End User License Agreement
NOTICE: ANY ACCESS TO AND USE OF THIS WEBSITE AND ANY ONLINE APPLICATIONS, SOFTWARE OR CONTENT AVAILABLE THROUGH THIS WEBSITE IS SUBJECT TO AND WILL CONSTITUTE YOUR ACCEPTANCE OF THIS END USER LICENSE AGREEMENT. IF YOU DO NOT AGREE TO THIS END USER LICENSE AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR USE THIS WEBSITE OR ANY ONLINE APPLICATIONS, SOFTWARE OR CONTENT AVAILABLE THROUGH THIS WEBSITE.
This End User License Agreement (the “Agreement”) by and between you (“You”) and A2 Access, LLC (“A2”) governs Your access to and use of (i) A2’s online application software (including this website) (the “Platform”) and (ii) the information, data and other content available to You on the Platform (the “Content”). By clicking to accept this Agreement, You acknowledge that You have read, understood and agree to be bound by this Agreement, and You agree to comply with all applicable laws and regulations in Your use of the Platform and the Content incorporated therein licensed hereunder, including U.S. export and re-export control laws and regulations. The Platform and all Content incorporated therein are protected by law, including, but not limited to, United States copyright law and international treaties. Capitalized terms used throughout this Agreement without definition shall be given the meanings set forth in Section 7.
1. Access and Use.
1.1. License. Subject to the terms and conditions of this Agreement, A2 hereby grants to You a non-transferable, nonexclusive, limited license to the Platform and the Content available to Your on the Platform for Your (or Your employer’s, if applicable) internal business purposes, unless and until such license is terminated as set forth in this Agreement. You acknowledge that access to certain Content through the Platform may be conditioned upon other users of the Platform authorizing You or Your employer to view such Content and that, in the event that such other users revoke Your, or Your employer’s, access, You will no longer be able to access such Content through the Platform. The Content available to You through the Platform may also include Third Party Material. Additional terms and conditions may apply to Your use of Third Party Material, which shall be made available to You by A2. In the event of changes in the terms applicable to such material, A2 reserves the right to terminate access to such material, remove such material from the Platform, modify the Third Party Material accessible hereunder, or add additional terms and conditions applicable to such material, in each case effective immediately upon notice being made reasonably available to You. In the event of any conflict between the terms hereof and the terms governing the Third Party Material, the terms governing the Third Party Material shall control.
1.2. Protection of Passwords. You agree not to give or make available Your username, password, or other authentication method (including without limitation, Your email address, if applicable) used to access Your account to any unauthorized individuals. You remain responsible for all access to the Platform and the Content therein via Your username, password, or other authentication method, even if not authorized by You. If You believe that Your username, password, or other authentication method used to access Your account has been lost or stolen or that an unauthorized person has or may attempt to use the Platform, You must immediately notify A2 at DistributionSupport@dealogic.com or via telephone at 646-412-4800 during normal business hours (Monday through Friday, 8:30 a.m. - 7:00 p.m. EST).
1.3. Restrictions on Use. You shall not (i) use, or permit the use of, the Platform or the Content except in accordance with the terms of this Agreement; (ii) download or print the Content other than as permitted by the Platform; (iii) download or print in whole or in substantial part the Content; (iv) alter, modify, debug, translate, reverse engineer, decompile, disassemble, decrypt, create derivative works of, or otherwise attempt to derive or alter any source code of the Platform or any underlying software; (v) use the Platform to provide service bureau, time sharing, or similar services to third parties; (vi) distribute, sublicense, sell, assign, transfer, rent, lease, pledge, or encumber the Platform or the Content; (vii) permit access to the Platform to any other person; (viii) remove any copyright or other notice contained or included in the Content; or (ix) disclose the Content to any other person. Redistribution of the Content for any purpose is strictly prohibited. Any use or attempted use of the Platform or the Content therein other than as specifically authorized herein, without the express prior written permission of the A2 is strictly prohibited and will, among other things, terminate this Agreement and all access rights granted herein. Such unauthorized use or attempted use may also violate applicable laws, including without limitation, copyright and trademark laws. Upon any termination of Your right to access the Platform or any Content therein, You must destroy, as applicable, all copies of any Content for which access was terminated.
1.4. Updates, Discontinuation, and Termination of Access. A2 may update, modify or replace the Platform, including any Content available therein, from time to time. A2 reserves the right to discontinue offering access to the Platform, certain Content, or a portion thereof, at any time for any reason. A2 will use commercially reasonable efforts to provide at least thirty (30) days’ notice of any such discontinuation. If You fail to comply in any way with this Agreement, this Agreement and Your authorization to access and to use the Platform and the Content therein will automatically terminate. If applicable, Your access to the Platform and the Content therein may be subject to Your employer’s compliance with its agreement with A2, and any termination of such agreement will automatically terminate this Agreement and Your authorization to access and to use the Platform and the Content therein. Upon any termination of this Agreement, You must immediately destroy any downloaded or printed Content and discontinue use of the Platform.
2. Proprietary Rights. No provision of this Agreement conveys any ownership interest to You in or to the Platform or any Content therein, including site design, text, graphics, interfaces, and the selection and arrangements thereof, in whole or in part, and, except for the express licenses herein, all intellectual property rights, including copyright, patent, trademark and trade secret, are retained by A2, its affiliates, licensors, and collaborators, all rights reserved. The trademarks, service marks, trade names, and logos, including, but not limited to, page headers, custom graphics, button icons, and scripts (collectively, the “Trademarks”) used and displayed on the Platform or the Content therein are registered and unregistered trademarks, service marks and/or trade dress of A2, its affiliates, licensors, and collaborators, and You may not copy, imitate or use the Trademarks, in whole or in part, for any purpose. No license or other right to use any Trademark used or displayed on the Platform or the Content therein is granted to You.
3.1. License to Data. You grant to A2, as applicable:
(a) a perpetual, irrevocable right and license to use, disclose and publish any Tracking Data Submitted to the Platform by You for access by the Investor to which such Tracking Data relates and any other users of the Platform authorized by such Investor to view such Tracking Data;
(b) to the extent You are (or Your employer is) a Resource Provider, a perpetual right and license to use, disclose and publish any Resource Data Submitted to the Platform by You for access by the Resource Provider Submitting such Resource Data and any other users of the Platform authorized by such Resource Provider to view such Resource Data; and/or
(c) to the extent You are (or Your employer is) an Investor, a perpetual right and license to use, disclose and publish any Investor Data Submitted to the Platform by You, but only for access by You (or the users authorized to access such Investor Data by Your employer).
3.2. Ownership of Data. You and A2 acknowledge and agree that:
(a) Tracking Data regarding the activities of a particular Investor shall be deemed to be owned by such Investor, regardless of whether such Tracking Data was Submitted by such Investor or by any other subscriber to the Platform, including You, if applicable, and such Investor may modify or delete such Tracking Data in its sole discretion;
(b) Resource Data shall be deemed to be owned by the Resource Provider that Submitted it to the Platform and such Resource Provider may modify or delete such Resource Data in its sole discretion; and
(c) Investor Data shall be deemed to be owned by the Investor that Submitted it to the Platform and such Investor may modify or delete such Investor Data in its sole discretion.
3.3. Accuracy of Data/No Material Non-Public Information. You represent and warrant that you have the right to Submit any Tracking Data, Resource Data and/or Investor Data that you Submit to or modify on the Platform, including any personally identifying information, such as names and email addresses. You further represent and warrant that any Tracking Data, Resource Data, and/or Investor Data You Submit to or modify on the Platform, as applicable, is accurate to the best of Your knowledge and does not contain Material Non-Public Information. You acknowledge and agree that Submitting Tracking Data, Resource Data and/or Investor Data which You know or have reason to believe is inaccurate or contains Material Non-Public Information is a material breach of this Agreement.
3.5. Aggregated Usage Statistics. Notwithstanding the foregoing, A2 shall own all Aggregated Usage Statistics collected by A2 regarding use of the Platform. Nothing herein shall be construed as prohibiting A2 from disclosing Aggregated Usage Statistics or utilizing Aggregated Usage Statistics for purposes of operating A2’s business, provided that A2’s use of Aggregated Usage Statistics will not reveal the identity, whether directly or indirectly, of any individual or specific data entered by any individual into the Platform.
4. Warranty Disclaimer. THE PLATFORM AND ANY CONTENT THEREIN ARE FURNISHED BY A2 AND ACCEPTED BY YOU “AS IS” AND WITHOUT ANY WARRANTY WHATSOEVER. A2 MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PLATFORM AND ANY CONTENT THEREIN AND, TO THE MAXIMUM EXTENT PERMITTED BY LAW, A2 DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, ARISING OUT OF OR RELATED TO THIS AGREEMENT, THE PLATFORM, THE CONTENT, OR THE RESULTS DERIVED THEREFROM, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES REGARDING ACCURACY, QUALITY, CORRECTNESS, COMPLETENESS, COMPREHENSIVENESS, CURRENCY, SUITABILITY, SYSTEM AVAILABILITY, COMPATIBILITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR OTHERWISE (IRRESPECTIVE OF ANY COURSE OF DEALING, CUSTOM OR USAGE OF TRADE). NO A2 EMPLOYEE OR AGENT IS AUTHORIZED TO MAKE ANY STATEMENT THAT ADDS TO OR AMENDS THE WARRANTIES OR LIMITATIONS CONTAINED IN THIS AGREEMENT. IN ADDITION, YOU ACKNOWLEDGE THAT ACCESS TO THE PLATFORM AND THE CONTENT THEREIN. MAY BE SUBJECT TO LIMITATIONS, DELAYS, LATENCY ISSUES AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND THAT A2 IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
5. Limitation of Liability. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL A2, ITS AFFILIATES, LICENSORS, OR COLLABORATORS, OR ANY OF ITS OR THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU OR ANY THIRD PARTY WHOSE CLAIM IS RELATED TO THIS AGREEMENT, UNDER ANY THEORY OF TORT, CONTRACT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY, FOR (A) LOST PROFITS, LOST REVENUES, LOST BUSINESS OPPORTUNITIES OR EXEMPLARY, PUNITIVE, SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR SIMILAR DAMAGES, EACH OF WHICH IS HEREBY EXCLUDED BY AGREEMENT OF THE PARTIES, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR WHETHER A2 OR THE APPLICABLE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; OR (B) ANY CLAIMS, DAMAGES OR COSTS OF ANY NATURE IN EXCESS OF THE LESSER OF $500 OR THE AMOUNT OF FEES PAID BY YOU (OR YOUR EMPLOYER) FOR YOUR ACCESS TO THE PLATFORM. THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE INDEPENDENT OF ANY REMEDIES SET FORTH HEREIN. YOU ACKNOWLEDGE THAT THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THIS AGREEMENT ARE AN ESSENTIAL ELEMENT TO MAKING THE PLATFORM AND THE CONTENT THEREIN AVAILABLE UNDER THE TERMS OF THIS AGREEMENT, AND THEREFORE THIS LIMITATION OF LIABILITY AND THE DISCLAIMERS SET FORTH IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF SUCH REMEDIES ARE FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. YOU ACKNOWLEDGE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION, A2 AND ITS LICENSORS WOULD NOT PROVIDE THE PLATFORM OR THE CONTENT ACCESSIBLE THEREIN. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
6. General Provisions.
6.1. Amendments; Order of Precedence. The terms of this Agreement may be altered or amended only by mutual agreement of You and A2. In the event of a conflict between the terms of this Agreement and the terms of Addendum hereto, the terms of the applicable Addendum shall prevail, but only with respect to the applicable Addendum. If applicable, in the event of a conflict between the terms of this Agreement and the terms of Your employer’s agreement with A2, Your employer’s agreement will govern.
6.2. Severability. Any provision hereof that is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, shall be ineffective only to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof; provided, however, that the parties hereto will attempt in good faith to reform this Agreement in a manner consistent with the intent of any such ineffective provision for the purpose of carrying out such intent.
6.3. Force Majeure. Neither party shall be liable for any failure or delay in performing its obligations under this Agreement, or for any loss or damage resulting therefrom, due to acts of God, the public enemy, terrorist activities, riots, fires, and other causes beyond such party’s control.
6.4. Waiver. The waiver by either party hereto of any breach or default by the other party of any of the terms of this Agreement shall not operate as a waiver of any other breach or default, whether similar to or different from the breach or default waived. No waiver of any provision of this Agreement shall be implied from any course of dealing between the parties hereto or from any failure by either party to assert its or his rights hereunder on any occasion or series of occasions.
6.5. Governing Law. This Agreement shall be governed by and enforced in accordance with the laws of the State of New York, without giving effect to principles of conflicts of law, and any litigation arising out of or in connection in any way with this Agreement shall take place exclusively in a State or federal court of competent jurisdiction in New York City. EACH PARTY HERETO IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT.
6.6. Assignment. You shall not assign this Agreement in whole or in part, without the prior written consent of A2. A2 may freely assign this Agreement to any affiliate or successor of A2 or in connection with any sale transaction or change of control transaction involving the Platform and may delegate its duties, in whole or in part, in each case without Your consent. An assignee of either party authorized hereunder shall be bound by the terms of this Agreement and shall have all of the rights and obligations of the assigning party set forth in this Agreement. If any assignee refuses to be bound by all of the terms and obligations of this Agreement or if any assignment is made in breach of the terms of this Agreement, then such assignment shall be null and void and of no force or effect.
6.7. Location. The Platform is controlled and operated from within the United States. Without limiting any provisions of this Agreement, A2 makes no representation that the Platform is appropriate or available for use in other locations, and access to them from territories where they are illegal is prohibited. Those who choose to access the Platform from other locations do so of their own volition and are responsible for compliance with applicable laws.
6.8. No Competitive Products. Under no circumstances shall You use the Platform or information contained therein or results derived therefrom to develop any product(s) or service(s) which could be competitive with the Platform or any other product(s) or service(s) provided by A2.
“Aggregated Usage Statistics” means aggregated and statistical data derived from the operation of the Platform, including, without limitation, the number of records in the Platform, the number and types of Content viewed using the Platform, configurations used on the Platform and any performance results for the Platform, provided that such data is anonymous and/or has been de-identified.
“Investor” means a fund or other investor entity.
“Investor Data” means all data Submitted to the Platform by an Investor, excluding Tracking Data.
“Material Non-Public Information” means information that would be deemed material and non-public under the securities laws of the U.S. or any other jurisdiction.
“Resource Provider” means a bank, sell-side firm, primary research firm, issuer, industry group or other financial institution.
“Resource Data” means all data Submitted to the Platform by a Resource Provider, excluding Tracking Data.
“Submit” means to submit data for inclusion on the Platform via any mechanism made available by A2 currently or in the future, including, without limitation, manually inputting, uploading, sending to A2 for input to the Platform, or submitting information via an application program interface (API), all whether performed by You, Your employer or a third party on Your or Your employer’s behalf; provided, however, that You acknowledge that certain of the mechanisms described above may not yet be made available by A2.
“Third Party Material” means any market data or other content and/or software supplied or licensed to A2 by third parties (excluding other users of the Platform) and made available through or as part of the Platform.
“Tracking Data” means information regarding attendance at events, contact relationships and other activities used by Investors to track their interactions with Resource Providers, whether such information is Submitted to the Platform by an Investor or by a Resource Provider.
Addendum A to End User License Agreement
Industry Classification Benchmark Data
The following additional terms and conditions apply to the Industry Classification Benchmark (“ICB”) and all data fields with respect to each security contained therein (“ICB Data”), which may be available to certain users of the Platform. The ICB and all ICB Data shall be deemed Third Party Material under the terms of the Agreement.
1. The ICB is owned by FTSE International Limited and has been licensed for use. “FTSETM” is a trademark of the London Stock Exchange Group companies and is used by FTSE under license. FTSE and its licensors and affiliates do not accept liability to any person for any loss or damages arising out of any error or omission in the ICB.
2. You shall not: (i) copy, download, reproduce, sell, license, distribute, transmit, duplicate, store or otherwise furnish to any third party the ICB, the ICB Data or any portion of the ICB Data in any type of format or by any means, including but not limited to the Internet, intranet or other type of network; (ii) remove any copyright or other notice contained or included as part of the ICB or the ICB Data; (iii) change, modify, reverse engineer, decompile or disassemble the ICB, the ICB Data or any portion thereof; (iv) use the ICB classifications for the benefit of any proprietary index or in the creation of other similar products; (v) publish the ICB, the ICB Data or any portion thereof on any website, application or interface; or (vi) use the ICB to classify companies and/or their securities not included in the ICB database (such as private companies or fixed income securities) or represent that the ICB classification of any company in the ICB database is different to the ICB classification made by FTSE.
3. You acknowledge and agree that the names FTSE®, Industry Classification Benchmark and ICB (collectively, the “FTSE Marks”) are famous, well-known and internationally recognized trade names, trademarks and service marks owned by FTSE or its licensors as the case may be. You have no rights to such marks. You further acknowledge and agree that: (i) the ICB and the ICB Data are the exclusive property of FTSE, are not within the public domain, and are protected by copyright and other intellectual property rights; (ii) the ICB and the ICB Data are created by FTSE and/or obtained from third party licensors and that You are not obtaining any ownership rights of any kind in the ICB or the ICB Data, which rights shall remain at all times with FTSE and/or its third party licensors, as the case may be; and (iii) You will not contest the ownership or validity of any rights of FTSE in the FTSE Marks, the ICB, the ICB Data or the intellectual property rights relating thereto.
4. Notwithstanding any other provision to the contrary in the Agreement, You acknowledge and agree that A2 shall have the right to disclose the existence of A2’s relationship with You and the terms of the Agreement to FTSE.
5. FTSE retains the right to direct A2 to terminate distribution of the ICB Data to any user of the Platform for any breach of the Agreement or for any suspected misuse of the ICB Data. In the event that A2 receives any such direction to terminate Your access to the ICB Data, A2 shall cease distributing the ICB Data to You.
6. Upon termination or expiration of the Agreement or otherwise upon revocation of access to the ICB Data pursuant to Section 5 of this Addendum, You shall, as soon as reasonably practicable, but in any event no longer than two (2) months, purge its internal systems of any ICB Data, subject to (and only to the extent of) any legal obligation to retain any part of the ICB Data.
7. NOTWITHSTANDING ANY OTHER PROVISION IN THIS ADDENDUM OR ELSEWHERE IN THE AGREEMENT, FTSE’S LIABILITY (I) FOR DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OF ANY OF FTSE, ITS AFFILIATES, OR ITS LICENSORS, OR ANY OF THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS (COLLECTIVELY, “FTSE PARTIES”); (II) IN RESPECT OF THE FTSE PARTIES, UNDER PART I OF THE CONSUMER PROTECTION ACT 1987; OR (III) FOR FRAUDULENT MISREPRESENTATION, IS NOT EXCLUDED OR LIMITED, EVEN IF ANY OTHER TERM OF THIS ADDENDUM WOULD OTHERWISE SUGGEST THAT THIS MIGHT BE THE CASE. SUBJECT TO THE FOREGOING, THE FTSE PARTIES SHALL NOT BE LIABLE (WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR FOR ANY OTHER REASON) FOR ANY LOSS OF PROFITS, LOSS OF SALES, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF REPUTATION, LOSS OR DAMAGE ARISING FROM ANY CLAIM BY YOU; LOSS OR DAMAGE ARISING FROM ANY OTHER CLAIM BY A THIRD PARTY OR INDIRECT, CONSEQUENTIAL OR SPECIAL LOSS, EVEN IF ADVISED OF THE POSSIBILITY OF THE SAME.
8. THE FTSE PARTIES DO NOT GIVE OR ENTER INTO ANY CONDITION, WARRANTY OR OTHER TERM (I) AS TO THE ICB, THE ICB DATA, THE FTSE MARKS, ANY INTELLECTUAL PROPERTY OR THEIR USE BY YOU OR ANY OTHER MATTER TO WHICH THE AGREEMENT RELATES; (II) TO THE EFFECT THAT THE ICB DATA OR ITS PROVISION WILL BE TIMELY, ACCURATE, COMPLETE, CURRENT OR FREE FROM INTERRUPTION OR WILL BE OF ANY PARTICULAR QUALITY (SATISFACTORY OR OTHERWISE) OR FIT FOR ANY PARTICULAR PURPOSE (WHETHER MADE KNOWN TO THE FTSE PARTIES OR NOT); OR (III) AS TO THE RESULTS TO BE OBTAINED BY YOU OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THE USE OF THE ICB.