Participant Agreement Rider
- “CUSIP” means a unique identification number assigned to stocks and registered bonds in the United States and Canada by the Committee on Uniform Security Identification Procedures;
- “ICE” means Intercontinental Exchange Inc.;
- “Moody’s” means Moody’s Corporation, Moody’s Investors Service, Inc., Moody’s Analytics, Inc. and/or their licensors and affiliates;
- “S&P” means S&P Global Ratings and/or its licensors and affiliates;
*****
1. Reference Prices and Reference Data
1.1 Company may from time to time display certain third party data on the Platform for the Participant’s exclusive use on the Platform, including:
a) bond ratings for certain applicable Eligible Instruments, published by Moody’s;
b) bond ratings for certain applicable Eligible Instruments, published by S&P;
c) CUSIPs for certain applicable Eligible Instruments; and
d) market reference data, including ratings information on particular Eligible Instruments, published by ICE,
(a) to (d) above being the “Third Party Ratings Data”.
1.2 Participant represents and warrants that:
a) Participant shall not download, store or otherwise remove the Third Party Ratings Data from the Platform, and shall not disseminate the Third Party Ratings Data to any person; and
b)Participant shall not allow any access to the Third Party Ratings Data by any person other than an Authorised User;
c)Participant has no proprietary interest in the Third Party Ratings Data;
d) the Third Party Ratings Data shall remain the intellectual property of the relevant provider of the Third Party Ratings Data, being Moody’s, S&P, CUSIP and ICE (the “Data Providers”), as applicable, and Participant shall not do anything to infringe such intellectual property;
e) Company has entered into applicable contractual agreements with Moody’s, S&P and Ice to make the Third Party Ratings Data available on the Platform for Participant’s use, and Participant undertakes that it will not, by any action or omission, cause Company to breach these contractual agreements, shall be bound by these contractual agreements as if Participant were a party to these, and will indemnify Company if any action or omission by Participant causes Company to breach these contractual terms. These contractual terms are available in the Participant Agreement and on the Platform, and Participant acknowledges that Participant shall acknowledge and agree to these contractual terms before using any Third Party Ratings Data on the Platform;
f) the Third Party Ratings Data is provided for Participant’s information only, neither Company nor any Data Provider is acting as a investment adviser or providing and investment advice to Participant, and do not constitute an offer to purchase, sell or hold any instrument; and
g) provision of the Third Party Ratings Data is not a real-time service and may not reflect the most recent changes to ratings, and ratings may be withdrawn after issuance. Participant should refer to the official website of the relevant Data Provider for real time ratings information.
1.3 Participant agrees and acknowledges that CUSIP data is the property of, or licensed to, CUSIP Global Services and the American Bankers Association, and that Participant has no propriety or intellectual property rights in the CUSIP data.
Standalone “Flow Down” Terms
S&P
Company shall make available the services provided by S&P (the “S&P Services”), being certain ratings information (“S&P Ratings”) on the Platform.
Company, subject to these terms and conditions, may distribute the S&P Services to Participants for the purposes of display desktop usage. Participants must not download or store any data items from the S&P Services.
When Company displays the “Composite Score” of S&P Ratings on the Platform to Participants, Participants acknowledge that the Composite Score is not an S&P Rating and is not marketed, identified or branded as such, and the Composite Score is not a “credit opinion”.
Participant acknowledges that the Composite Score is provided to the Participant for information on the Platform and is not a stand-alone product.
Each Participant, before obtaining accesses to the S&P Services, acknowledge that they have agreed to be bound by these terms.
No dissemination of the S&P Services or any portion thereof shall be made except on those screen displays or display pages of the Platform to which these terms and conditions do not apply and that provides Participants with reasonable notice of the applicability thereof.
Each Participant accessing the S&P Services agrees that (it being agreed and understood that specific reference to S&P is not provided so long as the protections provided to S&P as a third party provider to Company are preserved):
a) neither Company, S&P, their affiliates nor any of their suppliers shall have any liability for the accuracy or completeness of the information or software furnished through the Platform, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
b) the S&P Services are not investment advice and a reference to a particular investment or security, a credit rating or any observation concerning a security or investment provided in the S&P Services is not a recommendation to buy, sell or hold such investment or security or make any other investment decisions;
c) S&P, their affiliates or their suppliers have exclusive proprietary rights in the S&P Services and any information and software received in connection therewith;
d) Participant shall not use or permit anyone to use the S&P Services for any unlawful or unauthorised purpose;
e) the S&P Services are being provided for Participants’ internal use only and Participants are not authorised or permitted to distribute or otherwise furnish such information or software to any third-party without prior written approval of S&P;
f) access to the S&P Services is subject to termination in the event that any agreement between Company and S&P terminates for any reason; and
g) S&P may enforce its rights against Participant as the third-party beneficiary of the Participant Agreement should a Participant breach these terms, even though S&P is not a party to the Participant Agreement.
Moody’s
The provision of any Moody’s data (the “Data”) to Participants on the Platform shall be subject to these legally binding terms.
In the event Company receives the Moody’s Ratings Delivery Service (“RDS”), and Company makes the RDS available to Participants, Participants acknowledge and understand that the RDS is not a real-time service, and that it may not reflect the most recent changes to ratings and other information until Moody’s completes its regularly scheduled updates to the RDS. Users of Data must refer to Moody’s official press release announcements of ratings and related changes available on its website to receive up to date information.
Participant agrees and acknowledges that Company shall terminate a Participant’s access to all Data promptly after receipt of evidence that any such Participant has engaged in any unauthorised use, reproduction, modification, distribution, or disclosure of any Data.
Participants agree and acknowledge that no Data may be copied or otherwise reproduced, repackaged, further transmitted, transferred, disseminated, distributed, redistributed, sold, resold, leased, rented, licensed, sublicensed, altered, modified, adapted, or stored for subsequent use for any such purpose, in whole or in part, in any form or manner or by any means whatsoever, by Participant or any other person or entity, without Company’s prior written consent.
All Data is obtained from sources believed by it to be accurate and reliable. However, because of the possibility of human and mechanical error as well as other factors, all Data is provided “as is” without warranty of any kind, and Participants agree that Moody’s makes no representation or warranty as to: (i) the accuracy, timeliness, completeness, or the results to be obtained from use of the Data; (ii) the noninfringement, merchantability or fitness of the Data for any particular purpose even if Participant has been informed of such purpose; and (iii) any warranties arising by implication or from course of performance, course of dealing, or usage of trade.
To the extent permitted by law, under no circumstance shall Moody’s or Company have any liability to Participant or any other person or entity for (i) 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 its directors, officers, employees or agents, or Licensors, in connection with the procurement, collection, compilation, analysis, interpretation, communication, publication or delivery of any Data or (ii) any indirect, special, consequential, incidental or compensatory damages whatsoever (including, without limitation, lost profits), even if Participant 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 Data. Without limiting the foregoing, in no event shall the total liability of Moody’s or Moody’s licensors, or Company, in the aggregate to Participant arising from the provision of the Data (based on any cause of action whatsoever) exceed the fees actually paid by Company to Moody’s for the use of the Data within the twelve (12) month period immediately preceding the date upon which the relevant claim accrued.
CREDIT RATINGS ISSUED BY MOODY’S INVESTORS SERVICE, INC. AND ITS RATINGS AFFILIATES (“MIS”) ARE MOODY’S CURRENT OPINIONS OF THE RELATIVE FUTURE CREDIT RISK OF ENTITIES, CREDIT COMMITMENTS, OR DEBT OR DEBT-LIKE SECURITIES, AND CREDIT RATINGS AND RESEARCH PUBLICATIONS PUBLISHED BY MOODY’S (“MOODY’S PUBLICATIONS”) MAY INCLUDE MOODY’S CURRENT OPINIONS OF THE RELATIVE FUTURE CREDIT RISK OF ENTITIES, CREDIT COMMITMENTS, OR DEBT OR DEBT-LIKE SECURITIES. MOODY’S DEFINES CREDIT RISK AS THE RISK THAT AN ENTITY MAY NOT MEET ITS CONTRACTUAL, FINANCIAL OBLIGATIONS AS THEY COME DUE AND ANY ESTIMATED FINANCIAL LOSS IN THE EVENT OF DEFAULT. CREDIT RATINGS DO NOT ADDRESS ANY OTHER RISK, INCLUDING BUT NOT LIMITED TO: LIQUIDITY RISK, MARKET VALUE RISK, OR PRICE VOLATILITY. CREDIT RATINGS AND MOODY’S OPINIONS INCLUDED IN MOODY’S PUBLICATIONS ARE NOT STATEMENTS OF CURRENT OR HISTORICAL FACT. MOODY’S PUBLICATIONS MAY ALSO INCLUDE QUANTITATIVE MODEL-BASED ESTIMATES OF CREDIT RISK AND RELATED OPINIONS OR COMMENTARY PUBLISHED BY MOODY’S ANALYTICS, INC. CREDIT RATINGS AND MOODY’S PUBLICATIONS DO NOT CONSTITUTE OR PROVIDE INVESTMENT OR FINANCIAL ADVICE, AND CREDIT RATINGS AND MOODY’S PUBLICATIONS ARE NOT AND DO NOT PROVIDE RECOMMENDATIONS TO PURCHASE, SELL, OR HOLD PARTICULAR SECURITIES. NEITHER CREDIT RATINGS NOR MOODY’S PUBLICATIONS COMMENT ON THE SUITABILITY OF AN INVESTMENT FOR ANY PARTICULAR INVESTOR. MOODY’S ISSUES ITS CREDIT RATINGS AND PUBLISHES MOODY’S PUBLICATIONS WITH THE EXPECTATION AND UNDERSTANDING THAT EACH INVESTOR WILL, WITH DUE CARE, MAKE ITS OWN STUDY AND EVALUATION OF EACH SECURITY THAT IS UNDER CONSIDERATION FOR PURCHASE, HOLDING, OR SALE.
Participant agrees and acknowledges that the Data is and shall remain the valuable intellectual property owned by, or licensed to, Moody’s Analytics, Inc., that no proprietary rights are being transferred to Subscriber in such materials or in any of the information contained therein. Subscriber agrees that misappropriation or misuse of such materials shall cause serious damage to Moody’s Analytics, Inc. and that in such event money damages may not constitute sufficient compensation to Moody’s Analytics, Inc.; consequently, Subscriber agrees that in the event of any misappropriation or misuse, Moody’s Analytics, Inc. shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which Moody’s Analytics, Inc. may be entitled.
MIS, a wholly-owned credit rating agency subsidiary of Moody’s Corporation (“MCO”), 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 rating opinions and services rendered by it fees ranging from $1,000 to approximately $2,700,000. MCO and MIS also maintain policies and procedures to address the independence of MIS’s ratings and rating processes. MCO annually publishes on its website at www.moodys.com disclosures 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 five percent (5%). Although certain Information is 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 will compel MIS to assign, as a result of any Data, a particular rating or any revision thereof to the Subscriber or any securities, debt or other instruments. Participant agrees and acknowledges that MIS may at any time refuse to issue any rating, or, if already issued, revise or withdraw such rating. Participant 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.
Participant expressly agrees, on behalf of itself and each other person or entity that it permits to use any Information (“User”), that (i) the credit ratings and other opinions, and valuations, quotes, statistical, quantitative or other information contained in the Data are, and will be construed solely as, statements of opinion and not statements of fact or recommendations to purchase, hold or sell any securities, (ii) the Data will be weighed solely as one factor in any investment decision made by or on behalf of Participant or any User, and (iii) Participant will accordingly make its own study and 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.
Participant agrees, on behalf of itself and each User, that (i) none of the credit ratings and other opinions, and valuations, quotes, statistical, quantitative or other information contained in the Data, or any statements or disclosures by Moody’s to Participant or a User regarding the foregoing, shall create any duty of care on the part of Moody’s or any Moody’s Affiliate to Participant, (ii) neither Moody’s nor any Moody’s Affiliate is acting as a financial adviser to Participant, and (iii) none of the credit ratings and other opinions, and valuations, quotes statistical, quantitative or other information contained in the Data (whether in oral or written form) or statements or other communications supplied by Moody’s or any of its employees, representatives or agents shall constitute a representation or a warranty, or the provision of investment advice.
Participant acknowledges and understands that the RDS is not a real-time service, and that it may not reflect the most recent changes to ratings and other information published by MIS, until MIS completes its regularly scheduled updates to the service. Users of the RDS must refer to the official MIS press release announcements of ratings and related changes available on its website to receive up to date information.
ICE
Company may redistribute to Participants certain ratings data (“Services”) provided by ICE (“Vendor”), provided Participant:
a) acknowledges Vendor’s and its third party suppliers’ proprietary rights in the Services;
b) does not communicate or disseminate any part of the Services or any information obtained or derived therefrom to any third party; and
c) agrees and acknowledges the following:
(i) Vendor and its third party suppliers make no warranties, express or implied, as to merchantability, fitness or any other matter and shall have no liability to Participant or any third party for any errors, omissions or malfunctions in the Services;
(ii) Participant acknowledges that the Services are intended for use by institutional investors, registered brokers, professionals and others of similar sophistication only;
(iii) Participant accepts responsibility for, and acknowledges it exercises its own independent judgment in, its selection of any of the Services, its selection of the use or intended use of such, and any results obtained. Nothing contained herein shall be deemed to be a waiver of any rights existing under applicable securities law;
(iv) Participant shall indemnify Vendor and its suppliers against and hold Vendor harmless from any and all losses, damages, liability, costs, including attorney’s fees, resulting directly or indirectly from any claim or demand against Vendor or its suppliers by a third party arising out of or related to any Services received by Participant on the Platform, or any data, information, service, report, analysis or publication derived therefrom. Neither Vendor nor its suppliers shall be liable for any claim or demand against Participant by a third party;
(v) Vendor and its third party suppliers shall constitute third party beneficiaries hereunder;
(vi) unless otherwise agreed to in writing, the Services may be used by Participant solely for their internal use and benefit on the Platform. Use of the Services expressly excludes, without limitation, the following, unless express prior authorisation, in writing, by Vendor:
A) use to create or assist in the creation of any index;
B) use for fund valuation purposes, including but not limited to, fund accounting, net asset value and indicative net asset value calculations;
C)use in the construction of a security master or cross-reference database;
D) further dissemination in any form to any other third party;
E) use of the Services for a joint venture to which Participant is a party;
F) use in replacement of any data received by Participants directly or indirectly from Vendor’s Services under any other agreements Participant may have with Vendor, or another third party service provider or distributor whereby Participant receives Vendor’s data or information; and
G) use of in the construction of data, products or services that may compete with data, products or services available from Vendor and/or its affiliates.
In the event that Participant at any time receives Services from Vendor containing evaluations, rather than market quotations, for certain securities or certain other data related to such securities, the following provisions will apply. Evaluated securities are typically complicated financial instruments. There are many methodologies (including computer-based analytical modelling and individual security evaluations) available to generate approximations of the market value of such securities, and there is significant professional disagreement about which is best. No evaluation method, including those used by Vendor, may consistently generate approximations that correspond to actual “traded” prices of the instruments. Vendor’s methodologies used to provide the pricing portion of certain Services may rely on evaluations; however, Participant acknowledges that there may be errors or defects in Vendor’s software, databases, or methodologies that may cause resultant evaluations to be inappropriate for use in certain applications. Participant assumes all responsibility for edit checking, external verification of evaluations, and ultimately the appropriateness of use of evaluations and other pricing data provided via the Service, regardless of any efforts made by Vendor in this respect. Participant shall indemnify and hold Vendor completely harmless in the event that errors, defects, or inappropriate evaluations are made available via the Services.