Advisor Software, Inc. Developer Portal Terms of Use

Last Updated May 1, 2016

This Advisor Software, Inc. Developer Portal Terms of Service ("TOS") between you ("Customer") and Advisor Software, Inc. ("ASI"), as updated from time to time, and together with the documents and policies referred to herein (collectively, the "Agreement"), govern Customer's access to and use of the Developer Portal and APIs, the ASI Software and the ASI Content (collectively the "Services"). By accessing or using the Developer Portal in any manner, Customer is agreeing to the Agreement. Section 12 contains definitions of certain terms that are capitalized in these TOS.

ASI reserves the right to modify these TOS, in whole or in part, in our own discretion. Such modifications shall be effective immediately upon the linking of modified TOS to the ASI website. ASI shall provide notice of such modifications. If Customer does not agree to the modified Terms of Service, Customer should discontinue use of the Services.

1 - DEVELOPER PORTAL

ASI will make the Developer Portal available to Customer on an as agreed upon basis depending on Customer's requested level of service ("Trial Term"). Customer will receive notice at the conclusion of the Trial Term and all data will be deleted. Customer will not be allowed to have more than one Developer Portal during a given Trial Term. No Customer may have more than two consecutive Trial Terms for use of the Developer Portal. Unless otherwise agreed, the Trial Term shall be a 30 consecutive day period after which Customer will have the option to elect to continue the Trial Term on a month to month basis for a monthly payment of $1,000 per month, or the Trial Term will conclude and all Customer data will be deleted.

2 - CUSTOMER USE OF THE DEVELOPER PORTAL

2.1 Customer Registration. Customer may only access and use the Developer Portal and the APIs, ASI Content, and ASI Software in accordance with the terms of this Agreement. Customer agrees to provide accurate, current and complete information when Customer registers for and uses the Developer Portal and if the account information becomes inaccurate, incomplete or is no longer current, Customer agrees to update its account information promptly. ASI may suspend or terminate Customer's account for failure to provide and maintain accurate, current and complete account information. Each person who uses the Developer Portal must have a separate username and password. Customer must provide a valid email address for each person authorized to use Customer's Developer Portal Account, and Customer may only create one account per email address. Customer must provide any other information requested by ASI in order to complete the registration process.

2.2 Transmissions of Customer Content. Customer is responsible for obtaining and maintaining all telecommunications, broadband and computer equipment and services needed to access and use the Developer Portal and for paying all charges related thereto. Customer is the owner and/or controller of all of Customer Content that Customer transmits to the Developer Portal. Customer is responsible for the security of Customer Content when transmitted to and from the Developer Portal, including the encryption of any personally identifiable information transmitted to and from the Developer Portal, or stored on the Developer Portal. Customer agrees ASI is not responsible for encryption of Customer Content when stored on the Developer Portal.

2.3 Customer Responsibility for Users and Customer Content. Customer is solely responsible for: (a) Users' compliance with this Agreement, (b) the accuracy, quality and legal use of Customer Content and the means by which Customer acquired Customer Content (including without limitation Customer Data), and (c) taking steps to maintain appropriate security, protection, and backup of Customer Content, (which may include the use of encryption technology to protect Customer Content from unauthorized access), and routine archiving of Customer Content. Customer is responsible for securing, protecting and maintaining the confidentiality of Customer's account username, passwords and access tokens. Customer may not share Customer passwords or access codes with a third party. Customer is responsible for any access and use of the Developer Portal or Customer Content via Customer's or it's Users' accounts and for all activity that occurs in connection with Customer's or its Users' accounts, regardless of whether the activities were undertaken by Customer, a User or a third party. ASI will not be liable for any loss or damage arising directly or indirectly from Customer's failure to maintain the security of Customer's account and password or for unauthorized access to Customer's account. Customer agree to notify ASI immediately if Customer believes that an unauthorized third party may be using Customer's account or if Customer account information is lost or stolen. Customer agrees to not transmit or store within the Developer Portal any protected health data, as defined in the Health Insurance Portability and Accountability Act of 1996 ("HIPAA") as amended and supplemented b by the Health Information Technology for Economic and Clinical Health Act, as each is amended from time to time (collectively "HIPAA").

2.4 ASI Software. There may be certain ASI Software available that you may elect to license and use in connection with the Developer Portal. Such use shall be subject to the terms of the license agreement to the ASI Software.

3 - PROPRIETARY RIGHTS AND LICENSES

3.1 ASI Ownership; Suggestions. As between Customer and ASI, ASI owns and reserves all right, title, and interest in and to the Developer Portal and APIs, the ASI Software and the ASI Content, including all intellectual property rights therein. No rights are granted to Customer hereunder other than as expressly set forth herein or in other license agreements by and between Customer and ASI. Customer grants to ASI a perpetual, royalty free, irrevocable, worldwide, nonexclusive, transferable and sub-licensable right and license to commercially exploit any Suggestions or other information provided by or through Customer or Users during the term of this Agreement or through the use of the Developer Portal and APIs, the ASI Software and the ASI Content, in any manner ASI deems fit.

3.2 License to Developer Portal and APIs, ASI Software and ASI Content. Subject to Customer's continued compliance with the terms of this Agreement, and solely during the Trial Term, ASI grants Customer a limited, revocable, non-exclusive, non-sublicensable, non-transferrable license to do the following during the Trial Term:
(a) Access and use the Developer Portal and APIs for Customer's internal business purposes, which shall not include the provision of services for the benefit of third parties.
(b) Use the ASI Software or ASI Content, solely in connection with Customer's permitted use of the Developer Portal and APIs for Customer's internal business purposes, which shall not include the provision of services for the benefit of third parties.
(c) Upload and use Customer Content into the Developer Portal.

3.3 License Restrictions. Customer will not, and will not permit any third party to:
(a) reverse engineer (except and only to the extent specifically allowed by law), decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, or algorithms of the Developer Portal or APIs, or any software, documentation or data related to the Developer Portal or APIs, or the ASI Software.
(b) modify, translate, or create derivative works based on the Developer Portal or APIs, or ASI Software.
(c) use the Developer Portal or APIs, or ASI Software, for any purpose other than its own internal business evaluation purposes.
(d) Customer may not access or use the Developer Portal or APIs, or ASI Software in order to monitor those products availability, performance, or functionality for purpose of developing a competing or similar product or services.
(e) use the Developer Portal or ASI Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy laws and intellectual property laws).
(f) use the Development Portal, APIs or ASI Software for a period greater than the Trial Term absent either (i) payment as set forth in Section 1 above for use following the conclusion of the Trial Term, or (ii) written agreement to such use by ASI.

4 - CUSTOMER CONTENT

4.1 Ownership. By submitting or posting Customer Content on the Developer Portal, Customer is representing that Customer is the owner of such materials and/or has the necessary rights, licenses, and authorization to distribute it.

4.2 Access to and Use of Customer Content. By submitting or posting Customer Content on areas of the Developer Portal, Customer grants ASI a worldwide, royalty free, non-exclusive license to access and use such Content on the Developer Portal for the purpose of providing the Developer Portal to Customer, responding to Users' request for technical assistance with respect to the Developer Portal, or to Customer's request in connection with customer support matters.

4.3 Security and Protection of Customer Data. ASI will maintain administrative, physical and technical safeguards to protect the security of Customer Data, as described in the Documentation.

5 - TERMINATION; SUSPENSION

ASI may terminate or suspend the Developer Portal at any time and for any or no reason by notifying Customer. ASI will refund any pro rata payments made by Customer for post Trial Term use if termination by ASI is not for cause or breach of these TOS.

6 - CONFIDENTIALITY

6.1 Confidential Information. The Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) and further agrees (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates' employees, contractors and agents who need such access for purposes consistent with this Agreement and who have confidentiality obligations to the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third party other than Affiliates, legal counsel and accountants without the other party's prior written consent.

6.2 Compelled Disclosure of Confidential Information. Notwithstanding section 6.1 of this Agreement, the Receiving Party may disclose Confidential Information of the Disclosing Party if (i) it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure; (ii) the Confidential Information is generally known to the public through no fault of the Receiving Party (iii) the Confidential Information was independently obtained by or in the possession of the Receiving Party in a manner that does not violate any other term of this Agreement; or (iv) the Confidential Information was subsequently developed independently by the Receiving Party in a manner that does not violate the terms of this Agreement. If the Receiving Party is compelled by law to disclose the Disclosing Party's Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.

7 - DISCLAIMER OF WARRANTIES

THE DEVELOPER PORTAL AND APIS ARE PROVIDED TO CUSTOMER ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND WITHOUT ANY EXPRESS REPRESENTATIONS OR WARRANTIES OF ANY KIND, AND, TO THE FULLEST EXTENT PERMITTED BY LAW, ASI DISCLAIMS ALL STATUTORY OR IMPLIED REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS WITH RESPECT TO THE DEVELOPER PORTAL AND APIS, INCLUDING ANY REPRESENTATIONS OR WARRANTIES OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. TO THE EXTENT SUCH A LAW APPLIES TO CUSTOMER, SOME OR ALL OF THE EXCLUSIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.

8 - LIMITATION OF LIABILITY

ASI AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS (THE "ASI ENTITIES") SHALL NOT BE LIABLE TO CUSTOMER FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, CONTENT, DATA, SECURITY OF DATA, OR LOSS OF OTHER INTANGIBLES, OR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, EVEN IF ASI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHER, THE ASI ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY LIABILITY OR DAMAGES ARISING IN CONNECTION WITH OR RESULTING FROM: (I) CUSTOMER USE OR INABILITY TO USE THE DEVELOPER PORTAL, INCLUDING AS A RESULT OF ANY: (A) TERMINATION OR SUSPENSION OF CUSTOMER ACCOUNT, OR (B) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME FOR ANY REASON, INCLUDING AS A RESULT OF POWER OUTAGES, SYSTEM FAILURES, OR OTHER INTERRUPTIONS, OR C) THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR GOODS; OR (D) ANY INVESTMENT, EXPENDITURE, OR COMMITMENT BY CUSTOMER IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER USE OF OR ACCESS TO THE DEVELOPER PORTAL; (II) ANY CHANGES MADE TO THE DEVELOPER PORTAL OR ANY TEMPORARY OR PERMANENT CESSATION OF THE DEVELOPER PORTAL OR ANY PART THEREOF; (III) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR DELETION OF CUSTOMER CONTENT; (IV) THE DELETION OF, DESTRUCTION, DAMAGE, LOSS, CORRUPTION OF, OR FAILURE TO STORE, SEND OR RECEIVE ANY CUSTOMER CONTENT, TRANSMISSIONS OF DATA ON OR THROUGH THE DEVELOPER PORTAL; (V) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE DEVELOPER PORTAL; AND (VI) ANY OTHER MATTER RELATING TO THE DEVELOPER PORTAL.

IN ANY CASE, THE AGGREGATE LIABILITY OF THE ASI ENTITIES UNDER THIS AGREEMENT OR ARISING FROM OR RELATED TO THIS AGREEMENT SHALL BE LIMITED TO THE $100.00 (USD) UNDER THIS AGREEMENT FOR THE DEVELOPER PORTAL AND/OR THE ASI SOFTWARE THAT GAVE RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT THAT GAVE RISE TO THE CLAIM.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. TO THE EXTENT SUCH A LAW APPLIES TO CUSTOMER, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO CUSTOMER, AND CUSTOMER MAY HAVE ADDITIONAL RIGHTS.

9 - INDEMNITY

Customer agree to protect and fully compensate ASI and its affiliates, subsidiaries, licensors, suppliers and service providers from any and all third party claims, liability, damages, expenses and costs (including, but not limited to, reasonable attorney's fees) caused by or arising from your use of the Developer Portal, the APIs or ASI Software, your violation of this Agreement or your infringement, or infringement by any other user of your account, of any intellectual property or other right of anyone.

10 - IMPORT AND EXPORT LAWS

Customer agrees that the Services and ASI Confidential Information delivered under the Agreement may be subject to U.S. export laws and applicable laws of other countries. Customer agrees to strictly comply with all such laws and assumes responsibility to obtain licenses to export, re-export, or import as may be required.

11 - GENERAL TERMS

11.1 Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California, as if performed wholly within the state and without giving effect to the principles of conflict of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in the Northern District of California and the parties hereby consent to personal jurisdiction and venue therein. Customer consents to exclusive jurisdiction and venue in these courts. ASI may seek injunctive or other relief in any state, federal, or national court of competent jurisdiction for any actual or alleged infringement of ASI's its Affiliates,' or any third party's intellectual property or other proprietary rights. The United Nations Convention for the International Sale of Goods does not apply to this Agreement.

11.2 Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. The third party licensors of ASI Content are express third party beneficiaries of this Agreement. There are no other third-party beneficiaries of this Agreement.

11.3 Amendment; Severability. This Agreement may only be amended by a written amendment signed by both parties. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, the provision shall be modified by the court and interpreted so as best to accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect.

11.4 Assignment. Customer may not assign, delegate or sublicense any of Customer's rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of ASI.

11.5 No Waiver. The failure of ASI to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in a signed writing to be effective.

11.6 Force Majeure. ASI and its Affiliates, officers, directors, employees, agents, partners and licensors will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond ASI's or their or is Affiliates', officers', directors', employees', agents', partners', or licensors' reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.

11.7 Entire Agreement. This Agreement, which incorporates any related Privacy and/or Terms of Use provisions set forth on the ASI website, constitutes the entire agreement between Customer and ASI and shall supersede any prior agreements between Customer and ASI concerning the Developer Portal, the ASI Software and/or ASI Content (including, but not limited to, any prior versions of this Agreement) or any preprinted terms on Customer Order Document. This Agreement does not amend any other separate agreement Customer may have with ASI for other software products or services that are not Developer Portal.

11.8 Notices to Customer and Consent to Electronic Communications. Customer consents to receiving electronic communications and notifications from ASI in connection with Customer's use of the Developer Portal and this Agreement. Customer agrees that any such communication will satisfy any legal communication requirements, including that such communications be in writing. ASI may provide Customer with notices regarding the Developer Portal, including changes to this Agreement, by email to the email address of Customer's administrator (and/or other alternate email address associated with Customer Account if provided), by regular mail, or by postings on ASI's website. Notices that are provided by posting on the ASI website will be effective three (3) days after posting. Notices that are provided by email will be effective when ASI sends the email. It is Customer responsibility to keep Customer email address current. Customer will be deemed to have received any email sent to the email address then associated with Customer's account when ASI sends the email, whether or not Customer actually receives the email.

11.9 Survival. The following sections shall survive the termination or expiration of the Agreement: 2.1, 3.1, 3.3, and 5 through 13.

12 - DEFINITIONS

12.1 "Affiliate" means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

12.2 "API" or "Application Programming Interface" means a set of programming instructions, and standards for accessing the Developer Portal that ASI provides to Customer in the Documentation.

12.3 "ASI Content" means the Content that ASI makes available at our discretion in connection with the Developer Portal or on the ASI website, including Documentation; sample code; software libraries; command line tools, and other related technology such as, add-ons and templates. It does not include ASI Software.

12.4 "ASI Software" means any software application or product owned or licensed by ASI that is made available to Customer as part of the Developer Portal, including but not limited to the ASI API programs.

12.5 "Confidential Information" means all nonpublic information disclosed by a party ("Disclosing Party") to the other party ("Receiving Party"), whether orally or in writing, that is designated as "confidential" or that, given the nature of the information or circumstances surrounding its disclosure, should reasonably be understood to be confidential. Customer Confidential Information shall include Customer Content. ASI Confidential Information shall include: (i) nonpublic information relating to ASI or its Affiliates' or business partners' technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (ii) third-party information that ASI is obligated to keep confidential; and (iii) the nature, content and existence of any discussions or negotiations between Customer and ASI or Our Affiliates. Notwithstanding the foregoing, "Confidential Information" does not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.

12.6 "Customer Content" means Content that Customer transmitted, or that was transmitted on Customer behalf, to or from the Developer Portal, or that Customer store, or display or within the Developer Portal, or that is otherwise used or processed in connection with Customer's Developer Portal account. Customer Content includes Customer Data.

12.7 "Customer Data" means electronic data and information submitted by or for Customer to the Developer Portal or that Customer collect and process using the Developer Portal, but does not include ASI Content or Third Party Content.

12.8 "Data Retention" means the amount of data storage during the Trial Term.

12.9 "Documentation" means online user guides, documentation and help and training materials published on ASI's website or accessible through the Developer Portal, as may be updated by ASI from time to time.

12.10 "Developer Portal" means the hosted services provided and maintained by ASI for online searching, monitoring and analyzing of machine-generated data, including the associated ASI API programs, the ASI Software and the ASI Content. The Developer Portal does not include Customer Content, or any Third Party Content, even if made available to Customer by ASI in connection with the Developer Portal.

12.11 "Suggestion" means any suggested improvement or enhancement and any other recommendation or feedback the Customer provides to ASI with respect to the Developer Portal or APIs, ASI Software, or ASI Content.

12.12 "User" means "Customer" and an individual whom Customer authorizes to use the Developer Portal and whom Customer (or ASI, at Customer request) have supplied a user identification and password. Users may, for example, include Customer employees, consultants, contractors and agents.