These Outsourced Professional Services Additional Service Terms (referred to as the “Outsourced Services Terms”) apply only in the event Customer has outsourced certain activities specific to its operations to Vendor and the terms of such outsourcing, the scope of the work that Vendor will have to perform, as well as the applicable fees have been agreed in an Order Form. For purposes of Customer’s Subscription to such outsourced professional services, which may be referred to as “Dynamo Data Automation”, “DDA”, or otherwise in the applicable Order Form, these Outsourced Services Terms supplement the Master Terms and form a part of the Agreement between Customer and Vendor.
Terms not defined otherwise herein shall have the meaning ascribed to them in the Master Terms.
1. SCOPE OF WORK
1.1 These Outsourced Services Terms provide the terms and conditions under which Vendor may provide certain outsourced professional services to Customer, as authorized by the relevant Order Form. Such Order Form arrangements for outsourced professional services will be deemed incorporated into these Outsourced Services Terms by reference and will specifically define the scope of the service to be performed (“Outsourced Services”).
1.2 It is understood that no accounting, auditing, tax, valuation, regulatory, or legal services are being provided by Vendor under the terms of these Outsourced Services Terms and Customer is solely responsible for obtaining such services.
1.3 Unless otherwise agreed by the parties under an Order Form, Vendor will perform such Outsourced Services remotely from Vendor Service Locations (as defined herein) and may use automation technologies, including, without limitation, robotic process automation (“RPA”) and artificial intelligence technologies, developed by Vendor or by third parties, to enhance the efficiency of the Outsourced Services.
1.4 Either party may propose changes to the scope or time schedule of the Outsourced Services being performed under an Order Form. Requests for changes will be submitted to the other party in writing for consideration of feasibility and likely effect on the cost and schedule for performance of Outsourced Services in the form of draft addendum to the relevant Order Form. Such addendum will become effective upon the parties’ mutual, written agreement to any proposed changes, including resulting adjustments to costs and schedules for the performance of Outsourced Services.
1.5 The number of Investment-investor pairs or other units, as specified in the Order Form (“Units”) included in the scope of the Outsourced Services 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 the additional Units 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) for the then-current Annual Billing Term – billed on or about the date Vendor receives such notification, and, thereafter – as specified in the applicable Order Form.
(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 Customer’s total number of Units, 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 Units, 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.
1.6 If factors outside of Vendor’s control lead to a material increase in Vendor’s cost of providing the agreed Outsourced Services, the parties will negotiate in good faith an adjustment in the price of the Outsourced Services applicable from the next billing period. If no agreement is reached, Vendor will have the right to terminate the Outsourced Services Terms with one hundred and twenty (120) days’ written notice.
2. DEFINITIONS
2.1 “Business Day” for the purposes of these Outsourced Services Terms means any day except any Saturday, any Sunday, any day which is a public holiday, or any other day on which banking institutions in the relevant Vendor Service Location are required by law or other governmental action to close.
2.2 “Customer Staff” means Customer’s or Customer Affiliate’s employees, subcontractors and agents.
2.3 “Governmental Authority” means any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, self-regulatory body, judicial or administrative body, whether domestic, foreign or international.
2.4 “Industry Standards” means generally accepted practices used by organizations in the United States in the performance of services of similar type, scale, and scope to the Outsourced Services.
2.5 “Investment” means any entity in which Customer is invested and Customer has engaged Vendor to provide Outsourced Services involving data related to such entity. Examples of such entities include, but are not limited to (i) direct investments, including but not limited to, private debt, private equity and derivatives; (ii) publicly traded instruments like stocks, bonds, and derivatives; (iii) publicly traded pooled investment vehicles, such as mutual funds and exchange-traded funds; (iv) privately held investment vehicles and commingled funds, such as private equity, venture capital, real estate, distressed debt and energy funds, as well as funds-of-funds; and (v) single-investor vehicles or separately managed accounts.
2.6 “Law” means any declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction of or by any Governmental Authority.
2.7 “Protected Private Information” shall mean taxpayer identification numbers, banking information, personal data or other sensitive or protected information of Customer’s investors or investees.
2.8 “Vendor Service Location” means any location from which Vendor and its Affiliates typically provide outsourced professional services to clients, unless otherwise agreed in an Order Form. The current list of such locations for all services of Vendor (including Dynamo Data Automation) is available at https://www.dynamosoftware.com/Service-and-Hosting-Locations/.
2.9 “Vendor Staff” means employees, subcontractors and agents of Vendor and its Affiliates
3. SERVICE LEVEL COMMITMENTS/REQUIREMENTS
3.1 Services will be performed in accordance with Industry Standards and the applicable Laws, subject to the limitations in Sections 1.2 and 1.3.
3.2 If Customer suspects errors in deliverables from Outsourced Services, resulting from Vendor’s breach of agreed requirements (each an “Outsourced Services Error”), reports such errors to Vendor and provides the relevant information necessary for Vendor to analyze the alleged errors, Vendor will promptly review the report, and, if the suspected Outsourced Services Error is confirmed by Vendor, correct such error free of charge. If Customer has mistakenly reported a perceived quality issue as Outsourced Services Error, any service time spent by Vendor on validating or resolving the issue will be billable on a time and materials basis at Vendor’s standards rates and billing terms, as applicable at that time. Vendor will not seek prior approval for investigating reported quality issues unless the cumulative time spent on such work for a single instance of a suspected Outsourced Services Error has reached two (2) hours. If Vendor determines that a reported issue does not qualify as an Outsourced Services Error it will stop working on it and promptly notify Customer.
3.3 Customer shall provide all information needed for Vendor to provide the agreed Outsourced Services, or ensure access to such information and all necessary or required (by law or by contract, including third-party contracts) authorizations, as applicable, in a timely manner.
3.4 Unless otherwise agreed in writing, when historical data is required for the purposes of the Outsourced Services, Customer will provide such data in accordance with the following requirements:
(a) Unstructured data (files):
(i) In its original format (e.g. PDF, Word, images, etc.)
(ii) If not already stored in the Dynamo™ application, it should be organized logically in a folder structure following
the convention: Management company / Fund / Document type.
(b) Structured data: in Vendor-approved Excel format.
(c) All data should be provided in its entirety.
3.5 Vendor shall establish and maintain safeguards consistent with Industry Standards and requirements of Law against the destruction, disclosure, misuse, loss or alteration of Customer Data that Vendor and Vendor Staff may be given access to for the purposes of the agreed Outsourced Services.
3.6 Customer agrees to NOT provide (or enable access to, as applicable) documents containing Protected Private Information to Vendor, unless needed or required for the provision of agreed Outsourced Services, and to the extent Customer has obtained for Vendor all necessary authorizations and/or consents, as applicable. In addition, Customer will make a best effort to provide such Protected Private Information in an encrypted file or through a Vendor provided secure file sharing portal with appropriate written notification that such files contain either Protected Private Information or other sensitive Confidential Information of Customer or of the organizations where Customer invests.
3.7 For the avoidance of doubt, Vendor has no responsibility to verify the completeness, accuracy, validity or enforceability of any Customer Data that it has access to with regard to the Outsourced Services or to verify whether Customer has obtained all relevant authorizations or consents to allow Vendor and Vendor Staff to access and process the information needed for the Outsourced Services. Therefore, Vendor has no responsibility for the completeness or accuracy of the data it derives from such Customer Data.
4. COMPENSATION
4.1 The applicable fees for performing Outsourced Services will be determined based on the expected complexity of the required actions and the expected processing time, and specified in the relevant Order Form (or an addendum thereto) together with the applicable billing terms and method of payment.
4.2 Neither Customer nor Vendor anticipates that local or non-local travel expenses will be necessary for the fulfillment of the services required under these Outsourced Services Terms. If non-local travel is required in the performance of the Outsourced Services, Vendor will request advance approval from Customer to incur travel-related expenses; approved travel expenses will be billed separately to Customer as incurred.
5. WARRANTIES
5.1 Vendor’s Outsourced Services provided to Customer will be of professional quality conforming to Industry Standards, and will be performed in a good workmanlike and timely manner and in compliance with the requirements of these Outsourced Services Terms and the applicable Order Form.
5.2 Both parties warrant that they: (i) do not have any obligation that restricts their ability to enter into these Outsourced Services Terms and to perform their obligations set forth in these Outsourced Services Terms; and (ii) have complied with their duties to all applicable governing authorities. Both parties acknowledge and agree that they shall be solely responsible for complying with all laws, regulations and rules applicable to their respective performance under these Outsourced Services Terms, including without limitation the laws, regulations and rules of any foreign countries in which either party (or, where applicable, that party’s and its Affiliate’s employees or contractors) reside or perform their obligations or performance under these Outsourced Services Terms.
5.3 EXCEPT AS PROVIDED IN THIS SECTION 5 AND THOSE WARRANTIES INCLUDED IN SECTION 3, VENDOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, REGARDING ITS SERVICES OR PRODUCTS WHICH ARE THE SUBJECT OF THESE OUTSOURCED SERVICES TERMS, AND VENDOR SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
6. LIMITATION OF LIABILITY
6.1 To the extent not covered by the limitation of liability set forth in the Master Terms, except in the event of willful misconduct or fraud, the liability of Vendor, its affiliates, subcontractors and vendors of any tier and their respective officers, agents and employees to Customer for any action or claim brought forth by Customer in relation to these Outsourced Services Terms, regardless of whether the action or claim is based in contract, tort, statute, strict liability or otherwise, shall not exceed the amounts actually paid or payable by Customer for the Outsourced Service in the twelve (12) month period immediately preceding the event giving rise to such claim.
7. GP Portal Integration. Other Terms.
7.1 Certain Outsourced Services may be subject to additional terms, which will be reflected in the applicable Order Form or in a separate document. The remaining provisions of this section outline the additional terms applicable to the Outsourced Service referred to as GP Portal Integration.
7.2 In order to use the GP Portal Integration Service Customer will have to provide to Vendor (i) the relevant information about the documents that need to be accessed and obtained via the service, (ii) the required login credentials to ensure such access, and (iii) all necessary or required (by law or by contract, including third-party contracts) authorizations, as applicable, in a timely manner. Customer acknowledges and agrees: (a) to neither require nor enable access to documents containing information that Customer and/or Vendor are not authorized to access; (b) that some portals or websites where Vendor is required to download or access documents or information for Customer may (x) have access time limitations, (y) have different periods of availability of historical documents, and, unless otherwise agreed in writing, Vendor will have the discretion to determine the historical date from which documents should be downloaded, or (z) fail to notify recipients of investor reports and other investor communication that a new document has been made available for download, and, if Vendor determines that accessing such documents or information is not commercially feasible, Vendor shall be relieved of its obligation to access and process such documents and information; and (c) that Vendor is not responsible for the acceptance of third-party terms (such as investor portal terms), required for accessing information or documents that Vendor needs to process to provide the Outsourced Services.
7.3 If the performance of the Outsourced Services or accessing certain import sources requires the acceptance of third-party terms and conditions, including clickwrap agreements posted on GP portals, Customer hereby authorizes Vendor to accept any such third-party terms and conditions, and Customer agrees that Vendor’s acceptance of such terms and conditions is solely on Customer’s behalf, as necessary to perform the Service, and Customer shall protect, defend, hold harmless, and indemnify (collectively “Indemnify” and “Indemnification,”) Vendor, and its successors, assigns, directors, officers, employees, agents, stockholders, and affiliates (collectively, “Indemnified Parties”) from and against all claims, demands, actions, suits, damages, liabilities, losses, settlements, judgments, costs, and expenses, including but not limited to reasonable attorneys’ fees and costs (collectively, “Claims”), arising from or related to any breach of any such third-party terms and conditions, or data provided by Customer to Vendor or obtained by Vendor on behalf of Customer in connection with the Outsourced Services, whether or not the relevant Claim has merit.
7.4 If Vendor becomes aware that it does not have the right to access and obtain the documents Customer requires to be obtained via the GP Portal Integration Service, or to use Customer’s login credentials for that purpose via RPA technology, Vendor may immediately suspend the provision of the GP Portal Integration Service.
7.5 Vendor has no responsibility to verify the completeness, accuracy or validity of any documents obtained via the GP Portal Integration Service or to verify whether Customer has obtained all relevant authorizations or consents to allow Vendor, Vendor personnel or the RPA technology used by Vendor to access and process the information needed for providing the GP Portal Integration Service. Vendor specifically disclaims any liability resulting (directly or indirectly) from such lack of authorization, or from incompleteness or inaccuracies in the documents obtained.
8. GENERAL
8.1 These Outsourced Services Terms shall be deemed integrated into the Agreement as an attachment thereto and all relevant provisions of the Agreement shall apply to the Outsourced Services.
8.2 Vendor is and will remain an independent contractor with respect to all performance under these Outsourced Services Terms. Neither Vendor nor any employee or agent of Vendor will be considered an employee or agent of Customer for any purpose. Neither party, nor its employees, will have any authority to bind or make commitments on behalf of the other party for any purpose, nor will it or they hold itself or themselves out as having such authority. Each party will be solely responsible for supervising, providing daily direction and control, paying the salaries (including withholding of income taxes and social security contributions), worker’s compensation, disability benefits and the like of its personnel.