“Claims”) alleging that Customer’s Use of the Services infringes or misappropriates such third party’s United States intellectual property rights, and will indemnify and hold harmless Customer against any damages and costs awarded in a final judgement against Customer or agreed in settlement by Greenboard (including reasonable attorneys’ fees) resulting from such Claim.
Exclusions. Greenboard’s obligations under Section 9.1 will not apply if the underlying Claim arises from or as a result of: (i) Customer’s breach of this Agreement, negligence, willful misconduct or fraud; (ii) any Customer Materials; (iii) Customer’s failure to use any enhancements, modifications, or updates to the Services that have been provided by Greenboard; (iv) modifications to the Services by anyone other than Greenboard; (v) combinations of the Services with software, data or materials not provided by Greenboard; or (vi) Customer’s continued use of a prior version of the Services that has been superseded by a non-infringing version subsequently released by Greenboard.
Indemnification by Customer. Customer will defend, indemnify and hold harmless Greenboard from and against any damages and liabilities (including court costs and reasonable attorneys’ fees) awarded in a final judgment against Greenboard, and amounts agreed to in settlement with respect to each of the foregoing, to the extent arising from a Claim against Greenboard that: (i) the Customer Materials or its use by Greenboard in accordance with this Agreement infringes, misappropriates or violates a third-party’s intellectual property rights, or violates applicable law; (ii) is based on Customer’s use of the Services to the extent such use was not in accordance with this Agreement; (iii) is based on the manufacture, sale, distribution or marketing of any Customer’s products or services; or (iv) is based on a breach of Section 4.1 by Customer.
Each party’s obligations under this Section 9 are contingent upon: (i) the party seeking defense and indemnity (the “Indemnified Party”) providing the other party (the “Indemnifying Party”) with prompt written notice of such Claim (but in any event notice in sufficient time for the Indemnifying Party to respond without prejudice); (ii) the Indemnifying Party having the exclusive right to defend or settle such Claim; and (iii) the Indemnified Party providing all reasonably necessary cooperation to the Indemnifying Party, at the Indemnifying Party’s expense, in the defense and settlement of such Claim. The Indemnified Party may participate in the defense of any Claim at its own expense.
LIMITATION OF LIABILITY. IN NO EVENT WILL GREENBOARD BE LIABLE FOR ANY SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUE, LOSS OF USE, LOST BUSINESS OPPORTUNITIES OR LOSS OF GOODWILL, OR COST OF REPLACEMENT PRODUCTS OR SERVICES, ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ANY SERVICES, PROFESSIONAL SERVICES, RESOLD PRODUCTS/SERVICES, GREENBOARD MATERIALS, OR ANYTHING ELSE PROVIDED BY GREENBOARD HEREUNDER, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, INTELLECTUAL PROPERTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WHETHER OR NOT GREENBOARD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. IN NO EVENT WILL GREENBOARD’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER ARISING FROM ALL CLAIMS UNDER OR RELATED TO THIS AGREEMENT, EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO GREENBOARD IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE APPLICABLE CLAIM MADE UNDER OR RELATED TO THIS AGREEMENT, LESS ALL AMOUNTS PAID BY GREENBOARD TO CUSTOMER FOR ALL PAST CLAIMS OF ANY KIND MADE UNDER OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT GREENBOARD WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
MISCELLANEOUS.
Trademarks; Publicity. Customer hereby grants to Greenboard a non-exclusive license to use and display Customer’s logos, trademarks and other identifiers for marketing or promotional purposes, including in communications with existing or potential customers, as applicable, and in connection with other publications or marketing materials publicizing Customer’s use of the Services. Additionally, upon Greenboard’s written request from time to time, (i) the parties will work together diligently and in good faith to issue a mutually agreed-upon case study and/or press release, and (ii) Customer will cooperate with Greenboard in serving as a reference account in such case studies, press releases, and other marketing materials of Greenboard.
Customer may not assign, transfer, or sublicense this Agreement, by operation of law or otherwise, without Greenboard’s consent, and any attempt by Customer to do so without such consent will be void. Greenboard may freely assign, transfer, and/or sublicense this Agreement without consent. Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the parties and their respective successors and permitted assigns. Customer affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Subscription Services, software, any Customer Materials, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Customer will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval. Neither party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control. If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect. This Agreement, including its exhibits and any Order Form(s), is the complete and exclusive agreement between the parties with respect to its subject matter and supersedes all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter. This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the parties. Nothing in this Agreement will be construed to create a partnership, joint venture or agency relationship between the parties. Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Except as expressly set forth in this Agreement, the exercise by either party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise. Either party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision. No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the party granting the waiver. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in New York County, New York and the parties irrevocably consent to the personal jurisdiction and venue therein. All notices required to be sent hereunder will be in writing (email being sufficient) and will be deemed to have been given when mailed by certified mail, overnight express, or sent by email, with receipt confirmed. This Agreement may be signed in counterparts, and electronic signatures will have the same weight and effect as originals.