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1. LICENSE
(a) Subject to the terms of this Agreement, Company grants to Client a non-exclusive, non-transferable, non-sublicensable, limited license to permit Client and its employees, general partners and subsidiary funds who have been specifically authorized by Client in writing (“Authorized Users”) to access and use the information products, services and software (referred to individually as a “Service” and collectively as the “Services”) identified in the applicable Attachment(s) attached or connected hereto, solely for Client’s internal business purposes provided however that where Client uses Company’s Services as described above, then Client will in each instance set forth Company’s attribution and/or branding in a visible and close proximity to where such Services are utilized.
(b) All access to and use of the Services subscribed to hereunder shall be subject to any restrictions stated in each applicable Attachment(s), in addition to the restrictions stated in this Agreement.
(c) Client shall not, and shall ensure that Authorized Users do not, and do not attempt to, (i) publish, reproduce, redistribute, lease, (sub)license, sell or otherwise commercially exploit the Services or any components thereof in any manner (including, but not limited to, via or as part of any Internet site); (ii) provide access to the Services or any portion thereof to any person, firm or entity other than an Authorized User; (iii) use services to upload or host any materials that are libelous, obscene or violate any laws or existing agreements; (iv) modify, reverse-engineer, disassemble or decompile the Services or any portion thereof; or (v) except as may be specifically provided for in an Attachment, create archival or derivative works based on the Services or any portion thereof. Client shall not alter or remove any copyright or other proprietary notices contained in the Services. Client shall at all times remain liable for any and all violations of this Agreement by Authorized Users.
(d) As between Client and Company, the Services, together with all intellectual property rights embodied therein (including, but not limited to, all patent rights, inventions (whether patentable or not), concepts, ideas, algorithms, formulae, processes, methods, techniques, copyrights, copyrightable works, trade secrets, know-how, and trademarks), and any derivatives thereof (collectively, the “Company IP”), are and shall remain the sole and exclusive property of Company. Company retains all right, title and interest in and to the Company IP. Client shall have no rights with respect to the Company IP other than those expressly granted under this Agreement. All rights to the Company IP, including, without limitation, the Services, are reserved by Company. To the extent that any Company IP may be deemed Client’s property due for any other reason, then Client will promptly execute and deliver to Company such assignments and other documents as the Company may reasonably require to transfer to the Company all rights (including with regard to any registrations or applications) involved.
(e) Additional Services may be added to this Agreement in the future if Company and Client execute additional Attachments identifying the same. When executed by duly authorized representatives of Client and Company, each Attachment shall be governed by and made a part of this Agreement. In the event of any conflict between the terms of the Agreement and the terms of any Attachment, the terms of the Attachment shall prevail with respect to such conflicting terms.
(f) Client shall comply with the data vendor terms set forth in Appendix 1 and any data vendor terms of use, notices and disclaimers displayed in or on any delivery files, as well as the terms outlined in the “data providers” link set forth on the Company’s platform. In the event of a conflict between the terms set forth in Appendix 1 or the data providers link on the platform, and any other terms in this Agreement, the terms set forth in Appendix 1 or the data providers link shall control. Company may from time to time provide Client services and products from external third party sources that provide Special Third Party Services (as defined below).
(g) Company reserves the right to either provide the Services itself or to engage others, including, without limitation, its affiliates, to provide all or a portion of the Services.
2. TERM AND TERMINATION
(a) This Agreement shall begin on Effective Date and shall continue in effect thereafter for as long as any Attachment entered into pursuant to this Agreement remains in effect. The term of each Attachment shall commence on the commencement date stated therein and shall continue for the period(s) specified therein (each, an “Attachment Term”). Thereafter, each Attachment Term shall automatically renew for consecutive one (1) year terms unless either party provides the other party with written notice of its intention to not renew the Attachment Term at least sixty (60) days prior to the expiration of the then current Attachment Term. In the event of termination of a Service included on an Attachment, then the fees stated in the applicable Attachment for the non-terminated Services shall be adjusted by Company in accordance with its then-applicable rates.
(b) Either Party may terminate this Agreement by written notice to the other Party if: (i) such other Party dissolves, discontinues or terminates its business operations to which this Agreement pertains; (ii) any bankruptcy, reorganization, insolvency, dissolution or similar proceeding is instituted by or against such other Party and such proceedings are not terminated within sixty (60) days; or (iii) such other Party makes any assignment for the benefit of creditors.
(c) In the event of a material breach of any term or provision by either Party of this Agreement, the other Party may terminate this Agreement by giving thirty (30) days’ prior written notice thereof to the breaching Party, provided, however, that such termination shall not take effect if the breaching Party cures or corrects the breach within such thirty (30) day notice period.
(d) Upon any termination or expiration of this Agreement or any Attachment Term: (i) the license(s) granted to Client under the applicable Attachment(s) shall immediately cease, and (ii) Client immediately shall remove all Company IP and Confidential Information from its computers, shall destroy any and all copies of the Company IP and Confidential Information that are in its possession or control, and shall provide Company upon request with written certification of such removal and destruction. The following sections shall survive the expiration or earlier termination of this Agreement: Sections 1(d), 3, 4 (with respect to the warranty disclaimers only), 5, 6, 7, 8 and this Section 2(d).
3. FEES AND INVOICES.
(a) As consideration for the Services granted by Company under this Agreement, Client shall pay all fees and charges stated in the applicable Attachment(s), in US Dollars, plus all applicable taxes, which include but are not limited to value-added, sales, use and other similar taxes, within thirty (30) days after the date of Company’s invoice.
(b) All fees and charges stated in the applicable Attachment(s) are exclusive of any taxes imposed in the U.S. or any state, city, county, or locality located therein, and the Client is liable for and responsible for paying all such applicable taxes to the applicable tax authority or Company, as required by the relevant law.
(c) All fees and additional charges stated in the applicable Attachment(s) shall automatically increase by ten percent (10%) on an annual basis exclusive of any applicable taxes.
(d) Balances open beyond forty-five (45) days shall be subject to 1.5% interest finance charge per month (18% per year) (or the highest amount permissible under law, if less). Client shall reimburse Company for all costs of collection, including reasonable attorney’s fees and court costs, incurred by Company in connection with seeking payment of delinquent or unpaid amounts.
(e) All payments made by or on account of any obligation of the Client under this Agreement shall be made without deduction or withholding of any taxes, except as required by law. If any applicable law requires the deduction or withholding of any tax from any payment made by or on account of any obligation of the Client under this Agreement, then the payer shall be entitled to make such deduction or withholding and shall timely pay the full amount deducted or withheld to the relevant governmental authority in accordance with applicable law, and the sum payable shall be increased as necessary so that after such deduction or withholding has been made, the recipient receives an amount equal to the sum it would have received had no such deduction or withholding been made.
(f) Value-added tax. This Section 3(f) only applies where Client maintains contact or is otherwise deemed located in a country that requires or applies a Value-Added Tax (“VAT”) in respect of the Services.
4. WARRANTIES.
(a) Each Party warrants and represents that it has the requisite corporate power and authority and the right to enter into this Agreement and each Attachment, and, in the case of Company, to provide the Services. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION 4, THERE ARE NO OTHER WARRANTIES BY THE COMPANY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR TITLE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ERROR-FREE, OR WILL FUNCTION WITHOUT INTERRUPTION OR THAT ALL DEFECTS WILL BE CORRECTED.
(b) Client represents and warrants that Client has the rights to provide the data, information and other content provided by or on behalf of Client or its customers to Company pursuant to the Agreement (“Client Supplied Data”) and to direct and authorize Company to use and disclose Client Supplied Data as contemplated in the Agreement. Client hereby consents to Company’s hosting and processing of Client Supplied Data and other related information, including at locations of Company and its third party infrastructure and cloud providers. Client will be solely responsible for the accuracy, completeness, and timeliness of Client Supplied Data. Company shall be entitled to rely on all data and information supplied by or on behalf of Client and will have no liability for any loss or damage incurred to the extent arising out of Client Supplied Data that is not timely, current, complete or accurate. Client represents and warrants to Company that Client has the full legal right for Client, Company, Company affiliates and agents to use and disclose the Client Supplied Data as contemplated by the Agreement, including the hosting and processing of Client Supplied Data and other related information at locations of Company and its third party infrastructure and cloud providers. Client hereby grants to Company a limited, non-exclusive license during the Agreement Term to store, copy, modify and use the Client Supplied Data solely for the purpose of, and only to the extent necessary for, performing the Services for the benefit of Client in accordance with the Agreement and as otherwise permitted under the Agreement. All Client Supplied Data and information shall be provided to Company in the format and medium required by the applicable Company system or identified or established during implementation by Company. Client shall timely update all data and information provided to Company by or on behalf of Client so that such data and information remains complete and accurate. Client shall provide Company with all data and information reasonably requested by Company and otherwise reasonably cooperate with Company in connection with the Services.
5. CONFIDENTIAL INFORMATION
(a) As used herein, “Confidential Information” shall mean information revealed by or through a Party (the “Disclosing Party”) to the other Party (the “Receiving Party”) that is (i) proprietary information, (ii) information marked or designated as confidential, (iii) information otherwise disclosed in a manner consistent with its confidential nature, (iv) information of one Party, whether or not in written form and whether or not designated as confidential, that is known or should reasonably be known by the other Party as being treated as confidential, or (v) information submitted by one Party to the second Party where the second Party knows or reasonably should know that the first Party is obligated to keep the information confidential. For the avoidance of doubt, the portfolio holdings information of Client and its subsidiary funds is Confidential Information of Client, and the Services and information generated thereby is Confidential Information of Company. The term “Confidential Information” does not include information which: (a) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party (or any person to whom the Receiving Party disclosed such information); (b) was lawfully known by the Receiving Party prior to its disclosure by the Disclosing Party without an obligation of confidentiality; (c) was independently developed by Receiving Party without use of the Disclosing Party’s Confidential Information; or (d) becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party, provided that such source is not bound by a confidentiality agreement, confidentiality obligation or fiduciary duty which prohibits disclosure and the Receiving Party has no reason to believe that such source may be restricted from making such disclosure. Notwithstanding the other provisions of this Agreement, Client acknowledges and agrees that Company may use, aggregate, compile into databases, and distribute Client’s Confidential Information in a manner that does not reveal the specific holdings or positions of a particular Client and does not identify Client for any purpose whatsoever, including, without limitation, for use in indexes, reports, predictive models, and benchmark/normative databases.
(b) At all times the Receiving Party shall protect and preserve the Confidential Information as confidential, using no less care than that with which it protects and preserves its own highly confidential and proprietary information (but in no event less than a reasonable degree of care), and shall not use the Confidential Information for any purpose other than necessary to carry out its obligations under this Agreement (the “Limited Purpose”). The Receiving Party shall not disclose, distribute or disseminate the Confidential Information to any third party without the prior written consent of the Disclosing Party; provided, however, Company may disclose Client’s Confidential Information to Company’s affiliates as necessary to provide the Services. Notwithstanding the foregoing, the Receiving Party may disclose the Confidential Information to its consultants and agents (“Representatives”) who strictly need to know such information for providing services in connection with this Agreement, so long as such Representatives (i) are informed by Receiving Party of the confidential nature of the Confidential Information, (ii) agree to keep the Confidential Information strictly confidential, and (iii) agree to be bound by the terms of this Section 5 to the same extent as if they were parties hereto or are bound to like obligations of confidentiality. Receiving Party shall be responsible for any breach or threatened breach of this Section 5 by any of its Representatives (it being understood that such responsibility shall be in addition to and not by way of limitation of any right or remedy Disclosing Party may have against the Representatives with respect to such breach) and Receiving Party agrees, at its sole expense, to take all necessary measures (including court proceedings) to restrain its Representatives from prohibited or unauthorized disclosure or use of the Confidential Information. In the event the Receiving Party becomes or may become legally compelled to disclose any Confidential Information (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand or other process or otherwise), to the extent not prohibited by law, the Receiving Party shall provide to the Disclosing Party prompt prior written notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate remedy and/or waive compliance with the terms of this Agreement. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use its best efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
(c) Promptly following the request of the Disclosing Party, the Receiving Party shall return to the Disclosing Party, or, at the Disclosing Party’s option, destroy all materials that are in written, electronic or other tangible form (including, without limitation, all written or printed documents, notes, memoranda, email, computer disks or tapes (whether machine or user readable), or computer memory, whether or not prepared by Receiving Party) that contain, summarize or abstract any portion of the Confidential Information, including, without limitation, all copies, extracts and derivations of such materials. Notwithstanding the foregoing, nothing requires the alteration, modification, deletion or destruction of backup tapes or other backup media made in the ordinary course of business; provided the Receiving Party continues to comply with the obligations contained in this Section 5 for so long as the Confidential Information of the Disclosing Party is retained.
(d) The Receiving Party acknowledges that in the event of a breach of this Section 5 by the Receiving Party, substantial injury could result to the Disclosing Party and money damages shall not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party engages in, or threatens to engage in any act which violates any provision of this Agreement, the Disclosing Party shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders, or preliminary or permanent injunctions) and specific enforcement of the terms of this Agreement without proof of actual damages. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
(e) Company reserves the right to use Client attributes including; name, location, logo, investment strategy, institution type (“Client Attributes”) in both verbal and written marketing efforts, including Company's Website. Client agrees to: (i) Company publishing a press release containing Client Attributes that memorializes the beginning of working relationship between the Client and Company (Client retains final approval of language and text proposed by Company); (ii) If called upon, serve as a reference for prospective clients seeking to do business with Company.
6. INDEMNIFICATION.
(a) Company will indemnify, defend, and hold harmless Client from and against any and all costs, liabilities, losses, and expenses (collectively “Losses”) resulting from any claim, suit, action, or proceeding brought by a third party (collectively “Third Party Claims”) arising from or relating to (i) the infringement or misappropriation of any third party copyright or trade secret by the permitted exercise of Client’s rights under this Agreement or (ii) Client Supplied Data or instructions provided by or on behalf of Client or Client affiliates; provided that such indemnity shall not apply if the Third Party Claim arises from Client’s (i) negligence or willful misconduct, (ii) misuse of the Services, (iii) alteration of the Services, (iv) use of the Services in combination with unauthorized apparatus, hardware, software or services, (v) use of the Services in violation of this Agreement or any applicable law, or (vi) use the Services for which the Services were not designed. This indemnity is the sole obligation of Company, and the exclusive remedy of Client, with regard to any claim of infringement in connection with the Services.
(b) Client agrees to give Company prompt written notice of any Third Party Claim for which Client seeks indemnification; provided, however, any failure by Client to provide such notice shall not relieve Company of its indemnification obligations under this Section 6 except to the extent Company can demonstrate actual prejudice as a result of such failure. Company shall conduct the defense of the claim, provided that Company shall not enter into any settlement or make any admission of liability on the part of Client without the Client’s prior written consent. Client may participate in such defense with its own counsel, at its own expense, and such participation shall not relieve Company of its obligations under this Section 6.
7. LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES, OR INDIRECT DAMAGES OF ANY TYPE OR KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE), ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF SUCH PARTY KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF SUCH DAMAGES.
(b) THE MAXIMUM LIABILITY OF EITHER PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID BY CLIENT TO COMPANY FOR THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
(c) THE FOREGOING LIMITATIONS OF LIABILITY WILL NOT APPLY TO CLIENT’S BREACH OF ITS LICENSE RESTRICTIONS UNDER SECTION 1.
8. MISCELLANEOUS.
(a) Force Majeure. Neither Party shall be liable or deemed to be in breach for any delay or failure in performance of this Agreement (except for the payment of money) or interruption of services resulting directly or indirectly from acts of God, civil or military authority, war, riots, civil disturbances, accidents, fire, earthquake, floods, strikes, lock-outs, labor disturbances, foreign or governmental order, or any other cause beyond the reasonable control of such Party.
(b) Amendment. This Agreement may not be amended, modified, superseded or canceled except pursuant to a written instrument executed by duly authorized representatives of both Parties.
(c) Waiver. No waiver of any of the provisions of this Agreement shall be deemed, or shall constitute, a waiver of any other provision, whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver. The failure of either party at any time or times to require performance of any provision hereof shall in no manner affect its right at a later time to enforce such provision
(d) Governing Law. This Agreement shall be construed in accordance with, and governed by, the laws of the State of Delaware, without regard to conflict of law provisions. The Parties irrevocably submit to the exclusive jurisdiction of the Federal or state courts located in the State of Delaware. Neither Party shall object to such venue and jurisdiction.
(e) Severability. If any provision hereof shall be found to be invalid or unenforceable, all of the other provisions shall nonetheless remain in full force and effect to the maximum extent permitted by law.
(f) Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
(g) Notices. Any notice required or permitted to be given under this Agreement by Company to the Client shall be in writing, personally delivered or sent by registered or certified United States mail, return receipt requested, postage prepaid or via recognized overnight courier or via facsimile (with confirmation receipt) and addressed to Client at Client Contact for Notices, or such other address as the Client may specify from time to time by like notice to Company. Any notice required or permitted to be given under this Agreement by the Client to Company shall be in writing, sent by registered or certified United States mail, return receipt requested, postage prepaid or personally delivered or via recognized overnight courier or via facsimile and addressed to Company at 1 Freedom Valley Drive, Oaks, Pennsylvania, Attention: General Counsel, or such other address as Company may specify from time to time by like notice to the Client. Any notice personally delivered or sent via facsimile (with confirmation receipt) shall be effective upon delivery. Any notice sent by mail in the manner provided herein or via overnight courier shall be effective on the date of delivery or refusal indicated on the return receipt.
(h) Entire Agreement. The Parties acknowledge and agree that they have each had counsel represent them, or had the opportunity to have counsel represent them, in the negotiation and drafting of this Agreement. Accordingly, the Parties agree that they shall each be deemed to have drafted this Agreement and no customary rule to the contrary shall apply. This Agreement constitutes the entire agreement and understanding of the Parties hereto with respect to the transactions contemplated hereby and supersedes all oral and written prior agreements, arrangements and understandings relating to the subject matter hereof.
Appendix 1
1. BARCLAYS
(a) Client acknowledges that all proprietary rights in any indices (“Indices”) and data (“Data”) of Barclays Capital Inc. and or its affiliates (collectively, “Barclays”) provided to Client shall remain the property of the Barclays, and Client shall have no right or interest in such Indices or Data except the rights to use such Indices in accordance with these terms and conditions. Client acknowledges that the Indices and Data as compiled, prepared, selected and arranged by Barclays constitute an expenditure of substantial time, effort and money by Barclays and constitute valuable commercial property and/or trade secrets of Barclays. Client agrees that it will not remove any copyright notice or other notification or trade names, trademarks or source identifiers of Barclays that may appear in the Indices or Data and that any reproduction and/or distribution of the Indices or Data shall contain such notices and/or marks and identifiers as they appear in the Indices and the Data. Client shall not (i) use any of the Indices or Data to construct or facilitate the construction of products which compete with the Indices or Data; (ii) create any derived works, models or applications based on the Indices or Data; (iii) issue any financial products, derivatives or related instruments that are linked to or based on any of the Indices or Data or use any of the Indices or Data as a component of any financial product, derivative or related instrument, in each case without the express written permission of Barclays; (iv) use the Indices or Data other than for its own internal use only.
(b) CLIENT ACKNOWLEDGES AND AGREES THAT THE INDICES AND DATA ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. UNDER NO CIRCUMSTANCES SHOULD THE INDICES OR DATA BE USED OR CONSIDERED AS AN OFFER TO SELL OR A SOLICITATION OF ANY OFFER TO BUY THE SECURITIES OR OTHER INSTRUMENTS MENTIONED IN THEM. OPINIONS EXPRESSED IN THE INDICES AND DATA ARE SUBJECT TO CHANGE WITHOUT NOTICE. CLIENT FURTHER ACKNOWLEDGES THAT BARCLAYS IS NOT ACTING IN A FIDUCIARY CAPACITY WITH RESPECT TO CLIENT AND THAT BARCLAYS IS NOT ASSUMING ANY DUTIES OR OBLIGATIONS OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.
(c) Client shall comply with all applicable laws and regulations relating to use of the Indices and Data.
(d) Disclaimer of Warranties. THE INDICES AND DATA ARE PROVIDED “AS IS” AND CLIENT EXPRESSLY AGREES THAT USE OF THE INDICES AND DATA IS AT CLIENT’S SOLE RISK. NEITHER BARCLAYS NOR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS (COLLECTIVELY, “BARCLAYS PARTIES”) MAKES ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE INDICES OR THE DATA, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF NON-INFRINGEMENT OR MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR FROM THE USE OF OR RELIANCE ON THE INDICES OR THE DATA. THE BARCLAYS PARTIES DO NOT WARRANT THAT THE INDICES OR DATA WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT DELAY OR ERROR FREE, NOR DO THE BARCLAYS PARTIES MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM ANY USE OF THE INDICES OR DATA (INCLUDING ANY INVESTMENT RESULTS TO BE OBTAINED BY USING THE INDICES AS A BENCHMARK OR FROM INVESTMENT IN ANY OF THE SECURITIES (OR ANY COMBINATION THEREOF) COMPRISING THE INDICES). WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE BARCLAYS PARTIES EXPRESSLY DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR ANY INACCURACIES OR INCONSISTENCIES IN THE DATA OR INDICES.
(e) Limitation of Liability. IN NO EVENT SHALL ANY OF THE BARCLAYS PARTIES BE LIABLE FOR ANY LOST PROFITS OR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL, LOSSES OR DAMAGES OF ANY NATURE, ARISING OUT OF, OR IN CONNECTION WITH, THE INDICES OR ANY DATA THEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CLIENT SHALL INDEMNIFY THE BARCLAYS PARTIES AND HOLD THEM HARMLESS FROM ALL LOSSES, DAMAGES, LIABILITY, COSTS (INCLUDING REASONABLE ATTORNEY’S FEES), RESULTING DIRECTLY OR INDIRECTLY FROM ANY CLAIM OR DEMAND (INCLUDING ANY SUBPOENA OR REQUEST FOR INFORMATION) AGAINST ANY OF THEM ARISING OUT OF OR RELATED TO ANY OF THE INDICES OR DATA RECEIVED BY CLIENT. NONE OF THE BARCLAYS PARTIES SHALL BE LIABLE FOR ANY CLAIM OR DEMAND AGAINST CLIENT BY A THIRD PARTY.
2. STANDARD & POOR’S
Each Client, as applicable, accessing the S&P Service(s) agrees that:
(i) Neither Company, S&P, their affiliates nor any third-party licensor shall have any liability for the accuracy or completeness of the information or software furnished through the Licensee Service, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
(ii) Neither Company, S&P, their affiliates or third-party licensors have exclusive proprietary rights in any information and software received;
(iii) Client shall not use or permit anyone to use the information or software provided through the Company’s Service for any unlawful or unauthorized purpose;
(iv) Client is not authorized or permitted to furnish such information or software to any person or firm for reuse or retransmission without prior written approval of the source of such information or software;
(v) Access to the S&P Service(s) is subject to termination in the event that any agreement between Company and a provider of information or software distributed through the Licensee Service is terminated in accordance with its terms; and
(v) The use of the S&P Service(s) by Client shall be as follows: (a) if Client is an entity, access to the S&P Service(s) for its employees shall be only for their internal use for business purposes, or (b) if Client is an individual, solely for Client’s personal non-commercial use, and (c) in either case, access to any of the S&P Service(s) shall be only via a password/user id issued by the Company.
3. STANDARD & POOR’S CUSIP
Client agrees and acknowledges that the CUSIP Database and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, CUSlP Global Services (“CGS”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to Client in such materials or in any of the information contained therein. Any use by Client outside of the clearing and settlement of transactions requires a license from CGS, along with an associated fee based on usage. Client agrees that misappropriation or misuse of such materials will cause serious damage to CGS and ABA, and that in such event money damages may not constitute sufficient compensation to CGS and ABA; consequently, Client agrees that in the event of any misappropriation or misuse, CGS and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CGS and ABA may be entitled.
Client agrees that Client shall not publish or distribute in any medium the CUSIP Database or any information contained therein or summaries or subsets thereof to any person or entity except in connection with the normal clearing and settlement of security transactions. Client further agrees that the use of CUSIP numbers and descriptions is not intended to create or maintain, and does not serve the purpose of the creation or maintenance of, a master file or database of CUSIP descriptions or numbers for itself or any third party recipient of such service and is not intended to create and does not serve in any way as a substitute for the CUSIP MASTER TAPE, PRINT, DB, INTERNET, ELECTRONIC, CD-ROM Services and/or any other future services developed by the CGS.
NEITHER CGS, ABA NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES. EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO CLIENT AN “AS IS” BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY CLIENT FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.
Client agrees that the foregoing terms and conditions shall survive any termination of its right of access to the materials identified above.
4. MSCI, INC.
Client represents that it will use the data supplied by MSCI, Inc. (the “Data’) solely for internal purposes and will not redistribute the Data in any form or manner to any third party.
Client represents that it will not use or permit anyone else to use the Data in connection with the creating, managing, advising, writing, trading, marketing or promotion of any securities or financial instruments or products, including, but not limited to, funds, synthetic or derivative securities (g., options, warrants, swaps, and futures), whether listed on an exchange or traded over the counter or on a private-placement basis or otherwise or to create any indices (custom or otherwise).
Client represents that it will treat the Data as proprietary to MSCI. Further, Client acknowledges that MSCI is the sole and exclusive owner of the Data and any trade secrets, copyrights, trademarks and other intellectual property rights in or to the Data.
Client represents that it will not (i) copy any component of the Data, (ii) alter, modify or adapt any component of the Data, including, but not limited to, translating, decompiling, disassembling, reverse engineering or creating derivative works, or (iii) make any component of the Data available to any other person or organization (including, without limitation, the Client’s present and future parents, subsidiaries or affiliates) directly or indirectly, for any of the foregoing or for any other use, including, without limitation, by loan, rental, service bureau, external time sharing or similar arrangement.
Client shall be obligated to reproduce on all permitted copies of the Data all copyright, proprietary rights and restrictive legends appearing on the Data.
Client acknowledges that it assumes the entire risk of using the Data and agrees to hold MSCI harmless from any claims that may arise in connection with any use of the Data by the Client or its permitted affiliates.
Client acknowledges that MSCI may, in its sole and absolute discretion and at any time, terminate the Client’s right to receive and/or use the Data.
Client acknowledges MSCI as a third party beneficiary of the SEI Global Services, Inc Partner Master Subscription Agreement is entitled to enforce all provisions of such agreement relating to the Data.
DISCLAIMER OF WARRANTIES AND LIABILITY
THE DATA IS PROVIDED TO CLIENT ON AN “AS IS” BASIS. COMPANY, ITS INFORMATION PROVIDERS, AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA MAKE NO REPRESENTATION OR WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA (OR THE RESULTS TO BE OBTAINED BY THE USE THEREOF). COMPANY, ITS INFORMATION PROVIDERS AND ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA EXPRESSLY DISCLAIM ANY AND ALL IMPLIED WARRANTIES OF ORIGINALITY, ACCURACY, COMPLETENESS, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
CLIENT ASSUMES THE ENTIRE RISK OF ANY USE CLIENT MAY MAKE OF THE DATA. IN NO EVENT SHALL COMPANY, ITS INFORMATION PROVIDERS OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA, BE LIABLE TO THE CLIENT OR ANY OTHER THIRD PARTY, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS AGREEMENT OR THE INABILITY OF THE CLIENT TO USE THE DATA, REGARDLESS OF THE FORM OF ACTION, EVEN IF COMPANY, ANY OF ITS INFORMATION PROVIDERS, OR ANY OTHER THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA HAS BEEN ADVISED OF OR OTHERWISE MIGHT HAVE ANTICIPATED THE POSSIBILITY OF SUCH DAMAGES.
Indemnification
Client agrees to indemnify and hold harmless MSCI, its information providers, and any other third party involved in or related to the making, or compiling of the Data, their affiliates and subsidiaries and their respective directors, officers, employees and agents from and against any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees and costs, as incurred, arising in any manner out of the Client’s or any third party’s use of, or inability to use, the Data or any breach by the Client of any provision contained in this Agreement.
5. FACTSET RESEARCH SYSTEMS INC.
Subject to the terms and conditions of the Master Subscription Agreement in place between you and SEI Global Services, Inc., FactSet Research Systems Inc. (“FactSet”) grants you (“Client”) the limited, nonexclusive, nontransferable rights to use its financial data (“FactSet Data”). All proprietary rights, including intellectual property rights, in the FactSet Data will remain property of FactSet and its suppliers, if applicable.
THE FACTSET DATA IS PROVIDED “AS IS” AND ALL REPRESENTATIONS, WARRANTIES, TERMS AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED (BY COMMON LAW, STATUTE OR OTHERWISE), IN RELATION TO THE FACTSET DATA ARE HEREBY EXCLUDED AND DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY LAW. IN PARTICULAR, FACTSET DISCLAIMS IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND MAKE NO WARRANTY OF ACCURACY, COMPLETENESS, NON-INFRINGEMENT, TIMELINESS, FUNCTIONALITY, RELIABILITY OR SPEED OF DELIVERY OF THE FACTSET DATA. CLIENT AGREES THAT THE FACTSET DATA IS NOT INVESTMENT ADVICE AND ANY OPINIONS OR ASSERTION CONTAINED IN THE FACTSET DATA DO NOT REPRESENT THE OPINIONS OR BELIEFS OF FACTSET OR ITS AFFILIATES OR ANY OF THEIR RESPECTIVE EMPLOYEES. FactSet does not warrant that the FactSet Data will be uninterrupted, error free, or completely secure. FactSet expressly disclaims any liability for any loss or injury caused in whole or in part by negligence or any other error made by human or machine concerning the production, compilation or distribution of the FactSet Data. Client expressly assumes the entire risk for the results and performance of the FactSet Data.
None of FactSet or its respective affiliates will have any liability for any lost profits or direct, indirect, special, consequential, punitive or exemplary damages, even if advised in advance of the possibility of these types of damages.
6. ICE DATA PRICING AND REFERENCE DATA LLC
Client shall indemnify and hold harmless ICE Data Pricing & Reference Data, LLC (“ICE”) and its suppliers from any and all losses, damage, liability, costs, including reasonable attorney’s fees, resulting directly or indirectly from any claim or demand against ICE by a third party arising out of, derived from, or related to the accuracy or completeness of any such Special Third Party Services received by Client. ICE shall not be liable for any claim or demand against Client by and third party.
