You (“Customer”) agree that Customer’s use of ABSNet is subject to the terms of this ABSNet License Agreement, Customer’s Customer Order Form and the Terms and Conditions attached thereto (collectively, the “Agreement”).
- 1 ALL REPORTS, DOCUMENTATION, WHITE PAPERS, MANUALS, CUSIP NUMBERS AND STANDARD DESCRIPTIONS, PUBLICATIONS, PRODUCTS, SOFTWARE AND/OR SERVICES, AND ALL RESEARCH, ANALYSIS, FORECASTS, RATINGS, OPINIONS, MODELS, METHODOLOGIES AND DATA THEREIN (COLLECTIVELY, "INFORMATION"), FURNISHED BY LEWTAN TECHNOLOGIES, INC. ("MOODY'S"), A WHOLLY-OWNED SUBSIDIARY AND AFFILIATE OF MOODY’S ANALYTIC,S INC. PURSUANT TO THESE TERMS OF AGREEMENT (“AGREEMENT”), AND THE STRUCTURE, ORGANIZATION AND THE SEARCH AND EXTRACTION MECHANISMS OF THE INFORMATION, ARE PROPRIETARY TO MOODY'S AND/OR THIRD PARTIES FROM WHOM MOODY’S LICENSES INFORMATION (“LICENSORS”). THE INFORMATION MAY BE PROTECTED UNDER COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, DATABASE AND OTHER INTELLECTUAL PROPERTY LAWS OF THE U.S. AND ALL RELEVANT JURISDICTIONS, AND ARE FURNISHED SOLELY FOR CUSTOMER'S OWN INTERNAL USE. EXCEPT AS OTHERWISE EXPRESSLY PERMITTED HEREIN OR IN WRITING BY MOODY’S, NO INFORMATION MAY BE COPIED, REPRODUCED, REPACKAGED, RETRANSMITTED, SOLD, TRANSFERRED, REDISTRIBUTED, LEASED, RENTED, SUBLICENSED, 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 CUSTOMER OR ANY OTHER PERSON OR ENTITY. CUSTOMER SHALL TAKE ALL REASONABLE STEPS TO PREVENT UNAUTHORIZED USE, ACCESS, COPYING OR DISCLOSURE OF THE INFORMATION.
- 2 Subject to the terms and conditions of this Agreement, Moody’s hereby grants Customer a non-exclusive and non-transferable license to use the Information described in the ABSNet Order Forms or other ordering documents entered into by the parties and referencing this Agreement (each, an “Order Form”) for Customer’s internal business purposes, and only at the site or premises and within the division, department and/or business unit (including within Customer and any of its Affiliates solely to the extent they are included within the scope of the license on the applicable Order Form), and only by the number of individual users (each, a “User”) as may be listed on the Order Form. Use of the Information by more than the number of Users, or at any site or premises and/or by any other division, department, business unit or Affiliate is strictly prohibited. Customer agrees to be responsible and liable for the compliance of its Users and each licensed Customer Affiliate with the terms and conditions of this Agreement and any breach hereof by a User or Customer Affiliate. Moody’s may also provide Customer with custom deliverables, training and/or other related services as part of the Information, which shall be described on the relevant Order Form, along with any special terms applying to such deliverables and services. Any Moody’s Affiliate may elect to provide, and any Customer Affiliate may elect to receive a license to, Information under this Agreement by executing an Order Form hereunder. Upon signature of an Order Form by the duly authorized signatories of Moody’s (or the relevant Moody’s Affiliate) and the Customer (or the relevant Customer Affiliate), a new agreement shall be formed between the signing parties whereby: (i) the terms of this Agreement shall be incorporated into the Order Form as if written out in full therein; and (ii) any reference in this Agreement to “Moody’s” for purposes of such Order Form shall be deemed to refer to the relevant contracting Moody’s entity; and (iii) any reference in this Agreement to “Customer” for purposes of such Order Form shall be deemed to refer to the relevant contracting Customer or Customer Affiliate. As used herein, an “Affiliate” of a party means any legal entity which, directly or indirectly, either controls, is controlled by, or is under common control with such party, and where “control” is defined by the direct or indirect ownership of stock or other interests entitled to elect a majority of the board of directors or other governing body of an entity, or the direct or indirect ownership of more than fifty percent (50%) of the equity or profits interest in such entity.
- 3 Customer agrees, on behalf of itself and each User that it permits to use any of the Information, that (a) the ratings, estimates, forecasts, and/or other opinions contained in the Information are, and will be construed solely as, statements of opinion and not statements of fact, investment advice or recommendations to purchase, hold or sell any securities, (b) each rating, estimate, forecast, or other opinion will be weighed solely as one factor in any investment decision, (c) it will accordingly, with due care, make its own evaluation of each security, and of each issuer and guarantor of, and each provider of credit support for, each security that it may consider purchasing, holding or selling. Customer further agrees that Moody’s is not acting as a financial adviser and no Information (whether in oral or written form) or statements supplied by Moody’s or any of its employees, representatives or agents shall constitute a representation or a warranty. Moody’s products are aimed at sophisticated institutional investors – they contain highly complex statistical performance data and it would be reckless for retail investors to base any investment decision on the Information. If in doubt Customer should contact its financial or other professional adviser.
- 4 The Information is obtained by Moody’s from sources believed by it to be accurate and reliable. Because of the possibility of human and mechanical error as well as other factors, however, the Information is provided “AS IS” without warranty of any kind, and MOODY’S AND ITS LICENSORS MAKE NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO CUSTOMER, USER OR ANY OTHER PERSON OR ENTITY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OF THE INFORMATION. Under no circumstance shall Moody’s, its Licensors, suppliers, or any of Moody’s Affiliates, directors, officers, employees, representatives or agents (“Moody’s Parties”) have any liability to Customer, User, or any other person or entity for any loss, damage or other injury in whole or in part caused by, resulting from or relating to, any error (negligent or otherwise), or any other circumstance or contingency within or outside the control of Moody’s or any of the Moody’s Parties or Licensors, in connection with the procurement, collection, compilation, analysis, interpretation, communication, publication or delivery of any of the Information, even if Moody’s shall have been advised in advance of the possibility of such damages, in either case caused by, resulting from or relating to the use of, or inability to use, any of the Information. Notwithstanding the foregoing, Customer expressly agrees that the following limitation of remedies is an essential part of the consideration bargained for under this Agreement. The entire liability of the Moody’s Parties, and Customer's exclusive remedy, for any errors or omissions in the Information is for Moody’s to provide Customer, if possible using commercially reasonable efforts, with corrected Information.
- 5 TO THE EXTENT PERMITTED BY LAW, NEITHER MOODY’S NOR THE MOODY’S PARTIES SHALL BE LIABLE TO CUSTOMER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, REVENUE, PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE OR FOR ANY REASON WHATSOEVER), HOWEVER IT ARISES, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, TORT OR OTHER ACTION, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL MOODY’S OR THE MOODY’S PARTIES’ AGGREGATE LIABILITY ARISING FROM THIS AGREEMENT, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY AND REGARDLESS OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED, EXCEED THE AGGREGATE FEES AND CHARGES PAID BY CUSTOMER TO MOODY’S UNDER THE RELEVANT ORDER FORM DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRIOR TO ANY APPLICABLE CAUSE OF ACTION (AND RESULTING LIABILITY). CUSTOMER AGREES THAT IT WILL UNDER NO CIRCUMSTANCES BRING AN ACTION OR SUIT, FILE ANY CLAIM, OR INITIATE ANY PROCEEDING, AGAINST MOODY’S OR THE MOODY’S PARTIES FOR AN AMOUNT GREATER THAN SUCH SUM. NO LICENSOR SHALL BE LIABLE DIRECTLY OR INDIRECTLY TO CUSTOMER FOR ANY CLAIMS, LOSSES, OR LIABILITY WHATSOEVER RELATING IN ANY WAY TO THE INFORMATION.
- 6 Customer shall pay to Moody’s the fees as are set forth on the Order Form, which fees shall be payable annually in advance within 30 days after the receipt of an invoice, or upon such other payment schedule specified in the Order Form. Moody’s may increase the fees for any subscription service by providing written notice to Customer at least 60 days prior to the effective date of such increase, provided that Customer may terminate the applicable subscription at any time during such 60 day period by providing Moody’s with written notice of termination. In addition to any and all rights provided by this Agreement, or otherwise at law or in equity, Moody’s may suspend all services hereunder as long as such amount remains unpaid. All fees are exclusive of taxes, if any. Customer shall be responsible for any federal, state, local, value-added, withholding or similar taxes, if applicable, that are or may be imposed on any transaction hereunder (excluding any taxes based on Moody’s net income).
- 7 Customer agrees that the Information may contain third party materials provided by Licensors, and in this respect Moody’s relies upon the Licensors in providing such Information to Customer. Accordingly, Moody’s duty to deliver such Information is subject in all respects to the timely supply of the relevant materials by such Licensors. Customer agrees that availability of such third party materials shall cease automatically, without liability on the part of Moody’s or the Licensors, upon termination of Moody’s access to the materials for any reason. Moody’s may from time to time and in its sole discretion add to or change any of its Licensors for any reason. If any such change or termination of third party materials would materially affect the functionality or operation of the Information in Customer’s reasonable judgment, Customer may terminate the license to such Information upon notice to Moody’s and shall be entitled to a refund of any fees prepaid to Moody’s for the affected Information in respect of the period after termination. Customer agrees that the third party materials: (i) shall only be used for Customer’s internal use in connection with its use of the Information, and (ii) shall not be used to create a data file, or develop, verify, correct or complete any other database (including, without limitation, a security master database). Customer shall also comply with any additional terms or restrictions regarding use of the third party materials which the relevant Licensor and/or Moody’s may otherwise specify from time to time, including any notification posted within the relevant service. Certain Information provided to Customer may contain CUSIP data. Customer agrees and acknowledges that the CUSIP Database and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, Standard & Poor’s CUSIP Service Bureau (“CSB”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to Customer in such materials or in any of the information contained therein. Any use by Customer outside of the clearing and settlement of transactions requires a license from CSB, along with an associated fee based on usage. Customer agrees that misappropriation or misuse of such materials will cause serious damage to CSB and ABA, and that in such event money damages may not constitute sufficient compensation to CSB and ABA; consequently, Customer agrees that in the event of any misappropriation or misuse, CSB and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CSB and ABA may be entitled. Customer agrees that Customer shall not publish or distribute in any medium the 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. Customer further agrees 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 CSB. NEITHER CSB, 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 CUSTOMER 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 CSB, 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 CSB, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, EXCEED THE FEE PAID BY CUSTOMER FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CSB AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL. Certain Information contains loan and CDS pricing and index data supplied by Markit Group Limited (such data, the “Markit Data”). Customer agrees that it shall not use the Markit Data to develop, create or directly price any index (e.g., any composite financial index) or to create or use in relation to the Information any data that competes with or services the same or a similar function as the Markit Data. Customer may not at any time use the Markit Data to develop, support or create any database or product that competes directly with any product offered by Markit Group Limited (or any functional substitute thereof).If applicable, Customer may receive the Information through a Moody’s authorized third party distributor (“Third Party Distributor”). If Customer receives the Information through a Third Party Distributor, the receipt and use of the Information shall be governed by the terms and conditions of this Agreement and any additional terms set forth on the Order Form and Terms and Conditions. Customer’s right to continue to receive the Information provided by Moody’s through such Third Party Distributor shall be terminated by Moody’s in the event that, for any reason, Customer terminates its agreement with such Third Party Distributor or such Third Party Distributor ceases the distribution of the Information. In such case, Moody’s will continue to offer Customer access to the Information during the term of the applicable subscription through its direct distribution methods. Moody’s assumes no responsibility, and shall not have any liability, for communication delays or interruptions in the delivery of the Information via a Third Party Distributor’s service.
- 8 The term of this Agreement shall begin on the Effective Date shown above. The term of each Order Form commences as of the effective date set forth in the Order Form and shall continue for an initial term of one year or such other term as specified in the Order Form (“Initial Term”). Each Order Form shall automatically renew for successive terms of one year each (each, a “Renewal Term”) unless either party has notified the other in writing at least 30 days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable, that the Order Form shall not be renewed. At the termination or expiration of an Order Form for any reason, and except as provided on such Order Form, Customer shall promptly purge all Information provided under such Order Form that has been stored in its computer systems, databases, or any data storage facilities owned or under its control (except that Customer shall have the right to maintain indefinitely print or electronic copies of its presentations containing limited excerpts of Information made in conformity with the restrictions described in Section 11 of this Agreement). Moody’s may terminate any Order Forms hereunder in the event of any legal or regulatory change that, in Moody’s judgment, imposes new and additional cost or liability risk upon Moody’s and/or Moody’s Affiliates (in which case Customer shall be entitled to a refund of any fees prepaid to Moody’s for the affected Information in respect of the period after termination). Either party may terminate this Agreement upon written notice to the other party if no Order Forms are then outstanding and in effect hereunder. Upon expiration or termination of this Agreement for any reason, all provisions but Sections 2, 11 and 13 shall survive.
- 9 This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, without regard to otherwise applicable principles of conflicts of law. 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. This Agreement and all Order Forms attached hereto or referencing this Agreement contain the entire and only agreement between the parties relating to the subject matter hereof, and supersede all prior or collateral representations, warranties, promises or conditions, if any, in connection therewith. No amendment to, or waiver of, any term of this Agreement shall be binding upon either party hereto unless reduced to writing and signed by an authorized officer of the party against which it is asserted. For the avoidance of doubt, this Agreement shall not be modified by the terms of a purchase order or other document issued by Customer relating to the Information or purporting to modify the terms hereof.
- 10 Moody’s Investors Service, Inc. (“MIS”) hereby discloses that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MIS have, prior to assignment of any rating, agreed to pay to MIS for the appraisal and rating services rendered by it fees ranging from $1,500 to $2,500,000. Moody's Corporation (MCO) and its wholly-owned credit rating agency subsidiary MIS also maintain policies and procedures to address the independence of MIS's ratings and rating processes. Information regarding certain affiliations that may exist between directors of MCO and rated entities, and between entities who hold ratings from MIS and have also publicly reported to the SEC an ownership interest in MCO of more than 5%, is posted annually on Moody’s website at www.moodys.com under the heading "Shareholder Relations -- Corporate Governance -- Director and Shareholder Affiliation Policy." Although certain of the products licensed hereunder are designed to predict what an MIS rating would be based on certain assumptions, financial and portfolio data and/or other variable inputs, the output from such products may or may not reflect a MIS rating actually assigned to such security or issuer, whether or not any of the assumptions or other data are correct, or the ultimate events related thereto differ materially from the factors used as inputs to such products. Nothing in this Agreement will compel MIS to assign, as a result of any products or Information offered hereunder, a particular rating or any revision thereof to the Customer or any securities, debt or other instruments. Customer understands that MIS may at any time refuse to issue any rating, or, if already issued, revise or withdraw such rating. Customer further agrees not to represent, imply or otherwise suggest that any output from such products constitutes or affects an MIS rating, rating action, or opinion.
- 11 Customer may, as part of and in the ordinary course of its business, redistribute (orally, in writing or by electronic means) to its clients and in its own business applications, reports, presentations, graphs and other publications limited excerpts of data contained in the Information without Moody’s prior written consent, provided, however, that (i) the Information utilized is only supportive and incidental in nature to the substance of such presentations, reports and exhibits, (ii) Customer agrees that Customer will assume full liability for any such redistribution of the Information, (iii) Customer may not redistribute Information supplied by a Licensor absent the separate written consent of such Licensor; and (iv) Customer agrees not to use the limited right to redistribute the Information granted hereunder either (a) on a recurrent basis; (b) to develop for sale and/or distribution or otherwise a product that competes with any product or service of Moody’s or its Affiliates, or in the case of CUSIP Numbers and Standard Descriptions a product that substitutes for CUSIP Master Tape, Print, Electronic and/or CD-ROM Services; or (c) in connection with a prospectus or other offering document. Customer shall give appropriate credit to Moody’s or the appropriate Licensor (where permitted) for the limited excerpts of Information.
- 12 Customer is prohibited from using Moody’s name or any Moody’s product name designation, logo, trade name, trademark, service name or service mark in any manner, whatsoever, other than to identify an MIS rating, or in connection with permitted limited excerpts as set forth in Section 11 above.
- 13 Customer 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, Customer warrants that it does not intend to and will not supply or use Moody's products or services to or for the benefit of any of the foregoing (hereinafter “Prohibited Entities”). Customer agrees that it will notify Moody's 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 Customer breaches this Section, or if Moody’s 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 Moody’s may have, Moody’s may immediately terminate this Agreement and/or any affected Order Forms.
- 15 The receipt and use of the Information in certain jurisdictions is subject to additional legal and regulatory requirements (“Regulatory Terms”). The Regulatory Terms may be amended by Moody’s upon thirty (30) days notice to Customer as a result of any new or amended legal, regulatory or other requirements which, in Moody’s sole discretion, affect the receipt and use of the Information. If any such change has a material adverse effect on Customer’s use of the Information, Customer may terminate the relevant Order Form(s) at any time during such thirty (30) day notice period by providing written notice to Moody’s, in which case Customer shall be entitled to a refund of any applicable fees prepaid to Moody’s in respect of the period after termination.Customer hereby agrees to not receive or use the Information in Australia.
- 16 As part of the provision of the Products and services under the this Agreement, Terms and Conditions, and an Order Form, Customer may receive from Moody’s certain performance reports for structured finance transactions issued by the relevant trustees, as well as data extracted from such reports (collectively, the “Trustee Data”). Moody’s obtains the Trustee Data from sources it believes are reliable. However, the Trustee Data is supplied as a convenience to Customer and Customer bears all risk of use of the Trustee Data. As a result, Customer agrees that any warranties or indemnities set forth in this Agreement shall not apply to the supply and use of the Trustee Data. THE TRUSTEE DATA IS SUPPLIED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND MOODY’S EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION WARRANTIES OF ACCURACY, TIMELINESS, COMPLETENESS, RESULTS, AND THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF MOODY’S HAS BEEN INFORMED OF SUCH PURPOSE, OR ANY REPRESENTATIONS AND WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. MOODY’S SHALL NOT BE RESPONSIBLE FOR CUSTOMER’S USE OF THE TRUSTEE DATA. NO AGENT OF MOODY’S IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF MOODY’S AS SET FORTH HEREIN OR IN THE TERMS OF AGREEMENT.
- 17 Moody’s is prohibited under applicable regulations from making recommendations to the obligor or the issuer, underwriter, or sponsor of any security rated by its affiliate, Moody’s Investors Service, Inc., about the corporate or legal structure, assets, liabilities, and activities of the obligor or issuer of the security. Accordingly, Customer acknowledges that none of the Products or Services provided by Moody’s will include or involve any such prohibited recommendations. Moody’s along with its parent company, Moody’s Analytics, Inc., and Moody’s Investors Service, Inc. are separate operating companies and have implemented policies intended to prevent or mitigate conflicts of interest between the two companies’ respective businesses. Such policies include, among other things, the separation of commercial activities from the assignment of credit ratings, and a prohibition on the sharing of confidential information regarding customers or credit rating activities between the companies. Moody’s offering of the products and services is separate from the credit rating activities of Moody’s Investors Service, Inc., and Customer represents and warrants that it has not been directed by Moody’s Investors Service, Inc. to purchase any products or services from Moody’s or Moody’s Analytics, Inc.
- 18 Customer agrees and acknowledges that Open Source Software (defined below) may be included or provided in connection with the products. Any such Open Source Software is licensed pursuant to the original license governing such Open Source Software, which licenses are identified in and provided with the product distribution or documentation accompanying the relevant product (including any “license,” “copyright”, “about,” “readme” or similar files contained in the product). Where applicable, the source code for such Open Source Software is either included with the product distribution or may be obtained by writing to: Moody’s Analytics, Inc., 7 World Trade Center, 250 Greenwich Street, New York, NY 10007, Attn: Legal Department – Open Source Compliance. Notwithstanding anything to the contrary in an Order Form, Terms and Conditions or this Agreement, all Open Source Software is provided by Moody’s on an “AS IS” basis and Moody’s disclaims all warranties with regard to the Open Source Software including, without limitation, all implied warranties of merchantability, non-infringement, and fitness for a particular purpose. Notwithstanding anything in the Agreement to the contrary, to the extent that a product or any of its components, as provided to Customer under the terms and conditions of the Agreement, link to software licensed under the GNU Lesser General Public License (“LGPL”) in a such a manner that the product or such component, as applicable, is a “work that uses the library” within the meaning of the LGPL (“Work”), Customer is permitted to (i) modify the Work solely for Customer’s own use, and (ii) reverse engineer the Work for the sole purpose of debugging such modifications, in each case as and to the extent permitted pursuant to the LGPL. “Open Source Software” means individual software components that are provided with the products for which the source code is made generally available to the public, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components that permit the free redistribution and modification of the licensed software components.
- 19 Customer acknowledges that the Products may include Models, performance data, transaction documents and other information relating to securities issued in private placements and other offerings exempt from applicable securities registration requirements (“Private Information”). Customer’s access to the Private Information shall be subject to Customer’s compliance with all of the terms and conditions of this Agreement, Terms and Conditions and Order Form, including the access provisions of this paragraph. Customer acknowledges that Moody’s is willing to provide access to the Private Information solely to a person or entity who is a registered or beneficial owner of the related securities, or such other person or entity who is entitled to receive such information under the governing document pursuant to which such securities were issued (each, an “Authorized Person”). Customer agrees that each time it accesses or attempts to access any Private Information it will be deemed to represent, warrant and covenant, as to each privately placed deal for which Customer seeks access, that Customer is: (i) an Authorized Person, (ii) accessing such information solely for its own use in evaluating its investment in the securities or for another permitted purpose, and (iii) responsible for maintaining the confidentiality of such information to the extent required by the governing documents or applicable securities laws. Customer agrees that each time it accesses or attempts to access any Private Information that Customer further represents and warrants that either (a) it is a Qualified Institutional Buyer (QIB) within the meaning of Rule 144A under the U.S. Securities Act of 1933, as amended, or (b) it is resident outside of the United States, and is a non-U.S. Person within the meaning of Regulation S under the U.S Securities Act of 1933, as amended.
Customer understands and acknowledges that various documents relating to securities offerings, such as prospectuses, offering memoranda and other information, are made available via the Products solely as a convenience and not for the purpose of furthering the related securities offerings. The availability of such documents and information is in no way a solicitation or an offer to buy or sell any securities referenced within the Products or in such information.
Customer acknowledges that the Products are not intended to constitute the provision of investment advice, nor is the information available through the Products tailored or customized for any individual or entity, including Customer. Customer acknowledges that neither the Products nor the information made available through the Products are suitable for or intended to be relied upon by any third party. No fiduciary or other duty is created or implied by the provision of the Products or such information.
- 20 Customer agrees to the following with respect to the AVM Reports, ABSNet Loan Home Val products (collectively, including any contents and output thereof, “AVM Products”):
- For AVM Reports, Customer is a financial services entity and may use the AVM Products solely for their own internal asset valuation or management purposes, in a manner that is usual and customary for professionals within the ordinary scope of Customer’s licensed or regular business activity. For ABSNet Loan Home Val products, Customer represents that it shall only use ABSNet Loan Home Val for internal purposes of asset valuation or management, within the ordinary scope of Customer’s licensed or regular business activity. Moody’s, its Affiliates, and/or its licensors shall retain all right, title and interest in the AVM Products, including, but not limited to all intellectual property rights therein. Customer acknowledges the development of the AVM Products involved the expenditure of substantial time and money.
- Customer shall be fully liable for any use of the AVM Products, and Customer agrees to hold harmless the Moody’s Parties for any liability arising from its use.
- Customer agrees that the following are prohibited:
- the sub-license, grant, transfer, reproduction, sale, publication, advertising or marketing, assignment, and distribution of the AVM Products or otherwise making the AVM Products available to, or utilizing for, any third party, or for any commercial exploitation;
- redistribution to any third party the AVM Products; notwithstanding the foregoing, Licensee may create statistical analyses, reports or other documentation incorporating charts, graphs, tables and other summary level information derived from the AVM Products and provide such summary level information to its clients provided that the AVM Products are not readily discernible and such summary level information remain subject to the restrictions on redistribution set forth in Section 11 of the Agreement;
- the direct or indirect disassembly, decompiling, reverse engineering, modification, and creation of derivative works of AVM Products;
- (A) the building of any competitive product or service, (B) building of a product using similar ideas, features, functions or graphics of the AVM Products, (C) copying any ideas, features, functions or graphics of the AVM Products; or (D) aiding or permitting others to do any of the foregoing.
- Upon termination of this Order Form, in addition to the purge requirements set forth in Section 8 of the Agreement, Customer shall provide to Moody’s a notarized affidavit of destruction of the AVM Products by a duly authorized officer of the Customer within ten (10) business days following the termination of this Order Form.
- 21 The following terms (“Addendum”) apply to ABSNet Loan Home Val, ABSNet Loan Home Val - AVM Forecaster, the AVM Reports, or certain other structured finance analytics and valuations products (the “Products”) licensed from Moody’s pursuant to an Order Form:
- 22 As part of Customer’s use of the Products, Moody’s may generate and provide certain Data to Customer, either through the Products or in connection with Moody’s support of Customer’s use of the Products. As used in this Addendum, “Data” means a spreadsheet, flat file, presentation deck, report or other information in whatever format provided by Moody’s for use by Customer (a) to estimate the potential cash flows or estimated losses from structured finance securities and/or tranches, (b) in determining regulatory or accounting requirements for specified structured finance securities and/or tranches including but not limited to risk weights and minimum capital requirements, or (c) to determine an estimated valuation for structured finance securities or the underlying collateral of such securities. Data shall constitute “Information” as defined in the Agreement and shall be subject to the license granted in the Agreement and all terms and conditions contained herein.
- 23 The Products consist of the provision of Data on certain securities, collateral, and/or tranches using Moody’s standard structured finance analysis software tools and based on Moody’s assumptions, inputs and/or models, or models, inputs and calculations. Moody’s shall have no responsibility or obligation with respect to the accuracy or suitability of any assumptions, inputs and/or models used in the course of rendering the Products and producing the Data, including the suitability of any assumptions or inputs supplied by Moody’s. Moody’s has not accounted for any individualized factors or circumstances of any person or entity in the Data, including Customer. Moody’s may terminate the provision of the Products at any time without liability upon written notice to Customer as a result of any new or amended legal, regulatory or other similar requirements which, in Moody’s sole discretion, affect the provision of the Products or the use of the Data.
- 24 MOODY’S MAKES NO REPRESENTATION OR WARRANTY AS TO THE ACCURACY, FITNESS, UTILITY OR APPLICATION OF THE DATA OR THE PRODUCTS (INCLUDING BUT NOT LIMITED TO ANY INPUTS OR ASSUMPTIONS TO THE MODELS) FOR ANY PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO PRICING, TRADING, HEDGING, RISK MANAGEMENT (INCLUDING THE DETERMINATION OF MINIMUM CAPITAL REQUIREMENTS OR VALUE AT RISK), REGULATORY PURPOSES, COMPLIANCE, OR ACCOUNTING DECISIONS (INCLUDING FAIR VALUE DETERMINATIONS, WRITE DOWNS OR ESTABLISHMENT OF RESERVES) EVEN IF MOODY’S HAS BEEN INFORMED OF SUCH PURPOSE. CUSTOMER UNDERSTANDS THAT USE OF THE PRODUCTS ARE FOR INFORMATIONAL PURPOSES FOR CUSTOMER’S INTERNAL USE ONLY AND ALL DECISIONS CONCERNING PRICING, TRADING, HEDGING, RISK MANAGEMENT, REGULATORY MATTERS, COMPLIANCE AND ACCOUNTING DECISIONS ARE THE SOLE RESPONSIBILITY OF CUSTOMER, TO BE MADE USING CUSTOMER’S OWN JUDGMENT. CUSTOMER AGREES THAT ITS USE OF THE DATA IS SUPPORTIVE OF, AND NOT A SUBSTITUTE FOR, CUSTOMER’S OWN RESEARCH, ANALYSIS AND JUDGMENT. MOODY’S FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. NO AGENT OF MOODY’S IS AUTHORIZED TO ALTER OR EXCEED THE WARRANTY OBLIGATIONS OF MOODY’S AS SET FORTH HEREIN.
- 25 Notwithstanding any contrary provisions of the Agreement, including any limited rights of redistribution granted therein, Customer shall treat the Data and any copies thereof along with any Information received or learned from Moody’s hereunder as strictly confidential, shall not disclose such Information to third parties, and will take reasonable steps to protect it as such; provided that Customer may share the Data with auditors and financial regulators who require the Data as part of their investigation or review of Customer. Customer agrees that it shall not under any circumstances make any representations to any third parties about the Data and Moody’s provision of the Data to Customer that are inconsistent with the terms of this Addendum, including but not limited to any statement implying that any Data has been specifically prepared for Customer for any particular use or for distribution to any particular third party.
- 26 Customer represents and warrants to Moody’s that (i) it has the right and power to enter into and fully perform the obligations it has undertaken in this Addendum; (ii) it is not under any obligation, contractual or otherwise, to any other entity that might conflict, interfere, or be inconsistent with any of the provisions of this Addendum; and (iii) it shall comply in all material respects with all applicable laws, rules and regulations necessary for it to perform its obligations under this Addendum. Customer shall defend, hold harmless, and indemnify Moody’s, its affiliates, and all of their respective officers, directors, employees, shareholders, legal representatives, agents, successors and assigns (collectively, “Moody’s Indemnified Parties”), from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ and professionals' fees and court costs) arising out of any third party claims based on or related to (a) Customer's access to and/or use of the Data, including any distribution thereof to third parties (whether or not permitted by this Addendum), or (b) Customer’s breach of any of its representations and warranties set forth herein.