BETWEEN:
(1) CUSTOMER (“Customer”) and
(2) MORE CHAMP LIMITED (“gini”) with registered offices at 2F, Henan Building 90-92 Jaffe Road, Wan Chai, Hong Kong
Each of Customer and gini referred to individually as “Party” and collectively as “Parties.”
WHEREAS:
(A) gini is the provider of Automated Financial Due Diligence & Reporting, Co-investment & Consulting services (the “Products and Services”).
(B) Customer wishes to trial and evaluate the Products and Services, as further described in this Agreement on a Trial basis for a Trial Period.
(C) If the Trial is successful, both Parties are desirous of entering into a further agreement pursuant to which (i) Customer would license software from gini; and (ii) gini would provide the Products and Services to Customer.
(D) This Agreement sets out the Parties understanding in relation to the Trial.
(E) Customer is responsible for carefully reading the terms of this agreement before signing up, clicking “accept” and/or accessing or using any products and services of gini. By (as applicable) signing a service order, clicking “accept” and/or accessing or using such products and services, customer confirms that customer has read and accepts this agreement. notwithstanding any different or additional terms customer may reference or provide, gini’s offer or acceptance (as applicable) to enter into an agreement with customer with respect to the products and services is expressly limited to this agreement and conditioned on customer’s assent hereto.
“Affiliate” means, with respect to a Party, any entity that directly or indirectly (now or hereafter) Controls, is Controlled by, or is under common Control with that party (but only while the entity meets those requirements).
“Background Intellectual Property Rights” means any Intellectual Property Rights in materials which are provided by a Party in connection with the Trial, that existed before the Trial began and that may be created during the Trial by a Party.
“Confidential Information” means any information or matter of confidential nature of the other Party and the other Party’s Affiliates which may be provided to it and its Affiliate comes to its knowledge in relation to this Agreement, including without limitation, the contents and existence of this Agreement and any future agreements contemplated herein as well as the fact that the discussions and negotiations are taking place in relation to such Trials and transactions.
“Control” means the power of a person, company, association, or other separate legal entity to secure (whether by the holding of shares, possession of voting rights or by virtue of any powers conferred by articles of association, constitution, partnership agreement or other document regulating such entity) that the affairs of another are conducted in accordance with its wishes (and “Controlled” will be construed accordingly).
“Documentation” means any user guides, technical specifications, marketing materials, and other documentation and materials that gini provides to Customer, as revised from time to time.
“Effective Date” means the date the Customer agrees to the terms of this Agreement.
“Intellectual Property Rights” means (i) patents, (ii) copyrights, moral rights, works of authorship (including copyrights in computer software), rights in data and databases, rights to use and protect the confidentiality of confidential information (including know how) (iii) trademarks, service marks, Internet domain names, trade dress, and trade names, together with all goodwill associated therewith (“Trademarks”), (iv) registrations, applications, renewals and extensions for any of the foregoing (i)-(iii), whether registered or unregistered, and rights to claim priority from such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, and in (v) trade secrets, and (vi) rights of privacy and publicity.
“Agreement” means this Pilot Agreement (including all of its Exhibits), as it may be amended from time to time.
“Products” means the products specified in Exhibit A.
“Services” means the services specified in Exhibit B.
“Trial” means the provision of Products and Services by gini for the Trial Period.
“Trial Period” means the period of trial for each Product or Services.
“Trial Region” means the region in which the trial is conducted by the Customer.
2.1 The Customer is carrying out the trial and evaluation contemplated by this Agreement on a Trial basis to ascertain whether the Products and Services meet its requirements.
2.2 Subject to the terms and conditions of this Agreement, gini hereby grants Customer a non-exclusive, non-transferable, non-assignable worldwide right to use the Products and Services provided hereunder solely for: a) Customer to internally evaluate, trial, or test the Products and Services and not for any production or operational purposes; and b) only for the Specific Application, Business Unit or Project and for the Time Periods as set forth in each fully executed Enrollment Form. All rights not expressly granted to Customer are reserved by gini and its licensors. gini reserves the right to make changes, modifications and enhancements to the Products and Services from time to time.
2.3 Customer may not release to any third party the results of any evaluation of the Products and Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes without the prior written approval of gini.
2.4 Customer shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Products and Services or the Content in any way; (ii) modify or make derivative works based upon the Products and Services or the Content; (iii) create Internet “links” to the Products and Services or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Products and Services in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Products and Services, or (c) copy any ideas, features, functions or graphics of the Products and Services.
2.5 For the avoidance of doubt, except as set forth in clause 2 (but subject to clause 7.4), this Agreement does not obligate either Party or any of their Affiliates to enter into any further agreement for the provision of Products and Services on an ongoing (non-trial) basis after the Trial ends (a “Definitive Agreement”). This Agreement relates only to the arrangements contemplated herein and no other contract exists, or will exist, between the Parties in relation to the Products and Services unless and until the Parties have agreed all the terms of a Definitive Agreement and both Parties have signed a Definitive Agreement.
3.1 The Parties contemplate that Customer will evaluate the Products and Services identified in Exhibit C on a Trial basis for the Trial Period.
3.2 Upon satisfaction of the Exit Criteria (as defined in Exhibit C) (a “Successful Trial”), the Parties shall negotiate in good faith a Definitive Agreement
4.1 Customer shall pay the fees for the Trial, in accordance with the payment instructions as set forth in Exhibit C.
5.1 Each Party shall own its Background Intellectual Property Rights, and the other Party shall not acquire any rights to those Background Intellectual Property Rights or in any other Intellectual Property Rights owned by the other Party, whether pre-existing or created during the term of this Agreement. As between the Parties, gini is and will be the sole and exclusive owner of all right, title, and interest in and to (i) the Products, Services, and Documentation (and all Intellectual Property Rights in and to all of the foregoing), (ii) all information, data, algorithms, software, results and other content that is derived from processing any data transmitted by or through the Services and the Products (collectively, the “Analytics Data”), including all Intellectual Property Rights therein and thereto, and (iii) all other Intellectual Property Rights developed by gini under this Agreement. To the extent the Customer has any rights in the Services, Products, Documentation, or Analytics Data, it hereby irrevocably assigns to gini all of those rights for no additional consideration.
5.2 During the Trial Period, gini shall provide the Products and Services to Customer described in Exhibit A and Exhibit B, and as further detailed in Exhibit C.
6.1 The Trial Period during which Customer may Trial the Products and Services will begin on the Start Date (as set forth in Exhibit C). The Trial by Customer (i) will, subject to earlier termination of this Agreement, continue for the duration of the Trial Period, and (ii) may only take place in the Trial Region.
6.2 Customer may use, test, and evaluate the Products and Services by sharing the Products, Services, and Documentation with authorized employees of the Customer. Customer will provide reports of problems, failures, or defects arising in connection with the Products, Services, and Documentation to gini, and will implement a process reasonably acceptable to gini for Customer and its authorized employees to provide feedback to Customer. Customer hereby grants gini a worldwide, nonexclusive, perpetual, irrevocable, assignable, fully paid-up, royalty-free right and license to use any suggestion or idea for gini products or services that Customer or its authorized employees communicates to gini, without compensation, without any obligation to report on such use, and without any other restriction.
6.3 During the Trial Period, Customer will provide (i) gini with reasonable access to the Products and Services, and (ii) access to any performance data held by Customer and relating to the Products and Services, in each case, to allow gini to evaluate the performance of the Products and Services.
6.4 Customer shall not attempt to, nor permit, procure, enable, or request any other person or entity to (i) alter, adapt, copy, disassemble, decompile, reverse engineer, create derivative works of, or distribute externally the Products, Services, or Documentation, or any portion thereof, (ii) use the Products, Services, or Documentation to (a) create, market, or distribute any product or service that is competitive with the Products or Services, or (b) transfer, sell, lease, license, sublicense, distribute, disclose, divulge, or make available the Products, Services, or Documentation to, or permit use of or access to the Products, Services, or Documentation by, any person or entity (except as set forth in this Agreement), or (iii) remove, alter, or obscure any intellectual property notice or other restrictive notice or legend contained or included in or on any of the Products, Services, or Documentation.
7.1 This Agreement will be effective as of the Effective Date and will continue in effect until terminated in accordance with this Section.
7.2 A Party may terminate this Agreement at any time by providing written notice of termination to the other Party (the “Breaching Party”) if the Breaching Party commits a material breach of this Agreement, and the breach continues un-remedied for a period of 30 days after the Party provides notice to the Breaching Party describing the nature of the breach.
7.3 A Party may terminate this Agreement at any time for any or no reason during the 30 day period following the end of the Trial Period on written notice to the other Party, but only if there has not been a Successful Trial.
7.4 A Party may terminate this Agreement at any time for any or no reason, if the Parties have not executed a Definitive Agreement within six months following a Successful Trial.
7.5 This Agreement will automatically terminate upon the execution of a Definitive Agreement.
7.6 A Party may terminate this Agreement at any time by providing notice of termination to the other Party if that other Party (i) becomes insolvent or unable to pay its debts as they mature, (ii) makes an assignment for the benefit of its creditors, (iii) is dissolved or liquidated, or takes any corporate action for those purposes, (iv) has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business, or (v) seeks relief or if proceedings are commenced against that other Party, or on its behalf, under any bankruptcy, insolvency, or debtors’ relief law and those proceedings have not been fully stayed within seven days or vacated or set aside within 30 days after the commencement of those proceedings.
7.7 Promptly following any termination of this Agreement (except as may be agreed to in connection with the execution of a Definitive Agreement):
(A) Customer shall cease use of the Products, Services, and Documentation, and return the Products and, if so requested by gini, shall delete the Documentation and electronic copies of gini’s Confidential Information from Customer’s systems (except for any Confidential Information that was backed up automatically in the ordinary course of business); and
(B) If so requested by Customer, gini shall return or delete all of Customer’s Confidential Information from gini systems (except for any Confidential Information that was backed up automatically in the ordinary course of business).
Any Confidential Information that is automatically backed up remains subject to the confidentiality obligations set forth in this Agreement.
8.1 Customer shall indemnify and hold gini, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, lawyers and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including legal fees and costs) to the extent arising out of or in connection with: (i) a claim alleging that use of the Customer Data or Customer Materials infringes a copyright, patent, or a trademark of, or has caused harm to the rights of, a third party; (ii) a claim, which if true, would constitute a violation by Customer of Customer’s representations and warranties under this Agreement; or (iii) a claim arising from the breach by Customer or Customer’s Users of this Agreement, provided in any such case that gini (a) promptly gives notice of the claim to Customer; (b) gives Customer sole control of the defense and settlement of the claim (provided that Customer may not settle such claim unless such settlement unconditionally releases gini of all liability and does not adversely affect gini’s business or Service); (c) provides to Customer all available information and reasonable assistance; and (d) has not compromised or settled such third-party claim.
9.1 Each party represents and warrants that it has the legal power and authority to enter into this Agreement. gini further represents and warrants that the Products and Service will perform substantially in accordance with the online gini help documentation under normal use and circumstances. In the event of a breach of this warranty, Customer’s sole remedy and gini’s sole obligation will be for gini to make reasonable commercial efforts to correct the non-conformity or, if gini is unable to correct the non-conformity within 90 days after Customer’s written notice, for Customer to terminate the Agreement. Customer further represents and warrants that Customer has not falsely identified itself nor provided any false information to gain access to the Service and that Customer’s billing information is correct. gini warrants that the Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of the above warranty, Customer’s exclusive remedy and gini’s entire liability will be the re-performance of the applicable Professional Services. If gini is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services fees paid to gini for the deficient Professional Services. Customers must make any claim under the foregoing warranty to gini in writing within ninety (90) days of performance of such Professional Services in order to receive warranty remedies.
10.1 Except as provided in section 9 gini and its licensors make no representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the products and services or any content. gini and its licensors do not represent or warrant that (a) the use of the products and services will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained through the products and services will meet requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and all content is provided to customer strictly on an “as is” basis. all conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third party rights, are hereby disclaimed to the maximum extent permitted by applicable law by gini and its licensors.
11.1 Gini's products and services may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. Gini is not responsible for delays, delivery failures, or other damage resulting from such problems.
12.1 In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this agreement, including but not limited to the use or inability to use the service, or for any content obtained from or through the service, any interruption, inaccuracy, error or omission, regardless of cause in the content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages. In no event shall gini's aggregate liability arising from or relating to this agreement exceed the amounts actually paid by and/or due from the Customer in the twelve (12) month period immediately preceding the event giving rise to such liability.
13.1 Customer grants gini the right to use Customer’s name, mark and logo on gini’s website and in gini marketing materials. The Customer agrees that gini may state the fact that Customer is a gini customer without revealing specifics about the Agreement or the relationship.
14.1 The Customer acknowledges that its employees’ use of the Services will be subject to gini’s standard Terms of Use and Privacy Policy, available at www.gini.co (or any successor site), as they may be updated from time to time. gini shall comply with its Privacy Policy and all applicable law in connection with its operation of the Services.
15.1 Each party (as a “Receiving Party” hereunder) shall not disclose to any third party, any Confidential Information of the other party (as a ‘Disclosing Party” hereunder) provided to such Receiving Party in anticipation of, or in connection with the performance of this Agreement. For the avoidance of doubt, this includes Confidential Information provided to the Receiving Party prior to the Effective Date of this Agreement. As used herein, the term “Confidential Information” refers to any and all financial, technical, commercial, or other information concerning the business and affairs of the Disclosing Party, including, without limitation, any cost or pricing information, contractual terms and conditions, marketing or distribution data, business methods or plans. If Confidential Information is (a) provided as information fixed in tangible form or in writing (e.g., paper, disk or electronic mail), such shall be conspicuously designated as “Confidential” (or with some other similar legend) or (b) provided orally, such shall be identified as confidential at the time of disclosure and confirmed in writing within thirty (30) days of disclosure, unless a reasonable person would understand such information to be confidential based on its content. Confidential Information does not include information which (I) becomes generally available to the public other than as a result of a disclosure by the Receiving party, (ii) was available to a party on a non-confidential basis prior to its disclosure by the other party or in connection with the performance by such party of its obligations under this Agreement, (iii) becomes lawfully available to a party on a non-confidential basis from an independent third party, or (iv) is independently developed by the Receiving Party without use or reference to Disclosing Party’s Confidential Information. The Receiving Party will not use Confidential Information for any purpose other than carrying out its obligations as set forth in this Agreement and shall not disclose Confidential Information to any third party, without the prior written consent of the Disclosing Party and an agreement in writing from the third party that it will adhere to the confidentiality obligations imposed herein. Third parties shall not include agents of the Receiving Party, employees or affiliates of the Receiving Party, lawyers, accountants, and other professional advisors of the Receiving Party, or potential acquirers of Receiving Party, in each case such person or entity must have a legitimate reason to have access to such Confidential Information and must be under a duty to protect such Confidential information which duty is substantially equivalent to the obligations contained herein. Each Receiving Party’s confidentiality obligations with respect to such Disclosing Party’s Confidential Information shall remain in effect for the Term of this Agreement and for a period of three (3) years after the termination or expiration of this Agreement. For the avoidance of doubt, Confidential Information with respect to Customer includes Customer Data, and with respect to gini includes all pricing terms offered to Customer under any Enrollment Form, the gini Technology and the results of any evaluation of the Products and Services performed by or on behalf of Customer for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes. The parties agree that any Non-Disclosure Agreement entered into prior to the applicable Enrollment Form Effective Date shall not limit or reduce each respective Party’s obligations with respect to Confidential Information disclosed under this Agreement.
17.1 This Agreement and each of Exhibit A, B, and C, is the final and exclusive statement of the Parties’ agreement on the matters contained in this Agreement. It supersedes all previous negotiations and agreements.
17.2 This Agreement may be amended or modified only by a written instrument that refers specifically to this Agreement.
17.3 No failure or delay by either Party in exercising any rights, power, or legal remedy available to it under this Agreement will operate as a waiver thereof. Further, the rights of each Party under this Agreement are cumulative and not exclusive of rights or remedies provided by law and may be waived only in writing and specifically.
18.1 Subject to any express provisions to the contrary, each Party shall pay its own costs of and incidental to the negotiation, preparation, execution, and carrying into effect of this Agreement and in carrying out any related due diligence.
19.1 In the event any one or more of the provisions contained in this Agreement are for any reason held invalid, illegal, or unenforceable in any respect, such invalidity, illegality, or unenforceability will not affect any other provision of this Agreement, but this Agreement will be construed as if such invalid, illegal, or unenforceable provision had never been set forth in this Agreement, and the Agreement will be carried out as nearly as possible according to its original terms and intent.
20.1 This Agreement will be governed by and interpreted in accordance with the laws of Hong Kong, and the Parties irrevocably submit to the exclusive jurisdiction of the Hong Kong courts in relation to any legal actions or proceedings arising out of or in connection with this Agreement. The Parties exclude the application to this Agreement of the United Nations Convention on Contracts for the International Sale of Goods.
21.1 Neither Party may assign, delegate, or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other Party, except that either Party may assign, delegate, or otherwise transfer its rights and obligations under this Agreement to an Affiliate or to a successor to all or substantially all of the assigning Party’s assets or business to which this Agreement relates.
22.1 All notices, requests, claims, and other communications between the Parties described in or otherwise regarding this Agreement must be in writing and be given or made (and will be effective on receipt) by delivery in person, by nationally recognized overnight courier service (with signature required and all fees prepaid), by facsimile (with confirmation of transmission), by e-mail (with telephone confirmation or confirmation by another method set forth in this Clause) or by registered or certified mail (postage prepaid, return receipt requested) to a Party at its address identified above or at any other address of which that Party has notified the other Party in accordance with this Clause.
23.1 Both Parties are independent contractors under this Agreement. Nothing in this Agreement creates an employment, agency, joint venture, or partnership relationship between the Parties or any of their personnel, or any other legal arrangement that would impose liability upon one Party for the act or failure to act of the other Party. Neither Party will have any express or implied power to enter into any contracts or commitments or to incur any liabilities in the name of, or on behalf of, the other Party, or to bind the other Party in any respect whatsoever.
1.0 Automated Financial DD and Reporting Product
Over $1.8 trillion is lost annually to financial statement fraud, with <4% being detected by audit. Despite many high profile frauds being publicized, the financial opacity between companies and the investors that fund them continues - and bad actors continue to use this to their advantage.
The current status quo, where management sends hard-coded spreadsheets over emails as financial reporting, is inadequate for the modern day and age. The lending market (Clearbanc, Pipe, Wayfler etc) has already moved to requiring broader, more granular and timely data from companies they underwrite but the technology they use is unavailable to equity investors.
gini offers a tool (Automated Financial Due Diligence & Reporting) that gives investors the ability to financially analyze their portfolio companies based on data from their cloud systems (such as accounting software). By using API integrations, gini offers more detailed and timely data without the filter of interpretation from the management.
Automated Financial Due Diligence & Reporting is delivered as a SaaS product, with pricing determined by the number of portfolio companies connected. In many cases, the service agreement for gini is considered a deal expense - and is either charged to the funds LP’s or to the portfolio company.
2.0 Co-investment product
One of our early users, Pershing Ventures, has developed considerable expertise in using our tool for due diligence and financial analysis. The partners at Pershing have considerable experience in Investment Banking and Fund Management, having worked at a number of large financial institutions (Citigroup, Nomura, HSBC) and having fund management experience (MD - Carlyle Group). For investors that would like to get highly specialized advice and alignment of interest, Pershing is willing to cover the cost of gini software for deals that they are allowed to co-invest in.
1.0 gini Consulting
gini has developed considerable knowledge of financial patterns and behavior as a result of analyzing over 700 companies who have connected to gini. This knowledge can be used to provide advice, insights and recommendations to our customers.
Furthermore, gini can create customized models and reports based on the Customers requirements. These bespoke models can be designed so that they are only available to the Customer, and not made publicly available on the gini platform.
1.0 Start Date means the date the Customer agrees to the terms of this Agreement.
2.0 Trial Scope means the use of gini’s products and services for the Trial Period.
3.0 Fees means payments for any negotiated gini Consulting services, notwithstanding, that during the pilot Automated Financial Due Diligence & Reporting is offered on a free trial basis with limited time or uses per Customer.
4.0 Success/Exit Criteria (“Successful Exit”) means a successful trial of products or services for the Customer.
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