ATTENTION: USING OUR WEBSITES INDICATES THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT ACCEPT, DO NOT USE OUR WEBSITES.
1.1 Subject to the terms of this Agreement, CFRA grants to User a non-exclusive, non-transferable, limited license to permit the User to access and use the Lowry Research content, information and data (collectively "Services") for which he/she has paid, solely for User's own internal personal use. User shall not (a) license, sublicense, transfer, sell, resell, publish, reproduce, and/or otherwise redistribute the Services or any components thereof in any manner (including, but not limited to, via or as part of any internet site); or (b) provide access to the Services or any portion thereof to any person, firm or entity. User shall take reasonable precautions to prevent any unauthorized access, use or distribution of the Services.
1.2 User shall not (a) use the Services as part of User's intranet or other internal network; or (b) create archival or derivative works based on the Services or any portion thereof. User shall not modify, reverse-engineer, disassemble, decompile or store the Services or any software contained therein.
1.3 User shall not use the Services, in whole or in part in any manner that competes with CFRA or its affiliates. User shall not use or permit use of the Services or any data included therein in connection with the creation, structuring, development, managing, marketing and/or promotion of any index, financial instrument or other investment product that is based on, or incorporates all or any portion of the Services. User shall not use the Services as a part of or in any document relating to any public offering of a security or instrument authorized or listed on any securities exchange.
1.4 CFRA reserves the right to alter or modify the Services and any portions or configurations thereof from time to time. Such alterations and/or modifications may include, without limitation, addition or withdrawal of features and/or data or changes in instructions and/or documentation. If such alterations or modifications fundamentally and detrimentally change the nature of or the rights granted in the Services, User may terminate the affected Services by providing CFRA 30 days' written notice, and User shall be entitled to a pro rata refund of any fees that User has paid in advance for the terminated Services.
2. Delivery & Access.
2.2 To the extent CFRA's Services are regulated by the Financial Conduct Authority ("FCA") in the U.K., CFRA is required by the FCA to categorize each User as either a professional or retail client, and based on the information available, User is hereby categorized as a "professional client". 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 as a professional client.
3.1 The Services shall commence on the date User is granted access to the Services and shall continue for the Initial Term of one (1) year. Upon expiration of the Initial Term, this Agreement shall automatically renew for successive one (1) year renewal terms unless either party notifies the other in writing of its decision not to renew at least thirty (30) days prior to the expiration of the term then in effect.
3.2 Either party may terminate this Agreement in the event of a material breach thereof which is not cured within thirty (30) days of written notice of such material breach; provided, however, such termination shall not take effect if the breaching party cures or corrects the breach within such thirty (30) day notice period.
3.3 Either party may terminate this Agreement upon written notice to the other if the other party is adjudicated as bankrupt or if a petition in bankruptcy is filed by or against the other party or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy act or insolvency laws.
3.4 User's right to receive and use those portions of the Services provided by CFRA pursuant to licenses granted to CFRA by Third-party Providers (as defined below) is subject to automatic termination without liability on the part of CFRA if such licenses are terminated for any reason. If CFRA determines for any reason to generally discontinue offering or providing the Services or a portion thereof, CFRA may terminate that portion of the Services that relates to such discontinued material; in such event, CFRA sole liability shall be to make a prorated refund of any unearned fees prepaid by User for the terminated Services. "Third-party Provider" means a supplier of data, information, software, services or other items that are part of or otherwise used in connection with the Services.
3.5 Upon termination of this Agreement, User shall cease use of the Services and use commercially reasonable efforts to delete or destroy all Services including those contained in User's electronic systems, except to the extent required by and for the sole purpose of regulatory compliance and/or data backup processes.
4. Fees & Invoicing.
4.1 As consideration for the license granted by CFRA under this Agreement, User shall pay the annual fees for the selected Services plus all applicable value-added, sales, use and similar taxes. CFRA may increase the fees and charges hereunder for any renewal term hereof by providing thirty days prior written notice, which may be in the form of an invoice. User shall reimburse CFRA for its costs of collection (including reasonable attorneys' fees and court costs) for User's failure to pay the fees due hereunder. In addition to all other rights and remedies available to CFRA at law or in equity, CFRA may suspend delivery of the Services for as long as any amount due remains unpaid.
5. Proprietary Rights.
5.1 All proprietary rights in and to the Services, and any component thereof, 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/their Third-party Providers. The Services are compiled, prepared, revised, selected and arranged by CFRA, its affiliates and their Third-party Providers through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the Services constitute the valuable intellectual property of CFRA, its affiliates and its/their Third-Party Providers.
5.2 The trademarks, service marks, and logos of CFRA, including without limitation, Lowry onDemand, LM Reports and Lowry Global, (collectively the "Trademarks") are registered and unregistered trademarks or service marks of CFRA. Nothing in this Agreement or CFRA's provision of Services may be construed as granting User, by implication, estoppel, or otherwise, any license or right to use any Trademark for any purpose without the prior written permission of CFRA specific for each such use.
5.3 Breach of this Agreement may cause CFRA, its affiliates and/or their Third-party Providers irreparable injury for which monetary damages are inadequate. Any breach hereof by User may be enforced by CFRA, its affiliates or (where applicable) their Third-party Providers by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other rights and remedies that may be available. In the event User is in violation of this Section 3, CFRA shall have the right to suspend the Services.
6. 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 AS TO THE SERVICES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, AS WELL AS THE INFORMATION, DATA, SOFTWARE OR PRODUCTS CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR 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 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 in making investment and other business decisions. Neither CFRA nor 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. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF CFRA, ITS AFFILIATES, AND THEIR THIRD-PARTY PROVIDERS IN CONNECTION WITH THE SERVICES AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE FEES PAYABLE BY USER TO CFRA UNDER THIS AGREEMENT FOR THE SERVICES. NOTHING IN THIS AGREEMENT SEEKS TO EXCLUDE OR LIMIT ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY USER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
7. Committee on Uniform Security Identification Procedures of the American Bankers Association ("CUSIP") & SEDOL. To the extent Services contain CUSIP or SEDOL data, the following applies.
7.1 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.
7.2 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 will be 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 jurisdiction of such courts and waives any objection it may have with respect to venue or personal jurisdiction.
8.2 Assignment. In no event may User assign its rights or delegate its obligations hereunder or any portion thereof without CFRA's prior written consent.
8.3 Force Majeure. Neither party shall be responsible for delays or failure in performance resulting from acts beyond the control of such party, such as acts of God, strikes, lockouts, riots, acts of war, acts of terrorism, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.
8.4 Entire Agreement. 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.
8.5 Amendments. No amendment to this Agreement shall be effective unless it is in writing signed by duly authorized representatives of both parties. This Agreement may not in any way be explained or supplemented by a prior performance, trade usage, or course of dealing between the parties, or by any prior performance between the parties pursuant to this Agreement or otherwise.