BLACKLOGIX SERVICE AGREEMENT
This BlackLogix Service Agreement (“Agreement”) is effective as of 24NOV2021 (“Effective Date”) by and between CircleBlack, Inc., a Delaware corporation (“CIRCLEBLACK”), with its principal office at 100 Horizon Center Blvd., Hamilton, NJ 08691, and (“PURCHASER”), with its principal office at
WHEREAS, CIRCLEBLACK, has developed proprietary software and procedures for a service that helps investors to aggregate their investment accounts, understand their wealth and interact with their advisors, and an advisor dashboard, alerting capability and a retirement monitoring capability along with a set of integrated partner services, detailed in Schedule B, known in aggregate as the “BlackLogix Service”;
WHEREAS, PURCHASER desires to make the BlackLogix Service available to PURCHASER’s advisors and clients;
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants herein contained, the parties agree as follows:
3.1 Ownership. CIRCLEBLACK retains all rights, title and interest, on an exclusive basis, in (i) the BlackLogix Service, as well as any enhancements, additions or modifications thereto; and (ii) CircleBlack Intellectual Property. For purposes of this Agreement, “Intellectual Property” is defined as any intellectual property or proprietary rights, including, but not limited to, copyrights, moral rights, trademarks (trade names and service marks), patents (including patent applications) and trade secrets. No work or service performed or provided by CircleBlack or its agents hereunder or pursuant hereto shall be deemed a “work for hire.”
3.2 Restrictions. PURCHASER shall not: (a) reverse engineer, disassemble, decompile or otherwise attempt to derive source code from the BlackLogix Service; (b) make available or permit the use of the BlackLogix Service to or for any third parties, except as may be expressly permitted in this Agreement; (c) modify, adapt, translate, author, or otherwise conceive, create or implement derivative works based on the BlackLogix Service; (d) reproduce or duplicate any portion of the BlackLogix Service, except as may be expressly permitted in this Agreement; or (e) permit or authorize any party to do any of the foregoing.
Page 1 of 15 11365871_3
Nothing herein shall prohibit PURCHASER from retaining and using data related to its clients during and after the term of this Agreement.
4.1 Term. The initial term of this Agreement commences on the Effective Date and continues until the third (3rd) anniversary of the Effective Date.
4.2 Renewal The term of this Agreement will automatically renew and be extended for three (3) additional years, commencing on the last day of the immediately preceding expiration date, unless earlier terminated as expressly permitted herein, or unless one party notifies the other party in writing of cancellation not less than sixty (60) days prior to the expiration date.
4.2 Suspension. If PURCHASER fails to pay any invoiced amounts (other than any portion of an invoice that is subject to a bona fide dispute) within thirty (30) days of date of invoice, without limitation of its other remedies hereunder, CIRCLEBLACK may, at its option and in its sole discretion, suspend in whole or in part, provision of the BlackLogix Service to PURCHASER, and furthermore shall be excused from and relieved of all of CIRCLEBLACK’s obligations under this Agreement.
4.3 Termination for Breach. Either party may terminate this Agreement in the event of a material breach of this Agreement by the other party, provided that the nonbreaching party has provided written notice to the other party of the material breach, describing the breach in reasonable detail, and such breach remains uncured for a period of (i) five (5) days with respect to a monetary or payment breach, or (ii) thirty (30) days with respect to a non-monetary breach. Upon termination, the provisions of this Agreement intended to survive termination shall survive and otherwise the parties shall have no further obligations to one another; provided however, that upon a termination by CIRCLEBLACK (i.e. a breach or wrongful termination by PURCHASER), PURCHASER shall be liable to CIRCLEBLACK for an amount (the “Early Termination Fee”) equal to the product of (i) the “high water mark” of all monthly invoiced amounts preceding the date of termination, and (ii) the number of months remaining in the term of this Agreement as of the date of termination. For purposes hereof, the “high water mark” means and refers to the highest monthly invoiced amount. PURCHASER shall pay the Early Termination Fee to CIRCLEBLACK within thirty (30) days of the termination date. PURCHASER acknowledges and agrees that the Early Termination Fee is a fair, equitable and reasonable estimation, determination and liquidation of the damages suffered by CIRCLEBLACK upon any such early termination of this Agreement and does not constitute a penalty.
5.1 Monthly Charge. PURCHASER shall pay to CIRCLEBLACK a monthly fee as set forth in Schedule A attached hereto and made a part hereof. With respect to such monthly charges, PURCHASER shall raise any concern, objection or dispute in writing within ten (10) business days from the date of the invoice, time being of the essence, or the invoice shall be deemed to be valid and correct, absent manifest error.
5.2 Payment due. Full payment is due within thirty (30) days of the invoice date, except for any bona fide disputed amounts identified in a timely notice to CIRCLEBLACK in accordance with Section 5.1.
5.3 Taxes. Amounts payable by PURCHASER under this Agreement are payable in full without offset or deduction for taxes (including any withholding tax) or custom duty. In addition, PURCHASER shall be solely responsible for and shall pay any taxes on or with respect to the provision of the BlackLogix Service (including sales, use, value-added and similar transaction taxes); and PURCHASER shall indemnify, defend and hold harmless CIRCLEBLACK from and against any third party claims, liabilities, damages, losses, costs, expenses, including reasonable attorneys’ fees, suffered or incurred by CIRCLEBLACK in connection with or arising from PURCHASER’s failure to pay and discharge its obligation to pay taxes, including without limitation, by reason of any proceeding initiated against CIRCLEBLACK by any taxing authority or other similar governing or authoritative agency or body.
5.4 Interest; Collection Costs. Interest will accrue on amounts past due at the lesser of twelve percent (12%) per annum or the maximum interest rate permitted by applicable law. In any proceeding brought by CIRCLEBLACK to collect amounts due, CIRCLEBLACK shall have the right to recover and PURCHASER shall pay to CIRCLEBLACK its actual costs of collection, including reasonable attorneys’ fees.
Page 2 of 15 11365871_3
5.5 Invoices. PURCHASER will be invoiced by CircleBlack on a monthly basis as set forth in Schedule A.
7.1 Definition of Confidential Information. “Confidential Information” means any and all non-public, confidential information and materials disclosed or made available by or through either party (each, a “Disclosing Party”), whether in writing, electronically, orally or by another means, to the other party or its Representatives (defined below) (each, a “Recipient”) including, without limitation: (i) information expressly or implicitly marked or disclosed as confidential, including, without limitation, any information regarding PURCHASER’s clients, all forms and types of financial, business, scientific, technical, economic, or engineering information including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs or codes, whether tangible or intangible, and whether or how stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing; (ii) information customarily recognized as proprietary trade secrets; and (iii) all embodiments or copies of any of the foregoing or any analyses, studies or reports that contain, are based on, or reflect any of the foregoing.
7.2 Duties. At all times the Recipient shall protect and preserve the Confidential Information as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care). The Recipient may disclose, distribute or disseminate the Confidential Information to any of its officers, directors, members, managers, partners, employees, agents or other persons (its “Representatives”) provided that the Recipient reasonably believes that those Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Recipient shall not disclose, distribute or disseminate, the Confidential Information to any third party, nor use for any unauthorized purpose any Confidential Information, without the express prior written consent of the Disclosing Party. The Recipient shall at all times remain responsible for any violations of this Agreement by any of its Representatives.
7.3 Return of Confidential Information. Promptly following the request of the Disclosing Party, the Recipient and its Representatives shall return to the Disclosing Party, or, at the Disclosing Party’s option, destroy all materials that are in written, electronic or other tangible form (including, without limitation, all written or printed documents, notes, memorandum, email, computer disks or tapes (whether machine or user readable), or computer memory, (whether or not prepared by Recipient) that contain, summarize or abstract any portion of the Confidential Information, including, without limitation, all copies, extracts and derivations of such materials. In addition, upon the request of the Disclosing Party, the Recipient shall certify to the Disclosing Party in writing the Recipient’s and its Representatives’ compliance with its obligations pursuant to this Section 7.
7.4 Ownership of Confidential Information. The Recipient acknowledges and agrees that, as between the Recipient and the Disclosing Party, the Confidential Information, together with all intellectual property rights embodied therein (including, but not limited to, all patent rights, inventions (whether patentable or not), concepts, ideas, algorithms, formulae, processes, methods, techniques, copyrights, copyrightable works, trade secrets, know-how, and trademarks), are the sole and exclusive property of the Disclosing Party. The Disclosing Party shall retain all rights and title to all proprietary rights in the Confidential Information and to any other intellectual property owned or otherwise provided by the Disclosing Party.
7.5 Exclusions from the Definition of “Confidential Information”. The term “Confidential Information” does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by the Recipient or its Representatives (or any person to whom the Recipient or its Representatives disclosed such information); (b) was known by the Recipient prior to its disclosure by the
Page 3 of 15 11365871_3
Disclosing Party; (c) was independently developed by Recipient without use of the Confidential Information; or (d) becomes available to the Recipient on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement, confidentiality obligation or fiduciary duty which prohibits disclosure and the Recipient has no reason to believe that such source may be restricted from making such disclosure.
7.6 Compelled Disclosure. In the event the Recipient 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 Recipient 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 Agreement. 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 Recipient shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed and shall use its best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
7.7 Specific Performance and Injunctive Relief. The Recipient acknowledges that in the event of a breach of this Agreement by the Recipient or its Representatives, substantial injury could result to the Disclosing Party and money damages will not be a sufficient remedy for such breach. Therefore, in the event that the Recipient or its Representatives engage in, or threaten to engage in any act which violates any provision of this Agreement, the Disclosing Party shall be entitled, in addition to all other remedies which may be available to it under law, to injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
7.8 Confidentiality. The obligations of confidentiality, non-disclosure and non-use for unauthorized purposes set forth in this Agreement shall survive the return and/or destruction of Confidential Information and the termination or expiration of this Agreement for the longer of ten (10) years or for so long as such Confidential Information, or portions thereof such as trade secrets, is protectible under applicable law.
8.1 Disclaimer. CIRCLEBLACK MAKES NO, AND HEREBY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, REGARDING THE BLACKLOGIX SERVICE HEREUNDER, AND, WITHOUT LIMITATION, CIRCLEBLACK SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND (SUBJECT TO SECTION 9.1) NON-INFRINGEMENT. CIRCLEBLACK DOES NOT WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
8.2 Limitations of Liability. NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR OTHER INDIRECT DAMAGES OF ANY KIND, INCLUDING WITH RESPECT TO LOST DATA, LOST PROFITS, LOSS OF GOODWILL OR REPUTATION. Without limiting each party’s obligations under Section 9.1, each party agrees that the other party’s total liability to the other party hereunder for any damages, regardless of the form, theory or cause of action, will not exceed the total amount actually paid by PURCHASER for the BlackLogix Service during the period of six months preceding the date of the event or act giving rise to the claim. The parties agree that limitations and amounts stated herein are fair and reasonable under the circumstances and the parties’ respective understandings and expectations regarding this Agreement.
8.3 Data Processing, Historical Data, and Performance Values. Upon receipt of PURCHASER’S provider (custodian) data, CIRCLEBLACK will endeavor to load and process account data on a go-forward basis. CIRCLEBLACK will also endeavor to provide performance values from the date the provider’s data is first received by CIRCLEBLACK. If the PURCHASER has specific requested requirements for historical data before the date the provider's data is first received by CIRCLEBLACK, the PURCHASER must notify CIRCLEBLACK in writing and CIRCLEBLACK will endeavor to determine the scope of the project, and CIRCLEBLACK and PURCHASER shall endeavor in good faith to enter into a separate professional
Page 4 of 15 11365871_3
services agreement with respect thereto.
8.4. Items Excluded from Breach. The parties understand, acknowledge and agree that the following list of items do not constitute material breach by CIRCLEBLACK, as such items are considered ordinary course system operations issues:
8.4.1 Outside financial institution aggregation re-verification and connection issues. CircleBlack utilizes Yodlee for the aggregation of investor user’s accounts that are not managed by their advisor. CircleBlack’s Yodlee integration allows investor users to input the credentials of their financial institutions within the CircleBlack investor interface, Yodlee’s service retrieves the account data, and delivers it to CircleBlack which then processes, calculates, and displays the data. Once the connection has been established, CircleBlack and Yodlee process the account data on a daily basis. Periodically, the financial institution will require the investor user to re-verify their credentials. Until the investor user re verifies their credentials, the financial institution will not deliver updated account data to Yodlee and then on to CircleBlack. As a result, account balances will not be updated and performance calculation carries forward the data from the last available date. When an investor user’s financial institution is in this status, CircleBlack notifies investor users both via email notification and within the interface that their financial institution’s credentials require re-verification. Additionally, Yodlee may experience connection issues with or delays receiving data from a financial institution; this may also result in the delay of data delivery from the financial institution to Yodlee and then on to CircleBlack. CircleBlack notifies investor users of this status within the investor interface.
8.4.2 Custodian data feed delays. On infrequent occasions, CircleBlack will not receive account data from custodians during the overnight processing. As a result, account data and performance calculations are carried forward from the previous day. CircleBlack displays delayed data icons on each account and displays the data “as of” date within the CircleBlack interface. Once the updated data is received, CircleBlack immediately processes and calculates the data to display the updated data.
8.4.3 Irregular, missing, and mismatched custodian data. On occasion, CircleBlack will receive either irregular, missing, or mismatched account data. CircleBlack has instituted a number of checks and protocols that notify the advisor when they attempt to generate a report for an account that has one of these discrepancies. CircleBlack investigates, resolves the data error, depending on the specific issue, and then notifies the advisor user of the resolution.
9.1 Mutual Indemnification. Each party (the “Indemnifying Party”) at its own expense, will defend or at its option settle, any claim, suit or proceeding brought against the other party (the “Indemnified Party”) by a third party, and will pay any damages and costs awarded in any such suit or proceeding or agreed to settlement thereof, if the suit or proceeding is based on: (a) a claim of infringement of a trade secret or U.S. copyright, patent or trademark of any third-party to the extent attributable to any service solution, information or technology provided by the Indemnifying Party, and subject to the provisions of Section 9.2 below; (b) any use, sale, license, distribution or disclosure of Customer Data by the Indemnifying Party in violation of this Agreement provided that this Section 9.1 shall not apply to any disclosure of Customer Data resulting from third party unauthorized access; or (c) the Indemnifying Party’s failure to comply with all applicable laws, rules and regulation; provided that in each case the Indemnified Party provides the Indemnifying Party with (i) prompt written notice of such claim, (ii) exclusive control over the defense and settlement of such claim, and (iii) proper and full information and assistance to settle or defend any such claim. Notwithstanding any indemnification provision in this Agreement, neither party has a duty to indemnify or hold harmless the other party and its officers and directors, affiliates, subsidiaries, agents, and employees from or against any claim or action for injuries or damage to person or property or any other damage or loss to the extent caused or contributed to by the act or failure to act of the other party and its officers and directors, affiliates, subsidiaries, agents, and employees. All indemnification rights and obligations under this Agreement are subject to the terms of the first sentence of Section 8.2.
9.2 Additional Remedies. Should any use of the BlackLogix Service be enjoined, or if CIRCLEBLACK reasonably believes that the BlackLogix Service may be subject to an infringement claim, then CIRCLEBLACK may, at its sole option and discretion, in satisfaction of its indemnification obligations hereunder and otherwise: (A) procure the right to use the BlackLogix Service as provided herein; (B)
Page 5 of 15 11365871_3
replace the BlackLogix Service with other non-infringing service with equivalent functionality; (C) suitably modify the BlackLogix Service so that is does not infringe; or (D) if CIRCLEBLACK determines that none of the foregoing is feasible, terminate this Agreement.
9.3 Sole Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 9 STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF THE INDEMNIFYING PARTY, AND THE EXCLUSIVE REMEDY UNDER THIS AGREEMENT OF THE INDEMNIFIED PARTY WITH RESPECT TO ANY ACTUAL OR ALLEGED INFRINGEMENT OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.
11.1 Mediation. The parties agree that any and all disputes, claims or controversies arising out of or relating to this Agreement shall be submitted to JAMS, or its successor, for mediation, and if the matter is not resolved through mediation, then it shall be submitted to JAMS, or its successor, for final and binding arbitration pursuant to Section 11.2 below. Either party may commence mediation by providing to JAMS and the other party a written request for mediation, setting forth the subject of the dispute and the relief requested. The parties will cooperate with JAMS and with one another in selecting a mediator from the JAMS panel of neutrals and in scheduling the mediation proceedings. The parties agree that they will participate in the mediation in good faith and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the parties, their agents, employees, experts and attorneys, and by the mediator or any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the mediation. Either party may initiate arbitration with respect to the matters submitted to mediation by filing a written demand for arbitration at any time following the initial mediation session or at any time following 45 days from the date of filing the written request for mediation, whichever occurs first ("Earliest Initiation Date"). The mediation may continue after the commencement of arbitration if the parties so desire. At no time prior to the Earliest Initiation Date shall either side initiate an arbitration or litigation related to this Agreement except to pursue a provisional remedy that is authorized by law or by JAMS Rules or by agreement of the parties. However, this limitation is inapplicable to a party if the other party refuses to cooperate in the selection of mediators or scheduling mediation proceedings as required hereunder. All applicable statutes of limitation and defenses based upon the passage of time shall be tolled until 15 days after the Earliest Initiation Date. The parties will take such action, if any, required to effectuate such tolling.
11.2 Arbitration. Subject to Section 11.1 above, any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by binding arbitration in New York City, New York before a single arbitrator, provided any dispute or claim involving a dollar amount of $50,000 or greater will be before three arbitrators. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The parties will be entitled to reasonable discovery of essential matters as determined by the arbitrator(s).
11.3 Fees and Costs. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys' fees reasonably incurred by the prevailing party, including the arbitrator(s) fees and costs, in connection with the arbitration. If the arbitrator(s) determine a party to be the prevailing party under circumstances where the prevailing party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing party an appropriate
Page 6 of 15 11365871_3
percentage of the costs and attorneys' fees reasonably incurred by the prevailing party in connection with the arbitration.
11.4 Consent to Jurisdiction. The parties agree and consent to the sole and exclusive jurisdiction of any federal or state court located in Mercer County, New Jersey, to interpret and enforce the arbitration provisions described in this Section 11.
13.1 Publicity. Both parties may reference its general business relationship with the other party for marketing purposes.
13.2 Entire Agreement; Amendments and Waivers. This Agreement represents the entire understanding and agreement among the parties hereto with respect to the subject matter hereof. This Agreement may be amended, supplemented, or changed and any provision hereof may be waived, only by a written instrument signed by the party against whom enforcement of any such amendment, supplement, change or waiver is sought.
13.3 Captions. The captions and Section / provision headings in this Agreement are included solely for convenience of reference and are not intended to affect the interpretation of any provision of this Agreement.
13.4 Counterparts; Binding Effect. This Agreement may be executed in counterparts, each of which shall be deemed an original agreement, but all of which together shall constitute one and the same Agreement. Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.
13.5 Notices. All notices must be written and will have been given (a) when delivered by hand, (b) on the next business day, if delivered by a recognized overnight courier, or (c) on the third business day if mailed (by certified or registered mail, return receipt requested):
Page 7 of 15 11365871_3
Attn: Chad Cutcliff
100 Horizon Center Blvd.
Hamilton, NJ 08691
13.6 Waiver. No delay or failure by a party in exercising any right, power or privilege under this Agreement or any other instruments given in connection with or pursuant to this Agreement will impair any such right, power or privilege or be construed as a waiver of or acquiescence in any default. No single or partial exercise of any right, power or privilege will preclude the further exercise of that right, power or privilege or the exercise of any other right, power or privilege.
13.7 Force Majeure. If either party is delayed or prohibited from performing due to a cause beyond its reasonable control, including without limitation, terrorism, fire, earthquake, war, strike, embargo, blockage, work stoppage, protest, or acts of God, pandemic, disease, government shutdown, curtailment or restriction imposed on operations or access to offices or equipment of a party, the delay or prohibition will be excused during the continuance of the delay or prohibition and the period of performance will be extended as reasonable after the cause of delay or prohibition is removed. If a delay or prohibition continues for a period of more than ninety (90) days, either party may terminate the Agreement.
13.8 Severability. If any provision of this Agreement is held invalid, void, or unenforceable to any extent, that provision will be enforced to the greatest extent permitted by law and the remainder of this Agreement and the application of such provision to other persons or circumstances will not be affected.
13.9 Assignment and Successors. PURCHASER may not assign this Agreement without CIRCLEBLACK’s prior written consent, except that PURCHASER may assign the Agreement without consent to an entity controlling PURCHASER, in common control with PURCHASER or controlled by PURCHASER. This Agreement benefits and will be binding upon CIRCLEBLACK, PURCHASER and their respective successors, heirs and assigns.
14. Purchaser's Client Custodian Account Data (CAD) including Personally Identifiable Information (PII). PII is any information that can be associated with or traced to any individual, including an individual's name, address, telephone number, email address, account number and social security number. If this Agreement is terminated and the Purchaser requests in writing within 90 days of termination this Agreement that CircleBlack provide the Purchaser with the custodian account data (CAD) related to its clients, then CircleBlack will provide the Purchaser standard CircleBlack extract format of the CAD stored within the CircleBlack system. CAD does not include data that has been gathered through investors adding credentials to the CircleBlack aggregation process. If a request for the CAD data is not made within the 90 day period following termination of this Agreement, then CircleBlack shall have no further obligations pertaining to any such PII, including, but not limited to, an obligation to provide such PII to Purchaser.