Third Party Terms and Conditions - Interactive Data Pricing and Reference Data LLC

For the purpose of these Third Party Terms and Conditions, “Services” shall mean Interactive Data Pricing and Reference Data’s RemotePlus, Apex, Global Price Master, and Global Security Master and “Data” shall mean Interactive Data Pricing and Reference Data’s Global Price Master and Global Security Master.

LICENSOR provides LICENSEE with access to certain data (the “Services” and “Data”) provided by Interactive Data Pricing and Reference Data LLC (“Interactive Data” or “Interactive Data Pricing and Reference Data”). In connection with receipt and use of the Services and Data, LICENSEE agrees as follows:

(1)  Warranty/Disclaimer of Warranties

INTERACTIVE DATA AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS OR ANY OTHER MATTER AND SHALL HAVE NO LIABILITY TO LICENSEE OR ANY THIRD PARTY FOR ANY ERRORS, OMISSIONS OR MALFUNCTIONS IN THE SERVICES.

(2)  Use of Data

a)  Licensee acknowledges that the Services are intended for use by institutional investors, registered brokers, professionals and others of similar sophistication and experience.

b)  Licensee accepts responsibility for, and acknowledges it exercises its own independent judgment in, its selection of any of the Services, its selection of the use or intended use of such, and any results obtained.  Nothing contained herein shall be deemed to be a waiver of any rights existing under applicable securities law.

(3)  Indemnification

Licensee shall indemnify Interactive Data and its suppliers against and hold Interactive Data harmless from any and all losses, damages, liability, costs, including attorney’s fees, resulting directly or indirectly from any claim or demand against Interactive Data or its suppliers by a third party arising out of or related to any Services received by Licensee, or any data, information, service, report, analysis or publication derived therefrom.  Neither Interactive Data nor its suppliers shall be liable for any claim or demand against Licensee by a third party.

(4)  Third Party Beneficiary

In the event that Licensee at any time receives Data from Interactive Data Pricing and Reference Data containing evaluations, rather than market quotations, for certain securities or certain other data related to such securities, the following provisions will apply: (i) evaluated securities are typically complicated financial instruments. There are many methodologies (including computer-based analytical modeling and individual security evaluations) available to generate approximations of the market value of such securities, and there is significant professional disagreement about which is best. No evaluation method, including those used by Interactive Data Pricing and Reference Data, may consistently generate approximations that correspond to actual “traded” prices of the instruments; (ii) Interactive Data Pricing and Reference Data’s methodologies used to provide the pricing portion of certain Data may rely on evaluations; however, Licensee acknowledges that there may be errors or defects in Interactive Data Pricing and Reference Data’s software, databases, or methodologies that may cause resultant evaluations to be inappropriate for use in certain applications; and (iii) Licensee assumes all responsibility for edit checking, external verification of evaluations, and ultimately the appropriateness of use of evaluations and other pricing data provided via the Service in Licensee’s applications, regardless of any efforts made by Interactive Data Pricing and Reference Data in this respect. Licensee shall indemnify and hold Interactive Data Pricing and Reference Data completely harmless in the event that errors, defects, or inappropriate evaluations are made available via the Service or the Data.

 (6)  Restricted Data

The following provisions apply to all recipients of evaluated prices for European Collateralized Debt Obligations (EUR_CDO).

a)  Licensee represents and warrants that it is familiar with both Rule 144A and Regulation S under the Securities Act of 1933, as amended (the “Securities Act”).  Under Interactive Data Pricing and Reference Data’s agreement with Intex Solutions, Inc., receipt of certain data (“Restricted Data”) from Interactive Data Pricing and Reference Data is limited to entities that meet the definition of a Qualified Institutional Buyer within the meaning of Rule 144A or a “non-U.S. Person” within the meaning of Regulation S that as of the date the services were provided was resident outside of the United States.  In order to receive Restricted Data, Licensee must certify that it is a Qualified Institutional Buyer as described in Section (b) below or a Non-U.S. Person as described in Section (c) below.  Licensee agrees and acknowledges that any redistribution of Restricted Data that is permitted under the terms of an applicable Services Agreement and/or schedule (including insubstantial use of the Restricted Data) is permissible only with respect to persons that meet the definition of a Qualified Institutional Buyer within the meaning of Rule 144A or to “non-U.S. Persons” within the meaning of Regulation S that as of the date of the redistribution were resident outside of the United States. 

b)  Qualified Institutional Buyer Certification.  In connection with the foregoing, Licensee hereby represents and warrants that one of the clauses set forth in (b)(i)-(vi) below is true:

i)    Licensee is one of the following entities that acting for its own account or the accounts of other Qualified Institutional Buyers, in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with Licensee:

§ an insurance company as defined in Section 2(13) of the Securities Act; or

§ an investment company registered under the Investment Company Act of 1940 or any business development company as defined in Section 2(a)(48) of the Investment Company Act of 1940; or

§ a small business investment company licensed by the U.S. Small Business Administration under Section 301(c) or (d) of the Small Business Investment Act of 1958; or

§ a plan established and maintained by a state, its political subdivisions, or any agency or instrumentality of a state or its political subdivisions, for the benefit of its employees; or

§ an employee benefit plan within the meaning of Title I of the Employee Retirement Income Security Act of 1974; or

§ a trust fund whose trustee is a bank or trust company and whose participants are exclusively plans of the types identified in Rule 144A (a)(1)(i)(D) or (E), except trust funds that include as participants individual retirement accounts or H.R. 10 plans; or

§ a business development company as defined in Section 202(a)(22) of the Investment Advisers Act of 1940; or

§ an organization described in Section 501(c)(3) of the Internal Revenue Code, corporation (other than a bank as defined in Section 3(a)(2) of the Securities Act or a savings and loan association or other institution referenced in Section 3(a)(5)(A) of the Securities Act or a foreign bank or savings and loan association or equivalent institution), partnership, Massachusetts or similar business trust; or

§ an investment adviser registered under the Investment Advisers Act of 1940.

ii)  Licensee is a dealer registered pursuant to Section 15 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), acting for its own account or the accounts of other Qualified Institutional Buyers, that in the aggregate owns and invests on a discretionary basis at least $10 million in securities of issuers that are not affiliated with Licensee.

iii)  Licensee is a dealer registered pursuant to Section 15 of the Exchange Act acting in a riskless principal transaction on behalf of a qualified institutional buyer.

iv)  Licensee is an investment company registered under the Investment Company Act of 1940, acting for its own account or the accounts of other Qualified Institutional Buyers, that is part of a family of investment companies which own in the aggregate at least $100 million in securities of issuers other than issuers that are affiliated with Licensee or are part of such family of investment companies.

v)   Licensee is an entity, all the equity owners of which are Qualified Institutional Buyers acting for its own account or the accounts of other Qualified Institutional Buyers.

vi)  Licensee is a bank as defined in section 3(a)(2) of the Securities Act, a savings and loan association or other institution as referenced in section 3(a)(5)(A) of the Securities Act, or a foreign bank or savings and loan association or equivalent institution, acting for its own account or the accounts of other Qualified Institutional Buyers, that in the aggregate owns and invests on a discretionary basis at least $100 million in securities of issuers that are not affiliated with it and that has an audited net worth of at least $25 million as demonstrated in its latest annual financial statements.

c)   Non-U.S. Person Certification: Licensee is a non-U.S. person within the meaning of Regulation S under the Securities Act of 1933 and Licensee will be resident outside of the United States as of the date the services are provided.

Licensee agrees to promptly notify Interactive Data Pricing and Reference Data pursuant to the terms of the applicable Services Agreement if any of the certifications made above ceases to be true.