Terms and Conditions

Adviserly, Inc.

Terms of Service

Effective as of January 1, 2019

THESE TERMS OF SERVICE (“TERMS”) CONSTITUTE A CONTRACT BETWEEN YOU AND ADVISERLY, INC. AND GOVERN USE OF AND ACCESS TO THE ADVISERLY SOFTWARE AND SITE BY YOU, ADVISERS AND OTHER END-USERS WHETHER IN CONNECTION WITH A PAID SUBSCRIPTION TO THE ADVISERLY SOFTWARE OR A FREE TRIAL OF THE ADVISERLY SOFTWARE.

By accepting these Terms, or by accessing or using the Adviserly Software or Site, or authorizing or permitting any Adviser or End-User to access or use the Adviserly Software, You agree to be bound by these Terms. If You are entering into these Terms on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to these Terms for that Entity and representing to Adviserly that You have the authority to bind such Entity and its Affiliates to these Terms, in which case the terms “Subscriber,” “You,” “Your” or related capitalized terms herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with these Terms, You must not accept these Terms and may not use the Adviserly Software.

  1. DEFINITIONS

When used in these Terms with the initial letters capitalized, in addition to the terms defined elsewhere in these Terms, the following terms have the following meanings:

“Account” means any accounts or instances created by or on behalf of Subscriber or its Advisers within the Adviserly Software.

“Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.

“Adviser” means an individual authorized to use the Adviserly Software through Your Account as an Adviser and/or administrator as identified through a unique login.

“API” means the application programming interfaces developed and enabled by Adviserly that permits Subscriber to access certain functionality provided by the Adviserly Software, including without limitation, the API that enables the interaction with the Adviserly Software automatically through HTTP requests and the application development API that enables the integration of the Adviserly Software with other web applications and databases maintained and operated by You or Your authorized third party.

“Add-On Features” means products, services, features and functionality designed to be used in conjunction with the Adviserly Software, which may or may not be included in the Subscription Plan to which You subscribed, including without limitation, additional features, integrations and applications created or developed by Adviserly or its Affiliates which are expressly stated to be governed by these Terms.

“Confidential Information” means all information disclosed by You to Adviserly or by Adviserly to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to Adviserly’s security policies and procedures. For purposes of these Terms, these Terms as well as Platform Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.

“Directive” means Directive 95/46/EC on the protection of individuals with regard to the processing of Personal Data and on the free movement of such data.

“Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Adviserly Software provided or made available by Adviserly to You, Advisers or End-Users through the Site or otherwise.

“End-User” means any person or entity other than Subscriber or Advisers with whom Subscriber or its Advisers interact using the Adviserly Software.

“Form” means any of Our generated service order forms executed or approved by You with respect to Your subscription to the Adviserly Software, which form may detail, among other things, the number of Advisers authorized to use the Adviserly Software under Your subscription to the Adviserly Software and the Subscription Plan applicable to Your subscription to the Adviserly Software.

“Adviserly” means Adviserly, Inc., a Delaware corporation or any of its successors or assignees.

“Adviserly Software” means the Software owned and made available to You by Adviserly in providing PRO:file and any other products and services we may offer to You, whether made available to You on a trial or paid basis, and which does not include Other Software Products that you may use or deploy from time to time.

“Other Software Products” means third party products, applications, services, software, products, networks, systems, directories, websites, databases and information which the Adviserly Software links to, or which You may connect to or enable in conjunction with the Adviserly Software, including, without limitation, your applicable dealer management system (DMS) and Other Software Products which may be integrated directly into Your Account.

“Payment Adviser” means Adviserly or a 3rd party billing and processing Adviser authorized for and on behalf of Adviserly.

“Personal Data” means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.

“Platform Data” means electronic data, text, messages, communications or other materials submitted to and stored within the Adviserly Software platform by You, Advisers and End-Users or otherwise accessed by the Adviserly Software in connection with Your use of the Adviserly Software and protected by Us as described in Section 3.  Platform Data may include, without limitation, Personal Data, data about your customers including data collected through your applicable dealer management system (DMS) database(s) and dealership inventory data.

“Processing/To Process/Processed” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.

“PRO:file” means Your PRO:file solution and related materials and tools made available by Adviserly online, accessible via Your website, the customer login link at https://www.Adviserly.com and/or other web pages designated by Adviserly, including, individually and collectively, the Adviserly Software, Updates, API and Documentation.

“Site” means https://www.Adviserly.com, as applicable, as well as the other websites that Adviserly operates directly or indirectly as plugins or extensions on Your web sites.

“Software” means software provided by Adviserly (either by download or access through the internet) that allows an Adviser or End-Users to use any functionality in connection with the Adviserly Software.

“Subscription Plan(s)” means the packaged subscription plan(s) and the functionality and services associated therewith (as detailed on the Site applicable to the Adviserly Software) for PRO:file, as applicable, to which You subscribe.

“Subscription Term” means the period during which You have agreed to subscribe to PRO:file and its associated Add-On Features, as applicable, with respect to any individual Add-On Feature.

“Usage Data” means encoded or anonymized information or aggregated data that Adviserly may collect about a group or category of services, features or users while You, Your Advisers or End-Users use the Adviserly Software for certain purposes, including analytics, which does not contain Personal Data.

“We,” “Us” or “Our” means Adviserly.

  1. GENERAL CONDITIONS; ACCESS TO AND USE OF THE ADVISERLY SOFTWARE

2.1 During the Subscription Term and subject to compliance by You, Advisers and End-Users with these Terms, You have the limited right to access and use the Adviserly Software consistent with the Subscription Plan(s) that You subscribe to, for Your internal business purposes. Your right to access and use the API is also subject to the restrictions and policies implemented by Adviserly from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.

2.2 A high speed Internet connection is required for proper transmission of the Adviserly Software. You are responsible for procuring and maintaining the network connections that connect Your network and applicable databases to the Adviserly Software, including, but not limited to, “browser” software that supports protocols used by Adviserly, including the Transport Layer Security (TLS) protocol or other protocols accepted by Adviserly, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Advisers or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Platform Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Adviserly. We assume no responsibility for the reliability or performance of any connections as described in this section.

2.3 In addition to complying with the other terms, conditions and restrictions set forth below in these Terms, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Adviserly Software available to any third party, other than authorized Advisers and End-Users in furtherance of Your internal business purposes as expressly permitted by these Terms; (b) use the Adviserly Software to Process data on behalf of any third party other than Advisers or End-Users; (c) modify, adapt, or hack the Adviserly Software or otherwise attempt to gain unauthorized access to the Adviserly Software or related systems or networks; (d) falsely imply any sponsorship or association with Adviserly; (e) use the Adviserly Software in any unlawful manner, including but not limited to violation of any person’s privacy rights; (f) use the Adviserly Software to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Adviserly Software to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Adviserly Software in any manner that interferes with or disrupts the integrity or performance of the Adviserly Software and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Adviserly Software; (j) use the Adviserly Software to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Adviserly Software to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Adviserly; (l) use the Adviserly Software to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); or (m) attempt to use, or use the Adviserly Software in violation of these Terms.

2.4 You are responsible for compliance with the provisions of these Terms by Advisers and End-Users and for any and all activities that occur under Your Account, as well as for all Platform Data. Without limiting the foregoing, You are solely responsible for ensuring that use of the Adviserly Software to store and transmit Platform Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Advisers, End-Users or third party database administrators or providers. You also maintain all responsibility for determining whether the Adviserly Software or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Advisers available under the applicable Subscription Plan(s) to which You subscribed, access to and use of the Adviserly Software is restricted to the specified number of individual Advisers permitted under Your subscription to the Adviserly Software. You agree and acknowledge that each Adviser will be identified by a unique username and password or other similar individual identifier that we may communicate to you from time to time (“Login”), and that a Login or other individual identifier may only be used by one (1) individual. You will not share Login among multiple individuals. The foregoing shall not be deemed to limit Your use of other features of PRO:file if Your Subscription Plan specifically includes other features. You and Your Advisers or other authorized End Users are responsible for maintaining the confidentiality of all Login information for Your Account.

2.5 In addition to Our rights as set forth in Section 9.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of the Adviserly Software: (a) during planned downtime for upgrades and maintenance to the Adviserly Software (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Advisers) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond Our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond Our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if We suspect or detect any Malicious Software connected to Your Account or use of the Adviserly Software by You, Advisers or End-Users.  We also reserve the right, in Our reasonable discretion, to monitor the End-User activity, interactions and feedback on the Site and the Adviserly Software and edit or remove any harmful, malicious, offensive, or other negative or damaging content.

  1. DATA PRIVACY AND SECURITY; CONFIDENTIALITY

3.1 Subject to the express permissions of these Terms, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to these Terms, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under these Terms and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and Advisers who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 3 shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Platform Data and such agreement shall have no further force or effect with respect to Platform Data.

3.2 To the extent Platform Data constitutes Personal Data, You and Adviserly hereby agree that You shall be deemed to be the data controller and Adviserly shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). In providing the Adviserly Software, Adviserly will provide and will engage other authorized service providers, to Process Platform Data, including and without limitation, any associated Personal Data pursuant to these Terms within the European Economic Area (the “EEA”), the United States and in other countries and territories. Under no circumstances will the relevant Adviserly Contracting Party be deemed a data controller with respect to Platform Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive.

3.3 Adviserly will maintain commercially reasonable information security programs and measures including administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Platform Data. These safeguards include encryption of Platform Data in transmission (using TLS or similar technologies), except for certain Other Software Products that do not support encryption, which You may link to through the Adviserly Software at Your election. Such information security programs and measures will also include such other procedures and processes designed to (1) protect the security and confidentiality of such information, (2) protect against anticipated threats or hazards to the security or integrity of such information, and (3) protect against unauthorized access to or use of such information that could result in substantial harm or inconvenience to any of Your customers, each in a commercially reasonable manner consistent with industry practices. Our compliance with the provisions of this Section 3.3 shall be deemed compliance with Our obligations to protect Platform Data as set forth in Section 3.1.

3.4 You agree that We and the third party solution providers that We utilize to assist in providing the Adviserly Software to You shall have the right to access Your Account and to use, modify, reproduce, distribute, display and disclose Platform Data to the extent necessary to provide the Adviserly Software, including, without limitation, in response to Your support requests. Any third party service providers We utilize will only be given access to Your Account and Platform Data as is reasonably necessary to provide the Adviserly Software and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described in Section 3.3 and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data as set forth in Section 3.4.

3.5 In addition to Platform Data, We collect certain information (which may include Personal Data) about You, Advisers and End-Users as well as Your and their respective devices, computers and use of the Adviserly Software. We use, disclose, and protect this information as described in Our Privacy Policy.

  1. INTELLECTUAL PROPERTY RIGHTS

4.1 Each Party shall maintain all rights, title and interest in and to all our respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Advisers and End-Users to use the Adviserly Software under these Terms do not convey any additional rights in the Adviserly Software, or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Adviserly Software as expressly stated herein, all rights, title and interest in and to the Adviserly Software and all hardware, Software and other components of or used to provide the Adviserly Software, including all related Intellectual Property Rights, will remain with Adviserly and belong exclusively to Adviserly. Adviserly shall have a fully paid-up, royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Adviserly Software or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Advisers, End-User, or other third parties acting on Your behalf. Adviserly and the Adviserly’s other product and service names, and logos used or displayed on the Adviserly Software are registered or unregistered trademarks of Adviserly (collectively, “Our Marks”), and You may only use Our Marks as applicable, to identify You as a Subscriber; provided You do not attempt, now or in the future, to claim any rights in Our Marks, degrade the distinctiveness of Our Marks, or use Our Marks to disparage or misrepresent Us, Our services or products.

4.2 You hereby grant to Adviserly a revocable non-exclusive, non-assignable, non-transferable royalty free license to use, reproduce, display, distribute and transmit the logos, service marks, symbols, trade names and/or trademarks owned or controlled by You and/or any of Your parents, affiliates or subsidiaries that are provided to Adviserly in connection with providing the Adviserly Software  (collectively, “Your Marks”) solely for use in connection with these Terms and for general advertising, marketing, customer communication and/or promotion of You and Your business in connection with the Adviserly Software. Subject to Section 3 regarding confidentiality, You also permit Adviserly to (a) disclose that you have engaged Adviserly to provide the Adviserly Software on Your website and the general context of the engagement, and (b) allow Your name and logo to be posted on Adviserly’s web site and in related marketing and advertising materials and communication, in each case subject to compliance with the other terms of this Section 4.  Adviserly acknowledges that Your Marks and the goodwill associated Your Marks valuable properties and that this license grants Adviserly no rights in Your Marks except as specifically set forth herein. Any other use, reproduction, publication, transmission, exploitation or communication of Your Marks is expressly prohibited except with Your prior written consent.  Adviserly agrees that it will not at any time do or cause to be done or assist in the doing of any act or thing contesting or in any way impairing or tending to impair, in whole or in part, your right, title and interest in Your Marks. In connection with Adviserly’s display of the Your Marks, Adviserly shall not in any manner represent that it has any ownership of Your Marks.

  1. THIRD PARTY PRODUCTS AND SERVICES

If You decide to enable, access or use Other Software Products, be advised that Your access and use of such Other Software Products is governed solely by the terms and conditions of such Other Software Products, and We do not endorse, are not responsible or liable for, and make no representations as to any aspect of such Other Software Products, including, without limitation, their content or the manner in which they handle data (including Platform Data) or any interaction between You and the provider of such Other Software Products. You irrevocably waive any claim against Adviserly with respect to such Other Software Products. We are not liable for any damage or loss caused or alleged to be caused by or in connection with Your enablement, access or use of any such Other Software Products, or Your reliance on the privacy practices, data security processes or other policies of such Other Software Products. You may be required to register for or log into such Other Software Products on their respective websites. By enabling any Other Software Products, You are expressly permitting Adviserly to disclose Your Login as well as Platform Data as necessary to facilitate the use or enablement of such Other Software Products.

  1. BILLING, PLAN MODIFICATIONS AND PAYMENTS

6.1 Unless otherwise indicated on a Form referencing these Terms or in any Additional Terms (as defined in Section 13.2) and subject to Section 6.2, all charges associated with Your access to and use of the Adviserly Software (“Subscription Charges”) are due in full upon commencement of Your Subscription Term, or with respect to an Add-On Feature, at the time such Add-On Feature is purchased, subscribed to or otherwise deployed. If You fail to pay Your Subscription Charges or charges for other services indicated on any Form referencing these Terms within five (5) business days of Our notice to You that payment is due or delinquent, or if You do not update payment information upon Our request, in addition to Our other remedies, We may suspend or terminate access to and use of the Adviserly Software by You, Advisers and End-Users.

6.2 If You choose to upgrade Your Subscription Plan or increase the number of Advisers or other End Users using or authorized to use the Adviserly Software during Your Subscription Term (a “Subscription Upgrade”), any incremental Subscription Charges associated with such Subscription Upgrade will be prorated over the remaining period of Your then current Subscription Term, charged to Your Account and due and payable upon implementation of such Subscription Upgrade. In any future Subscription Term, Your Subscription Charges will reflect any such Subscription Upgrades.

6.3 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade Your Subscription Plan. Downgrading Your Subscription Plan may cause loss of content, features, or capacity of the Adviserly Software as available to You under Your Account, and Adviserly does not accept any liability for such loss.

6.4 Unless otherwise stated, Our charges do not include any taxes, levies, duties or similar governmental assessments, including value-added, sales, use or withholding taxes assessable by any local, state, provincial or foreign jurisdiction (collectively “Taxes”). You are responsible for paying Taxes except those assessable against Adviserly based on its income. We will invoice You for such Taxes if We believe We have a legal obligation to do so and You agree to pay such Taxes if so invoiced.

6.5 If we choose to provide and You choose to pay by credit card or certain other payment instruments, the Adviserly Software may provide an interface for the Account owner to change credit card information (e.g. upon card renewal). In such case, the Account owner will receive a receipt upon each receipt of payment by the Payment Adviser, or they may obtain a receipt from within the Adviserly Software to track subscription status. By choosing to pay by credit card or certain other payment instruments, You hereby authorize the Payment Adviser to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Subscription Plan for the Adviserly Software and for periodic Subscription Charges applicable to Add-On Features until You terminate Your Subscription to the Adviserly Software, and You further agree to pay any Subscription Charges so incurred. If applicable, You hereby authorize Adviserly and the Payment Adviser to charge Your credit card or other payment instrument to establish such prepaid credit. You agree to promptly update your Account information with any changes (for example, a change in Your billing address or credit card expiration date) that may occur. The Payment Adviser uses a third-party intermediary to manage credit card processing and this intermediary is not permitted to store, retain or use Your billing information except to process Your credit card information for the Payment Adviser.

6.6  Payments made by credit card, debit card or certain other payment instruments for PRO:file are billed and processed by the Payment Adviser. To the extent the Payment Adviser is not Adviserly, the Payment Adviser is acting solely as a third party billing and processing agent for and on behalf of Adviserly and shall not be construed to be providing the Adviserly Software.

6.7 We may, at our sole discretion, choose to offer credits for the Adviserly Software in various ways, including but not limited to, coupons, promotional campaigns and referrals. Adviserly reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of Subscription Charges for the Adviserly Software. Credits may only be applied to Subscription Charges due for the Adviserly Software specifically identified by Adviserly when issuing the credit. Credits can only be used by You and are non-transferable.

6.8 To the extent that You have been awarded Adviserly credits, unless the instrument (including any coupon) states an earlier expiration date, these Adviserly credits shall expire and no longer be redeemable twelve (12) months from the date the Adviserly credit was issued.

  1. EXPORT COMPLIANCE AND USE RESTRICTIONS

The Adviserly Software and other Software or components of the Adviserly Software that We may provide or make available to You, Advisers or End-Users may be subject to U.S. export control and economic sanctions laws. You agree to comply with all such laws and regulations as they relate to access to and use of the Adviserly Software, other Software and such other components by You, Advisers and End-Users. You shall not access or use the Adviserly Software if You are located in any jurisdiction in which the provision of the Adviserly Software, Software or other components is prohibited under U.S. or other applicable laws or regulations (a “Prohibited Jurisdiction”) and You shall not provide access to the Adviserly Software to any government, entity or individual located in any Prohibited Jurisdiction. You represent, warrant and covenant that (a) You are not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person; (b) You are not a national of, or a company registered in, any Prohibited Jurisdiction; (c) You shall not permit Advisers or End-Users to access or use the Adviserly Software in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions; and (d) You shall comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which You, Advisers and End-Users are located.

  1. CANCELLATION AND TERMINATION

8.1 Either Party may elect to terminate Your Account and subscription to the Adviserly Software as of the end of Your then current Subscription Term by providing notice, in accordance with these Terms, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your Account and subscription to the Adviserly Software is so terminated, Your subscription to the Adviserly Software (including any and all Add-On Features) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any Form, the Subscription Charges applicable to Your subscription to the Adviserly Software for any such subsequent Subscription Term shall be Our standard Subscription Charges for the Subscription Plan and Add-On Features to which You have subscribed or which you have deployed, as applicable, as of the time such subsequent Subscription Term commences.

8.2 No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Adviserly Software or cancel Your Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Adviserly Software and/or Account, We reserve the right to delete all Platform Data in the normal course of operation. Platform Data cannot be recovered once Your Account is cancelled.

8.3 If You terminate Your subscription to the Adviserly Software or cancel Your Account prior to the end of Your then effective Subscription Term or We effect such termination or cancellation pursuant to Sections 2.5(c) or 9.4, in addition to other amounts You may owe Adviserly, You must immediately pay any then unpaid Subscription Charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Adviserly Software or cancel Your Account as a result of a material breach of these Terms by Adviserly, provided that You provide advance notice of such breach to Adviserly and afford Adviserly not less than thirty (30) days to reasonably cure such breach.

8.4 We reserve the right to modify, suspend or terminate the Adviserly Software (or any part thereof), Your Account or Your and/or Advisers’ or End-Users’ rights to access and use the Adviserly Software, and remove, disable and discard any Platform Data if We believe that You, Advisers or End-Users have violated these Terms. This includes the removal or disablement of Platform Data in accordance with Our Copyright Infringement Notice and Takedown Policy available at www.Adviserly.com. Unless legally prohibited from doing so, We will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. We shall not be liable to You, Advisers, End-Users or any other third party for any such modification, suspension or discontinuation of Your rights to access and use the Adviserly Software. Any suspected fraudulent, abusive, or illegal activity by You, Advisers or End-Users may be referred to law enforcement authorities at Our sole discretion.

  1. DISCLAIMER OF WARRANTIES

THE SITE AND THE ADVISERLY SOFTWARE, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT WE DO NOT WARRANT THAT THE ADVISERLY SOFTWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM US OR THROUGH THE ADVISERLY SOFTWARE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.

  1. LIMITATION OF LIABILITY

10.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE) WILL EITHER PARTY TO THESE TERMS, OR THEIR AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ADVISERS, SUPPLIERS OR LICENSORS BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL, PUNITIVE OR OTHER SIMILAR DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA, BUSINESS INTERRUPTION OR ANY OTHER LOSS INCURRED BY SUCH PARTY OR THIRD PARTY IN CONNECTION WITH THESE TERMS OR THE ADVISERLY SOFTWARE, REGARDLESS OF WHETHER SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES.

10.2 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THESE TERMS, OUR AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTY ARISING OUT OF THESE TERMS OR OTHERWISE IN CONNECTION WITH ANY SUBSCRIPTION TO, OR USE OR EMPLOYMENT OF THE ADVISERLY SOFTWARE, SHALL IN NO EVENT EXCEED THE SUBSCRIPTION CHARGES PAID BY YOU DURING THE TWELVE (12) MONTHS PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11.2 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE SUBSCRIPTION CHARGES, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF WE WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. WE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE YOU THE RIGHTS TO ACCESS AND USE THE ADVISERLY SOFTWARE PROVIDED FOR IN THESE TERMS.

10.3 Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, ADVISERLY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

10.4 Any claims or damages that You may have against Adviserly shall only be enforceable against Adviserly and not any other entity or its officers, directors, representatives or Advisers.

  1. INDEMNIFICATION

11.1 We will indemnify and hold You harmless, from and against any claim against You by reason of Your use of the Adviserly Software as permitted hereunder, brought by a third party alleging that the Adviserly Software infringes or misappropriates a third party’s valid patent, copyright, trademark or trade secret (an “IP Claim”). We shall, at Our expense, defend such IP Claim and pay damages finally awarded against You in connection therewith, including the reasonable fees and expenses of the attorneys engaged by Adviserly for such defense, provided that (a) You promptly notify Adviserly of the threat or notice of such IP Claim; (b) We will have the sole and exclusive control and authority to select defense attorneys, defend and/or settle any such IP Claim; and (c) You fully cooperate with Adviserly in connection therewith. If use of the Adviserly Software by You, Advisers or End-Users has become, or in Our opinion is likely to become, the subject of any such IP Claim, We may at its option and expense (a) procure for You the right to continue using the Adviserly Software as set forth hereunder; (b) replace or modify the Adviserly Software to make it non-infringing; or (c) if options (a) or (b) are not commercially reasonable or practicable as determined by Adviserly, terminate Your subscription to the Adviserly Software and repay You, on a pro-rated basis, any Subscription Charges previously paid to Adviserly for the corresponding unused portion of Your Subscription Term for the Adviserly Software. We will have no liability or obligation under this Section 12.1 with respect to any IP Claim if such claim is caused in whole or in part by (i) compliance with designs, data, instructions or specifications provided by You; (ii) modification of the Adviserly Software by anyone other than Adviserly; or (iii) the combination, operation or use of the Adviserly Software with other hardware or software where the Adviserly Software would not by itself be infringing.

The provisions of this Section 12.1 state the sole, exclusive and entire liability of Adviserly to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of the Adviserly Software by You, Advisers or End-Users.

11.2 You will indemnify and hold Adviserly harmless against any claim brought by a third party against Adviserly arising from or related to use of the Adviserly Software by You, Advisers or End-Users in breach of these Terms or matters which You have expressly agreed to be responsible pursuant to these Terms; provided that We promptly notified You of the threat or notice of such a claim.

  1. ASSIGNMENT; ENTIRE AGREEMENT; AMENDMENT

12.1 You may not, directly or indirectly, by operation of law or otherwise, assign all or any part of these Terms or Your rights under these Terms or delegate performance of Your duties under these Terms without Our prior consent, which consent will not be unreasonably withheld. We may, without Your consent, assign Our agreement with You in connection with any merger or change of control of Adviserly or the sale of all or substantially all of Our assets provided that any such successor agrees to fulfill its obligations pursuant to these Terms. Subject to the foregoing restrictions, these Terms will be fully binding upon, inure to the benefit of and be enforceable by the parties and their respective successors and assigns.

12.2 These Terms, together with any Form(s), constitute the entire agreement, and supersede any and all prior agreements between You and Adviserly with regard to the subject matter hereof. These Terms and any Form(s) shall apply in lieu of the terms or conditions in any purchase order or other order documentation You or any Entity which You represent provides (all such terms or conditions being null and void), and, except as expressly stated herein, there are no other agreements, representations, warranties, or commitments which may be relied upon by either party with respect to the subject matter hereof. Notwithstanding the foregoing, additional terms may apply to certain features, functionality, or services We offer as part of or distinct from the Adviserly Software, including Add-On Features (the “Additional Terms”). In those instances, We will notify You of such Additional Terms prior to the activation of these features, functionality, or services and the activation of these features, functionality, or services in Your Account will be considered acceptance of the Additional Terms. All such Additional Terms will be considered incorporated into these Terms when You or any Adviser authorized as an administrator in Your Account activate the feature, functionality, or service. Where there is a conflict between these Terms and the Additional Terms, the Additional Terms will control.

12.3 We may amend these Terms from time to time, in which case the new Terms will supersede prior versions. We will notify You not less than ten (10) days prior to the effective date of any such amendment and Your continued use of the Adviserly Software following the effective date of any such amendment may be relied upon by Adviserly as Your consent to any such amendment. Our failure to enforce at any time any provision of these Terms does not constitute a waiver of that provision or of any other provision of the Terms.

  1. SEVERABILITY

If any provision in these Terms is held by a court of competent jurisdiction to be unenforceable, such provision shall be modified by the court and interpreted so as to best accomplish the original provision to the fullest extent permitted by law, and the remaining provisions of these Terms shall remain in effect.

  1. RELATIONSHIP OF THE PARTIES

The parties are independent contractors. These Terms do not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship among the parties.

  1. SURVIVAL

Sections 1, 2.3, 3, 4 and 8-18 shall survive any termination of our agreement with respect to use of the Adviserly Software by You, Advisers or End Users. Termination of such agreement shall not limit a Party’s liability for obligations accrued as of or prior to such termination or for any breach of these Terms.

  1. NOTICE

All notices to be provided by Adviserly to You under this Agreement may be delivered in writing (a) by nationally recognized overnight delivery service (“Courier”) or U.S. mail to the contact mailing address provided by You on any Form; or (b) electronic mail to the electronic mail address provided for Your Account owner. You must give notice to Adviserly in writing by Courier or U.S. Mail to the applicable address set forth on any Form or as may be superseded by the Site. All notices shall be deemed to have been given immediately upon delivery by electronic mail, or if otherwise delivered upon receipt or, if earlier, two (2) business days after being deposited in the mail or with a Courier as permitted above.

  1. GOVERNING LAW

These Terms shall be governed by Utah law without regard to conflict of laws principles. You hereby expressly agree to submit to the exclusive personal jurisdictions of the state and Federal courts located in Salt Lake City, Utah, for the purpose of resolving any dispute relating to this Agreement or access to or use of the Adviserly Software by You, Advisers or End Users.