License & Subscription Agreement
AS OF MAY 20, 2009
1. This Agreement is between You and IDC, and governs Your use of the Service. The Service, accessed at the Site, provides Third Party Data aggregated by IDC, including information licensed to IDC by certain Data Providers. You agree to use the Service strictly in accordance with this Agreement. IDC may at any time or from time to time, unilaterally change these terms and conditions by revising this Agreement. If You download any information off of the Site after a change has been made in this Agreement, then You will be deemed to have consented to such change. The current version of this Agreement is available on the Site. You have been granted non-exclusive, limited personal access to the Site conditioned upon your compliance with all of the terms and conditions of this Agreement.
2. You have been given a user name and password that are personal to You. You are not authorized or entitled to give Your user name and/or password to anyone else. As a general rule, Your right to access the Site and use the Site Services is restricted to the geographic location specified in Your subscription agreement with IDC. IDC has the right to monitor Your usage of the Site to ensure Your compliance with this Agreement. IDC reserves the right to terminate Your right to access the Site and the Site Services at any time and for any reason (subject to IDC’s obligation to refund to You a pro rata portion of Your subscription price.)
3. Your subscription price has been determined based upon various representations and warranties You have made to IDC. If any such representation or warranty proves to be false and, as a result, You have been charged a subscription price that is lower than what You should have been charged had all such representations and warranties been true, then You shall remain liable to IDC for any subscription price that remains owing.
4. The IDC Parties do not have any liability to You or any other Person for the correctness, quality, accuracy, reliability, performance, completeness, timeliness, continued availability or otherwise of any Site Services, including, without limitation, the Third Party Data, or for any delays, interruptions, omissions or errors in connection with the Site Services.
5. THE IDC PARTIES MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE THIRD PARTY DATA OR SITE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY REGARDING THE USE OR THE RESULT OF THE THIRD PARTY DATA OR SITE SERVICES WITH RESPECT TO THEIR CORRECTNESS, QUALITY, ACCURACY, RELIABILITY, PERFORMANCE, COMPLETENESS, TIMELINESS, CONTINUED AVAILABILITY OR OTHERWISE. THE IDC PARTIES ARE NOT LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR LOST PROFITS (EVEN IF ADVISED OF SUCH) ARISING IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SITE SERVICES. Without limiting the foregoing in any way, the IDC Parties have no liability to you or any other Person for: (i) any delay by reason of circumstances beyond the control of the IDC Parties, including act of civil or military authorities, national emergencies, labor difficulties, fire, computer problems, flood or catastrophe, acts of God, insurrection, war, riots, transportation problems or power supply failures, or any similar or dissimilar circumstances or (ii) any claim that arises more than one (1) year prior to the institution of suit therefor.
6. Any information, data, research, analysis, reports and other materials in the Site Services are intended to assist investors in making informed judgments concerning securities. You accept responsibility for, and acknowledge that You exercise Your own independent judgment in, selecting among the Site Services, Your selection of the use or intended use of such Site Services, and any results obtained therefrom. The IDC Parties have no liability to You or any other Person for errors, omissions or malfunctions in any Site Services.
7. All intellectual property (including copyrights) and proprietary rights in the Site Services are and shall remain the sole and exclusive property of the respective IDC Party. Except as expressly provided herein, neither You nor any other Person shall have or acquire any rights in or to such Site Services. You agree not to take any action inconsistent with the IDC Parties’ intellectual property (including copyright) and proprietary rights.
8. Your right to use the Service is limited to your Personal Use of the Site Services. You have no right to distribute the Site Services, or to assign or transfer this Agreement or Your right to access the Site Services, to any Person without the prior express written consent of IDC and, if appropriate, the Data Provider.
9. You shall indemnify and hold harmless each IDC Party from and against any Damages resulting from or arising out of any Proceeding to the extent that such Proceeding is based, in whole or in part, on a breach of this Agreement by You. IDC shall indemnify and hold You harmless from and against any Damages resulting from or arising out of: (i) any Proceeding instituted by a third party and alleging a breach by You of such third party’s intellectual property rights by reason of Your permitted use of the Site Services or (ii) resulting from or arising out of any Proceeding based, in whole or in part, on a breach or breaches of this Agreement by IDC (provided that under no circumstances shall IDC and/or IDC Parties be liable to You for Damages under this Section 9(ii) in an amount greater than the subscription price paid by You for the 12-month period immediately preceding such breach or breaches).
10. Access to Third Party Data may be terminated immediately in the event that any underlying agreement between IDC and any Data Provider is terminated.
11. If You are not an IDC subscriber, then neither IDC nor any IDC Party owes any duties to You.
12. (a) You acknowledge and agree that the CUSIP Database and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, Standard & Poor’s CUSIP Service Bureau (“CSB”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to You in such materials or in any of the information contained therein. Any use by You outside of the clearing and settlement of transactions requires a license from the CSB, along with an associated fee based on usage. You agree that misappropriation or misuse of such materials will cause serious damage to CSB and ABA and that, in such event, money damages may not constitute sufficient compensation to CSB and ABA; consequently, You agree that, in the event of any misappropriation or misuse, CSB and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CSB and ABA may be entitled.
(b) You agree not to 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. You further agree 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 CSB.
(c) NEITHER CSB, 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 YOU 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 CSB 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 CSB, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY YOU FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CSB AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.
13. You agree that the foregoing terms and conditions shall survive any termination of this Agreement or termination of Your right to access the Site Services. This Agreement shall be governed by the internal law of the State of Wisconsin, disregarding any conflicts of laws. The failure of an IDC Party to enforce any part of this Agreement, or any delay in enforcement, does not give rise to any defense of acquiescence, waiver, or any other legal or equitable defense.
14. The defined terms used herein are defined below:
* “Agreement” means this Agreement.
* “Damages” means any and all damages, losses, liabilities, judgments, settlements and costs, including reasonable attorneys’ fees and out-of-pocket expenses.
* “Data Provider” means any third party data provider who provides information for use on the Site to IDC, including, but not limited to, Standard and Poor’s Ratings Services’ CUSIP Service Bureau (“CSB”) and the American Bankers Association (“ABA”)
* “Disclaimer” means the following language in a conspicuous format: “This information is being provided under a special license from IDC Financial Publishing, Inc. (“IDC”). IDC owns and reserves all rights with respect to its ranking system and the use thereof. No further distribution, retransmission, republication or other use of any IDC ranking is permitted without an express license from IDC.”
* “IDC” means IDC Financial Publishing, Inc.
* “IDC Parties” means IDC, its parents, affiliates, subsidiaries, suppliers, Data Providers and other vendors and their respective directors, officers, employees, agents and affiliates.
* “IDC Ranking System” means IDC’s proprietary ranking system and all related intellectual property rights.
* “Person” means a natural person, or a trust, corporation, limited liability company or other entity or organization, however structured.
* “Personal Use” means solely for Your personal use and benefit in connection with the Site Services provided to You with respect to the Site. If Your subscription permits, Personal Use includes (i) the ability to use the IDC Ranking System internally within Your organization in connection with Bloomberg, BondDesk or any comparable computer system or format, provided that You send, at least quarterly, the Disclaimer by e-mail or otherwise to each Person having access to the IDC Ranking System and/or (ii) the limited right to distribute the IDC Ranking System to other Persons by e-mail or otherwise solely by reference to an existing position in securities and/or an offer to sell such securities, provided that any such communication includes the Disclaimer. Personal Use of Third Party Data is limited to online terminal screen display and ad-hoc inquiry access.
* “Proceeding” means any lawsuit, action, claim, demand or similar proceeding.
* “Service” means any service that You have subscribed for from IDC. Currently IDC provides the following services: (i) the Bank Financial Quarterly, (ii) the S&L-Savings Bank Financial Quarterly, (iii) the Credit Union Financial Profiles, (iv) the Investment Performance Digest and (v) the IDC CUSIP Database.
* “Site” means the site accessible at www.idcdownload.com.
* “Site Services” means any service, content and/or other materials displayed on, or accessed through, the Site, including, but not limited to, any information or service provided by any Data Provider to the Site.
* “Third Party Data” means any information or data provided by any Data Provider.
* “You” or “Your” means the entity or organization that is the subscriber to the Service.