Cost of Capital Navigator™ End User License Agreement
YOU MUST READ AND AGREE TO THE TERMS AND CONDITIONS OF THIS END USER LICENSE AGREEMENT BEFORE ACCESSING AND USING THE COST OF CAPITAL NAVIGATOR™
By clicking on the (“I ACCEPT”) check box and accepting this License Agreement (“Agreement”) you (“Licensee”) agree to be bound by its terms and conditions for the use of the Kroll Cost of Capital Navigator™. If you do not agree with the terms and conditions of this Agreement, click on the “CANCEL” button, in which case you will have the opportunity to contact Kroll with your concerns.
- Agreement. These terms and conditions govern Licensee’s use of the current combination of the database and functionality of the Cost of Capital Navigator™ (“Navigator”) provided by Kroll. The ordering document (the “Order Form”) and this Agreement constitute the complete agreement and supersede any prior discussions or representations regarding use of the Navigator. If the terms of the Order Form are different from these Terms and Conditions, the Order Form will have priority. Other terms and conditions incorporated into any purchase order shall not apply.
- License. Subject to these terms and conditions and the applicable Order Form, Kroll grants to Licensee a non-exclusive, non-transferable, limited license (without the right to sublease or sublicense) to access and use Navigator, during the Term in an operating environment hosted by Kroll, for Licensee’s own internal use solely to support its own business purposes, which includes the right to provide limited excerpts (defined as excerpts which: (a) have no independent commercial value; and (b) could not be used as a substitute for content derived from Navigator) to Licensee’s direct clients solely for the purpose of performing services for such direct clients in the ordinary course of Licensee’s business activities. Licensee will ensure that the limited excepts will be attributed to Kroll as the source in the following format: “Source: Kroll Cost of Capital Navigator™”. Any rights not expressly granted herein are expressly reserved. Licensee is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of Navigator. Licensee will not allow Navigator to be used by, or disclose all or any part of Navigator to, any person except authorized users in the Benefitting Group (as defined below). LICENSEE AND ITS BENEFITTING GROUP MAY NOT DOWNLOAD, EITHER IN ELECTRONIC OR IN HARD COPY FORMAT, ANY SUBSTANTIAL PORTION OF INFORMATION FROM NAVIGATOR. Licensee understands that any content provided through Navigator does not constitute legal, financial or other professional advice.
- Benefitting Group. The “Benefiting Group” is the total number of individuals employed by Licensee at all physical locations who will use or have access to the Data delivered through the Navigator in any way, directly (with a log in) or indirectly (by asking a colleague for material who has a login), each individually a “Subscriber”. The Data may not be used or accessed by more than the number of Subscribers set forth on the Order Form / Exhibit A. Every person who works on a project, valuation, report, recommendation, analysis or study that contains or is based on the data or other information obtained through the Navigator is part of the Benefitting Group and must be a Subscriber to the Navigator. This does not preclude non-Subscribers from formatting, duplicating or transmitting reports but it does preclude non-Subscribers from acting as reviewers or contributors to any such project, valuation, report, recommendation or study. Persons (this includes, but is not limited to appraisers, brokers, consultants, advisors, planners, strategists, financial planners and accountants) who select data, analyze data, and/or develop comparisons, calculations, opinions, deductions or conclusions on such data or make recommendations based on such data must be Subscribers. Persons (this includes but is not limited to graphic designers, production staff, and executive assistants) who act as contributors to any such project, valuation, report, recommendation, or study who do not select data, analyze data, and/or develop comparisons, calculations, opinions, deductions or conclusions on such data or make recommendations based on such data will be considered non-Subscribers. Licensee is responsible for assigning its user passwords and maintaining password security. At sign-in each Subscriber must confirm his/her name and that he/she is a member of Licensee’s Benefitting Group. Sharing passwords is strictly prohibited and Licensee shall periodically instruct the Benefitting Group of their obligations hereunder. Licensee is responsible for providing connectivity to the Internet for itself and its Subscribers. Licensee shall be responsible for all usage of Navigator, including for any act taken, or failed to be taken, by a Subscriber that is required to be taken, or prohibited from being taken, by Licensee hereunder, and for acts or omissions of any party obtaining access or login credentials from or through Licensee or its Subscribers. Licensee is prohibited from causing or permitting the reverse engineering, disassembly or de-compilation of Navigator. Licensee will not allow Navigator to be used by, or disclose all or any part of Navigator (including outputs related thereto) to any person except Subscribers.
- Term. The term of access to Navigator (and any specific permission granted) is set out on the Order Form. Licensee will receive a renewal reminder at least thirty (30) days prior to expiration. If a term lapses without payment for the subsequent term, the Licensee will have a grace period of ninety (90) days during which the Licensee’s information and estimates previously saved in Navigator will be accessible. After the grace period expires, access will be discontinued and all saved information and estimates will be permanently deleted from Navigator. It is Licensee’s responsibility to update the Benefitting Group total for each subsequent term.
- Confidentiality. In connection with this Agreement each party (as the “Disclosing Party”) may disclose or make available Confidential Information to the other party (as the “Receiving Party”). Subject to this section, “Confidential Information” means information in any form or medium (whether oral, written or proprietary, including but not limited to information consisting of or relating to data, technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing), in each case whether or not marked, designated, or otherwise identified as “confidential”. Confidential information received from a Disclosing Party will not be disclosed to anyone else without the Disclosing Party’s express consent, unless required by law. If a court or government agency orders a Receiving Party to disclose the Confidential Information of the Disclosing Party, the Disclosing Party will be promptly notified so that an appropriate protective order or other remedy can be obtained unless such notification is legally prohibited. These obligations of confidentiality do not apply to information which: (a) is or becomes (through no act or omission of the Receiving Party), generally available to the public; (b) becomes known to the Receiving Party on a non-confidential basis through a third party who is not subject to an obligation of confidentiality to Disclosing Party; (c) was lawfully in the possession of the Receiving Party prior to such disclosure; or (d) is independently developed by the Receiving Party or any of its affiliates. Notwithstanding the foregoing, Licensee understands and agrees that Kroll may disclose Licensee’s confidential information to Kroll and its affiliates’ employees, agents and contractors (including its distribution partners) solely for purposes of fulfilling Kroll’s obligations under this Agreement, subject to obligations of confidentiality at least as restrictive as those set forth herein.
- Intellectual Property. Licensee acknowledges that all proprietary rights (including but not limited to copyrights, trade secrets, database rights and trademark rights in Navigator, including all information, data software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of Kroll, its affiliates, or its third party data suppliers. Navigator, including but not limited to, any incorporated text, images, illustrations, graphics, logos, digital downloads, data, software, headers, icons, scripts, audio clips, and video clips, is protected by copyrights, trademarks, service marks, and/or other intellectual property rights (which are governed by and subject to United States and international copyright laws and treaty provisions, privacy and publicity laws, and communication regulations and statutes). Except as expressly authorized herein, Licensee may not modify, copy, distribute, transmit, display, reproduce, publish, license, create derivative works based on, transfer, sell or otherwise use, in any medium, Navigator or any content therein. Licensee will not remove or conceal any proprietary rights notice on any output derived from Navigator and will include such notices and any accompanying disclaimers on any copy of such output. Licensee agrees that any third party data supplier hereunder may enforce its rights against Licensee as intended third party beneficiary of this Agreement. Kroll acknowledges that all intellectual property rights in Licensee’s information are owned by Licensee. Subject to its confidentiality obligations herein, Kroll may use data in the aggregate for analyses, product development, and insight generation only insofar as such uses do not reveal any Confidential Information. Kroll may include Licensee’s name in its client list or marketing material. Except with respect to the foregoing, neither party may use the other party’s name, trademarks or any derivatives of them, except for internal purposes or as required by law or regulation, without the other’s prior written consent, not to be unreasonably withheld.
- Support. Kroll (or its distribution partner) shall provide Licensee with access (via the internet, telephone or other means established by Kroll (or its distribution partner)) to Kroll’s (or its distribution partner’s) support helpline and use reasonable efforts to assist in resolving functional problems with Navigator. Kroll may modify Navigator from time to time but will not materially change its fundamental nature.
- Termination. Either party may terminate access to or use of Navigator if it is determined that the other party there has committed or is responsible for (i) a breach of security, (ii) a material breach of its obligations herein, (iii) a material breach of any other agreement between the parties, (iv) or a violation of law. Kroll may terminate this Agreement, at any time, for any reason or no reason whatsoever. Upon termination, all licenses end immediately. Termination will not relieve Licensee of its obligation to pay any amounts owed up to and including the date of termination and any terms of this Agreement, which by their nature should survive the termination of this Agreement, shall survive such termination or expiration. Following termination, and at any time with respect to confidential information, upon request the parties will promptly return, delete or destroy all of the other party’s information. However, each party may retain copies to the extent required by, and used only to (i) comply with law, regulation or bona fide document retention policies, and (ii) support the enforcement or defense of a party’s rights under the Agreement. Any retained Confidential Information shall be subject to the terms and provisions of this Agreement, notwithstanding its termination.
- Third Party Data Suppliers. Portions of Navigator may contain or incorporate content from a third-party data supplier (“Third-Party Provider”). Accordingly, Licensee agrees that its access and use of a Third-Party Provider’s content are subject to such Third-Party Provider’s additional terms and conditions as set forth in the Third-Party Provider Addendum, which is incorporated into this Agreement and made a part hereof. Licensee acknowledges that Third-Party Providers may change from time to time and may change the terms on which they license their data to Kroll. Licensee shall promptly respond to inquiries regarding the use of Navigator and the content provided therein. If any new Third-Party Provider terms materially impair the use of Navigator, Licensee shall have the right to terminate this Agreement and receive a pro rata refund for the remainder of the current term.
- Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. The parties shall amend this Agreement or the Order Form to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision.
- Warranty. Kroll will use commercially reasonable efforts to obtain information appearing in Navigator from Third-Party Providers it considers reliable, but disclaims any and all liability for the truth, accuracy or completeness of the information conveyed. KROLL (AND ITS THIRD-PARTY PROVIDERS) MAKE NO WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, WITH RESPECT TO THE MERCHANTABILITY, FITNESS, CONDITION, USE OR APPROPRIATENESS FOR LICENSEE’S PURPOSES OF NAVIGATOR AND THE INFORMATION FURNISHED TO LICENSEE UNDER THIS AGREEMENT. SUBSCRIBER AGREES THAT NAVIGATOR IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. SUBSCRIBER ACKNOWLEDGES THAT KROLL MAKES NO REPRESENTATION OR WARRANTY WHATSOEVER RELATING TO THE ACCURACY OR COMPLETENESS OF DATA PROCESSED BY NAVIGATOR OR TRANSMITTED TO OR FROM KROLL. KROLL DISCLAIMS ANY WARRANTY THAT NAVIGATOR WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR-FREE, OR THAT IT SHALL MEET LICENSEE’S NEEDS. Kroll will endeavor to meet the projected timing for updates to Navigator, but makes no guarantee thereof, and shall not have any liability for delays, breakdowns or interruption. Licensee understands that any and all content provided through Navigator is for informational purposes only and not legal, financial or other professional advice.
- Indemnity. Licensee will defend, indemnify, and hold Kroll and its affiliates harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable legal fees and expenses, arising out of or in any way connected with Licensee’s access to or use of Navigator, or Licensee’s breach of this Agreement.
- Limitation of Liability. LICENSEE ACKNOWLEDGES AND AGREES THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF ACCESS TO AND USE OF NAVIGATOR REMAINS WITH LICENSEE. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR DAMAGES FOR LOST PROFITS, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE. IN NO EVENT WILL THE TOTAL LIABILITY OF KROLL IN CONNECTION WITH OR RELATED TO NAVIGATOR EXCEED THE FEES PAID OR PAYABLE TO KROLL HEREUNDER FOR THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH SUCH LIABILITY FIRST AROSE.
- Prohibited Activities. Licensee is specifically prohibited from any use of Navigator, and Licensee agrees not to use or permit others to use Navigator, without limitation, for any of the following: (a) take any action that imposes an unreasonable or disproportionately large load on, or waste of valuable time for, Navigator's infrastructure or resources, including, but not limited to, sending or promoting the distribution of “spam,” “junk mail,” chain letters, or other such unsolicited or unlawful mass e-mailing techniques; (b) any purpose that is unlawful, illegal or prohibited by this Agreement, including, without limitation, the sending, posting, transmitting, displaying, distributing, or knowingly receiving of or searching for any threatening, harassing, libelous, defamatory, obscene, scandalous, inflammatory, sexually oriented, pornographic, or profane material, content or images, or other images, content or messages that might be considered lewd, lascivious, excessively violent or otherwise offensive; (c) disclose to, or share with, any unauthorized third parties the ID's, assigned confirmation numbers and/or passwords, or use the ID's, assigned confirmation numbers and/or passwords for any unauthorized purpose, or otherwise allow or facilitate others to gain access to Kroll's information technology systems, environments, networks, files, data or accounts through the use of the ID's, assigned confirmation numbers and/or passwords; (d) access or attempt to access Kroll's information technology systems, environments, networks, files, data or accounts to which express authorization has not been obtained (including access to data not intended for Licensee), or log into a server or account that Licensee is not authorized to access; (e) attempt to decipher, decompile, disassemble, modify, remove or reverse engineer any of the software or HTML code comprising or in any way making up a part of Navigator; (f) interfere with, disrupt, disable or damage (or attempt to interfere with, disrupt, disable or damage), in an unauthorized manner, the use or operation of Navigator or Kroll's, its affiliated or related entities', equipment or applications, or service to any user, host, or network, including by use of any programs, scripts, commands, viruses, worms, web bugs, harmful code, Trojan horses, other contaminants, or otherwise. This includes “denial of service” attacks, “flooding” of networks, deliberate attempts to overload a service or to burden excessively a service's resources, at-tempts to “crash” a host, and/or modifying or rerouting any content or services provided at Navigator; (g) attempt to circumvent or subvert system or network security (i.e., authentication) mechanisms, or probe the security of any system, network, or account, associated or used in conjunction with Navigator; (h) upload, post, e-mail or otherwise transmit any information, content, or proprietary rights that Licensee does not have a right to transmit under this Agreement, any law or other contractual or fiduciary relation-ships; and/or (i) use any robot, spider, intelligent agent, meta-searching, other automatic device, or manual process to search, monitor or copy Navigator's pages or the content. Kroll reserves the right to report any wrongdoing, if and when it becomes aware of it, to any applicable government or law enforcement agencies. Kroll, at its sole discretion, retains the right to deny access to Navigator to anyone for any reason, including for violation of this Agreement.
Third-Party Provider Addendum:
S&P Global Market Intelligence LLC (“S&P”)
For purposes of interpreting the following, the term “Company” shall be deemed to refer to Kroll, the term “Company Service” shall refer to Navigator, the terms “S&P Services” and “Licensed Data” shall refer to any S&P-provided content contained in Navigator, the term “Customer Agreement” shall refer to the License Agreement between Licensee and Kroll, and the terms “Subscriber” and “Desktop User” shall refer to Licensee.
- 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 Company Service, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
- 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;
- 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;
- Subscriber shall not use or permit anyone to use the S&P Services for any unlawful or unauthorized purpose;
- The S&P Services are being provided for Subscriber’s internal use only and Subscriber is not authorized or permitted to distribute or otherwise furnish such information or software to any third-party without prior written approval of S&P;
- 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;
- S&P may enforce its rights against Subscriber as the third-party beneficiary of the Customer Agreement, even though S&P is not a party to the Customer Agreement;
- Each Desktop User may download the Licensed Data to a desktop/computing device used solely for such Desktop User’s individual use and not for any centralized, interdepartmental or shared use;
- Once downloaded to a Desktop User’s computing device, the Licensed Data must remain on such Desktop User’s computing device and may not be uploaded, copied or transferred to, or stored or managed in, any other desktop/computing device, including that of another Desktop User, or any device, directory, database or other repository that is shared or can be accessed by others (e.g., the download functionality may not be used to populate master security databases); and
- Desktop Users may download the Licensed Data only as a convenience in connection with Desktop Users’ use of the Company Services and not as an alternative to obtaining the S&P Services from and/or pursuant to an agreement with S&P.
The Center for Research in Security Prices (“CRSP®”)
Navigator is not sponsored, endorsed, sold, or promoted by the University of Chicago (“University”) or The Center for Research in Security Prices (“CRSP®”) and neither University nor CRSP makes any representation regarding the Navigator or the CRSP data furnished through the Navigator (the “Content”). Unless otherwise agreed to pursuant to a written agreement with CRSP, all Content is provided for internal information purposes only. Users shall not reproduce, distribute, transmit, publish or otherwise transfer, commercially exploit, reverse engineer, decompile or make any derivative product from the Content. Users shall not use or disseminate the Content in any way which could cause the information so used or disseminated, in CRSP’s sole good faith judgment, to be a source or substitute for a direct subscription to a CRSP data product or to create a secondary product.
Neither the University nor CRSP guarantees the accuracy and/or completeness of the Content. Neither the University nor CRSP makes any warranty, express or implied, as to the results to be obtained by any person or any entity from the use of the Content. Neither the University nor CRSP makes any express or implied warranties, and expressly disclaims all warranties of merchantability or fitness for a particular purpose or use with respect to the Content. Without limiting any of the foregoing, in no event shall the University, CRSP, or its third-party suppliers have any liability for any special, punitive, indirect or consequential damages (including lost profits), even if notified of the possibility of such damages.
For purposes of interpreting the following, the term “Company” shall be deemed to refer to Kroll, the term “Company Service” shall refer to Navigator, the terms “Licensed Data” shall refer to any CRSP-provided content contained in Navigator, the term “Customer Agreement” shall refer to the License Agreement between Kroll customers and Kroll, and the terms “Subscriber” shall refer to Kroll customers.
- Neither Company, CRSP, their affiliates nor any of their suppliers shall have any liability for the accuracy or completeness of the information or software furnished through the Company Service, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
- The Licensed Data is 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 Licensed Data is not a recommendation to buy, sell or hold such investment or security or make any other investment decisions;
- CRSP, their affiliates or their suppliers have exclusive proprietary rights in the Licensed Data and any information and software received in connection therewith;
- Subscriber shall not use or permit anyone to use the Licensed Data for any unlawful or unauthorized purpose;
- The Licensed Data is being provided for Subscriber’s internal use only and Subscriber is not authorized or permitted to distribute or otherwise furnish such information or software to any third-party without prior written approval of CRSP;
- Access to and use of the Licensed Data is subject to termination in the event that any agreement between Company and CRSP terminates for any reason;
- CRSP may enforce its rights against Subscriber as the third-party beneficiary of the Customer Agreement, even though CRSP is not a party to the Customer Agreement;
- Subscriber shall not commercially exploit, reverse engineer, decompile or make any derivative product from the Licensed Data.