To the extent the subscribing person or entity (“User”) and Accounting Research & Analytics, LLC d/b/a “CFRA” do not have a separate valid and existing written agreement covering the Services (defined below), this CFRA MarketScope Advisor License (“Agreement”) will govern the access to and use of the Services by User. CFRA, a Delaware limited liability company with its principal place of business at 977 Seminole Trail, PMB 230 Charlottesville, VA 22911, enters into this Agreement for itself and the following affiliates which are responsible (where applicable) for preparing and/or providing regulated services in their respective jurisdictions: a) CFRA UK Limited (registered in England and Wales, No. 08456139; registered office address c/o Haines Watts, New Derwent House, 69-73 Theobalds Road, London WC1X 8TA, United Kingdom); and b) CFRA MY Sdn Bhd Company Number 683377-A, registered address 17-7, The Boulevard, Mid Valley City, Lingkaran Syed Putra, 59200 Kuala Lumpur, Malaysia.
1.1 Subject to the terms of this Agreement, CFRA grants to User a personal, non-exclusive, non-transferable, limited license to access and use the selected portions of CFRA MarketScope Advisor online products (“Services”) which are made available for the Subscription Period, solely for User’s own internal, personal and non-commercial purposes. CFRA reserves the right to alter or modify the Services and any portions or configurations thereof from time to time which may include, without limitation, addition or withdrawal of features and/or data or changes in instructions or documentation. “Subscription Period” means two weeks for trials or the period of time for which User has paid and which corresponds to the Services User selects.
1.2 User shall not: (a) license, sublicense, publish, display, reproduce, or distribute the Services or any components thereof in any manner; (b) provide access to the Services or any portion thereof to any other person, firm or entity; (c) use the Services as part of an intranet or other internal network; (d) create archival or derivative works based on the Services or any portion thereof;
(e) modify, reverse-engineer, disassemble, or decompile any part of the Services; or (f) use the Services, in whole or in part in any manner that competes with CFRA or its affiliates.
2. Delivery & Access.
2.1 Sharing of passwords/user IDs issued in connection with access to the Services is prohibited. In the event User gains access to the Services by virtue of User’s status as a customer of a third party platform, CFRA is not responsible for User’s inability to access the Services which is due to such third party acts or omissions.
2.2 To the extent the User is located in the United Kingdom or European Union, CFRA’s Services are regulated by the Financial Conduct Authority (“FCA”) in the United Kingdom (No. 775151), and CFRA is required by the FCA to categorize each User as either a professional or retail client, and User represents and agrees that it is and shall continue to meet the criteria of a “professional client” or “elective professional client” as those terms are defined by the FCA. User has the right to request to be classified as a “retail client” thereby requiring a higher level of regulatory protection, however CFRA might not be able to provide some or all Services to User as a retail client. As CFRA does not conduct “eligible counterparty” business (as defined by the FCA), it can’t classify User as an eligible counterparty. The above categorization is not permanent and User is responsible for keeping CFRA informed of any change that might affect User’s categorization.
User’s license hereunder shall commence upon User’s agreement hereto and payment of the applicable fees (if any) due for the selected Services, and shall continue for the Subscription Period. CFRA may terminate this Agreement upon written notice at any time and for any reason, provided such termination is effective at the end of the then-current period for which User has paid. Upon expiration or termination of this Agreement, User shall cease use of the Services and delete or destroy all data and information from the Services.
4. Proprietary Rights.
4.1 All proprietary rights in and to the Services, including without limitation, all rights to patents, copyrights, trademarks, database rights, trade secrets and other intellectual property rights inherent therein and appurtenant thereto, are and shall remain the sole and exclusive property of CFRA, its affiliates and its licensors. User acknowledges that the Services are compiled, prepared, revised, selected and arranged by CFRA, its affiliates and its licensors through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and agrees the Services constitute the valuable intellectual property of CFRA, its affiliates and its licensors.
4.2 Breach of this Agreement may cause CFRA, its affiliates and/or its licensors irreparable injury for which monetary damages are inadequate, and which may be enforced by CFRA, its affiliates or (where applicable) its licensors by means of injunctive relief without having to show harm or damages. User shall defend, indemnify and hold harmless CFRA against all damages, liabilities, and costs (including reasonable attorneys’ fees) incurred by CFRA arising from a third-party claim or litigation brought against CFRA which arises from or is related to User’s distribution, use or reliance on the Services.
5. Disclaimer & Limitation.
EXCEPT AS EXPRESSLY WARRANTED HEREIN, THE SERVICES ARE PROVIDED AS-IS, AND CFRA, ITS AFFILIATES AND THEIR THIRD- PARTY PROVIDERS HEREBY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS OR IMPLIED, AS TO ANY AND ALL PARTS OF THE SERVICES OR THE RESULTS OBTAINED BY THEIR USE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. A reference to a particular investment or security, a credit rating or any observation concerning an investment or security provided in the Services is not a recommendation to buy, sell, or hold such investment or security or make any other investment decisions and does not address the suitability for User of any investment or security. The Services should not be relied on and are not a substitute for the skill, judgment and experience of User or its advisors in making investment and other business decisions. Neither CFRA nor its third party providers shall be deemed to be acting as advisors or fiduciaries in providing the Services. NEITHER CFRA, ITS AFFILIATES NOR ANY OF THEIR THIRD-PARTY PROVIDERS GUARANTEE THE ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE SERVICES OR ANY COMPONENT THEREOF OR ANY COMMUNICATIONS BASIS, AND USER’S USE OF THE SERVICES IS AT USER’S OWN RISK. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL CFRA, ITS AFFILIATES OR ANY OF THEIR THIRD-PARTY PROVIDERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, TRADING LOSSES, OR LOST TIME OR GOOD WILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE. NOTHING IN THIS AGREEMENT SEEKS TO EXCLUDE OR LIMIT ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
6.1 “Confidential Information” for the purposes of this Agreement, shall mean all tangible and intangible data, information and trade secrets, made available by CFRA hereunder, or to which User gains access in connection with this Agreement.
6.2 Using no less than reasonable care, User shall not disclose Confidential Information to any third party and/or use Confidential Information except as authorized herein. The obligations to protect Confidential Information described herein shall not apply to information that (i) was previously known to User free of any obligation to keep it confidential; (ii) is or becomes publicly known other than as a result of a breach hereof by User, (iii) is independently developed by User without the use or benefit of Confidential Information or (iv) User is compelled to disclose by a governmental agency or a court of law having proper jurisdiction, to the extent so disclosed.
7. Committee on Uniform Security Identification Procedures of the American Bankers Association & SEDOL.
a. User agrees and acknowledges that the CUSIP Database and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, CUSIP Global Services ("CGS") and the American Bankers Association ("ABA"), and that no proprietary rights are being transferred to User in such materials or in any of the information contained therein. Any use by User outside of the clearing and settlement of transactions requires a license from CGS, along with an associated fee based on usage. User agrees that misappropriation or misuse of such materials will cause serious damage to CGS and ABA, and that in such event money damages may not constitute sufficient compensation to CGS and ABA; consequently, User agrees that in the event of any misappropriation or misuse, CGS and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CGS and ABA may be entitled. User agrees that User shall not publish or distribute in any medium the CUSIP Database or any information contained therein or summaries or subsets thereof to any person or entity except in connection with the normal clearing and settlement of security transactions. User further agrees that the use of CUSIP numbers and descriptions is not intended to create or maintain, and does not serve the purpose of the creation or maintenance of, a master file or database of CUSIP descriptions or numbers for itself or any third party recipient of such service and is not intended to create and does not serve in any way as a substitute for the CUSIP MASTER TAPE, PRINT, DB, INTERNET, ELECTRONIC, CD-ROM Services and/or any other future services developed by the CGS.
NEITHER CGS, ABA NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO USER ON AN "AS IS" BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS. NEITHER CGS, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CGS, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY USER FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CGS AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.
User agrees that the foregoing terms and conditions shall survive any termination of its right of access to the materials identified above.
b. User acknowledges that the Stock Exchange Daily Official List (“SEDOL”) data is the intellectual property of the London Stock Exchange plc, and that User shall not reproduce, extract, or distribute SEDOL data without obtaining an appropriate license from the London Stock Exchange plc for such activities.
8.1 Governing Law. This Agreement is governed by the laws of the State of Delaware, without regard to principles of conflict of laws. The parties hereto will submit all disputes related to this Agreement to the courts in the County of New Castle in State of Delaware, and each party consents to the exclusive jurisdiction of such courts and waives any objection it may have with respect to venue or personal jurisdiction.
8.2 Assignment and Merger. In no event may User assign its rights or delegate its obligations hereunder or any portion thereof without CFRA’s prior written consent. This Agreement constitutes the sole and complete agreement between the parties with regard to its subject matter, and may not be modified or amended except by a writing signed by both parties hereto.
8.3 Waiver. No waiver of any breach of any provision of this Agreement by either party or the failure of either party to insist on the exact performance of any provision of this Agreement shall constitute a waiver of any prior, concurrent or subsequent breach of performance of the same or any other provisions hereof, and no waiver shall be effective unless made in writing.
8.4 Severability & Survival. If any of the provisions of this Agreement shall be or become invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the remaining provisions of this Agreement. Instead, this entire Agreement shall be construed as though not containing the invalid or unenforceable provision(s), and the rights and obligations of the parties shall be construed and enforced accordingly. The provisions of this Agreement which by their nature ought reasonably to survive termination or expiration of the term shall survive any such termination or expiration and continue in full force and effect.