Software License Agreement
PLEASE READ THIS LICENSE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS ON WHICH INTERNET SECURITIES, INC., TRADING AS ISI EMERGING MARKETS, A DELAWARE CORPORATION (“VENDOR”), WITH PRIMARY OFFICES LOCATED AT 225 PARK AVENUE SOUTH, NEW YORK, NY 10003, IS WILLING TO LICENSE CERTAIN SOFTWARE TO YOU (“LICENSEE”).
IF YOU ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY CLICKING THE BUTTON BELOW, AND/OR BY USING ANY PORTION OF THE EXECUTABLE CODE FOR THE CEIC DATA MANAGER SOFTWARE, INCLUDING ANY UPDATES TO SUCH SOFTWARE AND/OR ANY ELECTRONIC OR PRINTED DOCUMENTATION (together the “SOFTWARE”), YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THE AGREEMENT, AND THIS WILL BE A LEGALLY BINDING AGREEMENT BETWEEN YOU AND VENDOR.
IF YOU DO NOT AGREE WITH THIS AGREEMENT, DO NOT ACCESS AND/OR USE THE SOFTWARE AND PROMPTLY RETURN THE SOFTWARE TO VENDOR.
ARTICLE I: DEFINITIONS:
Section 1.01 -- Recitals: The above identification of parties and recitals are true and correct.
Section 1.02 -- Definitions: The following definitions shall apply:
(1) Access: The term “access” and variants thereof (including, but not limited to, the terms “access”, “accessible” and “accessing”, in upper or lower case) shall mean to display and/or use (directly or indirectly) through electronic means or otherwise.
(2) Associates: The term “Associates” shall mean an employee of Vendor or an independent contractor hired by Vendor.
(3) Authorized Person: The term “Authorized Person” shall mean employees of Licensee authorized by Licensee to access Confidential Information and individuals or entities who are authorized in writing by Vendor to receive Confidential Information and who agrees to maintain the confidentiality of such Confidential Information.
(4) Concurrent Access: The term “Concurrent Access” shall mean concurrent access to the Software using the same Password.
(5) Confidential Information: The term “Confidential Information” shall mean all information concerning the business and technical plans of Vendor and all information (including, but not limited to the data produced by CEIC, Consensus Economics inc., Feri Rating & Research AG and any other databases in connection with the Software and this Agreement which is disclosed by Vendor to Licensee or learned by Licensee and which is not: (a) already known to Licensee; (b) conveyed to Licensee by a third party without restriction; (c) released by Vendor without restriction; (d) independently developed by Licensee; or (e) in the public domain..
(6) Effective Date: The term “Effective Date” shall mean the date Licensee first accesses the Software.
(7) Password: The term “Password” shall mean that certain user name and password assigned by Vendor to each User for purposes of accessing the Software.
(8) Unauthorized Access: The term “Unauthorized Access” shall mean any access to the Software except for the exclusive purposes of use of the performance, utility and functions of the Software by Users for internal business operation of Licensee, and training employees of Licensee in the use of the Software.
(9) Unauthorized User: The term “Unauthorized User” shall mean any individual who accesses the Software except for employees of Licensee licensed hereunder to access the Software using the performance, utility and functions of the Software for internal business operations of Licensee and training employees of Licensee in the use of the Software.
(10) Users: The term “Users” shall mean employees of Licensee authorized by Vendor and Licensee to access the Software, excluding Unauthorized Users.
ARTICLE II: SCOPE OF LICENSE:
Section 2.01 -- Grant of License: Vendor hereby grants to Licensee a non-exclusive, non-transferable license to download and use the Software, subject to the terms and conditions of this Agreement.
Section 2.02 – User Limit: Licensee’s right to use the Software is limited to the number of Users and/or the number of CPUs for which Licensee has paid license fees. The Software is limited for use with the Licensee’s data only.
Section 2.03 -- Term: Licensee’s right to use the Software begins on the Effective Date and continues for the period for which Licensee has paid license fees. The initial Term of this license is 12 months.
Section 2.04 -- Authorized Use: Licensee shall prevent Unauthorized Users from accessing the Software. Licensee shall prevent Unauthorized Access to the Software. Licensee shall promptly inform Vendor of any and all Unauthorized Access (or suspected Unauthorized Access) and Unauthorized Users (or suspected Unauthorized Users) of which Licensee has knowledge or suspicion. Access to the Software using third party software for the purpose of viewing, using or disclosing the internal structure of the Software; Concurrent Access; and modifications to the Software shall be deemed Unauthorized Access.
ARTICLE III: PASSWORD AND COMPUTER INFORMATION:
Section 3.01 -- Password: Vendor shall assign each User a Password for purposes of accessing the Software during the Term. The Password shall be used only by such User. All assignments of the Password by Licensee shall be void. Licensee shall not concurrently access the Software using the same Password. Licensee shall prevent Concurrent Access. Licensee shall be responsible for the confidentiality and maintenance of the Password. Modification and termination of the Password shall be subject to prior written approval by Vendor.
Section 3.02 – Computer Information: Vendor shall automatically collect certain information about the User’s computer (“Computer Information”) during the installation process, which information may be used by Vendor to facilitate installation of the Software, monitor compliance with the Agreement, and assist in product enhancements and development efforts. In the event that Vendor cannot automatically obtain such Computer Information, upon Vendor’s request, Licensee shall promptly provide Vendor with such Computer Information.
ARTICLE IV: PAYMENTS AND FEES:
Section 4.01 -- Fees: Licensee shall pay the licensing fee to Vendor in accordance with the payment terms and schedule fees as published and as modified by Vendor from time to time.
Section 4.02 -- Taxes: Licensee shall pay any and all applicable taxes (municipal, state and federal) which may now or hereafter be imposed on accessing the Software by Licensee (excluding income taxes assessed against Vendor).
ARTICLE V: INTELLECTUAL PROPERTY:
Section 5.01 -- Ownership and Title: Vendor shall own any and all rights, title and interests in the Software, including (without limitation) ownership rights to any and all patents, copyrights, trademarks, and trade secrets in connection therewith.
Section 5.02 -- Confidential Information: Licensee shall not disclose Confidential Information except to Authorized Persons. Licensee shall not duplicate, use or disclose Confidential Information except as otherwise permitted under this Agreement. The Software shall be deemed Confidential Information of Vendor.
Section 5.03 -- Trade Secrets: Licensee hereby acknowledges and agrees that the Confidential Information of Vendor derives independent economic value (actual or potential) from not being generally known to other persons who can obtain economic value from its disclosure or use and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use; is the subject of reasonable efforts by Vendor under the circumstances to maintain its secrecy; and is a trade secret.
Section 5.04 -- No Contest: Licensee shall not contest or aid in contesting the ownership or validity of the copyrights, trademarks, service marks, and trade secrets of Vendor.
Section 5.05 -- Reverse Engineering: Licensee shall not reverse engineer, decompile, disassemble or translate the Software or access the Software using third party software and/or any other means, without the prior written consent of Vendor. Licensee shall not allow the Software to be reverse engineered, decompiled, disassembled, translated, or accessed using third party software and/or any other means without the prior written consent of Vendor.
Section 5.06 -- Modifications: Licensee shall not modify the Software and shall not allow the Software to be modified without the prior written consent of Vendor. Licensee shall not use the Software or any materials incident thereto to develop computer software without the prior written consent of Vendor. If the Software is modified, such modifications shall be the sole and exclusive property of Vendor, and Vendor shall own any and all of the rights, title, and interests to such modifications and any resulting computer software, including (but not limited to) any and all copyrights, patents, and trade secrets related thereto.
Section 5.07 -- Export: Licensee shall not export or reexport the Software and shall not allow the Software to be exported or reeported except in full compliance with all United States laws and regulations, executive orders and the like, including in particular Parts 740, 742 and 744 of the Export Administration Regulations of the U.S. Department of Commerce. No Software may be exported or reeported into (or to a national or resident of) any country in which the U.S. embargoes goods, or to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders.
Section 5.08 -- U.S. Government Restricted Rights: Where Licensee is the U.S. Government or an agency or department thereof (collectively “Government”), the Software is provided with RESTRICTED RIGHTS and use or disclosure by the Government is subject to restrictions set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or subparagraphs (c)(1) and (c)(2) of the Commercial Computer Software Restricted Rights clause at 48 C.F.R. 52.227-19, as applicable, which is incorporated herein by this reference.
ARTICLE VI: WARRANTY:
Section 6.01 -- Software Warranty: Vendor represents and warrants that, for a period of thirty (30) days after delivery of the Software, the Software shall perform substantially as represented in the user documentation provided to Licensee by Vendor.
Section 6.02 – Error Correction Procedure: In the event that Licensee discovers that the Software fails to conform with the foregoing warranty during such thirty (30) day period, Licensee shall promptly notify Vendor and provide Vendor with all available information in written or electronic form so that Vendor can verify such non-conformance, and Licensee’s sole remedy and Vendor’s sole obligation shall be to repair or replace the Software in order to correct such non-conformance, replace the software in order to correct such non-conformance, or, at Vendor’s discretion, to provide a refund as set forth below. The methods and techniques utilized by Vendor to correct errors shall be at the discretion of Vendor. If, in Vendor’s opinion, repair or replacement of the Software is not commercially reasonable, Vendor will accept return of the Software from Licensee, and Vendor will refund any fees paid for the Software, at which time this Agreement shall terminate.
SECTION 6.03 -- EXPRESS WARRANTIES: LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT VENDOR (INCLUDING OFFICERS, ASSOCIATES, AGENTS AND DIRECTORS OF VENDOR) HAS NOT MADE OR GRANTED ANY EXPRESS WARRANTIES CONCERNING THE SOFTWARE EXCEPT FOR THE SOFTWARE WARRANTY IN SECTION 6.01.
SECTION 6.04 -- WARRANTY LIMITATION: THE WARRANTIES SET FORTH IN SECTIONS 6.01 AND 6.03 ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES OF MERCHANTABILITY. THE WARRANTIES SET FORTH IN SECTIONS 6.01 AND 6.03 ARE LIMITED TO THE PRODUCT AND DO NOT APPLY TO ANY THIRD PARTY SOFTWARE OR TECHNOLOGY. EXCEPTING THE WARRANTY SET FORTH IN SECTION 6.01, VENDOR HEREBY DISCLAIMS AND LICENSEE HEREBY WAIVES ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND ALL IMPLIED WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. VENDOR DOES NOT MAKE ANY WARRANTY AND LICENSEE HEREBY WAIVES ANY AND ALL WARRANTIES AS TO THE RESULTS OBTAINED FROM ANY SUPPORT SERVICES. LICENSEE HEREBY ACKNOWLEDGES AND AGREES THAT USE OF SUPPORT SERVICES SHALL BE AT THE SOLE AND EXCLUSIVE RISK OF LICENSEE AND SUBJECT TO THIS AGREEMENT AND THE LAWS, RULES, REGULATIONS, ORDERS, PROCEDURES AND POLICIES OF STATE AND FEDERAL GOVERNMENTS OF THE UNITED STATES OF AMERICA. VENDOR, OR THIRD PARTY DATA PROVIDERS (INCLUDING, BUT NOT LIMITED TO CONSENSUS ECONOMICS INC., FERI RATING & RESEARCH AG AND OTHERS) SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR HARM OR DAMAGES RESULTING FROM OR ARISING OUT OF LICENSEE INABILITY TO USE VENDOR’S SERVICES OR TO ACCESS THE SOFTWARE.
Section 6.05 -- Regulations: The Software shall not be used (directly or indirectly) to conduct or solicit the performance of any business or activity which is tortious or prohibited by law.
Section 6.06 -- Force Majeure: Vendor shall not be liable for any failure to perform its obligations or for any failure of the Software because of circumstances beyond the control of Vendor. Such circumstances shall include (without limitation) any acts or omissions of any government or governmental authority, declarations of government, war, natural disaster, act of a public enemy, acts of terrorism, riot, sabotage, labor disputes, power failure, delays in transportation or deliveries of supplies or materials, laws, court orders, acts of God, computer failure, network downtime, electronic mail failure, telecommunication failure, failure of Licensee to cooperate with the reasonable requests of Vendor, misuse of the Software by Licensee or a third party, breach of this Agreement by Licensee, or any other events reasonably beyond the control of Vendor.
ARTICLE VII: INDEMNIFICATION:
SECTION 7.01 – LIMITATION OF DAMAGES: VENDOR SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR CONSEQUENTIAL, EXEMPLARY, INCIDENTAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, IN CONNECTION WITH (I) USE OR PERFORMANCE OF ANY SERVICES BY VENDOR; (II) USE, PERFORMANCE OR OPERATION OF THE SOFTWARE; AND (III) LOSS OF DATA), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, REGARDLESS OF WHETHER VENDOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE OR WHETHER SUCH DAMAGES ARE REASONABLY FORESEEABLE.
SECTION 7.02 -- LIMITATION OF LIABILITY: THE LIABILITY OF VENDOR FOR ANY REASON AND FOR ANY CAUSE OF ACTION WHATSOEVER IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE OR SUPPORT SERVICES, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR IN TORT, INCLUDING NEGLIGENCE, SHALL NOT EXCEED THE TOTAL AMOUNT OF MONEY PAID BY LICENSEE TO VENDOR WITHIN THE TWELVE MONTHS AFTER THE DATE ON WHICH SUCH CLAIMED DAMAGE OR INJURY AROSE.
Section 7.03 -- Vendor Indemnification: Licensee shall indemnify, defend and hold harmless Vendor (including officers, directors, agents, and Associates of Vendor), Vendor subsidiaries, Vendor affiliates and Vendor suppliers and distributors, from and against any and all losses, costs, claims, suits, obligations, demands, damages, liabilities, expenses and reasonable attorney and paralegal fees on account thereof resulting from or in connection with (i) access to the Software by Licensee (excluding any infringement claim covered by Section 7.04) (ii) Licensee’s failure to comply with any laws, rules, regulations, orders, procedures or policies of state and federal governments of the United States of America; (iii) the acts (or any failure to act) of Licensee hereunder; or (iv) any breach by Licensee of the obligations of Licensee hereunder. Licensee hereby accepts responsibility for, and shall be liable for, all access to the Software and the results and data that Licensee obtains from access to the Software.
Section 7.04 -- Licensee Indemnification: Vendor will defend and/or settle, at its option, any third party claim made against Licensee alleging that the Software, as delivered by Vendor, infringes the registered patent or copyright of a third party, providing that Licensee provides Vendor with sole control of the defense and settlement of the claim. Vendor shall pay any damages, settlement amounts and reasonable attorneys’ fees incurred by Licensee in connection with such claim. In addition to the obligations set forth above, in the event of any intellectual property infringement claim involving the Software, Vendor reserves the right to:
(1) Replacement: Replace the Software with equivalent non-infringing software;
(2) Modification: Modify the Software to render it non-infringing; or
(3) Terminate: In the event that neither of the preceding alternatives are commercially viable, to terminate this Licensee and refund any amount paid for the unused licensed Term.
The remedies set forth herein shall be the sole and exclusive remedies of Licensee for any and all intellectual property infringement relating to the Software.
ARTICLE VIII: TERMINATION:
Section 8.01 -- Termination Limitations: This Agreement shall only be terminated as provided under this Article VIII. This Agreement shall be valid for the Term. Upon the expiration of the Term, the Software will automatically lock and prevent any access by the User.
Section 8.02 – Enforcement of Terms and Termination: If Licensee fails to fulfill any material obligations under this Agreement, Vendor and/or its licensors may pursue all available legal remedies to enforce this Agreement, and Vendor may, at any time after Licensee’s default of this Agreement, terminate this Agreement and all licenses and rights granted to Licensee hereunder.
Section 8.03 -- Access to the Software: Licensee agrees that, on the termination or expiration of this Agreement, the Licensee will, within thirty (30) days after such termination, deliver to Vendor or render unusable all Software originally provided to Licensee hereunder and any copies thereof embodied in any medium, and certify such return to Vendor in writing.
Section 8.04 – Survival: All provisions protective of the intellectual property of a party, provisions relating to confidentiality, all indemnities, limitations and exclusions of liability, the provisions of this Section 8 governing the consequences of termination and any other provisions designed to operate after termination, and all accrued rights and obligations, shall survive any termination or expiration of this Agreement.
ARTICLE IX: MISCELLANEOUS:
Section 9.01 -- Assignments: This Agreement and the rights granted hereunder may not be assigned or transferred by Licensee without the prior written consent of Vendor.
Section 9.02 -- Entire Agreement: This Agreement contains the entire understanding of the parties and supersedes previous verbal and written agreements between the parties concerning the subject matter herein.
Section 9.03 -- Amendments and Modifications: This Agreement may not be modified except where such modification is in writing and signed by the party accepting the modification.
Section 9.04 -- Severability: If a provision of this Agreement is rendered invalid or is held to be unenforceable, the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect the intent of the parties. The parties further agree to replace any such invalid or unenforceable provisions with valid and enforceable provisions designed to achieve, to the extent possible, the business purposes and intent of such invalid or unenforceable provisions.
Section 9.05 -- Captions: The headings and captions of this Agreement are inserted for reference convenience and do not define, limit or describe the scope or intent of this Agreement or any particular section, paragraph or provision. Pronouns and nouns shall refer to the masculine, feminine, neuter, singular or plural as the context shall require.
Section 9.06 -- Governing Law: This Agreement shall be governed by the laws of the State of New York, USA without regard to any rules of conflict or choice of laws which require the application of laws of another jurisdiction, and venue shall be New York City, New York, USA.
Section 9.07 -- Notice: All notices shall be in writing. Notices to Vendor shall be deemed delivered when delivered by commercial overnight delivery service, certified or registered mail (with return receipt requested) or by hand to the address set forth below for Vendor. Notices to Licensee shall be deemed delivered when delivered electronically, by commercial overnight delivery services, by certified or registered mail (with return receipt requested) or by hand. Notices shall be deemed given on the date notice is delivered electronically (in case of notices delivered to Licensee) or on the date of receipt, as evidenced in the case of certified or registered mail by return receipt. Notices delivered to Licensee electronically (including, without limitation, electronic mail) shall be deemed written notices.
Vendor Address
ISI Emerging Markets 225 Park Avenue South
New York, New York 10003
USA
Section 9.08 -- Waiver: Waiver of breach of this Agreement shall not constitute waiver of another breach. Failing to enforce a provision of this Agreement shall not constitute a waiver or create an estoppel from enforcing such provision. Any waiver of a provision of this Agreement shall not be binding unless such waiver is in writing and signed by the party waiving such provision.
Section 9.09 -- Non-Solicitation: Licensee shall not induce or solicit (directly or indirectly) any Associate to leave the employment of Vendor or engage the services of an Associate without the prior written consent of Vendor.
Section 9.10 -- Relationship of the Parties: It is agreed that the relationship of the parties is primarily that of licensee and licensor. Nothing herein shall be construed as creating a partnership, an employment relationship, or an agency relationship between the parties, or as authorizing either party to act as agent for the other. Each party shall maintain its separate identity.
Section 9.11 -- Arbitration: Any controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration in accordance with the Arbitration Rules of New York City, New York, USA. Judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. A qualified arbitrator shall be selected by the parties in accordance with the arbitration rules of New York City, New York, USA. The arbitration shall be administered by New York City, New York, USA.
Section 9.12 -- Equitable Remedies: The parties hereby acknowledge that damages at law shall be an inadequate remedy for Vendor in the event of a breach of this Agreement or a violation of Vendor’s intellectual property rights. In addition to other rights which may be available, Vendor shall have the right of specific performance, injunction or other equitable remedy (including, but not limited to, the right to such equitable remedies prior to or pending arbitration) in the event of a breach or threatened breach of this Agreement by Licensee.