|ICE Global Index System|
ICE Research Index Data Service Agreement for Trial Period
Your use of: (a) the Global Index System Web site (the "ICE
GIS") and (b) any ICE provided Index Data, as defined below,
that is obtained via that website, is subject to these Terms
and Conditions of Use (collectively, these "Terms of
Use"). As used herein, the terms "you," "your"
and "Subscriber" refer to each user of ICE GIS or, as
the context requires, such user's employer ("Employer"
or "Firm"). Unless otherwise provided, each defined
term used within ICE GIS shall have the meaning as described
in this Agreement.
You hereby represent and warrant that you have the authority, and are authorized, to accept this Agreement on behalf of your employer, and that in doing so you are acting within the scope of your duties.
DESCRIPTION OF THE INDEX DATA SERVICES
ICE compiles and publishes extensive sets of indices that measure, respectively, the performance of global non-convertible bond and currency markets ("Bond Index Family") and global convertible bond markets ("Convertible Index Family") and other indices that ICE may add from time to time ("Additional Indices"). The Bond Index Family, the Convertible Index Family and the Additional Indices are each individually referred to herein as an "Index Family" and collectively, they are referred to herein as the "Indices". Any index within the Indices is referred to herein as an "Index". Subscriber has requested the "Index Data Services," which means access to the underlying constituent-related data that makes up an Index ("Constituent Data") along with Index values, Index returns and Index statistics ("Top Level Data") via ICE GIS. Constituent Data and Top-Level Data together comprise the "Index Data". Provision of the Index Data Services is conditioned on and subject to Subscriber's agreement to and compliance with this Agreement. Subscriber acknowledges that the Index Data Services may include data, content, information or other services from third parties, including, but not limited to, stock exchanges, commodity exchanges, news providers, software developers, co-location facilities, data centers and telecommunications providers (each a "Third Party Supplier" and together "Third Party Suppliers"). Subscriber acknowledges and agrees that the terms and conditions in this Agreement are in addition to any terms and conditions and any additional fees that Subscriber may be subject to in order to gain access to a platform.
TERMS AND CONDITIONS FOR ICE INDEX DATA SERVICES
1. SUBSCRIBER'S RIGHTS TO USE INDEX DATA
A. Conditioned on, and subject to, compliance with the terms and conditions of this Agreement, ICE hereby grants to Subscriber, and Subscriber hereby accepts, during the Term (as defined in Section 3.A), a limited, personal, nonexclusive, nontransferable, non-sublicensable license to use the Index Data internally for benchmarking, activities performed solely in connection with the Indices. Subscriber is expressly restricted from any use of the Index Data other than for the purposes permitted herein.
B. Subscriber's right to use the Index Data for benchmarking includes the limited right to create a blended benchmark index by combining one or more Indices with one or more third party indices. Subscriber is not granted permission to (i) create a blended benchmark index based solely on Indices, or (ii) create a custom benchmark index based in whole or in part on Constituent Data or Derived Constituent Data (as such terms are defined herein). If Subscriber uses any Index Data to create a blended benchmark index, then such blended benchmark index shall be labeled and explained as such so that it is clear that ICE has not created the new index. Subscriber acknowledges and agrees that in allowing Subscriber to create a blended benchmark index, ICE is not granting any rights to Subscriber to use the intellectual property of any third party to create the blended benchmark index or license the blended benchmark index to third parties or to create financial products whose objective or return is linked in any way to the blended benchmark index. Subscriber shall be solely responsible for securing the rights to use any third party index as part of a blended benchmark index. Subscriber shall be solely responsible for the use of any blended benchmark index. For avoidance of doubt, Subscriber shall not be allowed to create derived products or derived data based on the Index Data except as expressly set forth herein.
C. Subscriber is granted permission to store the Index Data on its own database or on a hosted server that is restricted to the Subscriber's own use provided that Subscriber shall be responsible for compliance with the terms and conditions of this Agreement by any third party that provides such hosted server as if the acts or failures to act of the third party are those of Subscriber. Subscriber may not share the Index Data with its third party contractors without ICE's prior written consent.
2. AFFILIATE USAGE RIGHTS
A. Subject to the terms of this Agreement, including without limitation the license granted in Section 1.A, Subscriber's Affiliates may also access, and use Index Data solely in connection with the asset management business of Subscriber and its Affiliates. With respect to Subscriber, the term "Affiliate" means any entity that is controlling, controlled by or under common control with Subscriber, where the concept of "control" means ownership of the majority of the voting rights in the entity and that is (i) operating under the same brand name as Subscriber, (ii) involved in or supporting the asset management business of Subscriber, or (iii) any other entity agreed to in writing by the parties, including by email.
B. Where this Agreement uses phrases like "Subscriber agrees", "Subscriber acknowledges", "Subscriber represents and warrants", or the like, including where Subscriber is bound by restrictions or limitations (including but not limited to limitations of liability and indemnifications), Subscriber agrees that it has the authority to cause, and will before their access and use of the Index Data cause each of its Affiliates to be bound to such restrictions or limitations to the same extent as Subscriber. Subscriber shall be liable to ICE for the acts and omissions of its Affiliates. Likewise, Subscriber's Affiliates are not third party beneficiaries of this Agreement and Subscriber alone shall have the right to bring any claim that might otherwise have been brought against ICE by it or any of its Affiliates.
3. TERM AND TERMINATION
A. This Agreement commences as of the date the Subscriber has accepted the terms of this Agreement and shall continue for a period of thirty (30) days ("Term"). ICE may terminate Subscriber's access to Index Data relating to one or more Indices or the entire Agreement at any time for its convenience or for cause.
B. Upon termination of the Agreement, the license granted herein will terminate and Subscriber shall immediately cease all use of Index Data and purge the Index Data and any copies thereof from its computer system except for any copies required to be retained for archival legal and regulatory purposes or in the event Subscriber enters into an agreement with ICE for continued use of the Index Data Services. Subscriber shall supply a certificate of destruction thereof, upon ICE's request. Notwithstanding the foregoing, after termination of this Agreement, Subscriber is permitted to reference terminated Indices and the pre-termination Index values in connection with the performance of one or more of its funds or portfolios to the extent that (i) such Indices were previously used as a benchmark for such fund or portfolio under this Agreement, (ii) such usage shall be subject to, and in accordance with, the terms and conditions of this Agreement, and (iii) ICE has the authority to allow such continuing use.
C. During the duration of this Agreement and for a period of twelve (12) months after termination of this Agreement, Subscriber agrees to keep complete and accurate books, records and related documentation concerning the use of the Index Data. ICE is hereby granted the right, to (i) audit and examine, upon reasonable notice and subject to Subscriber's reasonable confidentiality and security obligations, Subscriber's books, records and any and all computer equipment, devices, components, transmission equipment and software used by Subscriber in connection with the installation, maintenance, accessing, delivery, transmission, reception, retrieval or use by Subscriber and its customers (as applicable) of the Index Data, and (ii) observe, upon reasonable notice, all operations conducted by Subscriber relating to the use and distribution of the Index Data. All such audits shall be conducted at ICE's sole expense, unless an audit by ICE reveals a material variance in the use and distribution of the Index Data from the use and distribution contemplated by this Agreement, in which case Subscriber shall be liable to ICE Data for all reasonable audit expenses incurred by ICE. Subscriber shall also be liable for any unauthorized use or distribution of the Index Data discovered during such audit.
4. USAGE RESTRICTIONS
A. Except as set forth in Section 5, below, Index Data is only made available to Subscriber for its own internal use and it cannot be redistributed or published in any form to any third party without the direct written permission of ICE. Subscriber is allowed to use Constituent Data solely for the purposes listed in Section 4(b) unless as mutually agreed by the Parties in writing. For the avoidance of doubt, Subscriber shall not be allowed to create Derived Data (as such term is defined below) based on the Constituent Data ("Derived Constituent Data") except as expressly set forth in Section 4(b). Subscriber is allowed to create Derived Data based on Top Level Data.
B. Permitted uses of Constituent Data and Derived Constituent Data:
(i) Calculating constituent period and factor returns for purposes of performance attribution reporting
(ii) Calculating index weights and average characteristics by segment (e.g., rating, sector, issuer, maturity or duration bucket, etc.)
(iii) Compiling characteristics (e.g., yield, spread, duration, convexity, etc.) for Index constituents using Subscriber's calculators and models.
(iv) "Derived Data" is defined as data created by Subscriber, in connection with Subscriber's use of the relevant part of the Index Data as permitted under the terms of this Agreement, as a result of combining, processing, changing, converting or calculating the Index Data or any portion thereof with other data where the resultant data (i) does not bear resemblance to the underlying Index Data, and (ii) cannot be readily reverse engineered, disassembled or decompiled such that a third-party may access the Index Data via the Derived Data; (iii) cannot be used in a manner which could be a source of, or a substitute for Data provided by ICE, (iv) cannot be used in whole or in part in a manner which competes with ICE or its affiliates.
C. Constituent Data may solely be used in connection and in conjunction with the Indices and may not be used to enhance or validate the Subscriber's own bond or other reference or pricing database. Constituent Data that comprises pricing data may not be used by Subscriber for fund accounting purposes or in connection with valuing securities in the Subscriber's fund/portfolio unless the Subscriber has entered into a separate agreement.
D. Subscriber agrees that it shall not use any Indices as a reference index for securities that are offered to investors. Subscriber further agrees that the Indices and Index Data shall not be used for any ETF or other passive index-tracking fund, or any other financial instrument.
E. Subscriber acknowledges that (i) access to some Index Data may be subject to the approval of the Third Party Supplier which provides the Index Data, and (ii) ICE may not be able to supply such Data until such approval is granted. Subscriber further acknowledges that it may be required to enter into and maintain direct agreements (including the payment of licensing fees) with the Third Party Suppliers for the receipt of certain Index Data from ICE. ICE's ability to grant Subscriber rights relating to the Index Data is contingent upon all rights, titles, licenses, permissions and approvals obtained by ICE from its Third Party Suppliers pertaining to the Index Data remaining in full force and effect. In the event that certain of ICE's rights, titles, licenses, permissions or approvals are altered, cancelled, terminated, rescinded or not renewed, Subscriber's rights to use the affected portions of the Index Data may be subject to change or termination and shall not constitute a breach by ICE of any of its obligations hereunder. In addition to the fees payable by Subscriber to ICE (if applicable), Subscriber shall be responsible for the payment of all applicable Third Party Supplier fees that are billed either to ICE or directly to Subscriber by the Third Party Suppliers that result from Subscriber's use of the Index Services.
5. LIMITED EXTERNAL DISPLAY AND USE OF INDEX DATA
A. Subscriber may display the following on its websites, and/or include the following in reports and other informational materials about its funds or portfolios that Subscriber prepares for its customers and prospective customers (collectively, "Reports"), as well as share the following with Subscriber's auditors and regulators upon their request:
(i) the Index value;
(ii) the Index performance;
(iii) a general description of the Index; and
(iv) a limited amount of Index information including: non-security specific segments of the Index that it may obtain from ICE or derive on its own; and the Index weights for the top ten holdings (or more, if approved by ICE via email).
(i), (ii), (iii) and (iv) shall together be referred to herein as the "Index Information".
B. Subscriber is further permitted to include comparisons of its portfolio's performance to an Index, along with a limited amount of Index Data (including general characteristics and performance of the Index and non-constituent specific segments of the Index that it may obtain from ICE or a Third Party Service, or derive on its own) in Reports. Subscriber will include the following language, or other substantially similar language agreed to in writing by the parties, translated into the local language if required by applicable law (the "Disclaimer") in (i) each prospectus or other offering document for any fund or other public investment product that is benchmarked to an Index, (ii) each contract for investment management services or portfolio policy guidelines for any separately managed investment portfolio that is benchmarked to an Index, (iii) Subscriber's website, if any, in a reasonably conspicuous manner, and (iv) any other Reports, where it is reasonably feasible to do so:
Source: ICE Data Indices, LLC ("ICE"), is used with permission. ICE, ITS AFFILIATES AND THEIR RESPECTIVE THIRD PARTY SUPPLIERS DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS, EXPRESS AND/OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, INCLUDING THE INDICES, INDEX DATA AND ANY DATA INCLUDED IN, RELATED TO, OR DERIVED THEREFROM. NEITHER ICE DATA, ITS AFFILIATES OR THEIR RESPECTIVE THIRD PARTY PROVIDERS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY WITH RESPECT TO THE QUALITY, ADEQUACY, ACCURACY, TIMELINESS OR COMPLETENESS OF THE INDICES OR THE INDEX DATA OR ANY COMPONENT THEREOF, AND THE INDICES AND INDEX DATA AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN "AS IS" BASIS AND SUBSCRIBER'S USE IS ATSUBSCRIBER'S OWN RISK. ICE DATA, ITS AFFILIATES AND THEIR RESPECTIVE THIRD PARTY DO NOT SPONSOR, ENDORSE, OR RECOMMEND [INSERT SUBSCRIBER NAME], OR ANY OF ITS PRODUCTS OR SERVICES.
Subscriber will include the following attribution, translated into the local language if required by applicable law, in all other Reports, not mentioned above, that includes Index Data or reference an Index:
The index data referenced herein is the property of ICE Data Indices, LLC, its affiliates, ("ICE") and/or its Third Party Suppliers and has been licensed for use by [Subscriber]. ICE, its affiliates and Third Party Suppliers accept no liability in connection with its use. See [prospectus, registration statement, url, etc.] for a full copy of the Disclaimer.
C. Unless explicitly stated in this Section 5 or approved in writing in advance by ICE, Subscriber shall not externally display or publish any Index Data or other related information or data.
D. Except as necessary to identify the Indices or to include the Disclaimer in Subscriber's reports, Subscriber acknowledges and agrees that it has no other rights under this Agreement to use the trademarks or service marks owned or licensed by ICE (including its affiliates) (collectively, the "ICE Marks").
A. Subscriber agrees that the Indices are selected, coordinated, arranged, and prepared by ICE through the application of methods and standards of judgment used and developed through the expenditure of considerable work, time, and money by ICE, and Subscriber agrees that it has no proprietary interest therein. Subscriber agrees that ownership of the Index Data, the Indices, and the ICE Marks shall remain exclusively vested in ICE (including its affiliates and their respective Third Party Suppliers) and/or its data sources both during the Term of this Agreement and thereafter. All goodwill, if any, arising from Subscriber's and its Affiliates' use of the ICE Marks shall inure solely to ICE. All rights not expressly granted to Subscriber are reserved to ICE. Subscriber acknowledges that Subscriber does not hereby obtain any ownership of the Index Data Services or any part thereof. Subscriber agrees to exercise at least the same degree of care to preserve the confidentiality of the Index Data Services (and related documentation) and to maintain the proprietary rights of ICE, its affiliates and Third-Party Suppliers, that it exercises to protect its own Confidential Information (as hereinafter defined) of a similar level of sensitivity, but in no event less than a reasonable level of care.
B. ICE reserves the right, at any time, and without prior notice, to make adjustments to the composition or calculation method of any Index, to cease to publish certain Index Data for one or more of the Indices, or to discontinue any Index or the dissemination of any or all of its Indices.
C. Subscriber agrees that any ideas, suggestions or specifications that are provided by or through Subscriber may be freely used by ICE in the creation or improvement of any index or in its related index business. Such use by ICE does not grant to Subscriber any right, title or interest in any index or in its related index business. Subscriber shall otherwise be free to use its ideas, suggestions and specifications.
D. Subscriber shall not take any action to register any ICE Marks, including the name(s) of the Indices. Subscriber further agrees never to challenge, contest or question the validity of the ICE Marks or any related trademark registrations. Subscriber agrees not to create a composition mark with, or use confusingly similar marks or trade dress to, the ICE Marks, or dilute the distinctiveness of any ICE Marks. Subscriber recognizes the great value of the goodwill associated with the ICE Marks and will not disparage or degrade the value of the ICE Marks.
7. INDEMNIFICATION; DISCLAIMER; LIMITATION OF LIABILITY
A. Subscriber shall defend, indemnify and hold harmless ("Indemnify") ICE and its affiliates and their respective Third Party Suppliers against all claims, actions, proceedings, suits, and threats of these ("Claims") and pay all damages, losses, liabilities, costs, reasonable attorneys' fees, and expenses which ICE or its affiliates or their respective Third Party Suppliers suffers or becomes obligated to pay a third person, arising out of or related to Subscriber's and its Affiliates' (i) breach of this Agreement or (ii) use of the Indices, Index Data or Index Data Services.
B. THE INDICES, THE INDEX DATA, THE INDEX DATA SERVICES, AND ANY OTHER SERVICES PROVIDED BY ICE UNDER THIS AGREEMENT ARE PROVIDED "AS IS", AND ICE (INCLUDING ITS AFFILIATES AND THIRD PARTY SUPPLIERS) MAKE NO WARRANTIES, AND HEREBY DISCLAIM ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, BY OPERATION OF LAW OR OTHERWISE, ARISING FROM OR RELATED TO THIS N AGREEMENT OR AS TO THE ACCURACY, ADEQUACY, TIMELINESS, OR COMPLETENESS OF THE INDICES, INDEX DATA OR ANY DATA OR INFORMATION, CONTAINED THEREIN FURNISHED HEREUNDER OR FOR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF. . WITHOUT LIMITATION, ICE (INCLUDING ITS AFFILIATES AND RESPECTIVE THIRD PARTY SUPPLIERS) DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTIES THAT MAY ARISE FROM USAGE, PERFORMANCE, OR CUSTOM WITH REGARD TO THE INDICES, INDEX DATA, INDEX DATA SERVICES, AND ANY OTHER SERVICES PROVIDED BY ICE UNDER THIS AGREEMENT. THE INDICES, THE INDEX DATA AND THE INDEX INFORMATION AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN "AS IS" BASIS AND SUBSCRIBER'S USE IS AT SUBSCRIBER'S OWN RISK.
C. EXCEPT WITH RESPECT TO WILLFUL TORTIOUS MISCONDUCT IN NO EVENT SHALL ICE (INCLUDING ITS AFFILIATES) BE LIABLE TO SUBSCRIBER, OR ANY OTHER PERSON FOR ANY MATTER ARISING FROM OR RELATED TO THIS AGREEMENT, WHETHER BASED UPON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR A CUMULATIVE AMOUNT EXCEEDING THE GREATER OF THE FEES PAID OR PAYABLE BY SUBSCRIBER FOR THE AFFECTED PORTION OF THE INDEX DATA SERVICES FOR THE PERIOD OF TIME AFFECTED (SUCH PERIOD NOT TO EXCEED THREE (3) MONTHS), OR $500.
D. EXCEPT WITH RESPECT TO WILLFUL TORTIOUS MISCONDUCT, IN NO EVENT SHALL ICE (INCLUDING ITS AFFILIATES) BE LIABLE TO SUBSCRIBER OR ANY OTHER PERSON FOR LOSS OF PROFITS, LOSS OF OPPORTUNITY, TRADING LOSSES, LOSS OF USE DAMAGES, INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR EXEMPLARY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT, EVEN IF ICE (OR ITS AFFILIATES) HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
E. Sections 7.B, 7.C and 7.D are meant to be independent of each other and a failure of essential purpose of one shall not affect the enforceability of the others.
8. OTHER TERMS
A. The captions used in this Agreement are inserted only for convenience of reference. Such captions shall not be deemed to govern, limit, modify or in any manner affect the scope, meaning or intent of the provisions of this Agreement, nor shall captions otherwise be given any legal effect.
B. Words importing the singular number only shall include the plural and vice versa, and words importing persons shall include firms and corporations and vice versa.
C. This Agreement does not create a partnership, joint venture or agency relationship between the Parties. Neither Party shall have any power to obligate or bind the other Party in any manner.
D. ICE may amend this Agreement at any time by providing a ninety (90) days' prior notice, through electronic or other direct communication with Subscriber, and any such amendments, will be prospectively binding on Subscriber effective ninety (90) days from the date of such notice. Subscriber's use of an Index after the effective date of any such amendment shall constitute Subscriber's ratification of, and agreement to, any such amendment. In the event that Subscriber objects to such amendment, then Subscriber shall be entitled to terminate this agreement by providing a thirty (30) days' prior written notice to ICE.
E. This Agreement, together with any schedules and exhibits, constitutes the entire agreement between the Parties hereto with respect to its subject matter. This Agreement supersedes all previous Agreements between the Parties with respect to the subject matter of this Agreement. There are no oral or written collateral representations, agreements, or understandings except as provided herein. This Agreement may be signed in counterparts, with the same effect as if the signature on each counterpart were upon the same instrument.
F. This Agreement shall bind and inure to the benefit of each Party's successors and permitted assigns. Neither Party may assign any of its rights or obligations under this Agreement (by operation of law or otherwise) without the prior written consent of the other Party, except that ICE Data may assign this Agreement to an affiliate or successor-in-interest without obtaining consent.
G. The Subscriber acknowledges and agrees that: (i) this Agreement is an arm's-length agreement between the Subscriber and ICE; (ii) the Subscriber is an institutional investor and is capable of evaluating and understanding the construction, purpose and use of the Index; (iii) ICE, in connection with the Index Data Services, any Index or any Index Data, is not acting as Subscriber's financial advisor, agent or fiduciary; (iv) ICE is not assuming any obligation to the Subscriber with respect to any Index or Index Data; (v) ICE is not providing any opinion on any Index; (vi) ICE and its affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Subscriber and its customers and it has no obligation to disclose any of such interests by virtue of any advisory, agency or fiduciary relationship; and (vii) ICE has not provided any legal, accounting, regulatory or tax advice with respect to any Index or Index Data.
H. Sections 3.B, 6.A though 6.C, 7.A through 7.E, 8.A through 8.I shall survive the expiration or termination of this Agreement.
I. Subscriber agrees to keep complete and accurate books, records and related documentation concerning the use of the Index Data. ICE is hereby granted the right to (i) audit and examine, upon reasonable notice, Subscriber's books, records and any and all computer equipment, devices, components, transmission equipment and software used by Subscriber in connection with the installation, maintenance, accessing, delivery, transmission, reception, retrieval or use by Subscriber and its clients (as applicable) of the Index Data, and (ii) observe, upon reasonable notice, all operations conducted by Subscriber relating to the use and distribution of the Index Data. All such audits shall be conducted at ICE's sole expense, unless an audit by ICE reveals a material variance in the use and distribution of the Index Data from the use and distribution contemplated by this Agreement, in which case Subscriber shall be liable to ICE for all reasonable audit expenses incurred by ICE. Subscriber shall also be liable for any unauthorized use or distribution of the Index Data discovered during such audit.
J. Except as expressly provided in this Agreement, neither party may assign, or otherwise transfer, voluntarily, involuntarily, including by operation of law or otherwise, any of its rights or obligations under this Agreement without, in each instance, the prior written consent of the other party. Any attempt to assign, subcontract, or otherwise transfer is null and void. ICE may transfer its rights and obligations in whole or in part, without need for Notice to or consent of Subscriber: to a third person as part of a sale, acquisition, merger, reorganization, or other transfer or assignment that involves substantially all of ICE's business or assets related to the Index Data Services; or to an ICE affiliate.
K. All "Notices" are required to be given to Subscriber at the email address that Subscriber provided as part of the registration process and to ICE at the following email address: email@example.com (or such other address for which Notice has been subsequently given in accordance with this provision).
L. This Agreement constitutes all the agreements, representations, warranties, and understandings with respect to and supersedes all previous or contemporaneous agreements (including without limitation the agreements listed at the end of this section, if any), representations, warranties, and understandings relating to the subject matter hereof, whether oral or in writing, and constitutes the final and entire agreement of the parties hereto.
M. All matters arising from or related to this n Agreement shall be governed and interpreted in accordance with the laws of the State of New York, and the U.S.A., without reference to its conflicts of law principles. Except as stated in this Agreement, all remedies are cumulative and may be exercised concurrently or successively, and the exercise of one remedy shall not be deemed to be an election of such remedy to the exclusion of other remedies, so long as there is no double recovery for the same damage. No failure on the part of a party to exercise, no delay in exercising, and no course of dealing with respect to any right, power or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power or privilege preclude any other or future exercise thereof or the exercise of any other right, power or privilege under this Agreement. Except as otherwise provided herein, no provision of this Agreement may be amended, modified or waived, unless by a written instrument executed by both parties. The invalidity or unenforceability of any provision hereof, or part thereof shall not affect the validity or enforceability of any other provision hereof or any other part of such provision. Both parties hereby irrevocably consent to submit to and waive any right to contest the jurisdiction or venue of the courts for or in the County of New York, NY, as the exclusive forum (except that a party may seek to remove the action from the above state to the above federal court), in connection with any claim, instituted or arising from or relating to this Agreement; a judgment or award from such courts may be filed and enforced anywhere.
N. Subscriber agrees that any Third Party Supplier of any portion of the Index Data Services may enforce its rights against Subscriber as an intended third-party beneficiary of this Agreement, even though such supplier is not a party to this Agreement. Subscriber shall, where applicable, and as required to receive certain portions of the Index Data Services, enter into separate agreements with ICE Data, its affiliates and/or Third Party Suppliers, and Subscriber's failure to comply with the provisions of this Section 13(h) shall constitute a material breach of this Agreement.
O. For the purpose of this Agreement, "Confidential Information" shall mean all non-public information disclosed for the purpose of performing or receiving the Index Data Services or data hereunder, including, but not limited to, business, financial, operational, product, service and other information or data of every kind (including without limitation, the data and information comprising the Index Data Services, details of products, prices, technical specifications, other trade secrets and whether oral, written or in any other form) of ICE, together with any information derived from such information and analyses, compilations, studies and other material prepared by the receiving party, which contain or otherwise reflect or are generated from such information. Subscriber shall not be liable for the disclosure of any Confidential Information that: (i) is in the public domain at the time of disclosure; (ii) was in the possession of or demonstrably known by Subscriber without restrictions on disclosure prior to its receipt from ICE; (iii) is independently developed by a party without use of any Confidential Information provided by the other; or (iv) becomes known to Subscriber from a source other than ICE without breach of Subscriber's obligations under this Agreement. In addition, Subscriber may disclose Confidential Information if such disclosure is required by judicial order, provided that, except as prohibited by applicable law, Subscriber disclosing Confidential Information under such circumstances gives ICE reasonable notice and a reasonable opportunity to protect its interests in the Confidential Information prior to making such disclosure. Subscriber agrees that ICE's disclosure pursuant to law or regulation or disclosure to suppliers of the Index Data Services of (x) the existence of this Agreement and/or (y) the terms and conditions governing the availability of the data to Subscriber shall not constitute a breach of the confidentiality provisions of this Agreement to the extent such disclosures are made by ICE to satisfy ICE's reporting obligations under the law, regulation or its agreements with such suppliers.
P. The license granted herein is made on the condition that Subscriber will not take any action to cause ICE and or/its Affiliates to breach the requirements of the U.S. Department of the Treasury's Office of Foreign Assets Controls' (OFAC) sanctions programs, including the Specially Designated Nationals List (collectively the "Controls"). Subscriber will: (i) comply with all legal requirements established under the Controls; (ii) cooperate fully with ICE in any official or unofficial audit or inspection that relates to the Controls; and (iii) not export, re-export, divert or transfer, directly or indirectly, any such item or direct products thereof to, or otherwise enter into any transaction or engage in any other activities with, any country, territory or person restricted or targeted by the Controls. Subscriber further represents and warrants that as of the date of this Agreement, (x) neither Subscriber, Subscriber's Affiliates nor any of their respective affiliates, subsidiaries, or any director or corporate officer of any of the foregoing entities, is the subject of any OFAC sanctions, (y) Subscriber is not 50% or more owned or controlled, directly or indirectly, by any person or entity that is the subject of any OFAC sanctions, and (z) to the best of Subscriber's knowledge, no entity or entities own or control either directly or indirectly more than 50% of the Subscriber are the subject of OFAC sanctions. For so long as this Agreement is in effect, Subscriber will notify ICE as soon as is practicable, but in any event no later than forty-eight (48) hours after it determines that any of these circumstances change. Notwithstanding anything to the contrary herein, ICE and/or its Affiliates, as applicable, reserve the right to terminate its contractual relationships pertaining to the use of, or access to, any services, systems, information, applications, technology or any other property of any kind whatsoever (the "Property") with (i) any entity which is a target of OFAC sanctions ; and (ii) any entity including Subscriber which has granted access to the Property in a manner that violates the Controls.
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