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RAPIDRATINGS SERVICES AGREEMENT - DISCLOSER

Updated November 10, 2021

This Services Agreement (“Agreement”) governs your use of and access to the RapidRatings Services. All transactions and actions you take using the Services are subject to these terms and conditions. By executing an Order Form referencing this Agreement or clicking a box (or other electronic acceptance method) to indicate acceptance of this Agreement, you agree to the terms of this Agreement. If you are entering into this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity to this Agreement. “You” or “Your” or “Discloser” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity who will receive the benefits of this Agreement. If you do not agree to these terms and conditions, or do not have the authority to accept this Agreement, you must not accept this Agreement or use the Services. This Agreement is between Rapid Ratings International, Inc., a Delaware corporation, having an address at 86 Chambers Street, Suite 701, New York, New York 10007, USA (“RapidRatings”) and Discloser.  RapidRatings and Discloser are each a “Party” and are collectively the “Parties”. The Agreement is made and entered into as of the date you agree to the terms of this Agreement.

RapidRatings operates a Service on behalf of Customers (and their Affiliates, successors, and assigns) and Disclosers, which may include the provision of Reports as defined herein. The Services allow Disclosers to provide financial information, which RapidRatings uses to provide Reports and such financial information to Customers. Access to the Services is strictly subject to this Agreement.

 

SECTION 1. DEFINITIONS.

1.1   “Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity. “Control,” for purposes of this definition, means the power to direct or cause the direction of the management and policies of a person or entity, whether through the ownership of voting securities, by contract or otherwise.

1.2   “Discloser Data” means Discloser’s financial information or other information provided by Discloser for use in the Services in accordance with this Agreement.

1.3   “Documentation” means the user manuals, standard policies, training materials, and other materials describing the use and function of the Services. Documentation does not include the Reports.

1.4   “Order Form” means the ordering document or other listing of the Services purchased or approved by Discloser that is signed or electronically accepted by Discloser.

1.5   “Report” means a report authored by RapidRatings, whether or not made accessible through the Services, such as FHR® reports. A Report does not include the Documentation.

1.6   “Services” means the products and services (including the Reports) available to Discloser under an Order Form for a number of Users. These services include, but are not limited to, access to the RapidRatings electronic functionality accessible via the internet, such as a software as a service platform, and telecommunications applications.

1.7  “User” means an individual who is authorized by Discloser to use the Services and has a login credential. A Discloser who has a login credential is a User.

 

SECTION 2. SERVICES.

2.1   Access to Services. Subject to the terms and conditions of this Agreement and in consideration of Discloser’s timely payment of applicable fees, RapidRatings hereby grants Discloser a limited, revocable, non‐exclusive, non‐sublicensable, non‐transferable right to access and use the Services. Access to the Services shall be accessible by the Users 24 hours a day, 7 days a week, for at least 98.5% of each month, excluding maintenance periods. RapidRatings may contact Discloser in order to perform the Services using any User contact information provided by User. RapidRatings will not be responsible for any network-related failures, interruptions, outages, delays, and other connectivity problems. If RapidRatings becomes aware of a data breach incident likely to compromise the security of the Services, RapidRatings may, without notice, temporarily suspend Discloser access in order to remedy the security breach in a timely manner. RapidRatings shall not incur any liability to Users and Users shall not seek any compensation whatsoever from RapidRatings based on such suspension.

2.2   Restrictions. Discloser shall not, and shall ensure its Users do not: (a) use the Services in a manner not expressly permitted by this Agreement or in violation of applicable law; (b) attempt to use or access data, research, or software services that Discloser is not expressly permitted to access in the Services or any database owned or maintained by RapidRatings, such as to (i) build a competitive product or service, or (ii) build a product using similar unique or confidential ideas, features, functions or graphics of the Service; (c) copy, reproduce, distribute, publish, or otherwise make available copies or extracts in any medium of the Services, except as expressly permitted in this Agreement or the Services; (d) sell, resell, rent, license, sublicense, rent, lease, transfer, assign, distribute or otherwise commercialize (such as in a service bureau offering) the Services; (e) use the Services to store or transmit malicious code (meaning code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses) or transmit malicious code to RapidRatings; (f) decompile, disassemble or reverse engineer any aspect of the Services or RapidRatings’ software generally (except to the extent that Discloser cannot by law waive its right to do so); (g) permit direct or indirect access to or use of any Services or database(s) owned or maintained by RapidRatings in a way that circumvents a contractual usage limit, is excessive, or otherwise interferes with RapidRatings’ ability to provide the Services or other customers’ use or enjoyment of the Services; (h) modify or make derivative works based on the Service; (i) use any robot, spider or other automatic device or manual process to monitor or copy portions of the Service; (j) use the Service in a manner intended to abuse or violate the privacy or property rights of others; or (j) permit use of the Service by a person other than a User. Discloser agrees to immediately notify RapidRatings of any action by any User that breaches or causes Discloser to breach any term of this Agreement and, at its own expense, shall cooperate fully with RapidRatings to discontinue and/or suspend such User’s access to the Services.

2.3   Users. Discloser shall be solely responsible and liable for each User’s compliance with this Agreement. It is Discloser’s responsibility to monitor credentials, password usage, and otherwise prevent unauthorized access to or use of the Services and to promptly notify RapidRatings if unauthorized access or use is detected or suspected. All information received by RapidRatings from someone using the login and password of the User will be considered as having been sent by the User, even if unauthorized.

2.4   Tracking and Modifications. RapidRatings reserves the right to use tracking software and similar technology that automatically collects information about Discloser’s use of the Services to ensure Discloser’s compliance with the restrictions in this Agreement and to confirm the access to the Service is in accordance with this Agreement. RapidRatings reserves the right, in its sole discretion, to amend, change, modify, update, or discontinue any aspect of the Services at any time without notice to Discloser. RapidRatings reserves the right to implement and update minimum system requirements from time to time, and Discloser acknowledges that it is Discloser’s sole responsibility to maintain reasonably current systems and software to access the Services.

2.5   Affiliates. Discloser may use the Services under this Agreement for its own account and on behalf of one or more Affiliates. Discloser is responsible and liable for the acts and omissions of Affiliates under any Order Form pursuant to which the Affiliate receives the benefit of the Services. Discloser and its Affiliate(s) shall be jointly and severally liable for any duties, obligations or liabilities of Affiliate under or relating to this Agreement and the applicable Order, including, without limitation, payment of any and all amounts due to RapidRatings from any Affiliate hereunder.

2.6   Vendors. In the ordinary course of its business, RapidRatings uses third-party service providers (collectively, “Vendors”) to support the provision of the Services or support generally (i.e., not specifically for Discloser). In addition, RapidRatings may provide the Services or support through one or more Affiliates. RapidRatings reserves the right to engage and substitute Vendors and Affiliates as it deems appropriate to provide the Services and support hereunder, but shall remain responsible for the acts or omissions of such Vendors or Affiliates undertaken in connection with this Agreement.

 

SECTION 3. FEES

3.1   Fees. In consideration for the Services, Discloser shall pay RapidRatings the applicable fees specified on an Order Form. Each Order Form fully incorporates this Agreement. Use of the Services by the Discloser is conditioned by the payment of a non-refundable fee. Use of the Services may be at no fee or reduced fee, only in the case where the initial fee is subsidized or prepaid by a Customer. RapidRatings reserves the right to modify its fees for the Services at any time, and introduce new charges for additional, optional services not included in this Agreement at any time without advance notice.

3.2   Payment Terms, Late Payment, Processing. Unless stated otherwise in the Order Form, Discloser shall pay all fees at order placement or submission of Discloser data, whichever is first. All fees under this Agreement shall be paid in U.S. Dollars unless otherwise approved by RapidRatings. Discloser’s timely payment of all sums due RapidRatings by Discloser, if applicable, is a condition precedent to Discloser’s rights and RapidRatings’ obligations under this Agreement. Bank or financial services related processing fees (such as wire transfer and currency exchange fees, if any) shall be borne by the Discloser.

3.3   Taxes. Discloser shall pay or reimburse RapidRatings for any taxes that arise from Discloser’s use of the Services, which are required to be collected by RapidRatings or are imposed on the transactions contemplated by this Agreement; provided, however, that Discloser shall not be responsible for taxes assessable against RapidRatings based on its income, property and employees.

3.4   Future Features. Discloser agrees that its purchases and obligations to pay RapidRatings are not contingent on the delivery of any Services features or functionality in the future, or made in reliance on any oral or written representations made by RapidRatings regarding features or functionality that it may add in the future.

 

SECTION 4. PROPRIETARY RIGHTS.

4.1   Ownership of Intellectual Property Rights; Feedback. RapidRatings, including RapidRatings licensors, exclusively owns and shall retain all right, title and interest, including all other intellectual property or proprietary rights in and to the Services, Documentation, Reports and related analysis, including all software programs contained therein and derivatives thereof; provided however, that any third-party intellectual property incorporated into the foregoing shall remain the property of the third-party owner thereof (collectively, “RapidRatings Property”). Subject to the limited rights expressly granted hereunder, RapidRatings, including RapidRatings licensors, hereby reserve all rights not expressly granted to Discloser in this Agreement, and Discloser will not acquire any such rights, whether by virtue of this Agreement, operation of law, estoppel, or otherwise. Discloser shall not contest, directly or indirectly, the validity or RapidRatings’ ownership of any intellectual property rights in and to the RapidRatings Property. Discloser shall not do anything that may adversely affect the validity or enforceability of any intellectual property right licensed to or owned by RapidRatings, including any act, or assistance to any act, that may infringe or misappropriate or lead to the infringement or misappropriation of any such intellectual property right. Discloser hereby irrevocably assigns to RapidRatings all right, title, and interest in and to any suggestions, enhancement requests, recommendations, or corrections (collectively “Feedback”) related to the RapidRatings Property. RapidRatings will not be obligated to compensate or credit Discloser or any third party for such Feedback or hold any Feedback in confidence. Discloser agrees to and does hereby irrevocably appoint RapidRatings as Discloser’s attorney-in-fact with full power of substitution in Discloser’s name, place and stead, in any and all capacities, to execute, verify, acknowledge and deliver any document necessary or appropriate to effectuate the provisions of this Section, such appointment is and will be a power coupled with an interest.

4.2    Indemnification.

(a)   By RapidRatings. RapidRatings shall defend Discloser from and against any third-party claim that the Service, when used by Discloser in accordance with this Agreement and the Documentation, infringes, misappropriates or violates any of the following United States rights: patent, copyright, trademark, trade secret or other intellectual or proprietary right of such third party, and RapidRatings shall pay any losses, damages, liabilities or expenses finally awarded by a court of competent jurisdiction or that are required to be paid in a settlement agreed to, in writing, by RapidRatings. RapidRatings shall have no liability under this Section for any claim that arises out of or results from (i) use, alteration, or modification of the Service other than as specified in this Agreement or in any Documentation provided to Discloser; (ii) the combination of the Service with any of Discloser’s data, products, services, hardware, or business processes; or (iii) Discloser’s specifications or requirements. If RapidRatings becomes aware of a claim, or the intent of a third party to file a claim, of infringement or misappropriation related to the Services, RapidRatings may, at RapidRatings’ option, (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching the warranties under this Agreement, (ii) obtain a license for Discloser’s continued use of the Services in accordance with this Agreement, or (iii) terminate the Service and this Agreement upon thirty (30) days’ written notice and refund any prepaid fees. THE FOREGOING IS RAPIDRATINGS’ SOLE LIABILITY AND DISCLOSER’S SOLE REMEDY WITH RESPECT TO CLAIMS OF INFRINGEMENT, MISAPPROPRIATION, OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.

(b)   By Discloser. Discloser will indemnify, defend and hold RapidRatings harmless from and against any claims, losses, damages, liabilities or expenses (including reasonable attorneys’ fees and expenses) arising out of or resulting from: (i) Discloser’s or any User’s violation of any Federal, state or local law, rule, or regulation relating to its use of the Service or the conduct of Discloser’s or User’s business, including Discloser’s or User’s collection and use of any Discloser Data; (ii) a claim, which, if true, would constitute a breach of any of its obligations, representations or warranties hereunder; (iii) any third party claim that any Discloser Data infringes, misappropriates or violates any intellectual or any other third party right, (iv) any claim that may arise out of Discloser’s or User’s use of the Services; and (v) any claim by Customer relating to Discloser Data.

(c)   Indemnification Procedure. Promptly after the receipt by an indemnified party of a notice of any third party claim or the commencement of any action that is subject to indemnification under this Section, the indemnified party shall notify the indemnifying party in writing of any such claim; provide the indemnifying party with reasonable assistance to settle or defend such claim, at the indemnifying party’s own expense; and grant to the indemnifying party the right to control the defense and settlement of such claim, at the indemnifying party’s own expense; provided, however, that: (i) the failure to so notify shall relieve the indemnifying party of its liability to the indemnified party only to the extent that the indemnifying party is prejudiced thereby; (ii) the indemnifying party shall not, without the indemnified party’s consent (such consent not to be unreasonably withheld or delayed), agree to any settlement requiring anything other than monetary payment that will be indemnified by the indemnifying party hereunder; and (iii) the indemnified party shall have the right, at its own expense, to participate in any legal proceeding to contest and defend a claim, and to be represented by legal counsel of its choosing, but shall have no right to settle a claim without the indemnifying party’s written consent, unless the indemnifying party fails to perform its obligations set forth in this Section.

4.3   Enforcement. To the extent practicable, Discloser shall notify RapidRatings promptly in writing upon becoming aware of any suspected infringement or misappropriation of an intellectual property right of RapidRatings by a third party, and shall provide RapidRatings with a copy of all documents and information relating thereto as long as such production is not proscribed by contract or other reason. RapidRatings shall have the right, but not the obligation, to take action in its own name to secure the cessation of any infringement or misappropriation of any intellectual property right or to bring an action against an alleged infringer. Discloser shall cooperate with RapidRatings in RapidRatings’ enforcement of its intellectual property rights. Nothing in this Agreement or otherwise will be construed to impair or limit RapidRatings’ right to enforce its intellectual property rights against any third party.

4.4   Confidential Information.

(a)   Discloser understands and agrees that RapidRatings will be collecting, and may have already collected, financial information from Discloser to provide Services. This financial information is Discloser’s Data, owned or licensed by Discloser. However, Discloser understands and agrees that RapidRatings will use the financial information perform the Services, including to create Reports, create RapidRatings derivative data, and perform distribution services under this Agreement. Discloser hereby grants RapidRatings the right to use and disclose the Discloser’s Data as necessary to fulfill its obligations under this Agreement, including, without limitation, to provide the underlying financial information and distribute such Reports to Customer or other designated third party. Discloser grants RapidRatings a non-exclusive, worldwide, royalty-free, perpetual, irrevocable, transferable, sublicensable license to store, host, reproduce, access, use, transmit, communicate, distribute, translate, modify, adapt, create derivative works of and display all Discloser Data provided to RapidRatings for use with the Services, including the Reports, for use as necessary to perform its obligations under this Agreement, and to use such financial information to develop the RapidRatings database. Discloser agrees that RapidRatings may use Discloser Data to compile, use, and disclose anonymous or aggregated analytics, provided that no such information will directly identify and cannot reasonably be used to identify Discloser or Discloser’s Users. Discloser grants RapidRatings the right to display Discloser’s name and other publicly available information in the Services.

(b)   Discloser shall use commercially reasonable efforts to prevent the unauthorized use, disclosure, or publication of RapidRatings’ Confidential Information (as defined below) and treat it with the same degree of care that it uses to protect the confidentiality of its own Confidential Information (but not less than reasonable care.) Discloser shall only use the RapidRatings Confidential Information that may be accessed by Discloser for use with the Services. Any Reports or Feedback are considered Confidential Information of RapidRatings. This provision expressly survives the expiration or termination of this Agreement in perpetuity with respect to the Services, Feedback, and Reports, or other information downloaded, copied, or removed from the Services. “Confidential Information” means all information regarding a RapidRatings’ business or affairs, including, business concepts, processes, methods, systems, know-how, devices, formulas, product specifications, marketing methods, prices, customer lists, methods of operation, or other information, whether in oral, written, or electronic form, designated as confidential or that is disclosed under circumstances such that a reasonable person would know it is confidential.

(c)   RapidRatings shall take commercially reasonable measures to prevent the unauthorized disclosure of Discloser Data and will use efforts commensurate with, or exceeding, those that RapidRatings employs for the protection of corresponding similar information of its own, but no less than a reasonable standard of care. RapidRatings may disclose Discloser Data if required by law, in any judicial or administrative proceeding, or by any governmental or regulatory authority and, provided RapidRatings shall not be legally prevented from so doing, shall give the Discloser prompt written notice of that requirement prior to such disclosure. RapidRatings will furnish only that portion of the Discloser Data which, in the reasonable opinion of competent legal counsel, it is legally required to furnish.

 

SECTION 5. REPRESENTATIONS AND WARRANTIES.

5.1   Discloser Warranties. Discloser represents, warrants, and covenants to RapidRatings that (i) Discloser has the full right, power, and authority to enter into this Agreement and perform its obligations under this Agreement; (ii) the execution of this Agreement by Discloser’s representative has been duly authorized by all necessary corporate or organizational action of such party; (iii) this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms; (iv) Discloser’s grant of rights and licenses under this Agreement to RapidRatings and its Customers, does not or will not at any time (a) conflict with or violate any applicable laws or regulations, (b) require the consent, approval or authorization of any governmental or regulatory authority or other third party, and (c) it has not granted and will not at any time during the Term grant any license or other right, title or interest under or relating to the Discloser Data that does or will conflict with or otherwise affect this Agreement; (iv) Discloser will comply with all laws, rules, and regulations in its exercise of its rights and performance of its obligations under this Agreement; and (v) Discloser Data is complete, truthful, accurate and current. Discloser shall cooperate with RapidRatings and ensure that it supplies Discloser Data to RapidRatings in a timely manner, and any such information and documentation that are appropriate for or in connection with the operation of the Services as reasonably requested by RapidRatings. Discloser shall not provide to RapidRatings any data or information which is unlawful, fraudulent, harassing, libelous, obscene, threatening, abusive, harassing, tortious, defamatory, vulgar, profane, offensive, invasive of a third party’s privacy, or otherwise objectionable or is false, misleading and/or not written in good faith.

5.2   DISCLAIMER OF WARRANTIES. RAPIDRATINGS MAKES NO REPRESENTATION, WARRANTY OR GUARANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, OTHER THAN THOSE MADE EXPRESSLY IN THIS AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, SATISFACTORY QUALITY AND NON-INFRINGEMENT TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. RAPIDRATINGS PROVIDES THE SERVICES AND REPORTS ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, RAPIDRATINGS DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, REPORTS OR ANY THIRD-PARTY CONTENT: (I) WILL BE UNINTERRUPTED OR FREE OF HARMFUL COMPONENTS; (II) WILL BE FREE OF DEFECTS, INACCURACIES, OR ERRORS; (III) WILL BE COMPLETE; (IV) IS DESIGNED TO OR WILL MEET A SET OF REQUIREMENTS OR SPECIFICATIONS OR ENABLE A PARTY TO ACHIEVE ANY PARTICULAR RESULTS; (V) WILL OPERATE IN THE HARDWARE OR SOFTWARE CONFIGURATION USED BY DISCLOSER; (VII) WILL MEET DISCLOSER’S OR CUSTOMER’S REQUIREMENTS OR EXPECTATIONS OR ACHIEVE ANY PARTICULAR RESULT. RAPIDRATINGS DOES NOT REPRESENT OR WARRANT THAT ANY COMPONENT OF THE SERVICES OR ANY REPORTS DEPENDENT ON THE ACTIONS OR INACTIONS OF A THIRD PARTY, SUCH AS A THIRD-PARTY PLATFORM PROVIDER, SHALL OCCUR, NOR THAT ANY INFORMATION OBTAINED FROM ANY THIRD PARTY IN PERFORMING ANY SERVICES WILL BE ACCURATE, COMPLETE, TRUTHFUL, OR FREE FROM DEFECTS OF ANY KIND. THEREFORE, RAPIDRATINGS WILL NOT BE LIABLE IN ANY WAY RELATED TO ANY DISCLOSER DATA OR ANY OTHER THIRD-PARTY DATA OR ANY REPORTS BASED UPON SUCH DATA.

 

SECTION 6. LIMITATIONS OF LIABILITY; DISCLAIMERS.

6.1   LIMITATION OF LIABILITY. IN NO EVENT WILL RAPIDRATINGS BE LIABLE TO DISCLOSER OR ANY OTHER THIRD PARTY FOR THE CUMULATIVE AGGREGATE LIABILITY ARISING FROM, RELATING TO, OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING CLAIMS RELATING TO THE SERVICES, INCLUDING THE REPORTS) EXCEEDING THE SUM OF THE LESSOR OF (A) FEES PAID TO RAPIDRATINGS UNDER THE APPLICABLE ORDER FORM DURING THE 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT (OR THE FIRST EVENT IN A SERIES OF RELATED EVENTS) GIVING RISE TO SUCH LIABILITY; OR (B) THE ACTUAL DIRECT DAMAGES SUFFERED BY THE DISCLOSER.

6.2   EXCLUSION OF DAMAGES. IN NO EVENT WILL RAPIDRATINGS BE LIABLE TO DISCLOSER OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS OR REVENUE, LOST DATA, OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO, OR CONNECTED WITH THE SERVICE (INCLUDING THE REPORTS), REGARDLESS OF THE CAUSE OF ACTION ON WHICH THEY ARE BASED, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OCCURRING. THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 6 WILL APPLY EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW. IN THE EVENT OF ANY SUSPECTED, CONFIRMED, ACCIDENTAL, OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO, DISCLOSER DATA (COLLECTIVELY A “DATA INCIDENT”), RAPIDRATINGS DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES DUE TO A DATA INCIDENT WITH THE SOLE EXCEPTION OF A DATA INCIDENT RESULTING FROM RAPIDRATINGS GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT.

6.3   DISCLAIMER OF FORWARD-LOOKING STATEMENTS. THE SERVICES, INCLUDING THE REPORTS, MAY CONTAIN FORWARD-LOOKING STATEMENTS THAT REFLECT RAPIDRATINGS’ CURRENT EXPECTATION REGARDING FUTURE EVENTS AND BUSINESS DEVELOPMENTS. THE FORWARD-LOOKING STATEMENTS INHERENTLY INVOLVE RISKS AND UNCERTAINTIES. ACTUAL DEVELOPMENTS OR RESULTS COULD DIFFER MATERIALLY FROM THOSE PROJECTED AND DEPEND ON A NUMBER OF FACTORS, SOME OF WHICH ARE OUTSIDE RAPIDRATINGS’ CONTROL.

6.4   DISCLAIMER OF INVESTMENT RELATED INFORMATION. WHEN USING THE SERVICE AND/OR ANY REPORTS, DISCLOSER OR CUSTOMER MUST USE ITS OWN JUDGMENT AND EXPERTISE TO EVALUATE AND ASSESS THE VALUE OF THE INFORMATION PRESENTED FOR ITS PARTICULAR PURPOSES. DISCLOSER ACKNOWLEDGES AND AGREES THAT THE SERVICE IS A TOOL TO BE USED BY DISCLOSER AND/OR CUSTOMER IN THE COURSE OF EXERCISING ITS PROFESSIONAL JUDGMENT. DISCLOSER ACKNOWLEDGES THAT ANY INFORMATION PROVIDED BY THE SERVICE, INCLUDING THE REPORTS, IS NOT INTENDED TO BE A SUBSTITUTE FOR A FINANCIAL ADVISOR’S OR INVESTOR’S INDEPENDENT ASSESSMENT OF WHETHER TO BUY, SELL, OR HOLD ANY FINANCIAL PRODUCTS. DISCLOSER UNDERSTANDS AND ACKNOWLEDGES, AND SHALL INSTRUCT ALL USERS, THAT ACCESS TO THE SERVICE IS PROVIDED ON THE STRICT UNDERSTANDING THAT RAPIDRATINGS IS NOT ACTING AS AN “INVESTMENT ADVISOR” AS SUCH TERM IS DEFINED IN THE U.S. INVESTMENT ADVISERS ACT OF 1940 OR AS A “FIDUCIARY” UNDER THE U.S. EMPLOYEE RETIREMENT SECURITY ACT OF 1974, AS AMENDED FROM TIME TO TIME, AND DISCLOSER UNDERSTANDS AND HEREBY ACKNOWLEDGES THAT RAPIDRATINGS IS NOT ENGAGED IN RENDERING LEGAL, ACCOUNTING, FIDUCIARY OR OTHER PROFESSIONAL SERVICES. THE INFORMATION PROVIDED IN THE SERVICE IS DERIVED OBJECTIVELY BY RAPIDRATINGS FROM PUBLIC AND NON-PUBLIC INFORMATION PROVIDED TO RAPIDRATINGS BY DISCLOSER AND THIRD PARTIES. ANY REPORTS AND ANY ANALYTICS PROVIDED BY RAPIDRATINGS ARE INTENDED AS OPINIONS ONLY AND ANY USE OR RELIANCE UPON THE SERVICES AND/OR REPORTS BY DISCLOSER OR ANY CUSTOMER SHALL BE AT DISCLOSER’S OWN RISK. IF DISCLOSER CHOOSES TO USE THIS INFORMATION IN FORMING THE BASIS FOR AN INVESTMENT DECISION, DISCLOSER SHOULD USE THE INFORMATION IN CONJUNCTION WITH OTHER INFORMATION. RAPIDRATINGS PROVIDES NO GUARANTEE WITH RESPECT TO THE ACCURACY, VERACITY OR COMPLETENESS OF SERVICES, NOR THE INFORMATION OR CONCLUSIONS DERIVED FROM THE THEM INCLUDING THE REPORTS. RAPIDRATINGS SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY TRADING OR INVESTMENT DECISIONS OR ANY OTHER BUSINESS DECISION BASED ON THE SERVICES AND ANY REPORTS. Discloser represents and warrants to RapidRatings that it understands the methodology by which RapidRatings produces Reports as follows: Reports are statements of opinion objectively created through the application of RapidRatings’ proprietary software logic to information about an entity from publicly available information, or with respect to private company ratings, information provided by Discloser or a third party. RapidRatings’ software is a proprietary quantitative system that analyzes financial information contained in publicly available company filings made by issuers pursuant to applicable securities laws or private company financial statements provided by Discloser or a third party. Periodically, RapidRatings randomly selects a small number of public company filings used in the ratings process to test the accuracy of the information provided by the third party(ies) by comparing the information received from the third party to the public filings posted on the relevant governmental websites. RapidRatings is not responsible for the accuracy, veracity or completeness of any public filings or any private company financial statements or any other Discloser Data provided by Discloser or a third party. Discloser hereby acknowledges and agrees that RapidRatings has conducted a reasonable investigation of the factual elements relied upon in determining Reports, and that RapidRatings’ procedures to verify a company’s financial information are reasonable.

6.5   ALLOCATION OF RISK. The provisions of this Agreement fairly allocate the risks between RapidRatings, on the one hand, and Discloser, on the other. Discloser acknowledges and agrees that the pricing of Services reflects this allocation or risk and the limitation of liability specified herein, and that RapidRatings would not enter into this Agreement without such allocation and limitation.

 

SECTION 7. TERM AND TERMINATION.

7.1   Term.

(a) These terms and conditions, and Discloser’s right to use the Services, will take effect at the moment Discloser accepts this Agreement, unless terminated sooner pursuant to this Section. Thereafter, the term of this Agreement will automatically renew for unlimited, successive one-year periods (each a “Renewal Term.”) These terms and conditions will terminate if Discloser notifies RapidRatings of termination or if Discloser does not renew access to the Services. In addition, RapidRatings reserves the right at any time and on reasonable grounds, which shall include, without limitation, any reasonable belief of fraudulent or unlawful activity or actions or omissions that violate these terms and conditions, to deny access to the Service, or to any portion thereof, in order to protect its name and goodwill, its business, and/or other users. Termination will be effective without notice at RapidRatings’ discretion.

(b) Upon termination, Discloser shall promptly pay all fees owed to RapidRatings and Discloser’s access shall terminate, but all other applicable provisions shall survive, including the provisions concerning RapidRatings’ proprietary rights, indemnity, disclaimers of warranty, limitation of liability, and governing law, which will survive the termination of this Agreement. Upon termination, Discloser must promptly destroy all copies of any aspect of the Services and Reports in Discloser’s possession and certify in writing to RapidRatings upon completion. RapidRatings has no obligation to retain or return the Discloser Data to Discloser.

 

SECTION 8. GENERAL.

8.1   Injunctive Relief. Discloser agrees that if it breaches any of its obligations with respect to RapidRatings’ Confidential Information or infringes RapidRatings’ intellectual property rights, it will cause RapidRatings irreparable injury that cannot be readily remedied in monetary damages in an action at law. Therefore, Discloser agrees that RapidRatings shall be entitled to obtain, on an expedited basis from any court of competent jurisdiction, and without the requirement of the posting of a bond or other security, immediate injunctive relief to enjoin any such breach or prospective breach or any infringement or prospective infringement. The foregoing will be in addition to, and not in lieu of, such other remedies as RapidRatings may otherwise have available.

8.2   Forum, Governing Law, Jurisdiction, Severability. This Agreement is entered into in the State of New York, and its validity, construction, interpretation, and legal effect will be governed by the laws of the State of New York, without regard to its or any other applicable conflict of laws rules. Any action at law or in equity arising under or in connection with this Agreement will be filed only in an appropriate State or Federal Court located in New York, New York. The Parties hereby irrevocably consent and submit to the exclusive personal jurisdiction of, and venue in, such courts for the purposes of litigating any such action. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement. Each of the Parties acknowledges that it has had the opportunity to have this Agreement reviewed by independent legal counsel of its choice. If any one or more of the provisions of this Agreement should be ruled wholly or partly invalid or unenforceable, then the provisions held invalid or unenforceable will be deemed amended, and the court or other government body is authorized to reform the provision(s) to the minimum extent necessary to render them valid and enforceable in conformity with the Parties’ intent as manifested herein, with all other provisions remaining in full force and effect.

8.3   Force Majeure. RapidRatings shall not be responsible for delays or failure in performance resulting from acts beyond its reasonable control, including acts of God, strikes, lockouts, riots, acts of war, terrorism, Internet outages, failures of Internet hosting providers, epidemics, fire, communication line failures, power surges or failures, earthquakes or other disasters.

8.4   Notice, Execution, Construction. Any notice given by either Party to the other shall be in writing and will be sent by personal delivery, internationally recognized overnight courier with delivery confirmation, electronic notification (such as email), or U.S. Mail, certified or registered, postage prepaid, return receipt requested, to the respective address set forth in this Agreement, or such other address(es) as specified in writing by the Party in accordance with this Section. All notices will be deemed effective upon delivery (or attempted delivery), except that electronic notification shall be deemed effective upon receipt acknowledgement by the receiving Party. This Agreement may be executed in counterparts, all of which together will constitute the entire fully-executed instrument. If there is any conflict of terms between this Agreement and an Order Form, the Order Form will control for the subject matter of the Order Form only. Facsimile, photocopy, or electronic signatures will be given the same effect as originals or ink signatures. The headings to Sections of this Agreement are for convenience or reference only and do not form a part of this Agreement and will not in any way affect its interpretation. All capitalized terms not defined in this Agreement are defined as set forth in the Order Form and vice versa. Neither Party will be afforded or denied preference in the construction of this Agreement, whether by virtue of being the drafter or otherwise. The terms “including”, “includes”, and “include” will be deemed to be followed by “without limitation”. Please contact RapidRatings at legal@rapidratings.com if you wish to receive a printed copy of these terms and conditions, referencing Services Agreement – Discloser November 1, 2021.

8.5   Use by U.S. Government. The Services, Reports including any Feedback or derivatives thereof, made available by RapidRatings under this Agreement may be subject to export control, procurement, and/or other laws and regulations of the United States and other jurisdictions applicable to government contractors. Discloser agrees to comply with all applicable laws and regulations. Discloser represents that it is not currently debarred, suspended, or proposed for debarment by any government entity, including U.S. federal, state, and local government entity. Discloser specifically acknowledges that it must comply with all applicable export control laws and agrees that it shall not permit Users to access or use any Services in a U.S. embargoed country (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea) or in violation of any U.S. export law or regulation. The Services provided by RapidRatings under this Agreement constitute a “commercial item,” as defined at FAR 2.101 and FAR Part 12. Consistent with this classification, use, modification, reproduction, release, transfer, performance, display, disclosure, or distribution of the software by Discloser and any other end user, including a government entity, are restricted by the terms of this Agreement, and the software service and any related documentation are licensed hereunder (i) only as “commercial items,” and (ii) with only those rights as are granted to other commercial end users pursuant to the terms and conditions of this Agreement. Use of any RapidRatings software is restricted by the terms of this Agreement and, in accordance with DFARS Section 227.7202 and FAR Section 12.212, is further restricted in accordance with the terms of RapidRatings’ commercial end user license agreement/terms of use as displayed in the Services. Except as described herein, all other use is strictly prohibited. This section describing government use, consistent with FAR 12.212 and DFARS 227.7202, is in lieu of, and supersedes, any other FAR, DFARS, or other clause or provision that addresses government rights in software as a service, computer software, computer software documentation, or technical data related to RapidRatings (here, the Licensor) under this Agreement and in any contract or subcontract under which this software service is acquired or licensed. Neither Discloser nor the government is entitled to the software’s object code or source code.

8.6   Assignment. Neither Party shall assign, delegate, or otherwise transfer its rights or obligations under this Agreement, by operation of law or otherwise, without the prior written consent of the other Party (to be granted or withheld in its reasonable discretion); except that RapidRatings may assign its rights and delegate its obligations under this Agreement freely in connection with a merger, acquisition, sale of substantially all of its assets or stock, financing, reorganization, or similar transaction without consent. This Agreement will be binding upon and will inure to the benefit of the Parties and their permitted successors and assigns. If Discloser sells or divests an entity or assets, this Agreement shall remain with Discloser and shall not apply to the third-party entity or assets.

8.7   Merger and Amendment. This Agreement (including the applicable Order Form(s), which are hereby incorporated herein) constitutes the entire understanding and agreement, and supersedes any and all prior or contemporaneous representations, understandings, and agreements between the Parties with respect to the subject matter of this Agreement, all of which are hereby merged into this Agreement. No amendment to this Agreement or waiver of any provision hereof will be valid or binding unless reduced to writing and duly executed by RapidRatings.

8.8   Waiver, Relationship, Third Parties. A Party’s failure to enforce a right or remedy in this Agreement will not constitute a waiver of such right or remedy. Nothing contained in this Agreement will be deemed to create, or be construed as creating, a joint venture or partnership between the Parties. Neither Party is, by virtue of this Agreement or otherwise, authorized as an agent or legal representative of the other Party. There are no third-party beneficiaries of this Agreement except for RapidRatings’ licensors.

 

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