Terms and conditions of use agreement

This Terms and Conditions of Use Agreement (this “Agreement”) of Business News Americas SPA, having an office at Los Militares 6191, floor 5, Las Condes, Santiago, Chile, and its affiliates (collectively and individually, “BNamericas”) governs and controls all orders entered into between Business News Americas SPA or any of its affiliates and the entity or person identified on the order (the “Customer”) entered into between such entity or person and BNamericas (the “Order”).

This Agreement explains the terms by which the Customer and its Authorized Users (as hereinafter defined) may use BNamericas services and products. By accessing or using any of such services, data, content, information or products (the “Services”), the Customer agrees that it is bound by this Agreement. Prior to any individual accessing or using the Services such individual must be an Authorized User under an Order and each Authorized User must register on bnamericas.com (the “Site”).

  1. 1. LICENSE GRANT.
    1. 1.1 License Grant. Subject to the terms of this Agreement, BNamericas grants to Customer a non-exclusive, non-transferable, royalty-free, limited license to access and use internally within Customer’s business: (i) BNamericas’ proprietary products and services (the “Services”) identified in the Orders agreed to by Customer and BNamericas hereto and incorporated herein (such products and services, together with the information, data, and content contained in the Services, the “BNamericas Information”) for the term specified in the applicable Orders and (ii) BNamericas’ delivery platform for use in connection with the BNamericas Services, in each case only for Customer’s own internal business and only through its Authorized Users. As a condition to each Authorized User being able to access and use the Services, each Authorized User shall have to register for the Services at [insert link] and will have to agree to the User Terms Agreement, the form of which is attached as Exhibit A to this Agreement. BNamericas shall use reasonable efforts to maintain the Services so that the Services are available twenty-four hours a day, seven days a week, except for routine maintenance that will be performed during non-peak usage periods. “Authorized User” means an employee of Customer or a contractor acting under Customer’s direction, in each case (i) in the ordinary course of Customer’s business, (ii) subject to the restrictions set forth in this Agreement as well as an appropriate confidentiality undertaking in writing, and (iii) who is authorized by BNamericas (as permitted in the applicable Orders ) to access the BNamericas Information. Customer is responsible and liable for ensuring compliance by its Authorized Users with the terms and conditions of this Agreement and the applicable Orders.
    2. 1.2 Scope of License. Customer shall not reproduce, distribute, display, sell, publish, broadcast or circulate the BNamericas Information to any third party, except as expressly permitted pursuant to this Agreement or an Order. Customer shall not create or store in electronic form any shared library or archive of the BNamericas Information which could be used as a research application. Customer may not use the BNamericas Information for the purpose of creating due diligence reports that are at the level commonly referred to as “red flag” or “level 1” due diligence reports (the “Restricted Reports”) to make such Restricted Reports available to any third parties as part of a commercial offering or any other similar service. Customer’s use of the Services shall be permitted, in the ordinary course of Customer’s business and, in each case, solely on Customer’s own behalf, to:
      1. (a) permit Authorized Users to perform analyses and research based on BNamericas Information;
      2. (b) include Minimal Excerpts (as defined below) of BNamericas Information, subject to the attribution requirements in Section 1.6 and the disclaimer of warranties and limitations of liability in Section 6 of this Agreement;
      3. (c) provide access to BNamericas Information for internal “pass-through” employees such as information technology personnel for clerical purposes only and disaster recovery personnel, in each case in the ordinary course of Customer’s business; and
      4. (d) provide access to the BNamericas Information to its affiliates and other third parties that are specifically identified in the applicable Order (such affiliates and third parties, the “Permitted Third Parties”).
    3. 1.3 Restrictions on the Use of the BNamericas Information. All access to and use of all of the BNamericas Information licensed hereunder shall be subject to the restrictions stated in this Agreement and in each applicable Order. Only those Authorized Users who are expressly authorized in the applicable Orders shall have access to or use of the BNamericas Information described in such Order. Customer and its Authorized Users shall not modify, reverse engineer, disassemble or decompile the BNamericas Information. Customer is prohibited from inputting or loading any BNamericas Information into Customer’s internal network configuration or IT systems. In addition, Customer: (i) will not collect or attempt to collect information that Customer does not have a right to access pursuant to an Order; (ii) will not engage in any screen scraping, use any spider or other automatic data collection method, or any other type of data collection or acquisition method, except as approved by BNamericas in an Order; and (iii) will use reasonable procedures and care in accessing any BNamericas servers or databases, in each case so as not to attempt to or actually disrupt or impair any BNamericas servers or databases, or breach their security.
    4. 1.4 Derivative Works. Customer shall not create any Derived Data (as defined below) from the BNamericas Information except as expressly authorized in an Order. “Derived Data” shall mean data created by Customer in connection with Customer’s use of the BNamericas Information as a result of combining, processing, changing, converting or calculating the BNamericas Information or any portion thereof with other data.
    5. 1.5 Limited Third Party Distribution. In addition, if pursuant to an Order Customer is permitted to provide BN Information or Derived Data to a third party, such data may only be provided in a manner that it is not possible to extract or otherwise manipulate the BN America Information. In addition, the providing of the BN Information and Derived Data must comply with the following requirements: (i) must be only a limited extract provided on an ad hoc basis (“Minimal Excerpts”); (ii) provided only on a non-continuous basis and not updated on a regular schedule; (iii) the distribution is incidental to the Customer’s business and the Customer does not charge a fee for the BNamericas Information or Derived Data.
      1. (a) In no event shall Customer use the BNamericas Information or Derived Data to compete with any of BNamericas’s products and services.
      2. (b) Customer acknowledges and agrees it will not use the BNamericas Information or any data contained therein as the basis for, or as a component of, any indices or any financial instruments or other investment products (such as swaps, options, forward contracts, notes, warrants, or contracts that trade on an exchange or in an exchange-like setting, in each case that Customer markets, creates, manages, trades and/or sells on behalf of a third party and not solely for Customer’s own account) without entering into a separate license agreement with BNamericas for the creation of such indices, financial instruments or other investment products.
    6. 1.6 Display and Attribution of the BNamericas Information. Customer shall use and represent the BNamericas Information correctly and accurately, without any mistakes or distortions. In connection with BNamericas Information that Customer redistributes either internally or externally in text, tabular, graphical or electronic form pursuant to this Agreement, Customer shall always identify BNamericas as the source of such information, and shall display, on each web site, screen, document page or other format that includes BNamericas Information or Derived Data, such BNamericas logos, trademarks and/or copyright notices, disclaimers, hyperlinks, or other links to a BNamericas web site as BNamericas may request.
    7. 1.7 Permitted Third Parties. Customer acknowledges and agrees that it is responsible and liable for Permitted Third Parties’ compliance with the terms of this Agreement and the Orders. All Permitted Third Parties as a condition to their access to the Services must comply with all obligations of and restrictions on Customer under this Agreement and the Orders. All limitations of liability in this Agreement on BNamerica apply to any and all claims, whether made by Customer, Permitted Third Parties or an Authorized User.
    8. 1.8 Licenses for Evaluation Purposes Only. Pursuant to an Order, BNamericas may make available to Customer certain Services solely for the purposes of Customer evaluating such Services (the “Beta Services”). Beta Services are provided “as is”, without any representations and warranties, express or implied. Customer shall only use Beta Services for evaluation purposes and not for any production or commercial use. At the request of BNamericas, Customer shall provide feedback to BNamericas with respect to the Beta Services (the “Feedback”). All Feedback shall be the confidential information of BNamericas and shall not be disclosed by Customer publicly or to any third party.
  2. 2. ORDERS. The parties may add additional BNamericas Information to this Agreement in the future under new Orders entered into by both parties. Each Order incorporates the terms and conditions of this Agreement. In the event of any conflict between the terms of this Agreement and the terms of any Order, the terms of this Agreement shall prevail, unless the Order expressly states that it will govern with respect to such provision, in which case such Order shall govern with respect to such provision. Any changes contained in any Order shall not modify this Agreement with respect to any other Order.
  3. 3. DELIVERY/ACCESS AND SECURITY. Customer may access the BNamericas Information through BNamericas web site located at bnamericas.com and only in accordance with the limitations and restrictions set forth in this Agreement and in such Orders. Customer shall hold and cause all of its Authorized Users to hold any passwords/user IDs issued by BNamericas or by Customer in connection with access to the BNamericas Information in strict confidence, and Customer shall instruct all Authorized Users of their obligations in this regard. Customer shall not permit the sharing of user IDs or passwords, or simultaneous access to the BNamericas Information via the same user ID or password. Customer shall be responsible for ensuring that only Authorized Users of Customer and Permitted Third Parties access the Services. In addition, Customer shall be responsible for maintaining the security of the BNamericas Information in its possession or in the possession of any of the Permitted Third Parties and ensuring that it is not accessed or used by anyone other than Authorized Users. BNamericas shall not be liable or otherwise responsible for any of the following: (i) the procurement, installation or maintenance of any equipment on which the BNamericas Information is accessed by Customer; (ii) any communications connection by which the BNamericas Information is transmitted; (iii) any communication delays or interruptions of the BNamericas Information; (iv) the transmission to Customer of the BNamericas Information; or (v) any fees payable by Customer for any communication lines, to any third-party network operator or to any other person, firm or entity.
  4. 4. THIRD PARTY AGREEMENTS AND INFORMATION.
    1. 4.1 Customer acknowledges that the BNamericas Information may contain information that is provided to BNamericas by third parties. Customer’s right to receive and use those portions of the BNamericas Information pursuant to license or access granted to BNamericas by any third party provider (the “Third Party Vendor”) is subject to automatic modification, termination or discontinuation without liability on the part of BNamericas if such licenses or access are modified, terminated or discontinued by such provider. If Customer receives any BNamericas Information that contains content provided by any Third Party Vendor or via any Third Party Vendor’s platform, and such Third Party Vendor requires BNamericas’ customers who receive such content to enter into an agreement directly with such third party, in such event Customer shall enter into separate agreements with any such Third Party Vendors and Customer shall agree to be bound by and comply with all conditions, restrictions, or limitations imposed in such agreements. In the event that Customer declines to enter into any such agreement with a Third Party Vendor or to comply with the obligations of such agreement, Customer acknowledges and agrees that: (i) BNamericas’ obligation to provide BNamericas Information containing content from or provided via such Third Party Vendors would cease; and (ii) in such event, BNamericas would bear no liability for suspending or terminating the provision of such BNamericas Information to Customer. In addition, Customer agrees to indemnify and hold harmless BNamericas, its affiliates and their Third Party Vendors from and against any and all losses, costs, claims, damages, expenses and liabilities (including, but not limited to, reasonable legal expenses and court costs) and/or penalties as any Third Party Vendors may impose, arising out of any breach of Customer’s obligations under this Agreement or any Order. Customer agrees that any Third Party Vendor of any portion of the BNamericas Information may enforce its rights against Customer as an intended third-party beneficiary of this Agreement, even though such Third Party Vendor is not a party to this Agreement.
    2. 4.2 With respect to all information and content provided by Dow Jones or any derived content (individually and collectively, the “Dow Jones Content”) and included in the BNamericas Information, Customer shall not have any rights to reproduce, distribute, display, sell, publish, broadcast or circulate any of the Dow Jones Content, including without limitation no right to do any of the foregoing with respect to Minimal Excerpts.
  5. 5. FEES AND CHARGES.
    1. 5.1 General. Customer shall pay all fees and charges stated in the Orders, in United States Dollars (unless specified otherwise in an Order) plus all applicable taxes (other than taxes based on BNamericas’ income), and Customer shall be responsible for and pay all applicable value-added, sales, use and similar taxes, within thirty (30) days after the invoice date. Customer shall pay BNamericas directly and not through any third-party agent, broker, or other third-party provider. BNamericas may increase its fees and charges for any BNamericas Information at any time after the Initial Term set forth in an Order by providing prior written notice to Customer, but BNamericas shall not increase its fees and charges for any BNamericas Information subscribed to hereunder more than once during any twelve (12) month period. For purposes of this Section 5.1 a renewal invoice is deemed to be sufficient notice of a fee increase.
    2. 5.2 Late Payment. Failure by Customer to pay any fees or other charges within thirty (30) days after the corresponding invoice date shall constitute a material breach of this Agreement and the applicable Orders . BNamericas may assess a late charge at the lower of one percent (1 %) or the highest rate permitted by law per calendar month on all amounts due and not paid within thirty (30) days after the due date until Customer makes payment in full. In addition to all other rights and remedies available to BNamericas at law or in equity, BNamericas also may suspend delivery of the Services or any component thereof for as long as any such amount remains unpaid after such thirty (30) day period.
  6. 6. TERM/TERMINATION.
    1. 6.1 Term; Renewal. This Agreement shall commence on the Effective Date set forth above and shall continue in effect for as long as any Orders entered into pursuant to this Agreement remains in effect. The term of each Order will commence on the date specified therein (the “Commencement Date”) and shall continue for the term and in accordance with the provisions stated therein. Unless another period is specified in an Order, the initial term of each Order (“Initial Term”) as it applies to the BNamericas Information subscribed to in such Order shall be for a period of one (1) year following the Commencement Date of such Order. The Initial Term of each Order may be extended for additional one year terms upon the mutual agreement of the Customer and BNamericas pursuant to the requirements and conditions set forth in such Order (each such renewal term, together with the Initial Term, shall be the “Term”).
    2. 6.2 Events of Termination.
      1. (a) Breach. In the event of a breach by either party of any material term or provision of this Agreement or any Order, the non-breaching party may terminate this Agreement and all of the Orders by giving the breaching party thirty (30) days’ prior written notice thereof; provided, however, that such termination shall not take effect if the party in breach cures or corrects the breach within such notice period.
      2. (b) Bankruptcy/Insolvency. Either party may terminate any or all Orders and this Agreement upon written notice to the other if the other party is adjudicated as bankrupt or insolvent or if a petition in bankruptcy or winding up is filed by or against the other party or if the other party makes an assignment for the benefit of creditors or an arrangement pursuant to any bankruptcy or insolvency.
      3. (c) Discontinuation of BNamericas Service. If BNamericas decides for any reason to discontinue offering or providing the BNamericas Information or a portion thereof, BNamericas may terminate the portion of the applicable Orders that relates to such discontinued Services. In such event BNamericas shall have no liability other than to give Customer a pro rata credit or refund for any unearned subscription fees that have been prepaid for any unused period.
      4. (d) Addition Grounds for Termination. BNamericas shall have the right to terminate this Agreement and any applicable Orders, effective immediately, if BNamericas is required to do so to comply with sanctions or other applicable law or regulations.
    3. 6.3 Effect of Termination and Post-Termination Obligations. Upon the termination of this Agreement, all Orders shall automatically terminate and BNamericas shall have no obligation to allow Authorized Users, Customer or any of the Permitted Third Parties with access to any of the BNamericas Information. Upon the termination of any Order, BNamericas shall have no obligation to allow Authorized Users, Customer or any of the Permitted Third Parties with access to the BNamericas Information provided pursuant to such Order. Upon any termination of any Order or portion thereof by either party, Customer shall immediately cease all use of the terminated BNamericas Information or portion thereof provided under such Order; and Customer shall expunge the relevant BNamericas Information and any portion thereof, including any copies thereof, from all of Customer’s electronic or other systems and records in Customer’s possession or control. Notwithstanding any provision of this Section 6.3 to the contrary, Customer will not be required to expunge any portion of the BNamericas Information to the extent applicable laws, regulations or other financial or other statutory audit requirements require BNamericas Information to be retained by Customer (collectively, “Compliance Purposes”), until the time limit of such requirement has expired, provided that: (i) Customer will not access or use, whether for commercial purposes (e.g. business analysis based on historical BNamericas Information, contracts, any trading activity, invoicing, etc.) or otherwise, or permit any other party to access or use, such retained BNamericas Information for any reason except to the extent necessary for such Compliance Purposes; and (ii) except with respect to any BNamericas Information that Customer is required to divulge to any third parties for such Compliance Purposes, Customer shall maintain all BNamericas Information retained under this Section 6.3 as confidential information of BNamericas. At BNamericas’ request, a senior officer of Customer shall promptly certify to BNamericas in writing that Customer has fully complied with this requirement.
    4. 6.4 Termination of Orders. Upon termination of all of the Orders, this Agreement shall automatically terminate.
  7. 7. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY. BNAMERICAS, ITS AFFILIATES AND ALL OF THEIR THIRD PARTY VENDORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE BNAMERICAS INFORMATION OR THE SERVICES, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE.
    NO USER OF THE BNAMERICAS INFORMATION SHOULD RELY ON ANY INFORMATION CONTAINED IN THE BNAMERICAS INFORMATION IN MAKING ANY INVESTMENT OR OTHER DECISION. THE BNAMERICAS INFORMATION IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND EXPERIENCE OF CUSTOMER, ITS MANAGEMENT, EMPLOYEES, ADVISORS AND/OR CLIENTS IN MAKING INVESTMENT AND OTHER BUSINESS DECISIONS.
    NEITHER BNAMERICAS, NOR ITS AFFILIATES OR THEIR THIRD PARTY VENDORS GUARANTEE THE ADEQUACY, ACCURACY, AVAILABILITY, TIMELINESS OR COMPLETENESS OF THE BNAMERICAS INFORMATION OR ANY COMPONENT THEREOF OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO ORAL OR WRITTEN COMMUNICATIONS (WHETHER IN ELECTRONIC OR OTHER FORMAT), WITH RESPECT THERETO. BNAMERICAS, ITS AFFILIATES AND THEIR THIRD PARTY VENDORS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS OR DELAYS IN THE BNAMERICAS INFORMATION. THE BNAMERICAS INFORMATION AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND CUSTOMER’S USE OF THE BNAMERICAS INFORMATION IS AT CUSTOMER’S OWN RISK.
    NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL BNAMERICAS, ITS AFFILIATES OR THEIR THIRD PARTY VENDORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMIATION, COSTS OF SUBSTITUTE SERVICES OR INFORMATION, ANY LOSS OF PROFITS, TRADING LOSSES, BUSINESS INTERRUPTION LOSSES, OR LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
    BNAMERICAS, ITS AFFILIATES AND THEIR THIRD PARTY VENDORS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST CUSTOMER BY THIRD PARTIES. EXCEPT FOR BMAMERICAS’ OBLIGATION TO INDEMNIFY FOR THIRD PARTY CLAIMS OF INFRINGEMENT IN ACCORDANCE WITH SECTION 10 OF THIS AGREEMENT, IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF BNAMERICAS, ITS AFFILIATES, AND THEIR THIRD PARTY VENDORS IN CONNECTION WITH THE BNAMERICAS INFORMATION AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO BNAMERICAS UNDER THE APPLICABLE ORDERS FOR THE BNAMERICAS INFORMATION IN THE APPLICABLE ORDERS IN THE TWELVE MONTH PERIOD PRIOR TO SUCH CLAIM OR ACTION BEING MADE.
    NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT, ANY ORDERS OR THE BNAMERICAS INFORMATION OR SERVICES MAY BE BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
  8. 8. AUDIT/INSPECTION AND COMPLIANCE.
    1. 8.1 Audit. Customer shall, during the term of this Agreement, maintain full and accurate records (including applicable data in electronic format) of all access to and use of the BNamericas Information for the most recent twenty-four (24) months. During the term of this Agreement and for a twelve (12) month period thereafter, BNamericas shall have the right, and Customer agrees to permit BNamericas or its representatives, including an independent third-party auditor chosen by BNamericas, during normal business hours and upon reasonable notice to Customer, to (i) audit and review, at Customer’s location(s), during reasonable hours and at reasonable intervals, the terminals, workstations and/or any network on or by which any portion of the BNamericas Information is accessed; (ii) review, make copies of, and retain relevant portions of those records; and (ii) audit the manner of access to and usage of the BNamericas Information, in each case to confirm that fees and charges have been accurately determined and that Customer has observed the restrictions on use and access. BNamericas’ failure to conduct an audit pursuant to this Section 8.1 shall not relieve Customer from its responsibilities to comply fully with the terms and conditions of this Agreement and all Orders. BNamericas shall bear the costs of any such audit and/or inspection, unless such audit and/or inspection reveals an underpayment to BNamericas of five percent (5%) or more; in such case, Customer shall reimburse BNamericas for its costs and expenses in conducting such audit and/or inspection. Customer agrees to cooperate fully with BNamericas in reconciling any disparities in Authorized User counts or other licensing disparities revealed by any audit, and Customer shall promptly pay BNamericas or BNamericas shall credit Customer’s account, as appropriate, for the pro rata difference, if any, between the amount of fees actually charged to Customer by BNamericas and the amount that should have been charged based upon such reconciliation.
    2. 8.2 Compliance. Customer shall, at BNamericas’ request, promptly provide a written certification by a senior officer that Customer is in full compliance with any Authorized User and other license restrictions set forth in this Agreement, including in any Orders.
  9. 9. BNAMERICAS’ PROPRIETARY RIGHTS/INJUNCTIVE RELIEF.
    1. 9.1 All rights (including copyrights, trade secrets, database rights and trademark rights) in the BNamericas Information, including all information, data, price assessments, analytics, analyses, benchmarks, formulas, software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of BNamericas, its affiliates and their Third Party Vendors. Customer acknowledges that the BNamericas Information is compiled, prepared, revised, selected, coordinated, and arranged by BNamericas, its affiliates and/or their Third Party Vendors through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the BNamericas Information constitutes the valuable intellectual property and confidential information of BNamericas, its affiliates and their Third Party Vendors. Customer shall take all precautions that are reasonably necessary to: (i) prevent access to the BNamericas Information or any component thereof by any individual or entity that is not an Authorized User other than distributions expressly permitted in this Agreement or any Order; (ii) prevent any unauthorized distribution or redistribution of the BNamericas Information, either internally or externally; and (iii) protect the copyrights, trade secrets, database rights, trademarks and other proprietary rights of BNamericas, its affiliates and their Third Party Vendors in the BNamericas Information, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement or of any Orders. Customer shall comply with all reasonable requests made by BNamericas to protect the rights of BNamericas, its affiliates, and their respective Third Party Vendors in the BNamericas Information. No rights are granted to Customer with respect to the BNamericas Information other than those expressly set forth in this Agreement and/or any Orders. BNamericas reserves all rights to the BNamericas Information other than the limited license granted pursuant to this Agreement, and neither this Agreement nor any Orders shall be construed to transfer to Customer any right to, or interest in, the BNamericas Information, or in any copyright, trademark or other intellectual property or proprietary right pertaining thereto.
    2. 9.2 Copying of, use of, access to or distribution of the BNamericas Information or any information, data or software contained therein in breach of this Agreement and/or any Orders shall cause BNamericas, its affiliates and/or their respective Third Party Vendors irreparable injury that cannot be adequately compensated for by means of monetary damages. BNamericas, its affiliates and their Third Party Vendors may enforce any breach of this Agreement by Customer by means of seeking equitable relief (including, but not limited to, injunctive relief and temporary and preliminary injunctive relief) in addition to any and all other rights and remedies that may be available, without the need to prove irreparable harm, or post a bond or other security. In the event BNamericas has reasonable grounds to believe Customer is violating the terms and/or conditions set forth in this Agreement and/or any Orders, BNamericas shall have the right to suspend delivery of, or Customer’s access to, the BNamericas Information.
    3. 9.3 BNamericas has the right to use Customer’s name and logo on its customer lists on its web site and in its marketing materials.
  10. 10. INDEMNIFICATION. BNamericas shall indemnify, defend and hold harmless Customer from any and all damages awarded and settlement agreed to by BNamericas with respect to third party claims that the BNamericas Information (other than any information provided by Third Party Vendors) as provided by BNamericas without modification infringes a third party’s copyright or other intellectual property right. BNamericas’s obligation to indemnify is subject to Customer providing prompt written notice to BNamericas of such claim and BNamericas having sole control over the defense and settlement of such claim. BNamericas shall not settle any such third party claim without the full release of the Customer from all liability with respect to such claim.
  11. 11. ASSIGNMENT/CHANGE OF CONTROL. Neither party shall assign or transfer this Agreement, except in connection with a merger, acquisition or sale of substantially all of the assets of a party. Notwithstanding anything in this Section 11 to the contrary, if Customer at any time acquires the stock, assets or business of any other entity, or Customer is acquired by another entity, Customer shall not have the right to add any additional Authorized Users under any applicable Orders or expand the use of the BNamericas Information beyond the use permitted prior to such acquisition without BNamericas’ prior written authorization.
  12. 12. MISCELLANEOUS. This Agreement, together with all Orders, exhibits, addenda, and amendments, represents the entire agreement between the parties hereto in respect of its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with regard to its subject matter. There are no oral or written collateral representations, agreements or understandings. In the event any conflicts between the English language version of this Agreement and any translations hereof, the English language version shall prevail. The provisions and terms of any purchase order or other agreement shall be of no effect and shall not in any way extend or amend the terms and conditions set forth in this Agreement unless expressly accepted in writing and signed by an authorized representative of BNamericas. BNamericas shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement beyond its control, including, but not limited to, acts of nature, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, epidemics, pandemics, severe or adverse weather conditions, power failures or communications line or network failures. No amendment of this Agreement shall be binding upon the parties unless in writing and signed by authorized representatives of BNamericas and Customer. No waiver of any term or condition of this Agreement shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. No action taken by either party shall constitute or be deemed to constitute that such party is the agent of the other, or imply that the parties intend to constitute a partnership, joint venture, or other form of association in which either party may be liable for the acts or omissions of the other. This Agreement and all Orders and all claims arising out of or relating to this Agreement, any of the Orders, the Services or the BNamericas Information shall be interpreted, construed and enforced in accordance with the applicable federal laws of the United States and the laws of the State of New York, without giving effect to the conflicts of laws provisions thereof. Any dispute, controversy or claim arising out or relating to this Agreement or any of the Orders or the BNamericas Information, including the formation, interpretation, breach or termination thereof, including whether the claims asserted are arbitrable, will be referred to and finally determined by arbitration in accordance with the JAMS International Arbitration Rules. The tribunal will consist of one arbitrator. The arbitration will be conducted remotely unless the parties mutually agree otherwise in which case the arbitration shall be in New York City, in the State of New York, USA. The language to be used in the arbitral proceedings will be English. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. Except for BNamericas right to bring any action for equitable relief as set forth below, each of the parties waives any and all rights to a jury trial and to bring a court proceeding. In addition, BNamericas has the right, but not the obligation, to bring any action for equitable relief, including temporary relief, in any jurisdiction that the Customer is located. Sections 1.4, 1.7, 5, 6.3, 7, 8, 9, 10, 11, 12, 14 and 16 shall survive the expiration and termination of this Agreement.
  13. 13. COMPLIANCE WITH LAW.
    1. 13.1 General. Each party covenants that it shall, during the Term of this Agreement, comply with all applicable laws and regulations, including, but not limited to, all anti-corruption, economic sanctions, and anti-money laundering laws and regulations of the United States and other jurisdictions that are applicable to such party. Customer agrees that it will not use or permit anyone to use the BNamericas Information for any unlawful purpose, and that it will not cause any person, including BNamericas, to violate any applicable laws, including Sanctions (as such term is defined below). In the event that BNamericas determines in its sole discretion that performing one or more of its obligations under this Agreement would be prohibited by any such laws, BNamericas’ failure to perform such obligations shall not constitute a breach of this Agreement by BNamericas, and BNamericas shall not be liable to Customer or any third party for any damages arising as a result of BNamericas’ failure to perform such obligations.
    2. 13.2 Sanctions. As of the date of this Agreement and the applicable Orders, to the best of Customer’s knowledge, Customer represents and warrants that: (i) neither Customer nor any of Customer’s affiliates, or any director or corporate officer of Customer or any of its affiliates, is the subject of any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. State Department, the European Union, the United Nations Security Council or other applicable sanctions authority (collectively, “Sanctions”); (ii) Customer is not 50% or more owned or controlled, directly or indirectly, by any person or entity that is the subject of Sanctions; (iii) Customer is not an agency or instrumentality of, or an entity owned or controlled by, the government of a jurisdiction that is the subject of territorial Sanctions, or located, organized, or resident in a country that is the subject of territorial Sanctions; and (iv) no entity 50% or more owned or controlled by a direct or indirect parent of Customer is the subject of Sanctions. BNamericas represents and warrants that neither it nor any director or corporate officer of BNamericas is subject to Sanctions and it is not 50% or more owned or controlled, directly or indirectly, by any person or entity that is the subject of Sanctions. During the Term, each party will promptly notify the other if any of these circumstances change. Customer shall not distribute or redistribute the BNamericas Information to any person that is the subject of Sanctions.
    3. 13.3 Data Protection. Customer shall ensure that it has obtained proper consents from its employees and Authorized Users to enable BNamericas to use their personally identifiable information as needed in connection with BNamericas providing the Services to Customer.
  14. 14. NOTICES. All notices and other communications required to be given under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by hand or by a widely recognized overnight delivery service (with evidence of the delivery date), or sent by prepaid post or certified mail, electronic mail, with acknowledgment by the receiving party as of the date received, addressed to each party at the address set forth in an Order or such other address as either party shall specify in a written notice to the other. No notice hereunder shall be given or made by facsimile.
  15. 15. COMMENCEMENT OF BNAMERICAS INFORMATION. Customer acknowledges and agrees that the terms of this Agreement and any applicable Orders shall apply to Customer as soon as delivery of such BNamericas Information to Customer begins, provided that BNamericas will not be bound by any changes made by Customer to the terms and conditions of this Agreement or any Orders until an authorized officer of BNamericas has agreed to them.
  16. 16. ELECTRONIC AGREEMENT. The parties agree that the electronic copy of this Agreement retained by BNamericas shall be the “original”, written, complete and exclusive statement of this Agreement.

Agreed and accepted by an authorized officer of Customer.

Exhibit A

User Terms Agreement (these “User Terms”)

  1. 1. License Grant
    1. 1.1 Scope of License. You acknowledge and agree that you have been authorized to use the BNamericas information and services that are provided on this Site (the “Services”) by your employer or a third party (the “Customer”) that has an Order and an agreement in effect with Business News Americas SPA or one of its affiliates. You shall not reproduce, distribute, display, sell, publish, broadcast or circulate the Services or any information contained therein or posted on this Site (the “BNamericas Information”) to any third party except as expressly permitted in these User Terms. You shall only use the BNamericas Information and the Services for the benefit of the Customer. You shall not create or store in electronic form any shared library or archive of the BNamericas Information which could be used as a research application. You may not use the BNamericas Information for the purpose of creating due diligence reports that are at the level commonly referred to as “red flag” or “level 1” due diligence reports (the “Restricted Reports”) to make such Restricted Reports available to any third parties as part of a commercial offering or any other similar service. You may use the Services and the BNamericas Information in the ordinary course of Customer’s business and, in each case, solely on Customer’s own behalf, to:
      1. (a) to perform analyses and research based on BNamericas Information; and
      2. (b) include Minimal Excerpts (as defined below) of BNamericas Information, subject to the attribution requirements and the disclaimer of warranties and limitations of liability required in the Customer’s agreement with BNamericas.
    2. 1.2 Restrictions on the Use of the BNamericas Information. You shall not modify, reverse engineer, disassemble or decompile the BNamericas Information. You are prohibited from inputting or loading any BNamericas Information into your or Customer’s internal network configuration or IT systems. In addition, you (i) will not collect or attempt to collect information that Customer does not have a right to access pursuant to an Order; (ii) will not engage in any screen scraping, use any spider or other automatic data collection method, or any other type of data collection or acquisition method, except as approved by BNamericas in an Order; and (iii) will use reasonable procedures and care in accessing any BNamericas servers or databases, in each case so as not to attempt to or actually disrupt or impair any BNamericas servers or databases, or breach their security.
    3. 1.3 Derivative Works. You shall not create any Derived Data (as defined below) from the BNamericas Information unless expressly authorized in the applicable Order. “Derived Data” shall mean data created by Customer in connection with Customer’s use of the BNamericas Information as a result of combining, processing, changing, converting or calculating the BNamericas Information or any portion thereof with other data.
    4. 1.4 Limited Third Party Distribution. In addition, if pursuant to an Order Customer is permitted to provide BN Information to a third party, such data may only be provided in a manner that it is not possible to extract or otherwise manipulate the BN America Information. In addition, the providing of the BN Information and Derived Data must comply with the following requirements: (i) must be only a limited extract provided on an ad hoc basis (“Minimal Excerpts”); (ii) provided only on a non-continuous basis and not updated on a regular schedule; (iii) the distribution is incidental to the Customer’s business and the Customer does not charge a fee for the BNamericas Information or Derived Data. You shall not use the BNamericas Information or Derived Data to compete with any of BNamericas’ products and services.
    5. 1.5 Display and Attribution of the BNamericas Information. You shall use and represent the BNamericas Information correctly and accurately, without any mistakes or distortions. In connection with BNamericas Information that is redistributed either internally or externally in text, tabular, graphical or electronic form pursuant to these User Terms, you shall always identify BNamericas as the source of such information, and shall display, on each web site, screen, document page or other format that includes BNamericas Information or Derived Data, such BNamericas logos, trademarks and/or copyright notices, disclaimers, hyperlinks, or other links to a BNamericas web site as BNamericas may request.
  2. 2. Security. You shall hold any passwords/user IDs issued by BNamericas or by Customer in connection with access to the BNamericas Information in strict confidence. You shall not share user IDs or passwords, or allow access to any other user to the BNamericas Information via your user ID or password.
  3. 3. Third Party Vendors. You agree that any third party vendor of any portion of the BNamericas Information may enforce its rights against you as an intended third-party beneficiary of these User Terms, even though such third party vendor is not a party to this Agreement.
  4. 4. Termination. Upon termination of the Agreement or the applicable Order, your rights to access the Services and the BNamericas Information shall automatically terminate. In such event you shall delete and expunge all BNamericas Information in your possession, including all of your electronic copies of such information.
  5. 5. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
    1. 5.1 BNAMERICAS, ITS AFFILIATES AND ALL OF THEIR THIRD PARTY VENDORS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE BNAMERICAS INFORMATION OR THE SERVICES, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE.
    2. 5.2 NO USER OF THE BNAMERICAS INFORMATION SHOULD RELY ON ANY INFORMATION CONTAINED IN THE BNAMERICAS INFORMATION IN MAKING ANY INVESTMENT OR OTHER DECISION.
    3. 5.3 NEITHER BNAMERICAS, NOR ITS AFFILIATES OR THEIR THIRD PARTY VENDORS GUARANTEE THE ADEQUACY, ACCURACY, AVAILABILITY, TIMELINESS OR COMPLETENESS OF THE BNAMERICAS INFORMATION OR ANY COMPONENT THEREOF OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO ORAL OR WRITTEN COMMUNICATIONS (WHETHER IN ELECTRONIC OR OTHER FORMAT), WITH RESPECT THERETO. BNAMERICAS, ITS AFFILIATES AND THEIR THIRD PARTY VENDORS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS OR DELAYS IN THE BNAMERICAS INFORMATION. THE BNAMERICAS INFORMATION AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN “AS IS” BASIS AND YOUR USE OF THE BNAMERICAS INFORMATION IS AT YOUR OWN RISK.
    4. 5.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL BNAMERICAS, ITS AFFILIATES OR THEIR THIRD PARTY VENDORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMIATION, COSTS OF SUBSTITUTE SERVICES OR INFORMATION, ANY LOSS OF PROFITS, TRADING LOSSES, BUSINESS INTERRUPTION LOSSES, OR LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
    5. 5.5 IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF BNAMERICAS, ITS AFFILIATES, AND THEIR THIRD PARTY VENDORS TO YOU, ALL AUTHORIZED USERS AND CUSTOMER IN CONNECTION WITH THE BNAMERICAS INFORMATION AND/OR THESE USER TERMS, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE FEES PAID BY CUSTOMER TO BNAMERICAS UNDER THE APPLICABLE ORDERS FOR THE BNAMERICAS INFORMATION IN THE APPLICABLE ORDERS IN THE TWELVE MONTH PERIOD PRIOR TO SUCH CLAIM OR ACTION BEING MADE.
  6. 6. BNamericas’ Proprietary Rights.
    1. 6.1 All rights (including copyrights, trade secrets, database rights and trademark rights) in the BNamericas Information, including all information, data, price assessments, analytics, analyses, benchmarks, formulas, software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of BNamericas, its affiliates and their third party vendors. You acknowledge that the BNamericas Information is compiled, prepared, revised, selected, coordinated, and arranged by BNamericas, its affiliates and/or their third party vendors through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the BNamericas Information constitutes the valuable intellectual property and confidential information of BNamericas, its affiliates and their third party vendors. You shall take reasonable precautions to: (i) prevent access to the BNamericas Information or any component thereof by any individual or entity other than distributions expressly permitted in this Agreement or any Order; (ii) prevent any unauthorized distribution or redistribution of the BNamericas Information, either internally or externally; and (iii) protect the copyrights, trade secrets, database rights, trademarks and other proprietary rights of BNamericas, its affiliates and their third party vendors in the BNamericas Information, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement or of any Orders. You shall comply with all reasonable requests made by BNamericas to protect the rights of BNamericas, its affiliates, and their respective third party vendors in the BNamericas Information. No rights are granted to you with respect to the BNamericas Information other than the limited rights set forth in these User Terms. BNamericas reserves all rights to the BNamericas Information other than the limited license granted pursuant to these User Terms.
  7. 7. Miscellaneous and Governing Law. In the event any conflicts between the English language version of these User Terms and any translations hereof, the English language version shall prevail. These User Terms and all claims arising out of or relating to these User Terms shall be interpreted, construed and enforced in accordance with the applicable federal laws of the United States and the laws of the State of New York, without giving effect to the conflicts of laws provisions thereof. Headings in these User Terms are only for convenience and should not be given any interpretative effect.
  8. 8. Electronic Agreement. The parties agree that the electronic copy of these User Terms retained by BNamericas shall be the “original”, written, complete and exclusive statement of these User Terms.

Agreed and accepted by user.