This Master Services Agreement (this “MSA”), is made as of the Effective Date set forth in the Subscription Plan (such Subscription Plan, the “Subscription Plan” and, as incorporated by reference in this MSA, the “Agreement”) agreed upon by and between Hamilton Lane Advisors, L.L.C., a Pennsylvania limited liability company, with its principal place of business at One Presidential Blvd., 4th Floor, Bala Cynwyd, Pennsylvania 19004 (“Company”), and Client (as identified in the Subscription Plan) with a principal place of business as set forth in the Subscription Plan, (each, a “Party” and, collectively, the “Parties”).
WHEREAS, Company is in the business of, inter alia, providing certain Internet-based software, data and services for the purpose of managing, reporting and analyzing data pertaining to Client’s investment activities; and
WHEREAS, Client wishes to obtain from Company, and Company wishes to provide to Client, a license to such software, data and related services, as hereinafter described.
NOW, THEREFORE, in consideration of the mutual covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto hereby agree as follows.
1. Definitions. The following terms shall have the following meanings when used in the Agreement. Definitions for certain other defined terms are set forth elsewhere in the Agreement.
“1st Level Support” means the support services including opening and tracking all problem reports and performing all initial problem analysis, diagnosis and replication of problems.
“2nd Level Support” means problem isolation, identification, and replication; providing standard fixes and workarounds to known problems; providing remedies for both new and known complex problems; and escalating unresolved problems or those requiring formal fixes to the highest level of support, resolution of problems through generation of formal fixes; and assistance requiring knowledge of source code.
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. The term “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Documentation” means any user guides and user manuals for the Software that Company makes available to Client.
“Investments” means investments and prospective investments by Client, directly or indirectly, in investment funds and operating companies, including without limitation investments by such funds and companies.
“Services” means the services provided by Company to Client to deploy and/or operate the Software on Client’s behalf, as described on Schedule B.
“Software” means: (a) the commercially available suite of software programs, components, functions, screen designs and report formats available as a service over the Internet (in object code format only) as provided by Company to Client, including the software that is described on Schedule A, and (b) any Updates to the foregoing.
“Term” means the Initial Term and any Renewal Terms.
“Update” means each new release, upgrade, enhancement, modification, improvement, update or customization of the Software that Company makes generally available to its other clients at no additional cost in its discretion.
2. License.
2.1 License Grant. Subject to the terms and conditions of the Agreement, Company grants to Client, starting on the Commencement Date (defined below), a non-exclusive, non-sublicensable, non-transferable, royalty-bearing worldwide right and license for Client and its Affiliates to internally access and use the Software solely for Client’s internal business purposes of managing and monitoring the Investments’ financial and operating metrics and analyzing market data. Client will remain solely responsible for any use of the Software by any of its Affiliates, and will indemnify Company for any liabilities, losses, damages, expenses, claims, actions or proceedings arising from any such use by Client or any Client Affiliate.
2.2 Third Party Software. The Software includes software and data (“In-Licensed Material”) that is licensed from and owned by Boston Illiquid Securities Offering Network, Inc. a Delaware corporation, with offices at Two Financial Center 60 South St., Suite 820, Boston, MA 02111 (“BISON”). Client’s use of the In-Licensed Material is subject to the Licensed Software Terms of Service and Privacy Policy, available at https://www.bison.co/terms-of-service/ and https://www.bison.co/privacy-policy/ respectively (collectively, the “BISON Terms of Service”), which are hereby incorporated into the Agreement. Client unconditionally agrees that BISON is an intended third party beneficiary of the Agreement solely to the extent necessary to enforce BISON’s rights in and to the In-Licensed Material. Client hereby agrees that its use of the Software shall be in accordance with the BISON Terms of Service in all respects. To the extent that BISON is unable to exercise its rights under the Agreement as a third party beneficiary, Client agrees that Company may have the benefit of BISON’s rights hereunder (including without limitation those rights concerning confidentiality and intellectual property) and may transfer such rights and benefits to BISON. Notwithstanding anything to contrary in this Agreement, in the event of any conflict between Bison Terms of Service and the terms of this Agreement, the Bison Terms of Service will control to the extent such conflicting term directly relates to In-Licensed Material.
2.3 Restrictions on Use. In addition to any restrictions set forth on Schedule A, Client will not (and will not permit its Affiliates or any third party to): (a) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code, underlying organization, structures, ideas, algorithms, file formats, or interface protocols of the Software (except and only to the extent this restriction is expressly prohibited by applicable statutory law for the purposes of inter-operability); (b) copy, modify, adapt, translate, resell or distribute the Software; (c) except as otherwise expressly set forth on Schedule A, encumber, sublicense, distribute, transfer, rent, lease, use or make the Software available on a “service bureau” basis, time-share, software-as-a-service or other similar service or allow any parties, other than Client’s Affiliates, to use (or benefit from the use of) the Software; (d) remove, obscure or modify any proprietary marking or restrictive legends placed or displayed on the Software; (e) hack, manipulate, interfere with or disrupt the integrity of or otherwise attempt to gain unauthorized access to the Software, (f) use the Software in violation of any applicable law or regulation, (g) use any Company Confidential Information (defined below) to create any software or documentation that is similar to the Software, (h) copy, adapt, translate, localize, port, combine, integrate, bundle, create derivative works of or otherwise modify any of the Software; or (i) use or permit the transfer, transmission, export or re-export of all or any part of the Software in violation of any export control laws or regulations of the United States or any other relevant jurisdiction.
2.4 Title. Client acknowledges and agrees that, as a result of the Agreement or any use permitted hereunder or any use of the Software, Client is not acquiring and will not acquire any ownership of or to the Software and is not permitted to sublicense the Software. Except for the limited rights and licenses granted herein, Company retains all right, title and interest in and to the Software.
2.5 Support. Starting on the Commencement Date, Company shall provide the 1st Level Support for the Software and Services to Client, and Company shall procure to provide any necessary 2nd Level Support for the Software and Services to Client. Support during Hamilton Lane’s normal business hours (8:30am to 5:30pm EST) will be provided via phone (+1-866-7-COBALT) or email (support@cobaltlp.com). Outside of normal business hours, Client may send service requests via email (support@cobaltlp.com). Subject to Section 5, Company shall have the right to use and/or subcontract with third parties to perform the services hereunder, provided that Company is not released from responsibility for its obligations under the Agreement.
2.6 Client and Company Data.
(a) Any and all data provided or otherwise made available by Company to Client pursuant to the Agreement, including all related analyses, opinions and conclusions (“Company Data”) is and shall remain the exclusive property of Company and its suppliers, respectively. Except for the limited license rights expressly granted in the Agreement, Client has no right, title or interest in or to Company Data. Subject to the terms and conditions of the Agreement, Client is hereby granted a non-transferable, non-sublicenseable limited license to use Company Data solely (i) in connection with using the Software in accordance with the Agreement, (ii) for internal use only, or (iii) as displayed in reports generated during the Term of the Agreement, provided that (x) Company Data used in such reports and communications does not constitute a material portion of the overall Company Data provided by Company to Client, (y) the delivery of Company Data by Client in any such reports and communications is not in a machine-readable format, and (z) any such reports clearly display “Cobalt” as the source of data.
(b) Any data entered into the Software by Client or provided by a third-party (other than Company or BISON) to Client in connection with Client’s use of the Software (“Client Data”), is owned by Client and may be copied, displayed, distributed and used by Company only in connection with performing its obligations under the Agreement.
3. Payment.
3.1 Client shall pay Company (or such Affiliate of Company as Company may indicate to Client) the fees set forth on Schedule A (“Software and Data License Fees”) and Schedule B (“Services Fees“)and together with Software and Data License Fees, the “Fees“), plus any sales or use taxes, as applicable. All Fees are immediately due and payable on the date of commencement of the license and service hereunder (the “Commencement Date“). For the avoidance of doubt, Client’s access to the Software will be contingent upon receipt of all applicable Fees. After thirty (30) days, Company may charge interest at the lesser of the rate of one (1%) per month or the maximum rate allowed by applicable law on any undisputed amounts due but unpaid not received within five (5) days after such notice.
3.2 All amounts payable by Client to Company under the Agreement are exclusive of any sales, use and other taxes or duties, however designated, including without limitation, withholding taxes, royalties, know‑how payments, customs, privilege, excise, sales, use, value‑added and property taxes (collectively “Taxes“). Client shall be solely responsible for payment of any Taxes, except for those taxes based on the income of Company. Client will not withhold any Taxes from any amounts due Company.
4. Terms and Termination.
4.1 Term. The term of the Agreement shall be as set forth on Schedule A.
4.2 Termination. Either Party may terminate the Agreement in the event of a material breach by the other Party (the “Defaulting Party”) of any of its obligations and failure by the Defaulting Party to remedy such breach within thirty (30) days after written notice. In the event of such a termination by Client, Company shall promptly refund to Client the pro rata unused portion of any prepaid Fees, charges and other amounts relating to the Software. In the event of such a termination by Company, Company shall retain any unused portion of any prepaid Fees, charges and other amounts relating to the Software.
4.3 Matters upon Termination. Upon the termination of the Agreement for any reason each Party shall, upon the other Party’s request, return all copies of any and all data and materials (including, without limitation, any Confidential Information) to the Party that owns or originally provided them, or shall destroy all such data and materials. Except as set forth in Section 9.9, each Party’s rights, including the rights of any Affiliates under the Agreement, shall cease immediately upon the expiration or termination of the Agreement for any reason.
4.4 Right to Suspend. Company may temporarily suspend Client’s or any of its Affiliates’ access to the Software or any portion thereof if Company reasonably determines that: (a) there is a threat or attack on the Software or other event that may create a risk to the Software or Client or any other client of Company, (b) Client’s use of the Software or any Client Data (if applicable) disrupts or poses a security risk to the Software or any other Company client, or (c) Client is using the Software for fraudulent or illegal activities or in violation of the terms of the Agreement (collectively, “Service Suspensions”). Company will provide written notice of any Service Suspension to Client and to provide updates regarding resumption of the Software following any Service Suspension. Client will not be entitled to a refund of any Fees or service credits for any Service Suspension.
5. Confidentiality.
5.1 All information regarding the operations and investments of Client (“Client Confidential Information”) shall be treated as confidential by Company, except for information that (i) is publicly available other than as a result of disclosure by Company, (ii) becomes known to Company from a non-confidential source that, to Company’s knowledge, is not bound by a duty of confidentiality to Client with respect to such information, or (iii) Company is required by applicable law, regulation or rule to disclose; provided, however, except in the case of information requested in connection with routine regulatory examinations of Company, and unless prohibited by law, regulation or rule, Company shall give prior timely notice of any request of disclosure to Client to permit Client to seek a protective order or other appropriate remedy.
5.2 All information regarding Company’s analyses, opinions and conclusions with respect to Investments provided to Client, including without limitation, Company Data and any and all software and source code relating thereto (“Company Confidential Information” and together with Client Confidential Information, “Confidential Information”), shall be treated as confidential by Client and shall not be disclosed to any person or entity other than to Client and its officers, employees, directors, agents and advisors, except for information that (i) is publicly available other than as a result of disclosure by Client’s officers, employees or agents, (ii) becomes known to Client from a source that, to Client’s knowledge, is not bound by a duty of confidentiality to Company with respect to such information, or (iii) Client is legally required to disclose; provided, however, Client shall, unless prohibited by law, give prior timely notice of any request for legally required disclosure to Company to permit Company to seek a protective order or other appropriate remedy.
5.3 Each party’s obligation under this Section 5 shall survive for two (2) years following the date of termination of the Agreement.
6. Indemnification.
6.1 Company agrees to, at its expense, defend Client, its Affiliates and their respective directors, officers, employees and agents (“Client Indemnitees”) against any third party claim or action threatened or brought against any Client Indemnitees (a) that the exercise of any right or license in or to the Software (not including any In-Licensed Code which is the subject of an open source license) when used in accordance with the terms and conditions of the Agreement, infringes or misappropriates any third party’s patent, copyright, or trade secret or other intellectual property or other proprietary right. Further, Company agrees to indemnify and hold harmless Client Indemnitees against any liability, cost, damage, expense and loss (“Losses”) that is awarded to a third party by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Company, in connection therewith, including reasonable attorneys’ fees and expenses.
6.2 Client shall, at its own cost, indemnify, defend, and hold harmless Company and its officers, directors, employees, and agents from and against any Indemnified Claim, to the extent that it is based on any assertion by a third party arising out of: (a) the use of the Software by Client or any Client affiliate in violation of the Agreement; or (b) the use of Client Data by Company in accordance with the Agreement. Client shall pay all Losses incurred by Company with respect to any Indemnified Claim.
6.3 A Client Indemnitee shall give Company (a) prompt written notice of any claim or allegation giving rise to an indemnification obligation pursuant to Section 6.1, (b) control of the defense and settlement thereof, provided that without limiting the foregoing, a Client Indemnitee may participate in the defense of any such claim or allegation at its expense with counsel of its own choosing, and (c) reasonable assistance in such defense or settlement.6.4 If any part of the Software becomes or, in Company’s opinion, is likely to become the subject of an injunction, Company may, at its option, (i) procure for Client the right to continue using such part of the Software, (ii) replace or modify such part of the Software so that it becomes non-infringing without substantially compromising its functionality, or, only if (i) and (ii) are not reasonably available to Company, then (C) terminate Client’s sublicense to such part of the Software.
6.5 SECTIONS 6.1, 6.3, 6.4 AND 8 STATE THE ENTIRE LIABILITY OF COMPANY, AND THE SOLE REMEDY (AT LAW OR IN EQUITY), WHETHER STATUTORY, CONTRACTUAL, EXPRESS, IMPLIED OR OTHERWISE OF CLIENT, WITH RESPECT TO THE INFRINGEMENT OR MISAPPROPRIATION OF ANY COPYRIGHT, PATENT, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY OR PROPRIETARY RIGHTS OF ANY THIRD PARTY. Sections 6.1, 6.3 and 6.4 shall not apply to: (A) Software that has been modified by any party other than Company or a party authorized by Company to make such modifications, to the extent the alleged infringement or misappropriation would not have occurred but for such modification, (B) Software that has been combined or bundled with any other products, processes or materials to the extent the alleged infringement or misappropriation would not have occurred but for such combination, or (C) infringement or misappropriation of any proprietary right in which Client has an ownership interest, to the extent such claim relates specifically to such proprietary right.
7. Representations and Warranties.
7.1 As of the Effective Date and at all times thereafter, each of the Parties represents and warrants that:(a) the Agreement constitutes its valid and binding obligation and is enforceable against it in accordance with the terms of the Agreement;(b) the execution and delivery of the Agreement by it and the performance of its obligations hereunder: (i) are not in violation or breach of, and will not conflict with or constitute a default under, any material contract, agreement or commitment binding upon it; and (ii) will not conflict with or violate in any material manner, any applicable law, rule, regulation, judgment, order or decree of any government, governmental instrumentality or court having jurisdiction over such Party; and(c) it is in compliance with all applicable federal, state and local laws, rules, regulations and ordinances, and all binding orders of any court, agency or other governmental body with appropriate authority and has obtained all applicable permits and licenses required of such Party in connection with their obligations under the Agreement.
7.2 Client hereby represents warrants and covenants that:(a) Client is an “accredited investor” under Regulation D promulgated under the Securities Act of 1933, as amended, on the basis that it is an entity with total assets in excess of $5,000,000; and(b) Client is a “qualified purchaser” under the Investment Company Act of 1940, as amended (the “1940 Act”) as that term is defined in Rule 2a51-1 under the 1940 Act, and it is not an entity that is excepted from the definition of an “investment company” under the 1940 Act pursuant to Section 3(c)(1) or Section 3(c)(7) thereof.
7.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS ARTICLE 7, BOTH PARTIES DISCLAIM ALL OTHER WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTY REGARDING THE INFORMATION CONTAINED IN OR DERIVED FROM THE SOFTWARE, OR ANY RESULTS FROM ITS USE, INCLUDING THEIR ACCURACY, COMPLETENESS, RELIABILITY AND SUITABILITY. THE SOFTWARE IS PROVIDED “AS IS.” COMPANY DOES NOT WARRANT THAT THE SOFTWARE WILL OPERATE UNINTERRUPTED OR ERROR-FREE. CLIENT ACKNOWLEDGES THAT IT SHALL MAKE ALL INVESTMENT AND FINANCIAL DECISIONS RELATING TO ITS USE OF THE SOFTWARE BASED UPON ITS OWN DETERMINATION AND AT ITS OWN RISK. Client further acknowledges that neither the Software nor the Services are intended to constitute, and shall not be deemed to constitute, the provision by Company of investment advice to Client.
8. Limitation of Liability.
8.1 IN NO CASE SHALL COMPANY’S MAXIMUM LIABILITY FOR DIRECT DAMAGES ARISING OUT OF THE AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE, EXCEED IN THE AGGREGATE, THE SUM OF THE AMOUNTS PAID TO COMPANY BY CLIENT UNDER THE AGREEMENT DURING THE PRIOR TWELVE (12) MONTH PERIOD.8.2 IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOSS OF REVENUES, OR LOSS OF OPPORTUNITIES, ARISING OUT OF THE AGREEMENT, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. Miscellaneous.
9.1 Construction. The Agreement will be construed as if drafted jointly by the Parties. The section headings used in the Agreement are intended for reference purposes only and shall not affect the interpretation of the Agreement.
9.2 Waiver and Cumulative Rights. No provision of the Agreement may be waived except by a writing signed by the waiving party. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy under the Agreement shall operate as a waiver thereof. Except as expressly set forth herein, no remedy hereunder is intended to be exclusive of any other remedy available hereunder or at law or in equity.
9.3 Severability. If any provision of the Agreement is held to be illegal, invalid or unenforceable, such holding shall apply only to such provision and the Agreement shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the Parties.
9.4 Assignment. Client may not assign, assume in bankruptcy, pledge, mortgage or otherwise encumber the Agreement, in whole or in part, without the prior written consent of Company in its sole discretion. For the avoidance of doubt, a merger, change of control, reorganization (in bankruptcy or otherwise) shall be deemed an “assignment” requiring such consent, regardless of whether Client is the surviving entity. Any attempted action in violation of the foregoing shall be null and void ab initioand of no force or effect. Company may assign the Agreement for any reason, including a change of control, as defined under the Investment Adviser’s Act of 1940, as amended (“Act”) or otherwise. Client shall be deemed to have consented to an assignment by Company absent Client’s written objection to the assignment, to be received by Company within seven days following notice of assignment to Client. Notwithstanding anything to the contrary herein, Client’s continued use hereof shall be deemed affirmative consent of any such Company’s assignment. In the event of a permitted assignment, the Agreement will be binding upon and will inure to the benefit of the Parties and their respective permitted successors and assignees.
9.5 Independent Contractor Relationship. Company is an independent contractor and the Agreement does not create an agency, partnership, or joint venture relationship between Company and Client or Company and any Client personnel. Company has sole responsibility for activities of Company and its personnel, and shall have no authority and shall not represent to any third party that it has the authority to bind or otherwise obligate Client in any manner.
9.6 Notices. All notices under the Agreement shall be in writing, and shall be deemed duly given: (a) on the date delivered if personally delivered, (b) on the date sent by fax or pdf with proper confirmation, (c) on the business day after being sent by Federal Express or another reputable overnight courier service, or (d) upon receipt, if mailed by United States postage-prepaid certified or registered mail, return receipt requested, in the case of Client, at the contact information specified in writing by Client at the time of Client’s subscription to the Software, and, if to Company at the address set forth below:
Hamilton Lane Advisors, L.L.C.
One Presidential Blvd., 4th Fl.
Bala Cynwyd, PA 19004 USA
Attn: General Counsel
Fax: 610 617 9853
Email: hllegal@hamiltonlane.comor at such other addresses for a Party as will be specified by like notice.
9.7 Governing Law; Jurisdiction. The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of New York. For all disputes relating to the Agreement, each Party submits to the exclusive jurisdiction of the state and federal courts located in Manhattan, New York City in the State of New York and waives any jurisdictional, venue, or inconvenient forum objections to such courts.
9.8 Entire Agreement. The Agreement, together with the Subscription Plan, constitutes the entire agreement of the Parties with respect to the subject matter hereof and supersedes any and all existing or prior agreements and communications, whether written or oral, relating to the subject matter hereof. No modification of the Agreement shall be effective unless it is in writing and signed by an authorized representative of each Party.
9.9 Survival. The following sections shall survive the termination or expiration of the Agreement: Section 2.3 (“Title”), Section 4.3 (“Matters upon Termination”), Section 5 (“Confidentiality”), Section 6 (“Indemnification”), Section 7 (“Representations and Warranties”), Section 8 (“Limitation of Liability”) and this Section 9 (“Miscellaneous”).
9.10 Counterparts. The Agreement, including the Subscription Plan, may be executed in counterparts (which may be exchanged by facsimile or pdf), each of which shall be deemed an original, but which together shall constitute one and the same instrument.
9.11 Disclosure. Client acknowledges receipt of Part II of Company’s Form ADV in compliance with Rule 204-3(b) under the Act.
9.12 Order of Precedence. In the event of a conflict between this MSA and the Subscription Plan, the Subscription Plan shall govern with respect to such conflict.
9.13 Consent to Use of Name. Client hereby consents to the Company using its name in representative client lists and similar marketing materials and office displays.