These HoldingsInsight™ Additional Service Terms (“HoldingsInsight™ Terms”) apply only in the event the HoldingsInsight™ Service is included in Customer’s Subscription per the applicable Order Form. For purposes of Customer’s Subscription to the HoldingsInsight™ Service, these HoldingsInsight™ Terms supplement the Master Terms and form a part of the Agreement between Customer and Vendor.
Service Description
HoldingsInsight™ is a Service offered by Vendor that provides an online portfolio data capture and reporting service, providing information about Investments (as defined herein) and related information or, in the case of an Investment that itself is an investment vehicle, the holdings of such Investment.
Additional Terms and Conditions
1. Definitions. The following terms have the assigned meanings for purposes of these HoldingsInsight™ Terms. All capitalized terms used, but not otherwise defined, in these HoldingsInsight™ Terms will have the meaning assigned to such term in Exhibit 1: Defined Terms, attached to the Master Terms.
1.1 “HoldingsInsight™ Start Date” shall mean the date that is the end of the applicable reporting period reflected in the first Investor Reports provided after the applicable Order Effective Date from which data will be captured for purposes of the HoldingsInsight™ Service, or such other date as specified in the applicable Order Form.
1.2 “Investment” shall mean any entity or investment vehicle in which Customer holds a financial interest and that Customer has engaged Vendor to monitor via the HoldingsInsight™ Service. Examples of such entities and investment vehicles include (a) publicly traded instruments like stocks, bonds, and derivatives, (b) publicly traded pooled investment vehicles, such as mutual funds and exchange-traded funds, (c) privately held investment vehicles and comingled funds, such as private equity, venture capital, real estate, distressed debt and energy funds, as well as funds-of-funds, and (d) single-investor vehicles or separately managed accounts.
1.3 “Investor Report” shall mean any report distributed or otherwise made available to holders of any Investment by Persons responsible for managing, custodying, or otherwise reporting on such Investment.
2. Data Collection, Data Sharing, and Copies.
2.1 During the Subscription Term for the HoldingsInsight™ Service, Customer will provide to Vendor directly, or undertake reasonable efforts to ensure Vendor receives on Customer’s behalf, copies of all Investor Reports for the Investments, to the extent Customer is permitted to receive and share such Investor Reports by the Persons that release them, beginning with the Investor Reports related to the reporting period ending on the HoldingsInsight™ Start Date. Vendor will accept Investor Reports in any format from which Vendor is able to electronically copy or export data using existing Vendor Technology, including PDF, Word document, Excel spreadsheet, and web link. Without limiting any other obligation of Customer under the Agreement, Customer shall ensure that no web link provided to Vendor pursuant to these HoldingsInsight™ Terms will subject Vendor to (a) any prohibition or restriction of the performance of Vendor’s obligations hereunder, (b) any open source or “copyleft” license, or (c) any malicious links, Harmful Code, or other material that would violate the Acceptable Use Policy. Where any Investor Report cannot be provided in a format that allows such electronic copying or exporting of data, Vendor will use commercially reasonable efforts to extract and interpret the data contained in the Investor Report. After making such commercially reasonable efforts, Vendor will either confirm acceptance of such Investor Report or inform Customer that the Investor Report needs to be provided in a different format. For purposes of this Agreement, the Investor Reports will be deemed to be Customer Provided Data and the data obtained from such Investor Reports will be deemed to be Customer Data; provided, that Vendor will be permitted to retain indefinitely such Investor Reports, and the data obtain from them, notwithstanding any obligation in the Master Terms for Vendor to return or destroy Customer Data.
2.2 If Vendor notifies Customer that one or more Investor Reports regarding a particular Investment has not been made available to Vendor and that Vendor does not otherwise have access to the data reflected therein, Customer shall request that, and otherwise make reasonable attempts to cause, the relevant Persons make such Investor Reports available to Vendor or authorize Customer to share such Investor Reports with Vendor.
2.3 Customer acknowledges and agrees that, at any time after an Investor Report has been provided to Vendor (including after the termination or expiration of the Subscription Term for the HoldingsInsight™ Service and the Agreement), Vendor will have the right to share the data captured from such Investor Report with any other subscriber to the HoldingsInsight™ Service who is a holder of the Investment reflected in the Investor Report, provided that such other subscriber has submitted to Vendor an Investor Report containing substantially the same information.
2.4 Where an Investor Report or other data relating to an Investment is received via the service of a third party, once the data reflected therein is captured in the HoldingsInsight™ Service, Vendor will have the right to share such data with any other holder of the Investment to which the original data relates; provided that (a) such data has been aggregated and processed in a way that makes the resulting data sufficiently different from the original data, to an extent that no Investor Report or other original data sources can be restored or otherwise identified by analysis or further processing, and (b) such holder is also a customer of the same third party service and has provided an Investor Report containing substantially the same information to Vendor. For the avoidance of doubt, except as set forth in Section 2.3 of these HoldingsInsight™ Terms and as necessary to provide the HoldingsInsight™ Service, Vendor will not disclose to unauthorized third parties any Investments-related data that could allow recomposing of the original Investor Report, restoration of its format or identification of the fund manager or other person that has originally supplied the Investor Report.
2.5 Customer represents and warrants that it is a limited partner, member, shareholder, or otherwise a holder of record of each of the Investments that it monitors via the HoldingsInsight™ Service.
3. Data Processing, Use, and Corrections.
3.1 Vendor will enter into the HoldingsInsight™ Service the data specified in the Order Form (“Data Entry”), which Vendor will obtain from Investor Reports as outlined in Section 2 of these HoldingsInsight™ Terms and, if necessary, other information sources (whether publicly available or proprietary to Vendor). The frequency of Data Entry will be as indicated in the applicable Order Form. For clarity, Data Entry is a Professional Service.
3.2 During the Subscription Term and subject to the terms and conditions of the Agreement, data entered through Data Entry will be stored and made available to Customer via the HoldingsInsight™ Service.
3.3 If Customer discovers an error in the data made available via the HoldingsInsight™ Service, Customer’s sole and exclusive remedy and Vendor’s sole and exclusive liability with respect to such error will be that, upon receiving written notice from Customer, Vendor will promptly correct the error.
4. Additional Content and Enhanced Data Services. In the event Customer desires for Vendor to perform data gathering in addition to Data Entry or provide reports outside the scope of Customer’s Subscription for the HoldingsInsight™ Service (including reports concerning reporting periods ending prior to the HoldingsInsight™ Start Date that are not available within the HoldingsInsight™ Service at the time of Customer’s request), such Professional Services must be agreed upon in a separate arrangement incorporated in an addendum or amendment to the applicable existing Order Form or in a new Order Form.
5. Subscription Administrator. In addition to the rights specified in the Master Terms, the Subscription Administrator for the HoldingsInsight™ Service is authorized to specify the names of the Investments to be covered by the HoldingsInsight™ Service and request subsequent changes thereto.
6. Changes in the HoldingsInsight™ Service Subscription.
6.1 Arrangements concerning: (a) the names of Investments to be covered by the HoldingsInsight™ Service (both for the initial list of Investments and subsequent updates), (b) the starting reporting period from which the Investments will be monitored, or (c) the related adjustments of the applicable Subscription Fees will have the effect of addenda for supplementing or amending the applicable Order Form and may be made by exchange of emails between the Subscription Administrator and an authorized representative of Vendor, provided that the statements contained therein are sufficient to establish an electronic record and the parties have affixed thereto electronic signatures, as such terms are defined in the Electronic Signatures in Global and National Commerce Act (E-SIGN), and any similar Laws relating to the validity or enforceability of electronic or digital signatures.
6.2 The number of Investments monitored via the HoldingsInsight™ Service can also be modified by the Subscription Administrator through written notification (email will suffice) as follows:
(a) for an increase – the notification can be sent at any time, effective immediately or from a particular date (as specified by the Subscription Administrator in such notification), and the Subscription Fee for monitoring the additional Investments will be (i) based on the Subscription Fees established pursuant to the Order Form (including any addendum or amendment thereto) applicable during the then-current Annual Billing Term, and (ii) billed on or about the date Vendor receives such notification, and, thereafter, as specified in the applicable Order Form for the each subsequent Data Entry period;
(b) for a decrease – the notification must be sent at least: (i) sixty (60) days before the end of the then-current Annual Billing Term – for a decrease of up to fifty percent (50%) of the total number of Customer’s monitored Investments, effective at the beginning of the next Annual Billing Term; (ii) one (1) year before the end of the then-current Annual Billing Term – for a decrease between fifty-one and one hundred percent (51-100%) of Customer’s total number of monitored Investments, effective from the Annual Billing Term that begins after the end of the next Annual Billing Term. The requirement of this item (b) will not apply if the full Dynamo Subscription and the Agreement are terminated in accordance with the Master Terms; and
(c) for a swap – the notification can be sent at any time, effective immediately or from a particular date (as specified by the Subscription Administrator in such notification), and the Subscription Fee for the swapped Investments will be (i) based on the Subscription Fees established pursuant to the Order Form (including any addendum or amendment thereto) applicable during the then-current Annual Billing Term, and (ii) billed on or about the date Vendor receives such notification. A swap can be initiated where the number and type of added and removed Investments is the same.
6.3 Any termination by Customer of its subscription for Dynamo services other than the HoldingsInsight™ Service will not terminate: (a) the provisions in the relevant Order Form concerning the HoldingsInsight™ Service, (b) the effect of these HoldingsInsight™ Terms, or (c) the applicable provisions of the Agreement, and all such provisions and terms shall survive in full force and effect.
7. Indemnity. Without limiting any other obligations of Customer under the Agreement, Customer will indemnify and hold harmless the Vendor Indemnitees from and against any and all claims, demands, actions, suits, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees and costs) incurred by a Vendor Indemnitee (whether or not in connection with a third party claim), and shall defend the Vendor Indemnitees against any and all third party claims, in each case, to the extent arising from: (a) Customer’s use of the HoldingsInsight™ Service, (b) other data provided by Customer to Vendor or obtained by Vendor on behalf of Customer or made available via the HoldingsInsight™ Service at Customer’s request, or (c) any violation by Customer of the terms of any third party supplier/data provider, in each of the foregoing cases, except to the extent arising from the sole gross negligence, willful misconduct, or criminal activity of the applicable Vendor Indemnitee.
8. Survival. Unless specifically indicated otherwise in an Order Form, the provisions of Sections 2.3, 2.4, 7 and 8 of these HoldingsInsight™ Terms shall survive expiration or termination of the applicable Order Form or the Agreement for any reason.