General Terms and Conditions

Enfusion and Client (each a “Party” and collectively, the “Parties”) intend for these General Terms and Conditions (the “General Terms and Conditions”) to be attached to, made a part of and incorporated by reference in the Master Services Agreement, as amended or supplemented from time-to-time, (the “Agreement”) between the Parties.

1. Definitions: All capitalized terms used but not defined in these General Terms and Conditions shall have the meanings given in the Agreement. The term “Agreement” as used herein, in the Agreement, and in any Product T&Cs (as defined in Section 28 herein) shall include these General Terms and Conditions for all purposes. Any terms provided by Client that add, vary, or conflict with these General Terms and Conditions are hereby rejected.
   1. “Affiliate” means an entity that controls, is controlled by, or is under common control with a Party hereto.  For purposes of this provision, "control" means possessing, directly or indirectly, the power to direct, or cause the direction of, the management, policies, or operations of an entity, whether through ownership of voting securities, by contract, or otherwise.
   2. “Change of Control” means, with respect to a Party, the: (i) sale of all, or substantially all, of the Party’s assets to another party; or (ii) transfer of equity ownership of the Party or the merger of the Party with another party (or similar transaction), such that a person or persons that could not elect a majority of the directors of that Party before such transfer, could elect a majority after the transaction, other than a transfer which occurs in connection with an initial public offering of the shares of such Party.
   3. “Client Data” means, the data and information input or uploaded into the Enfusion Products (as defined below) by Client or Client Representatives registered to access and use the Enfusion Products. Client is responsible for obtaining any necessary right and licenses for use of the Client Data by Client and Enfusion as contemplated in this Agreement. Client agrees that it has the legal right and authority to access, use and disclose to Enfusion any Client Data. Client authorizes Enfusion to access, process, and use the Client Data as necessary to perform and fulfill its obligations hereunder. 
   4. “Enfusion Products” means the products and services that Client may or has contracted with Enfusion to use or receive or that Enfusion makes commercially available at any time, as amended from time-to-time.
   5. “Industry Standard” means a set of commercially reasonable practices that provide a level of care consistent with practices (i) expected by an asset manager portfolio management software provider; (ii) used or adopted by a substantial number of companies of a similar size that are engaged in a similar type of business to manage information of a similar type; (iii) prescribed for use by a governing industry standards body or group; or (iv) established by recognized experts in the field as being acceptable and reasonable.
   6. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction.
   7. “Program” means the written or clearly established and exercised processes and procedures for accomplishing common objectives and monitoring such accomplishment, which may be updated from time-to-time.
   8. “Representatives” means each Party’s and its Affiliates’ respective members, officers, directors, employees, consultants, attorneys, accountants, agents, and independent contractors.
   9. “Risk Assessment Process” and “Risk Assessment” mean an exercised process used to identify the risks to system security and determine the general likelihood of occurrence, the resulting impact, and identify additional safeguards or modifications that would eliminate or adequately mitigate this impact.
   10. “Risk Management Program” means the exercised process for identifying, controlling, and mitigating information system related risks. It includes an Industry Standard qualitative or quantitative Risk Assessment Process; cost-benefit analysis; and the selection, implementation, testing, and evaluation of safeguards with the intent to meet the four (4) security goals of Security Assurance.
   11. “Security Assurance” means grounds for confidence that the four (4) security goals (i.e., integrity, availability, confidentiality, and accountability) have been adequately met by a computer or information system(s) designed and intended to monitor and survey the security of Enfusion’s Software, hardware, and related platform. “Adequately met” means functionality that (i) performs as expected; (ii) provides sufficient protection against unintentional errors (by users of the Software); and, (iii) affords sufficient resistance to intentional penetration or bypass.
   12. “Usage Data” Enfusion may collect and analyze data and other information relating to the provision, use and performance delivery of the Enfusion Products and related systems and technologies therefrom (“Usage Data”) in order to improve and enhance the Enfusion Products. Insights drawn from Usage Data may be disclosed to Clients and other authorized users of the Enfusion Products in connection with their respective use of the Enfusion Products; provided that, if Enfusion discloses insights drawn from Usage Data, then all Usage Data in such disclosures will be anonymized and aggregated, will not identify Client or Client’s authorized users, and will not be disclosed in a manner that would permit a third party to determine Client’s or Client’s authorized users’ identity.
   13. “Vulnerability” means a flaw or weakness in computer system functionality, design, implementation, internal controls, or security procedures that could be exercised (accidentally triggered or intentionally exploited) and result in a security breach or a violation of the system’s security policy.

2. Interpretation: Unless the context of these General Terms and Conditions, the Agreement, or any relevant Product T&Cs otherwise requires: (i) a capitalized word has the meaning assigned to it by these General Terms and Conditions, the Agreement, or the relevant Product T&Cs; (ii) “or” will be construed such that the series may include any of the items, all of the items, or any combination of the items; (iii) words in the singular include the plural, and words in the plural include the singular; (iv) “hereof,” “hereunder,” “herein,” and “hereto” refer to the entire Agreement (including all exhibits, schedules, addenda, these General Terms and Conditions, and any relevant Product T&Cs) and not any individual section or subsection; (v) references in this Agreement to sections, subsections, other subdivisions, these General Terms and Conditions, Product T&Cs, annexes, addenda, or schedules are references to the sections, subsections, or other subdivisions or Product T&Cs or schedules attached (or incorporated into by reference) to this Agreement; (vi) “in writing” refers to in written or printed form, facsimile transmission, or e-mail; (vii) the terms “include,” “includes,” or “including”  are to be construed as “including without limitation;” (viii) the phrase “any reason” is to be construed as “any reason or no reason;” and, (ix) the headings in the Agreement, these General Terms and Conditions, and any relevant Product T&Cs are for reference only and do not limit or otherwise affect the meaning hereof.

3. Term: Subject to Section 4(a), this Agreement shall commence on its stated Effective Date and shall continue in force, unless terminated earlier in accordance with this Agreement’s terms, for the Initial Term (as defined in the Master Services Agreement) and thereafter will renew automatically for successive one (1) year periods (each a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party gives the other Party no fewer than thirty (30) calendar days’ prior written notice of the Party’s intent not to renew, or alternatively, if the Agreement is terminated under its terms and conditions.

4. Termination:
   1. Either Party may terminate this Agreement or any applicable Product T&C if the other Party (“Breaching Party”) fails to reasonably cure a material breach of any provision of this Agreement (including any relevant Product T&C) within thirty (30) calendar days upon receiving a written notice of such material breach from the other Party (“Non-breaching Party”). If such material breach or surrounding circumstances are such that the breach cannot be cured within thirty (30) calendar days, the cure period will be extended so long as the Breaching Party is making a good faith effort to cure such breach as soon as practicable and there is no perceived or potential ongoing harm to the Non-breaching Party.
   2. In addition to Enfusion’s rights under Section 4(a) above, in the event Client: (i) fails to pay any outstanding invoice within sixty (60) days of such invoice’s issue date; (ii) attempts to terminate early, in material breach of Section 3 of the General Terms and Conditions, an otherwise “locked-in” Agreement (i.e., whereby Client does not have a termination for convenience right and/or a specially enumerated termination right absent one listed in Section 4(a) of these General Terms and Conditions); (iii) materially violates Section 6 of these General Terms and Conditions; (iv) materially violates the Confidentiality terms set forth in Section 9 of these General Terms and Conditions; or, (v) becomes insolvent or files for bankruptcy, (voluntary or involuntary), Enfusion may suspend Client’s access, use, or receipt of the relevant Enfusion Products upon written notice to Client of such breach until such breach is cured.

5. License: Any license(s) granted by Enfusion to Client will be detailed in the relevant Product T&C attached to and made a part of this Agreement. Client expressly acknowledges and agrees that it shall access and use the Enfusion Products solely and exclusively for the purposes set out in, and in accordance with, this Agreement (including any relevant Product T&Cs), and that Client shall not permit the Enfusion Products to be used by any third-party (other than its Representatives) except as expressly permitted in this Agreement (including any relevant Product T&Cs).

6. Prohibited Use: Client agrees that Client or Client Representatives shall not unlawfully distribute, duplicate, transfer, sub-license, rent, lend, transmit, sell, re-circulate, display, repackage, assign, lease, resell, publish or otherwise make available all or any portion of the Enfusion Products, by whatever means, to any other person or entity (the “Prohibited Use”). For the avoidance of doubt, the Parties agree that Client’s Prohibited Use of the Enfusion Products shall be deemed a material breach of the Agreement, including, but not limited to, if Client looks to:
   1. Transmit to, or share user identification or password codes with any person other than the Representative to which the identification or password codes were assigned;
   2. Modify, translate, reverse engineer, disassemble, attempt to discover the source code of, or otherwise reduce Enfusion’s Intellectual Property or a part or component thereof, whether to human readable form or otherwise, or create derivative works based upon, or decompile any software, prototypes, or other tangible objects which contain Enfusion’s Intellectual Property or form any part of the Enfusion Products;
   3. Use any of the Enfusion Products for any illegal or unlawful purpose;
   4. Use any Enfusion Products in a manner which would create a functional substitute for the Enfusion Products;
   5. Remove, suppress, or modify in any way the proprietary markings, including any trademark or copyright notice, used in relation to any of the Enfusion Products or Enfusion’s Intellectual Property (including third-party proprietary markings);
   6. Violate any applicable local, state, national or international law, statute, ordinance, rule or regulation, including any of the foregoing relating to competition or antitrust matters;
   7. Infringe, violate, breach or otherwise contravene any rights of Enfusion, its Affiliates or any third-party (including any data providers), including any copyright, database right, trademark, patent, or any other proprietary or Intellectual Property right in connection with the Enfusion Products;
   8. Utilize any equipment, device, software, or other means designed to circumvent or remove any form or other protection used by Enfusion in connection with offering Enfusion Products; or,
   9. Use Enfusion Products to develop a product which is or may be competitive in the future with any Enfusion Products.

7. Proprietary Rights: The Parties agree that:

1. 1. Client owns and retains: (i) the Client Data; (ii) Client’s name, logo and other trademarks; and (iii) all Intellectual Property Rights in and to any of the foregoing.
   2. Enfusion owns and retains: (i) the Enfusion Products, and all improvements, enhancements or modifications made by any party (including, for the avoidance of doubt, any custom development and/or any suggestions or feedback with respect to the Enfusion Products); (ii) the Usage Data; (iii) any software, applications, inventions or other technology developed by Enfusion in connection with providing the Enfusion Products; (iv) Enfusion’s name, logo, and other trademarks; and (v) all Intellectual Property Rights in and to any of the foregoing.

8. Request for Information: Upon Enfusion’s advanced written request, Client shall provide Enfusion all requested information that is reasonably related to Enfusion verifying Client’s compliance with the terms of this Agreement.

9. Confidentiality:
   1. “Confidential Information” shall mean any information disclosed by or on behalf of one Party (“Disclosing Party”) to the other Party or its Representatives (“Receiving Party”) that is confidential or proprietary, whether or not marked as confidential; provided that if not marked or disclosed as confidential, a reasonable person in like circumstances would recognize the information as being confidential or proprietary in nature. Confidential Information may include information owned by the Parties, their Affiliates and respective clients, and information owned by third-parties, such as third-party cybersecurity information. Further, Confidential Information includes all information or materials derived from or based on Confidential Information and all complete or partial copies or reproductions (in all forms or medium) of Confidential Information. For the avoidance of doubt, Confidential Information shall include any information concerning (i) a Party’s or its Affiliates’ respective employees, businesses, trading activities, investors, clients, products, software, or services; and, (ii) the terms of this Agreement.
   2. Exclusions: A Party’s information shall not be considered Confidential Information to the extent it is: (i) is in the public domain at the time of disclosure, or thereafter becomes in the public domain, other than as a result of disclosure in violation of this Agreement; (ii) was in the possession of, or demonstrably known by, the Receiving Party prior to its receipt from the Disclosing Party without restriction on its use or disclosure; (iii) is hereafter furnished to the Receiving Party by a third-party as a matter of right and without a reasonably known restriction on disclosure; or, (iv) is independently developed by the Receiving Party without use of, or reference to, the Disclosing Party’s Confidential Information.

1. 3. Legal Requirement: If the Receiving Party is requested or required to disclose the Disclosing Party’s Confidential Information under a subpoena, court order, statute, law, rule, regulation, or other similar requirement, (“Legal Requirement”), the Receiving Party shall, to the extent legally permissible, provide prompt written notice of such Legal Requirement to the Disclosing Party, so the Disclosing Party may seek an appropriate protective order or other appropriate remedy or waive compliance with the relevant provisions of this Agreement. If the Disclosing Party is unable obtain a protective order or other appropriate remedy and the Receiving Party is, in the reasonable opinion of its legal counsel, legally compelled to disclose such Confidential Information, or if the Disclosing Party consents to the Receiving Party’s disclosure in writing, the Receiving Party may disclose, without liability hereunder, such Confidential Information in accordance with, but solely to the extent necessary to comply with, the Legal Requirement. Further, when legally permissible, the Receiving Party shall notify the Disclosing Party of what Confidential Information was disclosed under such Legal Requirement. For clarity, the Receiving Party may disclose the Disclosing Party’s Confidential Information in connection with a routine regulatory request or exam where the Disclosing Party is not the target of such request or exam.
   4. Protection of Confidential Information: The Receiving Party shall at all times implement and maintain commercially reasonable administrative, physical, and technical security controls, sufficient in nature and scope to protect the confidentiality, integrity, and availability of the Disclosing Party’s Confidential Information. The Receiving Party must hold the Disclosing Party’s Confidential Information as confidential and must safeguard such Confidential Information using the same standard of care the Receiving Party uses to protect its own Confidential Information of a similar nature, but never less than reasonable care. Subject to Section 9(c) of these General Terms and Conditions, the Receiving Party shall not, without prior written consent from the Disclosing Party, or as reasonably required in the performance of this Agreement or as directed by the Disclosing Party, disclose, allow a third-party to access, or use such Confidential Information. For the avoidance of doubt, the Receiving Party may disclose the Disclosing Party’s Confidential Information to the Receiving Party’s Representatives that have a need to know such Confidential Information, provided such Representatives are bound by confidentiality obligations at least as protective as those set forth in this Agreement, and it being understood that the Receiving Party shall be responsible for any breach of such obligations by its Representatives to the same extent as if the breach were committed by the Receiving Party. At a minimum, and in addition to other obligations imposed by this Agreement, Enfusion shall: (i) store Client Confidential Information, and related data on servers and networks that have firewalls consistent with Industry Standard; (ii) regularly update its Software with the latest patches and other Software releases consistent with Industry Standard; and (iii) maintain intrusion detection controls reasonably designed to detect unauthorized system access from both internal and external threats.
   5. Disposition of Confidential Information: As between the Parties, the Disclosing Party’s Confidential Information is and will, at all times, remain the property of the Disclosing Party. The Receiving Party will promptly, following written request from the Disclosing Party, but no later than thirty (30) calendar days following such request, destroy, permanently delete, or return all of the Disclosing Party’s Confidential Information held by or under the control of the Receiving Party; however, in the case of Client’s receipt of its data, Enfusion will first assist Client in removing its data from the Enfusion Products and if the circumstances such require, will then return Client’s data in accordance with this Section. Notwithstanding the foregoing or anything to the contrary in this Agreement, the Receiving Party may retain copies of such Confidential Information as required to be retained by law, rule or regulation, professional standards, or by competent judicial, governmental, supervisory or regulatory body, or in accordance with the Receiving Party’s electronic media backup practices. Further, if requested by the Disclosing Party in writing, the Receiving Party shall certify in writing that it has destroyed or permanently deleted Confidential Information in accordance with this Section. Each Party’s confidentiality obligations shall survive the termination or expiration of this Agreement for so long as such information remains Confidential Information. For clarity, certain Product T&Cs may contain different dispositions of Confidential Information requirements.

10. Information Security: Enfusion has and will maintain an Industry Standard Risk Management Program, including the following:
    1. Enfusion shall have an information security policy that describes the security and privacy controls Enfusion implements in its operations (“Information Security Policy”). Enfusion has and will maintain a Risk Management Program to implement its Information Security Policy, which shall include the following:
       1. a Risk Assessment Process reasonably designed to ensure Enfusion’s operating environment, development environment, systems, applications, networks, and procedures are, at a minimum, evaluated annually and upon incident, to identify and remediate Vulnerabilities;
       2. a Program for intrusion and security breach detection, prevention, and incident response;
       3. a Program for configuration management of systems, network, and applications;
       4. a Program for the implementation and administration of logical access controls to data, systems, and network; and,
       5. a Program for the implementation and administration of physical access controls to facilities.
       6. Enfusion shall, at a minimum, review its Risk Management Program annually.
    2. Security Breaches. Enfusion has and will maintain documented escalation processes for security breaches and incident responses, including procedures for notifying Client without undue delay and where feasible within seventy-two (72) hours after a security breach is discovered where such breach may negatively affect Client’s systems, network, services, data, assets, or customers. Client understands and acknowledges that during continuing investigations, at the recommendation of law enforcement or third-party experts, or under exceptional circumstances, Enfusion may be unable to notify Client of a security breach within seventy-two (72) hours, but in such event, Enfusion shall notify Client of such breach as soon as practicable and without undue delay.

1. 1. 1. Except for law enforcement or third-party experts retained by Enfusion to assist in the breach response, or third-parties servicing Client that are relevant to the breach, Enfusion shall not disclose to other parties that an actual or suspected security breach specifically affects Client without prior written consent of Client.
      2. Enfusion shall provide to Client reasonably requested information relevant to Client, as required by Client (and certified third-parties hired by Client) to investigate a security breach of Client’s operating environment. For the avoidance of doubt, in no event will Enfusion be required to provide information that, in the reasonable opinion of Enfusion’s legal counsel, would cause Enfusion to breach an obligation of confidentiality or disclose Enfusion’s trade secrets.
      3. Client recognizes that all information may not be known or available to Enfusion within the aforementioned seventy-two (72) hour timeframe; however, to the extent Enfusion has such information, Enfusion shall, in the event of a security breach affecting Client, issue a report to Client without undue delay that includes: (1) the high level identification of  Client information, including, but not limited to, Confidential Information, systems, network, services, data, assets, or customers, known to be compromised by such breach; (2) the actions taken by Enfusion to mitigate damage caused by the breach; and, (3) the safeguards implemented by Enfusion to prevent a recurrence of such breach.

1. 3. Business Continuity and Disaster Recovery: Enfusion shall maintain an Industry Standard business continuity and disaster recovery plan (“BCP”), reasonably designed to mitigate the effects of any business disruption so that Enfusion remains able to conduct its business, or resume its business as soon as reasonably practicable, with integrity and competence in the event of a service disruption or failure, or unexpected termination or liquidation of any outsourcing arrangement of Enfusion.  Such BCP shall include objectives reasonably designed to: (i) ensure reasonable recovery times, (ii) ensure reasonable recovery point objectives, (iii) ensure reasonable resumption of operating capacities, and (iv) effectuate such other matters as may be reasonably required in relation to the provision of the Enfusion Products. Enfusion agrees to provide Client with a copy of its client-facing BCP, upon written request by Client. Further, Enfusion confirms the BCP is subject to periodic testing.

11. No Advice: CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT NEITHER ENFUSION NOR ANY ENFUSION AFFILIATE IS A BROKER-DEALER, INVESTMENT ADVISOR, OR HOLDER OF ANY OTHER SIMILARLY REGULATED REGISTERED DESIGNATION IN THE UNITED STATES OR ELSEWHERE AND NOTHING UNDER THIS AGREEMENT IS INTENDED TO REQUIRE OR REQUIRES ENFUSION OR ANY ENFUSION AFFILIATE TO ACT IN A WAY THAT WOULD REQUIRE SUCH REGISTRATION. FURTHER, CLIENT ACKNOWLEDGES AND AGREES THAT NEITHER ENFUSION NOR ITS SOFTWARE, SERVICES, DOCUMENTATION, OR MATERIALS PROVIDED BY ENFUSION WILL BE CONSTRUED AS PROVIDING ACCOUNTING, TAXATION, FINANCIAL, INVESTMENT, LEGAL OR OTHER ADVICE TO CLIENT, ITS REPRESENTATIVES, OR ANY THIRD-PARTY.

12. Updates and Upgrades: Enfusion, at its sole discretion, may from time-to-time make updates to, revisions to, and new versions or releases of, or modules for, the relevant Enfusion Product available to Client, at no additional cost. Nothing in these General Terms and Conditions or any Product’s T&Cs or the Agreement requires Enfusion to develop or provide such updates to, revisions to, or new versions or releases of, or modules for, the relevant Enfusion Product except as necessary to comply with the relevant Product’s T&Cs’ error correction obligations.

13. Malicious Software: To the extent within its control, each Party agrees to use commercially reasonable efforts to prevent Enfusion Products from being infected or harmed by any viruses, worms, trojan horses, time bombs, or other malicious software or disabling devices.

14. Representations and Warranties:
    1. Mutual Representations and Warranties: Each Party represents and warrants to the other Party:
       1. it has the full right, power, and authority to execute, deliver and perform this Agreement in accordance with its terms;
       2. this Agreement has been duly executed and delivered by or on behalf of such Party and constitutes a legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms;
       3. it is and will continue to be in compliance, in all material respects, with all laws, rules, and regulations applicable to it in connection with this Agreement; and,
       4. each Party agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users or trading in securities of prohibited securities under such regulations and prohibition. Each Party represents and warrants that neither it nor any Affiliate is a Prohibited Person nor is owned or controlled by a Prohibited Person. “Prohibited Person” shall mean a person or entity appearing on the lists published by the U.S. Department of Commerce, the U.S. Department of State, the U.S. Department of Treasury or any other list that may be published by the U.S. Government, as amended from time to time, that is prohibited from acquiring ownership or control of items under this Agreement, or with which Enfusion is prohibited from doing business.

1. 2. Enfusion Representations and Warranties: Enfusion represents and warrants that the Enfusion Products have been developed, will be provided, and will perform in a professional and workmanlike manner at a level of quality not less than the prevailing Industry Standard. CLIENT’S SOLE AND EXCLUSIVE REMEDY IF ENFUSION BREACHES THE FOREGOING REPRESENTATION AND WARRANTY SHALL BE ACCESS TO REPERFORMANCE OF SERVICES OR REPLACEMENT SOFTWARE DEVELOPED BY ENFUSION IN A COMMERCIALLY REASONABLE TIME.
   3. THESE WARRANTIES ARE EXCLUSIVE AND, TO THE FURTHEST EXTENT OF THE LAW, ARE IN LIEU OF ALL OTHER WARRANTIES IN THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND ALL ORAL OR WRITTEN REPRESENTATIONS, PROPOSALS, OR STATEMENTS MADE ON OR PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. ENFUSION EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES.

15. Indemnification:
    1. Indemnification by Enfusion. Enfusion will defend Client, its officers, directors and employees, from and against any suit or action brought by a third-party against Client:
       1. Alleging that the Enfusion Products, as provided by Enfusion and when used by Client pursuant to this Agreement, infringes any Intellectual Property Right of a third party (the “IP Indemnity”); or
       2. Resulting from unauthorized disclosure and misuse of Client Data directly resulting from Enfusion’s breach of its obligations under Section 9 (Confidentiality) or Section 10 (Information Security) (the “Data Indemnity”).
       3. As applicable, with respect to 15(a)(i) or 15(a)(ii), Enfusion shall indemnify and hold harmless Client from and against any damages and costs awarded against Client or agreed in settlement by Enfusion (including reasonable attorneys’ fees) resulting from such claim, provided that: (a) Client provides Enfusion with prompt written notice of such claim; (b) Client provides reasonable cooperation to Enfusion, at Enfusion’s expense, in the defense and settlement of such claim; and (c) Enfusion has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Client or requires Client to admit wrongdoing.
    2. Injunctions. If Client’s use of the Enfusion Products is, or in Enfusion’s opinion is likely to be, enjoined due to the type of claim specified in Section 15(a)(i), then Enfusion may at its sole option and expense: (i) replace or modify the Enfusion Products to make them non-infringing and of equivalent functionality; (ii) procure for Client the right to continue using the Enfusion Products under the terms of this Agreement; or (iii) if Enfusion is unable to accomplish either (i) or (ii) despite using its commercially reasonable efforts, terminate Client’s rights and Enfusion’s obligation under this Agreement with respect to such Enfusion Products and refund to Client a pro-rata portion of the Fees paid for the remaining portion of the Term during which Client would have had access to the Enfusion Products.

1. 3. Exclusions. Notwithstanding the terms of Section 15(a), Enfusion will have no liability for any claim of any kind to the extent that it results from: (i) the combination, operation or use of the Enfusion Products with equipment, devices, or software not supplied by Enfusion, if a claim would not have occurred but for such combination, operation or use; or (ii) Client’s or Client’s authorized Representative’s use of the Enfusion Products other than in accordance with this Agreement, including Client (or Client Representative)’s improper or unauthorized third-party data use.
   4. Sole Remedy. THE FOREGOING STATES ENFUSION’S AND ITS LICENSORS’ SOLE LIABILITY AND CLIENT’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE ENFUSION PRODUCTS.
   5. Indemnification by Client. Client will defend Enfusion, its officers, directors and employees, from and against any action or suit brought against Enfusion by a third party based on a claim that the Client Data infringes or violates the rights of a third party. Client will indemnify and hold harmless Enfusion from and against any damages and costs awarded against Enfusion or agreed in settlement by Client (including reasonable attorneys’ fees) resulting from such claim, provided that (i) Enfusion provides Client with timely written notice of such claim; (ii) Enfusion provides reasonable cooperation to Client, at Client’s expense, in the defense and settlement of such claim; and (iii) Client has sole authority to defend or settle such claim, provided that it may not settle any claim in a manner that imposes any material liability upon Enfusion or requires Enfusion to admit wrongdoing.

16. Limitation of Liability:
    1. Exclusion of Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW IN SECTION 16(c) AND FOR WHICH THERE WILL BE NO CAP ON LIABILITY), NEITHER CLIENT NOR ENFUSION, AND ITS AFFILIATES AND SUPPLIERS, WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES; OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES, OR PROFITS, INCLUDING, FOR THE AVOIDANCE OF DOUBT, TRADING, INVESTMENT, OR MARKET LOSSES (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE, EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE, AND REGARDLESS OF THE TYPE OF ACTION OR THEORY OF LIABILITY.
    2. Total Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR EXCLUDED CLAIMS (FOR WHICH THERE SHALL BE NO CAP ON LIABILITY) OR SPECIAL CLAIMS (WHICH ARE SUBJECT TO THE ENHANCED LIABILITY CAP SET FORTH IN SECTION 16(d)), NEITHER PARTY’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL EXCEED THE GREATER OF $100,000 OR THE AMOUNT PAID BY CLIENT TO ENFUSION DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
    3. Excluded Claims. “Excluded Claims” means: (i) any intentional misconduct or gross negligence by either Party; (ii) any amounts payable to third parties pursuant to Enfusion’s IP Indemnity obligations under Section 15(a)(i); or (iii) any amounts payable to third parties pursuant to Client’s indemnification obligations under Section 15(e) (Indemnification by Client).
    4. Special Claims. “Special Claims” means (i) any material breach by Enfusion of Section 9 (Confidentiality) or Section 10 (Information Security) resulting in unauthorized disclosure and misuse of Client Data; or (ii) any amounts payable to third parties pursuant to Enfusion’s Data Indemnity obligations under Section 15(a)(ii). For any and all Special Claims, Enfusion’s aggregate liability shall be subject to an enhanced liability cap not to exceed three times (3x) the amount paid by Client to Enfusion during the twelve (12) months prior to the event giving rise to liability (the “Enhanced Liability Cap”).

17. Remedies and Negotiation:
    1. Remedies. The Parties acknowledge and agree, due to the unique nature of the obligations under this Agreement, a material breach of this Agreement (including any relevant Product T&Cs) may result in irreparable and continuing harm to the other Party, for which monetary damages may be inadequate to compensate or make the injured Party whole. Therefore, except where sole remedies for particular breaches are explicitly stated in a Product T&C, each Party agrees the other Party is entitled to seek, in addition to other remedies available at law, in equity, or otherwise; temporary and permanent injunctive relief or specific performance from a court of competent jurisdiction and without the posting of a bond or security, to enforce the terms of this Agreement or restrain a breach or threatened breach thereof.
    2. Negotiation. Except as otherwise set forth in these General Terms and Conditions, or as expressly set forth in a Product T&C, in the event of a dispute, claim, question, or disagreement between the Parties (including their Affiliates) arising from, or relating to, this Agreement, or breach of either, the Parties must use commercially reasonable efforts to settle the dispute, claim, question, or disagreement. To this effect, the Parties will consult and negotiate with each other in good faith to reach a solution satisfactory to the Parties. If the Parties are unable reach a solution within ninety (90) calendar days from the date one Party first provides notice to the other of the dispute, claim, question, or disagreement, then, upon notice by either Party to the other, all disputes, claims, questions, disagreements, or differences will be finally settled by arbitration administered by the American Arbitration Association (“AAA”), in accordance with its  relevant industry rules, and any international rules, if applicable.

18. Arbitration and Governing Law:
    1. Arbitration. All disputes arising between the Parties (including their respective Affiliates) under the Agreement, including the validity of this provision, will be subject to binding arbitration with the AAA, in accordance with its international rules, if relevant. Except as expressly provided in a relevant Product T&C, the arbitration will be conducted in English by a tribunal of three (3) arbitrators with applicable industry expertise. Either Party may initiate the process by serving a demand for arbitration on the other after fulfilling its negotiation obligations in accordance with Section 17(b) of these General Terms and Conditions. Each Party will select one (1) person to act as a designated arbitrator and the two (2) so-selected will select a third arbitrator to complete the arbitration tribunal. The arbitrators will have no authority to award punitive or other damages not permitted by this Agreement, and claims seeking such damages are hereby waived.
    2. Governing Law. The Parties agree that this Agreement will be governed by, and construed and interpreted in accordance with, the laws of the State of New York, regardless of the laws that might otherwise govern under applicable choice-of-law principles. All arbitrations will be held in New York County, New York, New York, regardless of the laws that might otherwise govern under applicable forum non-conveniens principles. Claims brought in other jurisdictions or forums are precluded. The arbitrators will have the authority to grant injunctive relief and specific performance in accordance with these General Terms and Conditions. Judgment on awards rendered by the arbitrators may be entered in any court of competent jurisdiction. Notwithstanding anything to the contrary in this Agreement, with respect to a material breach by either Party described in Section 17(a) of these General Terms and Conditions, the other Party is not required to submit such dispute to arbitration, but instead, may immediately seek injunctive or other relief without violation of this Section 18. Such a remedy will be in addition to, and not in limitation of, other remedies to which each Party may be entitled under this Agreement or otherwise at law or in equity. Further, if Client fails to make a required fee payment under this Agreement, or as mutually agreed upon in writing by the Parties within the cure period laid out in this Agreement, such claim will be heard by one (1) arbitrator rather than by  three (3) arbitrators as required for other claims. Notwithstanding anything in this Section 18 to the contrary, arbitrations and court proceedings may be conducted virtually.
    3. Attorney’s Fees. Further, and for the avoidance of doubt, in the event Enfusion initiates an action under this Section 18 of the General Terms and Conditions due to Client’s gross negligence, willful misconduct, fraud, or material breach of this Agreement, Enfusion shall be entitled to recover from Client, all fees, costs, and expenses of successfully enforcing any such right(s) under the Agreement, including, without limitation, reasonable fees and expenses of attorneys and accountants, inclusive of all fees, costs, and expenses of appeals.

19. Jury Waiver: THE PARTIES UNCONDITIONALLY WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL FOR CLAIMS OR CAUSES OF ACTION ARISING OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, RELATED DOCUMENTS, OR DEALINGS BETWEEN THEM ARISING OUT OF OR RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT OR TRANSACTIONS RELATED TO EITHER.

20. Technical Support: Technical support shall be provided as described on the relevant Product T&Cs.

21. Catastrophic Events: Neither Party will be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control including any of the following: act of God; governmental act; war; fire; flood; epidemic; pandemic; civil disorders; failure of a utility service outside Enfusion’s reasonable control; shortage of parts or raw materials; failure of a transport network; accident, strikes, lock-outs or other industrial action; explosion; or civil commotion.

22. No Promotion: Neither Party may, without the prior written consent of the other Party in every instance (unless agreed otherwise), discuss the terms of this Agreement or use such terms in external documents.

23. Payment:
    1. Fees: Client will pay Enfusion fees for the applicable Enfusion Products (the “Fees”) in accordance with the Agreement’s Products and Pricing (Section 3 of the MSA).
    2. Invoices; Payment: Fees, which are described in Section 3 of the Agreement, will be invoiced monthly in arrears. Payment is due thirty (30) calendar days after Client’s receipt of such invoice. All payment obligations are non-cancellable, and other than as provided in the Agreement, all amounts paid are non-refundable. In accordance with Section 4(b) of these General T&Cs, Enfusion will be entitled, in its sole discretion, to withhold performance and discontinue Client’s access to the Enfusion Products until all undisputed amounts past due are paid in full.
    3. Invoice Disputes. For the avoidance of doubt, should Client dispute any amount due pursuant to an invoice rendered by Enfusion, Client shall notify Enfusion in writing of the specific basis for the dispute and, if the invoice shows an amount due, shall pay that portion of the invoice statement that is not disputed, on or before the due date. Any such notice of invoice dispute shall be provided in writing within five (5) calendar days of Client’s receipt of the applicable invoice (the “Invoice Dispute Notice Period”). If Client does not raise any invoice dispute before the conclusion of the Invoice Dispute Notice Period, then such applicable invoice(s) will be deemed not in dispute by the Parties. For any disputed invoice(s) raised by Client during the Invoice Dispute Notice Period that is resolved by the Parties, Client shall owe such agreed upon amount(s) within five (5) calendar days of the resolution of such disputed amount(s). Further, any late payments will be subject to reasonable cost of collection (including reasonable legal fees), and will bear interest at a rate of two (2) percent of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, until paid in full.
    4. Taxes: All Fees and other amounts stated or referred to in this Agreement are exclusive of all taxes, duties, levies, tariffs, and other governmental charges (collectively, “Taxes”). Client will be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Enfusion’s net income. If Enfusion has the legal obligation to pay or collect Taxes for which Client is responsible, the appropriate amount shall be invoiced to and paid by Client unless Client provides Enfusion with a valid tax exemption certificate authorized by the appropriate taxing authority.

24. Non-Exclusivity and Related Activities: This Agreement is non-exclusive. The Parties understand and acknowledge neither Party is precluded or restricted from providing or receiving any services, whether similar in nature or not, to or from any other entity or business. Furthermore, unless explicitly stated otherwise, nothing contained herein shall prevent either Party from contracting or entering into any custodial, financial, banking, technological, or brokerage or other arrangement or transaction with either Party’s competitors, Representatives, or any shareholder or beneficiary thereof or any company or entity, any of whose securities are held by or for the account of any of the foregoing or from having interest in any such transactions. CLIENT UNDERSTANDS AND ACKNOWLEDGES THAT ENFUSION MAY HAVE RELATIONSHIPS WITH THIRD-PARTIES THAT PROVIDE TECHNOLOGY, DATA, OR OTHER SERVICES TO CLIENT AND THAT ENFUSION MAY RECEIVE ECONOMIC OR OTHER BENEFITS FROM SUCH THIRD-PARTIES.

25. Miscellaneous:
    1. Entire Agreement: The Agreement, these General Terms and Conditions, and each Product T&C hereto constitute the entire agreement between the Parties with respect to its subject matter and (to the extent permissible by law) supersedes all prior representations, writings, negotiations, or understandings with respect to that subject matter. All terms, conditions and warranties not stated expressly in this Agreement, these General Terms and Conditions, and each Product T&C, and which would in the absence of this provision be implied into this Agreement (and/or these General Terms and Conditions and/or any Product T&C) by statute, common law, equity, trade, custom or usage or otherwise, are excluded to the maximum extent permitted by law. Notwithstanding anything to the contrary in this Agreement, these General Terms and Conditions and each Product T&C, subsequent to the execution of this Agreement, Client may request additional Enfusion Products provided under any Product T&C. In such instance(s) Client’s authorized Representatives (authorize Representative form to be provided to Client) will e-mail an Enfusion Representative requesting such changes with particularity. Unless the Parties execute a separate agreement, change order, or amendment to the Agreement or relevant Product T&C, an Enfusion Representative will provide Client’s authorized Representative with the expected additional monthly or one-time fees (including, but not limited to, any potential development fee). Client’s authorized Representative will then approve or deny the additional fee(s) via e-mail or, as applicable, through execution of a written change order (or equivalent) between the Parties. Once Client’s consent is provided or the applicable change order (or equivalent) is executed between the Parties, the additional fee(s) will become binding upon Client and treated as of this Agreement and the relevant Product T&Cs.
    2. Waiver and Modification: No waiver of a term of this Agreement will be valid unless in writing and signed by the Party waiving its rights. A forbearance or delay by either Party to enforce its rights under this Agreement will not be construed as a waiver to enforce such rights pertaining to the occurrence in question or all other occurrences. The waiver, by a Party, of a breach of covenant will not be construed as a waiver of a succeeding breach of another covenant. Only a written instrument, executed by authorized Representatives of the Parties hereto, may modify this Agreement. Neither Party nor their Representatives have authority to make verbal or oral modifications or waivers to this Agreement.
    3. Counterparts: This Agreement and every amendment or change order thereto may be executed in counterparts and will not be effective or enforceable until the Agreement, amendment, or change order is signed by an authorized Representative of each relevant entity and in accordance with the Agreement’s, amendment’s, or change order’s stated effective date. Digital and electronic signatures shall have the same effect and force as a “wet signature.”

1. 4. Severability: If a provision of this Agreement is found to be unenforceable or contrary to law, the provision will be reformed to the minimum extent necessary to correct such invalidity while preserving, to the maximum extent, the rights and commercial expectations of the Parties. The remaining portions of this Agreement will remain in full force and effect.
   5. Relation of the Parties: Enfusion shall perform all services hereunder as an independent contractor and not as an employee or agent of Client. Nothing in this Agreement shall be construed to create or imply an agency relationship, joint venture, co-ownership, or partnership between the Parties, (including between either Party and the other Party’s Representatives), or otherwise be construed as the Parties participating in a joint or common undertaking or further, to allow either Party to create or assume an obligation on behalf of the other Party.
   6. Assignment: Neither Party may assign its rights or obligations under this Agreement without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights and obligations under this Agreement to an Affiliate as part of a reorganization, or to a purchaser of its business entity or substantially all of its assets or business to which rights and obligations pertain without the other Party’s consent, provided that: (a) the purchaser is not insolvent or otherwise unable to pay its debts as they become due; (b) the purchaser is not a competitor of the other Party; and (c) any assignee is bound hereby. Other than the foregoing, any attempt by either Party to transfer its rights or obligations under this Agreement will be void. For the avoidance of doubt, this Agreement shall be binding upon the Parties and their respective legal successors and permitted assigns.
   7. No Solicitation: Enfusion, through its employees or its Affiliates’ employees, is to perform services for Client that require significant skill and training. Enfusion has invested a significant amount of time and resources in qualifying, training, and maintaining its employees and its Affiliates’ employees and therefore has a legitimate interest in preserving its and its Affiliates’ employee base; whereas Client has a significant interest in recruiting away Enfusion’s and its Affiliates’ employees that Client interacts with in connection with this Agreement. Therefore, throughout the Term and for a period of six (6) months to commence on the termination of this Agreement, Client must not; directly or indirectly, through any person or entity, or as an agent for any person or entity, or authorize, encourage, suggest, or knowingly approve any person or entity to; employ or cause to be employed, entice, induce, or solicit employment or engagement, in any capacity, any person, Client had contact with during, and who was employed by Enfusion or any of its Affiliates at any time during, the Term. Although there is no geographic restraint, Client understands and acknowledges this non-solicitation provision, in light of the global nature of Enfusion’s business and the Enfusion Products, is narrowly tailored to protect Enfusion’s legitimate interest in maintaining its and its Affiliates’ employee base and the substantial investment it has made in its and its Affiliates’ employees. Nothing in this provision prevents Client or its Representatives from hiring an employee of Enfusion or its Affiliates that applies for employment through a bona fide job advertisement of general circulation.
      1. If Client breaches this Section 25(g), Client shall pay Enfusion an amount equal to the last twelve (12) months’ salary of the applicable individual in recognition of the value of the individual to Enfusion and cost of recruiting and training a replacement. Client agrees that this sum is a genuine pre-estimate of the loss likely to be suffered by Enfusion in these circumstances and is not a penalty.
      2. Enfusion shall be entitled to terminate this Agreement immediately upon notice to Client if Client breaches this Section 25(g).

26. Notice: All notices given under the Agreement shall be in writing and sent to the person and address designated in the Agreement, subject to change by written notice from the changing Party to the other. Notice will be deemed to have been given: (i) upon confirmation when left at the address designated in the Agreement, if delivered personally; (ii) when sent to the recipient by e-mail during the recipient’s normal business hours, and one (1) business day after the date when sent to recipient by e-mail if sent during the recipient’s non-business hours; and (iii) in accordance with tracking and confirmation when sent by certified mail. Notice must be delivered to Enfusion at the following address in addition to the address listed on the Agreement:

    Notice to Enfusion Legal:

    Enfusion Ltd. LLC 125 S. Clark Street, Suite 750 Chicago, IL 60603 Attn: General Counsel Phone: 312.253.9800 E-mail: Legal@enfusion.com

27. Products:  The following are references to certain product-specific terms and conditions applicable to specific Enfusion Products (collectively, the “Product T&Cs” and each individually, a “Product T&C”). Client acknowledges and agrees that the Product T&Cs applicable to Enfusion Products purchased or licensed by Client are intended to be attached to, made a part of and are incorporated by reference into this Agreement. Any conflict between the terms and conditions set forth in any applicable Product T&C and these General Terms and Conditions will be governed by such applicable Product T&C.
    1. Enfusion Analytics. Enfusion Analytics Terms and Conditions https://www.enfusion.com/contracts/enfusion-analytics-terms-and-conditions/
    2. Enfusion Managed Services. Enfusion Managed Services Terms and Conditions https://www.enfusion.com/contracts/managed-services-terms-and-conditions/ 
    3. Enfusion Software. Enfusion Software Terms and Conditions https://www.enfusion.com/contracts/software-terms-and-conditions/
    4. Enfusion Real-time Data. Real-time Data Terms and Conditions https://www.enfusion.com/contracts/real-time-data-terms-and-conditions/
    5. Enfusion Elements Risk - Powered by Axioma. Axioma Terms and Conditions https://www.enfusion.com/contracts/axioma-terms-and-conditions/
    6. Third-Party Terms and Conditions. Third-Party Terms and Conditions https://www.enfusion.com/contracts/third-party-terms-and-conditions/
28. Client Access: Client shall be solely responsible, at its own cost, to provide and maintain (a) all hardware and software necessary to access the Enfusion Products, (b) access to the internet with sufficient quality and bandwidth for use of the Enfusion Products, and (c) all other related equipment and services necessary to access and use the Enfusion Products.