Third Party Terms and Conditions - Merritt Research Services, LLC

For the purpose of these Third Party Terms and Conditions, “Distributor” shall refer to Licensor and "Subscriber” shall refer to Licensee. Further, “Data” shall refer to all document images, financial information and other information provided by Merritt Research Services, LLC (“Merritt”) and its suppliers and all modifications thereto. The headings used in these Third Party Terms and Conditions are for reference and convenience only, and shall not enter into the interpretation hereof.

1.    License

a.    Subscriber shall not access, view, publish, disclose, disseminate, distribute, sell, lease, sublicense, download, copy, store, modify or otherwise use the Data or make the Data available to any third party unless expressly authorized in Section 1(b).

b.   Notwithstanding the restrictions set forth above, Distributor hereby grants Subscriber a revocable, non-transferable, non-sublicensable, non-exclusive license for the duration of Subscriber’s Agreement with Distributor (the “Term”) to

          i.     Testing/Backups/Archival Copies:  make copies of portions of the Data solely in conjunction with Subscriber’s creation of testing, back-up and archival copies of the Software provided that such testing, back-up and archival copies are expressly authorized by Subscriber’s Agreement with Distributor and Subscriber does not access, view or use the Data in such copies other than to test or restore the Software on an Authorized User’s computer;

          ii.     Access/Viewing/Modification:  access and view the Data through the Software and modify the Data solely for Subscriber’s internal operations, provided that such accessing, viewing and modification is limited to Subscriber’s employees who are paid Authorized Users of the Software;

          iii.     Exports:  produce temporary copies of limited portions of the Data using the Software (including, for example, exporting such portions of the Data in a Microsoft Excel readable format from the Software) provided that such copying and use is limited to Subscriber’s employees who are paid Authorized Users of the Software and provided further that Subscriber shall not include an amount of Data in such temporary copies which would allow such copies to be used, alone or in combination with other copies, as a source of, or substitute for, the Data; and

          iv.     Disseminations:  disseminate (internally and to third parties) limited portions of the Data in Subscriber’s analytical reports and investment advisory notes in the ordinary course of Subscriber’s business and make copies of the portions solely for such dissemination, provided that Subscriber shall only copy and disseminate portions of the Data to the extent necessary to support the conclusions or recommendations in such reports and notes and provided further that Subscriber shall not include an amount of Data in such disseminations which would allow such disseminations to be used, alone or in combination with other disseminations, as a source of, or substitute for, the Data.

          v.     No Other License:  Except for the licenses expressly granted in subsections i-iv above, no other license to the Data, express or implied, is granted to Subscriber. As a third party beneficiary, Merritt shall be entitled to revoke or limit the licenses granted in this Section 1(b) if the license agreement between Merritt and Distributor related to the Data terminates for any reason or if, Merritt, in its sole judgment, i) concludes that Subscriber has violated the spirit or letter of the terms of Sections 1(a) and 1(b) and/or ii) concludes that Subscriber has materially impaired the ability of Merritt to exploit the Data or realize revenue in connection with the Data.

c.    Effect of termination and revocation:  After termination of Subscriber’s Agreement with Distributor or revocation or limitation of a license granted in Section 1(b), Subscriber shall not access, view, publish, disclose, disseminate, distribute, sell, lease, sublicense, download, copy, store, modify or otherwise use the Data or make the Data available to any third party and Subscriber shall delete and otherwise destroy all Data, including any modifications to the Data and documents and files containing any portion of the Data, in Subscriber’s possession, custody and control, except as expressly permitted in Subscriber’s Agreement with Distributor.

d.   Subscriber shall undertake reasonable measures to prevent the unauthorized access, viewing, publication, disclosure, dissemination, distribution, sale, lease, sublicensing, downloading, copying, storing, modification and use of the Data by its employees, agents, independent contractors and affiliates.

2.    Proprietary Notice; Use of the Data

a.    Subscriber acknowledges that all proprietary rights in the Data that are owned by Merritt or its suppliers shall remain the property of Merritt or its suppliers and Subscriber shall have no right or interest in such Data except for the licenses granted in Section 1(b) upon the terms and conditions herein. Subscriber acknowledges that the Data as compiled, prepared, selected and arranged by Merritt constitute an expenditure of substantial time, effort and money by Merritt and constitute valuable commercial property and/or trade secrets of Merritt. In any disseminations to third parties pursuant to Section 1(b)(iv) above that are provided in written form (including but not limited to any written reports and notes as well as presentation slides), if Subscriber choses to acknowledge Merritt as the source of the Data, Subscriber shall, in a readable font size, include substantially the following language:  “MERRITT RESEARCH SERVICES, LLC HAS LICENSED DATA TO [SUBSCRIBER] ‘AS IS’ and MAKES NO WARRANTIES REGARDING SAME, DOES NOT GUARANTEE THE SUITABILITY, QUALITY, ACCURACY, TIMELINESS, AND/OR COMPLETENESS OF ANY DATA PROVIDED BY MERRITT OR DERIVED THEREFROM, AND MERRITT ASSUMES NO LIABILITY IN CONNECTION WITH USE OF THE DATA. Except as set forth in this Agreement, Subscriber may not use the Merritt Research Services name or Merritt’s trademarks without the prior written consent of Merritt.

b.   SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE DATA ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY. UNDER NO CIRCUMSTANCES SHOULD THE 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 IT. THE DATA HAS BEEN OBTAINED FROM VARIOUS SOURCES, AND MERRITT DOES NOT REPRESENT THAT IT IS TIMELY, ACCURATE OR COMPLETE AND IT SHOULD NOT BE RELIED UPON AS SUCH. OPINIONS EXPRESSED IN THE DATA ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE PRODUCTS MENTIONED IN THE DATA MAY NOT BE ELIGIBLE FOR SALE IN SOME STATES OR COUNTRIES, NOR SUITABLE FOR ALL TYPES OF INVESTORS; THEIR VALUE AND THE INCOME THEY PRODUCE MAY FLUCTUATE AND/OR BE ADVERSELY AFFECTED BY EXCHANGE RATES. SUBSCRIBER FURTHER ACKNOWLEDGES THAT MERRITT IS NOT ACTING IN A FIDUCIARY CAPACITY WITH RESPECT TO SUBSCRIBER AND THAT MERRITT IS NOT ASSUMING ANY DUTIES OR OBLIGATIONS OTHER THAN THOSE EXPRESSLY SET FORTH HEREIN.

c.    Subscriber shall comply with all applicable laws and regulations relating to use of the Data during the Term.

3.    Warranty/Disclaimer of Warranties

a.    Merritt warrants to Subscriber that Merritt has the right to provide the Data and that the Data so provided do not violate or infringe the rights of any third party or the laws or regulations of any governmental or judicial authority.

b.   MERRITT MAKES NO REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE DATA, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE WITH RESPECT TO THE DATA, OR THE INVESTMENT RESULTS TO BE OBTAINED BY ANY FUND USING THE DATA. THE DATA IS PROVIDED “AS IS” AND SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE DATA IS AT SUBSCRIBER’S SOLE RISK. MERRITT DOES NOT WARRANT THAT THE DATA WILL NOT BE UNINTERRUPTED, DELAYED OR ERROR FREE, NOR DOES IT MAKE ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE DATA. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, MERRITT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY INACCURACIES OR INCONSISTENCIES IN THE DATA.

4.    Third Party Beneficiary Status; Right to Injunctive Relief

Subscriber acknowledges that Merritt is a third party beneficiary under this Agreement. Subscriber further acknowledges that Merritt will not have an adequate remedy at law in the event Subscriber exceeds the scope of the limited license granted in Section 1 and that, therefore, Merritt shall be entitled to injunctive relief against Subscriber for exceeding the scope of the limited license. The rights to equitable relief granted to Merritt in this paragraph shall be in addition to the other remedies available to Merritt.