1.1 Framework Agreement; Order Forms; Additional Subscriptions; Scope. This Master Services Agreement (“Agreement”) creates a contractual framework under which customer subscriber (“Subscriber”) may obtain a trial or subscription for access to and use of certain services provided by Valitana LLC (“Valitana”) as set forth in one or more order forms executed by the parties (each a “Service” and collectively the “Services”). Each trial or subscription shall be set forth on an order form executed by Subscriber, on the one hand, and Valitana, on the other hand, which order form shall contain the relevant details of the applicable Service, the fees payable therefor, and any additional terms and conditions applicable thereto (each, an “Order Form”).
Upon the execution of an Order Form by the duly authorized signatories of Valitana and Subscriber, such Order Form is hereby deemed a part of this Agreement, and any reference in this Agreement to “Subscriber” for purposes of such Order Form shall be deemed to refer to the relevant contracting party to the Order Form. Any Affiliate of Subscriber will have the right to enter into an Order Form executed by such Affiliate and Valitana and this Agreement will apply to such Affiliate as if it were a signatory to this Agreement.
As used in this Agreement, an “Affiliate” of a party shall mean any legal entity which either Controls, is under the Control of, or is under common Control with, such party; and where “Control” for purposes of the foregoing definition is established as (a) the direct or indirect ownership by a person or entity of at least fifty percent (50%) of the stock or other securities or interests entitled to vote for the election of the board of directors or other governing body of another entity, or (b) the direct or indirect ownership by a person or entity of at least fifty percent (50%) of the equity or profits interest in another entity. This Agreement does not contemplate the delivery of professional services or any non-software services by Valitana to Subscriber. Any such services (e.g., consulting services) will be subject to a separate agreement between the parties.
1.2 Access to Services. Subject to the terms and conditions set forth in this Agreement and the relevant Order Form(s), Valitana hereby grants to Subscriber and its Users, a limited, non-exclusive, non-transferable (except pursuant to Section 8.1 below) worldwide right to access and use the Service and Data identified in an Order Form for Subscriber’s internal business purposes during the applicable Order Form Term. Nothing herein grants Subscriber the right to, and Subscriber is not authorized to, sublicense the Service or Data. The foregoing license is limited to use of the Service and Data on a computer, terminal or device of a User on an ad hoc transactional basis solely for individual use. To the extent a Service includes any proprietary software application developed by Valitana that is required to be loaded and used on a User’s computer, terminal or device (“Software”), the rights granted under this Section 1.2 include the right to so load and internally use such Software as necessary to use the Services. Services include Software components licensed to Valitana by third parties (each a “Valitana Licensor”). All such Software components shall be subject to the terms of this Agreement. Notwithstanding the foregoing, to the extent any “free” or “open source” based software (“FOSS Software”) is shipped with any Software provided to Subscriber hereunder, such FOSS Software is not considered part of the Software hereunder, and Subscriber’s use of such FOSS Software is governed solely by the terms of the applicable open source or free software license. Valitana shall retain all rights not expressly granted to Subscriber herein.
1.3 Authorized Users.
(a) For purposes of this Agreement, a “User” means a unique, non-concurrent individual user who (1) is an employee or agent of Subscriber, (2) is authorized by Subscriber to have password protected access to the Service, and (3) is identified to Valitana in writing by Subscriber as a User. A User may not be substituted for another User unless the former User is no longer an employee or agent of Subscriber or any Affiliate of Subscriber. Unless otherwise specified in an applicable Order Form, the Service may be accessed and used by no more than the total number of authorized Users set forth on such Order Form; provided however, that Subscriber may add additional Users during the Order Form Term with the written agreement of Valitana by executing an amendment to the Order Form. Unless otherwise specified in the Order Form, the subscription term for any such additional User will be pro-rated for the remainder of the Order Form Term in effect at the time such additional User is added. Subscriber and its Users will not share any User identifications or passwords for the Service with any other person.
(b) Subscriber shall be solely responsible for maintaining the confidentiality of its and its Users’ account passwords, and for all activities that occur through its and its Users’ accounts. Subscriber will immediately notify Valitana of any breach or unauthorized use of any of its or its Users’ accounts. Valitana reserves the right to require Subscriber and its Users to immediately alter their passwords if Valitana believes that Users’ passwords are no longer secure. Subscriber will be solely responsible for any loss or damage Subscriber suffers as a result of its or its Users’ failure to adequately safeguard account information and may also be liable for the losses of others due to such failure.
1.4 Restrictions. Subscriber will not use the Services, including Data or any other component thereof, except as expressly authorized by this Agreement and by applicable law. Except as expressly permitted herein, Subscriber will not copy, reproduce, display, perform, modify or create derivative works of any Service, including without limitation of any documentation provided with a Service. Subscriber will not market, sell, license, sublicense, lease, transfer, assign, alter, repair, encumber or assign a security interest in any Service or any component thereof. Subscriber will not, and will not instruct, permit, allow or induce any person, directly or indirectly, to: (i) decompile, disassemble or otherwise reverse engineer any Service or any portion thereof, or otherwise attempt to derive the source code or other trade secrets embodied in any Service, except to the extent required to be permitted by law; (ii) use any Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (iii) use any Service in order to provide a service to a third party that competes with Service; (iv) attempt to gain unauthorized access to or use of any Service, or damage, disrupt, or impede the operation of, or probe, scan or test the vulnerability of, any Service or Valitana’s other services or systems; (v) upload or transmit any viruses, worms, defects, Trojan horses, or any programming of a destructive nature through any Service; (vi) access any Service in order to build a competing product or service or use the Service in a manner that does or could compete with Valitana’s business or to calibrate or improve any internal or third party system; or (vii) without limiting the generality of the foregoing, access or use any Data or any material subset thereof separate and apart from a Service or otherwise on a standalone basis. Valitana reserves the right to immediately suspend or terminate Subscriber’s subscription(s), without any further obligation to Subscriber and without any obligation to refund any Fees previously paid, if Subscriber tampers with or modifies any Service or otherwise uses any Service in violation of this Agreement without Valitana’s prior written authorization.
1.5 Valitana’s Responsibilities. Valitana will make the applicable Service available to Subscriber during the applicable Order Form Term pursuant to the terms and conditions set forth herein and in the applicable Order Form. Valitana: (i) will provide the Service in accordance with applicable laws and government regulations; (ii) will not knowingly provide Services that contain material nonpublic information; (iii) may provide the Service through a data hosting service provider; and (iv) will provide Subscriber with support for the Service as outlined in the Order Form to the extent reasonably practicable. Digital data and information inputted by Subscriber in connection with a Service (“Subscriber Data”) will be protected in accordance with Valitana’s Privacy Policy, which can be found at http://www.valitana.com/legal/privacy. The terms of such Privacy Policy are hereby incorporated herein by reference. Valitana will use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, excluding (a) scheduled maintenance or repairs; or (b) any unavailability caused by circumstances beyond Valitana’s reasonable control, including acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays, or denial of service attacks. Valitana will notify Subscriber via the Service of all scheduled maintenance or repairs prior to such maintenance or repairs in accordance with Valitana’s procedures.
1.6 No Exclusivity. No provision of this Agreement shall be deemed to restrict or limit Valitana’s right to use, market, sell, distribute, display or otherwise provide any Service directly or indirectly anywhere in the world, or enter into contracts, grant licenses or make arrangements with any other party (including competitors of Subscriber) to access or use or the Service anywhere in the world.
2.1 Data. For the purposes of this Agreement, “Data” shall mean proprietary databases of market, transaction, securities, fund, index, pricing, trade, ratings, and other business and financial data and information to be used in connection with, or to be transmitted through the provisions of, a Service. Certain Data will be provided to Valitana by third parties (each a “Data Provider”). Access or use of certain Data will require Subscriber to have a separate agreement with the applicable Data Provider prior to Subscriber’s access to or use of such Data. Special terms and conditions applicable to particular Data may be set forth in a separate Data Terms Addendum of the applicable Order Form. Subscriber shall at all times comply with all terms and conditions applicable to Data contained in this Agreement, each Order Form, any applicable Data Terms Addenda and Subscriber’s agreements with Data Providers. For the avoidance of doubt, any reference to one or more Services in this Agreement or an Order Form shall be deemed to include the Data relating to such Service(s), unless the context requires otherwise.
2.2 Structure, Format and Content of the Data. Valitana or a Data Provider may at any time change the structure, format, and/or content of the Data, alter, amend, merge or discontinue any of the Data, or replace the Data with successor products, in its sole discretion or otherwise in accordance with any applicable contractual provisions. If, in Valitana’s reasonable opinion, any such change would affect Subscriber’s ability to properly access and use a Service or Data, Valitana will provide Subscriber with thirty (30) days’ prior written notice of any such change. In the case where Valitana is unable to remedy the material impact within thirty (30) days following the written notice, Subscriber will be entitled to terminate the relevant Order Form(s) within thirty (30) days following the cure period by providing written notice to Valitana. In the event of any such termination under this Section, Subscriber shall be entitled to a pro rata refund of any Fees prepaid to Valitana for the Service or affected Data in respect of the period after termination.
3.1 Use of the Service. Subscriber will (a) use the Service only for its internal business purposes; (b) be responsible and liable for its Users’ compliance with this Agreement; (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services or any Data and promptly notify Valitana of any such unauthorized access or use of which it becomes aware; and (d) comply with all local, state and federal laws applicable to the use of the Services. Subscriber acknowledges that the Services are accessed via the Internet. Subscriber is responsible for providing all hardware, system software, access devices, networks and telecommunications or other connections required for Subscriber and its Users to access and use the Services and paying all telephony, data transmission and other costs associated with such access and use.
3.2 Updates. Valitana may add, update or delete features or functionality or modify the appearance of a Service at any time in its sole discretion. In connection with such updates and modifications, Subscriber may be required to implement upgrades or modifications to its networks and other systems and any such implementation shall be at Subscriber’s sole expense. If, in Valitana’s reasonable opinion, any such update or deletion of features or functionality materially and adversely affects Subscriber’s ability to properly access and use a Service, Valitana will provide Subscriber with thirty (30) days’ prior written notice of any such change. In the case where Valitana is unable to remedy the material impact within thirty (30) days following the written notice, Subscriber will be entitled to terminate the relevant Order Form(s) within thirty (30) days following the cure period by providing written notice to Valitana. In the event of any such termination under this Section, Subscriber shall be entitled to a pro rata refund of any Fees prepaid to Valitana for the Service or affected Data in respect of the period after termination.
3.3 Integrity of Service and Data. Subscriber is not authorized to, and shall not, modify, alter, delete or tamper with the Service or the content of the Data. Subscriber shall not remove or alter any copyright or other proprietary rights notice, or any disclaimers or other legal notices contained in any Service or Data.
3.4 Subscriber Data. Subscriber will be responsible for the accuracy, quality and legality of Subscriber Data and the legality of the means by which Subscriber acquired Subscriber Data. Subscriber further acknowledges that in connection with its use of a Service, Valitana may have access to or process Subscriber Data, including system-specific data and personal, proprietary information, and, subject to Valitana’s compliance with its confidentiality obligations under Section 8.5, Subscriber hereby authorizes Valitana to do so as required to provide the Service to Subscriber.
3.5 Termination of Service. Subscriber shall notify Valitana of any action by any User known or suspected by Subscriber to constitute a breach of this Agreement or an Order Form relating to the unauthorized use of a Service or Data. Valitana may terminate Subscriber’s access to one or more Services and any or all Data to the extent Valitana determines that Subscriber or any User has engaged in any unauthorized use, reproduction, modification, distribution, or disclosure of any Service or any Data.
3.6 Specific Restrictions on Use of Data. Without limiting the generality of the restrictions in Section 1.4, Subscriber agrees that it will not: (i) use the Data as part of, or disseminate the Data in connection with, a prospectus or other offering document with respect to securities or assets of any type; (ii) use the Data to develop or support any financial index; (iii) use the Data to create pricing for any investment vehicle or other portfolio of securities; or (iv) use the Data to develop, deliver or support any financial product or service. Subscriber acknowledges that the Data is not appropriate or suitable for such purposes.
4.1 Ownership of the Service. As between Subscriber and Valitana, Valitana owns and retains all right, title and interest, including all intellectual property rights, in and to (a) the Services, (b) Valitana’s Confidential Information and any and all other information relating to the Services or their implementation, marketing, promotion, or sale; (c) all work product, content, ideas, know-how, concepts, methods and techniques created or employed by Valitana in the delivery of a Service, whether pre-existing or developed in the course of delivering such Service; and (d) any derivative works based on any of the foregoing (collectively, the “Valitana IP”). In addition, Subscriber agrees and acknowledges that Valitana has an unlimited, irrevocable, perpetual right and license to use, incorporate into Valitana’s offerings, distribute and otherwise exploit all suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to any of Valitana’s offerings provided by Subscriber or any of its Users, all of which is deemed part of the Valitana IP. In the event any right, title or interest arises or vests at any time in Subscriber to any Valitana IP, Subscriber hereby assigns to Valitana all such right, title and interest.
4.2 Ownership of Data. Subscriber acknowledges that: (a) the Data and any related documentation, and all copyrights, trade secret rights and other intellectual property rights embodied therein, are and shall remain the property of Valitana and Data Providers from whom such materials are licensed; (b) the Data are subject to protection under the patent, trademark, copyright, trade secret, database, and other intellectual property laws of the United States and all other jurisdictions; and (c) the Data were created, compiled, prepared, selected and arranged by Valitana and its Data Providers through the expenditure of substantial time, effort and resources and that the Data constitute valuable intellectual property of Valitana and its Data Providers.
4.3 Infringement. Subscriber shall promptly advise Valitana of any infringement or misappropriation of the Valitana IP or any copyrights, trade secrets or other proprietary rights of the Data Providers or Valitana Licensors in a Service or Data of which Subscriber becomes aware.
4.4 Subscriber Data. As between Subscriber and Valitana, Subscriber shall own and will retain all right, title and interest, including all intellectual property rights, in and to Subscriber Data.
4.5 Reservation of Rights. Other than the explicit rights granted herein, nothing in this Agreement will be construed or interpreted as granting to Subscriber any rights or licenses in or to the Valitana IP or the intellectual property of Valitana Licensors or Data Providers, including any rights of ownership, intellectual property rights or any other proprietary rights. THE SERVICE AND ALL DATA FURNISHED BY VALITANA PURSUANT TO THIS AGREEMENT ARE PROPRIETARY TO VALITANA (OR VALITANA LICENSORS OR THE DATA PROVIDERS) AND ARE SO FURNISHED AT SUBSCRIBER'S REQUEST AND FOR SUBSCRIBER'S USE. THE SERVICE AND DATA SO FURNISHED MAY NOT 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 VALITANA’S PRIOR WRITTEN CONSENT (OR THAT OF VALITANA LICENSORS OR DATA PROVIDERS, AS APPLICABLE).
4.6 Audit Right; Certification Requirements. Upon Valitana’s request, Subscriber shall provide Valitana with (a) reasonable information relating to the usage of any Service or Data; and (b) a written certification of a duly authorized corporate officer of Subscriber that Subscriber is in compliance with the material terms of this Agreement and any applicable Order Form(s) (including but not limited to any terms relating to limitations on the usage of a Service and/or Data). During the term of this Agreement and for twelve months thereafter, Valitana (or its designated third party auditor) may inspect or audit through correspondence (including via email) Subscriber’s records pertaining to this Agreement, and the computer systems on which any Service or Data are or have been accessed, stored, processed, disseminated or used by Subscriber solely for purposes of determining compliance with the terms of this Agreement and any applicable Order Form(s). Any such inspection or audit shall provide no less than ten (10) days’ prior notice to Subscriber of any such inspection. Valitana’s failure to conduct an inspection or audit shall not relieve Subscriber of any obligations under this Agreement or any Order Form. Any information obtained by Valitana in the course of an inspection or audit may only be used by Valitana in enforcing its rights under this Agreement or an Order Form, and otherwise shall be treated by Valitana as Confidential Information of Subscriber. An Order Form may have additional certification or audit requirements as agreed by the parties. Valitana or its designated third party auditor may inspect (through correspondence) Subscriber’s records pertaining to this Agreement, but for the avoidance of doubt, will not have direct access to Subscriber’s systems or terminals.
5.1 Fees. In respect of each Service, Subscriber shall pay to Valitana the fixed and/or variable fees (“Fees”) set forth in the relevant Order Form with respect to the Order Form Initial Term. Thereafter, Fees for subsequent Order Form Renewal Terms (as defined in Section 7.1) shall be subject to automatic annual increases in the amount of ten percent (10.0%) commencing at the start of each Order Form Renewal Term. Fees categorized as “setup” or “initial” fees will be invoiced promptly upon the execution of an Order Form by Subscriber. Fees categorized as recurring fees will be invoiced to Subscriber quarterly in advance. All Fees shall be payable to Valitana within thirty (30) days’ of receipt of Valitana’s invoice. In the event an invoice is not paid within sixty (60) days of receipt, Valitana will charge a late payment fee of 0.1% per day of the amount past due, with a minimum fee of two hundred fifty US dollars ($250). If payment delinquency reaches 120 days of receipt, Valitana has the right to suspend support or shut off service at its sole discretion. Subscriber shall pay the Fees according to the payment schedule as set forth in the relevant Order Form, or, if no such schedule is provided, Subscriber shall pay the Fees quarterly in advance. All payment obligations are non-cancelable and Fees paid are non-refundable (except as expressly set forth herein). In addition to any and all rights provided by this Agreement or an Order Form, or otherwise at law or in equity, Valitana may suspend all Services hereunder in the event of any breach by Subscriber, including non-payment of Fees.
5.2 Taxes. Subscriber shall be solely responsible for any and all taxes, fees and similar governmental charges related to the execution or performance of this Agreement and all Order Forms (including, without limitation, sales and use taxes), other than applicable income taxes imposed on Valitana in connection with Valitana’s receipt of Fees under Section 5.1.
6.1 Disclaimer.
WHILE THE SERVICE AND DATA IS BELIEVED BY VALITANA IN GOOD FAITH TO BE ACCURATE AND RELIABLE, MUCH OF THE SERVICE AND DATA IS BASED UPON INFORMATION OBTAINED FROM THIRD PARTY SOURCES THAT ARE NOT INDEPENDENTLY VERIFIED BY VALITANA. SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT VALITANA DOES NOT AUDIT OR VERIFY THE ACCURACY OF THE INFORMATION PROVIDED TO IT BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION ISSUERS, THEIR REPRESENTATIVES, DATA PROVIDERS, ACCOUNTANTS AND LEGAL ADVISORS AND OTHERS. FURTHER, BECAUSE OF THE POSSIBILITY OF HUMAN AND MECHANICAL ERROR AND OTHER FACTORS, THE SERVICE AND ALL DATA IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW VALITANA AND VALITANA LICENSORS AND DATA PROVIDERS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES TO SUBSCRIBER WITH RESPECT TO THE SERVICE AND DATA, EXPRESS OR IMPLIED, AND WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY OR GUARANTEE AS TO THE CORRECTNESS, INTEGRITY, PERFORMANCE, QUALITY, RELIABILITY, EFFECTIVENESS, ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY OR THE RESULTS TO BE OBTAINED FROM THE USE OF OR ANY PARTY OF THE SERVICE OR DATA (B) ANY WARRANTY THAT THE SERVICE OR ACCESS TO DATA WILL BE UNINTERRUPTED OR ERROR FREE, (C) THE IMPLIED WARRANTIES OF TITLE, SUITABILITY, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE EVEN IF VALITANA HAS BEEN INFORMED OF SUCH PURPOSE, AND (D) ANY WARRANTIES ARISING BY IMPLICATION OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. VALITANA, VALITANA LICENSORS AND DATA PROVIDERS SHALL NOT BE LIABLE TO SUBSCRIBER OR TO ANY THIRD PARTY WITH RESPECT TO ANY OF THE FOREGOING. SUBSCRIBER SHALL NOT MAKE ANY STATEMENT RESPECTING THE SERVICE OR DATA THAT IS CONTRADICTORY TO OR INCONSISTENT WITH THE FOREGOING STATEMENTS. SUBSCRIBER UNDERSTANDS AND AGREES THAT ITS USE OF THE SERVICE AND DATA IS AT ITS OWN DISCRETION AND RISK AND THAT IT WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING THEREFROM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY SUBSCRIBER FROM VALITANA OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY FROM VALITANA NOT EXPRESSLY MADE HEREIN.
VALITANA DOES NOT RECOMMEND THE PURCHASE OR SALE OF FINANCIAL PRODUCTS OR SECURITIES AND DOES NOT GIVE INVESTMENT ADVICE OR PROVIDE ANY LEGAL, AUDITING, ACCOUNTING, APPRAISAL OR ACTUARIAL SERVICES. AS SUCH, A REFERENCE TO A PARTICULAR INVESTMENT OR SECURITY, ANY ATTRIBUTE OF AN INVESTMENT OR SECURITY, OR ANY OBSERVATION CONCERNING A SECURITY OR INVESTMENT PROVIDED IN THE SERVICE IS NOT A RECOMMENDATION TO BUY, SELL OR HOLD SUCH INVESTMENT OR SECURITY OR MAKE ANY OTHER INVESTMENT DECISIONS. SOME PRODUCTS INCLUDED IN THE VALITANA DATA MAY INCLUDE MATHEMATICALLY OR NON-MATHEMATICALLY DERIVED THEORETICAL APPROXIMATIONS OF VALUE FOR CERTAIN SECURITIES. VALITANA MAKES NO REPRESENTATION OR WARRANTY THAT SUCH EVALUATIONS ARE ERROR-FREE, THAT INPUT DATA SUPPLIED TO OR BY VALITANA FOR USE IN SUCH EVALUATIONS OR THE SOFTWARE OR METHODOLOGIES USED BY VALITANA ARE COMPLETE OR FREE FROM ERRORS, OMISSIONS, OR DEFECTS, OR THAT APPROXIMATIONS OF VALUE GENERATED BY ITS MODELS AND EVALUATION METHODOLOGIES NECESSARILY CORRESPOND TO THE ACTUAL TRADED PRICE WHICH COULD BE OBTAINED ON ANY GIVEN DAY FOR ANY PARTICULAR SECURITY. USERS OF THE VALITANA DATA ASSUME ALL RESPONSIBILITY FOR VERIFICATION OF AND APPROPRIATENESS OF THE USE OF EVALUATIONS. SOME PRODUCTS INCLUDED IN THE VALITANA DATA MAY INCLUDE OPINIONS RELATING TO THE LIQUIDITY OR OTHER ATTRIBUTES OF FINANCIAL PRODUCTS OR SECURITIES. VALITANA MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, CORRECTNESS, INTEGRITY, COMPLETENESS OR TIMELINESS OF ANY SUCH OPINION. VALITANA IS NOT RESPONSIBLE FOR ANY CREDIT, LOAN OR INVESTMENT DECISIONS, DAMAGES OR OTHER LOSSES RESULTING FROM THE RELIANCE UPON OR USE OF THE VALITANA DATA.
6.2 Limitation of Liability.
EXCEPT IN THE CASE OF FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR LIABILITY ARISING OUT OF VALITANA’S OBLIGATIONS UNDER SECTION 6.3, IN NO EVENT SHALL VALITANA, OR ANY OF ITS MEMBERS, SHAREHOLDERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS (“VALITANA AFFILIATES”) BE LIABLE FOR ANY LOSS OR 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 VALITANA OR THE VALITANA AFFILIATES IN CONNECTION WITH THE PROCUREMENT, COLLECTION COMPILATION, ANALYSIS, INTERPRETATION, COMMUNICATION, PUBLICATION, USE OR DELIVERY OF THE SERVICE OR DATA; NOR SHALL VALITANA OR THE VALITANA AFFILIATES HAVE ANY LIABILITY TO SUBSCRIBER BASED ON AN ALLEGATION THAT THEY OWE A DUTY OF CARE TO SUBSCRIBER.
IN NO EVENT SHALL VALITANA OR ANY VALITANA AFFILIATE BE LIABLE TO SUBSCRIBER OR ANY OF SUBSCRIBER’S AFFILIATES FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING UNDER OR RELATING TO THIS AGREEMENT OR FOR LOST PROFITS, WHETHER IN CONTRACT OR TORT (INCLUDING BREACH OF WARRANTY, NEGLIGENCE OR STRICT LIABILITY), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for certain damages. Accordingly, some of the limitations and disclaimers set forth in this Section 6 may not apply to Subscriber. To the extent that Valitana may not, as a matter of applicable law, disclaim any implied warranty or limit its liabilities, the scope and duration of such warranty and the extent of Valitana’s liability will be the minimum permitted under such applicable law.
6.3 Valitana Indemnification. Valitana shall defend Subscriber from and against any third party claim that Valitana’s provision of the Service (excluding any Data provided to Valitana by a Data Provider) infringes any United States patent of a third party issued as of the Effective Date, or any other United States non-patent intellectual property right of a third party; provided however, that (i) Subscriber shall have promptly provided Valitana with written notice thereof and reasonable cooperation, information, and assistance in connection therewith; and (ii) Valitana shall have sole control and authority with respect to the defense, settlement, or compromise thereof, provided that Subscriber’s reasonable consent to any such settlement or compromise shall be required unless it includes a full release of Subscriber and does not require any admission of liability on the part of Subscriber. Valitana will have no liability or obligation with respect to any claim if such claim is caused in whole or in part by (a) compliance with designs, guidelines, plans or specifications provided by Subscriber; (b) use of the Service by Subscriber not in accordance with this Agreement; (c) modification of any Service by any party other than Valitana without Valitana’s express consent; or (d) the combination, operation or use of the Service with other applications, portions of applications, product(s) or services where the Service would not by itself be infringing.
In the event that a Service becomes, or in Valitana’s reasonable opinion is likely to become, the subject of any such claim, Valitana may, at its option and expense, (1) procure for Subscriber the right to continue to use the Service, (2) modify the Service in any manner deemed advisable by Valitana so as to make it non-infringing, or (3) terminate the applicable Order Form(s) and provide a pro rata refund of any prepaid fees corresponding to the terminated portion of the applicable subscription term.
6.4 Subscriber’s Indemnification. Subscriber shall defend Valitana, Valitana Affiliates, Valitana Licensors and Data Providers (“Valitana Indemnified Parties”) from and against any third party claim arising from (i) Subscriber’s or Subscribers’ access or use of the Service or Data provided hereunder in contravention of this Agreement, (ii) Subscriber’s violation of applicable law, or (iii) the actual or alleged violation or infringement of any intellectual property or privacy rights of any third party by Subscriber Data or any other materials provided by Subscriber to Valitana under this Agreement, in each case except to the extent covered under Valitana’s indemnification obligations in Section 6.3 hereof; provided, however, that (1) Valitana shall have promptly provided Subscriber with written notice thereof and reasonable cooperation, information, and assistance in connection therewith, and (2) Subscriber shall have sole control and authority with respect to the defense, settlement, or compromise thereof; and provided further that Valitana’s reasonable consent to any such settlement or compromise shall be required unless it includes a full release of the Valitana Indemnified Parties and does not require any admission of liability on the part of Valitana.
7.1 Term. This Agreement commences as of the Effective Date in the Order Form and shall continue until the expiration or termination of all Order Forms hereunder. Each Order Form shall commence on its effective date stated therein and continue for an initial term ending on the expiration date stated therein (the “Order Form Initial Term”) or such other date indicated on the Order Form. Valitana shall notify Subscriber at least ninety (90) days prior to the expiration of the Order Form Initial Term (and each Order Form Renewal Term thereafter) that the Order Form shall automatically renew for successive periods of two years each (each, an “Order Form Renewal Term”) unless either party has notified the other in writing, at least forty five (45) days prior to the expiration of the then-current Order Form Term that the Order Form shall not be renewed. Upon such notice, the Order Form shall terminate upon the expiration of the then-current Order Form Term. A Service’s Order Form Initial Term together with all subsequent Order Form Renewal Terms shall constitute the Service’s “Order Form Term”.
7.2 Termination for Breach. Either party may terminate this Agreement, and all Order Forms hereunder, upon written notice if the other party materially breaches this Agreement and fails to remedy the breach within thirty (30) days after being given written notice thereof; provided that the non-breaching party may elect to terminate only the Order Form(s) to which the breach relates.
7.3 Termination for Insolvency. Either party may terminate this Agreement and all Order Forms hereunder upon written notice to the other party if the other party: (i) becomes judicially declared insolvent, (ii) makes an assignment for the benefit of creditors, (iii) has a petition filed by or against it under any state or federal bankruptcy or insolvency laws (or any similar law of any foreign jurisdiction), and such petition is not vacated within sixty (60) days, or (iv) otherwise ceases to function as a going concern or to conduct operations in the normal course of business without a successor.
7.4 Termination for Breach of Intellectual Property Rights. Valitana may terminate this Agreement and all Order Forms hereunder immediately, on written notice, if Subscriber commits a material breach of any term or condition in this Agreement relating to the Valitana IP or the intellectual property rights of a Valitana Licensor or Data Provider.
7.5 Effect of Termination. Upon the expiration or termination of an Order Form for any reason, Subscriber shall (a) immediately cease the use of the applicable Service and the relevant Data, and (b) delete any such Data then stored on Subscriber’s computer systems; provided that Subscriber may retain (with no right to use) Data solely for archival or regulatory compliance purposes to the extent required by law.
7.6 Survival. Valitana’s and Subscriber’s rights and obligations under Article IV (“Proprietary Rights”), Article VI (“Disclaimer; Limitations of Liability; Indemnities”), Section 7.5 (“Effect of Termination”) and Article VIII (“General”), and any other provision of this Agreement or any Order Form that expressly extends beyond the termination of this Agreement or any such Order Form, shall survive the expiration or termination of this Agreement or an Order Form for any reason.
8.1 Assignment. Subscriber may not assign this Agreement or any Order Form, or sublicense, assign or delegate any of its rights or obligations, in whole or in part, under this Agreement or any Order Form without the advance written consent of Valitana. Any attempted or purported assignment of this Agreement or any Order Form without such consent shall be void ab initio. Notwithstanding the foregoing, either party may assign this Agreement without such prior written consent to a successor to all or substantially all of its assets, but upon at least thirty (30) days’ written notice to the other party. Valitana may assign this Agreement and any Order Form, or any of its rights or obligations, in whole or in part, under this Agreement or any Order Form, to any person without Subscriber’s consent. Subject to the foregoing, this Agreement shall inure to the benefit of, be binding upon, and be enforceable against, each of the parties hereto and their respective permitted successors and assigns.
8.2 No Agency. The parties hereto are independent contractors. Neither the making of this Agreement nor the performance of its provisions shall be construed to constitute either of the parties hereto as an agent, employer, employee, partner, joint venturer, or legal representative of the other. Each party expressly acknowledges that it has no right or authority to incur or create any obligation, make any representation, or undertake any responsibility, express or implied, unless authorized in advance in writing by the other party. In no event shall either party act or represent itself as an agent for or of the other party.
8.3 Entire Agreement; Amendment/Waiver; Severability. This Agreement and all Order Forms hereunder contain the final and entire agreement and understanding of the parties on the subject matter herein and therein and supersede all previous verbal or written agreements, arrangements, communications, and understandings about such subject matter. This Agreement may be amended, modified, superseded, or canceled, and any of the terms thereof may be waived, only by a written document signed by both parties to this Agreement or, in the case of waiver, by the party against whom enforcement of such alleged waiver is sought. If, for any reason whatsoever, any one or more provisions of this Agreement or an Order Form shall be found to be inoperative, invalid, or unenforceable in a particular circumstance or inapplicable to a particular person or other entity by a court of competent jurisdiction, such finding shall neither render such provision inoperative, invalid, or unenforceable in any other circumstance or inapplicable to any other person or other entity, nor render any other provision of this Agreement or any Order Form inoperative, invalid, unenforceable, or inapplicable.
8.4 Governing Law; Jurisdiction; Service of Process. This Agreement and, unless otherwise expressly stated therein, all Order Forms, shall be governed by, and construed in accordance with, the laws of the State of New York applicable to contracts made and to be performed wholly within such State, without reference to principles of conflicts of laws thereof. In any action arising out of or related to this Agreement, each party consents to the exclusive jurisdiction of any state or federal court sitting in the county of New York, New York, and of any court to which an appeal therefrom may be taken. Each party hereby irrevocably and unconditionally consents to, and agrees to accept, service of process in any action, suit or proceeding instituted against it in connection with any dispute arising under this Agreement or any Order Form in the same manner as notice is given in accordance with the Order Form. Notwithstanding anything herein, each party will be entitled to seek injunctive and other equitable relief in any court of competent jurisdiction, without waiving any other rights or remedies available to it.
8.5 Confidentiality.
(a) “Confidential Information” means the terms of this Agreement, any Order Form and other information that is disclosed by a party (“Discloser”) to the other party (“Recipient”) whether orally or in writing, that is designated as confidential at the time of disclosure or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limitation of the foregoing, Subscriber Confidential Information includes Subscriber Data and Valitana’s Confidential Information includes the Services, this Agreement and each Order Form for access to or use of a Service, Valitana IP and all information relating to Valitana’s business, including product and service development plans and technical information. Notwithstanding the foregoing, Confidential Information does not include information that Recipient demonstrates: (i) was already known to Recipient at the time of disclosure by Discloser; (ii) was disclosed to Recipient by a third party who had the right to make such disclosure without any confidentiality restrictions; (iii) is, or through no act of Recipient has become, generally available to the public; or (iv) was independently developed by Recipient without access to, or use of, Discloser’s Confidential Information.
(b) Recipient will not use any Confidential Information of Discloser for any purpose not expressly permitted by this Agreement or an Order Form, and will disclose the Confidential Information of Discloser only to the employees or contractors of Recipient who have a need to know such Confidential Information for purposes of exercising Recipient’s rights or performing its obligations under this Agreement or an Order Form, and who are under a duty of confidentiality no less restrictive than Recipient’s duty hereunder. Recipient will protect Discloser’s Confidential Information from unauthorized use, access, or disclosure in the same manner as Recipient protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
(c) Notwithstanding anything in this Agreement to the contrary, (i) Valitana may disclose Subscriber Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, and (ii) Subscriber may disclose Valitana Confidential Information to the extent that such disclosure is required by law or by the order of a court of similar judicial or administrative body, provided, that, the applicable Recipient (1) notifies the applicable Discloser of such required disclosure promptly and in writing in order to permit the Discloser to seek a protective order or other appropriate relief, (2) reasonably cooperates with the Discloser in such efforts, and (3) discloses only the Discloser Confidential Information required to be disclosed. Recipient will continue to treat any Confidential Information disclosed pursuant to this Section 8.5 as Confidential Information for all other purposes. In addition, each party may disclose the terms of this Agreement and the Order Forms confidentially to any actual or potential financing source or acquirer.
(d) Further, notwithstanding anything in this Agreement to the contrary, Subscriber acknowledges that (i) Valitana may disclose Subscriber Confidential Information to its employees, contractors, members, directors, managers or agents, (ii) Valitana may disclose Subscriber Confidential Information relating to Subscriber’s name, lists of Users and Non-Specific Usage Information regarding the Services to its Affiliates and their employees, contractors, members, directors, managers or agents solely for the purposes of monitoring, overseeing and evaluating Valitana’s offerings and the Services, and (iii) Valitana’s agreement with a Valitana Licensor or Data Provider may require Valitana to disclose to the Valitana Licensor, Data Provider certain information with respect to Subscriber, including Subscriber’s name, lists of Users and Non-Specific Usage Information. Subscriber hereby consents to such disclosure by Valitana. For purposes of this Section 8.5(d), Non-Specific Usage Information means information regarding the usage of the Services by Subscriber and its Users that does not identify any specific security or instrument and includes, by way of example and without limitation, the types and sub-types of Services accessed or utilized by Subscriber and its Users (including, without limitation, the modules and Data types accessed by such persons) and the frequency and duration of such access or utilization. Non-Specific Usage Information shall not include information regarding specific securities or instruments queried by Subscriber or a User or any information inputted into a Service by Subscriber or a User.
8.6 Notices. All notices, requests, or other communications or documents to be given under this Agreement or an Order Form (unless otherwise specifically noted therein) shall be in writing and addressed to the contact designated below and to the Subscriber contact designated in the Order Form and shall be deemed effective: (i) when delivered by hand; (ii) one day after posting with a recognized express delivery service specifying priority overnight delivery with written verification of receipt (in the case of internal domestic U.S. deliveries); (iii) three (3) days after posting with a recognized international express delivery service specifying priority international delivery with written verification of receipt (in the case of international deliveries); or (iv) when delivered by electronic mail. Each party may designate a different address or contact person by notice given in the manner provided in this Section 8.6 and in the Order Form.
If to Valitana:
Valitana LLC
300 First Stamford Place, Suite 240
Stamford, Connecticut, 06902
Attention: Legal
Email: notices@valitana.com
8.7 Third Party Beneficiaries. Nothing contained in this Agreement or any Order Form, expressed or implied, is intended to confer on any person other than the parties hereto or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities pursuant to, or by reason of, this Agreement or such Order Form, provided that Valitana Licensors, Data Providers and the Valitana Affiliates shall be intended third party beneficiaries of provisions in which they are identified, as applicable.
8.8 Authority. Each of the parties represents and warrants to the other that (a) it has full power and authority to enter into this Agreement and any Order Form related hereto and perform its obligations hereunder and thereunder, and (b) all necessary corporate action has been duly taken to authorize the individual signing below to sign this Agreement and all Order Forms hereunder.
8.9 Counterparts/Execution. This Agreement and any Order Form hereunder may be executed in counterparts, which together shall constitute a single instrument, and may also be executed by electronic signature, and the parties agree that facsimile, digitally scanned or other electronic copies of signatures shall be valid and binding as originals.
8.10 Sanctions Compliance. Subscriber warrants that it is not, nor is it owned or controlled by, directly or indirectly, a person or entity that is (i) on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.K. Consolidated Financial Sanctions List maintained by Her Majesty’s Treasury; or (ii) subject to country sanctions imposed by the U.S. Government for any reason, including but not limited to being organized or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria, Sudan, and Crimea); or (iii) organized or headquartered in any other country to which the export or re-export of U.S.-origin goods or technologies are generally embargoed (currently North Korea). Additionally, Subscriber warrants that it does not intend to and will not supply or use Valitana products or services to or for the benefit of any of the foregoing (hereinafter “Prohibited Entities”). Subscriber agrees that it will notify Valitana if these circumstances change. For purposes of this provision, “owned” and “own” mean an interest of fifty (50) percent or more and “control” means the right or ability to dictate the decisions, actions, and/or policies of an entity or its management. For the avoidance of doubt, the foregoing prohibitions apply notwithstanding any terms in any Order Form or other writing, whether express or implied. Accordingly, even if the scope of a license granted in any Order Form or other writing would otherwise include Prohibited Entities, the prohibitions herein shall prevail. If Subscriber breaches this Section, or if Valitana determines that it is prohibited under any applicable law or regulation from providing products or services under this Agreement, in addition to any other rights or remedies Valitana may have, Valitana may immediately terminate the Agreement and/or any affected Order Forms.
8.11 Insurance. Valitana shall secure and maintain during any Order Form Term appropriate forms of insurance at adequate levels of coverage to protect its business. Subscriber shall be named as additional insureds on Valitana’s applicable policies. Each policy (unless otherwise noted) shall provide coverage to the additional insureds that is at least as broad as that provided to the first named insured. Insurance certificates may be provided upon Subscriber’s written request.
8.12 Marketing. During the term of this Agreement, Subscriber grants Valitana the right to use Subscriber’s name and logo as a reference for marketing or promotional purposes on Valitana’s website and in other public or private communications or disclosures with its existing or potential customers and investors, subject to Subscriber’s standard trademark usage guidelines as provided to Valitana from time to time. Subscriber shall be removed from the reference list by providing written notice to Valitana via email to notices@valitana.com. Valitana will remove Subscriber from the reference list upon receipt of Subscriber email.
8.13 Non-Solicitation. During the term of this Agreement and for a period of twelve (12) months following its termination, neither party shall, directly or indirectly, solicit, induce, or attempt to solicit or induce any employee of the other party to terminate their relationship with that party or to engage in business with the soliciting party or any competitor of that party.
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