Standard Terms of Business

These Standard Terms of Business (these “Terms”) are incorporated by reference into and govern the agreed proposal, Engagement Letter, or Order Form that incorporates these Terms (the “Services Agreement”) by and between Adviser Compliance Associates, LLC or its Affiliate ACA Compliance (Europe) Limited, each doing business as ACA Group, and the party identified in the proposal (“Client”). 

1.    Definitions.

Certain definitions of capitalized terms used in these Terms are set out below. Other definitions of capitalized terms are given to them throughout these Terms.

“Affiliate” with respect to either party to this Agreement means any entity that is under the control of, controls, or is under common control with such party. An entity controls another if it has the power to direct the management or policies of an entity, whether through the ownership of voting securities or general partner or managing member interests, by contract or otherwise. For purposes of this Agreement, ACA’s ultimate controlling parent shall be GC Mountaintop Holdings, LLC.

“Agreement” means these Terms and the Services Agreement, together with and any attached addenda and/or exhibits.

“Effective Date” means the date on which the last signatory signed the Services Agreement.

“Documentation” means any user and reference manuals, technical specifications, and any other documentation that is generally provided by ACA to subscribers of the System.

“Services” means the professional services provided by ACA to Client as described in the Services Agreement.

“System” means the software-as-a-service platform(s) to which ACA provides Client with access, including access for the provision of the Services as applicable in any Services Agreement, including any revisions, updates, improvements, modifications, enhancements, corrections or new releases of such platform(s) routinely made by ACA free of charge for its clients.

2.    Client Responsibilities.

2.1    ACA’s performance of the Services may be dependent on Client’s timely and effective responses to ACA’s inquiries or document requests and/or the quality, completeness, or accuracy of data or records provided to ACA. The failure of Client to respond to such inquiries or document requests in a timely manner and/or provide complete, accurate, or usable data or records could adversely affect ACA’s ability to perform all or some of the Services.

2.2    Client agrees to provide ACA with access only to the information, technology assets, and systems necessary for ACA to perform the Services or provide access to the System. ACA will not and has no obligation to verify the accuracy and completeness of the documentation and/or information submitted to ACA pursuant to the Agreement or the lawfulness of such submission. Client agrees that ACA shall not have, and ACA hereby disclaims, responsibility for any damages, losses, costs, fees or expenses, whether arising from tort, contract, or any other theory of law, resulting from any inaccuracy or incompleteness in the documentation or information provided to ACA by Client or its representatives, or if the provision of such information to ACA is determined to be unlawful.

2.3    In performing the foregoing Services, ACA may place relatively greater focus on specific topical areas and/or procedures based on Client’s unique business operations or risks, current regulatory focus areas, and/or Client’s subsequent instruction or request. The Services are designed to provide reasonable assurance to Client with respect to the areas covered by the Services and are not designed to be a comprehensive review of Client’s business activities. ACA does not guarantee that the Services will be favorably received by any regulatory agency or governing body. The Services may include ACA’s advice and recommendations, however, Client is responsible for all decisions made with respect to such advice and recommendations.

2.4    ACA does not offer legal or accounting services, nor does it provide substitute services for those provided by legal counsel or certified public accountants. If ACA provides forms or other documents to Client, the provision of such documents should not be deemed to constitute any form of legal advice. Although the Services may include review of accounting and financial records, the Services are not an audit of Client in accordance with generally accepted auditing standards nor a review of the internal controls of Client in accordance with any accounting standards.

3.    Taxes.

Client is responsible for paying all applicable taxes, levies, duties, or similar governmental assessments of any nature, including but not limited to value-added, sales, use, or withholding taxes assessable by any local, state, federal, or foreign jurisdiction associated with the Services and/or System, other than ACA’s income taxes (collectively, “Taxes”). Unless otherwise provided in this Agreement, fees are exclusive of any Taxes, and if ACA has the legal obligation to pay or collect Taxes for which Client is responsible, the appropriate amount will be invoiced to and paid by Client.

4.    Fees.

4.1    Client shall pay the fees set forth in the Services Agreement.

4.2    Client agrees to reimburse ACA for all reasonable travel and meal expenses incurred by ACA in connection with the Services in accordance with ACA’s travel policy and approved by Client. Upon request, ACA shall provide Client with reasonable documentation of any travel or meal expense incurred.

4.2    All invoices shall be payable to ACA within thirty (30) days of receipt. If any invoice remains unpaid for more than ninety (90) days from the date of Client’s receipt of such invoice, ACA shall have the right, in addition to any other rights and remedies under this Agreement, to suspend performing some or all of the Services until such invoice has been paid.

5.    Proprietary Rights.

ACA owns and retains all rights, title, and interest in and to the System and Documentation, including all intellectual property rights therein. No rights are granted to Client hereunder other than as expressly set forth in this Agreement, and ACA expressly reserves all rights not granted under this Agreement. In addition, ACA owns and retains all rights, title, and interest in and to all computer code, computer programs, programming, processes, procedures, techniques, forms, templates, questionnaires, methods, ideas, concepts, or know-how that ACA makes or conceives in connection with its performance of the Services (collectively, “ACA Proprietary Information”). ACA Proprietary Information is not “work for hire” within the meaning of U.S. Copyright Act 17 U.S.C. Section 101. For the avoidance of doubt, ACA has the right, without further compensation or benefit to Client, to exploit and commercialize some or all ACA Proprietary Information as ACA may in its sole discretion determine or desire. For clarity, any final deliverables produced by ACA and delivered to Client in performing the Services (“Deliverables”) are the property of Client. ACA hereby assigns and grants to Client all rights, title and interest to such Deliverables. All Deliverables provided by ACA to Client in connection with the Services are produced for Client’s sole use and benefit.

6.    Confidentiality and Information Security.

6.1    Each party (the “Receiving Party”) may obtain or learn from the other party (the “Disclosing Party”) in connection with the performance of this Agreement information that is confidential or proprietary to the Disclosing Party (“Confidential Information”). Confidential Information shall not include information that (i) is in the public domain through no fault of or action by the Receiving Party; (ii) was available to the Receiving Party without any known obligation of confidentiality prior to its disclosure hereunder to the Receiving Party; and (iii) was independently developed by the Receiving Party without any access to or use of the Disclosing Party’s Confidential Information. The Receiving Party shall not use Confidential Information or disclose such Confidential Information to any third party except as set forth herein. Without limiting the foregoing, the Receiving Party shall use at least the same degree of care to keep the Disclosing Party’s Confidential Information confidential that it uses with respect to its own confidential information, but in no event less than a reasonable standard of care. The Receiving Party shall promptly notify the Disclosing Party of any actual or suspected misuse of the Disclosing Party’s Confidential Information. The Receiving Party shall limit disclosure of Confidential Information to such party’s Affiliates, and its and its Affiliates’ directors, officers, employees, contractors, subcontractors, professional advisors, and regulators (collectively, “Representatives”), in each case who have a need to know such Confidential Information, and shall only disclose Confidential Information to such Representatives pursuant to confidentiality agreements or, in the case of the party’s attorneys, auditors, and regulators, their professional or legal obligations of confidentiality, provided that such obligations are at least as protective of Confidential Information as the terms of this Agreement.

6.2    Disclosure of Confidential Information shall not be precluded if disclosure is (i) required by law, regulation, or legal process, or if required by any regulatory agency with jurisdiction over the Receiving Party, or (ii) requested by the Disclosing Party. In the event the Receiving Party is required to make such permitted disclosure, the Receiving Party shall, unless prohibited by law, promptly provide written notice thereof to the Disclosing Party so as to permit the Disclosing Party the opportunity to protect its privileges and interests at its own cost and expense. The Receiving Party shall reasonably cooperate with the Disclosing Party in any proceeding relating to the disclosure sought. The Receiving Party shall be reimbursed by the Disclosing Party for any reasonable out-of-pocket expenses incurred by the Receiving Party in performing its obligations under this paragraph. 

6.3    Upon the Disclosing Party’s written request, the Receiving Party will return all of the Disclosing Party’s Confidential Information then in the Receiving Party’s possession, together with all copies or reproductions thereof, and/or destroy all such Confidential Information and any notes, workpapers, memoranda or other documents containing such Confidential Information. The Receiving Party shall not be required to return or destroy any Confidential Information it is required to retain by applicable law or rule, a bonified document retention policy, or electronic backup copies of such Confidential Information, provided that the Receiving Party shall continue to treat such Confidential Information as confidential pursuant to the terms hereof.

6.4    Each party shall comply with all privacy and data protection laws and regulations that are or may in the future be applicable to it. If the Services or Client’s use of the System includes the transfer of personal data from the European Economic Area (“EEA”) to the United States (“U.S.”) or United Kingdom (“UK”), or the transfer of personal data from the UK to the U.S., the Standard Contractual Clauses issued by the European Commission, a copy of which can be viewed at https://www.acaglobal.com/standard-contractual-clauses, are incorporated into these Terms.

6.5    ACA represents that it has implemented and will maintain administrative, technical, and physical safeguards reasonably designed to protect Confidential Information (including any nonpublic personal information relating to an identifiable natural person contained therein) against accidental, unauthorized, or unlawful disclosure consistent with applicable laws. ACA further represents that it has implemented and will maintain a written information security plan consistent with applicable privacy and data security laws that specifies measures to mitigate reasonably foreseeable internal and external risks to Confidential Information.

7.    Risk Allocation; Insurance.

7.1    The liability of ACA and its Affiliates and its and their Representatives (collectively, the “ACA Parties”) to Client for any and all claims relating to this Agreement or the Services or System, regardless of the form of the action or the basis of the claim, shall not, in the aggregate, exceed the greater of (i) the total professional fees paid and/or payable by Client to ACA under this Agreement, and (ii) $500,000, except to the extent that the claim resulted from (a) the gross negligence, willful misconduct, or fraudulent behavior of the ACA Parties or ACA’s infringement of a third party’s patent, copyright, or trademark, in which case no limit shall apply, or (b) the breach of Section 6 herein, in which case a limit of $1,000,000 shall apply.

7.2    The liability of Client to the ACA Parties for any and all claims relating to this Agreement or the Services or System, regardless of the form of the action or the basis of the claim, shall not, in the aggregate, exceed the total professional fees paid and/or payable by Client to ACA under this Agreement, except to the extent that the claim resulted from the gross negligence, willful misconduct, or fraudulent behavior of Client.

7.3    Under no circumstances will either party or its Representatives be liable for consequential, incidental, indirect, punitive loss, or lost profit or similar damages and related costs and expenses relating to this Agreement, regardless of the form of the action or the basis of the claim, even if apprised of the possibilities of such damages, and whether or not such damages could have been foreseen or prevented, except to the extent that the claim resulted from the gross negligence, willful misconduct or fraudulent behavior of the other party.

7.4    Client agrees to indemnify the ACA Parties from and against any damage, loss, costs, liability, or expense based upon any third-party claim brought against the ACA Parties arising out of Client’s infringement of such third party’s rights except to the extent that the claim resulted from the gross negligence, willful misconduct, or fraudulent behavior of ACA or ACA’s infringement of a third party’s patent, copyright, or trademark.

ACA agrees to indemnify Client from and against any damage, loss, costs, liability, or expense based upon any third-party claim brought against Client arising out of or related to the infringement of such third party’s patent, copyright, or trademark resulting from Client’s use of the System and/or Services except to the extent that the claim resulted from the gross negligence, willful misconduct, or fraudulent behavior of Client.

In connection with the indemnification obligations hereunder, the relevant party shall (a) promptly notify the other party of such claim, provided that failure to give such notice shall not relieve such party of its obligations hereunder except to the extent it shall have been prejudiced by such failure and (b) have the right to conduct and control, through counsel of its or their choosing and at the expense of the other party, the defense, compromise, or settlement of any third-party claim as to which indemnification may be sought under this Section, and in any such case the other party shall cooperate in connection therewith, provided that the relevant party shall not, without the written consent of the other party (which written consent shall not be unreasonably withheld), pay, compromise or settle any such claim.

7.5    Notwithstanding any term to the contrary contained in this Agreement, the parties agree that the allocations of liability and indemnification obligations set forth above represent the agreed upon and bargained-for understanding of the parties.

7.6    ACA agrees to maintain commercially reasonable insurance policies for its obligations under this Agreement, including without limitation general liability, workers compensation, errors and omission, third-party crime, and cybersecurity coverage in commercially reasonable amounts. ACA agrees to provide Client with certificates of insurance evidencing such coverages upon Client’s request.

8.    ACA Personnel.

8.1    All Services shall be performed by employees of ACA or one of its Affiliates, and/or contractors or subcontractors engaged by ACA (collectively, “ACA Personnel”). ACA represents that industry-standard pre-hire background checks are conducted on all ACA Personnel in accordance with applicable law and that the results of such background checks are satisfactory to ACA. ACA is responsible for all acts and omissions of the ACA Personnel assigned to perform the Services.

8.2    ACA shall be responsible for assigning and/or re-assigning ACA Personnel, as appropriate, to perform the Services. ACA shall use reasonable efforts to accommodate specific assignment and/or re-assignment requests from Client. Client acknowledges that its requested re-assignment of any ACA Personnel may affect the ability of ACA to timely complete the Services.

9.    Termination.

9.1    The term of this Agreement shall commence on the Effective Date and shall continue in full force and effect until the earlier of the completion of the engagement or the termination of this Agreement in accordance with the provisions of this Section 9.

9.2    Subject to any initial term set forth in the Services Agreement, this Agreement may be terminated (i) upon thirty (30) days’ written notice by either party to the other party, (ii) immediately by either party if the other party materially breaches this Agreement, or (iii) immediately by either party if the other party makes a general assignment for the benefit of creditors; a trustee, custodian or receiver is appointed by any court with respect to the other party or any substantial part of such party’s assets; an action is taken by or against the other party under any applicable bankruptcy or insolvency laws or laws relating to the relief of debtors, and such action is not dismissed within sixty (60) days of commencement of the action, or the other party is the subject of a winding-up petition which is not dismissed within ten (10) days of the filing thereof, or a resolution is passed for its winding-up.

9.3    Upon termination, Client shall pay to ACA all amounts due, including expenses incurred, through the date of termination. If the amount payable upon termination is less than any advance payment made by Client, ACA shall refund the difference. 

9.4    In the event this Agreement replaces and terminates a certain existing agreement or agreements by and between ACA and Client, as described in the Services Agreement, (as amended, the “Prior Agreement”), any money paid by Client in advance under the Prior Agreement for services thereunder not rendered prior to termination of the Prior Agreement shall be credited towards the fee payable under this Agreement. The termination and replacement of the Prior Agreement will not change the contract year within which ACA provides any ongoing Services, unless otherwise agreed to in writing between ACA and Client. 

9.4    Any provision of this Agreement that contemplates performance or observance subsequent to termination of this Agreement will survive termination of this Agreement and continue in full force and effect thereafter.

10.    General.

10.1    This Agreement may not be assigned by either party without the prior written consent of the other party, provided that either party may assign this Agreement to (i) an Affiliate, or (ii) the successor in any merger or the entity that acquires all or substantially all of the stock or assets of the assigning party. Each party agrees to provide notice to the other party of any such assignment. Any purported assignment in violation of this provision will be void.

10.2    Notice to ACA may be delivered to contractnotice@acaglobal.com or, for notice of termination under Section 9.1, to terminations@acaglobal.com.

10.3    This Agreement constitutes the entire agreement between the parties with respect to the subject matter contained herein and supersedes all previous or contemporaneous agreements, promises, proposals, representations, understandings and negotiations, whether written or oral, between the parties pertaining to such subject matter. This Agreement is made solely for the benefit of the parties hereto and their permitted successors and assigns, and no other person shall have any right, benefit or interest under or because of this Agreement. This Agreement shall be construed as if drafted jointly by both ACA and Company and no presumptions shall arise favoring any party by virtue of authorship of any provision of this Agreement.

10.4    This Agreement shall be governed by and construed in accordance with the substantive laws of the State of New York without regard to conflict of law principles.

10.5    No failure or delay on the part of any party in exercising any right or remedy provided in this Agreement will operate as a waiver thereof, nor will any single or partial exercise of or failure to exercise any such right or remedy preclude any other or further exercise thereof or the exercise of any other available right or remedy. If any term, provision or part of this Agreement is held invalid, void or unenforceable, the remainder of this Agreement will continue in full force and effect.

10.6    Each party is responsible for compliance with applicable export laws. Neither party shall export, directly or indirectly, any technical data acquired from the other party pursuant to this Agreement or any product utilizing any such data to any country for which the U.S. Government or any agency thereof at the time of export requires an export license or other governmental approval, without first obtaining such license or approval and the prior written consent of the providing party.

10.7    ACA shall not be liable for any disruption, failure, or delay in the performance of the Services or access to the System arising from the acts of God or public enemy, war (declared or undeclared), labor disruptions, government action (foreign or domestic), floods, fires, unusually severe weather, earthquakes, epidemics, and any other events or circumstances beyond the reasonable control of ACA, whether similar or dissimilar to any of the foregoing, provided that such disruption, failure, or delay was not directly caused by the fault or negligence of ACA.

10.8    In connection with this Agreement, each party shall act as principal and not as an agent of any person or entity. Nothing herein shall be deemed or construed to create a joint venture, partnership, or employment, agency, or fiduciary relationship between the parties.

10.9    For the avoidance of doubt, ACA will not unilaterally update, amend or otherwise change these Terms during the term of the engagement. 

 

 
ComplianceAlpha Addendum to Standard Terms of Business

The terms of this ComplianceAlpha Addendum to Standard Terms of Business (the “Addendum”) shall apply where ACA provides Client access to ACA’s ComplianceAlpha® System. 

1.    ACA Responsibilities.

ACA shall make the System and Documentation available to Client in accordance with the terms of  this Agreement. The System will be available to Client 24 hours a day, 7 days a week, except when ACA is performing maintenance activities, or when due to circumstances beyond ACA’s reasonable control, such as force majeure events including a service provider failure or delay.

2.    Client Responsibilities.

The number of individuals authorized by Client to use the System (“Authorized Users”) shall be consistent with the terms and conditions herein and in the quantity specified in the Services Agreement. Client is solely responsible for the content of all data and information that is inputted into the System by or on behalf of Client by any third party, including by ACA and its Affiliates (“Client Data”), any postings, data, or transmissions using the System, and any other use of the System by Client or by any Authorized User. Client is solely and exclusively responsible for ensuring that Client complies at all times with all applicable laws, statutes and regulations. To the extent required, Client agrees to provide any notices and obtain any government, third party, or other consents, related to Client’s use of the System, including those related to the collection, use, processing, transfer, or disclosure of personal information.

Client shall (i) maintain the confidentiality of its user names and passwords for accessing and using the System; (ii) implement internal controls designed to ensure that only Authorized Users are able to access and use the System; and (iii) not disclose or make available any user names or passwords other than to Authorized Users. Client is responsible for all activities that occur utilizing Client’s usernames and passwords, and ACA accepts no liability therefor. ACA has no obligation to verify that any individual using Client’s usernames and passwords is an Authorized User.

Client shall not (i) use, copy, or modify the System or the Documentation other than as otherwise expressly set forth in this Agreement; (ii) rent, lease, sublicense, distribute, disclose, or otherwise make the System or Documentation available to any third party; (iii) reverse engineer, decompile, or disassemble the System; (iv) use the System for purposes of operating a service bureau for the benefit of third parties or as part of a commercial public access computer network; (v) remove any copyright, trademark, or other proprietary notice from the System or the Documentation; (vi) intentionally introduce or propagate any unauthorized data, malware, viruses, Trojan horses, spyware, worms or other malicious or harmful code into the System; (vii) interfere with or attempt to interfere with or disrupt the integrity, security, functionality or proper working of the System; (viii) attempt to discover, access, read, alter, destroy, or damage any programs, data or other information stored in the System; and (ix) access or use the System through any means other than those authorized by ACA.

Client’s subscription to the System shall not include Securities Exchange Act of 1934 Rule 17a-4 compliant archiving unless specifically set forth in the Services Agreement.

3.    Suspension.

ACA may suspend the System without liability if: (i) ACA reasonably believes that the System is being used in violation of this Agreement, or any applicable law, court order, rule or regulation in any jurisdiction; (ii) ACA reasonably believes that suspension of the System is necessary to protect the technology environment used to operate and deliver the System or to protect other users of the System, or otherwise to protect security and integrity of the System; or (iii) suspension is required by law, statute, regulation, rule or court order. ACA will use best efforts to provide Client with notice of a suspension under this Section.

4.    Client Data and Client Proprietary Information.

As between Client and ACA, Client owns all rights, title, and interest in and to the Client Data. Client grants ACA a non-exclusive, royalty-free license during the term of its subscription to access, store, copy, display, and process the Client Data to the extent necessary for ACA to perform its obligations under this Agreement. Client acknowledges that ACA shall have no liability to Client or any Person for loss, damage or destruction to any Client Data not caused by ACA.

Client grants ACA a non-exclusive, royalty-free license during the term of its subscription to use Client’s logo and, if applicable, trademark, solely in connection with Client’s use of the System. ACA will not use Client’s logo and/or trademark in any marketing or communications to third parties. Client also grants ACA a non-exclusive, royalty-free, irrevocable license to use, copy, modify, create derivative works of, make, have made, distribute, publicly perform or display, import, export, sell, offer to sell, rent, or license copies of any suggestions, comments, opinions, input, ideas, or other feedback provided by Client (whether in oral, electronic or written form) to ACA in connection with Client’s use of the System, on an anonymous basis, as part of or in connection with any ACA product, service, technology, content, material, specification or documentation.

Notwithstanding anything to the contrary, ACA shall have the right to collect and analyze data and other information relating to the provision, use, and performance of the System (including, without limitation, Client Data and information and data derived therefrom), and ACA will be permitted to use such information and data to (i) improve and enhance the System and for other development, diagnostic, and corrective purposes in connection with the System, and (ii) if Client’s subscription to the System includes the Compliance Management Module, disclose and use such data solely in aggregated and anonymized form, including for commercial purposes, solely with respect to the information and data in the Compliance Management Module.

5.    Warranties and Disclaimer.

ACA warrants that the System will perform substantially in accordance with the Documentation. In the event that Client believes that ACA has breached this warranty, Client shall promptly notify ACA. ACA’s entire liability and Client’s sole and exclusive remedy for any breach of the warranty set forth in this Section is for ACA to correct, repair or replace, at no cost to Client, any defect, malfunction, or nonconformity that prevents the System from performing as so warranted.

ACA shall use commercially reasonable efforts to ensure that the System does not contain any viruses.

EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SYSTEM IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, AND ACA EXPLICITLY DISCLAIMS, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING AND USAGE OF TRADE OR THEIR EQUIVALENTS UNDER THE LAWS OF ANY JURISDICTION. ACA DOES NOT GUARANTEE OR MAKE ANY REPRESENTATION OR WARRANTY, EITHER EXPRESS OR IMPLIED, AS TO THE ACCURACY, VALIDITY, SEQUENCE, TIMELINESS, COMPLETENESS, AVAILABILITY OR CONTINUED AVAILABILITY OF THE SYSTEM OR THAT THE SYSTEM WILL BE ERROR-FREE.

6.    Access and Third Parties.

If Client has engaged ACA for regulatory compliance consulting services, Client acknowledges and agrees that, in the course of providing such services, Client’s ACA consulting teams may require and request access to the System. All access decisions are subject to ACA’s access control policies and procedures. Subject to such access decisions, Client agrees that the ACA consulting team is permitted to have such access.

The Employee Compliance and Control Room Modules each contain certain third-party data (the “EC/CR Third-Party Data”) licensed from CUSIP Global Services (“CGS”). If Client’s subscription includes the Employee Compliance Module and/or the Control Room Module, then Client acknowledges and agrees that Client’s use of and access to such EC/CR Third-Party Data is subject to licensor’s required terms and conditions set forth at https://www.acaglobal.com/ec-third-party-data-and-mas-third-party-data-terms-use.

Client acknowledges and agrees that the Employee Compliance Module utilizes the services of a third party service provider (“Service Provider”) to collect and distribute data (“Account Data”) from third party data sources for Client’s Authorized Users and perform transactions in connection with the operation and provision of the Employee Compliance Module, related to the downloading of Authorized Users’ personal trading data from Authorized Users’ online brokerage firms (the “Account Aggregation Service”). If Client’s subscription includes the Employee Compliance Module, then Client agrees to Service Provider’s required Account Data Terms of Use set forth at https://www.acaglobal.com/account-data-terms-use.

The Market-Abuse Surveillance Module contains certain third-party data (the “MAS Third-Party Data”) licensed from Interactive Pricing and Reference Data LLC (“IDC”) and CGS. If Client’s subscription includes the Market-Abuse Surveillance Module, then Client acknowledges and agrees that Client’s use of and access to such MAS Third-Party Data is subject to the licensors’ required terms and conditions set forth at https://www.acaglobal.com/ec-third-party-data-and-mas-third-party-data-terms-use.

The E-Learning Module contains certain third-party course modules (the “E-Learning Traliant Modules”) licensed from Traliant Holdings, LLC. If Client’s subscription includes the E-Learning Traliant Modules, then Client acknowledges and agrees that Client’s use of and access to such E-Learning Traliant Modules is subject to the licensor’s required terms and conditions set forth at https://www.acaglobal.com/e-learning-traliant-modules-terms-use.   

The E-Learning Module contains certain third-party course modules (the “E-Learning OpenSesame Modules”) licensed from OpenSesame Inc. If Client’s subscription includes the E-Learning OpenSesame Modules, then Client acknowledges and agrees that Client’s use of and access to such E-Learning OpenSesame Modules is subject to the licensor’s required terms and conditions set forth at https://www.opensesame.com/legal.  

Client acknowledges and agrees that (i) ACA’s ability to grant Client rights relating to the System may be contingent upon all rights, titles, licenses, permissions and approvals obtained by ACA from third-party suppliers pertaining to the data remaining in full force and effect during the term of this Agreement; (ii) in the event any supplier terminates, or modifies the terms or conditions of, ACA’s rights pertaining to the data, Client’s rights to use the affected portions (which may be all) of the System shall automatically be terminated or modified accordingly, which termination or modification shall not constitute a breach by ACA of any of its obligations hereunder; provided, however, that ACA refunds to Client a pro-rated portion of any prepaid fees relating to such loss of Client’s rights; and (iii) this Agreement is subject to any requirements of ACA’s data suppliers under ACA’s agreements with such data suppliers, including such additional financial and contractual requirements as may be imposed by such suppliers from time to time. ACA shall notify Client as soon as practicable after ACA becomes aware of any of the foregoing events or circumstances. In the event a supplier of the data requires Client to enter into an agreement directly with such supplier, Customer agrees to enter into such agreement within a reasonable amount of time following its receipt of notification that it is required to do so; provided, however, that if Client fails to enter into such an agreement, ACA may remove the portion of the data received from such data supplier from the data received by Client pursuant to this Agreement, and if the foregoing is impractical, terminate this Agreement on 30 days written notice to Client (or sooner if so required by the data supplier) and refund to Client a pro-rated portion of any prepaid fees.

7.    Infringement.

If the System becomes, or in ACA’s reasonable opinion is likely to become, the subject of an infringement claim, ACA may, at its sole expense and option: (i) procure the right for Client to continue using the System; (ii) replace the System with a non-infringing equivalent; (iii) modify the System to make it non-infringing but functionally equivalent; or (iv) if neither (i), (ii), nor (iii) is, in Client’s discretion, commercially reasonable, Client may terminate this Agreement and ACA shall refund to Client the pro rata unused portion of any prepaid fees.

8.    Effects of Termination.

Upon termination, Client shall cease all use of the System and Documentation. For thirty (30) days following termination or expiration of this Agreement, upon Client’s written request, ACA will, at Client’s election, provide Client with a copy of its Client Data stored within the System, or reasonably cooperate with Client in transitioning its Client Data stored within the System to a third party designated by Client in writing. Following such thirty (30) day period, ACA will have no obligation hereunder to further maintain the Client Data stored within the System.

 
Services Addendum to Standard Terms of Business

To the extent Client has engaged ACA for broker dealer advisory Services, Client acknowledges that ACA is not a registered principal of Client and that when performing the Services, ACA shall not be acting in a supervisory capacity on Client’s behalf. Client will remain solely responsible for complying with any supervisory reviews required by any regulator.

To the extent Client has engaged ACA’s Aponix® division to provide the Services, Client understands that the Services may include practices not otherwise allowed by law without prior consent (e.g., network vulnerability or penetration testing), and Client hereby consents to the performance of such Services. Client remains responsible for monitoring its technology assets and systems for suspicious activity during ACA’s performance of such Services.

To the extent Client has engaged ACA to provide vendor due diligence Services, Client agrees that information provided by Client’s vendors in response to ACA’s vendor due diligence questionnaire, as between ACA and Client, shall be deemed Confidential Information of ACA and subject to the confidentiality provisions of this Agreement.

To the extent Client has engaged ACA’s Aponix® division to provide portfolio company due diligence Services, Client is responsible for any decision whether to make or continue to make an investment in, or engage in any transaction with, any company based on information provided by ACA, and ACA will not make any assessment as to the merits of any such investment or transaction. Client expressly agrees to waive any claims it may have against ACA from and against any damage, loss, costs, liability or expense (including reasonable attorneys’ fees) based upon any decision by Client with respect to such an investment or transaction.

To the extent Client has engaged ACA to provide GIPS® verification or GIPS advisory Services, ACA will perform the Services consistent with its obligations as an independent verifier, as set forth in applicable guidance statements issued by the CFA Institute. ACA will not issue any deliverables in connection with this engagement if ACA reasonably believes that Client has not complied with the GIPS standards or other applicable guidance issued by the CFA Institute.

To the extent Client has engaged ACA to provide performance certification Services, ACA will not issue the Report if ACA reasonably believes that the records and data provided by Client to ACA do not support Client’s performance calculations.

To the extent Client has engaged ACA to provide social media review Services, Client agrees that because ACA will not perform a detailed inspection of all social media accounts maintained by such individuals or all websites on which such individuals may have published content, there is a risk that material issues or deficiencies, fraudulent activity, misappropriation of assets, or violations of law, which may be evidenced in such publications, will not be detected by ACA during the course of this review. Nonetheless, ACA will use best efforts to detect such issues during the course of its review.

To the extent Client has engaged ACA for the “Best Execution Solution,” Client understands and agrees to the following, as it relates to the best execution solution.  To assist Client with its best execution review obligations, ACA has contracted with Global Trading Analytics, LLC (“GTA”). Client agrees that any Client data sent to GTA must be complete and accurate. Changes to a Client data file related to the Best Execution Solution should be communicated to GTA prior to delivery of the next Client data file to GTA.  Complete and accurate information regarding Client’s internal trading structure must be communicated to GTA prior to set-up of the Best Execution Solution. In addition, any special Client reporting requirements must be communicated to GTA prior to set-up of the Best Execution Solution. Client reporting changes can only be reflected in the following period’s Client reporting. Excessive Client data problems and/or significant Client reporting changes requiring substantial GTA systems and personnel time may require Client to pay additional fees which will only be assessed following prior approval.

To the extent Client has engaged ACA to provide secondment Services Client acknowledges and agrees that any ACA personnel assigned to provide the Services (each, an “ACA Personnel”) will not be deemed an employee, temporary or otherwise, of Client for any reason ACA Personnel will not be subject to any of Client’s employee policies and procedures, unless otherwise agreed between the parties. Client agrees that it will not request the ACA Personnel to make determinations on Client’s behalf on the resolution or handling of any compliance matter or compliance finding or communicate to any regulator on Client’s behalf. During the term of this Agreement, and for a period of two (2) years from the termination date of this Agreement, Client agrees not to directly or indirectly solicit or hire any ACA Personnel assigned to provide the secondment Services. If a Party breaches this provision, such Party shall promptly pay to the other Party an amount equal to fifty percent (50%) of the total annual compensation due to such ACA Personnel during the most recent 12-month period of employment.

To the extent Client has engaged ACA to provide COE / PST support, and except where ACA is engaged as Client’s CCO, Client understands and agrees that ACA shall not approve, pre-clear, or otherwise authorize any Client personnel trading activity or provide any other approvals customarily provided by Client to its personnel and that Client is responsible for reviewing and approving any information manually entered by ACA into the System. ACA will use commercially reasonable efforts to timely enter such information in order to meet Client’s regulatory deadlines; however, it is Client’s obligation to provide or cause to be provided any confirmations or account statements to ACA with sufficient time to ensure that such information may be timely entered in the System. ACA shall only be responsible for entering confirmations or account statements that have been transmitted to ACA pursuant to ACA’s instruction. ACA shall have no obligation to maintain any paper confirmations or account statements, and may, in its sole discretion, destroy such paper confirmations or account statements at any time.

To the extent Client has engaged ACA to provide eComms review Services Client agrees that it will not provide for ACA’s review any communications sent solely through Client’s employees’ personal email accounts (e.g., Hotmail, Yahoo, Gmail), personal cell phone or PDA text messages, or personal postings on social networking sites, Internet blogs, or other websites, that were not additionally sent or received through Client’s computer systems or servers, or maintained on Client computers or devices. ACA is not obligated to review communications written in a language other than the language(s) identified in the Services description. Because ACA will not perform a detailed inspection of all electronic communications provided by Client to ACA, there is a risk that material issues or deficiencies, fraudulent activity, misappropriation of assets, or violations of law, which may be evidenced in such communications, will not be detected by ACA during the course of this review. Nonetheless, ACA will use best efforts to detect such issues during the course of its review. Upon the completion of ACA’s email review, Client will promptly disable any access granted to ACA personnel to Client’s email system for purposes of conducting the review.

To the extent Client has engaged ACA to provide expert network chaperoning Services Client acknowledges that except as set forth in the Service description, Client will provide any notices and obtain any consent required for ACA’s participation in each consultation. ACA will not advise Client as to the applicability of any laws or contractual obligations governing ACA’s participation in such consultations. ACA will not provide qualitative judgments about whether any information discussed during any consultation is material non-public information. Due to the dynamic nature of expert network consultations, any discussions that take place during such consultations may be misheard or misinterpreted by ACA. Accordingly, Client acknowledges and agrees that company names and potential compliance risks or violations raised during such consultations may not be identified by ACA.
 
Addendum to Standard Terms of Business
for Outsourced Named Officer Services

This Addendum to Standard Terms of Business for Outsourced Named Officer Services is applicable to the extent Client has engaged ACA for any named officer Services.

1.    The appointment of ACA’s assigned personnel as Client’s Officer is subject to approval of Client or Client’s Board of Directors/Trustees, as applicable. Client will ensure the Officer is a named officer in Client’s corporate resolutions and subject to the provisions of Client’s organizational documents regarding indemnification of its officers. Client shall make all decisions regarding the designation and term of the Officer’s appointment, and shall supervise the day-to-day activities of the Officer. 

2.    The Officer shall be covered by Client’s Directors & Officers Liability Insurance Policy (the “Policy”), and Client shall use reasonable efforts to ensure that such coverage be (a) reinstated should the Policy be cancelled; (b) continued after the Officer ceases to serve as an officer of Client on substantially the same terms as such coverage is provided for all other Client officers after such persons are no longer officers of the Client; and (c) continued in the event the Client merges or terminates, on substantially the same terms as such coverage is provided for all other Client officers (and for a period of no less than six years). Upon ACA’s request Client shall provide ACA with proof of current coverage, including a copy of the Policy, and shall notify ACA immediately should the Policy be cancelled or terminated. Client has and shall maintain policies of insurance with limits and coverage reasonable and customary for its business.

3.    Client shall provide the Officer with all necessary documents, records, and information necessary and/or appropriate to enable the Officer to perform the named officer Services. Client shall remain responsible for ensuring that it has required compliance policies and procedures and all books and records required to be maintained by Client pursuant to applicable laws, rules, and regulations are in place and maintained in accordance with such laws, rules and regulations. Client agrees that ACA and the Officer may, with respect to reasonable questions of law relating to its Services hereunder, apply to and obtain the advice of Client’s counsel, and the costs of such advice shall be borne by Client. ACA shall not be liable for its or the Officer’s action taken or failure to act in good faith or reasonable reliance upon the advice of the Client, or counsel to the Client; or any written instruction received by ACA and reasonably believed in good faith by ACA to be transmitted by the Client.

4.    Client agrees to indemnify and hold harmless the Officer from and against any  damage, loss, costs, liability, or expense based upon a claim brought against the Officer or ACA arising out of or based upon (i) any action or inaction of the Officer taken in the performance of its duties and obligations under this Agreement so long as such action or inaction of the Officer was taken in accordance with this Agreement, (ii) the breach of any obligation, representation or warranty under this Agreement by the Client, or (iii) The Officer or ACA’s use of any Client Data in accordance with the terms and conditions of this Agreement, except to the extent that the claim resulted from the gross negligence, willful misconduct, or fraudulent behavior of ACA or ACA’s infringement of a third party’s patent, copyright, or trademark.

5.    During the term of this Agreement, and for a period of two (2) years from termination date of this Agreement, each party agrees not to directly or indirectly solicit or hire any employee or agent of the other party. If a party breaches this Section, such party shall promptly pay to the other party, an amount equal to fifty percent (50%) of the annual compensation due to such employee or agent during the most recent 12-month period of employment.