1.1 These terms and conditions apply to the Licensed Material (defined below) licensed by Accuity Inc. (‘Accuity’) to the customer named (the “Customer”) on the applicable BankersAccuity Subscription Order Form or any separate agreement that may exist between Accuity and such Customer (together with these terms and conditions, “the Order”) for the supply of the BankersAccuity hosted look-up tools selected by the Customer and 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 included on the order form may be provided by Accuity’s affiliate, Reed Business Information Limited (“RBI”). Licensed Material contained in such Products is supplied by Accuity under license from Accuity. The Customer agrees that RBI shall be entitled to enforce these terms and conditions in respect of such Licensed Materials as though it 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 The Customer will comply with any instructions relating to the security of the Products issued by Accuity. A specially designated username and password will be allocated by Accuity to the Customer or named employees of the Customer who are authorized to access and use the Products (‘‘Authorized Users’) for the sole use of the Customer or Authorized Users to access the Products and the Licensed Material. 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 The 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 the Customer accordingly. Where the Customer notifies Accuity by telephone, such notification shall be confirmed in writing by the Customer within 48 (forty eight) hours.
3.1 Accuity grants to the Customer a non-exclusive, non-transferable license for the 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;
(b) make a limited number of printouts of items included in the Licensed Data using the printing commands contained in the Product;
(c) down-load and store in machine readable format a single copy of insubstantial portions of the Licensed Data; and
(d) down-load and store a single copy of relevant Licensed Data for the Customer’s audit and regulatory purposes but not for any other purpose.
3.2 The Customer hereby acknowledges 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 pursuant to the Products (“Documentation”) are and shall remain the sole property of Accuity, RBI or (as applicable) their third party licensors. Except as expressly permitted hereunder, no part of the Licensed Materials 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.
3.3 The Customer may not use automated applications or software to access, search or download Licensed Material.
3.4 The 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 shall permit no-one other than its Authorized Users to use or have access to the Products, Licensed Material or any parts thereof.
3.5 The 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 or use the Licensed Materials other than as permitted above;
(e) remove any copyright or other proprietary rights notice contained or included in the Licensed Materials;
(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.
3.6 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 Product
4.1 Accuity reserves the right from time to time to make alterations to the Products or any part or parts thereof or to withdraw any part of parts thereof and to make alterations in the times of the availability of the Products and the rules of operation relating thereto and in particular:
(a) to 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 14 (fourteen) days’ notice to the Customer;
(b) to add, amend, delete or otherwise vary all or any of the Licensed Data;
(c) to withdraw the Products from any particular network through which it 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 the 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 the Customer as a result.
5. No Warranties
5.1 To the extent permitted by applicable law, Accuity makes no express warranty or representation regarding the Products or the Licensed Materials 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 Product are hereby expressly excluded.
6. License Fee
6.1 The Customer will pay the fee payable to Accuity as set out in the Order or otherwise communicated to the Customer by Accuity, together with applicable value added tax or other sales tax, in the manner provided in the Agreement or Order Form. 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.
7. Limitation of Liability; Indemnification
7.1 The total aggregate liability of Accuity, RBI and their licensors to the Customer for any direct loss arising out of the use of any Product by the Customer or its Authorized Users is limited to an amount equal to the aggregate amount paid by the 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, RBI or their licensors SHALL BE LIABLE TO THE Customer UNDER THIS ORDER OR IN CONNECTION WITH LICENSED MATERIALS 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 Accuity may be authorized to assist the Customer by means of help-desk and support facilities, any assistance given by such employee, servant or agent shall be solely at the Customer’s risk and neither Accuity nor Accuity will be liable for any loss or damage suffered by the Customer arising there from.
7.5 The Customer shall indemnify Accuity and Accuity 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 the Customer or its Authorized Users.
7.6 Accuity will defend, indemnify and hold Licensee 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 Licensee 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) Licensee 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 the Licensee where; (i) such modification is the cause of the Claim; or (ii) the Licensee’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, Licensee shall permit Accuity, at Licensor’s option and expense, and as Licensee’s sole and exclusive remedy, either: (i) to procure for the Licensee 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 the Licensee a refund of the unused portion of the fees paid by the Licensee in relation to the relevant Licensed Materials.
7.7 The Products may contain links to external sites. Accuity and RBI 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 The Customer shall use the Products and the Licensed Materials in accordance with all laws and regulations applicable to the Customer.
8.2 It shall be the responsibility of the Customer to ensure that its terminals and other associated equipment are compatible with the requirements of the Products and the Customer shall pay all relevant charges associated with such hardware, equipment or other network components of Customer.
8.3 The Customer shall ensure that any copies of the Licensed Material are deleted 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. The 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) the Customer is in breach of clause 3 above;
(b) the Customer fails to make any payment to Accuity within 14 (fourteen) days of the due date or is otherwise in breach of the Order and fails to remedy such breach within 14 (fourteen) days after written notice from Accuity specifying the breach and requiring it to be remedied; or(c) the 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 the Customer, all indebtedness of the Customer to Accuity shall become immediately due and the Customer will forthwith return to Accuity all documentation relating to the Products.
10.3 Accuity shall additionally be entitled to suspend supply of the Products to the Customer if it reasonably suspects that the Customer is in breach of these terms and conditions and may impose a reasonable charge to the 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 The Customer may not assign (including in connection with the acquisition of any equity interest of Customer of greater than 25 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 form and these terms and conditions override or supersede any terms of conditions emanating from the 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 Product and no alteration or amendment shall be effective unless made in writing and signed by a truly authorized signatory of the 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
The Customer accepts and acknowledges that provision of credit rating information to the Customer is based on, and conditional on, the 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, the Customer acknowledges that credit ratings and/or related research provided to the Customer in the Services are not intended for, and should not be distributed to any person other than a Wholesale Client.