1. Use of the Platform.
(a) Scope of Use. EquiLend hereby grants User a non-exclusive, royalty-free, revocable, non-transferable (in all respects) and non-sublicensable personal license to access and use the Platform during the Term, in accordance with the terms of this Agreement. User shall access or use the Platform solely for its own internal use in connection with the viewing the Content related to bona fide securities lending and borrowing activities contracted in compliance with all applicable laws (collectively, the “Intended Purpose”). User shall not, and shall cause each of its directors, officers, employees, agents, advisors and other representatives (each, a “Representative”) not to, (i) sell, lease, transfer, provide, sublicense or otherwise make available to any third party the foregoing license or access to any portion of the Content for any reason, except as provided in Section 5(a); (ii) photocopy or otherwise reproduce in any medium any portion of the Content (other than any Transaction Data (as defined in Section 5(b)), except that User may print hard copies of the Content for its own internal use (provided that all copyright and other proprietary notices and disclaimers are retained and complied with at all times); or (iii) alter, enhance, make derivative works of, reverse engineer or decompile any portion of the Content, or otherwise take any action likely to harm EquiLend.
(b) Role of EquiLend; No Recommendation. User hereby acknowledges and agrees that (i) EquiLend’s role is confined to providing the Content and to that end EquiLend will act solely as the operator of the Platform; (ii) EquiLend shall have no responsibility or liability for the accuracy of the Content; (iii) EquiLend shall not be deemed to have given, or guaranteed the validity of, any Message between Users; and (iv) EquiLend makes no recommendation as to the appropriateness, suitability, legality, validity or profitability of any loan or other extension of credit.
(c) Contractual Relationship. User acknowledges and agrees that EquiLend is not a party to any agreements between the Bill Originator and the recipient of the bill. Users are solely liable for the use of the Content in compliance with the terms of this Agreement. User shall not claim damages or any other compensation against EquiLend for any violation by a counterparty of its obligations under any agreement that causes damage to User.
(e) Administration of User System. User shall not knowingly or negligently introduce or permit the introduction of any computer viruses, worms, bombs, Trojan horses, trap doors, stop codes, protect codes or other harmful codes (collectively, “Viruses”) into the Platform and, without limiting the foregoing, User shall at all times use commercially reasonable security measures to prevent Viruses from being introduced into the Platform from the User System.
(f) Electronic Communications. The User acknowledges and agrees that: (i) the Messages will be transmitted electronically through the public Internet; (ii) access to and use of the Platform and transmission of Messages through the public Internet may not be secure and may entail additional costs (such as online and other telecommunications charges); and (iii) EquiLend shall have no liability whatsoever for any security breach or electronic failure involving the Platform or the transmission of any Messages through the public Internet.
(g) Compliance with Applicable Law. User hereby agrees that its access to and use of the Platform in any manner and for any purpose permitted hereunder shall comply with all applicable federal, state and foreign laws, rules, regulations and interpretations of any judicial, legislative, governmental, regulatory or self-regulatory authority or organization of competent jurisdiction (collectively, “Applicable Law”).
(h) Disclosure of User Information. User understands and agrees that User Confidential Information (as defined in Section 6(a)) may be transmitted and retransmitted outside of User’s country of domicile. User shall comply with the applicable laws of all jurisdictions in which it uses the Platform, including but not limited to, ensuring compliance with respect to the disclosure, collection, storage and processing of Authorized Persons’ personal information described above prior to the designation of such Authorized Persons, pursuant to Section 4(a).
(i) Right to Control Use and/or Cease Service. EquiLend retains sole and exclusive control over, and reserves the right at any time, in the exercise of its sole discretion, without any liability whatsoever: (i) to impose limitations on access to or use of the Platform by User or any Authorized Person (as defined in Section 4(a)); (ii) to temporarily or permanently suspend, restrict or cancel access to the Platform or any particular portion thereof by User or any Authorized Person; and (iii) to refuse to facilitate any or all Messages.
3. Term and Termination.
(a) Term and Termination. This Agreement is effective from the User’s first access to the Platform and the term of this Agreement shall continue unless and until terminated by EquiLend (the “Term”). EquiLend may terminate this Agreement at any time and may do so immediately without notice, and accordingly deny the User access to the Platform, if in EquiLend's sole discretion the User fails to comply with any term or provision of this Agreement.
(b) Effect of Termination. The following events shall occur upon termination of this Agreement: (i) the license granted User in Section 2(a) shall immediately terminate and User shall cease any and all use of the Platform; and (ii) User shall promptly return to EquiLend or destroy all materials and documents containing any Confidential Information (as defined in Section 6(a)) of EquiLend and certify to EquiLend that all such materials and documents have been returned or destroyed; provided that in the event User is required by or under Applicable Law, or by internal corporate policies, to maintain materials and documents containing the Confidential Information following the termination of this Agreement, User shall not be required to return or destroy the materials and documents containing the Confidential Information; provided further, that User shall continue to be bound by the terms of this Agreement, including the confidentiality provisions of Section 6, so long as User maintains such materials or documents.
(c) Other Remedies. Other than as provided in this Section 3(c), termination of this Agreement shall not affect a User’s obligations arising hereunder prior to such termination. The right of termination set forth herein is in addition to any other remedy at law or in equity that is available to EquiLend with respect to a breach by User.
4. Authorized Persons; Security.
(a) Authorized Persons. User shall designate one (1) employee or agent (“Administrator”) who shall designate other such employees or agents who are authorized by User to access or use the Platform on User’s behalf (each, including the Administrator, an “Authorized Person”). User shall at all times be responsible for (i) any access to or use of the Platform by its Authorized Persons; (ii) any breach by any Representative of User (including any Authorized Persons) of any obligation of User under this Agreement; and (iii) any unauthorized use of the Platform by any person through User’s facilities or on User’s behalf. Upon becoming aware of any improper use of the Platform by any Representative (including any Authorized Person) or by any other person through User’s facilities or on User’s behalf, User shall (A) promptly notify EquiLend thereof, (B) take immediate actions to terminate such improper use, including by terminating such person’s authorization to access the Platform, and (C) provide EquiLend with such assistance as reasonably requested by EquiLend in investigating and remedying the consequences of such improper use.
(b) Security. The Administrator will designate Authorized Persons and assign to each such Authorized Person a unique user identification (“User ID”) and a corresponding access code (“Access Code”) in accordance with the Usage Rules to enable such Authorized Person to access the Platform in accordance with the terms hereof. User shall not permit any person to access the Platform other than an Authorized Person accessing the Platform on its behalf, and shall implement security procedures specified in the Usage Rules or otherwise reasonably designed to prevent unauthorized use or misuse of the User IDs, the Access Codes or the Platform. User shall promptly notify EquiLend of any unauthorized access to or use of, or any loss or theft of, any User ID or Access Code assigned to any of its Authorized Persons. EquiLend does not warrant that any method of accessing the Platform is secure and shall have no liability whatsoever in connection with User’s method of accessing the Platform. User shall comply with all reasonable security specifications or requirements of EquiLend (of which EquiLend shall give prior notice to User) to prevent the Platform from being improperly used or accessed or the Transaction Data (as defined in Section 5(b)) from being improperly taken from any of User’s places of business.
5. Intellectual Property.
(a) Platform. As between User and EquiLend, EquiLend (or, as the case may be, its limited liability company member, EquiLend Holdings LLC (“ELH”)) shall have exclusive ownership of and title to all names, trade names, copyrights, trademarks, service marks, patent rights, trade secrets and all other proprietary and/or intellectual property rights (collectively, “Intellectual Property Rights”) in and relating to the Platform, including the Usage Rules, the Content (including the Derivative Data (as defined in Section 5(b)) but excluding the Transaction Data (as defined in Section 5(b))) and click-stream and similar data that track the access to or use of the Platform by or on behalf of User (the “Click-Stream Data”), and User shall have no rights therein other than the license and rights expressly granted hereunder. Any goodwill generated through User’s access to or use of the Platform shall inure solely to the benefit of EquiLend.
(b) Transaction Data. As between User and EquiLend, the Bill Originator and User shall own all User Messages and all data transmitted through the Platform to the User (collectively, the “Transaction Data”) and all Intellectual Property Rights therein. User grants EquiLend a non-exclusive, perpetual, royalty-free, worldwide, irrevocable, nonterminable, sublicensable and transferable license to (i) transmit, communicate, post, display, distribute and use the Transaction Data on and in connection with the Platform, (ii) report or make available the Transaction Data to any judicial, legislative, governmental, regulatory or self-regulatory authority or organization as may be required by Applicable Law, subject to Section 6, (iii) aggregate and compile the Transaction Data together with the data of other users, and perform analytics on, data mine and create other derivative works from such Transaction Data (the “Derivative Data”), and (iv) use, distribute, sell, license, sublicense and otherwise disseminate the Transaction Data. Except as required by Applicable Law or consented to by User in writing, EquiLend shall not provide to any third party any non-aggregated Transaction Data or any Click-Stream Data that identifies (directly or indirectly) User.
(a) Confidential Information. “Confidential Information” of EquiLend or the Bill Originator shall mean any non-public and/or confidential information learned about EquiLend or the Bill Originator, as the case may be, or their respective Representatives in connection with the Services and this Agreement; provided that Confidential Information shall not include any information that: (i) is in, or becomes part of, the public domain other than through a breach by User of this Agreement; (ii) was demonstrably known to User previously with no obligation to keep it in confidence; (iii) is subsequently disclosed to User on a non-confidential basis from a source not known to User to be bound by a confidentiality agreement with EquiLend or the Bill Originator or otherwise prohibited from transmitting the information to User by a contractual, legal or fiduciary obligation); or (iv) User can demonstrate, from written records, that such information was independently developed by the employees of User who have not had access to and without any use of any Confidential Information. Confidential Information of EquiLend shall include any nonpublic and/or confidential information in any form concerning or relating to the Platform, EquiLend or any of its Representatives, and this Agreement. For purposes of this Agreement, User shall have no Confidential Information.
(b) Confidentiality Obligations. User agrees that, with respect to any Confidential Information of EquiLend or the Bill Originator, as the case may be, it shall (i) use such Confidential Information solely for the purpose of accessing or using the Platform, and not for its own corporate purposes or otherwise, except as otherwise expressly permitted hereunder; (ii) not disclose, sell, assign, license, market, transfer or otherwise dispose of any Confidential Information to any third party, except as otherwise expressly permitted hereunder or with the prior written consent of EquiLend or the Bill Originator, as the case may be, or to User’s Representatives who have a need to know such information for the purpose set forth in clause (b)(i) above, provided that User shall be liable and responsible for compliance by its Representatives with its confidentiality obligations hereunder; (iii) advise each person to whom it has provided such Confidential Information as expressly permitted hereunder or with the prior written consent of EquiLend or the Bill Originator, as the case may be, to keep such information confidential; (iv) maintain the confidentiality of such Confidential Information with at least the degree of care it uses to protect its own confidential and proprietary information, but with no less than a reasonable standard of care, including (A) keeping all such Confidential Information and any copies thereof in its possession secure and in such a way so as to prevent any unauthorized access, and (B) not photocopying or otherwise reproducing in any medium any such Confidential Information except for the purpose of supplying the same to those to whom disclosure is permitted hereunder or as otherwise expressly permitted hereunder; and (v) promptly notify EquiLend or the Bill Originator, as the case may be, of any actual or suspected misuse, misappropriation or unauthorized disclosure of any such Confidential Information. User will comply with the terms and conditions set forth in the Annexes attached hereto.
(c) Permitted Disclosures. Notwithstanding any provision to the contrary contained in Section 6(b) or 6(c), User may disclose Confidential Information of EquiLend or the Bill Originator, as the case may be, as is required by any applicable law, or pursuant to a subpoena, summons, order or other judicial or governmental process issued by a court or regulatory, self-regulatory or legislative body of competent jurisdiction, or in connection with any regulatory report, audit, inquiry or other request for information from a regulatory, self-regulatory or legislative body of competent jurisdiction; provided that User, shall unless prohibited by Applicable Law or court order, provide prompt written notice of any such requirement (other than any requirement solely in connection with any regulatory record keeping requirement, regulatory report, audit, inquiry or other request for information from a regulatory or self-regulatory body of competent jurisdiction) to EquiLend or the Bill Originator, as the case may be, as soon as reasonably practicable so that EquiLend or the Bill Originator, as the case may be, will have the opportunity to obtain a protective order; and provided, further, that if such protective order is not obtained or EquiLend or the Bill Originator, as the case may be, grants a waiver hereunder, User may furnish only that portion of the Confidential Information which, in the opinion of its counsel, it is required by law, regulation or judicial or governmental process to disclose, and will use its reasonable efforts to ensure that all Confidential Information that is so disclosed will be accorded confidential treatment.
7. Representations, Warranties and Covenants.
User makes the following representations, warranties and covenants to EquiLend (which representations, warranties and covenants shall be deemed repeated at the time of each access to or use of the Platform by User) that: (i) User has all licenses, permits and authorizations that may be required in connection with its access to or use of the Platform in accordance with the terms hereof, and without limiting the generality of the foregoing, User has all rights necessary to fulfill its licensing obligations hereunder and EquiLend’s use of any material licensed to it by User hereunder will not violate any third party’s Intellectual Property Rights; (ii) User is subject to Applicable Law of the jurisdiction in which it is organized relating to the detection and prevention of money laundering and has adopted anti-money laundering policies and procedures to ensure compliance with such Applicable Law and User will access and use the Platform in accordance with such policies and procedures; (iii) User will comply with the provisions respecting the CUSIP Database set forth on Annex B; and (iv) User has not relied on EquiLend for any tax or accounting advice concerning this Agreement.
(a) By User. User shall indemnify, defend and hold harmless EquiLend and its affiliates, and their respective Representatives, from and against any losses, liabilities, judgments, arbitration awards and settlements (collectively, “Losses”) resulting from or arising out of any third party suits, actions, claims, demands or similar proceedings (collectively, “Proceedings”) to the extent they are caused by User’s access to or use of the Platform or any breach by User or any Representative (including any Authorized Person) thereof of any provision of this Agreement including (i) any breach by User of any of its representations, warranties or covenants provided in Section 7, and (ii) any unauthorized access to or use of the Platform with a User ID and/or Access Code assigned to User’s Authorized Persons or other breach of security by any of User’s Representatives or by any other person through the User System, except, in each case, to the extent such Losses result from or are related to EquiLend’s fraud, gross negligence or willful misconduct.
(b) Indemnification Procedure. If any Proceeding is commenced against EquiLend for which indemnification is available under this Section 8 (the “Indemnified Party”), notice thereof shall be given to User (the “Indemnifying Party”) as soon as reasonably possible. The Indemnifying Party shall be entitled to take control of the defense, investigation or settlement of such Proceeding, and the Indemnified Party shall reasonably cooperate, at the Indemnifying Party’s cost, in such defense, investigation or settlement; provided that the Indemnified Party may, at its own cost and expense, participate in such defense, investigation or settlement. No settlement of any claim (other than a settlement involving only the payment of money which is paid by the Indemnifying Party) or consent to entry of any judgment shall be entered into without the consent in writing of the Indemnified Party.
9. No Warranties; Limitation of Liabilities.
(a) No Warranties. NEITHER EQUILEND NOR ANY OF ITS AFFILIATES, INVESTORS, THIRD PARTY VENDORS, CONTRACTORS OR TECHNOLOGY SUPPLIERS (EACH, AN “EQUILEND PARTY”), NOR ANY OF THEIR RESPECTIVE REPRESENTATIVES, MAKES ANY WARRANTY TO USER OR ANY OTHER PERSON AS TO THE PLATFORM OR ANY PORTION THEREOF, OR ANY MESSAGES SENT TO OR BY USER THROUGH THE INTERNET, WHETHER EXPRESS OR IMPLIED, INCLUDING (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) ANY WARRANTY OF NON-INFRINGEMENT, OR (3) ANY WARRANTY REGARDING THE CORRECTNESS, QUALITY, ACCURACY, RELIABILITY, SECURITY, PERFORMANCE, COMPLETENESS, TIMELINESS OR CONTINUED AVAILABILITY OF THE PLATFORM OR ANY PORTION THEREOF. USER ACKNOWLEDGES AND AGREES THAT THE PLATFORM IS PROVIDED ON AN “AS IS” BASIS AT USER’S SOLE RISK. UNLESS OTHERWISE EXPRESSLY PROVIDED HEREIN, NEITHER ANY EQUILEND PARTY NOR ANY REPRESENTATIVE THEREOF SHALL HAVE ANY DUTY OR OBLIGATION TO MAINTAIN THE PLATFORM OR ANY PORTION THEREOF OR TO VERIFY, CORRECT, COMPLETE OR UPDATE ANY INFORMATION DISPLAYED THEREON.
(b) General Limitations on Liabilities. NEITHER ANY EQUILEND PARTY NOR ANY REPRESENTATIVE THEREOF SHALL HAVE ANY LIABILITY, DIRECT OR INDIRECT, CONTINGENT OR OTHERWISE, TO USER OR ANY THIRD PARTY, FOR THE CORRECTNESS, QUALITY, ACCURACY, RELIABILITY, SECURITY, PERFORMANCE, COMPLETENESS, TIMELINESS OR CONTINUED AVAILABILITY OF THE PLATFORM OR ANY PORTION THEREOF; AND (B) IN NO EVENT SHALL ANY EQUILEND PARTY OR ANY REPRESENTATIVE THEREOF BE LIABLE FOR ANY SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING ANY SUCH DAMAGES FOR LOSS OF PROFITS, LOSS OF OPPORTUNITY AND LOSS OF USE), RELATING IN ANY MANNER TO USER’S ENTERING INTO THIS AGREEMENT, THE EXERCISE BY EQUILEND OR USER OF ANY OF ITS RESPECTIVE RIGHTS UNDER THIS AGREEMENT OR USER’S ACCESS TO, USE OF, OR RELIANCE ON, THE PLATFORM OR ANY PORTION THEREOF, EVEN IF SUCH EQUILEND PARTY OR SUCH REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED. NOTWITHSTANDING ANY PROVISION HEREOF TO THE CONTRARY, IN NO EVENT SHALL THE LIABILITY OF EQUILEND ARISING OUT OF ANY KIND OF LEGAL CLAIM (WHETHER IN CONTRACT, TORT OR OTHERWISE) RELATING IN ANY MANNER TO USER’S USE OF THE PLATFORM COVER CLAIMS BY COUNTERPARTIES OR CLIENTS OF USER WITH RESPECT TO SERVICES EFFECTED THROUGH THE PLATFORM.
(c) EquiLend Not an Advisor. NEITHER THIS AGREEMENT NOR THE USE OF THE PLATFORM SHALL CONSTITUTE INVESTMENT ADVICE BY EQUILEND, OR ANY REPRESENTATIVE THEREOF. NEITHER EQUILEND NOR ANY REPRESENTATIVE THEREOF SHALL BE AN ADVISOR OR A FIDUCIARY OF USER IN ANY MANNER WHATSOEVER. THE SERVICES PROVIDED TO USER SHOULD NOT BE CONSTRUED AS EQUILEND MAKING FORECASTS, PROJECTING RETURNS OR RECOMMENDING ANY PARTICULAR COURSE OF ACTION. USER ACKNOWLEDGES THAT, BY PERMITTING USE OF THE SERVICES BY OTHER USERS, EQUILEND IS MAKING NO RECOMMENDATION AS TO THE CREDITWORTHINESS OF ANY OTHER USER, NOR IS EQUILEND CONFIRMING THAT A CONTRACTUAL RELATIONSHIP EXISTS BETWEEN USER AND ANY OTHER USER OF THE PLATFORM. ACCORDINGLY, IN USING THE PLATFORM AND THE SERVICES, USER DOES SO SOLELY IN RELIANCE ON THE USER’S OWN JUDGMENT.
(d) No Liability for Other Users. EquiLend shall have no liability to User in connection with any failure on the part of any other user to comply with the Usage Rules or its agreements with EquiLend or any delay or failure on the part of EquiLend to enforce any agreement with such other user.
(e) No Liability for Other Providers. User acknowledges that in accessing or using the Platform, it may be provided with links to websites of (or otherwise presented with content provided by) third parties and agrees that EquiLend shall not be liable for any such third party content.
(f) Force Majeure. Neither EquiLend, or any EquiLend Party nor any of their respective Representatives, shall be liable for any delay or failure in the performance of EquiLend’s obligations hereunder if and to the extent such delay or failure is attributable to any cause beyond the reasonable control of EquiLend, including natural casualties, failure in electrical equipment, access links or other communication facilities, or governmental, political, social or terrorist acts.
(a) Arbitration. The Parties agree that any claim, dispute, controversy or other matter in question arising out of, relating to or in connection with this Agreement that cannot be resolved by negotiation between the Parties within thirty (30) days from the date written notice of such matter is received by either Party from the other shall be submitted, upon notice by either Party, to arbitration before the NASD in New York, New York, United States of America in accordance with the arbitration rules of the NASD then in effect; provided, however, that (1) submission of any such claim, dispute, controversy or other matter in question to the NASD shall not be required if the Parties agree upon another arbitration forum, (2) the foregoing shall not preclude either Party from seeking or obtaining preliminary or interim injunctive relief or pursuing all available administrative, judicial or other remedies for potential violations of the confidentiality provisions set forth in Section 6 of this Agreement, or the infringement of a patent, trademark, service mark or copyright, and (3) the Parties shall not submit claims for, and the arbitrators shall not be authorized to award, punitive damages or any other damages not measured by the prevailing party’s actual damages or any damages inconsistent with the provisions of this Agreement, and the Parties do hereby waive any right to the same. No person shall bring a putative or certified class action to arbitration, nor seek to enforce any pre-dispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until: (A) the class certification is denied; or (B) the class is decertified; or (C) the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Agreement except to the extent stated herein. For purposes of this Section 10(a), the term “person” shall include the Parties and the term “customer” shall mean the User.
(b) Waiver of Jury Trial. User hereby knowingly, voluntarily and intentionally waives, to the fullest extent permitted by law, any right it may have to a trial by jury in any action or proceeding arising out of or relating to this Agreement.
(c) Assignment; Binding Nature. User hereby agrees that EquiLend may assign any or all of its rights and obligations under this Agreement without User’s prior written consent. User shall not assign (whether by operation of law, contract or otherwise) any of its rights or obligations under this Agreement without the prior written consent of EquiLend. Any assignment by User of any of its rights or obligations hereunder in violation of this Section 10(c) shall be null and void. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective permitted successors and assigns.
(d) Amendment. EquiLend may from time to time amend this Agreement and/or change the terms that govern the User’s use of the Platform. The User’s use of the Platform following any such amendment or change constitutes the User’s agreement to follow and be bound by the terms as changed and/or this Agreement as amended.
(e) Waivers. No provision of this Agreement may be waived except by an instrument in writing executed by EquiLend. Failure by EquiLend at any time to require full performance of any provision hereof shall in no manner affect the right of EquiLend to enforce the same provision at a later time or to enforce any other provision hereof.
(f) Injunctive Relief. User acknowledges that an impending or existing violation by User of any provision of Sections 2, 4, 5, 6, or 7, may cause EquiLend irreparable injury for which EquiLend would have no adequate remedy at law, and agrees that EquiLend shall be entitled to seek immediate injunctive relief (whether preliminary, temporary or permanent) prohibiting such violation, in addition to any other rights and remedies that may be available EquiLend.
(g) Severability. Any provision of this Agreement that is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting the validity or enforceability of such provision in any other jurisdiction.
(h) Entire Agreement. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof and supersedes all prior understandings and agreements between the Parties with respect to the subject matter hereof.
(i) Survival. The provisions of Sections 4, 5, 6, 7, 8, 9, and 10 shall survive any termination of this Agreement.
COMPLIANCE WITH GRAMM-LEACH BLILEY AND NON-U.S. DATA PROTECTION
For purposes of compliance with (i) Title V of the Gramm-Leach-Bliley Act of 1999 (the “Act”) or any successor federal statute to the Act, and the rules and regulations thereunder, all as may be amended or supplemented from time to time, (ii) the European Commission Data Protection Directive (95146/EC) or Data Protection Act of 1998 or any implementing or related legislation of any member state in the European Economic Area (the “Data Protection Laws”) and (iii) any other applicable laws concerning personal information, User represents, warrants and covenants that:
• it will process, use, maintain and disclose personal information only as necessary for the specific purpose for which this information was disclosed to it and only in accordance with the terms of this Agreement;
• subject to Section 6(b) of the Agreement it will not disclose any personal information to any third party (including to the subject of such information) or any Representative who does not have a need to know such personal information;
• it will implement and maintain an appropriate security program to (a) ensure the security and confidentiality of all information provided to it by EquiLend, including personal information (collectively, the “Confidential Information” as such term is defined in Section 6(a) of this Agreement), (b) protect against any threats or hazards to the security or integrity of the Confidential Information, including unlawful destruction or accidental loss, alteration and any other form of unlawful processing and (c) such prevent unauthorized access to, use or disclosure of the Confidential Information;
• it will immediately notify EquiLend in writing if it becomes aware of (a) any disclosure or use of any of the Confidential Information by it or any of its Representatives in breach of this Agreement, (b) any disclosure of any Confidential Information to it or its Representatives where the purpose of such disclosure is not known, (c) any request for disclosure or inquiry regarding the Confidential Information from a third party and (d) any change in applicable law that is likely to have a substantial adverse effect on User’s ability to comply with this Annex;
• it will cooperate with EquiLend and the relevant supervisory authority in the event of litigation or a regulatory inquiry concerning the Confidential Information and shall abide by the advice of EquiLend and the relevant supervisory authority with regard to the processing of such Confidential Information;
• it will enter into further agreements as reasonably requested by EquiLend to comply with law from time to time; [necessary?]
• it has no reason to believe that any applicable law will prevent it from fulfilling its obligations under this Annex;
• at EquiLend’s direction at any time, and in any event upon any termination or expiration of the Agreement, it will immediately return to EquiLend any or all EquiLend Confidential Information (as such term is defined in Section 6(a) of this Agreement) and will return to EquiLend or destroy all records of such Confidential Information;
• it will cause its Representatives to act in accordance with this Annex; and
• to the extent that the personal information is subject to the Data Protection Laws, data subjects may enforce the provisions of this Annex as a third-party beneficiary against it with respect to their personal information but only in cases where EquiLend has factually disappeared or has ceased to exist in law. User and EquiLend do not object to the data subjects being represented by an association or other body if they so wish and if permitted by national law.
The provisions of this Annex supplement, are in addition to, and will not be construed to limit any other confidentiality obligations under the Agreement. Any exclusion from the definition of Confidential Information contained in the Agreement will not apply to personal information.
“Personal information” means: (i) personally identifiable information about or relating to any former, current or prospective Users, Authorized Persons, Representatives, or employees of EquiLend or any other party with respect to whom EquiLend maintains information, in each case, which the User receives or otherwise has access to; and (ii) any list, description, or other grouping of information regarding an Authorized Person (and publicly available information pertaining to them) that is derived using any personally identifiable information
ADDITIONAL ACKNOWLEDGEMENTS AND OBLIGATIONS OF USER WITH REGARD TO CUSIP DATA
User agrees and acknowledges that the CUSIP Database (as defined below) and the information contained therein is and shall remain valuable intellectual property owned by, or licensed to, Standard & Poor’s CUSIP Service Bureau (“CSB”) and the American Bankers Association (“ABA”), and that no proprietary rights are being transferred to User in such materials or in any of the information contained therein. For purposes of this Agreement, the “CUSIP Database” shall mean the CUSIP standard numbers and CUSIP standard descriptions which CSB regularly maintains and periodically enhances and further develops. Any use of CUSIP Database and the information contained therein by User outside of the clearing and settlement of transactions requires a license from the CSB, along with an associated fee based on usage. User agrees that misappropriation or misuse of such materials will cause serious damage to CSB and ABA and that in such event money damages may not constitute sufficient compensation to CSB and ABA; consequently, User agrees that in the event of any misappropriation or misuse, CSB and ABA shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which CSB and ABA may be entitled.
User shall not publish or distribute in any medium the CUSIP Database or any information contained therein or summaries or subsets thereof to any person or entity except in connection with the normal clearing and settlement of security transactions. User further agrees that the use of CUSIP numbers and descriptions is not intended to create or maintain, and does not serve the purpose of the creation or maintenance of, a database or master file of CUSIP descriptions or numbers for itself or any third party recipient of such service and is not intended to create and does not serve in any way as a substitute for the CUSIP MASTER TAPE, PRINT, DB, INTERNET, ELECTRONIC, CD-ROM Services and/or any other future services developed by the CSB.
NEITHER CSB, ABA NOR ANY OF THEIR AFFILIATES MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY, ADEQUACY OR COMPLETENESS OF ANY OF THE INFORMATION CONTAINED IN THE CUSIP DATABASE. ALL SUCH MATERIALS ARE PROVIDED TO USER ON AN “AS IS” BASIS, WITHOUT ANY WARRANTIES AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE NOR WITH RESPECT TO THE RESULTS WHICH MAY BE OBTAINED FROM THE USE OF SUCH MATERIALS. NEITHER CSB, ABA NOR THEIR AFFILIATES SHALL HAVE ANY RESPONSIBILITY OR LIABILITY FOR ANY ERRORS OR OMISSIONS NOR SHALL THEY BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT OR INDIRECT, SPECIAL OR CONSEQUENTIAL EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE LIABILITY OF CSB, ABA OR ANY OF THEIR AFFILIATES PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE EXCEED THE FEE PAID BY USER FOR ACCESS TO SUCH MATERIALS IN THE MONTH IN WHICH SUCH CAUSE OF ACTION IS ALLEGED TO HAVE ARISEN. FURTHERMORE, CSB AND ABA SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR DELAYS OR FAILURES DUE TO CIRCUMSTANCES BEYOND THEIR CONTROL.