2024 API Terms of Use - Third Party

API TERMS OF USE AND CONFIDENTIALITY AGREEMENT

THIS API TERMS OF USE AND CONFIDENTIALITY AGREEMENT (this “Agreement”) is made effective when You (as defined herein) click “I Agree” below. By clicking “I Agree,” You agree to be bound by the terms of this Agreement by and between Orion Advisor Solutions, Inc., a Delaware corporation (“Orion”) and You, the individual accessing the APIs, Integration Center, and/or Confidential Information hereunder and the legal entity on behalf of which you are acting, affiliated with, or employed by (“You,” “you,” “Your,” or “your”). For purposes of this Agreement, “Orion” and “You” shall include their respective Affiliates, including (with respect to Orion), Orion’s Affiliates Redtail Technology, Inc. and Orion Advisor Technology, LLC, as applicable. For purposes hereof, “Affiliates” shall refer to, with respect to either party, any person or entity that is directly or indirectly, controlling, controlled by, or under common control with such party.

WHEREAS, Orion and its Affiliates license certain technology platform services to independent third party investment advisors, broker-dealers, banks, insurance companies, investment advisory representatives, or other entity lawfully providing investment advice (each, a “Customer”) for use by such firms and/or advisors and their investment advisory clients (the “Orion Services”);

WHEREAS, You have requested certain access to Orion’s or its Affiliate’s Application Programming Interface(s) or similar development tools which establish an interface with the Orion Services (“APIs”) and/or integration center (“Integration Center”) with respect to certain mutual Customers that You provide certain services to, from time to time; and

WHEREAS, this Agreement describes the terms and conditions under which Orion, in its discretion, grants You the right to access the APIs or Integration Center, as made available by Orion or its Affiliates in their sole discretion, and such access and/or disclosures are conditioned upon covenants to protect the security and confidentiality of the APIs and Integration Center, as hereinafter agreed.

NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements set forth herein, Orion and You (collectively referred to as “Parties” and individually each as a “Party”), intending to be legally bound hereby, agree as follows:

1. Use of Orion’s and/or its Affiliates’ APIs and Integration Center. This Agreement describes the terms and conditions under which Orion grants You the right to access and use the APIs and/or Integration Center of it or its Affiliates. By completing any applicable registration process or by accessing or using the APIs or Integration Center, You represent that You (i) have the authority to bind the party using the APIs and/or Integration Center; and (ii) have read, understand, and agree to this Agreement. Orion may update this Agreement from time to time. Your continued access to and use of the APIs and/or the Integration Center constitutes Your continued acceptance of the then-current Agreement. If you do not agree with the terms of this Agreement, or any modification to this Agreement, Your only recourse is to discontinue Your use of and access to the APIs and/or the Integration Center. In order to access or use the APIs or the Integration Center, You must: (i) complete the applicable online registration process; (ii) electronically accept this Agreement; and (iii) complete the registration process for the software application, product, service, or website (each an “Application”) utilizing the API that You wish to access. Orion, or its applicable Affiliate, may reject or terminate any use of the APIs or the Integration Center in its sole discretion.

a. You represent and warrant that all information collected about You by Orion during the online registration process (“Registration Data”), as provided by You, is current, complete, and accurate and You are solely responsible for updating Your Registration Data as necessary. Orion reserves the right to terminate your license to use the APIs and/or the Integration Center immediately if your Registration Data is found to be inaccurate, incomplete, or not current at any time.

b. You are responsible for maintaining the confidentiality of Your password and account, to the extent applicable, and for all activities that occur under Your account. You agree to notify Orion immediately of any unauthorized use of Your account or any other breach of security. Orion is not liable that You or any one else may incur as a result of a third party using Your password or account, either with or without Your knowledge.

c. Orion’s use of any information provided by You, including without limitation, Registration Data, is set forth in our Privacy Policy. You understand and agree that Orion may access, preserve, and/or disclose Your information if required to do so by law, regulatory requirement, Customer agreement, or other internal policies and procedures.

2. Licenses and Restrictions.

a. License. Subject to these Terms, Orion grants You a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to access and use the APIs and/or Integration Center, as communicated to You by Orion: (i) to develop, test and support your Application and its connectivity with the APIs; and (ii) to enable mutual Customers who are end users of Your Application to connect to and communicate with the applicable Orion Services. You are not permitted to access or use the APIs and/or Integration Center beyond the scope of the description provided in the Application registration that has been accepted by Orion, in its sole discretion. By using the API, You agree not to: (i) modify, prepare derivative works of, or reverse engineer, our APIs, Integration Center, Orion Services, technology, or other proprietary information; (ii) use our APIs, Integration Center, or Orion Services in a way that abuses or disrupts our networks, security systems, user accounts, or the Orion Services, as determined by Orion; (iii) launch or cause to be launched on or in connection with the APIs, Integration Center, or Orion Services a malicious automated program or script, including robots, bots, viruses, or any program intended to overburden or hinder the operation and/or performance of the APIs, Integration Center, or Orion Services; (iv) attempt to gain unauthorized access to the the APIs, Integration Center, or Orion Services or its related systems or networks; (v) access or use the API or the Integration Center for fraudulent or illegal purposes, or for any purpose that may be harmful to Orion, its Affiliates, the Customers, or the Orion Services; (vi) market, sell, or resell the API, the Integration Center, or the Orion Services to any third party; (vii) use the APIs, the Integration Center, the Orion Services in violation of our policies, applicable laws, or regulations; (viii) use the APIs, the or the Integration Center in any application, product, or service that competes with any application, product, or service offered by Orion or its Affiliates, or to otherwise divert Customers or potential customers of Orion or its Affiliates from the Orion Services; (ix) harvest, collect, divert, or gather customer, user, or end-user data of either Orion or the service/offering to which this API is connected without lawful basis and written consent from Orion; (x) transmit through the API, the Integration Center, or the Orion Services any material that may infringe the intellectual property or other rights of third parties, (xi) remove any proprietary rights notices on any API, the Integration Center, and any other materials you receive in connection with your use of the API or the Integration Center; (xii) make any representations with respect to Orion, its Affiliates, the Orion Services, the APIs, the Integration Center, or this Agreement; (xii) display the Orion Marks in a manner that could reasonably imply an endorsement, relationship, or affiliation with or sponsorship between you or a third party and Orion or any of its Affiliates; and/or (xiv) access or use the APIs or the Integration Center in a manner that exceeds a reasonable request volume or constitutes excessive or abusive usage, as determined by Orion in its sole discretion.

b. Security and Privacy-by-Design. You agree to implement industry best practice, commercially appropriate, secure coding, privacy-by-design, and other appropriate recognized security methodologies when designing your Application in a manner intended to protect any information accessible, processed, hosted, or transferred from or through either the Orion Services, the APIs, or the Integration Center, or any third-party service/product to which the APIs connect. Orion reserves the right to test, validate, and/or inquire about your API use consistent with the requirements herein.

c. Proprietary Rights and Orion Marks. You acknowledge and agree that Orion and its licensors and third party partners, as applicable, retain all proprietary right, title, and interest in the APIs, the Integration Center, the Orion Services, and the name(s) and any related marks of it, any Affiliates, and any of the Orion Services (the “Orion Marks”), and any related intellectual property rights, including, without limitation, all modifications, enhancements, derivative works, and upgrades thereto. You agree that you will not use or register any intellectual property, trademark, service mark, business name, domain name, or social media account name or handle which incorporates in whole or in part the Orion Marks, Orion intellectual property, or is similar to any of these. You agree that you will not use or display the Orion Marks in any way that is not pre-approved in writing by Orion.

d. Termination of License. Orion reserves the right, in its sole discretion, and at any time, to change, suspend, or discontinue any APIs and/or the Integration Center, or suspend or terminate your rights to access or use the APIs, the Integration Center or display any Orion Marks. You may stop use of the APIs and terminate this Agreement at any time by closing your account, if applicable, and ceasing all access and use of the Orion APIs, the Integration, and/or the Orion Services, subject to the terms and conditions set forth herein. Upon termination of this Agreement, you will immediately discontinue all access and use of the Orion APIs, the Integration, and/or the Orion Services, and cease to display the Orion Marks, if applicable. Neither party shall be liable for any damages resulting from a termination of this Agreement in accordance with the terms of this Agreement; provided, however, the termination of this Agreement shall not affect any claim arising prior to such termination. Sections 1(a), 1(b), 2(c), 2(d), 3, 4, 5, 6, 7, 8, 10, 11, 12, 13, and 14 of this Agreement shall survive any termination hereof.

3. Independent Development. You understand and agree that Orion may from time to time independently create applications, products, or services that are similar to or competitive with Your applications, products, or services, and nothing in this Agreement will be construed as restricting or preventing Orion from doing so, and that such activity will create no obligation to you.

4. Confidentiality.

a. Confidential Information. For purposes of this Agreement, “Confidential Information” shall mean any and all information and material, however documented, that has been or may hereafter be provided or shown to You through in connection with the purpose hereof, regarding the APIs, the Integration Center, or the Orion Services, or otherwise, which may relate to Orion’s Customer accounts, employees, owners, systems, research, development, processes and methodologies, products, product architecture, designs and specifications, cost and pricing data, services, security documentation or information, data, know-how, inventions, discoveries, formulae, software, source codes, trade secrets, forms, financial information (including historical financial statements, financial projections and budgets, and historical and projected sales), procedures or business affairs or that of any of its Customers, subsidiaries, Affiliates and third parties to whom the Orion owes a duty of confidentiality. The face and substance of this Agreement shall also be Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include: (a) information generally known to the public through no fault of Your own; (b) information that was available, or becomes available, to You on a non-confidential basis prior to its disclosure to You by Orion, but only if (i) the source of such information is not bound by similar obligations of confidentiality or You are not otherwise prohibited from transmitting the information by a contractual, legal, fiduciary or other obligation, and (ii) You provide Orion with written notice of such prior possession either (A) prior to the execution and delivery of this Agreement or (B) if You later become aware of (through disclosure to You or otherwise) any aspect of the Confidential Information of which You had prior possession, promptly upon You becoming aware of such aspect; or (c) is independently developed by You without use of or reference to the Confidential Information, provided that You have the burden of establishing any such exception. “Confidential Information” shall also include all passwords and/or other access information related to the APIs, the Integration Center, and the Orion Services. In addition, the You agree that You will not access, process, use, procure, or store any Confidential Information disclosed by Orion for the purpose of (1) enriching, supplementing, creating, or testing any outputs, algorithms, or data, or; (2) training or the development of artificial intelligence technologies, tools, or machine learning language models.

b. Restrictions on Use. You agree that the Confidential Information: (a) will be kept confidential by You and will be utilized by You for the sole purposes of the purpose set forth in this Agreement; and (b) without limiting the foregoing, will not be disclosed by You, directly or indirectly, in whole or in part, to any third person, firm or company, including Your business partners, servants, agents or advisors unless explicitly authorized herein. Confidential Information or portions thereof may be disclosed to Your respective affiliates, directors, officers, employees, advisors, and agents (collectively, the “Representatives”), but solely to the extent (i) such Representatives need to know such information in connection with the purpose hereof, (ii) such Representatives will be informed of the confidential nature of the Confidential Information and shall agree to be bound by the terms of this Agreement or be subject to obligations at least as restrictive with respect to the Confidential Information as those set forth herein, and (iii) that You agree to be responsible for any breach of this Agreement by your Representatives. Under no circumstances shall You use the Confidential Information for Your own benefit or copy, duplicate, and/or reproduce the Confidential Information. You agree to use the same degree of care in safeguarding the Confidential Information as You use for Your own confidential and proprietary information, which shall in no event be less than the degree of care that would be taken by a reasonable person in similar circumstances. You shall promptly notify Orion of any breach or suspected breach of this Agreement or of any unauthorized access to, use or disclosure of any Confidential Information or any unauthorized access to or use of the security procedures protecting such Confidential Information and shall promptly furnish to Orion details of any of the above to the extent not prohibited by applicable law, regulation or law enforcement authorities, and without violating obligations of confidentiality owed to other clients.

c. Ownership of Information. All Confidential Information shall be and remain the property of Orion. Nothing in this Agreement shall be construed as a grant by implication, estoppel or otherwise, of any rights under Orion’s trade secrets or under any patent, patent application, utility model, copyright, or any other industrial or intellectual property rights to any of the Confidential Information, including any license by Orion to make, have made, use or sell any part of the Confidential Information or any material or product embodying any part of the Confidential Information.

d. Exceptions and Compelled Disclosure. In the event that You or anyone to whom You may transmit the Confidential Information pursuant to this Agreement becomes legally compelled to disclose any of the Confidential Information to a third party (by deposition, interrogatory, request for documents, subpoena, civil investigation other demand or decree by applicable governmental authority or the application of statutes, acts, laws, rules and regulations), You will (to the extent legally permissible) provide Orion with prompt notice before such information is disclosed so that Orion may seek a protective order or other appropriate remedy and/or waive compliance with the provisions of this Agreement. In the event that such protective order or other remedy is not obtained, You will furnish only that portion of the Confidential Information which You are advised by reasonable opinion of legal counsel is legally required and will exercise its best efforts to assist Orion in obtaining a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information that is disclosed.

e. Term; Return of Materials. The term of this agreement shall continue until either party gives written notice to the other of its intent to terminate. Upon the termination of this Agreement, You will no longer have access to the Orion APIs, the Integration Center, the Orion Services, or the Orion Confidential Information. In the event of termination of this Agreement, You shall continue to hold the Confidential Information in strict confidence as set forth hereunder in perpetuity. Upon the earlier of termination of this Agreement or the written request of Orion, You shall return all copies of Orion’s Confidential Information or certify in writing that all copies thereof have been destroyed. Notwithstanding the foregoing, You may retain information as may be automatically archived as part of Your electronic back-up system and/or bona fide retention policies and procedures, provided it is not available for general access and it remains subject to the obligations of confidentiality hereunder.

f. Acknowledgement. You acknowledge that information of Orion communicated or made available to You will contain proprietary and confidential intellectual property of Orion. This intellectual property includes technical, marketing, and other information pertaining to tools that may be substantially similar to the technologies, systems, products, services and methods that may be offered through You and/or Your Affiliates. Therefore, You hereby agree that (i) any information disclosed by Orion regarding its technology tools shall be deemed Confidential Information; (ii) Orion shall retain ownership of all such intellectual property; and (iii) neither You nor any Affiliate will reverse engineer, aid or assist in the reverse engineering, decompile, or derive or attempt to derive any information about Orion’s technology tools. Notwithstanding the foregoing, the rights and obligations contained in subsection (ii) and (iii) shall survive termination of this Agreement and remain in perpetuity.

g. Injunctive Relief. You acknowledge and agree that money damages would not be a sufficient remedy for any breach or threatened breach of this Agreement by You or Your affiliates. Therefore, in addition to all other remedies available at law Orion shall be entitled to seek specific performance and injunctive and other equitable relief without the posting of a bond or other security as a remedy for any such breach or threatened breach. In the event that You shall act or attempt to act in any manner contrary to the terms of this Agreement, Orion shall be entitled to all legal and equitable remedies afforded it by law or equity as a result thereof, including injunctive relief, it being acknowledged that legal remedies are inadequate, and Orion would be irreparably harmed.

5. Warranties. You hereby warrant to Orion that you have all necessary authority to enter into and perform your obligations under this Agreement without the consent of any third party or breach of any contract or agreement with any third party, and that the use by others of your applications, products, or services shall not violate the rights of any third party (e.g., copyright, patent, trademark, or other proprietary rights) or any applicable law or regulation. You hereby acknowledge and agree that the APIs, the Integration Center, and/or the Orion Services, as applicable, are provided by Orion on an “AS IS” and “AS AVAILABLE” basis. ORION EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. ORION MAKES NO WARRANTY THAT ANY OF THE APIs OR THE INTEGRATION CENTER WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF THE APIs OR THE INTEGRATION CENTER WILL BE UNINTERRUPTED, TIMELY, OR ERROR-FREE; NOR DOES ORION MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE APIs OR THE INTEGRATION OR THAT ANY DEFECTS IN THE APIs OR THE INTEGRATION CENTER WILL BE CORRECTED. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM ORION OR THROUGH THE APIs OR INTEGRATION CENTER SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

6. Limitation on Liability. IN NO EVENT SHALL ORION BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL LOSS, EXEMPLARY OR OTHER DAMAGES RELATED TO THIS AGREMEENT, WHETHER DIRECT OR INDIRECT, INCLUDING BUT NOT LIMITED TO: (i) LOSS OF DATA; (ii) LOSS OF INCOME; (iii) LOSS OF OPPORTUNITY; (iv) LOST PROFITS; OR (v) COSTS OF RECOVERY OR ANY OTHER DAMAGES, HOWEVER CAUSED AND BASED ON ANY THEORY OF LIABILITY, AND INCLUDING, BUT NOT LIMITED TO, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR OTHERWISE, AND WHETHER OR NOT ORION HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ORION’s LIABILITY HEREUNDER IS LIMITED TO $100.00.

7. Indemnification. You agree to defend, indemnify, and hold harmless Orion and its Affiliates, and its and their respective directors, officers, agents, employees, consultants and partners, from and against any third party claim arising from or in any way related to your use of the APIs and/or the Integration Center, any violation of this Agreement by You, or any other actions related to Your use of the APIs and/or the Integration Center, including any liability or expense arising from claims, losses, damages (actual or consequential), suits, judgments, litigation costs and reasonable attorneys’ fees, of every kind and nature.

8. Relationship of the Parties. You and Orion are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.

9. Notice. Orion may provide you notice hereunder via email, regular mail, and/or postings on Orion or its Affiliates’ website(s).

10. Compliance with Laws. Both parties agree to comply with all applicable local, state, national and foreign laws, rules, and regulations, including, but not limited to, all applicable export and import laws and regulations, in connection with their performance, access and/or use of the APIs or the Integration Center under this Agreement.

11. Entire Agreement; Assignment. This document contains the entire Agreement between the parties with respect to the subject matter hereof and supersedes any previous understanding, commitments or agreements, oral or written, pertaining to the subject matter of this Agreement. You agree that the Agreement shall not be assigned, modified or changed in any manner except without express approval from Orion. Orion reserves the right to assign this Agreement to any of its Affiliates or subsidiaries at any time.

12. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without giving effect to the conflict of laws principles of that or any other jurisdiction. If any provision of this Agreement is declared void or otherwise unenforceable, such provision shall be deemed to have been severed from this Agreement, which shall otherwise remain in full force and effect.

13. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

14. Miscellaneous. Orion’s failure to insist upon or enforce strict performance of any provision of this Agreement, including through a course of dealing or conduct, shall not constitute a waiver or modification of the provision.

ACKNOWLEDGEMENT AND ACCEPTANCE:

BY ACCEPTING AND ACKNOWLEDGING THIS AGREEMENT BY CLICKING “I AGREE” YOU REPRESENT AND WARRANT YOU HAVE THE AUTHORITY TO BIND YOURSELF AND/OR THE LEGAL ENTITY YOU ARE ACTING ON BEHALF OF TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT CLICK THE “I AGREE” BUTTON. IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE CONFIDENTIAL INFORMATION COVERED HEREUNDER OR THE ORION APIs AND/OR INTEGRATION CENTER.