Case 2:20-cv-01148-CFK Document 19-17 Filed 05/14/20 Page 1 of 23
`Case 2:20-cv-01148-CFK Document19-17 Filed 05/14/20 Page 1 of 23
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`EXHIBIT Q
`EXHIBIT Q
`
`1
`
`

`

`Case 2:20-cv-01148-CFK Document 19-17 Filed 05/14/20 Page 2 of 23
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`MASTER SUBSCRIPTION AGREEMENT
`
`
`
`
`This Master Subscription Agreement, together with its Exhibits and Data Sheet(s) (collectively, the
`“Agreement”) is entered into by and between Black Diamond Performance Reporting, LLC, a wholly owned
`subsidiary of Advent Software, Inc., having an office at 10151 Deerwood Park Blvd., Building 400, Suite 300,
`Jacksonville, Florida 32256 (“Black Diamond”) and SEI Global Services, Inc., a Delaware corporation having
`an office at One Freedom Valley Drive, Oaks, Pennsylvania 19456 (“SEI Global”).
`
`For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties
`agree as follows:
`
`
`1. Definitions
`
`
`
`“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common
`control with the subject entity, and shall include with respect to SEI Global, its parent SEI Investments
`Company, and all other wholly-owned direct and indirect subsidiaries of SEI Investments Company. SEI
`Global represents and warrants that it has the ability to bind any such Affiliate to the terms of this
`Agreement. For purposes of this definition, the term “control” shall mean, as to each such entity, the
`power to direct or cause the direction of the management and policies of such entity through ownership
`of at least 50% of such entity’s voting securities or otherwise. Such entity shall be deemed to be an
`“Affiliate” only so long as such control exists.
`
`“Anti-Bribery Laws” means any law applicable to Client or their respective employees and agents with
`respect to the regulation of payments or accommodations to government officials or others, including
`without limitation to the extent applicable the Foreign Corrupt Practices Act as is, or will be from time to
`time, applicable in the United States of America and the 2010 Bribery Act, as is, or will be from time to
`time, applicable in the United Kingdom.
`
`“Authorized User” means any (i) employees and agents of Client accessing or using the Website solely
`on behalf and for the benefit of Client and solely in connection with the operation of Client’s internal
`business (although Black Diamond acknowledges that Client’s internal business operations benefit the
`direct and indirect clients of Client), (ii) any clients of Client accessing or using the Website solely in
`connection with Client’s provision of services to such clients, and (iii) with respect to the Client Portal
`described on Exhibit A, the account holders and other users described on Exhibit A.
`
`“Availability Levels” for a particular monthly time period is calculated by dividing the total number of
`minutes that the Website is available for use during such month by the total number of minutes within
`such month (as measured at the end of such month). If Black Diamond schedules any time periods of
`maintenance during Maintenance Windows, such time periods shall be excluded in the calculation of
`Availability Level for such period. Unavailability is calculated from the time the Website becomes
`functionally inoperable (except as permitted in Section 3.3(ii)(2)) until such time that functionality has
`been restored.
`
`“Business Day(s)” means Monday through Friday, excluding all federal holidays.
`
`“Business Hour(s)” means hours between 8:30 am EST and 5:00 pm ET on Business Days.
`
`“Client” means SEI Global, its parent SEI Investments Company, and all other wholly-owned direct
`subsidiaries and wholly-owned indirect subsidiaries of SEI Investments Company.
`
`“Client Data” means all data or information submitted by or on behalf of Client or an Authorized User
`into or through the Website or to which Black Diamond has access in connection with the provision of
`any maintenance or support services or otherwise under this Agreement, as well as all data and
`information that is derived from or based on such data or information (but, as further described in
`Section 6.2(b), Client Data shall not include performance and trend data that has been de-identified
`and aggregated such that it does not reveal, and is not capable of revealing, the identity of Client, any
`clients of Client or any Authorized User).
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`“Data Sheet” means the document, substantially in the form attached hereto or as otherwise agreed to
`in writing by Black Diamond and Client, by which Client orders the Service(s) from Black Diamond.
`Each Data Sheet constitutes a separate and independent contractual obligation of the parties and is
`governed by and forms part of the Agreement. No Data Sheet shall be binding on Client or Black
`Diamond until executed by Client or Black Diamond as applicable.
`
`“Laws” means laws, rules, regulations or orders of any governmental, regulatory or judicial authority or
`the rules of any stock exchange, specifically including but not limited to the Investment Company Act of
`1940, Anti-Bribery Laws and Privacy Laws, all as may be enacted or modified from time to time.
`
`“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious
`code, files, scripts, agents or programs.
`
`“Maintenance Windows” shall mean the following time periods (i) from 12:00 am ET until 6:00 pm ET
`on Sunday; (ii) from 12:00 am ET until 5:00 am ET all other days; and (iii) any planned downtime of
`which Black Diamond shall give at least twelve (12) hours prior written notice to Client.
`
`“Non-Peak Hours” shall include the time from 6:00 pm EST to 8:00 am ET during a Business Day, but
`shall not include any periods of time during the Maintenance Windows when the Website is unavailable.
`
`“Peak Hours” shall mean the time period from 8:00 am EST until 6:00 pm ET during a Business Day.
`
`“Privacy Laws” means all Laws applicable to and governing the privacy of the Client Data, including,
`without limitation, the Gramm-Leach-Bliley Act of 1999 and the regulations promulgated thereunder, as
`the same may be amended from time to time, and similar laws, rules, regulations and court orders in
`other jurisdictions.
`
`“Services” means (i) the Services set forth on Exhibit A, attached hereto and incorporated herein by
`reference, including the operation of the Website, and (ii) any other service(s) selected by Client on a
`Data Sheet or set forth in a Statement of Work and agreed upon in writing by Black Diamond and Client,
`and may include without limitation support services.
`
`“Update(s)” means any modifications, enhancements, bug fixes, or other updates to the Website, when
`and if available, that Black Diamond makes generally available to its clients at no additional cost.
`
`“User Guides” means the online user guides for the Website as may be updated from time to time;
`provided, that (a) to the extent the terms of this Agreement conflict with those of the User Guides, the
`terms of this Agreement control, and (b) Black Diamond will not modify the User Guides in a manner
`that materially and adversely affects Client’s or Authorized Users’ rights, or Black Diamond’s obligations,
`under this Agreement.
`
`“Website” means the URL https://www.bluesky2.bdreporting.com and any Updates thereto and/or any
`successor URLs.
`
`2. Client License Grant and Responsibilities
`
`
`
`2.1
`
`Client License Grant. Subject to the terms and conditions herein, Black Diamond hereby
`grants to Client and its Authorized Users, during the term of this Agreement and Transition
`Assistance Period, a limited, non-exclusive, non-transferable (subject to Section 12.6), non-
`sublicensable right and license to access and use the Website in the United States and (a) with
`respect to Authorized Users of Client, solely in connection with the operation of Client's internal
`business (although Black Diamond acknowledges that Client’s internal business operations
`benefit the direct and indirect clients of Client), and (b) with respect to Authorized Users that are
`clients of Client, solely in connection with Client’s provision of services to such clients. From
`time to time during the term of this Agreement, Client and its Authorized Users may also be
`granted a limited, non-exclusive, non-transferable (subject to Section 12.6), non-sublicensable
`right and license to access and use pre-production versions of the Website, any portions thereof
`or related third-party products or services (“Beta Programs”) solely for testing, non-production
`
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`
`
`2.2
`
`purposes, subject to the terms of this Section 2, Section 6 (Proprietary Rights), and Section 7
`(Confidentiality), and only in accordance with the documentation supplied by Black Diamond.
`Any use of the Beta Programs is “AS IS” and at Client’s own risk, if and for so long as available.
`
`Client Use Restrictions. Client and its Authorized Users shall use the Website and/or Services
`subject
`to
`the
`Terms
`of
`Use
`(“TOU”)
`(currently
`at
`http://bluesky2.bdreporting.com/Auth/Terms.aspx, and which may be reasonably updated by
`Black Diamond from time to time) and solely as permitted under Section 2.1; however, to the
`extent the terms of this Agreement conflict with those of the TOU, the terms of this Agreement
`control, and Black Diamond may not modify the TOU in a manner that materially and adversely
`affects Client’s or Authorized Users’ rights, or Black Diamond’s obligations, under this
`Agreement. Client shall not: (i) except as expressly permitted by this Agreement, license,
`sublicense, sell, resell, rent, lease, transfer, distribute, disclose, assign, pledge, time share or
`otherwise commercially exploit or make the Website, including but not limited to any supplier
`data provided thereby, Services or other proprietary information of Black Diamond available to
`any third party; (ii) send spam or otherwise duplicative or unsolicited messages in violation of
`applicable laws; (iii) send or store infringing, obscene, threatening, libelous, or otherwise
`unlawful or tortious material, including material that is harmful to children or violates a third
`party’s rights; (iv) knowingly send or store Malicious Code; (v) intentionally interfere with or
`disrupt the integrity or performance of the Website or the data contained therein; (vi) modify,
`copy or create derivative works or any functionally similar software based on the Website,
`although Section 7.3 shall apply; (vii) frame or mirror any content forming part of the Website;
`(viii) reverse engineer, decompile, disassemble, or otherwise attempt to obtain or perceive the
`source code of the Website (or any component thereof) to (a) build a competitive product or
`Website or (b) copy any ideas, features, functions, content, data or graphics of the Website; or
`(ix) remove, alter, or obscure any proprietary notice or legend of Black Diamond, its suppliers,
`or licensors upon any and all copies of the Website. Clauses (iv) and (v) in the preceding
`sentence shall not be construed as limiting Black Diamond’s suspension rights set forth in
`Section 11.3.
`
`2.3
`
`Client Responsibilities. Client acknowledges and agrees that, as between Client and Black
`Diamond, Client is jointly and severally liable for the compliance by the Authorized Users with
`this Agreement, including without limitation, the access and use of the Website and/or Services
`by any Client and/or Authorized Users. Client shall comply with all applicable Laws in using the
`Website and/or Services.
`
`3.0 Black Diamond License Grant and Responsibilities
`
`3.1
`
`3.2
`
`3.3
`
`Black Diamond License Grant. Client hereby grants to Black Diamond and its Affiliates and
`vendors the right to, as applicable, receive, access, use, track, audit, reproduce, transmit,
`retransmit, distribute, display, process, convert and/or modify Client Data solely for the
`purposes contemplated by this Agreement.
`
`Black Diamond Use Restrictions. Black Diamond acknowledges and agrees that it shall use
`the Client Data solely for its internal purposes in providing the Website and Services ordered
`hereunder to Client and its Authorized Users and for no other purpose.
`
`Black Diamond Responsibilities. Black Diamond shall: (i) provide access to the Website in
`accordance with the terms hereof; (ii) attain Availability Levels for the Website of (a) 99.5%
`during Peak Hours and (b) 99.0% during Non-Peak Hours, except for (1) Maintenance
`Windows, and/or (2) any unavailability caused by any Force Majeure Event (as defined herein);
`(iii) provide support for the Website and Services in accordance with Section 4 hereof; and (iv)
`provide Client with Updates as they are generally made available by Black Diamond, which
`shall be made available as necessary to keep the Website technologically current and to comply
`with the following provisions of this Section.
`
`Black Diamond shall maintain the Website such that it operates in compliance with applicable
`Laws.
`
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`
`
`3.4
`
`Black Diamond shall use commercially reasonable efforts to maintain the Website and provide
`the Services in a manner that does not introduce inaccuracies into the Client Data.
`
` Business Resumption and Contingency Plans. Prior to the Effective Date, Black Diamond
`has provided, and thereafter upon Client’s request, Black Diamond shall provide, to Client a
`copy of information pertaining to its business resumption and contingency plan (“BRC Plan”).
`Black Diamond shall maintain such BRC Plan at all times throughout the term of this Agreement
`and Transition Assistance Period and, when necessary, implement and carry out the BRC Plan.
`At a minimum, the BRC Plan will provide for Black Diamond resuming business operations of
`the Website and Services in a reasonable period of time (which, as of the Effective Date, is 24-
`72 hours subject to conditions on the ground). Black Diamond shall monitor, evaluate and, in its
`commercially reasonable and professional discretion, adjust its BRC Plan in response to
`relevant changes in technology and internal and external threats to Black Diamond and/or any
`Client Data; provided that such BRC Plan shall remain materially consistent with the version of
`the BRC Plan provided to Client prior to the Effective Date. Black Diamond will periodically test
`its BRC Plan and update the BRC Plan as needed as a result of such tests.
`
`4. Professional Services and Support
`
`4.1
`
`4.2
`
`4.3
`
`4.4
`
`4.5
`
`Statement(s) of Work. From time to time after the Effective Date of this Agreement, Client
`may request that Black Diamond perform certain services in addition to those set forth herein
`(the “Additional Services”). The Additional Services shall be performed pursuant to mutually
`agreed upon Statements of Work (each, a “Statement of Work”). Statements of Work will be
`signed by authorized representatives of each party, and will specify, where applicable: (i) a
`description of the Additional Services to be performed; (ii) the period of time during which Black
`Diamond is to perform such Additional Services; (iii) the rate Client shall pay for such Additional
`Services performed; and (iv) such additional terms and conditions as the parties may mutually
`agree upon. Unless otherwise explicitly agreed in a Statement of Work, all Additional Services
`are provided on a time and materials basis at commercially reasonable rates as mutually
`agreed by the parties. All Statements of Work will be deemed part of and subject to this
`Agreement; provided however, that in the event of a conflict between the terms of this
`Agreement and a Statement of Work, the terms of the Statement of Work will control to the
`extent the relevant provision of this Agreement is identified by Section reference.
`
`Implementation. The plan for the initial implementation of the Website to reflect Client’s
`version of the Website, and for the establishment of data feeds and commencement of access
`and use of the Website by the Authorized Users, is attached as Exhibit C. Each party shall
`fulfill its respective obligations under such plan, as it may be further detailed by mutual
`agreement of the parties.
`
`Support Obligations. In order to support Client’s use of the Website and Services set forth on
`the Data Sheet and subject to Client’s compliance with its payment obligations under Section 5,
`Black Diamond shall provide support to Client in accordance with this Section 4 (Professional
`Services and Support). Client agrees to promptly notify Black Diamond via phone and email
`upon first discovering an error on the Website. Black Diamond shall determine the severity of
`each error following notification of the error by Client. Client acknowledges and agrees that the
`response times set forth below shall not apply to the extent that the problem or error arises due
`to a Force Majeure Event, provided that Black Diamond complies with the BRC Plan.
`
`Severity Levels. “Level 1 Severity Errors” means reproducible errors in the Website that
`cause minimal impact to Client’s use of the Website. “Level 2 Severity Errors” means
`reproducible errors in the Website that cause inconsistencies or impairments in Client’s use of
`the Website. “Level 3 Severity Errors” means (a) reproducible errors in the Website that
`cause severe impact to Client’s use of the Website (e.g., work stoppages or system crashes) or
`(b) reproducible errors with respect to the data feeds to Client’s Wealth General Ledger.
`
`Response Times. For Level 1 Severity Errors, Black Diamond will use commercially
`reasonable efforts to respond to requests for support from Client within two (2) Business Days.
`For Level 2 Severity Errors, Black Diamond will use commercially reasonable efforts to respond
`to requests for support from Client within eight (8) Business Hours. For Level 3 Severity Errors,
`
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`Black Diamond shall use commercially reasonable efforts to respond to requests for support
`from Client within four (4) Business Hours. In each instance Black Diamond will, after the initial
`response, within a time frame mutually agreed upon by the parties and at a minimum consistent
`with those time frames set forth above, provide Client with an action plan for resolution of the
`error. Level 1 Severity Errors may be corrected in subsequent Updates of the Website.
`
`If three (3) or more Level 3 Severity Errors occur within any calendar month, Client shall have
`the right to terminate this Agreement for cause upon written notice to Black Diamond.
`
`4.6
`
`Updates and Support Services. As part of the support Services, Black Diamond will provide
`Client any updates and enhancements to the Website at the time Black Diamond first releases
`them generally to its customers, and shall provide those other support Services described in
`Exhibit A.
`
`5. Fees and Payment
`
`5.1
`
`5.2
`
`5.3
`
`Invoicing. Black Diamond shall submit invoices to SEI Global on a monthly basis. SEI Global
`shall pay any and all fees specified in this Agreement or a Statement of Work executed by the
`parties in full within thirty (30) days following its receipt of each such invoice unless otherwise
`specified and mutually agreed upon in writing; provided that SEI Global may withhold payment
`of any amounts that are disputed by SEI Global in good faith pending resolution of the dispute.
`Any undisputed amount not received by Black Diamond when due shall be subject to a late fee
`of 1.0% per month, or the maximum charge permitted by law, whichever is less. All fees under
`this Agreement or any Statement of Work executed by the parties are quoted in, and payable in,
`United States dollars. Except as expressly provided in this Agreement, all payments made by
`Client to Black Diamond hereunder are non-refundable. Client is responsible for updating and
`providing to Black Diamond complete and accurate billing and contact information. SEI Global
`shall not pay any invoices issued by Black Diamond or any third party more than 90 days after
`the date that the Services that are the subject of the invoice should have been invoiced. No
`other fees or amounts beyond those expressly set forth in this Agreement are required for the
`Authorized Users to enjoy all of the rights granted under this Agreement.
`
`Taxes. SEI Global shall pay all federal, state, local or foreign sales, use and other similar
`taxes, duties or charges of any kind (including withholding or value added taxes) arising in
`connection with this Agreement, excluding any taxes based on Black Diamond’s income. If
`Black Diamond has the legal obligation to pay or collect taxes for which Client is responsible
`under this Section, the appropriate amount shall be invoiced to and paid by SEI Global in
`accordance with Section 5.1. Black Diamond shall maintain full and detailed records of all such
`taxes invoiced to Client and paid to the taxing authority by Black Diamond.
`
`Suspension for Nonpayment. If SEI Global’s account is thirty (30) days or more past due
`(except with respect to charges subject to a good faith dispute), in addition to any other rights or
`remedies it may have under this Agreement, Black Diamond may give notice to SEI Global of
`such delinquency and, in such case, SEI Global will have ninety (90) days from the date of
`receipt of Black Diamond’s written notice to cure the delinquency. Such notice indicate that
`failure by SEI Global to cure the delinquency within ninety (90) days shall entitle Black Diamond
`to pursue rights and remedies against Client, which include suspending Client’s access to the
`Website. If SEI Global fails to cure the delinquency within such ninety (90) day period, Black
`Diamond reserves the right to suspend Client’s access to the Website.
`
`6. Proprietary Rights
`
`6.1
`
`Reservation of Rights. Subject to the limited rights expressly granted hereunder, Black
`Diamond reserves all right, title and interest in and to the Website, any modifications to or
`derivative works based thereon, including but not limited to Beta Programs, and any work
`product produced as a result of Services provided hereunder, excluding the Client Data
`(“Deliverables”), including all intellectual property and proprietary rights therein. Client hereby
`irrevocably assigns to Black Diamond any rights in and to the Deliverables (excluding any Client
`Data) or any other changes to the Website made by or for Client pursuant to this Agreement,
`and hereby waives any and all moral rights that Client may retain in and to such Deliverables or
`
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`Case 2:20-cv-01148-CFK Document 19-17 Filed 05/14/20 Page 7 of 23
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`changes. Client acknowledges that no rights are granted to Client hereunder other than as
`expressly set forth herein.
`
`6.2
`
`Client Data.
`
`(a)
`
`As between Black Diamond and Client, Client exclusively owns all rights, title and
`interests in and to all Client Data. Without Client’s prior written approval (in its sole
`discretion), the Client Data shall not be: (a) used by Black Diamond other than in
`connection with fulfilling its obligations under this Agreement, (b) disclosed, sold,
`assigned, leased or otherwise provided to third parties by Black Diamond, or (c)
`commercially exploited by or on behalf of Black Diamond. Black Diamond hereby
`irrevocably assigns, transfers and conveys to Client without further consideration all of
`its right, title and interest in and to the Client Data, together with any copyright and other
`associated intellectual property rights. Client shall have access to the Client Data at all
`times.
`
`(b)
`
`Client Data shall not include, and Black Diamond shall be permitted to use for purposes
`of improving the Services and Website, performance and trend data that has been de-
`identified and aggregated such that it does not reveal, and is not capable of revealing,
`the identity of Client, any clients of Client or any Authorized User.
`
`6.3
`
`Suggestions & Feedback. Client hereby grants to Black Diamond, a non-exclusive, royalty-
`free, worldwide, transferable, sublicenseable, irrevocable, perpetual right and license to use,
`disclose, modify and/or incorporate into the Website (including any Beta Programs therefor, and
`any other applications or services of Black Diamond) any ideas, suggestions, enhancements,
`recommendations or other feedback provided by Client, its Affiliates and/or its Authorized
`Users.
`
`7. Confidentiality
`
`7.1
`
`Definition of Confidential Information. As used herein, “Confidential Information” means all
`confidential and proprietary information of either party (“Disclosing Party”) disclosed to the
`other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or
`that reasonably should be understood to be confidential given the nature of the information and
`the circumstances of disclosure, including without limitation the terms, conditions and
`performance of the obligations of this Agreement (including but not limited to pricing and other
`terms reflected in all Data Sheets hereunder), the Client Data, the Website, business and
`marketing plans, information relating to either party’s customers and/or vendors, technology and
`technical information, product designs, and business processes, although this Section 7 shall
`not be construed as limiting the license rights granted pursuant to this Agreement. Confidential
`Information shall not include any information that: (i) is or becomes generally known to the
`public without breach of any obligation owed to the Disclosing Party; (ii) was known to the
`Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation
`owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without
`use of the Confidential Information of the Disclosing Party; or (iv) is received from a third party
`without breach of any obligation owed to the Disclosing Party. Client Data that qualifies as
`Personally Identifiable Information (PII) under Gramm-Leach-Bliley Act of 1999 is not subject to
`the aforementioned exclusion from Confidential Information for so long as it remains PII and will
`be treated as Confidential Information by Black Diamond.
`
`7.2
`
`Confidentiality Obligations. Each Receiving Party shall use commercially reasonable efforts
`to avoid the loss, unauthorized disclosure and/or unauthorized use of any Confidential
`Information of the Disclosing Party. Each party agrees to protect the confidentiality of the
`Confidential Information of the other party in the same manner that it protects the confidentiality
`of its own proprietary and confidential information of like kind (but in no event using less than
`reasonable care). Client hereby authorizes Black Diamond to provide Client Data to (i) third
`party partners, vendors, custodians, and agents engaged and/or used by Black Diamond as
`permitted under this Agreement; and (ii) Affiliates of Black Diamond, in each case as necessary
`for Black Diamond to perform its obligations under this Agreement. Black Diamond hereby
`
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`7.3
`
`authorizes Client to provide Confidential Information of Black Diamond to its third party service
`providers solely in connection with the receipt of the Services and access and use of the
`Website under this Agreement, provided that (a) such third party service providers are bound by
`the obligations of confidentiality that are consistent with those contained in this Agreement and
`(b) Client assumes all responsibility for use of such Confidential Information by such third party
`service providers. If the Receiving Party is compelled by Law to disclose Confidential
`Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such
`compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing
`Party’s cost, if the Disclosing Party wishes to contest the disclosure. The Receiving Party shall
`promptly notify the Disclosing Party in writing upon learning of any unauthorized disclosure or
`use of the Disclosing Party’s Confidential Information.
`
`Residuals. The terms of confidentiality under this Agreement shall not be construed to limit the
`Receiving Party’s right to independently develop or acquire products or services without use of
`the Disclosing Party’s Confidential Information. Further, the Receiving Party shall be free to use
`for any purpose the residuals resulting from access to or work with the Confidential Information
`of the Disclosing Party. The term “residuals” means information in intangible form, which is
`retained in memory by persons who have had access to the Confidential Information, including
`ideas, concepts, know-how or techniques contained therein; provided, however, that “residuals”
`shall not include information intentionally memorized or retained by a person for the specific
`purpose of circumventing a party’s obligations of confidentiality and restrictions on permitted
`use under this Agreement. The Receiving Party shall not have any obligation to limit or restrict
`the assignment of such persons or to pay royalties for any work resulting from the use of
`residuals. However, nothing in this paragraph shall be deemed to grant to the Receiving Party
`a license under any of the Disclosing Party’s copyrights or patents.
`
`7.4
`
`Security.
`
`(a)
`
`Reviews. Black Diamond will provide Client a remote annual review of controls used by
`Black Diamond to perform Services and provide access and use of the Website, which
`upon request by Client shall be the following items:
`
`(i)
`
`(ii)
`
`At no charge to Client, an interview by telephone or electronic live meeting (not
`to exceed two hours) with security management to be scheduled at a mutually
`convenient time, and
`
`At no charge to Client, the receipt by Client of the following written materials
`(which may be discussed and reviewed in the course of the interview described
`above): then-current copies of (a) Black Diamond’s applicable AICPA SSAE-
`16/SOC-1 (or successor) audit report; (b) Black Diamond’s privacy policy, (c)
`Black Diamond’s code of business ethics and conduct, (d) Black Diamond’s
`business continuity executive summary (but not proprietary content), (e) Black
`Diamond’s applicable BITS Standard Information Gathering matrix, (f) a link to
`Black Diamond’s SEC public financial statements, (g) a copy of the evidence of
`insurance certificate, (h) an executive summary list of Black Diamond’s security
`policies (but not proprietary content).
`
`Any services required from Black Diamond or Advent Software in connection with such
`a review that are in excess of two hours may be billed at a rate of not less than
`$450/hour per person but no more than $525/hour per person, plus reasonable out-of-
`pocket expenses if applicable (collectively, the “Cooperation Fees”).
`
`Compliance. Black Diamond shall comply with the controls and security practices
`described in its AICPA SSAE-16/SOC-1 (or successor) audit report, privacy policy,
`code of business ethics and conduct, Black Diamond’s BRC Plan, and Black Diamond’s
`security policies (collectively, the “Data Safeguards”). Black Diamond shall monitor,
`evaluate and, in its commercially reasonable and professional discretion, adjust its
`information security systems and procedures, including Data Safeguards, in response
`to relevant changes in technology, changes in Law, changes in the sensitivity of the
`Client Data and internal and external threats to information security; provided that Black
`Diamond shall not make any change that, alone or in the aggregate, materially and
`adversely affects the security of any Client Data.
`
`(b)
`
`DB1/ 81583913.9
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`Case 2:20-cv-01148-CFK Document 19-17 Filed 05/14/20 Page 9 of 23
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`(c)
`
`(d)
`
`Data Segregation. Black Diamond shall logically segregate the Client Data from the
`data of any of its other clients, customers or other third