Subscription Agreement Terms & Conditions

These terms form part of the agreement between Model Capital Management LLC, established under the laws of Massachusetts (“us,” “we,” or “Company”) and the client (“Client”) as identified in the Subscription Agreement transmitted in paper or in electronic form to Company.

1. Definitions

“Agreement” means the Subscription Agreement together with any attachments, including these Subscription Agreement Terms & Conditions.

“Authorized User” means the user(s) indicated in the Subscription Agreement  by name, title, and email address to be given access to the Licensed Product(s).

“Client” means the company, organization, government, agency, individual, agent, representative or any other variation thereof that enters into this Agreement for purposes of accessing the Licensed Product(s).

“Company Content” means all content of the Licensed Product(s), and the Company web site located at par model.com, and includes, by way of example and without limitation, the text, graphics, icons, screens and configurations, software, Marks, publications, information, texts, tables, algorithms, databases and data collections, designs, diagrams, documentation, drawings, charts, formulas, inventions, methods, models, procedures, software code, user interfaces, works of authorship, and other forms of technology, created, compiled, assembled or integrated by Company and/or its Partners in the Licensed Product(s).

“Intellectual Property Rights” means, without limitation, all past, present, and future rights of the following types: (i) rights associated with works of authorship, including exclusive exploitation rights, copyrights, and moral rights; (ii) trademark and trade name rights, rights to goodwill or to sue for passing off or unfair competition; and (iii) trade secret rights; (iv) patent rights; (v) other proprietary rights in Material of every kind and nature; and (vi) rights in or relating to registrations, renewals, extensions, combinations, divisions, and reissues of, and applications for, any of the rights referred to in subsections (i) through (v) of this sentence.

“Licensed Product(s)” means the material described in the Subscription Agreement, supplied or made available by or through Company which Authorized Users are permitted to access and use in compliance with the terms of this Agreement.

“Marks” include, by way of example and without limitation, trademarks, service marks, brand names, product names, logos, slogans, and trade dress.

“Partners” means (i) entities cooperating with Company in a strategic business alliance; (ii) licensors; and/or (iii) affiliates.

“Permitted Use” means Client’s ordinary business purposes (i.e., for the Client’s own internal business management and/or decision-making purposes).

“Subscription Agreement” means a duly executed Agreement between Company and Client, which, among other things, specifies the Client and Authorized User(s), the Licensed Product(s), the subscription fee, and the Subscription Term.

“Subscription Term” means the period specified in the Subscription Agreement during which Client is granted a license to access and use the Licensed Product(s), commencing on the Effective Date thereof.

2. Intellectual Property Rights

All Company Content is protected by law including, but not limited to, international copyright, trade secret, and trademark law, as well as other international laws and regulations. The Company Content, its layout and design are the exclusive property of Company or its Partners and, except as expressly provided herein, Company does not grant any express or implied right in any such content to Client. Third-party trademarks displayed in the Company Content, if any, are the property of their respective owners. Except as specifically authorized herein, the Client may not use the Marks or designations of Company or its Partners in any manner without the prior written consent of Company or their respective owners.

3. Grant of License

3.1 Permitted Use. Authorized Users are granted a non-exclusive, non transferable license to access and use the Licensed Product(s) for their respective internal business purposes, subject to the limitations set forth in this Agreement. Authorized Users may additionally share portions of the Licensed Product(s) with non-authorized employees of the Client, under conditions that such sharing of Company Content is: (i) in furtherance of the Client’s business purposes; (ii) in the scope of such Authorized User’s employment with the Client; (iii) on an occasional and irregular basis; (iv) limited to brief excerpts of the Licensed Product(s); and (v) each such excerpt of the Licensed Product(s) must include an original source attribution, and the phrase “Used with permission from Model Capital Management LLC”

3.2 Prohibited Uses. Without limitation to the generality of clause 3.1, neither Client nor its Authorized Users are permitted, directly or indirectly, to allow an unauthorized user to have access to the Licensed Product(s). Any breach of this restriction may result in immediate termination of the Client’s (and all Authorized Users’) access to the Licensed Product(s) and/or liability for damages. Except as permitted in clause 3.1 above or by prior written consent of Company, no portion of the Licensed Product(s) may be reproduced or transmitted to any web site, newsgroup, mailing list, electronic bulletin board, computer network, or any other place or person. Any use of the Licensed Product(s) not specifically permitted under this Agreement is expressly prohibited.  For example, modifying, distributing, or public exhibition of the Licensed Product(s) is strictly prohibited.  Client further agrees not to use the Licensed Product(s) for any unlawful purpose.  Requests for permission for other uses may be sent to the email address specified in the Company Contact section of the Subscription Agreement, or to contact@taacomplete.com.  Any such requests shall be subject to Company’s sole discretion and, if granted, may be subject to additional requirements and/or an additional fee.

4. Security & Recordkeeping

4.1. The Client is solely responsible for maintaining security measures adequate to protect the Licensed Product(s) from unauthorized access or use. Client agrees to immediately notify Company if it becomes aware of any unauthorized access to or use of the Licensed Product(s).

4.2.  When establishing a subscription to the Licensed Product(s), Client will be asked to provide the names, titles, and email addresses of Client’s Authorized Users.  For uninterrupted service, Client and/or the Authorized Users must notify Company of any changes to an Authorized User’s email address during the Subscription Term.  Client further agrees to apprise Company of Client’s current billing address at all times during the Subscription Term and at all times any Company invoice remains outstanding hereunder.

5. Subscription Term and Termination

5.1 Both Client and Company may terminate the Subscription Agreement at any time, with a five (5) day notice to the other party at the email address specified in the Contact section of the Subscription Agreement.

If Client’s subscription fee is paid in advance, and in the event Client wishes to terminate their subscription prior to the close of the Subscription Term, Company will refund the unused portion of Client’s subscription fee. The amount of such refund shall be calculated as follows:

(i) the subscription fee paid by Client to Company,

(ii) less the portion of the subscription fee pro-rated to the period that Company provided Licensed Product to Client,

(iii) less any costs associated with delivering the refund (e.g. wire fees or bank fees).

5.2 Notwithstanding clause 5.1, Company may terminate this Agreement, with immediate effect and without notice or any obligation to issue a refund, in the event that the Client has defaulted in the performance of any material provision contained in these Terms and Conditions. Termination of this Agreement for any reason shall not affect Company’s right to recover any moneys due at the time of termination or to recover damages for any breach of contract.

6. Payment

Client agrees to pay the subscription fees and any applicable taxes at the rates in effect at the time of entering into the Subscription Agreement, or any renewal thereof.  Subscription fees will be billed at the beginning of the Subscription Term, or any renewal thereof. Client agrees to be financially responsible for such fees, and to settle invoices issued by Company within 15 calendar days of the date of entering into or renewing a Subscription Agreement.  Late payments will accrue interest at the rate of 1.5% per month.  Without prejudice Company’s other remedies, Company reserves the right to condition the provision of the Licensed Product(s) upon full payment of all amounts due.

7. Indemnity

CLIENT AGREES TO INDEMNIFY, DEFEND, AND HOLD HARMLESS COMPANY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, AND REPRESENTATIVES FROM ANY AND ALL CLAIMS, LOSSES, LIABILITY, DAMAGES, AND/OR COSTS (INCLUDING REASONABLE ATTORNEY FEES AND COSTS) ARISING FROM THE UNAUTHORIZED DISCLOSURE OR USE OF THE COMPANY CONTENT, OR VIOLATION OF ANY MATERIAL TERMS OF THIS AGREEMENT BY CLIENT OR ITS AUTHORIZED USERS.

8. No Warranty

COMPANY HEREBY DISCLAIMS ALL WARRANTIES. COMPANY MAKES THE LICENSED PRODUCT(S) AVAILABLE “AS IS” WITHOUT WARRANTY OF ANY KIND. YOU ASSUME THE RISK OF ANY AND ALL DAMAGE OR LOSS FROM USE OF, OR INABILITY TO USE, THE LICENSED PRODUCT(S). TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE LICENSED PRODUCT(S), INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE LICENSED PRODUCT(S) WILL MEET YOUR REQUIREMENTS OR THAT THE LICENSED PRODUCT(S) WILL BE TIMELY, OR ERROR-FREE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR ANY EMPLOYEE OR REPRESENTATIVE OF COMPANY SHALL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED IN THESE TERMS OF USE.  COMPANY SPECIFICALLY DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, TRUTH, QUALITY, SUITABILITY, COMPLETENESS, LEGALITY, OR RELIABILITY OF THE INFORMATION PRESENTED THROUGH THE LICENSED PRODUCT(S). SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

9. Limited Liability

9.1. COMPANY’S LIABILITY TO CLIENT IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW. IN NO EVENT SHALL COMPANY BE LIABLE FOR DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, LOST PROFITS, REGARDLESS OF THE FORESEEABILITY OF THOSE DAMAGES) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE LICENSED PRODUCT(S) OR ANY OTHER MATERIALS OR SERVICES PROVIDED TO YOU BY COMPANY.  CLIENT ACKNOWLEDGES THAT THE USE OF THE LICENSED PRODUCT(S) OR ANY INFORMATION OBTAINED THEREFROM IS DONE AT ITS OWN DISCRETION AND RISK, AND SPECIFICALLY AGREES THAT IT WILL BE SOLELY RESPONSIBLE FOR THE CONSEQUENCES OF ANY INVESTMENT DECISIONS IT MAY OR MAY NOT MAKE AS A RESULT OF USING OR ACCESSING THE LICENSED PRODUCT(S).

9.2 If Company is held liable to the Client for any reason, in no event shall any liability of Company, its affiliates, agents and licensors, if any, arising out of any kind of legal claim(s) in any way connected with the Licensed Product(s) exceed the amount the client paid to Company under this agreement in the 12-month period preceding the date such claim or claims first arose. The limitations set forth in this Article 9 shall apply regardless of whether the damages arise out of breach of contract, tort, or any other legal theory or form of action.

10. Company Not Investment Advisor

The Licensed Product(s) are published in accordance with The Investment Advisers Act of 1940, Section 202(a)(11)(D) which excludes publishers of bona fide financial publications of general and regular circulation from the definition of an investment adviser, and the obligation to register as such under the Act (15 U.S.C. § 80b-2(a)(11)(D)).  Section 401(f) of the Uniform Securities Act, upon which the majority of state securities laws are based, similarly excludes from the definition of investment adviser publishers of any bona fide newsletter, business or financial publication or service that do not render advice on the basis of specific investment situation of particular clients.  Under no circumstances shall Company be liable for any investment losses attributed to the use of the Licensed Product(s).

11. Miscellaneous

11.1. Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes all prior discussions, documents and agreements. No modifications may be made except in a writing signed by both parties.

11.2. Amendment and Modifications. This Agreement may only be amended or modified by express written consent of both parties.  The foregoing notwithstanding, Company reserves right to update terms, conditions, and pricing at any time, and Client agrees that any subsequent subscriptions (or renewals thereof) will be subject to Company’s standard terms and pricing then in use.

11.3. Assignment. Client may not assign this Agreement or any rights, licenses or obligations hereunder without the prior written approval of Company.  Company may assign this Agreement to its successors or affiliates without the prior approval of the Client.

11.4. Severability; Waiver. If, for any reason, a court of competent jurisdiction finds any term or condition in this Agreement to be unenforceable, all other terms and conditions will remain unaffected and in full force and effect. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any prior, concurrent, or subsequent breach of the same or any other provisions hereof, and no waiver shall be effective unless made in writing and signed by an authorized representative of the waiving party.

11.5. Notices. Notices shall be given in writing by email (i) for Company, to contact@taacomplete.com and (ii) for the Client, to the attention of the Client’s email address set out in the Subscription Agreement . Such correspondence shall be deemed received on the date of dispatch

11.6. Applicable Laws. This Agreement is entered into in Boston, Massachusetts, and governed by and construed in accordance with the laws of the State of Massachusetts without giving effect to its conflict of laws provisions. Federal law governs copyright, patent, and trademark matters. In the event of any dispute between Client and Company in connection with the Licensed Product(s), Client agrees to submit to the exclusive jurisdiction of the state and federal courts having jurisdiction in Boston, Massachusetts, U.S.A.

11.8. Changes to the Licensed Product(s). Company reserves the right to: (i) change the content, presentation, means of delivery and/or access to and/or availability of all or parts of the Company Content; and (ii) cease publication of all or parts of the Company Content, at its sole discretion.

11.9. Survival.  Subject to the express limitations contained in this Agreement, all covenants, agreements, representations and warranties made in this Agreement which, by their nature continue, shall survive the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement, including, without limitation, obligations arising under Articles 3, 4, 6, 7, & 11 hereto.

11.10. Execution. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute a single instrument.  Execution and delivery of this Agreement may be evidenced by facsimile or electronic transmission.

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