These Terms and Conditions (“Agreement”) govern your access to and use of any of COMPLY’s Consulting and Managed Services offerings.
As used herein, the terms “you” and “your” refer to the legal entity represented on your Order Schedule, or any other ordering document accepted by us for your order of our Services (each an “Order Schedule”). Further, any references to terms such as “we,” “our,” “us,” “ComplySci” and “COMPLY” will mean Compliance Science, Inc. unless otherwise expressly specified in the Agreement. You may not access or use our Services if you are a competitor, or for the purposes of monitoring availability, performance, or functionality, or for any other benchmarking or competitive purposes.
1. Definitions
1.1 “Order Schedule” means the document used to order ComplySci’s Consulting or Managed Services. The Parties may, from time to time, enter into one or more Order Schedules which shall be governed by this Agreement. In the event of a conflict between the terms of this Agreement and an Order Schedule, the terms of the Order Schedule shall prevail.
1.2 “Parties” means you and us as defined above.
1.3 “Services” means the Consulting or Managed services described in an Order Schedule or other similar form attached hereto including, without limitation, any databases, data, and information feeds, contained or distributed therein. For the avoidance of doubt, the Parties understand and agree that the use of any ComplySci SaaS or other software services shall be subject to our SaaS Terms and Conditions.
2. Delivery of Services
2.1 Confidential Treatment. The Parties agree that in the course of delivering Services to you, you shall provide ComplySci with any information and documentation, including but not limited to financial statements, offering memoranda and/or subscription documents, as may be reasonably requested by ComplySci in connection with the Services to be performed for you (collectively “Confidential Information”), provided Confidential Information shall not include any information that: (a) ComplySci independently develops; (b) was lawfully known by ComplySci prior to being disclosed by you without an obligation of confidentiality to any third party; or (c) becomes available to the public other than as a result of ComplySci’s breach of this Agreement. ComplySci will treat as confidential all such Confidential Information, except that ComplySci shall be permitted to disclose such Confidential Information if it is compelled to do so by law, court order, regulatory body, or other similar legal requirement.
2.2 No Legal Advice. You understand and acknowledge that the implementation of any ComplySci recommendations, compliance or regulatory findings or requirements after the completion of ComplySci Services is your responsibility unless otherwise agreed to in writing by ComplySci. ComplySci does not render any legal or financial advice relating to incorporation, securities laws, or any other advice of a legal or financial nature. You should refer to legal or financial counsel for such advice. You agree that ComplySci shall have no responsibility to verify the accuracy or adequacy of any statement, document, fact or information provided to ComplySci by you or your attorney, accountant, employees, representative or agents.
2.3 Collection and Use of Data. ComplySci may, subject to its Privacy Policy and applicable data privacy laws, collect and use anonymized and aggregated information related to the Services for the purposes of: (a) performing, evaluating, enhancing, and improving Services; and (b) testing and developing new Services.
2.4 Registration or Regulatory Filing Services. If you requests initial or additional registration or regulatory filing services, the following additional terms apply to the preparation or submission of any documents, forms or applications (“Documents”), to any Federal, State, exchange or other governmental or non-governmental regulatory body or agency, including but not limited to, the SEC, FINRA or State Securities Regulators:
(a) Except insofar as disclosure is required in connection with the Documents filed on behalf of you, ComplySci will treat as confidential all information and documents received from you and/or your representatives, except such information as may be required to be disclosed by law or is available in the public domain otherwise than by or through ComplySci.
(b) ComplySci is responsible only for preparing the Documents and any supplementary forms for review and signature by you and filing the Documents or supplementary forms with the appropriate agencies. You are solely responsible for the accuracy of the information and representations contained in any Documents prepared and filed by ComplySci, either electronically or manually, on behalf of you and/or its representatives. If ComplySci determines that Documents provided by you will not satisfy the requirements of the jurisdiction in which they will be filed, ComplySci reserves the right to notify you of the deficient Document(s) and you can elect to have the Document(s) filed as-is, to correct the Document(s) itself, or to have ComplySci correct the Document(s) at ComplySci’ then-current hourly rate. Any filed Document(s) which receive “deficiency” notices from a regulatory agency due to insufficient, incorrect or conflicting information supplied by you to ComplySci will be corrected, with your prior approval, by ComplySci, at our then-current hourly rate.
(c) ComplySci will use commercially reasonable efforts to secure registrations, licenses and/or memberships for you, but ComplySci does not and cannot guarantee that any registration, license or membership will be granted.
(d) Upon ComplySci’s submission by email, fax or mail of the Documents to you for review and execution, and prior to the submission of such Documents by ComplySci to the appropriate regulatory authority, the balance of any fee(s) due ComplySci (per the fee schedule outlined on applicable Exhibit is payable in full. ComplySci’ fee does not include any direct filing or regulatory fees required to be submitted or paid in connection with any registration, license, notice filing, membership applications, self-regulatory membership fees, bonding, fingerprinting or testing expenses, all of which must be paid by you directly to the regulatory authority or to ComplySci prior to the submission of any Document. ComplySci will notify you of the regulatory fee amounts due (if any) by providing you with a funding request or appropriate payment instructions. You must make full payment of any and all regulatory fees, payable to the appropriate payee, in the appropriate amount, as indicated by the funding request or other payment instructions.
(e) IF THE DOCUMENTS ARE NOT RETURNED TO COMPLYSCI PROPERLY EXECUTED AND WITH PROPER PAYMENT OR FUNDING FOR REGULATORY FEES REFERRED TO ABOVE, WITHIN THE TIME PERIOD STIPULATED IN COMPLYSCI’S INSTRUCTIONS FOR THE SUBMISSION OF SUCH DOCUMENTS AND FUNDING REQUESTS TO CUSTOMER, COMPLYSCI WILL NOT GUARANTEE THAT THE DOCUMENTS WILL BE ACCEPTED BY COMPLYSCI OR RECEIVE PRIORITY TREATMENT UPON THEIR RETURN. DOCUMENTS WHICH ARE HELD BY CUSTOMER FOR LONGER THAN THE TIME PERIOD STIPULATED IN ComplySci’ INSTRUCTIONS MAY REQUIRE REVISIONS WHICH WILL BE BILLED TO CUSTOMER AT COMPLYSCI’S THEN CURRENT HOURLY CONSULTING RATE. ADDITIONALLY, LATE FILING FEES MAY BE DUE IF DOCUMENTS ARE NOT RETURNED WITH SUFFICIENT TIME FOR SUBMSSION TO THE REGULATORY AUTHORITY BY COMPLYSCI PRIOR TO A REGULATORY DUE DATE. FURTHERMORE, SOME STATE AGENCIES DO NOT ACCEPT DOCUMENTS WHICH HAVE BEEN SIGNED/NOTARIZED MORE THAN 30 DAYS PRIOR TO RECEIPT BY SUCH AGENCY OF SAID DOCUMENTS. ANY DOCUMENT THAT REQUIRES REVISION, DUE TO CUSTOMER’S FAILURE TO RETURN THE DOCUMENTS TO COMPLYSCI WITHIN THE TIMEFRAME INDICATED, WILL BE BILLED TO CUSTOMER AT COMPLYSCI’S THEN CURRENT HOURLY CONSULTING RATE.
(f) In the event you desire to terminate the application process subsequent to the submission by ComplySci of the Documents to you for review and execution, you hereby acknowledges that full payment is due.
3. Term and Termination
3.1 Term and Renewal. Except as otherwise stated in an Order Schedule, the initial term of any Annual Services shall be three (3) years from the effective date of the Order Schedule pursuant to which such Services were purchased (“Initial Term”), and such Order Schedule will automatically renew for additional three (3) year periods (each a “Renewal Term”), unless: (a) either Party gives the other Party at least ninety (90) days’ advance written notice of its intent not to renew such Order Schedule; or (b) this Agreement and/or the Order Schedule is terminated as otherwise provided herein. The Parties further agree that the Term of any one-time or project services under an Order Schedule shall be fixed for the period set forth in the applicable Order Schedule and shall not renew as set forth above.
3.2 Termination for Material Breach. Either Party may terminate this Agreement if the other Party has committed a material breach of the Agreement and has failed to cure such breach within thirty (30) days of receiving written notice of such breach, or, for non-payment of Fees due hereunder, within seven (7) days of receiving written notice of such breach.
3.3 Termination for Insolvency. Either party may terminate this Agreement upon notice, if the other Party: (a) is declared insolvent by a court of competent jurisdiction, (b) undergoes any procedure for the suspension of payment, (c) makes a general assignment for the benefit of creditors; or (d) files or has a petition for bankruptcy, reorganization, dissolution, or liquidation filed against it.
4. Payment
4.1 Fees and Timing. You will remit payment of any and all fees due ComplySci as set forth in an Order Schedule signed by the Parties upon execution thereof and as otherwise set forth in such Order Schedule. All subsequent invoices shall be paid by you within thirty (30) days of the date of an invoice from ComplySci. Any fees (including any deposit, if any, identified in an Order Schedule) paid and due to ComplySci are non-refundable. The balance of any fee due ComplySci is payable in accordance with the Order Schedule or as otherwise set forth hereunder. Except as otherwise set forth in an Order Schedule, you understand that Fees for annual Services may increase from year to year, provided that ComplySci may not increase the annual Fees for Services in any year by more than ten percent (10%) above the Fees applicable for such Services for the immediately prior year (“Annual Fee Cap”).
4.2 Dependencies. In the event ComplySci requires additional time or effort to perform the Services due to the complexity of your circumstances, regulatory history, delays by you, and/or any other special or additional requirements or requests from you, ComplySci will provide such additional Services as necessary, subject to a Change Order which shall be mutually agreed upon in writing by the Parties and billed at the ComplySci’s then current hourly rates.
4.3 Additional Expenses. Any travel, business and ancillary expenses incurred by ComplySci on behalf of you or otherwise through the delivery of Services under an Order Schedule, may include but are not limited to travel, accounting, research, legal or consulting. These aforementioned expenses will be reimbursed to ComplySci by you or billed to you by a third party, if the particular services are rendered directly by that third party and agreed to by you.
4.4 Late Payments. Any invoice that remains past due for more than thirty (30) days will accrue a late payment fee calculated at a rate of the lower of 1.5% of the outstanding balance per month or the maximum amount permitted by law. ComplySci reserves the right to use its collection agency, or any other agency it shall so designate, to collect any balance past due, at your expense. ComplySci reserves the right to suspend Services in the event any invoice is thirty (30) days overdue.
4.5 Taxes. You understand that the Fees described in any Order Schedule are exclusive of any taxes, levies, duties, or other governmental assessments of any nature including, but not limited to value added, sales, use, excise, and withholding taxes, assessable by any foreign, federal, state, or local jurisdiction (“Taxes”). You are responsible for the payment of any Taxes arising out of or otherwise related to your receipt and use of the Services, other than taxes relating to ComplySci’s income. ComplySci shall invoice you for any Taxes ComplySci is authorized or required to collect related to the Services unless you provide a valid tax exemption certificate for the appropriate taxing authority.
5. Warranties
5.1 THE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY OF ANY KIND. ALL WARRANTIES, CONDITIONS AND OTHER TERMS IMPLIED BY STATUTE OR COMMON LAW INCLUDING, WITHOUT LIMITATION, WARRANTIES OR OTHER TERMS AS TO SUITABILITY, MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAWS. COMPLYSCI DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES WILL BE DELIVERED FREE OF ANY INACCURACIES, INTERRUPTIONS, DELAYS, OMISSIONS OR ERRORS (“FAULTS”), OR THAT ALL FAULTS WILL BE CORRECTED. COMPLYSCI SHALL NOT BE LIABLE FOR ANY DAMAGES RESULTING FROM ANY SUCH FAULTS.
5.2 WHERE DATA IS ENTERED INTO THE SERVICES BY CUSTOMER AND/OR AUTHORIZED USERS, CUSTOMER ASSUMES SOLE RESPONSIBILITY, OBLIGATION, AND RISK AS TO THE SUITABILITY AND RESULTS OBTAINED FROM USE OF THE SERVICES, AND ANY DECISIONS MADE, ADVICE GIVEN, OR ACTIONS TAKEN BY ITSELF OR THIRD PARTIES BASED ON THE INFORMATION CONTAINED IN OR GENERATED BY SUCH SERVICES.
6. Indemnity
6.1 You agrees to indemnify, defend, and hold harmless ComplySci, its affiliates, officers, directors, employees and suppliers, from and against any action, suit, claim or proceeding, whether civil, criminal or administrative, and against any loss, fine, cost, levy, expense, judgment or award arising therefrom (collectively a “Claim“), in which ComplySci may be involved (whether as a witness or a party) for any Services performed by ComplySci on your behalf, which arises from or in connection with such Services including, without limitation, as a result of any regulatory or other audit or investigation involving you, false or misleading statement or omission of material fact by you or act or omission which, other than through ComplySci’s gross negligence, violates any statute, rule or order of any Federal, State or self-regulatory authority. In the event ComplySci is or any of its representatives are required to provide testimony in connection with, or as a result of, the Services provided by ComplySci pursuant to this Agreement, or in connection with the manner, sufficiency or operation of the functions or operations of yours, you agree to pay any and all expenses, including any travel, lodging and legal expenses (including cost of external counsel, court fees, etc.) incurred by ComplySci in providing such testimony.
7. Disclaimers and Limitation of Liability
7.1 The Parties acknowledge and agree that this Agreement does not cover or take into account SEC, State, FINRA (Financial Industry Regulatory Authority), or other governmental, regulatory, or association fees. You are responsible for paying such third party fees, including application and any annual renewal fees.
7.2 You acknowledge that the Services are dependent upon your delivery of required information and agree that ComplySci is not responsible for issues arising from inaccurate or incomplete information provided by you, including but not limited to issues regarding the proper registration of you or your investment adviser representatives (“IARs”) or inaccuracies or omissions in your Form ADV or other materials. You must instruct ComplySci regarding desired changes to registration status or other information, as necessary. Any data, records, or other information that are input, generated, or otherwise used in connection with the Services should always be verified and stored by you. ComplySci is not responsible for actions taken by U.S. or foreign governmental or regulatory bodies or other third parties.
7.3 NEITHER COMPLYSCI NOR ITS SUPPLIERS, OR THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, SHAREHOLDERS, AGENTS AND REPRESENTATIVES (COLLECTIVELY “REPRESENTATIVES”), SHALL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING LOSS OF PROFITS, DATA, REVENUE, OR SAVINGS.
7.4 REGARDLESS OF LEGAL THEORY, WHETHER IN CONTRACT OR TORT OR OTHERWISE, COMPLYSCI’S AGGREGATE LIABILITY UNDER, ARISING OUT OF, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, SHALL BE LIMITED TO DIRECT DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THE ORDER SCHEDULE GIVING RISE TO THE CLAIM DURING THE TWELVE (12) MONTHS PRECEEDING SUCH CLAIM, PROVIDED THAT THIS LIMIT WILL NOT APPLY TO ANY CLAIM FOR UNPAID FEES.
8. Miscellaneous
8.1 Entire Agreement. Once executed by the Parties, this Agreement, and any Order Schedule(s) incorporated herein by reference shall constitute the entire agreement between ComplySci and you, and shall supersede and prevail over all other agreements, proposals, and representations, written or oral, regarding the subject matter hereof. Except as expressly agreed hereunder, this Agreement may only be modified by mutual written agreement of the Parties.
8.2 No Advice. You understand and agrees that ComplySci does not provide financial, legal, or other professional advice or services. You should seek the services of a competent profession if financial, legal, or other professional advice is required. You understand and agrees that the Services are provided for informational purposes only and that, neither the Services nor anything posted or generated therein shall be construed as legal, tax, financial or other advice, or as a solicitation, recommendation, endorsement or offer by ComplySci, its officers, employees, subsidiaries, or affiliates to buy or sell any security or other financial instrument.
8.3 Non-Solicitation. During the Term of this Agreement and for one (1) year thereafter, you shall neither employ nor solicit employment of ComplySci’s current or former personnel involved directly or indirectly with the Services under this Agreement, without the Company’s prior written consent.
8.4 Third Parties. For the avoidance of doubt, there are no third party beneficiaries to this Agreement.
8.5 Waiver. The waiver by a Party of any right or failure or delay to seek a remedy in given instance will not affect that Party’s rights or ability to seek a remedy in other instances.
8.6 Notice. Except as otherwise expressly set forth hereunder, all notices, permissions and approvals must be in writing sent to the Parties’ respective addresses first set forth above, and shall be deemed to have been given upon: (a) personal delivery; (b) the second business day, if sent by USPS Certified Mail; or (c) the first business day, if sent by email, provided a copy is also sent via reputable overnight courier. For ComplySci, all notices shall be sent to the attention of the Chief Financial Officer, with a copy to the General Counsel.
8.7 Assignment. Neither Party may assign its rights under this Agreement without prior written consent from the other Party, which will not be unreasonably withheld or delayed, provided, however, that no such consent is necessary for either party to assign its rights under this Agreement in, or as part of any merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets or voting shares. Any assignment in contravention of the foregoing shall be deemed null and void. Any assignment permitted hereunder shall bind and inure to the benefit of the Parties, their respective successors and assigns.
8.8 Enforceability and Survival. If any provision of this Agreement is deemed illegal or unenforceable, that provision may be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law or, if impractical, severed and the remainder of this Agreement will remain in full force and effect.
8.9 Independent Contractor. ComplySci is and will at all times act as an independent contractor with respect to you. Nothing in this Agreement will create or constitute any employment, agency, partnership, or joint venture arrangement by or between the parties.
8.10 Publicity. We may use your name and logo in any media to identify you as a customer.
8.11 Force Majeure. Neither Party will be responsible for any failure to perform under this Agreement (other than a Party’s payment obligations), if it is prevented or delayed in performing its obligations by an strikes, riots, acts of war, terrorism, earthquakes, floods, fire or other natural disasters, or comparable events outside of a Party’s reasonable control (each a “Force Majeure Event”); provided the Party subject to the Force Majeure event notifies the other Party and uses commercially reasonable efforts to mitigate the effect of the Force Majeure Event.
8.12 Choice of Law; Jurisdiction; Venue. This Agreement shall be governed by the laws of the state of New York, excluding its conflicts of law principles. The jurisdiction and venue for any legal proceeding relating to this Agreement will be the state or federal courts in New York County, New York, and each party waives any objection of forum non-conveniens or other objection to such venue. The prevailing party in any action shall be entitled to reasonable attorney’s fees and court costs in enforcing its rights hereunder.
Last Updated: March 1, 2023