License and Usage Agreement
Lumesis, Inc. (“Lumesis”) operates the DIVER suite of software tools (“DIVER”). Copyright © 2010-2012 Lumesis, Inc. All rights reserved. Lumesis™ and DIVER™ are trademarks of Lumesis, Inc. DIVER software contains Patent Pending technology.
LUMESIS WILL GRANT RIGHTS TO USE THIS SITE AND A LICENSE FOR THE CONTENT SPECIFIED HEREIN ONLY UPON THE CONDITION THAT THE COMPANY ACCEPTS ALL THE TERMS CONTAINED IN THIS AGREEMENT AND YOU ENTER AND STAY CURRENT WITH A SERVICE CONTRACT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOUR ACCEPTANCE REPRESENTS THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS, IN WHICH CASE "YOU" OR "YOUR" SHALL REFER TO YOUR ENTITY.
1. Parties. The parties to this Agreement are you, the licensee ("You"), and the owner and operator of this Site: Lumesis. All references to "we", "us", or "this Site" shall be construed to mean Lumesis. If the user is not an individual, then "You" means Your company, its officers, members, agents, successors and assigns.
2.1 Subject to the terms of this Agreement, You are granted a non-exclusive, nontransferable and non-assignable license to access and use the DIVER tool as set forth in the Service Agreement, and, unless otherwise noted in the Service Agreement or herein, to download and otherwise use information and data provided by DIVER ("Content") only for purposes of Your own use.
2.2 Each person may not have more than one active license.
2.3 Required by Our Data Vendors:
2.3.1 You agree and acknowledge 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 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 CGS, along with an associated fee based on usage. You agree 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, You agree 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.
2.3.2 You agree that You shall not publish or distribute in any medium the Committee on Uniform Security Identification Procedures (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 the CUSIP Global Services (“CGS”).
2.3.3 Mergent, Inc.: Certain information included in DIVER is proprietary to Mergent, Inc. (“Mergent”) Copyright © 2012. Reproduction of such information in any form is prohibited. Because of the possibility of human or mechanical error by Mergent sources, Mergent or others, Mergent does not guarantee the accuracy, adequacy, completeness, timeliness or availability of any information and is not responsible for any errors or omissions or for the results obtained from the use of such information. There are no express or implied warranties, including, but not limited to warranties of merchantability or fitness for a particular purpose or use. In no event shall Mergent be liable for any indirect, special or consequential damages in connection with subscriber’s or other’s use of such information.
2.3.4 RealtyTrac, Inc.: Certain information included in DIVER is proprietary to REALTYTRAC Inc. (“RT”). Reproduction or redistribution, in whole or in part, of such information is prohibited. Because of the possibility of human or mechanical error by RT sources, RT or others, RT does not guarantee the accuracy, adequacy, completeness, timeliness or availability of any information and is not responsible for any errors or omissions or for the results obtained from the use of such information. There are no express or implied warranties, including, but not limited to warranties of merchantability or fitness for a particular purpose or use. In no event shall RT be liable for any indirect, special or consequential damages in connection with subscriber’s or other’s use of such information.
2.3.5 Definitive Healthcare, LLC: Certain information included in DIVER is proprietary to Definitive Healthcare (“DH”) and DH makes no warranties, express or implied, including specifically, any warranty of merchantability or fitness for a particular purpose as to the data provided.
In no event, will DH be liable to any party for indirect, incidental, consequential, special, punitive or exemplary damages arising out of the use of the DH data), such as, but not limited to, loss of revenue, profits, or business and costs of delay.
2.3.6 On Board LLC: Certain information included in DIVER is proprietary to On Board LLC (“OB”). OB shall not be liable indirectly or directly, for any special, consequential, indirect or punitive damages relating to the data they provide and OB products. OB makes no warranty, express or implied, as to the OB products of the use thereof, including, without limitation, the accuracy of the underlying content and implied warranties of merchantability and fitness for a particular purpose. You acknowledge that the OB Data and Products can include inaccuracies or typographical errors.
2.3.7 Standard & Poor’s Financial Services LLC (“S&P”). Reproduction of RatingsXpress-Credit Ratings in any form is prohibited except with the prior written permission of S&P. S&P does not guarantee the accuracy, completeness, timeliness or availability of any information, including ratings, and is not responsible for any errors or omissions (negligent or otherwise), regardless of the cause, or for the results obtained from the use of ratings. S&P GIVES NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. S&P SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTIAL, EXEMPLARY, COMPENSATORY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, COSTS, EXPENSES, LEGAL FEES, or LOSSES (INCLUDING LOST INCOME OR PROFITS AND OPPORTUNITY COSTS) IN CONNECTION WITH ANY USE OF RATINGS. S&P’s ratings are statements of opinions and are not statements of fact or recommendations to purchase, hold or sell securities. They do not address the market value of securities or the suitability of securities for investment purposes, and should not be relied on as investment advice.”
2.3.8 Required by the MSRB: The continuing disclosure documents and other information provided through the continuing disclosure service are submitted to the MSRB by issuers, obligated persons and their agents. Such documents may not exist for all municipal securities and such documents are not required to be submitted to the MSRB for certain types of offerings. There is the possibility of failures by submitters to submit required documents to the MSRB, or of errors or delays in the processing of such documents by submitters or the MSRB. The MSRB does not review information contained in such documents for accuracy, completeness or any other purpose, and does not warrant or guarantee the accuracy of any information contained in such documents.
2.3.9 Required by the MSRB: The MSRB, its officers, directors, employees, agents, consultants and licensors shall not be liable or responsible to you or anyone else for any losses, injuries, damages, costs, expenses or claims caused by, arising out of or relating to the following: (a) acts, omissions, occurrences or contingencies beyond their control; (b) service interruptions or performance failures, such as those that result from the use of telecommunications facilities that are outside their control, including the Internet; (c) negligence, gross negligence or willful misconduct in procuring, compiling, interpreting, editing, writing, reporting or delivering any of the content and material; (d) lost, stolen, late, corrupted, misdirected, failed, incomplete or delayed transmissions by anyone using the Service, including, but not limited to, any technical malfunctions, human error, computer viruses, lost data transmissions, omissions, interruptions, deletions, defects, hyperlink failures or line failures of any telephone network, computer equipment, software or any combination thereof; (e) damage to your computer systems, equipment, software, data or other tangible or intangible property resulting from or sustained in connection with your use of DIVER; and/or (f) any disruption of business, lost sales or lost profits or any punitive, exemplary, indirect, special, incidental or consequential damages associated or in connection with, resulting from or arising out of any use of the Service or the content and material in the Service.
2.3.10 Required by the MSRB: The MSRB and its officers, directors, employees, agents, consultants and licensors shall have no liability in tort, contract or otherwise (and as permitted by law, product liability) to you or anyone else for any reason associated or in connection with, resulting from or arising out of your use of the Service. The MSRB, its officers, directors, employees, agents, consultants and licensors make, and have made, no recommendations regarding any of the securities or other investment vehicles identified, referred to or described in DIVER.
2.3.11 The Continuing Disclosure Service of DIVER is reproduced by permission of the MSRB under a non-exclusive license. The MSRB accepts no responsibility for the accuracy of the reproduction of the Service or that such Service is current.
3. Participant Conduct. You understand that all information, whether publicly posted or privately transmitted, is the sole responsibility of the participant from whom such information originated. This means that You, and not Lumesis, are entirely responsible for all information that you upload, post, email, transmit or otherwise make available to this Site. You agree to not use the Site to:
a. upload, post, email, transmit or otherwise make available any information that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
b. impersonate any person or entity, including, but not limited to, a Site official, or falsely state or otherwise misrepresent your affiliation with a person or entity;
c. forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted by you;
d. upload, post, email, transmit or otherwise make available any information that you do not have a right to make available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
e. upload, post, email, transmit or otherwise make available any information that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
f. upload, post, email, transmit or otherwise make available any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; and/or
g. intentionally or unintentionally violate any applicable local, state, national or international law, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission, any rules of any national or other securities exchange, including, without limitation, the New York Stock Exchange, the American Stock Exchange or the NASDAQ, and any regulations having the force of law.
4. Use Restrictions For Content. Unless expressly agreed to in the Service Contract, You may not:
4.1 copy, modify, and/or transfer any DIVER Content to others and are not authorized (i) to resell or sublicense any DIVER Content, (ii) to distribute, transmit, or publish the DIVER Content to the public in any form, format, or method, including without limitation, by posting on the Internet, or (iii) otherwise to use any DIVER Content as part of a product or service for any commercial use or purpose.
4.2 distribute Content externally in a quantity or in a manner that serves as a substitute for purchase of DIVER from Lumesis.
Any distribution of DIVER output shall include a reasonably conspicuous notice as follows: "Source: DIVER, Lumesis, Inc. CONTAINS COPYRIGHTED DISTRIBUTED UNDER LICENSE FROM Lumesis” or similar language reasonably acceptable to Lumesis.
4.3 disassemble, decode, decompile, or otherwise reverse engineer any interfaces or software programs comprising DIVER.
4.4 access, download, transfer or manipulate data and databases comprising DIVER using protocols or interfaces other than those provided by Lumesis.
4.5 have access to or make any use of source code of DIVER.
4.6 download data from DIVER with the intent of using such data as a substitute for Licensee's subscription under a Service Contract.
4.7 use DIVER, directly or indirectly, in competition with Lumesis.
5. Restrictions Regarding Sharing of Identification and Password Codes. You will be issued a unique password code for use in accessing DIVER. You may not share your password with others. Licensee agrees to assume sole responsibility for the security of any passwords issued by Lumesis. Passwords are subject to cancellation or suspension by Lumesis at any time that Lumesis has a reasonable belief that such passwords are being misused or if Licensee has breached this Agreement. The reissuance or reactivation of any passwords shall be in Lumesis’ sole discretion. If Licensee believes that someone other than the appropriate user is using any password, or that a user is misusing any password, Licensee must notify Lumesis immediately.
6. Ownership. DIVER is the valuable, exclusive property of Lumesis and/or its third party suppliers and nothing in this Agreement shall be construed as transferring or assigning any ownership rights in such property to You or any other person or entity. Licensee acknowledges that Lumesis expends significant resources gathering, assembling and compiling the data and databases which comprise DIVER, and also in designing and developing associated software and database formats. You have a license to use DIVER so long as you comply with the terms of this Agreement and You are current with the Service Contract or until Lumesis terminates this Agreement or your access rights pursuant to section 14. Ownership of DIVER and any and all software used in providing, accessing or using DIVER, and any documentation or information, shall remain at all times with Lumesis. DIVER is protected by contract law and intellectual property law, including all applicable copyright law, and all intellectual property rights in DIVER. You may not remove, alter or obscure any copyright, legal or proprietary notice in or on any portion of DIVER. Unless separately and specifically authorized in writing by an authorized officer of Lumesis, you may not rent, lease, sublicense, distribute, transfer, copy, reproduce, publicly display, publish, adapt, store or time-share DIVER, or any part thereof, or any of the information received or accessed therefrom, to or through any other person or entity. Licensee agrees not to contest or challenge Lumesis’ or its third party suppliers' ownership of DIVER and associated intellectual property rights, and not to take any action that would infringe, misappropriate, constitute unfair competition with respect to or otherwise violate Lumesis’ or its third party suppliers' ownership of or rights in DIVER. Licensee further agrees not to accept or receive information from a third party that is known to Licensee to be provided by such third party in violation of (i) Lumesis’ copyright or proprietary interests in such information or (ii) Lumesis’ licensing agreement with the third party. All rights not granted to you herein are expressly reserved by Lumesis. Lumesis reserves all rights to enforce their copyright and intellectual property rights.
8. Technical Support. Lumesis shall answer questions by email and telephone regarding the use of the web site and the materials licensed hereunder.
9. Disclaimer of Warranties.
YOU EXPRESSLY AGREE THAT USE OF AND ACCESS TO DIVER AND ALL DATA AND INFORMATION CONTAINED THEREIN, AND ALL CONTENT AND SERVICES OBTAINED THROUGH DIVER IS AT YOUR SOLE RISK AND PROVIDED ON AN "AS IS" AND AN "AS AVAILABLE" BASIS FROM LUMESIS AND ITS CONTENT PROVIDERS.
LUMESIS AND ITS CONTENT PROVIDERS DO NOT MAKE, AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE DATA, INFORMATION, CONTENT, MATERIALS, SERVFICE OR ANY PORTION THEREOF AND/OR PRODUCTS INCLUDED ON THIS SITE OR ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGEMENT OR ANY WARRANTIES ARISING BY COURSE OF DEALING OR CUSTOM OF TRADE. WE MAKE NO REPRESENTATION OR WARRANTY THAT ANY MATERIAL, CONTENT, PRODUCTS OR SERVICES DISPLAYED ON OR OFFERED THROUGH THE SERVICE ARE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE, OR TIMELY. WE ALSO MAKE NO REPRESENTATIONS OR WARRANTIES THAT THE SERVICE WILL MEET YOUR REQUIREMENTS AND/OR YOUR ACCESS TO AND USE OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, FREE OF VIRUSES, MALICIOUS CODE, OR OTHER HARMFUL COMPONENTS, OR OTHERWISE SECURE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
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 LICENSEE 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 LICENSEE 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.
10. Limitation of Liability & Indemnification. IN NO EVENT WILL LUMESIS BE LIABLE OR RESPONSIBLE TO YOU OR ANY PERSON FOR ANY TYPE OF SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING LOST REVENUE OR LOST PROFITS, EVEN IF LUMESIS OR ANY LUMESIS CONTENT SUPPLIER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER ARISING OUT OF CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY, OR OTHERWISE. IN NO EVENT SHALL LUMESIS’ MONETARY LIABILITY TO LICENSEE IN CONNECTION WITH THIS AGREEMENT OR THE USE OR INABILITY TO USE DIVER EXCEED THE CURRENT ANNUAL AMOUNT PAYABLE TO LUMESIS BY LICENSEE.
You agree to defend, indemnify and hold us harmless against any losses, expenses, costs or damages (including our reasonable attorneys’ fees, expert fees’ and other reasonable costs of litigation) arising from, incurred as a result of, or in any manner related to any claim or action based upon (a) your breach of the terms and conditions of this Agreement, (b) your use of the Service, and/or (c) the use of the Service by any other person using your passwords. We may, if necessary, participate in the defense of any such claim or action and any negotiations for its settlement or compromise. No settlement which may adversely affect our rights or obligations shall be made without our prior written approval. We reserve the right, at our own expense and on notice to you, to assume exclusive defense and control of any such claim or action and then your corresponding indemnification obligation will end.
11. Defamation; Communications Decency Act Notice. This site is a provider of "interactive computer services" under the Communications Decency Act, 47 U.S.C. Section 230, and as such, our liability for defamation and other claims arising out of any postings to this site by third parties is limited as described therein. We are not responsible for Content or any other information posted to this site by third parties. We neither warrant the accuracy of such postings or exercise any editorial control over such posts, nor do we assume any legal obligation for editorial control of Content posted by third parties or liability in connection with such postings, including any responsibility or liability for investigating or verifying the accuracy of any Content or any other information contained in such postings.
13. No Advice. We DO NOT provide investment advice. Trading securities and other financial instruments can involve high risk and the loss of all amounts invested. Trading securities and other financial instruments on margin or with other forms of leverage or borrowings can result in losses in excess of the amount invested. You are responsible for conducting your own analysis on particular investments and making your own investment decisions. Under no circumstances can Lumesis or any affiliate of Lumesis be held responsible for a trading decision based on information obtained from DIVER.
14.1 This Agreement may be terminated: (i) by Lumesis immediately upon written notice to You if You become insolvent, seek protection under any bankruptcy, receivership, trust, deed, creditors arrangement, composition or comparable proceeding, proceedings in bankruptcy or insolvency are instituted against the other party, or a receiver is appointed with respect to the other party, or if any substantial part of Your assets is the object of attachment, sequestration or other type of comparable proceeding, and such proceeding is not vacated or terminated within thirty (30) days after its commencement or institution; or (ii) by Lumesis if You materially breach this agreement including a breach of any of your payment obligations under the Service Contract and fail to cure such breach within five (5) days after receipt from Lumesis of written notice describing such breach; or (iii) by You no less than 30 and no more than 60 days from the end of the term of the Service Contract, upon written notice to the Lumesis.
14.2 You acknowledges that any breach of your obligations under this Agreement and/or the Service Contract with respect to Lumesis’ or a third party’s proprietary rights or confidential information will cause Lumesis and/or such third party irreparable injury for which there exists no adequate remedies at law, and therefore
shall be entitled to injunctive relief, without the posting of any bond, in addition to all other remedies provided by this Agreement or available at law.
14.3 Upon termination of this Agreement, You shall cease use of DIVER.
15. Notices. We may give notice to you by means of (i) electronic mail to your e-mail address on record in your Service Contract, or (ii) by written communication sent by first class mail or pre-paid post to your address on record in your Service Contract. Such notice shall be deemed to have been given upon the expiration of forty eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or twelve (12) hours after sending (if sent by email). You may give notice to us (such notice shall be deemed given when received by us) at any time by any of the following: (a) by email sent to email@example.com or firstname.lastname@example.org or (b) by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to us as follows: Lumesis, Inc., One Atlantic Street, 3rd Floor , Stamford, CT 06901, in either case, addressed to the attention of the CEO, or President & COO. Notices will not be effective unless sent in accordance with the above requirements.
16. Arbitration. Except for actions to protect intellectual property rights and to enforce an arbitrator's decision hereunder, all disputes, controversies, or claims arising out of or relating to this Agreement or a breach thereof shall be submitted to and finally resolved by arbitration under the rules of the American Arbitration Association ("AAA") then in effect. There shall be one arbitrator, and such arbitrator shall be chosen by mutual agreement of the parties in accordance with AAA rules. The arbitration shall take place in the State of Connecticut, and may be conducted by telephone or online. The arbitrator shall apply the laws of the State of Connecticut, USA to all issues in dispute. The controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The findings of the arbitrator shall be final and binding on the parties, and may be entered in any court of competent jurisdiction for enforcement. Enforcements of any award or judgment shall be governed by the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs.
17. Jurisdiction And Venue. The courts in the State of Connecticut, USA and the U.S. District Courts located in the State of Connecticut, USA, shall be the exclusive jurisdiction and venue for all legal proceedings that are not arbitrated under this Agreement. The application the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. This license is written in English, and English is its controlling language.
18. Severability. This Agreement may be modified only as expressly provided herein. If any provision of this Agreement is declared invalid or unenforceable, such provision shall be deemed modified to the extent necessary and possible to render it valid and enforceable. In any event, the unenforceability or invalidity of any provision shall not affect any other provision of this Agreement, and this Agreement shall continue in full force and effect, and be construed and enforced, as if such provision had not been included, or had been modified as above provided, as the case may be.
19. Waiver. The failure to enforce or delay in enforcing any term of this Agreement shall not constitute a waiver of that or any other term, nor shall it give rise to any defense of acquiescence, waiver, or any other legal or equitable defense.
20. Force Majeure. Lumesis shall have no liability whatsoever for interruptions of service or other breach of this Agreement due to fire, explosion, lightning, power surge or failure, water, acts of God, war, civil disturbance, acts or omissions of communications carriers, or other causes beyond Lumesis’ control.
21. Headings. The headings of this Agreement are intended for the convenience of the reader and shall not alter the substance of any provision.
22. Enforcement. You and Lumesis acknowledge and agree that Lumesis’ third party suppliers and licensors are third-party beneficiaries of this Agreement and have the right to enforce this Agreement.
Exhibit A: Applicable Only If You Have Subscribed to DIVER’s Continuing Disclosure Management Service.
THIS CONTINUING DISLCOSUR MANAGEMENT SERVICE AGREEMENT ("AGREEMENT") IS A LEGAL AND BINDING AGREEMENT BETWEEN YOU ("YOU," "YOUR" OR "YOURSELF"), AS THE END USER, AND LUMESIS, INC. ("OUR," "US," "WE" OR "LUMESIS"), WHICH GOVERNS YOUR USE OF OUR CONTINUING DISCLOSURE MANAGEMENT SERVICE (“SERVICE”). PLEASE READ THIS AGREEMENT CAREFULLY PRIOR TO USING THE SERVICE. BY ACCPETING THIS AGREEMENT AND USING THE SERVICE, YOU ARE CONSENTING TO BECOME A PARTY TO THIS AGREEMENT AND AGREE TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS HEREIN. IF, FOR ANY REASON, YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, PLEASE DO NOT ACCPET THIS AGREEMENT AND DISCONTINUE USING THE SERVICE.
THIS AGREEMENT IS IN ADDITION TO AND DOES NOT SUPERSEDE THE SERVICE CONTRACT AND THE LICENSE AND USAGE AGREEMENT UNLESS EXPRESSLY STATED OTHERWISE HERETOFORE.
1. We are providing certain data supplied to us by the Municipal Securities Rulemaking Board (“MSRB”) without warranties or representations and on an "as is" basis. WE HEREBY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES (EXPRESS OR IMPLIED), INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE REGARDING THE SERVICE. You shall bear all risk, related costs and liability and be responsible for your use of the Service. We assume no responsibility for the consequences of any intentional or unintentional error, omission, inaccuracy, incompleteness or untimeliness in or with respect to the Service.
2. You acknowledge that in the course of receiving the Service, Lumesis will provide services whereby Lumesis registers, with a third party, to receive notices of continuing disclosures for all CUSIPs you submit to the Service and Lumesis will manage updates, as submitted by You in DIVER. Generally, You will receive from Us email updates notifying you of continuing disclosures filed by issuers with the Municipal Securities Regulatory Board’s EMMA service (“EMMA”) within one hour of Our being notified by EMMA.
3. You acknowledge the Service may inadvertently cause You to incur damage to tangible property, including any equipment (including software), that may directly or indirectly interface with the Service. Lumesis is not responsible for any damages (incidental or consequential damages, including lost profits or damages for lost business opportunity), loss of data, or any damage to or loss of any your databases.
4. Lumesis will make reasonable efforts to keep the Service operational. However, certain technical difficulties, routine site maintenance/upgrades and any other events outside the control of Lumesis may, from time to time, result in temporary service interruptions. Lumesis also reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, functions of the Service with or without notice. In such event, we will provide you as much notice as possible and, to the extent the Service has been purchases as a stand-alone module, provide a credit for the unused subscription time to your account for a renewal or addition of other DIVER services. You agree that Lumesis shall not be liable to you or to any third party for any of the direct or indirect consequences of any modification, suspension, discontinuance of or interruption to the Service.
5. We may terminate this Agreement, restrict, suspend or terminate your use of the Service immediately and without notice or liability, if you violate, breach or fail to comply with this Agreement or the terms of any other Agreement or Service Contract with Lumesis in any way, and it will not limit any other rights or remedies which are available to us. Upon the effective date of any such termination, your right to use the Service shall immediately cease.
Exhibit B: Moody’s Required Subscriber Provisions – Applicable Only If You Have A Moody’s License
You are required to agree to and comply with the provisions relating to the Moody’s Data and by Moody’s as set forth below.
1. Proprietary Notice; Lumesis Service provided solely for Subscriber’s internal or personal use; No Redistribution to Third Parties.
ALL Moody’s Information, FURNISHED BY LUMESIS PURSUANT TO THIS SUBSCRIPTION AGREEMENT ARE PROPRIETARY TO LUMESIS (OR LUMESIS ’S LICENSORS) AND ARE SO FURNISHED AT SUBSCRIBER'S REQUEST AND FOR SUBSCRIBER'S EXCLUSIVE USE. NO MOODY’S INFORMATION SO FURNISHED MAY BE COPIED OR OTHERWISE REPRODUCED, REPACKAGED, FURTHER TRANSMITTED, TRANSFERRED, DISSEMINATED, DISTRIBUTED, REDISTRIBUTED, SOLD, RESOLD, LEASED, RENTED, LICENSED, SUBLICENSED, ALTERED, MODIFIED, ADAPTED, 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 SUBSCRIBER OR ANY OTHER PERSON OR ENTITY, WITHOUT LUMESIS ’S PRIOR WRITTEN CONSENT.
2. No Warranties; Limitation on Liability; Liability Cap.
All Moody’s Information furnished pursuant to this Agreement is obtained by Lumesis 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 LUMESIS (AND LUMESIS S’S LICENSORS), IN PARTICULAR, MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO SUBSCRIBER 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 LUMESIS (or LUMESIS ’S Licensors) have any liability to Subscriber 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 Lumesis 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 LUMESIS 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 LUMESIS or LUMESIS ’S licensors in the aggregate to Subscriber arising from this Agreement (based on any cause of action whatsoever) exceed the fees actually paid by Subscriber to LUMESIS within the twelve (12) month period immediately preceding the date upon which the relevant claim accrued.
3. Moody’s Rights to Data.
Subscriber agrees and acknowledges that the Moody’s Information and Licensed Data is and shall remain the valuable intellectual property owned by, or licensed to, Moody’s Analytics, Inc., (“Moody’s”) and that no proprietary rights are being transferred to Subscriber in such materials or in any of the information contained therein. Subscriber 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, Subscriber 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.
4. Securities Disclosures
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."
Subscriber expressly agrees, on behalf of itself and each other person or entity 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 Subscriber 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.