This Master Services Agreement (this “Agreement”), by and between Hamilton Lane Advisors, L.L.C., a Pennsylvania limited liability company, with its principal place of business at 110 Washington St, Suite 1300, Conshohocken, PA 19428 (“Company”), and the client (as identified in the Subscription Plan, the “Client”), is made as of the effective date (the “Effective Date”) set forth in the Subscription Plan (the “Subscription Plan”), which is hereby incorporated into this Agreement.
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.
“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.
“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, as applicable, the services provided by Company to Client to deploy and/or operate the Software on Client’s behalf, as described on Schedule A to the Subscription Plan.
“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 set forth on a Subscription Plan, and (b) any Updates to the foregoing.
“Support” means receiving support requests and providing issue diagnosis, standard fixes and workarounds, in accordance with the level of support specified in the Subscription Plan.
“Term” means, collectively, the Initial Term and all subsequent Renewal Terms, as applicable.
“Update” means each new release, upgrade, enhancement, modification, improvement 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, beginning on the Effective Date, a non-exclusive, non-sublicensable, non-transferable, royalty-bearing worldwide right and license for Client and its Affiliates to access and use the Software solely for Client’s 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 Restrictions on Use of Software. 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) 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 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.
2.3 Title. Client acknowledges and agrees that, as a result of the Agreement 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.
2.4 Updates. Company shall have no obligation to provide Updates, except that Company will provide Client with any Update that it makes generally available without charge to its similar customers. Any such Updates shall be considered part of the Software and subject to this Agreement.
2.5 Client Use. Company will not be responsible or liable for any failure in the Software resulting from or attributable to (i) Client’s computer systems and networks (ii) telecommunications or other service or equipment failures outside of Company’s facilities, (iii) Client’s or any third party’s products, services, negligence, acts or omissions, (iv) any force majeure event or cause beyond Company’s reasonable control, (v) scheduled maintenance or (vi) unauthorized access, breach of firewalls or other hacking by third parties.
2.6 Data.
(a) Company Data. Except as otherwise addressed herein, any and all data provided or otherwise made available by Company to Client pursuant to the Agreement, including all related analyses, opinions and conclusions thereto, is referred to as the “Company Data”. Company Data specifically excludes Client Data and Third Party Data. Company Data is and shall remain the exclusive property of Company or its respective suppliers. 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, and (ii) to display in reports and communications, including reports and communications shared with Client’s third parties, 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 and communications clearly display “Cobalt LP”, as the source of such data. Client shall abide by all copyright notices, trademark rules, and restrictions inherent in the Company Data accessed through the Software, and, unless otherwise expressly permitted in this Agreement, shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Company Data: (i) without the express prior written consent of Company, and (ii) in any way that violates any third party intellectual property right.
(b) Client Data. Any data entered into the Software by Client or provided by a third-party (other than Company, or Company’s suppliers) 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 the Software.
(c) Third Party Data. In the course of providing the Software to Client, Company may provide Client with access to data from Company’s third party data providers (collectively, and including all related analyses, opinions and conclusions thereto, the “Third Party Data”). The licensors of such Third Party Data are disclosed in the Third Party Data Schedule, attached hereto, as well as the licensors’ respective attribution requirements, with which the Client agrees to comply. Except for the limited license rights expressly granted in this Section 2.6(c), Client has no right, title or interest in or to the Third Party Data. The Third Party Data, is and shall remain the exclusive property of its licensors. Subject to the terms and conditions of the Agreement, Client is hereby granted a non-transferable, non-sublicenseable limited license to use Third Party Data for its internal use. Client shall abide by all copyright notices, trademark rules, and restrictions inherent in the Third Party Data accessed through the Software, and, unless otherwise expressly permitted in this Agreement, shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Third Party Data: (i) without the express prior written consent of the respective owners or licensors of the Third Party Data, and (ii) in any way that violates any third party’s intellectual property rights.
(d) In the course of using the Software, Client may provide Client Data to Company, which Company will need to use in connection with providing the Software. Client acknowledges and agrees that by providing Client Data to Company, including, without limitation, by transmitting into the Software, data, materials and/or information from or through a third party site or service, Company hereby is granted a nonexclusive, worldwide, royalty free, perpetual, irrevocable, sub-licensable and transferable right to use, reproduce, reformat, modify, create and use derivative works based on, or display such data (including all related intellectual property rights) in connection with providing Software, provided that Company will not make available such Client Data to other users of the Software or to other third parties unless directed by Client or as required to comply with any applicable laws or regulations. Client acknowledges and agrees that the Client is solely responsible for all of its Client Data. Client represents and warrants that it possess all rights and authority necessary to provide such Client Data to Company and to grant Company the rights to use such information as provided in this Agreement.
(e) To the extent Company de-identifies Client Data and aggregates such de-identified information with other users’ information, Company shall be entitled to use such aggregated information in its sole discretion.
2.7 Payment.
(a)(a) Client shall pay Company (or such Affiliate of Company as Company may indicate to Client) the fees set forth in the Subscription Plan (the “Fees”), plus any sales or use taxes, as applicable. All Fees are immediately due and payable on the date, as indicated in the Subscription Plan. For the avoidance of doubt, Client’s access to the Software will be contingent upon Company’s receipt of all applicable Fees. After thirty (30) days, Company may charge interest at the lesser of 1% per month or the maximum rate allowed by applicable law on any undisputed amounts due but not paid within five (5) days of Company providing notice of delinquency.
(b) All Fees 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.
(c) (c) Notwithstanding contrary provisions herein, Company may, in its sole discretion, notify Client in writing at least 60 days prior to the start of a subsequent Renewal Term that Company intends to modify the applicable Fees (a “Fee Change Notification”). Upon receipt of a duly-delivered Fee Change Notification, Client may reject such modified Fees by notifying Company in writing pursuant to the notification procedures set forth in the Agreement (“Fee Change Rejection”) within 30 days of receipt of such Fee Change Notification, in which case, the Agreement shall terminate at the end of the current Term. If Client fails to deliver a Fee Change Rejection within 60 days of receipt, the Fees set forth in such Fee Change Notification shall become effective with respect to the subsequent Renewal Term.
(d) Company will have the right to charge for Support to the extent Support is needed to resolve problems, errors or inquiries relating to Client’s systems or any other network, equipment, service or software not owned, controlled or procured by Company.
3. Terms and Termination.
3.1 Term. The initial term shall commence on the Effective Date and continue for the duration set forth in the Subscription Plan (the “Initial Term”). The Agreement shall automatically renew for successive Terms, (each, a “Renewal Term”) until either party terminates upon written notice (a “Termination Notice”) to the other party, where such Termination Notice is received by the other Party no less than 60 days prior to the end of the current Term.
3.2 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 hereunder and failure by the Defaulting Party to remedy such breach within thirty (30) days after receipt of written notice thereto. In the event of such a termination by Client, Company shall promptly refund to Client a pro rata amount of any prepaid Fees relating to the Software. In the event of such a termination by Company, Company shall retain any unused portion of any prepaid Fees.
3.3 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 8.12, 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.
3.4 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 to or an 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 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.
4. Confidentiality.
4.1 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.
4.2 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.
4.3 Notwithstanding tthe foregoing, nothing in this Agreement prohibits the parties hereto from reporting possible violations of federal law or regulation to any governmental agency or entity, including but not limited to the Department of Justice, the Securities and Exchange Commission, the Congress, and any agency Inspector General, or making other disclosures that are protected under the whistleblower provisions of federal law or regulation. A party does not need the prior authorization of the other party to make any such reports or disclosures and may, but is not required to, notify the other party that such reports or disclosures have been made.
4.4 Each party’s obligation under this Section 4 shall survive for two (2) years following the date of termination of the Agreement.
5. Indemnification.
5.1 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 to the extent that it is based on any assertion that the exercise of any right or license in or to the Software (not including any claim in connection with 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.
5.2 Client shallat its own cost, indemnify, defend, and hold harmless Company and its officers, directors, employees, agents and suppliers (“Company Indemnitees”) from and against any third party claim or action threatened or brought against any Company Indemnitees 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; (b) the use of Client Data by Company in accordance with the Agreement; or (c) Client’s violation of Section 2.6. Further, Client agrees to indemnify and hold harmless Company Indemnitees against any Loss that is awarded to a third party by a court of competent jurisdiction or agreed to in a written settlement agreement signed by Client, in connection therewith, including reasonable attorneys’ fees and expenses.
5.3 An indemnified party shall give the indemnifying party (a) prompt written notice of any claim or allegation giving rise to an indemnification obligation pursuant to Section 5.1 or 5.2, (b) control of the defense and settlement thereof, provided that without limiting the foregoing, an indemnified party 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.
5.4 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.
5.5 SECTIONS 5 AND 7 STATE THE ENTIRE LIABILITY OF THE PARTIES HERETO, 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. Section 5.1 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.
6. Representations and Warranties.
6.1 As of the Effective Date and at all times thereafter, each of the Parties hereto 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.
6.2 Client represents, warrants and agrees that Client will not directly or indirectly, or permit any third party to, contribute any Client Data or use the Software in a manner that (i) infringes or violates the intellectual property rights or proprietary rights, rights of publicity or privacy, or other rights of any third party; (ii) violates any law, statute, ordinance or regulation; (iii) is harmful, fraudulent, harassing, tortious, or otherwise objectionable; (iv) involves commercial activities and/or sales without Company’s prior written consent; (v) contains a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; (vi) intends to obtain the password, account, or private information from any other user of the Software; (vii) violates the security of any computer network, cracks passwords, or security encryption codes, or transfers or stores illegal material (including material that may be considered threatening or obscene); (viii) runs any form of auto-responder, or “spam” on the Software, or any processes that run or are activated while Client is not actively using the Software, or that otherwise interfere with the proper working of or place an unreasonable load on the Software’s infrastructure; (ix) uses manual or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the Software; or (x) is not authorized under the Subscription Plan. In addition, Client agrees to use best efforts to ensure that any information Client provides to Company, including the Client Data, is accurate.
6.3 DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES STATED IN THIS ARTICLE 6, 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, tax or legal advice to Client. For the avoidance of doubt, Company in no way serves as a placement agent and does not serve to assist any party in raising or acquiring financing. Company has no special relationship with or fiduciary duty to Client. Client acknowledges that Company has no control over, and no duty to take any action on Client’s behalf, other than as expressly stated hereunder.
7. Limitation of Liability.
7.1 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.
7.2 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.
8. Miscellaneous.
8.1 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.
8.2 Modifications.
- Agreement. Company reserves the right, in its sole discretion, to modify this Agreement at any time by posting a notice on CobaltLP.com or by sending Client a notice via email to the Client email address in Company’s records. Client shall be responsible for reviewing and becoming familiar with any such modifications. Modifications will not apply retroactively and will become effective no sooner than thirty (30) days after they are posted on CobaltLP.com or communicated to Client via email.
- Software. Modifications to the Software made for legal reasons will be effective immediately. Client’s continued use of the Software following such notification constitutes Client’s affirmative acceptance of the terms and conditions of this Agreement with respect to such Software modifications. Client may terminate the Agreement (i) if any modification to this Software substantially and materially degrades the Software functionality relative to the functionality available on the Effective Date.
8.3 Software Access. As a condition to using the Software, Client shall register with Company for a password and user name (a “User ID”). Company reserves the right to refuse registration of or cancel a User ID in its discretion. Client shall be responsible for maintaining the confidentiality of its password(s), and shall be solely responsible for all use of the Software through its user name(s) and password(s). Client shall immediately notify Company of any unauthorized use of the Software of which it becomes aware.
8.4 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.
8.5 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.
8.6 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 initio and 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, the “Act”). An assignment by Company shall not require Clients consent. 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.
8.7 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.
8.8 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: