Terms of Service
SGADVANTAGE TERMS OF USE
Last Updated: November 1, 2022
PLEASE READ THESE TERMS CAREFULLY. CAPITALIZED TERMS SHALL HAVE THE MEANING ASCRIBED TO THEM HEREIN. THIS IS AN AGREEMENT BETWEEN SGADVANTAGE.COM (PROVIDER) AND CUSTOMER. THESE TERMS GOVERN CUSTOMER’S ACCESS TO AND USE OF SGADVANTAGE.COM SOFTWARE AND BUSINESS SERVICES (THE PLATFORM). BY CLICKING THE BOX INDICATING CUSTOMER’S ACCEPTANCE, OR BY USING OR REGISTERING FOR THE PLATFORM, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, ACCEPTS AND AGREES TO BE LEGALLY BOUND BY THESE TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER SHALL NOT USE, VISIT, REGISTER OR OTHERWISE ACCESS THE PLATFORM. PROVIDER RESERVES THE RIGHT TO, IN ITS SOLE DISCRETION, CHANGE, AMEND OR MODIFY THESE TERMS AT ANY TIME AND ANY SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY UPON POSTING, WITH CUSTOMER’S CONTINUED USE OF THE PLATFORM CONSTITUTING ACCEPTANCE OF THE SAME.
1. Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Platform that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to these Terms.
(c) “Customer” means the individual or entity that has subscribed to the Platform and is being granted the licenses under Section 2 of these Terms by Provider, subject to the restrictions, revocation, suspension or termination of such authorization by Provider.
(d) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform. Customer Data does not include Aggregated Statistics or any compilations or derivative works that may be created from the Customer Data by or through the Platform.
(e) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Platform provided by Provider to Customer either electronically or in hard copy form.
(f) “Effective Date” means the date of acceptance of these Terms by Customer.
(g) “Part(ies)” means Customer and Provider.
(h) “Platform” means Provider’s proprietary web-based technology platform for financial analysis and financial categorization and organization. This Platform includes software programs, and all upgrades, updates, improvements, modifications, derivative works, enhancements, extensions and revisions thereto generally made available by Provider to Customer, subject to additional fees if so determined by Provider.
(i) “Provider” means SG Advantage, LLC, a Missouri limited liability company.
(j) “Provider IP” means the Platform, the Documentation and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Platform.
(k) “Terms” means these Platform Terms of Use, as may be modified or updated from time to time.
2. Registration.
Customer agrees to provide true, accurate, current and complete information as requested by the registration forms. Customer agrees not to impersonate any person or entity, misrepresent any affiliation with another person, entity or association, use false headers or otherwise conceal Customer’s identity from the Provider for any purpose. Provider reserves the right, in its sole discretion, to refuse any registration for the Platform.
3. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms, Provider hereby grants Customer a non-exclusive, non- transferable (except in compliance with Section 12(g)) right to access and use the Platform during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Platform.
(b) Documentation License. Subject to the terms and conditions contained in these Terms, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Platform.
(c) Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, duplicate, modify, replicate or create derivative works of the Platform or Documentation, in whole or in part, or, either solely or by any third-party, attempt to copy, duplicate, modify, replicate, or create derivative works of the Platform or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform or Documentation; or (v) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in these Terms, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Provider, in its sole discretion, determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) in Provider’s sole discretion, Customer is no longer in good-standing with Provider or Provider, in its sole discretion, determines that Customer’s business or firm practices competes with Provider, interferes with Provider, or benefits any third-party beside Provider in any way; or (F) Provider’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Platform; or (iii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Provider may monitor Customer’s use of the Platform and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Platform. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
4. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such provisions.
(b) Acceptable Use. Customer agrees: (i) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Platform, including all applicable data privacy and security laws and regulations; (ii) to take all necessary steps to avoid distributing malware, viruses, corrupted files, or any other software or programs that may damage the operation of the Platform; (iii) not to use the Platform for illegal, fraudulent, harmful, unethical or inappropriate, deceptive, threatening, harassing, defamatory, or otherwise objectionable purposes as determined in the Provider’s sole discretion; (iv) not to intentionally interfere with another customer’s use and enjoyment of the Platform or another person or entity's use and enjoyment of similar services; (v) not make any representations that the Platform will result in compliance with any laws or regulations applicable to Customer’s industry; and (vi) to comply with all regulations, policies and procedures of third party service providers.
(c) Responsibility for Backup of Customer Data. Customer is solely responsible for maintaining adequate copies and backup of all Customer Data submitted to the Platform. Customer acknowledges and agrees that Provider shall have no responsibility for maintaining copies or backup of Customer Data.
5. Support.
These Terms do not entitle Customer to any support for the Platform from Provider.
6. Fees and Payment.
(a) Fees. Customer shall pay Provider the fees (“Fees”) as set forth on the registration form at the time of registration. Unless otherwise specified on the registration form, such Fees are subject to change upon the commencement of each additional Term. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 3% per month calculated daily and compounded monthly or, if higher, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Provider may suspend and/or revoke Customer’s and its Authorized Users’ access to any portion or all of the Platform indefinitely or otherwise.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of these Terms with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by these Terms, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of these Terms and for a period of two years after the termination or expiration of these Terms.
7. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third- party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
(b) Customer Data. Customer acknowledges that, as between Provider and Customer, as a result of Customer’s use and entry of data and information into and through the Platform, that Customer disclaims all ownership of, and right, title, and interest, including all intellectual property rights, in and to the Customer Data. Furthermore, as between Provider and Customer, Customer acknowledges that it has no right to request return of the Customer Data or any derivative works or compilations based thereupon.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
9. NO FINANCIAL, TAX OR LEGAL ADVICE.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT PROVIDER IS NOT AN INVESTMENT, FINANCIAL, BROKER OR TAX OR LEGAL ADVISOR, AND THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, NOR ANY INFORMATION OBTAINED THROUGH THE PLATFORM, WILL OR SHALL CONSTITUTE INVESTMENT, FINANCIAL, TAX OR LEGAL ADVICE. REGARDLESS OF HOW ANY INFORMATION OR MATERIAL IS DESCRIBED AT THE TIME IT IS PROVIDED TO CUSTOMER, SUCH INFORMATION OR MATERIAL IS PROVIDED TO CUSTOMER SOLELY FOR INFORMATIONAL PURPOSES. CUSTOMER AGREES TO CONSULT WITH COMPETENT AND INDEPENDENT PROFESSIONAL FINANCIAL, TAX AND LEGAL ADVISORS BEFORE MAKING ANY INVESTMENT DECISIONS OR DECIDING ON SIGNIFICANT CHANGES TO FINANCIAL STRATEGY. CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ALL FINANCIAL DECISIONS OR RECOMMENDATIONS MADE BY CUSTOMER OR BY ANY OTHER THIRD PARTY ON CUSTOMER’S BEHALF, WHETHER MADE AS A RESULT OF OR WHILE USING THE PLATFORM OR OTHERWISE. PROVIDER SHALL NOT BE RESPONSIBLE OR HELD LIABLE FOR ANY ADVICE GIVEN OR RECOMMENDATIONS MADE BY CUSTOMER OR BY ANY THIRD PARTY FOR ANY FINANCIAL, LEGAL OR TAX RELATED PURPOSES. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORM WILL CAUSE CUSTOMER TO BE IN COMPLIANCE WITH ANY LAWS OR REGULATIONS APPLICABLE TO CUSTOMER’S INDUSTRY.
THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
10. WARRANTY DISCLAIMER.
THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
11. Customer Indemnification.
Customer shall indemnify, defend, and hold harmless Provider and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) incurred by such Provider Indemnitee resulting from any third-party claim, suit, action, or proceeding that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with these Terms;
(b) Any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) Allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under these Terms; or
(d) Negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these Terms.
12. LIMITATIONS OF LIABILITY.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN V ALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE TERMS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $2,000.00, WHICHEVER IS LESS.
13. Term and Termination.
(a) Term; Renewal. The term of these Terms shall be thirty (30) days from the Effective Date (the “Initial Term”), subject to automatic renewal for successive thirty (30) day periods as set forth below (each a “Renewal Term” and collectively, the “Term”). Customer’s continued usage of the Platform will constitute acceptance of the renewal of these Terms for an additional Renewal Term. Customer may elect not to renew these Terms for an additional Renewal Term by providing Provider with no less than five (5) days’ advance written notice prior to the expiration of the then current Term. Provider may elect not to renew these Terms for an additional Renewal Term at any time and in its sole discretion. In the event of non-renewal of these Terms by either Customer or Provider, Customer’s access to the Platform and the Platform will be terminated at the conclusion of the then current Term.
(b) Additional Termination Rights. In addition to any other express termination right set forth in these Terms:
(i) Provider may terminate these Terms if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Provider’s delivery of written notice thereof; (B) breaches any of its obligations under Section 3(c), Section 4(b) or Section 7; or (C) in Provider’s sole discretion, Customer is no longer in good-standing with Provider or Provider, in its sole discretion, determines that Customer’s business or firm practices competes with Provider, interferes with Provider, or benefits any third-party beside Provider in any way.
(ii) either Party may terminate these Terms if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured ten (10) days after the non- breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate these Terms if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; (D) 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, or (E) becomes unproperly or insufficiently licensed or out of compliance with any and all applicate insurance carrier, state insurance department, Department of Labor, FINRA, or SEC rules, regulations, codes, and laws with respect to the conduct of the Party’s business or is or has ever been terminated by any insurance carrier (except for lack of production).
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Except as required by applicable law, Provider shall have no obligation to return Customer Data or provide Customer with continued access to the Platform to retrieve or download Customer Data after expiration or earlier termination of these Terms. Upon expiration or earlier termination, Provider may destroy or otherwise dispose of Customer Data in its possession without further obligation to Customer
(d) Survival. This Section 13(c) and Sections 1, 6, 7, 8, 10, 12, and 14 survive any termination or expiration of these Terms, together will all other provisions which by their nature are intended to survive termination or expiration of these Terms.
14. Miscellaneous.
(a) Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the Exhibits to these Terms as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c) or Section 4(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(c) Prevailing Party. If any legal action or other proceedings, including action seeking equitable relief, is brought by Provider for a breach of these Terms and Provider prevails in such action or proceeding, Provider shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such Party may be entitled.
(d) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of registration form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(e) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(g) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Missouri. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Missouri in each case located in the city of Saint Louis and County of Saint Louis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(h) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(i) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Platform or any Customer Data outside the US.
Last Updated: November 1, 2022
PLEASE READ THESE TERMS CAREFULLY. CAPITALIZED TERMS SHALL HAVE THE MEANING ASCRIBED TO THEM HEREIN. THIS IS AN AGREEMENT BETWEEN SGADVANTAGE.COM (PROVIDER) AND CUSTOMER. THESE TERMS GOVERN CUSTOMER’S ACCESS TO AND USE OF SGADVANTAGE.COM SOFTWARE AND BUSINESS SERVICES (THE PLATFORM). BY CLICKING THE BOX INDICATING CUSTOMER’S ACCEPTANCE, OR BY USING OR REGISTERING FOR THE PLATFORM, CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTANDS, ACCEPTS AND AGREES TO BE LEGALLY BOUND BY THESE TERMS. IF CUSTOMER DOES NOT AGREE TO THESE TERMS, CUSTOMER SHALL NOT USE, VISIT, REGISTER OR OTHERWISE ACCESS THE PLATFORM. PROVIDER RESERVES THE RIGHT TO, IN ITS SOLE DISCRETION, CHANGE, AMEND OR MODIFY THESE TERMS AT ANY TIME AND ANY SUCH MODIFICATIONS WILL BE EFFECTIVE IMMEDIATELY UPON POSTING, WITH CUSTOMER’S CONTINUED USE OF THE PLATFORM CONSTITUTING ACCEPTANCE OF THE SAME.
1. Definitions.
(a) “Aggregated Statistics” means data and information related to Customer’s use of the Platform that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Platform.
(b) “Authorized User” means Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Platform under the rights granted to Customer pursuant to these Terms.
(c) “Customer” means the individual or entity that has subscribed to the Platform and is being granted the licenses under Section 2 of these Terms by Provider, subject to the restrictions, revocation, suspension or termination of such authorization by Provider.
(d) “Customer Data” means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Platform. Customer Data does not include Aggregated Statistics or any compilations or derivative works that may be created from the Customer Data by or through the Platform.
(e) “Documentation” means Provider’s user manuals, handbooks, and guides relating to the Platform provided by Provider to Customer either electronically or in hard copy form.
(f) “Effective Date” means the date of acceptance of these Terms by Customer.
(g) “Part(ies)” means Customer and Provider.
(h) “Platform” means Provider’s proprietary web-based technology platform for financial analysis and financial categorization and organization. This Platform includes software programs, and all upgrades, updates, improvements, modifications, derivative works, enhancements, extensions and revisions thereto generally made available by Provider to Customer, subject to additional fees if so determined by Provider.
(i) “Provider” means SG Advantage, LLC, a Missouri limited liability company.
(j) “Provider IP” means the Platform, the Documentation and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Aggregated Statistics and any information, data, or other content derived from Provider’s monitoring of Customer’s access to or use of the Platform.
(k) “Terms” means these Platform Terms of Use, as may be modified or updated from time to time.
2. Registration.
Customer agrees to provide true, accurate, current and complete information as requested by the registration forms. Customer agrees not to impersonate any person or entity, misrepresent any affiliation with another person, entity or association, use false headers or otherwise conceal Customer’s identity from the Provider for any purpose. Provider reserves the right, in its sole discretion, to refuse any registration for the Platform.
3. Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and compliance with all other terms and conditions of these Terms, Provider hereby grants Customer a non-exclusive, non- transferable (except in compliance with Section 12(g)) right to access and use the Platform during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. Provider shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Platform.
(b) Documentation License. Subject to the terms and conditions contained in these Terms, Provider hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section12(g)) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Platform.
(c) Use Restrictions. Customer shall not use the Platform for any purposes beyond the scope of the access granted in these Terms. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, duplicate, modify, replicate or create derivative works of the Platform or Documentation, in whole or in part, or, either solely or by any third-party, attempt to copy, duplicate, modify, replicate, or create derivative works of the Platform or Documentation; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Platform or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Platform, in whole or in part; (iv) remove any proprietary notices from the Platform or Documentation; or (v) use the Platform or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law.
(d) Reservation of Rights. Provider reserves all rights not expressly granted to Customer in these Terms. Except for the limited rights and licenses expressly granted under these Terms, nothing in these Terms grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Provider IP.
(e) Suspension. Notwithstanding anything to the contrary in these Terms, Provider may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Platform if: (i) Provider, in its sole discretion, determines that (A) there is a threat or attack on any of the Provider IP; (B) Customer’s or any Authorized User’s use of the Provider IP disrupts or poses a security risk to the Provider IP or to any other customer or vendor of Provider; (C) Customer, or any Authorized User, is using the Provider IP for fraudulent or illegal activities; (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (E) in Provider’s sole discretion, Customer is no longer in good-standing with Provider or Provider, in its sole discretion, determines that Customer’s business or firm practices competes with Provider, interferes with Provider, or benefits any third-party beside Provider in any way; or (F) Provider’s provision of the Platform to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any third-party services or products required to enable Customer to access the Platform; or (iii) in accordance with Section 6(a)(iii) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to resume providing access to the Platform as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension.
(f) Aggregated Statistics. Notwithstanding anything to the contrary in these Terms, Provider may monitor Customer’s use of the Platform and collect and compile Aggregated Statistics. As between Provider and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. Customer acknowledges that Provider may compile Aggregated Statistics based on Customer Data input into the Platform. Customer agrees that Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law.
4. Customer Responsibilities.
(a) General. Customer is responsible and liable for all uses of the Platform and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of these Terms. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of these Terms if taken by Customer will be deemed a breach of these Terms by Customer. Customer shall make all Authorized Users aware of these Terms’ provisions as applicable to such Authorized User’s use of the Platform, and shall cause Authorized Users to comply with such provisions.
(b) Acceptable Use. Customer agrees: (i) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the Platform, including all applicable data privacy and security laws and regulations; (ii) to take all necessary steps to avoid distributing malware, viruses, corrupted files, or any other software or programs that may damage the operation of the Platform; (iii) not to use the Platform for illegal, fraudulent, harmful, unethical or inappropriate, deceptive, threatening, harassing, defamatory, or otherwise objectionable purposes as determined in the Provider’s sole discretion; (iv) not to intentionally interfere with another customer’s use and enjoyment of the Platform or another person or entity's use and enjoyment of similar services; (v) not make any representations that the Platform will result in compliance with any laws or regulations applicable to Customer’s industry; and (vi) to comply with all regulations, policies and procedures of third party service providers.
(c) Responsibility for Backup of Customer Data. Customer is solely responsible for maintaining adequate copies and backup of all Customer Data submitted to the Platform. Customer acknowledges and agrees that Provider shall have no responsibility for maintaining copies or backup of Customer Data.
5. Support.
These Terms do not entitle Customer to any support for the Platform from Provider.
6. Fees and Payment.
(a) Fees. Customer shall pay Provider the fees (“Fees”) as set forth on the registration form at the time of registration. Unless otherwise specified on the registration form, such Fees are subject to change upon the commencement of each additional Term. If Customer fails to make any payment when due, without limiting Provider’s other rights and remedies: (i) Provider may charge interest on the past due amount at the rate of 3% per month calculated daily and compounded monthly or, if higher, the highest rate permitted under applicable law; (ii) Customer shall reimburse Provider for all costs incurred by Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) Provider may suspend and/or revoke Customer’s and its Authorized Users’ access to any portion or all of the Platform indefinitely or otherwise.
(b) Taxes. All Fees and other amounts payable by Customer under these Terms are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Provider’s income.
(c) Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two years after the termination or expiration of these Terms with respect to matters necessary for accurately determining amounts due hereunder. Provider may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer’s records with respect to matters covered by these Terms, provided that if such inspection and audit reveals that Customer has underpaid Provider with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 5(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will extend throughout the Term of these Terms and for a period of two years after the termination or expiration of these Terms.
7. Confidential Information.
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third- party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under these Terms, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of these Terms for as long as such Confidential Information remains subject to trade secret protection under applicable law.
8. Intellectual Property Ownership; Feedback.
(a) Provider IP. Customer acknowledges that, as between Customer and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
(b) Customer Data. Customer acknowledges that, as between Provider and Customer, as a result of Customer’s use and entry of data and information into and through the Platform, that Customer disclaims all ownership of, and right, title, and interest, including all intellectual property rights, in and to the Customer Data. Furthermore, as between Provider and Customer, Customer acknowledges that it has no right to request return of the Customer Data or any derivative works or compilations based thereupon.
(c) Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to Provider on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
9. NO FINANCIAL, TAX OR LEGAL ADVICE.
CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT PROVIDER IS NOT AN INVESTMENT, FINANCIAL, BROKER OR TAX OR LEGAL ADVISOR, AND THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE PROVIDED BY PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, NOR ANY INFORMATION OBTAINED THROUGH THE PLATFORM, WILL OR SHALL CONSTITUTE INVESTMENT, FINANCIAL, TAX OR LEGAL ADVICE. REGARDLESS OF HOW ANY INFORMATION OR MATERIAL IS DESCRIBED AT THE TIME IT IS PROVIDED TO CUSTOMER, SUCH INFORMATION OR MATERIAL IS PROVIDED TO CUSTOMER SOLELY FOR INFORMATIONAL PURPOSES. CUSTOMER AGREES TO CONSULT WITH COMPETENT AND INDEPENDENT PROFESSIONAL FINANCIAL, TAX AND LEGAL ADVISORS BEFORE MAKING ANY INVESTMENT DECISIONS OR DECIDING ON SIGNIFICANT CHANGES TO FINANCIAL STRATEGY. CUSTOMER IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR ALL FINANCIAL DECISIONS OR RECOMMENDATIONS MADE BY CUSTOMER OR BY ANY OTHER THIRD PARTY ON CUSTOMER’S BEHALF, WHETHER MADE AS A RESULT OF OR WHILE USING THE PLATFORM OR OTHERWISE. PROVIDER SHALL NOT BE RESPONSIBLE OR HELD LIABLE FOR ANY ADVICE GIVEN OR RECOMMENDATIONS MADE BY CUSTOMER OR BY ANY THIRD PARTY FOR ANY FINANCIAL, LEGAL OR TAX RELATED PURPOSES. PROVIDER MAKES NO REPRESENTATIONS OR WARRANTIES THAT THE PLATFORM WILL CAUSE CUSTOMER TO BE IN COMPLIANCE WITH ANY LAWS OR REGULATIONS APPLICABLE TO CUSTOMER’S INDUSTRY.
THE FOREGOING DISCLAIMERS SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
10. WARRANTY DISCLAIMER.
THE PROVIDER IP IS PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
11. Customer Indemnification.
Customer shall indemnify, defend, and hold harmless Provider and its subcontractors and affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Provider Indemnitee”) from and against any and all losses, damages, liabilities, costs (including attorneys’ fees) incurred by such Provider Indemnitee resulting from any third-party claim, suit, action, or proceeding that arise out of or result from, or are alleged to arise out of or result from:
(a) Customer Data, including any processing of Customer Data by or on behalf of Provider in accordance with these Terms;
(b) Any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Customer or any Authorized User, including Provider's compliance with any specifications or directions provided by or on behalf of Customer or any Authorized User to the extent prepared without any contribution by Provider;
(c) Allegation of facts that, if true, would constitute Customer's breach of any of its representations, warranties, covenants, or obligations under these Terms; or
(d) Negligence or more culpable act or omission (including recklessness or willful misconduct) by Customer, any Authorized User, or any third party on behalf of Customer or any Authorized User, in connection with these Terms.
12. LIMITATIONS OF LIABILITY.
IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN V ALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO PROVIDER UNDER THESE TERMS IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR $2,000.00, WHICHEVER IS LESS.
13. Term and Termination.
(a) Term; Renewal. The term of these Terms shall be thirty (30) days from the Effective Date (the “Initial Term”), subject to automatic renewal for successive thirty (30) day periods as set forth below (each a “Renewal Term” and collectively, the “Term”). Customer’s continued usage of the Platform will constitute acceptance of the renewal of these Terms for an additional Renewal Term. Customer may elect not to renew these Terms for an additional Renewal Term by providing Provider with no less than five (5) days’ advance written notice prior to the expiration of the then current Term. Provider may elect not to renew these Terms for an additional Renewal Term at any time and in its sole discretion. In the event of non-renewal of these Terms by either Customer or Provider, Customer’s access to the Platform and the Platform will be terminated at the conclusion of the then current Term.
(b) Additional Termination Rights. In addition to any other express termination right set forth in these Terms:
(i) Provider may terminate these Terms if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than five (5) days after Provider’s delivery of written notice thereof; (B) breaches any of its obligations under Section 3(c), Section 4(b) or Section 7; or (C) in Provider’s sole discretion, Customer is no longer in good-standing with Provider or Provider, in its sole discretion, determines that Customer’s business or firm practices competes with Provider, interferes with Provider, or benefits any third-party beside Provider in any way.
(ii) either Party may terminate these Terms if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured ten (10) days after the non- breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate these Terms if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) 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; (C) makes or seeks to make a general assignment for the benefit of its creditors; (D) 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, or (E) becomes unproperly or insufficiently licensed or out of compliance with any and all applicate insurance carrier, state insurance department, Department of Labor, FINRA, or SEC rules, regulations, codes, and laws with respect to the conduct of the Party’s business or is or has ever been terminated by any insurance carrier (except for lack of production).
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of these Terms, Customer shall immediately discontinue use of the Provider IP and, without limiting Customer’s obligations under Section 7, Customer shall delete, destroy, or return all copies of the Provider IP and certify in writing to the Provider that the Provider IP has been deleted or destroyed. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. Except as required by applicable law, Provider shall have no obligation to return Customer Data or provide Customer with continued access to the Platform to retrieve or download Customer Data after expiration or earlier termination of these Terms. Upon expiration or earlier termination, Provider may destroy or otherwise dispose of Customer Data in its possession without further obligation to Customer
(d) Survival. This Section 13(c) and Sections 1, 6, 7, 8, 10, 12, and 14 survive any termination or expiration of these Terms, together will all other provisions which by their nature are intended to survive termination or expiration of these Terms.
14. Miscellaneous.
(a) Entire Agreement. These Terms, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of these Terms and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of these Terms, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, these Terms, excluding its Exhibits; (ii) second, the Exhibits to these Terms as of the Effective Date; and (iii) third, any other documents incorporated herein by reference.
(b) Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 7 or, in the case of Customer, Section 2(c) or Section 4(b), would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
(c) Prevailing Party. If any legal action or other proceedings, including action seeking equitable relief, is brought by Provider for a breach of these Terms and Provider prevails in such action or proceeding, Provider shall be entitled to recover its reasonable attorneys’ fees and other costs incurred in bringing such action or proceeding, in addition to any other relief to which such Party may be entitled.
(d) Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) must be in writing and addressed to the Parties at the addresses set forth on the first page of registration form (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). All Notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or email (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage pre-paid). Except as otherwise provided in these Terms, a Notice is effective only: (i) upon receipt by the receiving Party; and (ii) if the Party giving the Notice has complied with the requirements of this Section.
(e) Force Majeure. In no event shall Provider be liable to Customer, or be deemed to have breached these Terms, for any failure or delay in performing its obligations under these Terms, if and to the extent such failure or delay is caused by any circumstances beyond Provider’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemics, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
(f) Severability. If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify these Terms so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(g) Governing Law; Submission to Jurisdiction. These Terms are governed by and construed in accordance with the internal laws of the State of Missouri without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Missouri. Any legal suit, action, or proceeding arising out of or related to these Terms or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of Missouri in each case located in the city of Saint Louis and County of Saint Louis, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
(h) Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. These Terms is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
(i) Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Platform or any Customer Data outside the US.