DIVER™ LICENSE AND USAGE AGREEMENT
Lumesis, Inc. (“Lumesis”)
operates this website (the “Site”) and the DIVER™ analytical software tool and
on-line computer systems (the “DIVER Tool”). Copyright © 2012 Lumesis,
Inc. All rights reserved. Lumesis™ and DIVER™ are trademarks of Lumesis,
Inc. The DIVER Tool contains
a. the DIVER Tool including all electronic databases and services accessed by or through the DIVER Tool and individual items within those databases or services which may constitute independent works of authorship;
b. all documentation, including user manuals, operations manuals and the like that may be provided to You by Lumesis for use in connection with the DIVER Tool; and
c. any other courses, video presentations, audio presentations, slideshows, software, products, services, data or information provided by Lumesis or obtained through the Site or the DIVER Tool.
Lumesis IS WILLING TO
GRANT YOU RIGHTS TO ESTABLISH AN ACCOUNT TO USE THIS SITE AND A LICENSE FOR THE
CONTENT SPECIFIED HEREIN ONLY UPON THE CONDITION THAT YOU ACCEPT ALL OF THE
TERMS CONTAINED IN THIS AGREEMENT AND YOU ENTER AND STAY CURRENT WITH A SERVICE
CONTRACT. PLEASE READ THE TERMS CAREFULLY. BY CLICKING ON "I AGREE"
BELOW, YOU WILL INDICATE YOUR AGREEMENT WITH THEM. 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. IF YOU DO NOT
AGREE WITH THESE TERMS, OR IF YOU DO NOT HAVE THE AUTHORITY TO BIND YOUR
ENTITY, THEN Lumesis IS UNWILLING TO GRANT YOU RIGHTS
TO ESTABLISH AN ACCOUNT AND TO USE THE SERVICES DELIVERED BY THIS SITE.
We reserve the right to modify this Agreement at any
time by posting an amended Agreement that is always accessible via this Site
and by giving you prior notice of such amendments. Your continued use of this
Site after notice of a modification indicates your acceptance of the amended
Agreement. You should check this Agreement through this link or our website
periodically for modifications by scrolling to the bottom of the page for a
listing of material changes and their effective dates.
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. Eligibility; License Grant For
Content, Terms of Use
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 of this Site, and to
download and otherwise use information and data provided by the DIVER Tool ("Content")
only for purposes of Your own use.
2.2 Licenses are not
available to minors under the age of 18 years of age and any user that has been
suspended or removed from this Site.
2.3 You may not have
more than one active license.
2.4 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”).
2.5 Mergent, Inc.: Certain financial 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.
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:
- 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;
- 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;
- forge
headers or otherwise manipulate identifiers in order to disguise the
origin of any information transmitted by you;
- 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);
- 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;
- 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
- 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 writing by You and Lumesis 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 extract and distribute DIVER Content internally,
either in original or modified form
(that is, only to Licensee's employees
but not to third parties) and only for Licensee's own use.
4.3 distribute Content
externally in a quantity or in a manner that serves as a substitute for
purchase of DIVER from Lumesis. Electronic
distribution of DIVER, its Content or otherwise output to third parties is also subject to the following additional restrictions:
(A)
Licensee must give Lumesis at
least five (5) business days prior notice of any contemplated electronic distribution to third parties under this subsection, and upon
request shall provide Lumesis with a sample of material to be distributed in the context in which it would be used, and
shall comply with any reasonable request for modification
or otherwise by Lumesis to protect Lumesis’ intellectual property or competitive interests;
(B)
Lumesis shall be provided, at no charge, with a copy of any materials as
actually distributed as well as access to any Web or other electronic site by
which such DIVER output are distributed; and
(c) Any distribution of
DIVER output shall include a reasonably conspicuous notice as follows: "SOURCE: DIVER, Lumesis, Inc. CONTAINS
COPYRIGHTED DISTRIBUTED UNDER LICENSE FROM Lumesis.
FOR RECIPIENT'S INTERNAL USE ONLY," or similar language reasonably acceptable to Lumesis.
4.4 disassemble, decode, decompile, or otherwise reverse
engineer any interfaces or software programs comprising
DIVER.
4.5 access, download, transfer or manipulate data and
databases comprising DIVER using
protocols or interfaces other than those provided by Lumesis.
4.6 Have access to or make any use of source code of DIVER.
4.7 Download data from DIVER with the intent of using such
data as a substitute for Licensee's subscription under a Service Contract.
4.8 Use DIVER, directly or indirectly, in competition with Lumesis.
5. Restrictions Regarding Sharing of
Identification and Password Codes. You will be issued a unique
identification and/or password codes for use in accessing the DIVER Tool. You
agree to safeguard Your identification and/or password codes. You may not share
Your identification and/or password codes with others. If Lumesis provides
you with an access identification, you may not allow concurrent use of this
Site or the DIVER Tool by multiple users utilizing identical user
identification numbers, or allow another person or entity to use your user
identification number to access this Site or the DIVER Tool. 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. This Site and
the DIVER Tool are 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 this Site and the DIVER Tool as 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 16. Ownership of this Site and the DIVER Tool and any and
all software used in providing, accessing or using DIVER, and any documentation
or information, shall remain at all times with Lumesis.
This Site and the DIVER Tool are protected by contract law and intellectual
property law, including all applicable copyright law, and all intellectual
property rights in this Site and the DIVER Tool. You may not remove, alter or
obscure any copyright, legal or proprietary notice in or on any portion of this
Site. 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 this Site or the DIVER Tool, 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.
7. Registration Data. Registration via
Service Contract is required for you to access and download Content from this
Site. You agree (i) to provide certain current, complete, and accurate registration
information about You as prompted to do so by the Service Contract, and (ii) to
maintain and update such registration information as required to keep such
information current, complete and accurate. You warrant that your registration information
is accurate and current, and that You are authorized to provide such registration
information. You authorize us to verify your registration information at any
time. If any registration information that You provide is untrue, inaccurate,
not current or incomplete, Lumesis retains the right,
in its sole discretion, to suspend or terminate rights to use the Site. Solely
to enable Lumesis to use information You supply us so
that we are not violating any rights You might have in that information, You
grant to Lumesis a nonexclusive license to (i)
convert such information into digital format such that it can be read, utilized
and displayed by Lumesis' computers or any other
technology currently in existence or hereafter developed capable of utilizing
digital information, and (ii) combine the information with other Content provided by Lumesis,
in each case by any method or means or in any medium whether now known or
hereafter devised.
8. Privacy Policy. You may access,
read, and print our policies regarding privacy and security through our Privacy
Policy link on this Site's home page. As stated in our Privacy Policy, we
reserve the right to modify our terms regarding privacy and security from time
to time. We will not, under any circumstances, be held responsible or liable
for situations where information or transmissions are accessed by third parties
through illegal or illicit means or through the exploitation of security
vulnerabilities in our site and network. We will promptly report to you any
unauthorized access to your information promptly upon discovery, and we will
use diligent efforts to promptly remedy any security vulnerability that
permitted the unauthorized access. If notification to persons affected by the
unauthorized access is required, you agree to be solely responsible for any and
all such notifications at your expense.
9. Technical Support. Lumesis shall answer questions by email and telephone
regarding the use of the web site and the materials licensed hereunder.
10.
Warranty Disclaimer. THIS SITE INCLUDING THE DIVER TOOL AND ALL DATA AND
INFORMATION CONTAINED ON THIS SITE, AND ALL CONTENT AND SERVICES OBTAINED
THROUGH THIS SITE, ARE PROVIDED ON AN "AS IS" BASIS FROM Lumesis AND ITS CONTENT PROVIDERS. Lumesis
AND ITS CONTENT PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, RELATING TO THIS AGREEMENT, OR THE DATA, INFORMATION,
CONTENT, MATERIALS AND/OR PRODUCTS INCLUDED ON THIS SITE. TO THE FULLEST EXTENT
PERMISSIBLE BY APPLICABLE LAW, EACH OF Lumesis AND Lumesis' CONTENT PROVIDERS DISCLAIMS ALL WARRANTIES,
EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND/OR NONINFRINGMENT.
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,
11.
Limitation of Liability. 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 VIA A SERVICE CONTRACT.
12. Posting To This Site. In the event
posting functionality is provided by the Site, we will not treat information
that you post to areas of this Site that are viewable by others as proprietary,
private, or confidential. We have no obligation to monitor posts to this Site
or to exercise any editorial control over such posts; however, we reserve the
right to review such posts and to remove any material that, in our judgment, is
not appropriate. Posting, transmitting, promoting, using, distributing or
storing Content that could subject us to
any legal liability, whether in tort or otherwise, or that is in violation of
any applicable law or regulation, or otherwise contrary to commonly accepted
community standards, is prohibited, including without limitation information
and material protected by copyright, trademark, trade secret, nondisclosure or
confidentiality agreements, or other intellectual property rights, and material
that is obscene, defamatory, constitutes a threat, or violates export control
laws.
13. 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.
14. Monitoring. We reserve the
right to monitor your access and use of this website without notification to
you. We may record or log your use in a manner as set out in our Privacy Policy
that is accessible by clicking on this Site's home page.
15. 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 this Site and/or the DIVER Tool.
16. Termination.
16.1 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 he term of the Service Contract, upon written notice to the
Lumesis.
16.2 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 Lumesis 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.
16.3 Upon termination of this Agreement, You shall cease
use of the DIVER Tool and return the Lumesis all related
documentation, together with all copies thereof, to Lumesis.
17. Notices. We may give
notice to you by means of (i) a general notice in your account information,
(ii) by electronic mail to your e-mail address on record in your Service
Contract, or (iii) 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 gbienstock@lumesis.com or tstevens@lumesis.com or (b) by letter delivered by nationally
recognized overnight delivery service or first class postage prepaid mail to us
as follows: Lumesis, Inc., 333 Ludlow Street, Stamford,
CT 06902, in either case, addressed to the attention Co-Founders. Notices will
not be effective unless sent in accordance with the above requirements.
18. 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 up to $1,000.00.
19. 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.
20. Survivability. The following Sections shall survive any
termination of this Agreement: 3-6, 10, 11, 13, 15, 18 and 19-25.
21. Entire Agreement, Severability. This Agreement,
the Service Contract and the Privacy Policy posted on this Site constitutes the
entire understanding of the parties with respect to the subject matter of this
Agreement and merges all prior communications, representations, and agreements.
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.
22. 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.
23. 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.
24. Headings. The headings of this
Agreement are intended for the convenience of the reader and shall not alter
the substance of any provision.
25. 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.
THE FOLLOWING
LANGUAGE IS APPLICABLE ONLY TO THE EXTENT YOU HAVE SUBSCRIBED TO DIVER CDM.
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 APPLICABLE TO YOUR USE
OF ANY OTHER LUMESIS PRODUCT OR SERVICE.
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.
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. 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.
6.
DISCLAIMER OF WARRANTIES: YOU EXPRESSLY AGREE THAT USE OF
AND ACCESS TO THE SERVICE IS AT YOUR SOLE RISK.
THE SERVICE IS PROVIDED ON AN "AS IS" AND AN "AS
AVAILABLE" BASIS. WE DO NOT MAKE,
AND HEREBY DISCLAIM, ANY REPRESENTATIONS OR WARRANTIES REGARDING THE SERVICE OR
ANY PORTION THEREOF, EXPRESS, IMPLIED OR STATUTORY, INCLUDING (WITHOUT
LIMITATION) IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE 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.
7.
LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, NEITHER LUMESIS, ITS LICENSORS, SUPPLIERS, PARTNERS,
AFFILIATES OR THIRD-PARTY SERVICE PROVIDERS SHALL BE LIABLE TO YOU OR ANY THIRD
PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR
CONSEQUENTIAL DAMAGES, OR ANY OTHER FORM OF DAMAGES IN ANY MANNER ARISING OUT
OF OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICE, REGARDLESS
OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM OR WHETHER OR NOT LUMESIS HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT
ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL
DAMAGES. ACCORDINGLY, SOME OF THE ABOVE
LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
8.
INDEMNITY: 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 IDs. 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.
9.
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.
10.
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 the Service; 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.
11.
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 the Service.
12.
The
Service 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.
13.
CUSIP
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Financial Services LLC on behalf of the American Bankers Association. Copyright
© 2012, American Bankers Association. All rights reserved.