Third Party Terms and Conditions - Standard & Poor’s
For the purpose of these Third Party Terms and Conditions, “Data” shall mean Standard & Poor’s Index and Yield Curve data pursuant to the Agreement between Investortools, Inc. an Illinois Corporation (“LICENSOR”) and User (‘LICENSEE’).
LICENSOR provides LICENSEE with access to certain data (the “Data”) provided by Standard & Poor’s (“S&P”). In connection with receipt and use of that Data, LICENSEE agrees as follows:
LICENSOR grants to each LICENSEE a non-exclusive, non-transferable limited license to use the Data only in connection with LICENSEE’S internal operations. LICENSEE must agree to maintain the Data on a confidential basis and not to publish, transmit, disclose, copy, redistribute or otherwise make the Data available to any person or entity other than responsible employees of LICENSEE who have a need to use the Data.
(2) Use of Data
LICENSEE may, as part of and in the ordinary course of its internal operations, provide and distribute to its own customers only, in hard copy or electronic form, reports (such as confirmations, monthly advisory statements or research reports) which utilize and display selected data items from the Data without prior written consent from, and without payment of additional fees to, LICENSOR. LICENSEE shall have the right to download and store the Data on the LICENSEES computer system solely for this purpose. LICENSEE may not reproduce, display or distribute the Data in a manner, which competes with either S&P’s or LICENSOR’s provision of the Data. In addition to and notwithstanding the foregoing, LICENSEE must agree that no right is granted to use the Data in connection with any business of providing municipal or taxable security pricing, evaluation services, dividend or UIT announcements, or a municipal or taxable security descriptive information look-up service. Additional restrictions on ’authorized purposes’ for which the Data may be used and ’authorized usage’ of the Data are specified below, where applicable. To the extent that the Data is provided to LICENSEE in electronic form, such LICENSEE shall be contractually prohibited from populating its accounting systems with that data for accounting purposes.
(3) Proprietary Notice
LICENSEE acknowledges that S&P is the source of the Data and that S&P and its licensors own all exclusive proprietary rights to such Data. LICENSEE acknowledges that S&P is a third party beneficiary under this Agreement. LICENSEE further acknowledges that S&P will not have an adequate remedy at law in the event of disclosure through an unauthorized person of the Data and that, therefore, S&P shall be entitled to injunctive relief against LICENSEE in the event that it seeks to restrain such disclosure, either threatened or actual.LICENSEE acknowledges that the CUSIP numbering descriptions furnished to it in connection with the Data contain information obtained, selected, arranged and published by the CUSIP Service Bureau of Standard & Poor’s, a division of McGraw-Hill, Inc. under the authority of The American Bankers Association and that such CUSIP numbers and descriptions constitute valuable intellectual property of the CUSIP Service Bureau and The American Bankers Association. LICENSEE represents and agrees that it does not intend and will not publish or distribute to any person or entity any or all of the CUSIP numbers and descriptions furnished pursuant to the LICENSEE Agreement provided, however, that the LICENSEE Agreement shall not be deemed to prohibit the use of CUSIP uniform descriptions and CUSIP numbers in the normal internal processing of security transactions of LICENSEE so long that the use of such descriptions and numbers is not intended and does not serve the purpose of the creation or maintenance of a file of CUSIP descriptions or numbers for itself or for any third party recipients of such service and is not intended and does not serve in any way as a substitute for the CUSIP directories, supplements and updating services.
(4) Term & Termination
LICENSEE acknowledges that its access to the S&P Data may terminate in the event that the agreement between LICENSOR and S&P terminates for any reason.
(5) Warranty/Disclaimer of Warranties
NO WARRANTIES AND LIMITATION OF LIABILITY. The Data and Software supplied under this Agreement are provided on an ’as is’ basis and the use thereof is at the sole risk of LICENSEE. Neither S&P nor any of its third party licensors warrants the accuracy or completeness or timeliness of any of the Data supplied to LICENSEE. Specifically, it is understood that any evaluations provided as part of the Data represent only the opinion of S&P as to the price at which an investment can be purchased or sold in the market. While these evaluations are sometimes referred to as ’pricing services’, in fact, these opinions may not conform in any way to actual trading prices or information available from other third parties.
NEITHER S&P NOR ANY OF ITS THIRD PARTY LICENSORS MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE OR ANY OTHER WARRANTY IN CONNECTION WITH ANYTHING DONE OR SUPPLIED BY S&P OR ANY THIRD PARTY LICENSOR PURSUANT TO THIS LICENSEE AGREEMENT. IN NO EVENT SHALL S&P OR ANY OF ITS THIRD PARTY LICENSORS HAVE ANY LIABILITY WITH RESPECT TO ANY CLAIM BY LICENSOR CLIENT, ANY CUSTOMER OF LICENSEE OR ANY OTHER THIRD PARTY ARISING FROM OR RELATING TO ANY OF THE SERVICES PROVIDED UNDER THIS LICENSEE AGREEMENT, INCLUDING CLAIMS RELATING TO:
THE COMPLETENESS OR ACCURACY OR TIMELINESS OF DELIVERY OF ANY DATA SUPPLIED; THE RESULTS OBTAINED FROM USE OF THE DATA; TRANSMISSION DELAYS OR OMISSIONS; INTERRUPTIONS IN SERVICE; EQUIPMENT SUPPLIED OR MAINTAINED BY S&P OR ANY OF ITS THIRD PARTY LICENSORS; EQUIPMENT, DATA, SOFTWARE OR SERVICES NOT OBTAINED PURSUANT TO THIS AGREEMENT; OR ANY OTHER CLAIM ARISING OUT OF THE USE OF THE DATA OR THE FAILURE TO SUPPLY ANY DATA.
IN NO EVENT WILL S&P OR ANY OF ITS THIRD PARTY LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST TIME, LOST MONEY, LOST PROFITS OR GOOD WILL, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE AND WHETHER OR NOT SUCH DAMAGES ARE FORESEEN OR UNFORESEEN.WITHOUT DIMINISHING THE FOREGOING, LICENSEE AGREES THAT ALL DEMANDS OF WHATEVER KIND ASSESSED AGAINST S&P OR ANY OF ITS THIRD PARTY LICENSORS ARISING OUT OF OR RELATING TO THIS LICENSEE AGREEMENT SHALL NOT CUMULATIVELY EXCEED THE AVERAGE MONTHLY AMOUNT PAID BY LICENSEE TO LICENSOR FOR THAT PORTION OF THE DATA WHICH IS AT ISSUE, WHICH AVERAGE MONTHLY AMOUNT SHALL BE CALCULATED BASED ON THE TWELVE (12) MONTH PERIOD PRECEDING THE FIRST SUCH DEMAND (OR IF THIS AGREEMENT HAS BEEN IN EFFECT FOR FEWERTHAN TWELVE (12) MONTHS, THAT PERIOD OF TIME DURING WHICH THE AGREEMENT HASBEEN IN EFFECT.) LICENSEE agrees to defend, indemnify and hold harmless S&P and its affiliates or any of its third party Licensors, from and against any cost, loss, damage, liability and expense (including reasonable attorneys’ fees) arising out of any claim (other than an intellectual property infringement claim) made by a third party against S&P or its affiliates arising out of or relating to any S&P Data used or received by LICENSEE, including any data, report, analysis or other materials based on such Data.
(6) Governing Law
This Agreement shall be governed and construed in accordance with the laws of New York State. The failure of either party to insist upon strict compliance with any term or provision of this Agreement on any occasion shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision. If any part of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that part will be enforced to the maximum extent permitted by law, and the remainder of this Agreement shall remain fully in force. S&P is deemed to be a third party beneficiary under this Agreement for all purposes under this Agreement, including for purposes of enforcing its rights with respect to the Data.
(7) Authorized Purpose
LICENSEE may use the Data to enhance the trading of bonds in Licensee’s portfolios. The Data may not be used to generate OAS based prices for any accounting purpose or as a source for and/or to create an ’evaluated price’.
(8) Authorized Usage