Application Terms of Use

This Application Terms of Use (these "Terms") is a legal agreement between you, the end user, and Advent Software, Inc., acting through its Black Diamond Performance Reporting division, and its affiliates ("Black Diamond"). Black Diamond is a division of Advent Software Inc. ("Advent"). The terms "you", "your, and "I" herein refer to, as applicable, the individual or organization accepting these Terms. If you are representing your organization, you are accepting these Terms for yourself and on behalf of your organization. You represent that you have full authority to bind your organization to these Terms and agree on behalf of your organization that it is responsible for all access to and use of the Application by end users who obtain access to the Application through your organization. You and your organization acknowledge and agree that Black Diamond has relied on the foregoing representation in permitting you and your organization’s end users to access and use the Application. PLEASE READ THE FOLLOWING TERMS CAREFULLY BEFORE ACCESSING OR USING THE APPLICATION OR THE BDREPORTING.COM WEBSITE.

Black Diamond makes available its services and related technology under an agreement with its customer (the "Customer Agreement") and, pursuant to such Customer Agreement and subject to these Terms, may make available certain of those services and technology to you. You acknowledge and agree that the Customer Agreement is solely for the benefit of Black Diamond and its customer and that neither you nor any investor, advisor, or other person or entity, is a beneficiary, intended or otherwise, of the Customer Agreement.

By clicking the "Accept" button or accessing or using Black Diamond’s then-current version of the proprietary application located at bdreporting.com (or such other internet address as Black Diamond may designate from time-to-time)(the "Application") in any way, including without limitation, using any information, and/or submitting any content or personal information via the Application, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including without limitation conducting this transaction electronically, third party terms and conditions, disclaimers of warranties, damage and remedy exclusions and limitations, and the choice of Florida law, without regard to its conflicts of laws principles. Black Diamond may modify these Terms from time to time and may notify you of such modifications by any reasonable means, including by posting the revised Terms on the Application. Any such modification will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms incorporating such modifications, or otherwise notified you of such changes. Please review the "Last Updated" legend at the top of these Terms to see when these Terms were last revised. Updates that are (i) required by law, government authorities or regulatory bodies, (ii) required by vendors, or (iii) do not materially impact your use of the Application will apply immediately. All other changes to these Terms will become effective three (3) business days after the revised Terms have been posted on the Application. Your continued access to or use of the Application following these changes means that you accept the revised Terms.

If you do not want to agree to these Terms, you should click the "Decline" button and immediately cease your access and use of the Application and the bd3.bdreporting.com website.

In exchange for your agreement to these Terms, Black Diamond grants you a limited, non-exclusive, non-transferable, revocable license, without right of sublicense, to use the Application solely in the United States and solely for your own personal, non-commercial, informational purposes, subject to the terms of any applicable agreement between you and Black Diamond. You agree that you shall only use the Application in a manner that complies with all applicable laws in the jurisdictions in which you use the Application, including, but not limited to, applicable restrictions concerning privacy, copyright and other intellectual property rights. As used herein the term Application also means interactive tools, quotes, products and services, research reports, and data concerning financial markets, securities and other subjects, some of which is supplied by companies that are not affiliated with any Black Diamond entity ("Third Party Content"). You acknowledge that information, materials, products, software and/or Third Party Content made available on the Application are subject to change at any time and without notice. You also acknowledge that Black Diamond may from time-to-time add or remove beta or other features within the Application without notice, and the use of or access to any added feature shall be governed by these Terms, provided that the use of any beta feature is at your own risk, if and for so long as available. All beta features are provided on an "AS IS" basis, and Black Diamond makes no warranties and disclaims all liability, direct or indirect, with respect to any and all such beta features.

Under these Terms, you may not and you may not allow others to:

1. Transfer your license to use the Application or sublicense or assign your license or your rights under it;
2. Use, download, copy, or transfer the Application or parts of the Application except as expressly permitted under these Terms;
3. Distribute, rent, sell, loan, lease, sublicense or otherwise deal in the Application and/or any elements of the Application;
4. Alter, adapt, merge, modify, translate, or create derivative works of the Application or any elements of the Application in any way, or for any purpose, other than with the prior written consent of Black Diamond;
5. Reverse engineer, disassemble, or de-compile the Application or otherwise attempt to obtain or perceive the source code for the Application;
6. Remove, change, or obscure any identification marks or notices of proprietary rights and restrictions in the Application or any elements of the Application;
7. Enable any timesharing or service bureau use of the Application to or on behalf of any third party;
8. Use the Application in any manner that could damage, disable, overburden or impair any Black Diamond network or server or for any unlawful or unauthorized purpose;
9. Attempt to gain unauthorized access to other accounts, computer systems or networks connected to any Black Diamond server or to any of the Application through hacking, password mining or any other means;
10. "hack", "crack" or "attack" the Application or any firewall, security mechanism, or digital rights management system within or relating to the Application, including, without limitation, websites or servers;
11. Attempt to obtain or obtain any materials or information through any means not intentionally made available through the Application;
12. perform, or release the results of, benchmark tests or other comparisons of the Application with other services;
13. Use the Application in a way that is illegal or otherwise harmful, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, age, or otherwise objectionable, or
14. Redistribute, copy, reproduce or disseminate to any person any information or content, including without limitation the Third Party Content, without Black Diamond’s prior written consent.

You authorize and grant (and you have obtained any necessary third party rights, consents, waivers, and/or approvals and provided any required notices to make such authorization and grant) to Black Diamond and its vendors the royalty-free right to collect, process, create, receive, store, access, track, aggregate, audit, reproduce, transmit, transfer, distribute, display, convert and/or otherwise use your (i) data for the purposes contemplated by these Terms and the Application; (ii) Usage Data and Relationship Data (as such terms are defined below) to deliver, monitor and manage services, provide support, improve service offerings, offer other services, for internal analysis purposes, and as otherwise contemplated by the Black Diamond Data Use Statement available at bdreporting.com; and (iii) Aggregate Data for any purpose. You agree that Black Diamond and its vendors may use your data, Usage Data, and Relationship Data to generate Aggregate Data, provided that any Aggregate Data that identifies you shall be used solely to deliver and manage services, provide support, improve service offerings, offer other services, for internal analysis purposes, and as otherwise contemplated by the Black Diamond Data Use Statement. "Usage Data" means information about you and your usage of the Application, such as access and usage data (including without limitation user’s IP address, time stamps, clickstream information, and details of activity on the Application), system performance data, and other information related to software and hardware used by you. "Relationship Data" means information that Black Diamond collects during the registration, activation and maintenance of your account. Such information may include, without limitation, your name and contact details or names and contact details of your users involved in maintaining or using the Application. "Aggregate Data" means any data that has been aggregated in a manner that does not contain any personal identifiable information.

You shall be solely responsible for the accuracy, completeness, timeliness, quality, integrity, backup, archives, legality, reliability and appropriateness of data you submit through the Application.

You are solely responsible for maintaining compatible mobile and other devices used to access the Application, and any Internet and network access, and all charges related thereto. You shall select, protect, and maintain a user name and password in accordance with Black Diamond’s instructions and published procedures. You will at all times be responsible for maintaining the security of, and any access to or use of, your user name and password. You accept and acknowledge that you will be responsible for all activities that occur under your user name, including dealings with third parties that take place through the Application, and you will hold Black Diamond harmless from any claims related to such activities. You shall promptly notify Black Diamond of any loss, theft or unauthorized use of your password of which you become aware. Black Diamond and its vendors shall not be responsible or liable for the deletion, destruction, damage, loss or failure to store any data uploaded or submitted to the Application.

None of the information contained in the Application is to be construed as investing advice, nor should it be used by others in connection with any sale, offer for sale or solicitation of an offer to buy securities or any other instruments. The materials and information present though the Application is for informational purposes only, and is not an offer or recommendation to buy or sell or a solicitation of an offer to buy or sell any security or instrument or to participate in any particular trading strategy. Black Diamond provides you with access to a variety of resources, including information, content, tools, products and services. You are solely responsible for determining whether any investment, investment strategy, security or related transaction is appropriate for you and/or your clients based on your clients’ personal investment objectives, financial circumstances and risk tolerance. You should consult your financial, legal or tax professional regarding your specific situation.

Black Diamond is not acting as a fiduciary or endorsing any company, products, services or securities by publishing any information contained on this Application. We do not warrant or guarantee the accuracy or timeliness of any such information or data and disclaim all liability for investment or other decisions based upon this information. Black Diamond specifically disclaims any and all liability or loss arising out of any action taken in reliance on this information, including but not limited to market value loss on the sale or purchase of securities or other instruments or obligations

Third Party Content is available through framed areas, through hyperlinks to third party websites, or is published or provided through the Application. The Third Party Content is protected by copyright pursuant to United States laws and international treaties, is owned or licensed by the Third Party Content provider(s) credited, are subject to supplemental third-party terms set forth at the end of these Terms (See Supplemental Terms) and, for certain Third Party Content, are subject to additional terms between you and such Third Party Content providers as set forth through framed areas, hyperlinks, or otherwise through the Application ("Additional Third Party Terms"). You acknowledge and agree that the Third Party Content licensed to Black Diamond is subject to automatic termination, in whole or in part, without liability on the part of Black Diamond upon the discontinuation or termination of the provision thereof to Black Diamond.

You acknowledge and agree that these Terms only govern your relationship with Black Diamond and unless expressly set forth herein do not affect your legal relationship with such Third Party Content providers. You bear all risk associated with use of or reliance upon Third Party Content.

You agree that any information you provide to Black Diamond in connection with your use and access of the Application and the bd3.bdreporting.com website shall be governed by Black Diamond’s Data Use Statement located at bdreporting.com (or such other internet address as Black Diamond may designate from time-to-time), which is incorporated into these Terms by reference. Any information you provide to Third Party Content providers, including but not limited to any credentials you use to log into portals at your financial institutions, shall be governed by the applicable Additional Third Party Terms.

By virtue of these Terms, either party may have access to Confidential Information, which is defined herein as including without limitation the Website, Application and any Modifications thereto, Third Party Content, client account information, and proprietary information of Black Diamond that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as expressly permitted herein, you may not allow access to, use or disclosure of, Black Diamond’s, its affiliates’ or their suppliers’ Confidential Information to third parties. You hereby authorize Black Diamond to provide your data to (i) third party partners, vendors, custodians, and agents engaged and/or used by Black Diamond; and (ii) affiliates of Black Diamond to perform the services contemplated hereunder.

Black Diamond will maintain physical, electronic and procedural safeguards reasonably designed to: ensure the security and confidentiality of client account information stored in the Application and protect against anticipated threats or hazards to or unauthorized access to or use of such account information.

Your rights to use and access the Application may be suspended or terminated automatically, without notice or refund, if you fail to comply with any of these Terms or those of the Agreement (as defined in Section 17), including without limitation the failure to pay any amount due to Black Diamond under the Agreement. Furthermore, notwithstanding anything to the contrary herein or in the Agreement, if applicable, you agree that Black Diamond may (without limiting any other rights or remedies available to Black Diamond) immediately and without notice to you, access, disable or remove data, halt internet traffic or communications to or from all servers or workstations containing data or to any service, or take any other actions that Black Diamond determines, in its sole discretion, may be necessary: (i) to respond to an actual or suspected security threat or to limit a party’s potential exposure as a result of a security threat; (ii) to respond to service or technical problems or as requested by you; (iii) to comply with applicable laws and/or requests from government authorities and regulatory bodies, or where your use of the Application causes Black Diamond to be in violation or potential violation of laws, regulations or government or regulatory body requirements; or (iv) to respond to actual or suspected fraudulent or other illegal activity or to prevent actions that may compromise the integrity, performance or security of the Application or any Black Diamond service. These Terms also will terminate automatically and your access to the Application will be terminated without notice if you become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative receiver or other receiver appointed, or if you suffer or file any similar action in consequence of debt. In the event these Terms are terminated, Sections 1, 2, 4 and 6-18 shall survive

BLACK DIAMOND AND ITS LICENSORS AND SUPPLIERS ARE PROVIDING THE APPLICATION TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. BLACK DIAMOND AND BLACK DIAMOND’S LICENSORS AND SUPPLIERS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE APPLICATION PROVIDED TO YOU UNDER THESE TERMS. BLACK DIAMOND EXPRESSLY AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, WORKMANLIKE EFFORT, COURSE OF DEALING, TITLE, NONINFRINGEMENT, ACCURACY, TIMELINESS OR COMPLETENESS OF THE APPLICATION AND WITH RESPECT TO THE USE OF THE APPLICATIONOR THAT DEFECTS, IF ANY, APPLICATION WILL BE CORRECTED.

No employee, agent, representative, or affiliate of Black Diamond has authority to bind Black Diamond to any oral representations or warranty concerning the Application. Any written representation or warranty made by an employee, agent, representative, or affiliate of Black Diamond that is not contained in these Terms will not be enforceable.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLACK DIAMOND AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY OF THE FOLLOWING, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE: LOSS OF BUSINESS, LOSS OF REPUTATION, LOSS OF PROFITS OR GOODWILL, LOSS OF USE, LOSS OR DAMAGE TO OR CORRUPTION OF DATA, THE UNAUTHORIZED DISCLOSURE OF SENSITIVE, VALUABLE, OR CONFIDENTIAL INFORMATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM THE APPLICATION, THE THIRD PARTY CONTENT OR YOUR USE OF THE APPLICATION OR THIRD PARTY CONTENT, AND/OR ANY COSTS OF PROCURING SUBSTITUTE GOODS, APPLICATION, TECHNOLOGY, OR RIGHTS. THIS LIMITATION SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, IN EITHER CASE CAUSED BY, RESULTING FROM OR RELATING TO THE USE OF OR INABILITY TO USE THE APPLICATION.

YOU ACKNOWLEDGE AND AGREE THAT THE COMMERCIAL AND ECONOMIC TERMS UPON WHICH BLACK DIAMOND AGREES TO LICENSE THE APPLICATION HAVE BEEN CONDITIONED TO A SUBSTANTIAL EXTENT BY THE ABILITY OF BLACK DIAMOND TO MAKE AND ENJOY THE FULL PROTECTION OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND YOU AGREE, REPRESENT AND CONFIRM THAT THE CONTENTS OF SECTIONS 6 AND 7 ARE FAIR AND REASONABLE.

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THESE TERMS IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND BLACK DIAMOND OR ITS LICENSORS OR SUPPLIERS BECOME LIABLE FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OR $1,000.00, WHICHEVER IS LESS.

The Application is owned exclusively by Black Diamond and/or its licensors. All rights, title and interest in and to the Application, including without limitation any corrections, updates, enhancements or modifications thereto (collectively, "Modifications") whether made by you, Black Diamond or any third-party and you hereby assign to Black Diamond any rights in and to such Modifications. All copyright, trade secret rights, patent, trademark, and any other intellectual property or proprietary rights in and to the Application and Modifications shall at all times remain the exclusive property of Black Diamond and/or its licensors. All rights not expressly granted under these Terms are reserved by Black Diamond. No suggestions, feedback, enhancement requests, recommendations or other disclosures related to the Application or other Black Diamond services ("Feedback") made by you shall create any fiduciary or other obligation on the part of Black Diamond, and you hereby acknowledge and agree that such Feedback is not confidential. Black Diamond retains all right, title and interest in the Feedback. You hereby grant Black Diamond the unconditional, irrevocable right to use, commercialize and/or disclose any such Feedback as Black Diamond sees fit (including without limitation incorporating any such Feedback into the Application), without obligation of any kind.

If you are the owner of a copyrighted work and believe that your rights under U.S. copyright law have been infringed by any material on the Application, you may notify Black Diamond by sending Black Diamond’s designated agent a notification of claimed infringement that satisfies the requirements of Section 512(c)(3) of the U.S. Copyright Act. Notifications that do not comply with Section 512(c)(3) will not be considered. Notices must be sent to Black Diamond’s designated agent at the following address:

By Mail: Richard Pugh, Chief Security Officer Advent Software, Inc. 600 Townsend Street San Francisco, CA 94103 By Phone: (415) 645-1025 By fax: (415) 556-0626 By email: rpugh@advent.com

You agree to indemnify and hold Black Diamond, its parent company, subsidiaries, and affiliates harmless from and against any damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) arising out of claims related to your use of the Application, data, and/or violation of these Terms.

You agree that if you violate or threaten to violate any of these Terms, Black Diamond and its licensors and suppliers will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages, in addition to any other legal, equitable, or financial remedies to which Black Diamond or its licensors or suppliers may be entitled.

As defined in FAR Section 2.101, DFAR Section 252.227-7014(a)(1) and DFAR Section 252.227-7014(a)(1) or otherwise, the Software is a "commercial item," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of these Terms and shall be prohibited except to the extent expressly permitted herein.

1. Failure by Black Diamond to enforce any particular term herein shall not be construed as a waiver of any of Black Diamond’s rights under it.
2. If any part of these Terms is held by a court of competent jurisdiction to be unenforceable for any reason whatsoever, you and Black Diamond agree that the validity of the remainder of the terms will not be affected
3. The validity, interpretation, construction, and performance of these Terms shall be governed by the laws of the State of Florida, without giving effect to the principles of conflict of laws. Any action under these Terms or related to the Application shall be commenced solely and exclusively in the state or federal courts located in Jacksonville, Florida. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE APPLICATION. You agree that you will not contest venue, and you waive any rights that you may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms.
4. No variation, amendment of, or addition to these Terms shall be effective without Black Diamond’s prior written consent.

Black Diamond may make available a single sign on functionality ("SSO Functionality") to permit you to use the same password(s) to access: (i) Black Diamond service and product entitlements, including without limitation the Application ("BD Environment"); (ii) your internal computing environment ("Your Internal Environment"); and/or (iii) your environment on third-party products, services, system(s) or software ("Your External Environment"). Collectively, the three preceding environments will be referred to herein as the "Environments". To the extent that SSO Functionality is available for your Environments you agree and accept the additional terms under this Section 14, and you will be responsible for obtaining all necessary rights to access and use such Environments via the SSO Functionality, and in ensuring compliance with your obligations hereunder and your agreement with third-party owners of Your Internal and External Environments. Black Diamond may provide your vendors ("Your Vendors") with access to and use of your Environments (including any information stored therein).

You will defend, indemnify and hold Black Diamond harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any third-party claim made or brought against Black Diamond arising out of or related to: (i) the SSO Functionality and your Environments (including any information stored therein); (ii) Black Diamond’s actions authorized herein (including without limitation accessing, using, or displaying your information from the BD environment in Your External Environment), (iii) Your Vendor access to the BD Environment (including without limitation your information contained therein); or (iv) any claims of intellectual property infringement or breach of confidentiality that arise as a result of the SSO Functionality or Black Diamond’s actions authorized herein; provided, that Black Diamond (a) promptly gives written notice of any such claim(s) to you; (b) gives you sole control of the defense and settlement of the claim(s) (provided that you shall not settle any such claim unless it unconditionally releases Black Diamond of all liability); and (c) provides to you, at your cost, all reasonable assistance.

Black Diamond makes no representations or warranties regarding your right or ability to use or access any Environment via the SSO Functionality and does not represent or warrant that your use of any Environment via the SSO Functionality will be uninterrupted, error-free or will meet your requirements. You understand and agree that access to your Environments may be terminated or suspended by Your Vendor and that Black Diamond will not be liable for any claims as a result of such termination or suspension. In the event Your Vendor modifies Your External Environment or you modify Your Internal Environment, the SSO Functionality provided hereunder may temporarily cease to function as Black Diamond works with you or Your Vendor(s), as applicable, to update the SSO Functionality. You agree that Black Diamond is not obligated to monitor your use of the Environments.

You understand and agree that in the event (i) the Agreement, (ii) agreement that you have with Your Vendor, or (iii) agreement that Black Diamond has with Your Vendor, if any and as applicable, terminates, you will no longer have access to applicable Environment(s) or Your Vendors’ applicable interface(s) through which you receive Black Diamond’s data into Your External Environment ("Connectivity Products"). Black Diamond will not be liable to you for any claims resulting from such termination. In order to renew your license to the Connectivity Products, you must be current in your payments for the BD Environment.

Black Diamond is willing to make the SSO Functionality available to you only upon the condition that you specifically agree and accept that the terms under this Section 14 will override any conflicting terms from the Agreement, if applicable, or any other agreement between you and Black Diamond, and you agree that your liability under this Section 14 will not be capped by any limitation or exclusion of liability. IF YOU DO NOT AGREE TO THESE TERMS, IN PARTICULAR THE TERMS UNDER SECTION 14, DO NOT ACCESS OR USE THE SSO FUNCTIONALITY.

Black Diamond may allow you to transmit and store information exchanged with your investment advisor or third party ("Advisor") relating to the operation of Advisor’s business with you (the, "Document Vault"). To the extent you access or use the Document Vault functionality, you agree and accept the additional terms under this Section 15.

Black Diamond confirms that it deploys generally accepted industry methods, including encryption, to secure data in transmission and storage. For the avoidance of doubt, as between the parties, you own all rights, title and interests in and to the information you transmit and store via the Document Vault.

BLACK DIAMOND PROVIDES THE DOCUMENT VAULT "AS IS", "AS AVAILABLE", AND "AT YOUR OWN RISK".

YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT IN THE USE OF THE DOCUMENT VAULT AND THAT BLACK DIAMOND, ITS AFFILIATES AND SUPPLIERS: (I) ASSUME NO LIABLITY FOR ANY ACCESS TO, USE OF OR INFORMATION CONTAINED IN THE DOCUMENT VAULT; (II) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, RESULTS, ACCURACY, COMPLETENESS, AVAILABILITY, TIMELINESS, SECURITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE FOR THE DOCUMENT VAULT(INCLUDING WITHOUT LIMITATION ANY INFORMATION CONTAINED THEREIN OR USED THEREWITH); AND (III) HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE DOCUMENT VAULT (INCLUDING WITHOUT LIMITATION ANY INFORMATION CONTAINED THEREIN OR USED THEREWITH), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, IN ANY EVENT, MAXIMUM LIABILITY WILL NOT EXCEED FIVE HUNDRED DOLLARS ($500). THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

IN NO EVENT SHALL YOU UPLOAD, SUBMIT, OR ALLOW SUBMISSION TO BLACK DIAMOND ANY PERSONAL HEALTH INFORMATION AND/OR ANY OTHER INFORMATION THAT COULD BE CONSIDERED RELATED TO HEALTH OR MEDICAL INFORMATION UNDER APPLICABLE LAW. YOU SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, BACKUP, ARCHIVES, QUALITY, INTEGRITY, LEGALITY, RELIABILITY AND APPROPRIATENESS OF INFORMATION IN THE DOCUMENT VAULT.

You hereby release and hold harmless Black Diamond, its officers, directors, employees, agents, affiliates and suppliers from any liability, claims, demands or causes of action, damages or expenses resulting from your access to or use of the Document Vault (including without limitation any information contained therein or used therewith).

You will defend, indemnify and hold Black Diamond, its officers, directors, employees, agents, affiliates, and suppliers harmless from and against any loss, damage or costs (including reasonable attorneys’ fees) incurred in connection with any third-party claim made or brought against Black Diamond arising out of or related to your access to or use of the Document Vault (including without limitation any information contained therein); provided, that Black Diamond (a) promptly gives written notice of any such claim(s) to you; (b) gives you sole control of the defense and settlement of the claim(s) (provided that you shall not settle any such claim unless it unconditionally releases Black Diamond of all liability); and (c) provides to you, at your cost, all reasonable assistance.

You understand and agree that upon termination of the Agreement, if applicable, and notwithstanding anything to the contrary in such Agreement, Black Diamond will not be responsible for, nor will it assist in the transfer of, any information placed in the Document Vault to you or to any other vendor. The transfer of such documents upon termination will be your sole and exclusive responsibility. Any information contained in the Document Vault following termination or expiration of the Agreement will be subject to Black Diamond’s then current document retention policy.

You represent and warrant that you have obtained all necessary authority or consents required to allow any information to be transmitted by, or accessed or used in, the Document Vault.

If you direct or cause any confidential information to be used, provided, disclosed or otherwise made available to a party in connection with the Document Vault, Black Diamond shall have no liability to the extent that Black Diamond fulfills or facilitates any interaction with such party. Black Diamond shall be entitled to rely upon any request by you or your representatives for making any information available in connection with the Document Vault without any obligation by Black Diamond to confirm or inquire into the accuracy, legality, validity, or genuineness of such request.

Black Diamond is willing to make the Document Vault functionality available to you only upon the condition that you specifically agree and accept that the terms under this Section 15 will override any conflicting terms from the Agreement, if applicable, or any other agreement between you and Black Diamond and you agree that your liability under this Section 15 will not be capped by any limitation or exclusion of liability. IF YOU DO NOT AGREE TO THESE TERMS, IN PARTICULAR THE TERMS UNDER SECTION 15, DO NOT ACCESS OR USE THE DOCUMENT VAULT FUNCTIONALITY.

You acknowledge that these Terms have the same force and effect as a signed agreement.

These Terms, and any written addendum or amendment signed by Black Diamond to these Terms, and if a written Master Subscription Agreement or Service Agreement, including any exhibits and data sheets thereto (collectively, the Agreement") is in effect between you and Black Diamond, are the entire agreement between you and Black Diamond with respect to the Application and supersede all previous communications, representations, understandings, and agreements, either oral or written, with respect to the Application or other subject matter covered by these Terms. To the extent of any conflict or inconsistency between the provisions of the body of these Terms and the Agreement, the terms of the Agreement shall prevail unless the provisions herein specifically state otherwise, in which case such provisions shall prevail.