ONRAMP ADVISOR PLATFORM SERVICES AGREEMENT
This Advisor Platform Services Agreement (“Agreement”), governs your and your Authorized User’s (“you” or “Advisor”) use of the Platform Services which are made available to you by Onramp Invest, LLC (“Onramp”). If you are entering into this Agreement on behalf of a legal entity, you represent that you have the authority to bind such entity to this Agreement, in which case the term “you” refers to such entity. Onramp and Advisor are each referred to herein as a “Party,” and together are referred to herein as the “Parties.” BY CLICKING THE “I AGREE”, “I ACCEPT”, “AGREE”, “ACCEPT”, OR “REGISTER” BUTTON AND COMPLETING THE REGISTRATION PROCESS, YOU ACKNOWLEDGE THAT YOU HAVE REVIEWED AND ACCEPT THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT, OR DO NOT HAVE THE AUTHORITY TO BIND THE ENTITY TO THIS AGREEMENT, YOU OR YOUR AUTHORIZED USERS MAY NOT ACCESS OR USE THE PLATFORM SERVICES.
THIS AGREEMENT STATES THAT ANY DISPUTES BETWEEN YOU AND ONRAMP MUST BE RESOLVED IN BINDING ARBITRATION OR SMALL CLAIMS COURT AND THAT YOU WAIVE THE RIGHT TO PARTICIPATE IN ANY CLASS ACTION. YOU MAY OPT OUT OF ARBITRATION AND THE CLASS ACTION WAIVER BY FOLLOWING THE PROCEDURES IN SECTION 15 BELOW.
For good and valuable consideration, the receipt and sufficiency of which the Parties acknowledge, the Parties hereby agree as follows:
1. Subscription Terms.
1.1 Subscription. During the Subscription Term (as defined below), Onramp will provide access to and use of: (i) software made available by Onramp (the “Software”); (ii) any updates and upgrades to such Software made available to Advisor hereunder, and (iii) all hosting, maintenance, and support services related to the Software (collectively (i)-(iii), the “Platform Services”). Subject to the terms and conditions of this Agreement, Onramp hereby grants Advisor during the Subscription Term a limited, non-exclusive, non-transferable (except as permitted under Section 4 below) right and license to permit individuals authorized by Advisor and who are employees, agents, or contractors of Advisor (“Authorized Users”), to access and use the Software as made available by Onramp on its website, in object code only, solely for Advisor’s internal business purposes in accordance with an applicable order form to be provided to Advisor by Onramp via email.
1.2 Documentation. During the Subscription Term, Onramp shall provide Advisor via the Platform Services access to the Documentation, as may be updated from time to time in order to reflect any changes to the Platform Services. Advisor may print copies of, use, and permit its Authorized Users to use, the Documentation solely in connection with the use of the Platform Services, provided that all such copies reproduce the proprietary markings of Onramp in the same form and manner as on the original provided. As used herein, “Documentation” means all documentation (whether in hard copy, electronic, or digital form) including all technical documentation, user instructions, manuals, descriptions, instructions, drawings, file layouts, flow-charts, screen layouts, specifications, and other written materials designed to provide guidance and instruction regarding the operation, maintenance, and use of the Platform Services.
1.3 Free trials. If Advisor registers for a free trial, Onramp will make the applicable Platform Services available to Advisor on a trial basis free of charge until the earlier of (a) the end of the free trial period (if not terminated earlier); or (b) the start date of Advisor’s paid subscription. Unless Advisor purchases a subscription to the applicable Platform Services before the end of the free trial, all Advisor Data (as defined below) in the Platform Services may be permanently deleted at the end of the trial, and 1 152553752.18
Onramp will not recover it. If Onramp includes additional terms and conditions on the trial registration web page, those will apply as well.
2. Eligibility; Account.
2.1 Eligibility. By agreeing to this Agreement you represent and warrant to us: (i) that you have the power and authority to enter into this Agreement; (ii) that you have not previously been suspended, removed or deactivated from the Platform Services; (iii) that you are a legal resident of the United States; and (iv) that your registration and your use of the Platform Services is in compliance with any and all applicable laws and regulations.
2.2 Account Registration. To access the Platform Services, you must create an Onramp account. You agree that the information you provide to Onramp on sign up for an account and at all other times will be true, accurate, current and complete information (“User Information”) and that you will promptly update this information if it changes. You further represent that you are the legal owner of, and that you are authorized to provide Onramp with, all the User Information you provide in connection with the Platform Services.
2.3 Account Credentials. Advisor is solely responsible for the security of any login credentials and/or passwords issued by Onramp. Advisor is responsible for the acts and omissions of its Authorized Users and any other person who accesses and uses the Platform Services using any of Advisor’s or its Authorized Users’ access credentials.
3. Use of Platform Services.
3.1 Restrictions on Use. You agree to use the Platform Services only for lawful purposes. You are prohibited from any use of the Platform Services that would constitute a violation of any applicable law, regulation, rule or ordinance of any nationality, state, or locality or of any international law or treaty, or that could give rise to any civil or criminal liability. You also agree to comply with all applicable laws and regulations governing the use of the Platform Services.
Advisor may use the Platform Services for its internal business purposes only, and except as otherwise expressly provided for in this Agreement, will not sublicense, redistribute, or otherwise allow third parties to use the Platform Services directly or indirectly, whether on a time sharing, remote job entry or service bureau arrangement. Advisor will not (and will not authorize or knowingly permit any third party to): (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, algorithms of the Platform Services, the Software, or any software, documentation or data related to or provided with the Platform Services; (ii) modify, translate, or create derivative works based on the Platform Services or Software; or copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Platform Services or Software, other than in accordance with this Agreement; (iii) use or access the Platform Services to build or support, and/or assist a third party in building or supporting, products or services competitive to Onramp; (iv) knowingly or willfully use the Platform Services in any manner that could damage, disable, overburden, impair or otherwise interfere with Onramp’s provisions of the Platform Services; (v) remove any proprietary notices or labels or restrictive legends placed on the Platform Services, Software or Documentation; or (vi) introduce into the Software any computer virus, Trojan horse, worm, time bomb, or other similar code or hardware component designed to disable, damage, or disrupt the operation of, permit unauthorized access to, erase, destroy, or modify any software, hardware, network, or other technology (“Malicious Code”).
3.2 Prohibited Conduct. You agree not to: 1 152553752.18
(a) Use the Platform Services for any illegal purpose, or in violation of any local, state, national, or international law;
(b) Violate or encourage others to violate the rights of third parties, including intellectual property rights;
(c) Post, upload, or distribute any content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate;
(d) Interfere in any way with security-related features of the Platform Services;
(e) Interfere with the operation or any user’s enjoyment of the Platform Services, including by uploading or otherwise disseminating viruses, adware, spyware, worms, or other malicious code, making unsolicited offers or advertisements to other users, or attempting to collect personal information about users or third parties without their consent;
(f) Access, monitor or copy any content or information of the Platform Services using any robot, spider, scraper, or other automated means or any manual process for any purpose without Onramp’s express written permission;
(g) Perform any fraudulent activity, including impersonating any person or entity, claiming false affiliations, accessing the accounts of other users without permission, or falsifying your identity or any information about you; or
(h) Sell or otherwise transfer the access granted herein.
3.3 Remedies. Onramp reserves the right to take various actions against you if we believe you have engaged in activities restricted by this Agreement or by laws or regulations, and Onramp also reserves the right to take action to protect Onramp, other users, and other third parties from any liability, fees, fines, or penalties. We may take actions including, but not limited to: (i) updating information you have provided to us so that it is accurate; (ii) limiting or completely closing your access to the Platform Services; (iii) suspending or terminating your ability to use the Services on an ongoing basis; (iv) taking legal action against you; and/or (v) holding you liable for the amount of Onramp’s damages caused by your violation of this Agreement.
4.1 Onramp Ownership. As between Onramp and Advisor, Onramp retains all rights, title and interest, including, without limitation, all Intellectual Property Rights, in and to the Platform Services, the Documentation, and any other materials provided by Onramp hereunder, and Advisor shall have no rights with respect to the same other than those license rights expressly granted under this Agreement. As used in this Agreement, “Intellectual Property Rights” mean all intellectual and industrial property rights, whether now existing or existing in the future, including without limitation, (i) all patent rights, including any rights in pending patent applications and any related rights; (ii) all copyrights and other related rights throughout the world in works of authorship, including all registrations and applications therefor; (iii) all trademarks, service marks, trade dress, or other proprietary trade designations, including all registrations and applications therefor; (iv) all rights throughout the world to proprietary know-how, trade secrets, and other Confidential Information, whether arising by law or pursuant to any contractual obligation of non-disclosure; and (v) all other rights covering industrial or intellectual property recognized in any jurisdiction.
4.2 Advisor Data. Except as otherwise permitted in this Agreement, as between Onramp and Advisor, Advisor retains all rights, title, and interest, including, without limitation, all Intellectual Property Rights, in and to any Advisor data or Advisor data files of any type that are uploaded by or on behalf of 1 152553752.18
Advisor to the Platform Services (“Advisor Data”), and determines the purposes and means of the processing of Advisor Data. Advisor hereby grants to Onramp a non-exclusive, worldwide, royalty-free right to use, copy, store, transmit, modify, create derivative works of, and display the Advisor Data solely to the extent necessary to provide the Platform Services to Advisor under this Agreement or as otherwise permitted under this Agreement. Advisor will ensure that its collection, use, disclosure and general handling of Advisor Data is at all times compliant with this Agreement, Advisor’s privacy policies, and all applicable local, state, federal and international laws, regulations and conventions, including, without limitation, those related to data security, privacy, and cross-border data transfers. Advisor is solely responsible for the accuracy, content, and legality of all Advisor Data. Advisor represents and warrants to Onramp that: (i) Advisor has sufficient rights in the Advisor Data to grant the rights granted to Onramp in this Section 4.2 and 4.3 below; and (ii) that the Advisor Data does not infringe or violate the intellectual property, publicity, privacy, or other rights of any third party.
4.3 Aggregate Data. Advisor hereby grants Onramp a non-exclusive, irrevocable, perpetual and non-terminable, royalty-free, worldwide, and sublicensable license to use Advisor Data in order to create, and use, any statistical and other information and data transmitted, derived or gathered in connection with the Platform Services or Advisor’s use of the Platform Services, to create an anonymized version or versions of such information and data (the “Aggregate Data”) and to disclose and otherwise use the Aggregate Data for any purpose including data and market analysis and aggregation, general reporting, and Platform Services optimization. Onramp shall own all rights, title and interest, including all Intellectual Property Rights, in and to this Aggregate Data that it creates or derives from the Advisor Data. Notwithstanding anything in this Section 4.3 to the contrary: (i) in no event shall Aggregate Data contain any personally identifiable information; and (ii) in no event will the Aggregate Data contain any information that identifies Advisor or Advisor’s customers.
4.4 Authorizations. Advisor is solely responsible for and shall ensure that its use of the Platform Services complies with applicable laws and regulations, including but not limited to obtaining any required notices or consent required for its use of custodian partners, integration providers, or other authorized third parties acting on behalf of Advisor and that such required notices or consent are provided in a timely manner in order for Onramp to have all access to Advisor Data, including any personally identifiable information necessary for Onramp to provide the Platform Services.
5. Fees, Taxes and Payment.
5.1 Fees. In exchange for the rights provided to Advisor herein, Advisor shall pay Onramp the fees due to Onramp for the Platform Services as set forth on the pricing page presented or provided to Advisor by Onramp at the time of sign-up to a subscription plan (the “Fees Page”). In addition to fees for the Platform Services, if Advisor elects to subscribe to additional features or add-ons (such as Trade-enabled functionality or Read-only functionality for Advisor’s investors), Advisor will be charged additional fees in accordance with the Fees Page. For fees that are charged annually (as set forth on the Fees Page), the fees will be paid at the time Advisor signs up for the applicable annual subscription plan for the Subscription Term. Advisor will be automatically charged as set forth in Section 5.3 below annually beginning on the 1st anniversary of the subscription start date. For any Advisor accounts with Trade-enabled functionality that are transaction based for transactions incurred during the Subscription Term, Onramp will charge Advisor as set forth in Section 5.3 below monthly based on the number of transactions in the prior month.
5.2 Taxes. All amounts payable under this Agreement are exclusive of sales and use taxes, value added taxes, and all other taxes and duties (except for any taxes on Onramp’s net income, which shall be paid by Onramp), the costs of which such taxes and duties shall be invoiced by Onramp and paid 1 152553752.18
by Advisor in accordance with Section 5.3. If the Advisor is required by applicable law to pay such taxes, Advisor will be responsible for paying all such taxes.
5.3 Payments. Advisor shall pay all fees owed to Onramp in accordance with the Fees Page and the terms and conditions located on the Onramp website, as may be amended from time to time in Onramp’s sole discretion. By entering your payment information to pay Onramp you authorize us and our third-party payment processors to charge the amount owed to Onramp to your payment instrument on file. Onramp will make reasonable efforts to notify you if we are unable to charge your payment instrument, but you are responsible for paying all amounts owed. Failure to make timely payment could result in you losing access to the Platform Services pursuant to Section 4.4. You acknowledge and understand that third-party payment processors may require you to agree to additional terms and conditions from those payment processors to make payments to Onramp. Past due balances may be subject to interest equal to or lower of one and one-half percent (1 ½%) per month or the maximum rate allowed by law. Except as otherwise expressly provided in this Agreement, Advisor shall not be entitled by reason of any set-off, counter-claim, or other similar deduction to withhold payment of any amount due to Onramp. Advisor will be liable to Onramp for all reasonable costs of third party collection activity, including attorneys’ fees, resulting from Advisor’s past due account.
5.4 Suspension for Non-Payment. Onramp may elect to suspend Advisor’s access to the Platform Services if Advisor fails to make payment of fees to Onramp when due until such fees due are paid in full.
6.1 Confidential Information. “Confidential Information” means each Party’s business and technical information in any form, including without limitation, intellectual property, Advisor Data, business and marketing plans, strategies, sales, product and financial data and projections, processes, techniques, trade secrets, know how, inventions, processes (business, technical, or other), designs, algorithms, source code, customer lists, and the terms of this Agreement. Confidential Information does not include information or data which is: (i) known to the Party receiving Confidential Information under this Agreement (the “Receiving Party”) prior to its receipt from the other Party (the “Disclosing Party”) without a limitation or obligation of confidentiality under another agreement; (ii) independently developed by the Receiving Party without use of any Confidential Information; (iii) generally known to the public at the time of disclosure other than as a result of disclosure by the Receiving Party; or (iv) received from a third party with a legal or contractual right to disclose such information or data.
6.2 Use and Disclosure of Confidential Information. The Receiving Party, shall, with respect to any Confidential Information of the Disclosing Party: (i) use such Confidential Information only in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; (ii) subject to Section 6.4 below, restrict disclosure of such Confidential Information within the Receiving Party’s organization to only those employees, agents and contractors of the Receiving Party who have a need to know such Confidential Information in connection with the Receiving Party’s performance of its obligations and exercise of its rights under this Agreement; and (iii) except as expressly contemplated under the preceding clause (ii), not disclose such Confidential Information to any third party unless authorized in writing by the Disclosing Party to do so.
6.3 Protection of Confidential Information. The Receiving Party shall protect the confidentiality of any Confidential Information disclosed by the Disclosing Party using at least the degree of care that it uses to protect its own confidential information (but no less than a reasonable degree of care). 1 152553752.18
6.4 Compliance by Personnel. The Receiving Party shall, prior to providing any employee, agent, or contractor access to any Confidential Information of the Disclosing Party, inform such employee, agent, or contractor of the confidential nature of such Confidential Information and require such employee, agent or contractor to comply with the Receiving Party’s obligations hereunder with respect to such Confidential Information. The Receiving Party shall be responsible to the Disclosing Party for any violation of this Section 6 by any such employee or consultant.
6.5 Required Disclosures. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Section. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to insure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
6.6 Irreparable Injury. Each Party acknowledges that the other Party may be irreparably harmed by any breach of this Section 6, and agrees that such other Party may seek an injunction and/or any other equitable relief necessary to prevent or cure any actual or threatened breach thereof, without the necessity of posting a bond or other security. The preceding sentence shall in no way limit any other legal or equitable remedy, including monetary damages, the non-breaching Party would otherwise have.
7. Security and Data Protection.
7.1 Security. During the Subscription Term, Onramp will maintain commercially reasonable security procedures and practices appropriate to the nature of the information to protect Advisor Data from unauthorized access and exfiltration, theft, or disclosure.
7.2 Data Processing. Except for Aggregate Data, Onramp processes personal information contained in Advisor Data solely in its role as a “service provider,” “processor,” or other like terms as may be defined by and in accordance with applicable data privacy and security laws.
8. Term and Termination.
8.1 Term of Agreement. The term of this Agreement begins on the Effective Date and will continue until terminated in accordance with Section 8.3 below (the “Term”).
8.2 Subscription Term. The term of the subscription shall be as specified to Advisor in the applicable subscription plan or as made available by Onramp on its website (“Subscription Term”). Unless this Agreement is terminated in accordance with the terms of this Agreement or unless otherwise provided for in an order form (a) Advisor’s subscription to a subscription plan (including any and all add-on services or functionality) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term; and (b) the fees applicable to that subscription plan for any subsequent Subscription Term shall be as set forth on the Fees Page for the applicable subscription plan and any add-on services or functionality at the time such subsequent Subscription Term commences. Advisor may choose to cancel its subscription plan early for convenience provided that, Onramp will not provide any refunds of prepaid fees or unused fees for subscription plans, and Advisor will promptly pay all unpaid fees due through the end of the Subscription Term.
8.3 Termination. This Agreement may be terminated: 1 152553752.18
(a) By either Party upon thirty (30) days prior, written notice to the other Party if the other Party materially breaches this Agreement and either that breach is incapable of remedy, or the breaching Party fails to remedy that breach within a thirty (30) day period after receiving written notice thereof;
(b) By either Party immediately if the other Party is insolvent or has a petition brought by or against it under the insolvency laws of any jurisdiction; if the other Party makes a general assignment for the benefit of creditors; if the other Party has been dissolved, wound up, or liquidated; if a receiver, trustee, or similar agent is appointed with respect to any substantial portion of the property or business of the other Party; or
(c) By Advisor on thirty (30) days’ written notice if Onramp ceases carrying on or disposes of its business or a material part of its business, in which case Advisor shall have the right to receive a pro-rata refund of the fees paid under this Agreement for the terminated portion of the Subscription Term;
8.4 Termination/Suspension by Onramp. Without limiting other remedies, Onramp may immediately terminate or suspend your access to and/or use of the Platform Services and remove, subject to any regulatory retention requirements, any material from the Platform Services or our servers, in the event that you breach this Agreement. Notwithstanding the foregoing, Onramp reserves the right to terminate, limit or suspend your access to or use of the Platform Services at any time and for any reason or no reason, including: (i) where we determine in our sole discretion that such action is reasonable in order to comply with legal requirements or to protect the rights or interests of Onramp or any third party; or (ii) in connection with any general discontinuation of the Platform Services. We will have no liability whatsoever on account of suspension or revocation of your access to or use of the Platform Services.
8.5 Effect of Termination or Expiration. In the event of any termination or expiration of this Agreement: (i) Advisor shall pay Onramp for all amounts payable hereunder as of the effective date of termination or expiration; (ii) all rights and licenses granted hereunder to Advisor shall immediately cease, and Advisor and its Authorized Users shall immediately cease all access to and usage of the Platform Services and the Documentation; and (iii) each Receiving Party (as defined below) shall either return to the Disclosing Party (as defined below), or, at the Disclosing Party’s direction, destroy all documents, computer files, and other materials containing any Confidential Information of the Disclosing Party that are in the Receiving Party’s possession, custody, or control; provided, however, that each Receiving Party may keep a copy of such Confidential Information for legal and/or regulatory purposes and/or as part of any electronic archival back-up system.
8.6 Survival. The following provisions shall survive any termination or expiration of this Agreement: Section 3 (“Use of Platform Services”), Section 4 (“Ownership”), Section 5 (“Fees, Taxes and Payment”) until all monies due have been paid in full, Section 7 (“Confidentiality”), Section 8 (“Term and Termination”), Section 9.2 (“Warranty Disclaimer”), Section 10 (“Indemnification”), Section 11 (“Limitation of Liability”), Section 15 (“Dispute Resolution; Binding Arbitration”), and Section 16 (“General Provisions”).
9. Representations Warranties, and Remedies.
9.1 Mutual Representations and Warranties. Each Party represents and warrants that: (i) this Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of this Agreement; and (ii) the execution and delivery of this Agreement by it and the performance of its obligations and exercise of its rights hereunder: (a) will not conflict with or violate any applicable law; or (b) are not in violation or breach of, and will not conflict with or constitute a default under, any contract, agreement, or commitment binding upon it, including, without limitation, any non-1 152553752.18
disclosure, confidentiality, non-competition, or other similar agreement. Additionally, Onramp represents and warrants that to Onramp’s knowledge, after reasonable inquiry consistent with standard industry practices, the Software, as provided to Advisor, does not contain any Malicious Code.
9.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 9.1, THE PLATFORM SERVICES, THE SOFTWARE, THEIR COMPONENTS, ANY UPDATES, ANY UPGRADES, THE DOCUMENTATION, AND ANY OTHER MATERIALS PROVIDED HEREUNDER, ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND NEITHER PARTY MAKES ANY WARRANTIES IN CONNECTION WITH THIS AGREEMENT AND HEREBY DISCLAIMS ANY AND ALL IMPLIED OR STATUTORY WARRANTIES, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, ERROR-FREE OR UNINTERRUPTED OPERATION, ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, RELATED TO THE AVAILABILITY, PERFORMANCE, SECURITY, RELIABILITY, ACCURACY, USEFULNESS, SUITABILITY, OR COMPLETENESS OF INFORMATION, CONTENT, PRODUCTS AND SERVICES PROVIDED ON OR THROUGH THE PLATFORM SERVICES OR IN ANY OTHER ORAL OR WRITTEN FORM. WITHOUT LIMITING THE FOREGOING, USER SPECIFICALLY ACKNOWLEDGES THAT ONRAMP MAKES NO WARRANTY THAT THE SERVICES WILL MEET CUSTOMER REQUIREMENTS OR BE ERROR-FREE OR WITHOUT INTERRUPTION OR THAT ERROR WILL BE CORRECTED. ONRAMP DOES NOT WARRANT THAT THE PLATFORM SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR ANY BREACH OF SECURITY ASSOCIATED WITH THE TRANSMISSION OF SENSITIVE INFORMATION THROUGH THE PLATFORM SERVICES OR ANY LINKED WEBSITE. EACH USER OF THE PLATFORM SERVICES IS RESPONSIBLE FOR EVALUATING THE ACCURACY, COMPLETENESS AND USEFULNESS OF ANY INFORMATION PROVIDED. ONRAMP WILL NOT BE RESPONSIBLE FOR ANY DETRIMENTAL RELIANCE THAT A USER MAY PLACE UPON THE PLATFORM SERVICES OR ITS CONTENTS.
CRYPTOCURRENCIES, VIRTUAL CURRENCIES, AND DIGITAL TOKENS AND BY EXTENSION THE PROVISION OF THE PLATFORM SERVICES MAY BE SUBJECT TO A VARIETY OF FEDERAL, STATE AND INTERNATIONAL LAWS AND REGULATIONS. THESE LAWS AND REGULATIONS, AND THE INTERPRETATION OR APPLICATION OF THESE LAWS AND REGULATIONS, COULD CHANGE AND ONRAMP EXPRESSLY DISCLAIMS ALL LIABILITY THEREWITH.
YOUR ACCESS TO AND USE OF THE PLATFORM SERVICES UNDER THIS AGREEMENT IS FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO PROVIDE, OFFER OR RENDER INVESTMENT, TAX, LEGAL, OR FINANCIAL PLANNING ADVICE. BEFORE MAKING FINANCIAL OR INVESTMENT DECISIONS, ONRAMP RECOMMENDS THAT USERS CONTACT AN INVESTMENT, FINANCIAL, TAX OR LEGAL PROFESSIONAL. USERS AGREE THAT THE PLATFORM SERVICES ARE ONLY A TOOL THE USER MAY ACCESS AS PART OF USER’S COMPREHENSIVE INVESTMENT EDUCATIONAL PROCESS, AND USER ACKNOWLEDGES THAT USER WILL NOT RELY ON THE PLATFORM SERVICES AS THE PRIMARY BASIS FOR USER’S FINANCIAL DECISIONS. EXCEPT AS OTHERWISE SET FORTH IN THIS AGREEMENT, ONRAMP IS NOT LIABLE FOR USER’S FINANCIAL DECISIONS OR ANY DECISIONS OR ACTIONS USER TAKES OR AUTHORIZES THIRD PARTIES TO TAKE ON USER’S BEHALF BASED ON USERS ACCESS TO, USE OF, OR INFORMATION OBTAINED FROM THE PLATFORM SERVICES.
NOTHING ON THE PLATFORM SERVICES CONSTITUTES AN OFFER, SOLICITATION OF AN OFFER, OR ADVICE TO BUY OR SELL SECURITIES, OR ANY FINANCIAL INSTRUMENT OR INVESTMENT BY ONRAMP. THE CONTENT ON THE PLATFORM SERVICES IS FOR INFORMATIONAL PURPOSES ONLY AND ONRAMP DOES NOT REPRESENT THAT THE PRODUCTS OR SERVICES DESCRIBED ON THE PLATFORM SERVICES ARE SUITABLE FOR ANY SPECIFIC INVESTOR OR AVAILABLE IN ALL LOCATIONS.
10.1 Indemnification by Onramp. Subject to Section 10.2, Onramp shall defend, indemnify, and hold harmless Advisor and its officers, directors, managers, and employees from any and all liabilities, losses, fines, penalties, costs, and expenses, including reasonable attorneys’ fees (collectively, “Losses”) incurred by them in connection with any claim, action, or proceeding asserted or made by or on behalf of a third party or which result from or arise out of any governmental action (each, a “Claim”) alleging that the use of the Platform Services in accordance with this Agreement infringes, violates, or misappropriates any third-party copyrights, patents, or trademarks registered in the United States.
10.2 Exceptions to Onramp Indemnification Obligations. Onramp shall not be obligated to indemnify, defend, or hold harmless the parties set forth in Section 10.1 to the extent that the Claim arises from: (i) use of the Platform Services in combination with modules, apparatus, hardware, software, technologies or services not provided by Onramp; (ii) use of the Platform Services that violates this Agreement or any applicable law; or (iii) the alteration or modification of the Platform Services by anyone other than Onramp.
10.3 Infringement Claims. In the event that Onramp reasonably determines that the Platform Services are likely to be the subject of a Claim of infringement, violation, or misappropriation of third-party rights, Onramp shall have the right (but not the obligation), at its own expense and option, to: (i) procure for Advisor the right to continue to use the Platform Services as set forth hereunder; (ii) replace the infringing components of the Platform Services with other components with the same or similar functionality; or (iii) suitably modify the Platform Services so that they are non-infringing. If none of the foregoing options is available to Onramp on commercially reasonable terms, Onramp may terminate this Agreement and promptly provide Advisor with a pro-rata refund of any pre-paid, but unused, subscription fees, without further liability to Advisor. This Section 10.3, together with the indemnity provided under Section 10.1, states Advisor’s sole and exclusive remedy, and Onramp’s sole and exclusive liability, regarding infringement, violation, or misappropriation of any Intellectual Property Rights of a third party.
10.4 Indemnification by Advisor. Advisor shall defend, indemnify, and hold harmless Onramp and its officers, directors, managers, and employees from any and all Losses incurred by them in connection with any Claim arising from: (i) Advisor’s negligence or willful misconduct; (ii) any provision of Advisor’s services to Advisor’s customers, including but not limited to, Advisor’s conduct in connection with the Platform Services or any third-party services provided as part of the Platform Services; (iii) Advisor’s violation of applicable law or this Agreement; (iv) Advisor’s access to or use of the Platform Services; (v) any disputes or issues between Advisor and any third party; or (vi) Advisor’s breach of this Agreement.
10.5 Procedure for Handling Indemnification Claims. In the event of any Claim for which indemnification is available, the indemnified Party shall give prompt written notice of any such Claim to the indemnifying Party; provided, however, that the failure of the Party seeking indemnification to give timely notice hereunder shall only limit the indemnifying Party’s indemnification obligation to the extent such delay materially prejudices the defense of such Claim. The indemnifying Party shall have the right to control and direct the defense and settlement of each such Claim. The indemnified Party shall reasonably cooperate with the indemnifying Party (at the indemnifying Party’s sole cost and expense) in connection with the foregoing. The indemnified Party may participate in the defense of the Claim with counsel of its own choosing, at its own cost and expense. The indemnifying Party shall not enter into any settlement or resolution of any Claim that would impose any requirement upon the indemnified Party, without the indemnified Party’s prior written consent.
11. Limitation of Liability.
EXCEPT FOR CLAIMS RELATED TO ONRAMP’S FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, (I) IN NO EVENT WILL ONRAMP BE LIABLE TO ADVISOR OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, EVEN IF 1 152553752.18
ONRAMP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND (II) IN NO EVENT WILL ONRAMP’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT OF THE FEES PAID TO ONRAMP BY ADVISOR DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE ON WHICH THE CLAIM ARISES.
Advisor, at its sole cost and expense, will maintain in effect at all times during the rendering of services all the insurance required by law, and consistent with best industry practices based on the services to be performed. All policies maintained by Advisor will be written as primary policies.
13. Notices and Communications.
You acknowledge and agree that Onramp will provide certain disclosures, notices and communications (collectively “Communications”) to you in electronic form. Communications shall be deemed to be received by you upon delivery in the following manner: (i) posting them on or in the Site; (ii) sending them via electronic mail to the email address you used to register or have on file with Onramp; or (iii) otherwise communicating them to you via the Platform Services.
14. Force Majeure.
Neither Party shall be liable for any failure or delay in the performance of its obligations under this Agreement to the extent such failure or delay or both is caused, directly or indirectly, without fault by such Party, by any reason beyond its reasonable control, including but not limited to, fire, flood, earthquake, elements of nature or acts of God, acts of state, acts of war, terrorism, riots, civil disorders, rebellions, revolutions, quarantines, embargoes, and other similar governmental action (each a “Force Majeure Event”).
15. Dispute Resolution; Binding Arbitration.
15.1 No Representative Actions. Advisor and Onramp agree that any dispute arising out of or related to this Agreement or the Platform Services is personal to Advisor and Onramp and that any dispute will be resolved solely through individual action, and will not be brought as a class arbitration, class action or any other type of representative proceeding.
15.2 Arbitration of Disputes. Except for small claims disputes in which Advisor or Onramp seeks to bring an individual action in small claims court located in the county of Advisor’s billing address or disputes in which Advisor or Onramp seeks injunctive or other equitable relief for the alleged infringement or misappropriation of intellectual property, Advisor and Onramp waive their rights to a jury trial and to have any other dispute arising out of or related to this Agreement or the Platform Services, (collectively, “Disputes”) resolved in court. Instead, for any Dispute that Advisor has against Onramp, Advisor agrees to first contact Onramp and attempt to resolve the claim informally by sending a written notice of the claim (“Notice”) to Onramp by certified mail addressed to Onramp Invest, Attention: Legal Department, 402 W. Broadway Ave., Suite 920, San Diego, CA 92101. The Notice must: (i) include Advisor’s name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Dispute; and (iii) set forth the specific relief sought. Onramp’s notice to Advisor will be similar in form to that described above. If Advisor or Onramp cannot reach an agreement to resolve the Dispute within thirty (30) days after such Notice is received, then either Party may submit the Dispute to binding arbitration administered by JAMS or, under the limited circumstances set forth above, in court. All Disputes submitted to JAMS will be resolved through confidential, binding arbitration before one arbitrator. Arbitration proceedings will be held in County of San Diego, California. Advisor and Onramp agree that Disputes will be held in accordance with the JAMS Streamlined Arbitration Rules and Procedures (“JAMS Rules”). The most recent version of the JAMS Rules are available on the JAMS website and are hereby incorporated by reference. Advisor either acknowledges and agrees that it has read and understand the JAMS Rules or waives its opportunity to read the JAMS Rules and waives any claim that the JAMS Rules are unfair or should not apply for any reason. 1 152553752.18
15.3 Advisor and Onramp agree that this Agreement affects interstate commerce and that the enforceability of this Section 15.2 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq. (the “FAA”), to the maximum extent permitted by applicable law. As limited by the FAA, this Agreement and the JAMS Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. The arbitrator may conduct only an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
15.4 The arbitration will allow for the discovery or exchange of non-privileged information relevant to the Dispute. The arbitrator, Onramp, and Advisor will maintain the confidentiality of any arbitration proceedings, judgments and awards, including information gathered, prepared and presented for purposes of the arbitration or related to the Dispute(s) therein. The arbitrator will have the authority to make appropriate rulings to safeguard confidentiality, unless the law provides to the contrary. The duty of confidentiality does not apply to the extent that disclosure is necessary to prepare for or conduct the arbitration hearing on the merits, in connection with a court application for a preliminary remedy or in connection with a judicial challenge to an arbitration award or its enforcement, or to the extent that disclosure is otherwise required by law or judicial decision.
15.5 Advisor and Onramp agree that the state or federal courts of the State of California and the United States sitting in County of San Diego, California have exclusive jurisdiction over any appeals and the enforcement of an arbitration award.
15.6 Any Dispute must be filed within one year after the relevant claim arose; otherwise, the Dispute is permanently barred, which means that Advisor and Onramp will not have the right to assert the claim.
15.7 Advisor has the right to opt out of binding arbitration within 30 days of the date Advisor first executed this Agreement by sending written notice via certified mail addressed to Onramp Invest, Attention: Legal Department, 402 W. Broadway Ave., Suite 920, San Diego, CA 92101. In order to be effective, the opt-out notice must include Advisor’s legal name and address, reference this Agreement, and clearly indicate Advisor’s intent to opt out of binding arbitration. By opting out of binding arbitration, Advisor is agreeing to resolve Disputes in accordance with Section 16.1.
15.8 If any portion of this Section 15.2 is found to be unenforceable or unlawful for any reason, (i) the unenforceable or unlawful provision shall be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Section 15.2 or the Parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 15.2; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the Parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 15.2 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 15.2 will be enforceable.
16. General Provisions.
16.1 Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Onramp must be filed within one year after such claim arose; otherwise, your claim is permanently barred. 1 152553752.18
16.2 Governing Law and Venue. Any action, Claim, or dispute related to the Agreement will be governed by California law, excluding its conflicts of law provisions, and controlling U.S. federal law. Onramp waives any objections against and expressly agrees to submit to the personal jurisdiction of the Municipal and/or Superior Courts of the State of California, County of San Diego, and the U.S. District Court for the Southern District of California. Onramp hereby waives the right to raise any objection or defense it may have based upon an inconvenient forum. The Uniform Computer Information Transactions Act will not apply to the Agreement. In any action or proceeding to enforce rights under the Agreement, the prevailing Party will be entitled to recover costs and attorneys’ fees. The failure of either Party to enforce any right or provision in the Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such Party in writing. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect.
16.3 Assignment. Advisor shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior, written consent of Onramp. Onramp may assign or otherwise transfer this Agreement: (i) to any of its affiliates; or (ii) in connection with a change of control transaction (whether by merger, consolidation, sale of equity interests, sale of all or substantially all assets, or otherwise). Any assignment or other transfer in violation of this Section shall be null and void. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
16.4 Publicity. Onramp may refer to Advisor as a customer of Onramp for Onramp’s marketing purposes.
16.5 Change of Terms. Onramp may revise this Agreement at any time, and therefore you should check this Agreement from time to time. Onramp may notify you of any changes as set forth in Section 13. Your continued access or use of the Platform Services indicates your agreement to be bound by any such revisions.
16.6 No Waiver. The rights and remedies of the Parties to this Agreement are cumulative and not alternative. No waiver of any rights is to be charged against any Party unless such waiver is in writing signed by an authorized representative of the Party so charged. Neither the failure nor any delay by any Party in exercising any right, power, or privilege under this Agreement shall operate as a waiver of such right, power, or privilege, and no single or partial exercise of any such right, power, or privilege shall preclude any other or further exercise of such right, power, or privilege or the exercise of any other right, power, or privilege.
16.7 No Third-Party Beneficiaries. The Parties agree that nothing in this Agreement will be construed to create a partnership, joint venture, franchise, or employee-employer relationship among the Parties. Onramp will perform the Platform Services as an independent contractor. Neither Party is an agent of the other, and neither is authorized to make any representation, contract or commitment on behalf of the other unless specifically requested or authorized to do so in writing by the other. No person not a party to this Agreement is an intended beneficiary of this Agreement, and no Authorized User or any other person not a party to this Agreement will have any right to enforce any term of this Agreement.
16.8 Modifications; No Contingency for Future Commitments. Onramp may, in its sole discretion, modify the Platform Services from time to time by adding, deleting, or modifying features for the purpose of maintaining or improving security, ensuring optimal performance, meeting standard industry business requirements, and adding or improving functionality. Onramp reserves the right to make such changes without prior notification to Advisor. Unless otherwise expressly agreed by the Parties in writing, Advisor agrees that payment of the fees under this Agreement is not contingent on the delivery of any future Platform Services functionalities or features or any other future commitments, except as expressly set forth in this Agreement.
16.9 Entire Agreement and Severability. This Agreement, together with the orders, exclusively and completely states the rights, duties and obligations of the Parties and supersedes all prior and contemporaneous representations, letters, proposals, discussions and understandings by or between the Parties. If any provision of this Agreement is for any reason found to be unenforceable, the remainder of this Agreement will continue in full force and effect.
16.10 Independent Relationship. No joint venture, partnership, employment, or agency relationship exists between Onramp and Advisor as a result of the Agreement or use of the Platform Services.
16.11 E-sign. Visiting the Platform Services, sending us emails, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and through the Platform Services, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE PLATFORM SERVICES. You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.