1.1 These terms and conditions apply to the Licensed Material (defined below) licensed by Accuity Inc. (“Accuity”) to the entity or individual named (the “Customer”) on the applicable Accuity Lookup Product Subscription Order Form or any separate agreement that may exist between Accuity and Customer referencing these terms and conditions (together with these terms and conditions, “the Order”) for the supply of the Accuity hosted look-up tools specified on the Order (“the Products”) and the use of the data, information and editorial content and any software (together “Licensed Material”) included in the Products.
1.2 Products on the Order Form may be provided by one or more of Accuity’s affiliates, including but not limited to Reed Business Information Limited (“RBI”). Licensed Material contained in the Products is supplied by Accuity under license from its affiliates. Customer agrees that Accuity’s affiliates shall be entitled to enforce these terms and conditions in respect of such Licensed Material as though they were a party to the Order.
1.3 The Order shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of law principles. Any action or proceeding arising out of or relating to this Agreement shall be instituted only in the United States District Court for the Southern District of New York or a New York State Court located in New York county.
2. Access to the Product
2.1 Customer will comply with any instructions relating to the security of the Products issued by Accuity. A specially designated unique username and password will be allocated by Accuity to named employees of Customer who are authorized to access and use the Products in accordance with the Order and these terms and conditions (“Authorized Users”). Usernames are unique to the named individual Authorized User and must not be shared or transferred. Accuity may alter usernames and/or passwords from time to time in accordance with its standard security procedures and shall inform the Customer accordingly.
2.2 Customer shall notify Accuity promptly if it becomes aware or suspects that any unauthorized person has obtained a password. Accuity will alter the password and inform Customer accordingly. Where Customer notifies Accuity by telephone, such notification shall be confirmed in writing by Customer within forty eight (48) hours.
3.1 Accuity grants Customer a non-exclusive, non-transferable license for Customer and its Authorized Users to access and use the Products and the Licensed Material for its internal business use only subject to and in accordance with these terms and conditions, and for this purpose to:
(a) search, interrogate, and display the data accessed through the Licensed Material (“Licensed Data”) on screen primarily for one person’s exclusive use; and
(b) make a limited number of printouts of items included in the Licensed Data using the printing commands contained in the Product.
3.2 Customer may additionally, for the sole purpose of evidencing that appropriate verification and identification procedures are performed as required by Law in relation to the searches carried out by Customer using the Product (“Regulatory Purposes”) store relevant extracts of the Licensed Data (“Stored Material”).
In this Section 3.2 “Law” means as required by applicable declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule, or other binding restriction of or by any federal, state, municipal, local, territorial, or other governmental department, regulatory authority, judicial, or administrative body (whether domestic, international, or foreign), as amended from time to time.
3.3 Customer acknowledges and agrees that the copyright, database rights and all other intellectual property rights comprised in or relating to the Licensed Material and all compilations thereof and in documentation supplied by Accuity to Customer (“Documentation”) are and shall remain the sole property of Accuity, its affiliates or (as applicable) their third party licensors. Except as expressly permitted hereunder, no part of the Licensed Material or Documentation may be reproduced in any form or by any means and may not be used to prepare or compile directories, database, mailing lists or other derivative works without the prior written permission of Accuity.
3.4 Customer may not use automated applications or software to access, search or download Licensed Material.
3.5 Customer shall not use or permit the use of the Products or Licensed Material otherwise than for the purpose of its normal business activities and subject to Section 3.7 shall permit no-one other than its Authorized Users to use or have access to the Products, Licensed Material or any parts thereof.
3.6 Customer may not:
(a) make multiple printouts or copies of Licensed Data for distribution to any party other than Authorized Users (“Unauthorized Persons”);
(b) re-sell or redistribute the Product or any parts of the Licensed Material to others;
(c) make the Product or any Licensed Material available to Unauthorized Persons on a local area network, a wide area network or on any intranet or extranet;
(d) abstract, download, store, reproduce, transmit, display, copy, modify or use the Licensed Material other than as permitted above;
(e) remove any copyright or other proprietary rights notice contained or included in the Licensed Material;
(f) use or authorize the use of software incorporated in the Product (“Licensed Software”) other than as part of the Products; or
(g) modify, reverse engineer or decompile the Licensed Software.
3.7 Upon termination or expiration of the Order for any reason Customer may: (i) retain, for such period as is required by Law, a copy of such Stored Material as are required for Regulatory Purposes; and (ii) allow such third parties as required by Law to refer to such Stored Material for Regulatory Purposes only in relation to searches performed by Authorized Users prior to the effective date of termination.
3.8 Sections 3.3 and 7.5 of these terms and conditions shall continue to apply to Stored Material.
3.9 Additional terms and conditions relating to the license of credit ratings and other third party data are incorporated into these terms and conditions and are set forth below.
4. Changes to the Products
4.1 Accuity reserves the right from time to time to make alterations to the Products and their parts, withdraw any part of parts of the Products, to make alterations in the times of Product availability and the rules of operation relating thereto and in particular to:
(a) make changes in the normal service hours and in user identification procedures provided that Accuity shall not make changes in the normal service hours except in the case of emergency without giving at least fourteen (14) days’ notice to Customer;
(b) add, amend, delete or otherwise vary all or any of the Licensed Data;
(c) withdraw the Products from any particular network through which they are from time to time available or to make the Products available through any additional or alternative network.
4.2 If through the fault of Accuity (which shall not include any circumstances beyond Accuity’s reasonable control) any Product is suspended or interrupted or is otherwise temporarily unavailable or a fault occurs in the Product which prevents Customer from effectively being able to gain access to the Licensed Data during normal service hours, Accuity will take all necessary steps to rectify the fault as soon as reasonably practicable but shall not be liable for any loss or damage whatsoever suffered by Customer as a result.
5. No Warranties
5.1 The Licensed Data is provided on an ‘as is’ ‘as available’ basis. To the extent permitted by applicable law, Accuity makes no express warranty or representation regarding the Products or the Licensed Material and excludes any implied warranties including but not limited to any implied warranty that the information contained in the Licensed Data is accurate or up to date or that it is suitable for any particular purpose. All conditions, warranties or representation express or implied as to the operation or supply of the Products are hereby expressly excluded.
6. License Fee
6.1 Customer will pay the fee payable to Accuity as set out in the Order or otherwise communicated to Customer by Accuity, together with applicable value added tax or other sales tax, in the manner provided in the Order. Accuity may assess and collect late charges on past due invoices of up to one and one half (1 ½) percent per month or the highest amount permitted by law, whichever is lower.
6.2 Accuity may, by giving ten (10) days’ written notice, require Customer to provide written verification, certified by the Compliance Officer of Customer, that the Products and Licensed Material are being used in accordance with the Order and these terms and conditions and also require the Customer to provide the details of the location, applications/systems within which any Stored Material is retained. If Accuity reasonably suspects that Customer is not using the Products and/or Licensed Material in accordance with the Order and these terms and conditions then Accuity may by giving ten (10) days’ written notice, require Customer to provide such access to Customer premises, computer systems and relevant documents (during Customer’s business hours on the business days) and cooperate fully to enable Accuity to verify Customer’s compliance with the Order and these terms and conditions.
7. Limitation of Liability; Indemnification
7.1 The total aggregate liability of Accuity, its affiliates and their licensors to Customer for any direct loss arising out of the use of any Product by Customer or its Authorized Users is limited to an amount equal to the aggregate amount paid by Customer to Accuity for the use of the Product during the period of 12 months prior to the date the loss was incurred.
7.2 NEITHER ACCUITY, ITS AFFILIATES OR THEIR LICENSORS SHALL BE LIABLE TO CUSTOMER UNDER THIS ORDER OR IN CONNECTION WITH LICENSED MATERIAL FOR ANY SPECIAL, INCIDENTAL, INDIRECT AND/OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES
7.3 Nothing in these terms and conditions is intended to limit the liability of any person for death or personal injury caused by the negligence of that person, its employees or agents, except to the extent permitted by applicable law.
7.4 While the employees, servants and agents of Accuity and its affiliates may be authorized to assist Customer by means of help-desk and support facilities, any assistance given by such employee, servant or agent shall be solely at Customer’s risk and neither Accuity nor its affiliates will be liable for any loss or damage suffered by Customer arising there from.
7.5 Customer shall indemnify Accuity and its affiliates against any liabilities, losses, damages, costs or expenses whatsoever caused incurred by Accuity directly or indirectly as a result of any claim or course of action made or instituted against Accuity by any third party arising from the unauthorized use of the Products by Customer or its Authorized Users.
7.6 Accuity will defend, indemnify and hold Customer harmless, and at Accuity’s option, settle any action or proceeding of any kind or description based upon a third party’s claim of patent, copyright or trademark infringement asserted against Customer in relation to the Licensed Materials (a “Claim”), provided: (i) the Licensed Materials are used as provided by Accuity; (ii) Accuity is given prompt, written notice of any such claim; (iii) Accuity is given the right to control and direct the investigation, defense and settlement of each such Claim; and (iv) Customer reasonably cooperates with Accuity, at Accuity’s expense, in connection with the foregoing and makes no admission or offer of settlement without the prior written authority of Accuity. This indemnity does not extend to any modifications to the Licensed Materials by Customer where; (i) such modification is the cause of the Claim; or (ii) Customer’s use of the Licensed Materials in combination with any other product or resource not furnished or authorized by the Accuity where such combination is the cause of the Claim. Should the Licensed Materials, become, or in Accuity’s opinion are likely to become, the subject of a Claim, Customer shall permit Accuity, at Accuity’s option and expense, and as Customer’s sole and exclusive remedy, either: (i) to procure for Customer the right to continue using the Licensed Materials; (ii) to replace or modify the same so that they become non-infringing; or (iii) to grant Customer a refund of the unused portion of the fees paid by Customer in relation to the relevant Licensed Materials.
7.7 The Products may contain links to external sites. Accuity and its affiliates are not responsible for and have no control over the content of such sites and, to the extent permissible by law, disclaim all responsibility and liability in relation to information available on such sites or accessible from the Products via hypertext links.
8. Use of the Products
8.1 Each party shall comply with all applicable laws and regulations in relation to the supply, receipt, use or access to the Products and the Licensed Materials.
8.2 It shall be the responsibility of Customer to ensure that its terminals and other associated equipment are compatible with the requirements of the Products and Customer shall pay all relevant charges associated with such hardware, equipment or other network components.
8.3 Customer shall ensure that any copies of the Licensed Material are permanently deleted and purged from its equipment before disposal of the equipment.
9. Data Protection
9.1 Each party shall comply with all data protection and privacy regulations applicable to it in respect of any personally identifying information relating to any individual (“Personal Data”) contained in the Licensed Materials. Customer may make no use of such Personal Data except as expressly authorized by the Product or by applicable law.
10.1 Without prejudice to any other right or remedy which may be available to it Accuity may terminate the Order immediately if:
(a) Customer is in breach of Section 3 above;
(b) Customer fails to make any payment to Accuity within fourteen (14) days of the due date or is otherwise in breach of the Order and fails to remedy such breach within fourteen (14) days after written notice from Accuity specifying the breach and requiring it to be remedied; or (c) Customer at any time becomes insolvent or bankrupt (or the equivalent in any jurisdiction) or enters into any arrangements with or for the benefit of its creditors or be wound up compulsorily or voluntarily (otherwise than for the purpose of a bona fide reconstruction or amalgamation without insolvency) or has a receiver appointed of all or any part of its undertaking or assets ceases or threatens to cease to carry on business.
10.2 Upon termination for any reason the licenses granted Accuity will cease to make the Products available to Customer, all indebtedness of Customer to Accuity shall become immediately due and Customer will promptly return to Accuity all documentation relating to the Products. Subject to Section 3.6, Customer shall, within thirty (30) days of termination or expiration of the Order for any reason; (i) discontinue all use of the Products and Licensed Material; (ii) purge all copies in any format (backup or otherwise) of the Licensed Data; and (iii) provide written certification to Accuity that Customer has complied with this Section 10.2.
10.3 Accuity shall additionally be entitled to suspend supply of the Products to Customer if it reasonably suspects that Customer is in breach of these terms and conditions and may impose a reasonable charge to Customer for restoring the Products.
10.4 The Order may be terminated immediately by Accuity without liability in the event that Customer, any permitted beneficiary or any Authorized User is listed on the U.S. Commerce Department’s Denied Persons List, Entity List or on the Treasury Department’s List of Specially Designated Nationals or Blocked Persons or any other list of any such departments of sanctioned persons and entities. For the avoidance of doubt, in the event of termination pursuant to this Section 10.4, no prepaid fees shall be refunded to Customer.
11.1 Customer may not assign (including in connection with the acquisition of any equity interest of Customer of greater than twenty five percent (25%)), transfer, mortgage, charge or part with any of its rights, duties or obligations under the Order to any third party without the prior written consent of Accuity. Any purported assignment will be null and void.
11.2 The Order and these terms and conditions override or supersede any terms or conditions emanating from Customer and all or any prior promises, representations, understandings, agreements or arrangements oral or written, express or implied, between the parties at any time relating to the supply of the Products and no alteration or amendment shall be effective unless made in writing and signed by a duly authorized signatory of Customer and Accuity.
11.3 Failure by Accuity to exercise or enforce any rights, or the giving of any forbearance, delay or indulgence, shall not be construed as a waiver of its rights under the Order or otherwise.
Third Party Data Terms and Conditions applicable for Bankers Almanac, Due Diligence Repository, Credit Risk and sortingcodes.co.uk
1. S.W.I.F.T. SCRL
BIC data used with permission of S.W.I.F.T. SCRL, database rights reserved, 2014.
2. VocaLink Limited
UK Clearing Code information contained in this product is obtained from the Extended Industry Sorting Code Directory (EISCD) provided by VocaLink Limited. All property rights (including, but not limited to, intellectual property rights) of the EISCD, Sorting Code, and Sorting Code Data are vested in UK Payments Administration Limited, which it holds on behalf of its Member Institutions.
3. Fitch Ratings
Some of the information contained within the Service is supplied by Fitch Ratings (“Fitch Information”).
Copyright © 2014 by Fitch, Inc., Fitch Ratings Ltd. (“Fitch”) and its subsidiaries. All of the Fitch Information is based on information obtained from issuers, other obligors, underwriters, and other sources which Fitch believes to be reliable. Fitch does not audit or verify the truth or accuracy of any such information. As a result, the Fitch Information in this report is provided “as is” without any representation or warranty of any kind. A Fitch rating is an opinion as to the creditworthiness of a security. The rating does not address the risk of loss due to risks other than credit risk, unless such risk is specifically mentioned. Fitch is not engaged in the offer or sale of any security. A report providing a Fitch rating is neither a prospectus nor a substitute for the information assembled, verified and presented to investors by the issuer and its agents in connection with the sale of the securities. Ratings may be changed, suspended, or withdrawn at anytime for any reason in the sole discretion of Fitch. Fitch does not provide investment advice of any sort. Ratings are not a recommendation to buy, sell, or hold any security. Ratings do not comment on the adequacy of market price, the suitability of any security for a particular investor, or the tax-exempt nature or taxability of payments made in respect to any security. Fitch receives fees from issuers, insurers, guarantors, other obligors, and underwriters for rating securities. Such fees generally vary from US$1,000 to US$750,000 (or the applicable currency equivalent) per issue. In certain cases, Fitch will rate all or a number of issues issued by a particular issuer, or insured or guaranteed by a particular insurer or guarantor, for a single annual fee. Such fees are expected to vary from US$10,000 to US$1,500,000 (or the applicable currency equivalent). The assignment, publication, or dissemination of a rating by Fitch shall not constitute a consent by Fitch to use its name as an expert in connection with any registration statement filed under the United States securities laws, the Financial Services and Markets Act of 2000 of Great Britain, or the securities laws of any particular jurisdiction.
4. Moody’s® Ratings
Some of the information contained within the Service is supplied by Moody’s Analytics, Inc (“Moody’s Information”).
© 2014 , Moody’s Analytics, Inc. and its licensors (“Moody’s”). Moody’s ratings and other information (“Moody’s Information”) are proprietary to Moody’s and/or its licensors and are protected by copyright and other intellectual property laws. Moody’s Information is licensed by Moody’s. MOODY’S INFORMATION MAY NOT BE COPIED OR OTHERWISE REPRODUCED, REPACKAGED, FURTHER TRANSMITTED, TRANSFERRED, DISSEMINATED, REDISTRIBUTED OR RESOLD, OR STORED FOR SUBSEQUENT USE FOR ANY SUCH PURPOSE, IN WHOLE OR IN PART, IN ANY FORM OR MANNER OR BY ANY MEANS WHATSOEVER, BY ANY PERSON WITHOUT MOODY’S PRIOR WRITTEN CONSENT.
Moody’s® is a registered trademark.
All Moody’s Information furnished pursuant to this Agreement is obtained by Moody’s from sources believed by it to be accurate and reliable. Because of the possibility of human and mechanical error as well as other factors, however, all Moody’s Information is provided “AS IS” without warranty of any kind, and MOODY’S, IN PARTICULAR, MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF ANY SUCH MOODY’S INFORMATION.
Under no circumstance shall Moody’s have any liability to Customer or any other person or entity for (a) any loss, damage or other injury in whole or in part caused by, resulting from or relating to, any error (negligent or otherwise), or any other circumstance or contingency within or outside the control of Moody’s or any of its directors, officers, employees or agents, or Licensors, in connection with the procurement, collection, compilation, analysis, interpretation, communication, publication or delivery of any Moody’s Information, or (b) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR COMPENSATORY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF MOODY’S SHALL HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, IN EITHER CASE CAUSED BY, RESULTING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, ANY MOODY’S INFORMATION. Without limiting the foregoing, in no event shall the total liability of Moody’s licensors in the aggregate to Customer arising from this Agreement (based on any cause of action whatsoever) exceed the fees actually paid by Customer for Moody’s Information within the twelve (12) month period immediately preceding the date upon which the relevant claim accrued.
Customer agrees and acknowledges that the Moody’s Information is and shall remain the valuable intellectual property owned by, or licensed to, Moody’s and that no proprietary rights are being transferred to Customer in such materials or in any of the information contained therein. Customer agrees that misappropriation or misuse of such materials shall cause serious damage to Moody’s and that in such event money damages may not constitute sufficient compensation to Moody’s; consequently, Customer agrees that in the event of any misappropriation or misuse, Moody’s shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which Moody’s may be entitled.
Moody’s Investors Services, Inc. (“MIS”) hereby discloses that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MIS have, prior to assignment of any rating, agreed to pay to MIS for the appraisal and rating services rendered by it fees ranging from $1,500 to $2,400,000. Moody’s Corporation (“MCO) and its wholly-owned credit rating agency subsidiary, MIS also maintain policies and procedures to address the independence of MIS’s ratings and rating processes. Information regarding certain affiliations that may exist between directors of MCO and rated entities, and between entities who hold ratings from MIS and have also publicly reported to the SEC an ownership interest in MCO of more than 5%, is posted annually on Moody’s website at www.moodys.com under the heading “Shareholder Relations — Corporate Governance — Director and Shareholder Affiliation Policy.”
Customer expressly agrees, on behalf of itself and its Authorized Users that it permits to use any Information (“User”), that (a) the credit ratings and other opinions, and valuations, quotes, statistical, quantitative or other information contained in the Moody’s Information are, and will be construed solely as, statements of opinion and not statements of fact or recommendations to purchase, hold or sell any securities, (b) the Moody’s Information will be weighed solely as one factor in any investment decision made by or on behalf of Customer or any User, and (c) it will accordingly make its own study and evaluation of each security, and of each issuer and guarantor of, and each provider of credit support for, each security that it may consider purchasing, holding or selling.
5. Standard & Poor’s Ratings
Some of the information contained within the Service is supplied by Standard & Poor’s Financial Services LLC a subsidiary of The McGraw-Hill Companies, Inc (“S&P Information”).
Copyright © 2014 by Standard & Poor’s Financial Services LLC (“S&P”) a subsidiary of The McGraw-Hill Companies, Inc. All rights reserved.
No S&P Information (including ratings, credit-related analyses and data, model, software or other application or output therefrom) or any part thereof (S&P Information) may be modified, reverse engineered, reproduced or distributed in any form by any means, or stored in a database or retrieval system, without the prior written permission of S&P. S&P Information shall not be used for any unlawful or unauthorized purposes. S&P, its affiliates, and any third-party providers, as well as their directors, officers, shareholders, employees or agents (collectively S&P Parties) do not guarantee the accuracy, completeness, timeliness or availability of the S&P Information. S&P Parties are not responsible for any errors or omissions, regardless of the cause, for the results obtained from the use of the S&P Information, or for the security or maintenance of any data input by the user. S&P Information is provided on an “as is” basis. S&P PARTIES DISCLAIM ANY AND ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, FREEDOM FROM BUGS, SOFTWARE ERRORS OR DEFECTS, THAT THE S&P INFORMATION’S FUNCTIONING WILL BE UNINTERRUPTED OR THAT THE S&P INFORMATION WILL OPERATE WITH ANY SOFTWARE OR HARDWARE CONFIGURATION. In no event shall S&P Parties be liable to any party for any direct, indirect, incidental, exemplary, compensatory, punitive, special or consequential damages, costs, expenses, legal fees, or losses (including, without limitation, lost income or lost profits and opportunity costs) in connection with any use of the S&P Information even if advised of the possibility of such damages.
Credit-related analyses, including ratings, and statements in the S&P Information are statements of opinion as of the date they are expressed and not statements of fact or recommendations to purchase, hold, or sell any securities or to make any investment decisions. S&P assumes no obligation to update the S&P Information following publication in any form or format. The S&P Information should not be relied on and is not a substitute for the skill, judgment and experience of the user, its management, employees, advisors and/or clients when making investment and other business decisions. S&P’s opinions and analyses do not address the suitability of any security. S&P does not act as a fiduciary or an investment advisor. While S&P has obtained information from sources it believes to be reliable, S&P does not perform an audit and undertakes no duty of due diligence or independent verification of any information it receives.
S&P keeps certain activities of its business units separate from each other in order to preserve the independence and objectivity of their respective activities. As a result, certain business units of S&P may have information that is not available to other S&P business units. S&P has established policies and procedures to maintain the confidentiality of certain non-public information received in connection with each analytical process.
S&P may receive compensation for its ratings and certain credit-related analyses, normally from issuers or underwriters of securities or from obligors. S&P reserves the right to disseminate its opinions and analyses. S&P’s public ratings and analyses are made available on its Web sites, www.standardandpoors.com (free of charge), and www.ratingsdirect.com and www.globalcreditportal.com (subscription), and may be distributed through other means, including via S&P publications and third-party redistributors. Additional information about our ratings fees is available at www.standardandpoors.com/usratingsfees.
6. Use of Credit Ratings by Customers in Australia
Customer accepts and acknowledges that provision of credit rating information to Customer is based on, and conditional on, Customer’s representation that it is a “Wholesale Client” (as such is defined in Chapter 7 of the Corporations Act of 2001 (Australia)). In addition, Customer acknowledges that credit ratings and/or related research provided to Customer in the Services are not intended for, and should not be distributed to any person other than a Wholesale Client.