TERMS OF SERVICE

This Terms of  Services Agreement (“Agreement”) is entered into by and between Fiduciary Genius, LLC, a Delaware limited liability company with its principal place of business at 838 Walker Rd Ste 21-2, E-Mail: [email protected] (“Fiduciary Genius”), and the subscriber who is agreeing to this Agreement (“Subscriber”) as of the date it is agreed to by Subscriber (“Effective Date”).

1. DEFINITIONS.

1. “Affiliate” means, with respect to any specified party, any other person or entity who, directly or indirectly, controls, is controlled by, or is under common control with such party.
2. “Fiduciary Genius” means a unique instance of the object code version of the “Fiduciary Genius” platform containing financial and investment planning advice content, including any Updates to the foregoing, that is (i) hosted on servers owned or leased by Fiduciary Genius and (ii) made available to Subscriber via the website located at www.fiduciarygenius.com.
3. “Confidential Information” means any and all information disclosed by one party to the other party, directly or indirectly, in writing, orally, electronically, or in any other form, that is marked as “confidential” or “proprietary” or with a similar designation at the time of the disclosure, or is or should be reasonably understood to be confidential or proprietary to the disclosing party given the nature of the information and the circumstances of the disclosure, including, without limitation, information about the Fiduciary Genius Service, the Documentation, and the terms of this Agreement. Notwithstanding the foregoing, Confidential Information does not include information that (i) is or becomes generally available to the public through no breach of this Agreement or any other agreement by the recipient of the information, (ii) was known by the recipient of the information at or before the time such information was received from the discloser, as evidenced by the recipient’s tangible (including written or electronic) records, (iii) is received from a third-party that is not under an obligation of confidentiality to the disclosing party with respect to such information, or (iv) is independently developed by the recipient of the information without any breach of this Agreement, as evidenced by the recipient’s contemporaneous tangible (including written or electronic) records.
4. “Documentation” means such manuals, documentation and any other supporting materials relating to the Fiduciary Genius Service that are provided to Subscriber by Fiduciary Genius in connection with this Agreement.
5. “Intellectual Property Rights” means any and all rights existing from time to time under patent, copyright, trademark, trade secret, unfair competition, moral rights, publicity rights, privacy rights laws, and any and all other proprietary rights.
6. “Legal Requirements” means all applicable laws, rules, regulations, governmental permits, or other binding determinations of any governmental authorities.
7. “SLA” means the Service Level Agreement set forth on Exhibit A to this Agreement.
8. “Subscriber Content” means any and all data, materials, information, and content (including, without limitation, any Subscriber Marks) (i) provided to Fiduciary Genius by Subscriber or any third-party authorized by Subscriber for use in connection with the Fiduciary Genius Service or (ii) posted by Subscriber directly on the Fiduciary Genius Service. “
9. “Subscriber Marks” means the tradenames, stylized trademarks and service marks, domain names, and logos of Subscriber provided by Subscriber to Fiduciary Genius for use pursuant to this Agreement.
10. “Updates” means any modifications, error corrections, bug fixes, new releases, or other updates of or to the Fiduciary Genius Service and/or Documentation that are generally made available by Fiduciary Genius to its customers at no additional charge during the term of this Agreement.  Updates do not include any releases, options, or future products that Fiduciary Genius licenses separately.
11. “Usage Data” means information collected by Fiduciary Genius about Subscriber’s use of the Fiduciary Genius Service.  

2. FIDUCIARY GENIUS SERVICE.

1. License to Fiduciary Genius Service. Subject to the terms and conditions of this Agreement and the timely payment of all fees hereunder, Fiduciary Genius grants to Subscriber a nonexclusive, nontransferable, non-sublicensable limited right and license, during the term of this Agreement, to access and use a single seat of the Fiduciary Genius Service through a compatible Internet browser or other remote Internet interface approved by Fiduciary Genius on a single computer for the sole purpose of providing investment advice to Subscriber’s clients; provided, however, that Subscriber’s use of the Fiduciary Genius Service in accordance with the licenses above must be exercised solely (a) in accordance with the Documentation, (b) for Subscriber’s own internal business use, and (c) subject to the limitations and restrictions set forth in this Agreement.   SUBSCRIBER MAY NOT PROVIDE ACCESS TO THE Fiduciary Genius Service TO ANY THIRD PARTIES, INCLUDING, WITHOUT LIMITATION, TO ANY AGENCIES, MARKETERS, OR AFFILIATES OF SUBSCRIBER.  Except as set forth in this Section 2(a), no other right or license of any kind is granted by Fiduciary Genius to Subscriber hereunder with respect to the Fiduciary Genius Service.  Except as otherwise expressly set forth in this Agreement, Fiduciary Genius is not obligated to customize or alter the Fiduciary Genius Service for Subscriber.
2. Restrictions. Subscriber acknowledges that the Fiduciary Genius Service, including, without limitation, the know-how embodied therein, constitute the valuable trade secrets of Fiduciary Genius. Subscriber may not, and may not allow others, to (a) copy, disassemble, decompile, “unlock,” reverse translate, reverse engineer, decode, modify, create derivative works based on, or customize the Fiduciary Genius Service or any component thereof, (b) copy, use, or commercially exploit in any way the Fiduciary Genius Service or any component thereof, other than as expressly allowed in this Agreement, (c) distribute, assign, sell, lease, sublicense, grant a security interest in, or otherwise offer the benefits of the Fiduciary Genius Service to any third party, whether such arrangement is in the nature of a service bureau, an outsourcing service, or any other similar service or business, (d) access (or attempt to access) the Fiduciary Genius Service by any means other than through a compatible Internet browser, or (e) gain unauthorized access to the Fiduciary Genius Service. Subscriber is solely responsible for all Subscriber Content accessible on or through the Fiduciary Genius Service.   Notwithstanding the foregoing, Fiduciary Genius reserves the right to (a) suspend or permanently terminate Subscriber’s use of the Fiduciary Genius Service (or any portion thereof) if Fiduciary Genius believes, in its sole discretion, that such use could be harmful to Fiduciary Genius or Subscriber in any way, including, without limitation because such use could create liability for Fiduciary Genius or Subscriber or otherwise negatively impact Fiduciary Genius’s or Subscriber’s reputation or goodwill and (b) remove any Subscriber Content from the Fiduciary Genius Service that Fiduciary Genius believes, in its sole discretion, violates any Legal Requirement or the terms of this Agreement or if Fiduciary Genius believes, in its sole discretion, that such Subscriber Content could be harmful to Fiduciary Genius or Subscriber in any way, including, without limitation, because it could create liability for Fiduciary Genius or Subscriber or otherwise negatively impact Fiduciary Genius’s or Subscriber’s reputation or goodwill.

Service Level Agreement.  The maintenance of the Fiduciary Genius Service will be governed by the SLA attached hereto as Exhibit A.  

3. Subscriber Responsibilities. Subscriber agrees that its use of the Fiduciary Genius Service will comply with all Legal Requirements. Subscriber is responsible for providing and paying for all hardware, system software, access devices, networks and telecommunications or other connections required to access the Fiduciary Genius Service through a compatible Internet browser. Subscriber agrees to make available to Fiduciary Genius, at Subscriber’s expense, any Subscriber Materials (as defined below) reasonably necessary for Fiduciary Genius to provide the Fiduciary Genius Service.   Subscriber is responsible for ensuring that Subscriber Content is collected in compliance with Legal Requirements and that the contemplated use of Subscriber Content by Fiduciary Genius as set forth in this Agreement does not violate the rights of any third party.
4. Trademark Licenses.  Subscriber hereby grants to Fiduciary Genius a non-transferable, non-exclusive, non-sublicensable, royalty-free, limited right and license, during the Term, to use and display Subscriber Marks on the Fiduciary Genius Service as contemplated in this Agreement. Subscriber must provide Fiduciary Genius with a Subscriber Mark for each permitted use set forth in this Section 2(e).  All materials in which Fiduciary Genius wishes to use Subscriber’s Marks will be subject to Subscriber’s prior approval.

3. CONFIDENTIAL INFORMATION.  

1. Confidentiality Obligations.  Each party will (i) hold all Confidential Information of the other party in strict confidence and will not disclose any Confidential Information to any third party except to its officers, employees, contractors and agents (collectively, “representatives”) who have a need to know such Confidential Information in connection with the performance of its obligations under this Agreement, provided that the receiving party’s representatives have been informed by the receiving party of the confidential nature of such Confidential Information and have been instructed by such receiving party to keep such Confidential Information confidential in accordance with the terms of this Section 3(a), it being understood that the receiving party will be responsible for any breaches of this Section 3(a) by such representatives, (ii) avoid the unauthorized use or disclosure of the other party’s Confidential Information using the same degree of care that it uses in safeguarding its own confidential information, but in no event less than a reasonable degree of care, and (iii) use the other party’s Confidential Information only in connection with the performance of its obligations under this Agreement.  Notwithstanding the foregoing, the restrictions on Confidential Information contained in this Section 3(a) will not apply to the extent that such disclosure is: (i) approved in writing by the disclosing party, (ii) necessary for the receiving party to enforce its rights under this Agreement in connection with a legal proceeding, or (iii) required by law or by the order of a court or a similar judicial or administrative body, provided that the receiving party promptly notifies the disclosing party in writing of such required disclosure and cooperates with the disclosing party, at the disclosing party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure.
2. Equitable Relief.  The parties acknowledge that (i) the covenants contained in Section 3(a) are reasonable and necessary to protect the legitimate interests of the parties, (ii) the parties would not have entered into this Agreement in the absence of such covenants, and (iii) any violation or threatened violation of such covenants would cause irreparable harm for which monetary damages would not be adequate.   Therefore, the parties agree that, in the event of a breach of Section 3(a) by a party, the other party will be entitled to seek equitable relief in addition to any remedies it may have hereunder or at law, and the breaching party will reimburse the non-breaching party for the reasonable costs associated with such enforcement (including any attorney’s fees).

4. PAYMENT.

1. Fees. Subscriber will pay Fiduciary Genius the fees set forth on “Pricing” page on www.fiduciarygenius.com website (collectively, the “Fees”). If Fiduciary Genius incurs any fees or expenses resulting from Subscriber’s chosen method of payment, Subscriber will reimburse Fiduciary Genius for such fees and expenses.
2. Subscription Billing and Auto-Renewal. Fiduciary Genius Service includes enrollment into an ongoing/recurring payment plan. Fiduciary Genius Service will automatically renew at the end of the billing period. Subscriber must cancel your Fiduciary Genius Service before it renews in order to avoid billing of the membership fees for the next billing period to Subscriber’s Payment Method (see "Cancellation" below). The “billing period” is the interval of time between each recurring billing date and corresponds to the term of your Fiduciary Genius Service. The length of the billing period will depend on the type of Fiduciary Genius Service that Subscriber chooses when they signed up for the service. The billing period date and time starts exactly when Subcriber starts their Fiduciary Genius Service.
3. Taxes. Subscriber will also be responsible for payment of all taxes (other than taxes based on Fiduciary Genius’s income), fees, duties, and other governmental charges, and any related penalties and interest, arising from the payment of Fees to Fiduciary Genius under this Agreement. Subscriber will pay all Fees to Fiduciary Genius free and clear of, and without reduction for, any withholding taxes.
4. Payment Method. Fiduciary Genius will keep Subscriber’s detailed payment information, such as credit card number and expiry date, on file. Subscriber is responsible for keeping their payment details up-to-date by changing the details in Subscriber’s account settings. Subscriber can update the Payment Method by going to the “Billing” on www.fiduciarygenius.com website. In the event of a failed attempt to charge to Subscriber’s payment method, Fiduciary Genius reserves the right to retry billing the Subscriber’s payment method. If a payment is not successfully authorized due to expiration, insufficient funds, or otherwise, Fiduciary Genius may suspend or terminate the subscription. Subscriber will remain responsible for any amounts they fail to pay in connection with their subscription, including collection costs, bank overdraft fees, collection agency fees, reasonable attorneys’ fees, and arbitration or court costs. Subscriber also agrees that Fiduciary Genius may charge subscriber’s payment method on file if they decide to restart their Fiduciary Genius Service.
5. Free Trials. The Fiduciary Genius Services may include an initial free trial period. Fiduciary Genius reserves the right to determine the eligibility for, modify the terms of, extend, or revoke the free trial at any time without prior notice. In the event that a Subscriber is granted a free trial, the trial period shall commence from the precise moment of the Subscriber's acceptance of the Fiduciary Genius Service. For illustration, if the Subscriber initiates the trial at a specific time, such as 10:17:23 EST on December 7, 2023, the trial will conclude exactly seven days later at 10:17:23 EST on December 14, 2023. Following the conclusion of the free trial, the first payment will be automatically charged to the Subscriber’s selected payment method, unless the Subscriber cancels the service prior to the trial's expiration (refer to the "Cancellation" section below for details). It is the Subscriber’s responsibility to cancel their subscription before the end of the free trial if they do not wish to continue with the paid service. Subscribers will not receive a separate notification regarding the end of the free trial period or the commencement of the paid subscription.
6. Promotions. Fiduciary Genius may, from time to time, at its sole discretion, offer certain promotional offers, discounts, or plans (collectively, "Offers") to eligible Subscribers of the Fiduciary Genius Service. The eligibility for participation in these Offers shall be determined solely by the Fiduciary Genius, based on criteria including, but not limited to, device ID, method of payment, or an account email address associated with an existing or recent subscription to the Fiduciary Genius Service. The Company reserves the unequivocal right to revoke any Offer and to place the Subscriber's account on hold, should it be determined that the Subscriber fails to meet the eligibility criteria or violates any terms of the Offer. The specific eligibility requirements, limitations, conditions, and other pertinent terms associated with each Offer will be duly disclosed to the Subscriber at the time of signing up for the Offer, as well as through subsequent communications made available by Fiduciary Genius. Furthermore, it is hereby stipulated that any discounts granted to the Subscriber under such Offers are strictly temporary and are valid only for the period explicitly specified at the time of the Offer's commencement. Upon the lapse of the stated discount period, the discounts shall cease to apply, and the Subscriber shall be liable to pay the full subscription fee, as per the standard pricing structure of the Fiduciary Genius Service.
7. Cancellation. Subscriber can cancel their Fiduciary Genius Service at any time, and will continue to have access to the Fiduciary Genius Service through the end of the billing period. To cancel, go to the “Billing” page on www.fiduciarygenius.com website and follow the instructions for cancellation.
8. No Refunds. Payments are nonrefundable and there are no refunds or credits for partially used Fiduciary Genius Service periods. Following any cancellation, however, Subscriber will continue to have access to the Fiduciary Genius Service through the end of their current billing period.

5. TERM; TERMINATION.

1. Term. The term of this Agreement will commence on the Effective Date.  If  either party notifies the other party that it wishes to terminate this Agreement, the Agreement will terminate on the last day of the then-current period for which the Subscriber has subscribed to the Fiduciary Genius Service (the “Term”). Notwithstanding the foregoing, if Subscriber is in breach of Subscriber’s obligation to pay Fiduciary Genius any Fees, Fiduciary Genius may terminate this Agreement and the Term without notice to Subscriber by merely cancelling Subscriber’s access to the Fiduciary Genius Service.
2. Termination.  Fiduciary Genius may terminate this Agreement at any time and for any reason by providing written notice to the Subscriber (e-mail being sufficient).  Subscriber may terminate this Agreement at any time and for any reason by providing notice to Fiduciary Genius either within the Fiduciary Genius Service, by e-mail to [email protected], or by telephone.
3. Effects. Upon the termination of this Agreement for any reason: (i) all rights and licenses granted to Subscriber hereunder will terminate on the last day of the Term, (ii) Subscriber will stop using the Fiduciary Genius Service after the last day of the Term, and (iii) within thirty (30) days of the end of the Term, each party will, at the other party’s option, either destroy or permanently erase all copies of the other party’s Confidential Information under its control; provided, however, that each party may retain one archival copy the other party’s Confidential Information. Upon any termination of this Agreement, (i) Subscriber will still be obligated to pay all Fees that have accrued pursuant to this Agreement prior to the effective date of termination within five (5) days after such date of termination and (ii) Fiduciary Genius may retain all Fees paid prior to the end of the Term, which amounts will not be refundable to Subscriber under any circumstances. Either party’s termination of this Agreement will be without prejudice to any other right or remedy that it may have at law or in equity, and will not relieve either party of breaches occurring prior to the effective date of such termination.  Sections 1, 2(b), 2(e), and 3-10, and any other provisions in the Exhibits to this Agreement that by their nature would reasonably be expected to survive, will survive the expiration or termination of this Agreement.  

6. PROPRIETARY RIGHTS.

1. Fiduciary Genius. As between Fiduciary Genius and Subscriber, Fiduciary Genius will exclusively own and retain all right, title, and interest, including all Intellectual Property Rights, in and to (i) the Fiduciary Genius Service (including all Documentation), including, without limitation, all software, technology, information, content, and materials relating thereto and/or generated thereby, (ii) Usage Data, (iii) all Confidential Information of Fiduciary Genius, (iv) any suggestions, recommendations, or other feedback relating to the Fiduciary Genius Service provided by Subscriber to Fiduciary Genius, and (v) any modifications, Updates, copies, translations, improvements, derivative works, or adaptations of any of the foregoing, irrespective of who authored, invented, or made same.
2. Subscriber. As between Fiduciary Genius and Subscriber, Subscriber will exclusively own all right, title, and interest, including all Intellectual Property Rights, in and to (i) all Confidential Information of Subscriber and (ii) all Subscriber Content (collectively, the “Subscriber Materials”). Subscriber hereby grants Fiduciary Genius a royalty-free, worldwide, non-exclusive right and license to use, reproduce, distribute, transmit, perform, display, and make derivative works of the Subscriber Materials, or any portion thereof, solely for the purpose of performing its obligations under this Agreement.  

7. LIMITED WARRANTY.

1. Mutual.  Each party represents and warrants to the other party that the execution, delivery and performance of this Agreement (i) is within its corporate powers, (ii) has been duly authorized by all necessary corporate action on such party’s part, and (iii) does not and will not contravene, violate, or constitute a default under, and is not and will not be inconsistent with, any Legal Requirement, judgment, decree or order, or any contract, agreement, or other undertaking, applicable to such party.
2. Fiduciary Genius Service. Fiduciary Genius warrants that, when operated in accordance with the Documentation, the Fiduciary Genius Service will substantially conform to the specifications set forth in the Documentation. Notwithstanding the foregoing, Fiduciary Genius’s warranty in this paragraph will not apply to the extent that Fiduciary Genius’s breach of such warranty arises from (i) any use of the Fiduciary Genius Service not in accordance with the terms of this Agreement or any Legal Requirements, (ii) any Subscriber Content, (iii) any use of the Fiduciary Genius Service in combination with other services, products or data provided by Subscriber or third parties, or (iv) any modification of the Fiduciary Genius Service by Subscriber or any third party.  Fiduciary Genius’s sole obligation, and Subscriber’s sole remedy, for a breach of the warranty in this paragraph will be, at Fiduciary Genius’s option, either to (i) remedy the purported defect within a reasonable time or (ii) terminate this Agreement and refund any Fees that have been prepaid by Subscriber for the Fiduciary Genius Service for any period of time after such termination.  
3. General Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN SECTIONS 7(a) and 7(b) OR any SLA, THE FIDUCIARY GENIUS SERVICE IS PROVIDED “AS-IS” AND “AS AVAILABLE”, AND FIDUCIARY GENIUS SERVICE EXPRESSLY DISCLAIMS ALL WARRANTIES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WHETHER EXPRESS, IMPLIED, OR STATUTORY, AS TO ANY ASPECT OF THE FIDUCIARY GENIUS SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. FIDUCIARY GENIUS SERVICE DOES NOT WARRANT THAT THE FIDUCIARY GENIUS SERVICE WILL MEET ALL OF SUBSCRIBER’S REQUIREMENTS, THAT ITS ACCESSIBILITY OR OPERATION WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE, THAT THE ELECTRICAL, INTERNET, WIRELESS, OR CELLULAR NETWORKS NECESSARY TO OPERATE THE FIDUCIARY GENIUS SERVICE WILL BE AVAILABLE, OR THAT THE FIDUCIARY GENIUS SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. FIDUCIARY GENIUS SERVICE IS NOT LIABLE TO SUBSCRIBER FOR ANY LOSS OR CORRUPTION OF SUBSCRIBER CONTENT ON THE FIDUCIARY GENIUS SERVICE.  SUBSCRIBER ACKNOWLEDGES THAT ACCESS TO INFORMATION STORED IN THE FIDUCIARY GENIUS SERVICE IS NOT GUARANTEED, AND SUBSCRIBER AGREES TO EMPLOY APPROPRIATE BACK-UP PROCEDURES FOR DATA STORAGE IN ORDER THAT ANY LOSS OF DATA CAUSED BY THE FIDUCIARY GENIUS SERVICE OR THE FIDUCIARY GENIUS SERVICE’S UNAVAILABILITY WILL NOT ADVERSELY AFFECT SUBSCRIBER. TO THE EXTENT FIDUCIARY GENIUS SERVICE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
4. Third-Party Data.  THE FIDUCIARY GENIUS SERVICE MAY CONTAIN DATA FROM THIRD-PARTY PROVIDERS AND/OR WEBSITES THAT ARE NOT OWNED OR CONTROLLED BY FIDUCIARY GENIUS SERVICE. FIDUCIARY GENIUS SERVICE HAS NO CONTROL OVER, AND ASSUMES NO RESPONSIBILITY FOR, SUCH DATA OR POLICIES, OR PRACTICES OF ANY THIRD-PARTY DATA PROVIDER. SUBSCRIBER EXPRESSLY RELIEVES FIDUCIARY GENIUS SERVICE FROM ANY AND ALL LIABILITY ARISING FROM SUBSCRIBER’S USE OF ANY SUCH THIRD-PARTY DATA.

8. LIMITATION OF LIABILITY. FIDUCIARY GENIUS SERVICE’S AGGREGATE LIABILITY TO SUBSCRIBER FOR ANY CLAIM ARISING FROM OR RELATING TO THIS AGREEMENT UNDER ANY LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE), WILL NOT EXCEED THE AMOUNT PAID OR PAYABLE BY SUBSCRIBER TO Fiduciary Genius PURSUANT TO THIS AGREEMENT IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH SUCH CLAIM INITIALLY AROSE. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN TORT, CONTRACT, INDEMNITY, STATUTORY, OR OTHERWISE) WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES OF ANY CHARACTER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, GOODWILL, LOST PROFITS OR LOST DATA, INCURRED BY EITHER PARTY OR ANY THIRD PARTY, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, FROM SUCH PARTY’S PERFORMANCE OR NON-PERFORMANCE OF THIS AGREEMENT OR THE OPERATION OF SUCH PARTY’S BUSINESS.
9. INDEMNIFICATION.

1. Fiduciary Genius.   Fiduciary Genius will, at its sole expense, defend, indemnify, save and hold harmless Subscriber from any and all damages, losses, liabilities, costs or expenses, including reasonable attorneys’ fees (collectively, “Losses”), resulting from third-party claims, demands, suits, or proceedings (collectively, “Claims”) arising out of or relating to (i) Fiduciary Genius’s breach of its representations, warranties, or covenants set forth in this Agreement, (ii) the infringement of any valid United States copyright or trade secret by the Fiduciary Genius Service (which, for clarity, does not include Subscriber Materials), and (iii) Fiduciary Genius’s gross negligence or willful misconduct.  Notwithstanding the foregoing, Fiduciary Genius’s indemnity obligation in this paragraph will not apply to the extent that such obligation arises from (i) any use of the Fiduciary Genius Service not in accordance with the terms of this Agreement or any Legal Requirements, (ii) any use of the Fiduciary Genius Service in combination with other services, products or data provided by Subscriber or third parties, or (iii) any modification of the Fiduciary Genius Service by Subscriber or any third party.  
2. Subscriber.  Subscriber will, at its sole expense, defend, indemnify, save and hold harmless Fiduciary Genius and Fiduciary Genius’s officers, directors, agents and employees from any and all Losses resulting from Claims arising out or relating to (i) an alleged breach by Subscriber of any representation, warranty or covenant of Subscriber in this Agreement, (ii) the Subscriber Materials, (iii) acts or omissions of Subscriber in connection with the use of the Fiduciary Genius Service, and (iv) Subscriber’s gross negligence or willful misconduct.
3. Requirements.  Any party seeking indemnification under this Agreement will (i) promptly notify the indemnifying party in writing regarding any facts that may give rise to a claim for indemnification under this Agreement (provided that any delay in notification will not relieve the indemnifying party of its obligations hereunder except to the extent that the indemnifying party is actually prejudiced by such delay), (ii) provide the indemnifying party with reasonable information, assistance and cooperation in defending the lawsuit or proceeding (at the indemnifying party’s expense, to the extent of any out-of-pocket expenses), and (iii) give the indemnifying party full control and sole authority over the defense and settlement of such claim, subject to the indemnified party’s approval of any such settlement, which approval will not be unreasonably withheld or delayed.

10. MISCELLANEOUS.

1. Export Restrictions.  Subscriber understands and acknowledges that Fiduciary Genius is subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, that prohibit export or diversion of certain products and technology to certain countries. Any and all obligations of Fiduciary Genius to provide access to the Fiduciary Genius Service are subject in all respects to such United States laws and regulations as from time to time govern the license and delivery of technology and products abroad by persons subject to the jurisdiction of the United States, including the Export Administration Act of 1979, as amended, any successor legislation, and the Export Administration Regulations (“EAR”) issued by the Department of Commerce, International Trade Administration, Bureau of Export Administration (“BXA”).  Subscriber agrees to comply in all respects with the export and re-export restrictions applicable to the Fiduciary Genius Service and will otherwise comply with the EAR or other United States laws and regulations in effect from time to time.  
2. Entire Agreement; Amendments. This Agreement, including any exhibits hereto, constitutes the entire agreement between the parties with respect to the subject matter hereof. This Agreement supersedes all prior agreements or representations, oral or written, regarding such subject matter, including, without limitation,  any purchase orders or other business forms drafted by Subscriber, whether or not signed by Fiduciary Genius, which are hereby terminated and of no further force or effect. This Agreement may be modified or amended only by a writing signed by an authorized representative of both parties.
3. Waivers.  The waiver by either party of a breach of or a default under any provision of this Agreement will be in writing and will not be construed as a waiver of any subsequent breach or default under the same or any other provision of this Agreement.  No delay or omission on the part of either party to exercise or avail itself of any right or remedy that it has or may have hereunder operates as a waiver of any right or remedy.  
4. Severability.  If the application of any provision of this Agreement to any particular facts or circumstances will be held to be invalid or unenforceable by an arbitration panel or a court of competent jurisdiction, then (i) the validity and enforceability of such provision as applied to any other particular facts or circumstances and the validity of other provisions of this Agreement will not in any way be affected or impaired thereby and (ii) such provision will be enforced to the maximum extent possible so as to effect the intent of the parties and reformed without further action by the parties to the extent necessary to make such provision valid and enforceable.
5. Assignment. The rights granted and obligations undertaken in this Agreement are personal to Subscriber and Subscriber agrees not to transfer, assign or sublicense such rights or obligations to any third-party. Any attempted transfer, assignment or sublicense of such rights or obligations by Subscriber will be null and void.
6. Relationship.  The relationship of Fiduciary Genius and Subscriber established by this Agreement is that of independent contractors, and nothing contained in this Agreement will create or be construed to create any partnership, joint venture, agency, franchise, sales representative, employment or fiduciary relationship between the parties or any of its respective agents or employees. Nothing in this Agreement grants to either party the authority to make any promise, warranty, guarantee, or representation that will create any obligation or liability whatsoever, whether express or implied, on behalf of the other.
7. Law; Venue. This Agreement will be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any contrary choice of law rules, and applicable United States federal law. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Any action or proceeding brought by one party to this Agreement against the other party to this Agreement that seeks to enforce any provision of, or based on any right arising out of, this Agreement will be brought exclusively in a state or federal court located in Delaware. Each of the parties consents to the exclusive jurisdiction of such courts (and the appropriate appellate courts) in any such action or proceeding and waives any objection to venue laid therein.
8. Prevailing Party.  If any legal action, including, without limitation, an action for arbitration or equitable relief, is brought by one party against the other party relating to this Agreement or the breach or alleged breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, will be entitled to reimbursement from the other party for the full amount of all reasonable expenses, including all court costs, arbitration fees and actual attorneys’ fees paid or incurred in good faith.
9. Notices. All notices under this Agreement will be in writing and will be delivered to a party at the physical address or e-mail address specified in the first paragraph of this Agreement by Fiduciary Genius or as provided by Subscriber to Fiduciary Genius, Attn: Chief Legal Officer, by: (1) depositing the notice in the mail, using registered mail, return receipt requested, (2) overnight delivery service, (3) e-mail, or (4) hand delivery to an individual authorized to accept such delivery. The notice will be effective (i) seven (7) calendar days after deposit in the mail, (ii) the next business day after deposit with an overnight delivery service, (iii) upon receipt by e-mail, or (iv) on the date of hand delivery.
10. Force Majeure. Except for Subscriber’s obligations to pay Fiduciary Genius hereunder, neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.
11. Construction. The terms of this Agreement have been negotiated by the parties hereto and the language used in this Agreement will be deemed to be the language chosen by the parties to express their mutual intent. This Agreement will be construed without regard to any presumption or rule requiring construction against the party causing such instrument or any portion thereof to be drafted, or in favor of the party receiving a particular benefit under this Agreement.
12. Headings.  The captions and section and paragraph headings used in this Agreement are inserted for convenience only and will not affect the meaning or interpretation of this Agreement.
13. Counterparts. This Agreement may be executed in counterparts, each of which will be deemed an original, but all of which taken together will constitute one and the same Agreement. All signed fax copies of the Agreement will be deemed as valid as an original.

EXHIBIT A

SERVICE LEVEL AGREEMENT

1. DEFINITIONS.

1. “Error” means, with respect to this Exhibit A only, an event that causes interruption to, or a reduction in, the quality of, the Fiduciary Genius Service.
2. “Response Time” means, after Fiduciary Genius receives notice of an Error, the amount of time it takes Fiduciary Genius to provide Subscriber with an update and potential resolution time for such Error.  
3. “Resolution Time” means, after Fiduciary Genius receives notice of an Error, the amount of time it takes Fiduciary Genius to resolve such Error, which may include a permanent fix or temporary workaround.
4. “Scheduled Downtime” means the number of hours in a given calendar month that one or more material elements of the Fiduciary Genius Service is not available to Subscriber because of scheduled system maintenance across the Fiduciary Genius Service (i.e., not Subscriber-specific) for which Fiduciary Genius has provided Subscriber with at least 72 hours prior notice.   Notwithstanding the foregoing, Fiduciary Genius Service downtime that occurs  on Sunday will qualify as “Scheduled Downtime” without the need for Fiduciary Genius to provide prior notice to Subscriber. Fiduciary Genius will use commercially reasonable efforts to perform Scheduled Downtime from 11:00 p.m-4:00 a.m. Pacific Time.
5. “Severity Levels” mean the categories of Errors set forth below:

1. “Unscheduled Downtime” means the number of hours in a given calendar month that one or more material elements of the Fiduciary Genius Service is not available to Subscriber because of system maintenance that is not Scheduled Downtime.

• AVAILABILITY.   The Fiduciary Genius Service will be available to Subscriber twenty-four (24) hours a day, seven (7) days a week, 99.5% of the time (the “Availability Percentage”), measured on a calendar monthly basis, excluding (a) Scheduled Downtime, (b) up to a total of four (4) hours per month of Unscheduled Downtime, and (c) downtime caused by Subscriber or its agents or by other forces beyond the reasonable control of Fiduciary Genius (including, without limitation, hardware or software failures).   Notwithstanding anything to the contrary in this Exhibit A, the unavailability of certain specific features or functions of the Fiduciary Genius Service that are not, in the aggregate, material to the Fiduciary Genius Service as a whole will not constitute unavailability of the Fiduciary Genius Service.

• RESOLUTION OF ERRORS.

1. Categorization of Errors.  The Severity Level of any Error will be determined by Fiduciary Genius in its reasonable discretion.
2. Response & Resolution Times.  Subscriber will use commercially reasonable efforts to provide detailed, accurate, and immediate notification to Fiduciary Genius of any Error so that Fiduciary Genius can take remedial action as soon as possible.  Fiduciary Genius will use commercially reasonable efforts to respond to and resolve each Error in accordance with its Severity Level as set forth in the table below:

* Notwithstanding anything to the contrary contained in this Agreement, Fiduciary Genius is not obligated to remedy any Error caused by user error or Subscriber’s or any Authorized User’s failure to access the Fiduciary Genius Service with a compatible system or web browser.

• TECHNICAL SUPPORT.  Fiduciary Genius technical support will be available by phone at (949) 600--7707 or by email at [email protected] (email subject to change) based on the schedule below: