General Terms & Conditions for eFront Investment Café
“Affiliate” means, in respect of either Party, any legal entity which, directly or indirectly, controls, is controlled by, or is under common control with such party and “control” means direct or indirect ownership of more than fifty percent (50%) of the entity’s shares or voting rights. Any such legal entity shall be considered an Affiliate for only such time as such interest is maintained.
“Agreement” means the contract entered into on the Effective Date of the Fees Form.
“Authorized User” means those Client’s or Client’s Affiliates’ employees, agents and independent contractors of Client who are authorized by Client to access and/or use the eFront Services in accordance with the terms of the Agreement.
“Business Days” means a day other than a Saturday, Sunday or public holiday in State of New York when banks in New York are open for business.
“Client Data” means any content, materials, data and information that Client transmits, uploads or in any way transfers to (and/or stores within) the eFront Service or any Client-specific data that is derived from Client’s use of the eFront Service (e.g. Client-specific reports) but excluding any derivative work which is a component of the eFront Service itself or is created or otherwise made available by eFront under the Agreement.
“Confidential Information” means any information, personal information or data that is non-public or proprietary in nature and disclosed by one Party to the other Party in the course of the performance of this Agreement, whether orally, in writing, electronically or in other form or media.
“Data Protection Legislation” means (i) Regulation (EU) 2016/679 of the European Parliament and of the Council on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (“General Data Protection Regulation” or “GDPR”) and (ii) any other local or regional data protection, data privacy or data security laws, including all laws and regulations ratifying, implementing or completing the GDPR;
“Documentation” means the documents made available by eFront to Client from time to time, which describe the installation, operation, use or functionality of the eFront Service and include the eFront Services Description.
“Effective Date” means the date specified as such in the Fees Form.
“eFront Environment” means the technical environment managed and made accessible to Client by (or on behalf of) eFront pursuant to the provision of the eFront Services.
“eFront Materials” means any eFront Service Description, Documentation and any other data, information and materials, know-how and methods that are proprietary to eFront, its Affiliates and/or licensors and are transmitted or otherwise generated by eFront in the course of the performance of this Agreement.
“eFront Service Defect” means any failure of the eFront Service to perform in material conformity with the applicable eFront Service Description.
“eFront Service(s)” means the eFront Investment Café service purchased by Client and as identified in the Fees Form.
“eFront Service Description” means the description of the functionalities of the eFront Service as specified in the Documentation and as may be varied in accordance with the Agreement.
“Fees” means the fees identified in the Fees Form including the subscription and set-up fees.
“Fees Form” means the Fees Form signed by both Parties which sets out details of the eFront Services to be provided by eFront and the applicable Fees payable by Client.
“Force Majeure Event” means any event or circumstance beyond the reasonable control of the Party affected by such event or circumstance (including, but not limited to a failure of sub-contractors to supply goods or services for any reason).
“Fund” means a legally structured pooled investment vehicle that may include, but is not limited to, associated direct co-investments.
“Fund Family” means a master Fund together with all associated underlying entities, including but not limited to, onshore and offshore feeder Funds and co-investments entities that are investing alongside the master Fund, such as AIV and other SPVs ; 1 Fund Family equals up to 10 associated underlying Funds and/or entities.
“Intellectual Property Rights” means any intellectual property rights of whatever nature, including trademarks, copyrights, rights in confidential information, know-how and domain names and any similar rights situated in any country together with applications for any of the foregoing and the right to apply for any of the foregoing in any part of the world.
“Personal Data” has the meaning ascribed to it in Data Protection Legislation.
“SaaS Service” means eFront solutions provided on a multi-tenant software-as-a-service basis such as described in the applicable eFront Service Description.
“Service Level Availability” means those service levels (if any) made by eFront in the applicable eFront Service Description and/or in an appendix to the Fees Form and which relate to the availability of the eFront Services.
“Subscription” means a subscription that is provided by eFront to Client which entitles Authorized Users to access a production install of the applicable eFront Services for use in relation to an individual Fund.
“Usage Metrics” means the usage parameters for determining the permitted access and use and calculating the applicable Fees due for an eFront Service as set forth in a Fees Form, including but not limited to Funds, Fund Family, number of limited partners (“LPs”).
This Agreement shall commence on the Effective Date and shall continue in full force and effect for the minimum term specified in the Fees Form (the “Initial Subscription Term”).
The Initial Subscription Term shall automatically renew for successive periods of 12 months (each a “Renewed Subscription Term”), unless either Party provides the other Party with Notice of its intent not to renew at least 90 days prior to the expiration of the Initial Subscription Term or then-current Renewed Subscription Term (as applicable).
The Initial Subscription Term and the Renewed Subscription Term(s) shall be referred to herein collectively as the “Subscription Term”.
3. eFront Services
Subject to the terms and conditions of this Agreement eFront shall provide to Client a limited, non-exclusive, non-sublicensable and non-transferable right to permit Authorized Users to access and use the applicable eFront Services and the Documentation during the Subscription Term.
In respect of each individual Subscription specified in the Fees Form, Client has the limited right to permit its Authorized Users to access and use the applicable eFront Services as described in the Documentation.
Client shall ensure that:
only Authorized Users can access and use the eFront Services and Documentation;
all Authorized Users comply with this Agreement;
each Authorized User is assigned a unique login/password by utilizing the appropriate authentication and password assignment tools which are available through the eFront Service;
Authorized User login/password details are kept confidential; and
the eFront Services shall not be used or accessed in relation to any funds other than those within a Fund for which a Subscription has been acquired.
For the purposes of this Agreement all activities of (i) Authorized Users and (ii) any persons accessing the eFront Services via the login/password of an Authorized User (whether or not legitimately) shall be deemed the activities of Client.
Client shall not access, store, distribute or transmit any computer viruses, or any material during the course of its use of the eFront Services that:
is unlawful, threatening, defamatory or in any way offensive; or
facilitates or in any way relates to illegal activityand eFront reserves the right, without liability or prejudice to its other rights, to disable Client’s access to any material that breaches the provisions of this Section 3.5.
Access and use of the eFront Service shall be solely for Client’s own internal business needs. Client may not (and may not cause or permit others) to use or access the eFront Service for any other means.
The rights provided under Section 3.1 are granted to Client only, and shall not be considered granted to any Affiliate of Client.
In providing the eFront Services, eFront shall meet the Availability Service Levels (subject to all applicable exclusions and limitations set out in the eFront Service Description and/or Fees Form).
eFront reserves the right in its sole discretion to modify or update the eFront Services from time to time without Client’s consent, provided however that any such modification does not result in an impairment to the quality or nature of the eFront Services.
4. Additional Usage Metrics
Subject to Section 4.2, Client may, from time to time during the Subscription Term, purchase additional Usage Metrics for use of the eFront Services.
If Client wishes to increase the applicable Usage Metrics Client has purchased under an Fees Form, it shall notify eFront in writing (email accepted) and, if eFront approves the request (as determined in its sole discretion and provided Client is not in breach of its obligation under this Agreement), Parties shall sign an additional or amendment Fees Form to document the conditions of such increase.
5. Fees and Payment Terms
Client shall pay to eFront the Fees stated in the Fees Form in accordance with Section 5.3 below.
The Fees exclude, and Client shall be responsible for, all sales, use, excise, withholding and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity in connection with the eFront Services provided by eFront under this Agreement (excluding taxes based solely on eFront’s income). Alternatively, Client may furnish to eFront an exemption certificate, provided however that if such exemption certificate is challenged or held invalid by a taxing authority then Client agrees to pay for all resulting fines, penalties and expenses (including without limitation reasonable attorney’s fees and costs).
Fees are payable within 30 days of invoice date, without any right of set-off or deduction. In the event that any invoice is not paid by the due date then (without prejudice to any other rights available to eFront):
eFront shall be entitled to suspend its provision of the relevant eFront Services until such time that payment is made in full, provided that Notice of such suspension is given to Client with an opportunity to cure at least 15 days in advance; and,
eFront reserves the right to impose a late payment charge of one percent (1%) per month or the maximum rate permitted by law (whichever is less) of the Fees for each month that payment thereof is due but not yet paid. eFront shall be entitled to invoice any supplementary costs to Client (including recovery costs and reasonable attorneys’ fees) incurred upon proper justification.
6. Intellectual Property
Client acknowledges and agrees that eFront, its Affiliates and/or licensors own and retain all Intellectual Property Rights in and to the eFront Services and eFront Materials.
eFront warrants that, during the Subscription Term, the eFront Service will be free of any eFront Service Defect. Client’s sole and exclusive remedy for breach of Section 7.1 shall be the correction of the eFront Service Defect or, if eFront fails to correct the eFront Service Defect within a reasonable period of time of Notice of that defect being given by Client, then Client may terminate its Subscription for the affected eFront Service by providing eFront written Notice and eFront shall then refund the portion of the Fees paid for such affected eFront Service for the remainder of the Initial Subscription Term or then-current Renewed Subscription Term (as applicable).
The warranties given under Section 7 shall not be deemed to have been breached where the eFront Service Defect results from: (a) any combination of the eFront Service with third party software or other technology not supplied, recommended or authorized by eFront (b) any use of the eFront Service in an unauthorized manner or otherwise outside the scope of this Agreement or (c) any modification of the affected eFront Service by Client.
Notwithstanding Section 7.1 but subject to the Availability Service Level and notwithstanding Section 7.2, eFront:
does not warrant that Client’s use of the eFront Services will be uninterrupted or error-free or that the eFront Services, Statement of Work (if applicable), and/or Documentation will meet Client’s requirements; and
is not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities.
eFront expressly disclaims all other warranties, whether statutory, oral or written, or otherwise, with respect to any eFront Services that are provided to Client under this Agreement.
8. Client Data
Client shall ensure it has all necessary licenses, permissions, consents and authorizations in order to supply or provide Client Data into the eFront Environment and so as to enable eFront to utilize Client data for the purposes specified in Section 8.2.
Client hereby grants to eFront a non-exclusive, royalty-free license to use, store and process Client Data solely for the purposes of:
performing, reporting, invoicing, improving and enhancing the eFront Services; and
creating and supplying new products (including industry benchmark data).
The license granted pursuant to Section 8.2.2 shall be perpetual but shall be limited such that Client Data shall only be incorporated into (or otherwise used in the development of) an eFront product to the extent (i) it has been aggregated with data sourced from third parties (including other users of services provided by eFront) such that it is not presented on a standalone basis, (ii) it is not disseminated to (or accessible by) any third party in a format in which it can be attributed to Client or be in any way directly associated with Client, and (iii) it does not include any Personal Data.
9. Hosting and Security
Client acknowledges and agrees that eFront shall host and maintain the eFront Environment on its own infrastructure or the infrastructures of appropriately selected third party providers.
In the event of any loss or damage to Client Data due to eFront’s negligence or breach of this Agreement, Client’s sole and exclusive remedy shall be for eFront to use reasonable commercial endeavors to restore the lost or damaged Client Data from eFront’s latest back-up of such Client Data.
If for any reason Client Data includes any Personal Data then, to the extent such data is processed by eFront during the performance of the eFront Services, eFront acknowledges that it shall process such Personal Data in accordance with the Section 14.7.
Client shall defend (at its sole expense) eFront and its Affiliates against any third party claims, and indemnify and hold harmless eFront and its Affiliates from any damages arising therefrom that are awarded by a court of competent jurisdiction in a final judgment or otherwise agreed to by Client in a final settlement in connection with an allegation that eFront’s use or permission of any Client Data for the purposes of performing the eFront Services infringes the Intellectual Property Rights of a third party.
Client shall defend (at its sole expense) eFront against any third party claims, and indemnify and hold harmless eFront from all loss, costs, damages and expenses suffered or incurred as a consequence of eFront’s contravention of the Data Protection Legislation to the extent caused by its use or possession of Client Data for the purposes of performing the eFront Services.
eFront shall defend (at its sole expense) Client against any third party claims, and indemnify and hold harmless Client from any damages arising therefrom that are awarded by a court of competent jurisdiction in a final judgment or otherwise agreed to by eFront in a final settlement, in connection with an allegation that any use by Client of any eFront Service or eFront Material in accordance with this Agreement infringes the Intellectual Property Rights of a third party.
The indemnification obligations set forth in Section 10.3 shall not apply to any claim arising out of or related to any: (a) damage, alteration or modifications to the eFront Services that was not performed or authorized by eFront; (b) combination of the eFront Services with software, hardware or other technology that was not supplied or authorized by eFront; (c) use of the eFront Services in an unauthorized manner or otherwise outside the scope of this Agreement; or (d) instructions or other materials provided by Client to configure the eFront Services specifically for Client’s use.
The Party seeking indemnification hereunder in relation to a third party claim shall: (a) promptly notify in writing the indemnifying Party of the third party claim (provided that the failure to do so shall not relieve the indemnifying Party of its obligations hereunder except to the extent that it is prejudiced thereby); (b) reasonably cooperate in the defense of such claim at the indemnifying Party’s sole expense; and (c) provide the indemnifying Party with sole control of the defense of such claim and all related settlement negotiations, provided that the indemnifying Party shall not enter into any settlement of such claim that assigns guilt or fault to or otherwise adversely affects the rights of the Party seeking indemnification without the prior written consent of the Party seeking indemnification (which shall not be unreasonably withheld or delayed).
11. Limitation of Liability
eFront shall not be liable to Client (whether in contract, tort (including negligence), misrepresentation or otherwise) for any indirect loss or damage nor for any lost profit, lost revenue, depletion of goodwill, lost savings, loss of use, delay downtime or business interruption, or loss or damage of data (including Client Data).
Subject to Section 11.4 eFront’s total liability for any loss or damage suffered or incurred by Client in respect of an event or series of connected events shall not exceed the total Fees paid by Client during the twelve-month period immediately preceding such event (or preceding commencement of the connected events) under the Fees Form for the eFront Services to which the event or series of connected events relate.
Client must initiate a cause of action for any claim(s) arising pursuant to the Agreement within two years from the date when Client knew, or should have known after reasonable investigation, of the facts giving rise to the claim(s).
The exclusions and limitations set forth in this Section 11.2 shall not apply to (i) obligations to pay the Fees, (ii) fraud or willful misconduct and (iii) any other liability which may not be limited or excluded by applicable law.
Either Party may terminate this Agreement with immediate effect by Notice to the other Party in the event that the other Party:
commits a material breach of any obligation in this Agreement which is irremediable or (if such breach is remediable) which remains unremedied upon expiry of a 30 day period from its receipt of Notice detailing such breach;
(without prejudice to the generality of Section 12.1.1) fails to pay any amount due under this Agreement on the due date for payment and remains in default for not less than 8 Business Days after receiving Notice to make such payment; or
becomes or is reasonably likely to become insolvent, including entering into liquidation, receivership or administrative receivership, administration or a company voluntary arrangement or any event in any jurisdiction similar or analogous to any of the events referred to in this Section 12.1.3.
Either party shall be entitled to terminate this Agreement with immediate effect by Notice to the other Party if either Party is affected by a Force Majeure Event which continues for a period of not less than 60 days and which prevents the other Party from performing all, or a material part of, its obligations under this Agreement.
Immediately upon termination of this Agreement: (a) any and all eFront Services provided by eFront hereunder shall cease; (b) Client shall cease all further use of the eFront Services and eFront Materials; and (c) upon the written request of the other Party (but subject to the perpetual license granted pursuant to Section 8.2.2), each Party shall return or otherwise destroy the other Party’s Confidential Information except any copies that it is required to retain pursuant to applicable law, rule or regulation.
Client shall remain liable for payment of Fees for the remainder of the then current Initial Subscription Term or Renewed Subscription Term (as applicable) following termination by eFront pursuant to Section 12.1.
The expiry or termination of this Agreement (howsoever caused) shall be without prejudice to the perpetual license granted pursuant to Section 8.2.2 and any other rights or obligations of a person which are expressly stated to survive, or by their nature survive, expiry or termination of this Agreement.
During the term of this Agreement and for a period of five years following its expiry or termination, each Party shall: (a) hold in confidence the terms agreed within the Fees Form; (b) protect and safeguard the other Party’s Confidential Information with a reasonable standard of care; (c) not disclose the other Party’s Confidential Information to any person or entity other than its own representatives (including sub-contractors) who have a need to know such information and are subject to confidentiality obligations that are no less restrictive than the ones set forth herein; and (d) not use the other Party’s Confidential Information for any purpose other than as necessary to exercise its rights or perform its obligations under this Agreement.
Electronic signature. Each Party agrees that the Agreement and its signature can be established in electronic form (sending by way of a scanned copy sent via e-mail, or electronic signature by using means implemented by eFront) and that, in electronic form, they shall be deemed originals.
Assignment. Neither Party may assign this Agreement without the other Party’s written consent, which shall not be unreasonably withheld. Notwithstanding anything to the contrary, eFront shall be entitled to transfer its rights and obligations under this Agreement to an Affiliate.
No legal advice. Client acknowledges that eFront is not providing (nor shall it be held responsible for) any investment, legal, tax or regulatory advice (and Client should obtain separate, expert advice for each of these matters).
Subcontracting. Client acknowledges and agrees that eFront shall be entitled to subcontract all or part of the eFront Services.
Force majeure. Neither Party shall be liable for failure or delay in the fulfillment of any of its obligations hereunder (other than payment of Fees due) if and to the extent that such failure or delay is caused by a Force Majeure Event. The Party unable to fulfill its obligations shall promptly notify the other Party of the delay and the cause thereof and (without prejudice to Section 12.2) promptly resume performance as soon as it is possible to do so.
Notices. A notice required to be given under this Agreement must be in writing and sent by a Party to the other Party at the addressee details provided by personal delivery, express courier or recorded delivery. Notice shall be deemed effective on the date of receipt if personally delivered, or two days after deposit of the same if by recorded delivery. Each Party may update the addressee details by providing Notice to the other Party in accordance with this Section 14.6.
eFront shall process Client Personal Data only in accordance with Client’s written instructions, unless required to do so by the laws of the European Union or any other member state of the European Union (provided that eFront has, prior to the relevant processing, informed Client of such requirement (unless the relevant law prohibits such notification)). Both Parties hereby acknowledge and agree that this Agreement sets out the instructions according to which the Client Personal Data shall be processed;
Client acknowledges and agrees that eFront shall be entitled to subcontract all or part of the eFront Services to sub-processors appointed by or on behalf of eFront, to the extent necessary to fulfill its obligations under this Agreement. The current sub-processors (that are hereby approved by Client) are (i) AMAZON WEB SERVICES (AWS), (ii) eFront Ltd, United Kingdom, (iii) eFront d.o.o Beograd, Serbia, (iv) eFront Hong Kong Limited, Hong Kong and (v) eFront DR, S.R.L, Dominican Republic. Should eFront replace or appoint a new sub-processor, eFront will notify Client as soon as reasonably possible. The terms of engagement shall impose on the sub-processor the same data protection obligations as are set out in this Section 14.7, and subject to Section 11, eFront shall remain liable for any breach of the obligations set forth in this Section 14.7 by such sub-processors;
Client agrees not to do anything (or omit to do anything) or use the eFront Services in a manner which will put eFront in breach of its obligations under the Data Protection Legislation.
ensure that all persons authorized by it to access the Client Personal Data are bound by obligations of confidentiality that are substantially the same as those set out in this Agreement;
taking into account the nature of the processing, assist Client by appropriate technical and organizational measures, insofar as this is possible, for the fulfilment of Client’s obligation to respond to requests from data subjects exercising their rights under Chapter III GDPR;
take all measures required by it pursuant to Article 32 GDPR (“security of processing”);
assist Client in ensuring compliance by Client with its obligations under Articles 32 – 36 GDPR (“security of processing”, “notification of personal data breach…” and “data protection impact assessment”), taking into account the nature of the processing and the information available to eFront;
make available to Client all information necessary to demonstrate compliance with the obligations set out in this Section 14.7 and the relevant Data Protection Legislation, and shall, no more than once per year and on at least thirty (30) days’ notice, allow for and contribute to audits, including inspections, conducted by Client or an auditor approved by eFront to verify eFront’s compliance with the security and confidentiality provisions of this Agreement as regards the eFront Services. The auditor, whether external or internal, must sign a confidentiality agreement containing provisions substantially similar to the provisions set forth in the Agreement; and
process and retain the Client Personal Data for as long as eFront provides eFront Services. Upon termination of this Agreement, eFront will cease to process and shall delete all Client Personal Data collected and processed under the Agreement. Client may request in writing the return of the Client Personal Data, in which case such request must be sent by Client to eFront within thirty (30) Business Days as of termination or expiry of the Agreement. Following such period, the Client Personal Data may be deleted by eFront at any time, without any liability. Notwithstanding anything to the contrary herein, eFront may retain the Client Personal Data for archiving purposes and as necessary to comply with its legal and regulatory obligations);
upon Client’s request, and up to once a year, eFront will provide the Client with ISO 27001 certificate and SOC II Type 2 audit proof, in order to enable Client to reasonably verify eFront’s compliance with the security and confidentiality provisions set forth under this Section 14.7.
Client acknowledges and agrees that eFront shall be entitled to transfer Client Personal Data outside the European Union. eFront shall implement appropriate safeguards in this respect. The transfer of Client Personal Data shall be based on any adequacy decision provided by the European Commission or Standard Contractual Clauses. In this respect, eFront’s Affiliates located in the USA and involved in providing eFront Services under this Agreement are Privacy Shield certified; and
Each Party agrees that it will at all times comply with all requirements applicable to it under the Data Protection Legislation.
Export Law. Each Party acknowledges that use and access of eFront Services, information, including without limitation Confidential Information disclosed hereunder, may be subject to export control and economic sanctions of any United States or European Union export law and/or regulation, including, but not limited to ITAR and EAR, (“Export Laws”). Parties agree to comply with all applicable Export Laws, including the requirement to obtain a license or other approval for use and access of eFront Service, or before disclosing such information to foreign persons, organizations, or governments. Client or Authorized Users shall not directly or indirectly export, re-export, use, distribute, transfer, or transmit any item of information (even if incorporated into other products, software, and technical information) or access and use eFront Service in violation of the applicable Export Laws, including, but not limited to, ITAR and EAR.
Order of Precedence. Terms of this Agreement shall automatically supersede all prior terms that Client may signed up to access and use eFront Services.
15. Governing Law and Choice of Venue
This Agreement is governed by, and shall be construed in accordance with the substantive laws of the State of New York without regard to principles governing choice of law. The Parties agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
In case of dispute, the Parties will first endeavor to reach an amicable settlement within 30 days as of Notice by either Party to the other of the existence of such dispute.
IF NO AMICABLE SETTLEMENT CAN BE REACHED IN ACCORDANCE WITH SECTION 15.2, EACH PARTY IRREVOCABLY AGREES THAT THE NEW YORK COURTS SHALL HAVE EXCLUSIVE JURISDICTION TO SETTLE ANY DISPUTE OR CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, NOTWITHSTANDING MULTIPLE DEFENDANTS OR IMPLEADER, INCLUDING IN CASE OF URGENT OR INTERIM PROCEEDINGS, WHETHER SUMMARY OR EX PARTE, EXCEPT IN CASES WHERE THE CIVIL COURT HAS EXCLUSIVE JURISDICTION.