Third Party Terms and Conditions - Fitch, Inc.
1. Ownership and Restrictions on Use
1.1 The Fitch Solutions Information is owned by or licensed to Fitch Solutions, and contains the valuable copyrighted and proprietary material of Fitch Solutions or its Affiliates and licensors, and all rights in or to the Fitch Solutions Information not granted to the Licensee are expressly reserved by Fitch Solutions and its Affiliates and licensors and the Licensee agrees that the License does not permit the Licensee to use the Fitch Solutions Product or any part thereof for any purpose not expressly granted by this Agreement.
1.2. Without limiting the generality of Clause 1.1, except as specifically allowed under this Agreement, neither the Licensee (nor any of its Affiliates) nor any of the Licensee Subscribers may:
1.2.1. publish, copy, modify, merge, transfer or distribute the Fitch Solutions Information; or
1.2.2. reverse-engineer, decompile, translate, disassemble or separate the components of the Fitch Solutions Information; or
1.2.3. sublicense, rent, sell, lease or otherwise repackage or redistribute the Fitch Solutions Information, or any part thereof; or
1.2.4. use the Fitch Solutions Information or any part thereof for third-party training, commercial time-sharing or in the operation of a service bureau; or
1.2.5. create any commercial product, derived in whole or in part from the Fitch Solutions Information, without receiving the prior written consent of Fitch Solutions.
Notwithstanding the foregoing, the Licensee hereby grants a perpetual, irrevocable, royalty-free, freely-transferrable and freely commercializeable license to Fitch Solutions to any work or product that is produced or derived in whole or in part from the Fitch Solutions Product (a “Derivative Product”).
2. Marketing and Use
2.1. Notwithstanding the terms of Clause 1 above, the Licensee may, as part of and in the ordinary course of its business, redistribute (orally, in writing or by electronic means) in its own business applications, reports, presentations, graphs and other publications (Materials) that include limited excerpts of the Fitch Solutions Information without Fitch Solutions’ prior written consent, provided, however that:
2.1.1. such excerpts are only supportive and incidental to the substance of the Materials;
2.1.2. the Licensee shall be liable for any such redistribution of the Fitch Solutions Information; and
2.1.3. the Licensee agrees not to use the limited right to redistribute the Materials granted hereunder either (a) on a recurrent basis or (b) to develop for sale and/or distribution or otherwise a product or service that competes with any Fitch Solutions product or service or (c) in connection with a prospectus or other offering document or document required to be filed pursuant to the securities laws of any jurisdiction.
In the event that the Licensee makes use of such Materials as permitted above, it shall always in the Materials acknowledge Fitch Solutions as the source of the excerpts with an appropriate notice subject to Fitch Solutions’ review and consent. The Licensee shall allow Fitch Solutions to view copies of the Materials or to have access to the Materials on the Licensee’s website (if applicable) for the sole purpose of confirming that the Licensee is using and distributing the Materials in accordance with the terms of this Agreement. In instances where actual ratings or other datapoints are being shown as part of the Materials, there can be no more than fifty (50) ratings or other datapoints presented in any particular business application, report, presentation, graph or other written publication; for clarity there is no limitation on the number of ratings or datapoints being displayed within Licensee Product.
2.2. As used in Clause 2.1 above, limited excerpts of the Fitch Solutions Information:
2.2.1. shall have no independent commercial value; and
2.2.2. may not be used by the recipient as a substitute for the Fitch Solutions Information; and
2.2.3. are not regularly or systematically updated; and
2.2.4. are not separately marketed.
2.3. Fitch Solutions hereby grants permission to the Licensee to use the name and trademarks of Fitch Solutions solely for the promotion and marketing of the fact that the Fitch Solutions Information will be/is available on the Licensee’s services provided, however, that:
2.3.1. Fitch Solutions shall be provided with a copy of any proposed marketing material, containing the Fitch Solutions name or a Fitch Solutions trademark, logo or design, in the marketing material’s final form prior to such material’s distribution for Fitch Solutions’ review and consent, which consent shall be in Fitch Solutions’ sole discretion, and
2.3.2 the Licensee agrees that no marketing material containing the Fitch Solutions name or a Fitch Solutions trademark, logo or design will be used in any manner without the Licensee having received Fitch Solutions’ prior written consent to such use. Both parties agree, however, that the Licensee is free, for the Term of this Agreement, to publicly disclose for marketing purposes, the fact that Fitch Solutions has included the Fitch Solutions Information on the Licensee’s services.
3. Limited Warranty and Disclaimer
3.1. Although the Fitch Solutions Information is based upon information obtained from sources Fitch Solutions believes in good faith to be reliable, the Licensee acknowledges that Fitch Solutions does not represent, warrant or guarantee the accuracy, correctness, integrity, completeness or timeliness of any part of the Fitch Solutions Information and expressly acknowledges Fitch Solutions disclaimer that Fitch Solutions does not audit or verify the accuracy of the information provided to it by any third party, including without limitation issuers, their representatives, accountants and legal advisors and others.
3.2. Fitch Solutions also does not represent, warrant or guarantee:
3.2.1. the design or performance of any part of the Fitch Solutions Information; or
3.2.2. that the Fitch Solutions Information will fulfill any of the Licensee’s particular purposes or needs.
3.3. Fitch Solutions does not recommend the purchase or sale of financial products or securities and does not give investment advice or provide any legal, auditing, accounting, appraisal or actuarial services. A rating is not an opinion as to the value of securities. Some products included in the Fitch Solutions Information may include mathematically or non-mathematically derived theoretical approximations of value for certain securities. Fitch Solutions makes no representation or warranty that such evaluations are error-free, that input data supplied to or by Fitch Solutions for use in its evaluations or the software or methodologies used by Fitch Solutions are complete or free from errors, omissions, or defects, or that approximations of value generated by its models and evaluation methodologies necessarily correspond to the actual traded price which could be obtained on any given day for any particular security. Users of the Fitch Solutions Information assume all responsibility for verification of and appropriateness of the use of evaluations. Some products included in the Fitch Solutions Information may include opinions relating to the liquidity or other attributes of financial products or securities. Fitch Solutions makes no representation or warranty as to the accuracy, correctness, integrity, completeness or timeliness of any such opinion. Fitch Solutions is not responsible for any credit, loan or investment decisions, damages or other losses resulting from the reliance upon or use of the Fitch Solutions Information except to the extent set forth in Clause 4 below.
3.4. Fitch Solutions shall not be responsible for any discrepancies that may exist between any Fitch Solutions Information sent to the Licensee and corresponding data contained in Fitch Solutions’ database after the time such Fitch Solutions Information was sent to the Licensee.
3.5. THE FITCH SOLUTIONS INFORMATION IS PROVIDED “AS IS” AND ALL FAULTS AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH THE LICENSEE. FITCH SOLUTIONS DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND ABSENCE OF VIRUSES AND DAMAGING OR DISABLING CODE. FITCH SOLUTIONS SPECIFICALLY DISCLAIMS ANY WARRANTY OR REPRESENTATION THAT THE FITCH SOLUTIONS INFORMATION WILL MEET THE LICENSEE’S REQUIREMENTS, THAT THE OPERATION OR USE OF FITCH SOLUTIONS INFORMATION AND/OR ANY FITCH SOLUTIONS WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS IN THE FITCH SOLUTIONS INFORMATION WILL BE UNINTERRUPTED OR ERROR-FREE, THAT ANY DEFECTS IN THE FITCH SOLUTIONS INFORMATION WILL BE CORRECTABLE OR CORRECTED, OR THAT FITCH SOLUTIONS INFORMATION IS COMPATIBLE WITH ANY PARTICULAR PLATFORM.
4. Limitation of Liability
4.1. Fitch Solutions and its personnel shall not be liable to the Licensee for any claims, liabilities or expenses relating to the Fitch Solutions Information for an aggregate amount in excess of the fees paid by the Licensee pursuant to this Agreement during the twelve (12) month period prior to the Licensee’s reliance on the Fitch Solutions Information that is claimed to have caused damage to the Licensee, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of Fitch Solutions.
4.2. In no event shall Fitch Solutions or its Affiliates, or its or their employees or contractors be liable for:
4.2.1. consequential, special, indirect, incidental, punitive or exemplary loss, damage or expense, whether caused by contractual breach, negligence or otherwise; or
4.2.2. any delay or failure to perform any obligation under this Agreement due to any cause beyond Fitch Solutions’ reasonable control.
4.3. The provisions of this Clause 4 and Clause 3 shall apply to the fullest extent of the law, whether in contract, statute, tort (such as negligent misrepresentation), or otherwise, save that nothing in this Agreement shall limit or exclude Fitch Solutions’ liability for negligence causing death or personal injury, or Fitch Solutions’ liability for fraud or deceit. In circumstances where all or any portion of the provisions of this Clause are finally judicially determined to be unavailable, Fitch Solutions’ aggregate liability for any claims, liabilities or expenses relating to the Fitch Solutions Information shall not exceed an amount which is proportional to the relative fault that Fitch Solutions’ conduct bears to all other conduct giving rise to such claim, liability or expense. This contractual limitation of liability shall be in addition to all limitations to which Fitch Solutions is entitled under the common law, or statute as a publisher of financial information.
5. CUSIP Database Representations
5.1. The Licensee agrees and acknowledges that the CUSIP database is and shall remain valuable intellectual property owned by, or licensed to, Standard & Poor’s CUSIP Service Bureau (CSB) and the American Bankers Association (ABA), and that no proprietary rights are being transferred to the Licensee in such materials or in any of the information contained therein. The Licensee agrees that misappropriation or misuse of such materials will cause serious damage to CSB and ABA and that in such event money damages may not constitute sufficient compensation to CSB and ABA; consequently, the Licensee agrees that in the event of any misappropriation or misuse, CSB and ABA shall have the right to obtain injunctive relief.
5.2. The Licensee agrees that the Licensee 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 internal processing of security transactions. The Licensee 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 file of CUSIP descriptions or numbers for any other 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, ELECTRONIC AND/OR CD-ROM SERVICES.
5.3. NEITHER CSB, 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 THE LICENSEE ON 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 CSB, 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 CSB, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE EXCEED THE FEE PAID BY THE LICENSEE FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CSB AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND ITS CONTROL.
5.4. The Licensee agrees that the foregoing terms and conditions shall survive any termination of its right of access to the materials identified above.
6. Indemnification by the Licensee
6.1. The Licensee indemnifies and agrees to defend and hold Fitch Solutions its Affiliates and licensors, and its and their officers, employees, representatives and agents harmless from and against any and all claims, actions, liabilities, damages, judgments, costs and expenses (including reasonable attorneys’ fees and expenses) arising out of:
6.1.1. a breach by the Licensee, and/or Licensee’s Affiliate(s), of this Agreement or a failure by any Third Party Distributor to comply with the terms of this Agreement;
6.1.2. use or misuse of the Fitch Solutions Information by the Licensee or the Licensee’s employees, agents, representatives or Affiliate(s);
6.1.3. any other wrongful conduct of the Licensee or any of its Affiliate(s) or conduct attributable to the Licensee or any of its Affiliates; and
6.1.4. any claim or action by any third party who obtained access to the Fitch Solutions Information from or through the Licensee or any of Licensee’s Affiliate(s).