General Terms & Conditions
Effective: October 2022
1. THIS AGREEMENT. YOUR ACCESS AND USE OF THE INFORMATION (AS DEFINED HEREIN) IS EXPRESSLY CONDITIONED UPON YOUR ACCEPTANCE OF THESE ONLINE TERMS AND CONDITIONS (THIS “AGREEMENT”). BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT AND BY SUBSCRIBING TO, ACCESSING, AND/OR USING THE INFORMATION IDENTIFIED IN AN ORDER CONFIRMATION (DEFINED BELOW), YOU AND THE ENTITY ON WHOSE BEHALF YOU ARE SUBSCRIBING TO, ACCESSING AND/OR USING THE INFORMATION (COLLECTIVELY, “CLIENT“) AGREE TO THE FOLLOWING TERMS AND CONDITIONS. THE TERM “KOMPANY WEBSITE” MEANS THE KOMPANY WEBSITE AT HTTPS://WWW.KOMPANY.COM OR ANY OTHER WEBSITE AS DESIGNATED BY MOODY’S FROM TIME TO TIME.
2. INFORMATION AND GENERAL LICENSE: THIS AGREEMENT PERTAINS TO CERTAIN “INFORMATION”, WHICH INCLUDES ALL PRODUCTS, SERVICES, SOFTWARE, PUBLICATIONS, REPORTS, DOCUMENTATION, WHITE PAPERS, AND ALL RESEARCH, ANALYSIS, FORECASTS, RATINGS, OPINIONS, MODELS, SECURITY IDENTIFIERS, METHODOLOGIES AND DATA THEREIN, FURNISHED BY 36KOMPANY AG ("MOODY'S") TO CLIENT VIA THE KOMPANY WEBSITE AS IDENTIFIED IN THE APPLICABLE ONLINE ORDER FORM ISSUED BY MOODY’S OR OTHER ONLINE ORDERING DOCUMENTATION OR CONFIRMATION PROVIDED BY MOODY’S TO CLIENT PURSUANT TO THIS AGREMENT (ANY SUCH FORM, DOCUMENTATION OR CONFIRMATION, AN “ORDER CONFIRMATION”). “INFORMATION” ALSO INCLUDES THE CONTENT OF ALL COMMUNICATIONS FROM MOODY’S OR ITS AFFILIATES’ PERSONNEL REGARDING THE INFORMATION. THE INFORMATION, AND THE STRUCTURE, ORGANIZATION AND THE SEARCH AND EXTRACTION MECHANISMS OF THE INFORMATION, ARE PROPRIETARY TO MOODY'S AND/OR THIRD PARTIES FROM WHOM MOODY’S LICENSES DATA THAT IS INCORPORATED INTO THE INFORMATION (“LICENSORS”). THE INFORMATION MAY BE PROTECTED UNDER COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, DATABASE AND OTHER INTELLECTUAL PROPERTY LAWS, AND ARE FURNISHED SOLELY FOR CLIENT'S OWN INTERNAL USE. EXCEPT AS OTHERWISE EXPRESSLY PERMITTED HEREIN OR IN WRITING BY MOODY’S, NO PORTION OF THE INFORMATION MAY BE COPIED, REPRODUCED, REPACKAGED, RETRANSMITTED, SOLD, TRANSFERRED, REDISTRIBUTED, LEASED, RENTED, SUBLICENSED, MODIFIED, ADAPTED, OR STORED FOR SUBSEQUENT USE FOR ANY SUCH PURPOSE, IN WHOLE OR IN PART, IN ANY FORM OR MANNER OR BY ANY MEANS WHATSOEVER, BY CLIENT OR ANY OTHER PERSON OR ENTITY. CLIENT SHALL TAKE ALL REASONABLE STEPS TO PREVENT UNAUTHORIZED USE, ACCESS, COPYING OR DISCLOSURE OF THE INFORMATION.
3. GRANT OF LICENSE AND ORDER CONFIRMATION: Subject to the terms and conditions of this Agreement, Moody’s hereby grants Client a non-exclusive and non-transferable license to use the Information described in the Order Confirmation for Client’s internal business purposes and not for the use or benefit of any third party, only within and subject to the applicable License Parameter and only for the term set forth in Section 8. As used herein, “License Parameter” means the definition and limitation of the Client’s license or permitted scope of use for the relevant product or service, as set forth in Section 15.1 of this Agreement. A License Parameter may consist of number of individual Client users (“Users”), business unit or division, department, business location / premises, or any other applicable use limitation and/or measurement specified in the Order Confirmation. Use of the Information by Client that exceeds the License Parameter is strictly prohibited and Moody’s reserves the right to suspend access to the Information or charge additional fees for such unlicensed usage. Client agrees to be responsible and liable for the compliance of its Users and each licensed Client Affiliate with the terms and conditions of this Agreement and any breach hereof by a User or Client Affiliate, and each licensed Client Affiliate shall be considered within the definition of “Client” for all relevant purposes of this Agreement. Moody’s may also provide Client with custom deliverables, training and/or other related services as part of the Information, which shall be described on the relevant Order Confirmation, along with any fees or special terms applying to such deliverables and services. As used herein, an “Affiliate” of a party means any legal entity which, directly or indirectly, either controls, is controlled by, or is under common control with such party, and where “control“is defined by the direct or indirect ownership of stock or other interests entitled to elect a majority of the board of directors or other governing body of an entity, or the direct or indirect ownership of more than fifty (50) percent of the equity or profits interest in such entity.
4. DISCLAIMERS: Client agrees, on behalf of itself and each User that it permits to use
any of the
(i) any ratings, estimates, forecasts, and/or other opinions contained in the Information are, and will be construed
solely as, statements of opinion and not statements of fact, investment advice or recommendations to purchase, hold
or sell any securities; (ii) any rating, estimate, forecast, or other opinion will be weighed solely as one factor
in any investment decision; and (iii) it will accordingly, with due care, make its own evaluation of each security,
and of each issuer and guarantor of, and each provider of credit support for, each security that it may consider
purchasing, holding or selling. Client agrees, on behalf of itself and each User, that: (i) nothing contained in the
Information shall create any duty of care on the part of Moody’s or any Moody’s Affiliate to Client; (ii) neither
Moody’s nor any Moody’s Affiliate is acting as a financial adviser or other adviser to Client; (iii) no Information
(whether in oral or written form) or statements or other communications supplied by Moody’s or any of its employees,
representatives or agents shall constitute a representation or a warranty, or the provision of investment advice or
any other advice; and (iv) it will not use the name of Moody’s or any of its Affiliates or products to state or
imply any endorsement or recommendation on the part of Moody’s or its Affiliates of any investment, security, loan
or other instrument, or of any activities carried out or undertaken by Client using Moody’s products or services.
NEITHER MOODY’S NOR ANY MOODY’S AFFILIATE SHALL HAVE ANY LIABILITY TO CLIENT (AND MOODY’S AND THE MOODY’S AFFILIATES
EXPRESSLY DISCLAIM ANY LIABILITY) BASED ON OR RELATING TO AN ALLEGATION THAT (A) MOODY’S OR ANY MOODY’S AFFILIATE
OWES A DUTY OF CARE TO CLIENT, OR (B) THAT CLIENT’S USE OF AND/OR ACCESS TO THE INFORMATION, AND/OR MOODY’S OR ANY
MOODY’S AFFILIATE USE, DEVELOPMENT AND/OR LICENSING OF THE INFORMATION, INFRINGES THE INTELLECTUAL PROPERTY RIGHTS
OF ANY THIRD PARTY. Moody’s products are aimed at sophisticated institutional investors and it would be reckless for
retail investors to base any investment decision on the Information. If in doubt Client should contact its financial
or other professional adviser.
THE INFORMATION IS PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, AND MOODY’S AND ITS LICENSORS EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES WITH RESPECT TO THE INFORMATION, EXPRESS OR IMPLIED, AND WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION: (I) ANY WARRANTY AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, OR THE RESULTS TO BE OBTAINED FROM USE OF THE INFORMATION; (II) THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, EVEN IF MOODY’S HAS BEEN INFORMED OF SUCH PURPOSE; AND (III) ANY WARRANTIES ARISING BY IMPLICATION OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE. Under no circumstance shall Moody’s, its Licensors, suppliers, or any of Moody’s Affiliates, directors, officers, employees, representatives or agents (each a “Moody’s Party“and, collectively, the “Moody’s Parties”) have any liability to Client, User, or any other person or entity for any loss, damage or other injury in whole or in part caused by, resulting from or relating to, any error (negligent or otherwise), or any other circumstance or contingency within or outside the control of Moody’s or any of the Moody’s Parties or Licensors, in connection with the procurement, collection, compilation, analysis, interpretation, communication, publication or delivery of any of the Information, even if a Moody’s Party shall have been advised in advance of the possibility of such damages. Notwithstanding the foregoing, Client expressly agrees that the following limitation of remedies is an essential part of the consideration bargained for under this Agreement. The entire liability of the Moody’s Parties, and Client's exclusive remedy, for any errors or omissions in the Information is for Moody’s to provide Client, if possible using commercially reasonable efforts, with corrected Information.
5. LIMITATION OF LIABILITY: NONE OF THE MOODY’S PARTIES OR CLIENT SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, OR FOR ANY LOSS OF DATA OR USE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE INFORMATION, EVEN IF ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF THE MOODY’S PARTIES OR THE AGGREGATE LIABILITY OF CLIENT ARISING FROM THIS AGREEMENT OR RELATED TO THE INFORMATION EXCEED THE AGGREGATE FEES AND CHARGES PAID OR PAYABLE BY CLIENT TO MOODY’S UNDER THE RELEVANT ORDER CONFIRMATION DURING THE PRECEDING TWELVE MONTH PERIOD. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY REGARDLESS OF HOW SUCH DAMAGES OR LOSSES ARISE, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE, TORT OR OTHERWISE, REGARDLESS OF THE CAUSE OF THE LOSS OR INJURY AND REGARDLESS OF THE LEGAL RIGHT CLAIMED TO HAVE BEEN VIOLATED. NOTWITHSTANDING THE FOREGOING, NOTHING IN THIS SECTION 5 SHALL LIMIT OR EXCLUDE: (I) CLIENT’S OBLIGATIONS TO PAY ANY FEES DUE TO ANY MOODY’S PARTY HEREUNDER; (II) CLIENT’S LIABILITY FOR DAMAGES RESULTING FROM THE BREACH OF ANY LICENSE GRANTED IN THIS AGREEMENT OR THE APPLICABLE ORDER CONFIRMATION, OR FOR ANY OTHER VIOLATION OF A MOODY’S PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) CLIENT’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT; OR (IV) A PARTY’S LIABILITY WHICH ARISES OUT OF SUCH PARTY’S FRAUD OR WILFUL MISCONDUCT OR WHICH CANNOT OTHERWISE BE LIMITED OR EXCLUDED UNDER APPLICABLE LAW.
6. FEES: Client shall pay to Moody’s the fees as are set forth on the Order Confirmation, which fees shall be invoiced by Moody’s and payable by Client annually in advance or upon such other payment schedule specified in the Order Confirmation, provided that Moody’s may increase the fees for any subscription service commencing on the next Renewal Term (as defined in Section 8) by providing written notice to Client at least sixty (60) days prior to the commencement of such Renewal Term. Moody’s may suspend all services hereunder in the event of any non-payment of fees. All fees are exclusive of taxes, if any. Client shall be responsible for any federal, state, local, value-added, service, withholding or similar taxes, if applicable, that are or may be imposed on any transaction hereunder (excluding any taxes based on Moody’s net income).
7. THIRD PARTY MATERIALS: Client agrees that the Information may contain third party materials provided by Licensors, and in this respect Moody’s relies upon the Licensors in providing such Information to Client. Accordingly, Moody’s duty to deliver such Information is subject in all respects to the timely supply of the relevant materials by such Licensors. Client agrees that availability of such third party materials shall cease automatically, without liability on the part of Moody’s or the Licensors, upon termination of Moody’s access to the materials for any reason. Client further agrees to comply with any additional terms or restrictions regarding use of the third party materials which the relevant Licensor and/or Moody’s may otherwise specify by notice to Client from time to time, including by way of a notification posted within the relevant service. Moody’s may from time to time and in its sole discretion add to, replace or terminate any of its Licensors or any part of the Information or its functionality, or replace the Information with successor products in the ordinary course of its business. Client agrees that the third party materials: (i) shall only be used for Client’s internal use in connection with its use of the Information; and (ii) shall not be used to create a data file, or develop, verify, correct or complete any other database (including, without limitation, a security master database). In the event Client has an appropriate agreement with a Licensor covering Client’s use of the materials supplied by such Licensor (the “Separate Agreement”), Client’s use of such materials shall be governed by the terms of the Separate Agreement for as long as it remains in effect, and nothing in this Agreement shall limit or affect Client’s rights under the Separate Agreement.
8. TERM AND TERMINATION: The term of each subscription and/or order set forth in an Order Confirmation commences as of the effective date set forth in the Order Confirmation and shall continue for an initial term of one year or such other term as specified in the Order Confirmation (“Initial Term”). Unless otherwise stated on the Order Confirmation, the subscription and/or order set forth in an Order Confirmation shall automatically renew for successive terms of thirty days each (each, a “Renewal Term”) unless either party has notified the other in writing at least thirty (30) days prior to the expiration of the then-current Initial Term or Renewal Term, as applicable, that the subscription and/or order set forth in the Order Confirmation shall not be renewed. Either party may terminate the subscription and/or order set forth in the Order Confirmation if the other party: (a) breaches any material term or condition of this Agreement or Order Confirmation and, except in the case of a breach of Section 10 or a material breach constituting a violation of the intellectual property rights of any Moody’s Party, fails to remedy the breach within thirty (30) days after being given written notice thereof; (b) ceases to function as a going concern or to conduct operations in the normal course of business; or (c) has a petition or similar action filed by or against it under any applicable bankruptcy or insolvency laws which petition or action has not been dismissed or set aside within sixty (60) days of filing. Moody’s may terminate any subscription and/or order set forth in an Order Confirmation hereunder in the event of any legal or regulatory change that, in Moody’s judgment, imposes new and additional cost or liability risk upon Moody’s and/or Moody’s Affiliates. In the case of a termination by Moody’s pursuant to the preceding sentence, or a termination by Client for Moody’s uncured material breach under this Section 8, Client shall be entitled to a refund of any fees prepaid to Moody’s for the affected Information in respect of the period after termination. At the termination or expiration of any subscription and/or order set forth in an Order Confirmation for any reason, Client shall cease all use of the Information under such Order Confirmation and promptly purge all Information provided under such Order Confirmation that has been stored in its computer systems, databases, or any data storage facilities owned or under its control, provided that Client shall have the right to retain: portions of the Information that constitute electronic data that is generally inaccessible or that has been stored on Client’s backup systems in the ordinary course of business as part of standard backup procedures, but only to the extent that such data is only accessible by person(s) whose function is primarily information technology, and provided that such person(s) only have limited access to such data to enable the performance of such information technology duties. In addition, Client may retain one copy of any such data from the Information as is necessary to comply with applicable audit, legal or regulatory requirements, professional obligations and standards and internal document retention policies, provided any such data may only be accessed for such purposes and may not be used for any other purpose whatsoever (including, but not limited to, any commercial purpose). Upon expiration or termination of this Agreement for any reason, all provisions but Sections 3, 101 and 15.10 shall survive.
9. GOVERNING LAW AND ENTIRE AGREEMENT: This Agreement shall be governed by, and construed in accordance with, the laws of England and Wales, without reference to its conflict of law principles and without regard to the U.N. Convention on Contracts for the International Sale of Goods. The parties hereby consent to the exclusive jurisdiction of the English courts in any action arising out of or relating to this Agreement, and agree that any action arising out of or relating to this Agreement shall be maintained in the same jurisdiction. This Agreement contains the entire and only agreement between the parties relating to the subject matter hereof, and supersede all prior or collateral representations, warranties, promises or conditions, if any, in connection therewith. No amendment to, or waiver of, any term of this Agreement shall be binding upon either party hereto unless reduced to writing and signed by an authorized officer of the party against which it is asserted. For the avoidance of doubt, this Agreement shall not be modified by the terms of a purchase order or other document issued by Client relating to the Information or purporting to modify the terms hereof.
10. SANCTIONS COMPLIANCE: Client represents and warrants to Moody’s that it is not: (i) subject to asset freeze sanctions, such as by inclusion on the list of Specially Designated Nationals and Blocked Persons (“SDN List”) maintained by the U.S. Office of Foreign Assets Control, or the consolidated lists of asset freeze targets published by the UN, EU, or UK, nor is it owned or controlled by any such person(s) whether individually or collectively; (ii) organized, headquartered or, if a natural person, ordinarily resident, in a country or territory subject to comprehensive geographic sanctions imposed by the U.S. Government (currently Crimea, Cuba, North Korea, Iran, and Syria) or owned or controlled by any such person; or (iii) subject to restrictions regarding the receipt of U.S.-origin items by virtue of being on the Denied Persons List or the Entity List maintained by the U.S. Commerce Department. Additionally, the Client warrants that (a) it will not supply Moody’s products or services to any person who meets the criteria set forth in (i), (ii), or (iii), or use them for the benefit of, or for any transaction involving, any person who meets the criteria set forth in (i) or (ii) (hereinafter, collectively “Prohibited Entities”), and (b) it shall not supply to Moody’s any data related to any Prohibited Entity. For the avoidance of doubt, the foregoing prohibitions apply notwithstanding any terms in any Order Confirmation, addendum or other writing, whether express or implied. Accordingly, even if the scope of a license granted in this Agreement and/or any Order Confirmation, addendum or any other writing would otherwise include Prohibited Entities, the prohibitions herein shall prevail. For the purposes of this provision, “person” means any natural or legal person; “owned” means an equity interest of 50 percent or greater, whether held directly or indirectly; and “controlled” means the right or ability to dictate the decisions, actions, and/or policies of an entity or its management. Each party agrees that it will notify the other party if it learns that any representation made herein is no longer accurate. If the Client is in breach of this provision, or if Moody’s determines that it is prohibited under any applicable law or regulation from providing products or services under this Agreement, in addition to any other rights or remedies it may have, Moody’s may immediately terminate or suspend performance under the Agreement, Order Confirmation, addenda and related documentation.
12. REGULATORY TERMS: The receipt and use of the Information is subject to additional
legal and regulatory
requirements as set out below in this section (“Regulatory Terms”). The Regulatory
Terms may be amended by
Moody’s upon thirty (30) days’ notice to Client as a result of any new or amended legal, regulatory or other
requirements which, in Moody’s sole discretion, affect the receipt and use of the Information. If any such
change has a material adverse effect on Client’s use of the Information, Client may terminate the relevant order
or subscription set forth in Order Confirmation at any time during such thirty (30) day notice period by
providing written notice to Moody’s, in which case Client shall be entitled to a refund of any applicable fees
under the Order Confirmation prepaid to Moody’s in respect of the period after termination.
Australia. To the extent the Information is received or used in Australia, the following Regulatory Terms shall apply:
Moody's Analytics Australia Pty Ltd [ABN 94 105 136 972] (“MA Australia”), having its registered office at Level 10, 1 O’Connell St., Sydney, NSW 2000 Australia, is the holder of Australian Financial Services License No. 383569 (“AFSL”) issued pursuant to the Corporations Act of 2001 (Australia). The Information provided to Client under this Agreement that consists of financial product advice (“Advice Information”) will be arranged by MA Australia under its AFSL and provided by Moody’s to Client. Moody’s and MA Australia have entered into an arrangement under which MA Australia has assumed responsibility for any acts or omissions by Moody’s in relation to any Advice Information provided hereunder by Moody’s. Client hereby represents and warrants that it is a “Wholesale Client” (as defined in Section 761G of the Corporations Act of 2001 (Australia)), and Moody’s provision of the Advice Information to Client is expressly conditioned upon the continuing accuracy of such representation and warranty throughout the term of the Agreement. In addition, Client acknowledges that the Advice Information is not intended for use by and shall not be distributed to any person in Australia other than a Wholesale Client, and, without prejudice to any other restrictions on distribution set forth herein, Client covenants and agrees that it will not distribute any Advice Information, including but not limited to any MIS Ratings, Expected Default Frequency data and/or related financial product research to a person in Australia other than a Wholesale Client.
Japan. The following Regulatory Terms shall apply to the extent the Information includes data on credit ratings assigned by certain Japanese affiliates of MIS as set out below:
Moody's Japan K.K. (“MJKK”) is a wholly-owned credit rating agency subsidiary of Moody's Group Japan G.K., which is wholly-owned by Moody’s Overseas Holdings Inc., a wholly-owned subsidiary of Moody’s Corporation. Moody’s SF Japan K.K. (“MSFJ”) is a wholly-owned credit rating agency subsidiary of MJKK. MSFJ is not a Nationally Recognized Statistical Rating Organization (“NRSRO”). Therefore, credit ratings assigned by MSFJ are Non-NRSRO Credit Ratings. Non-NRSRO Credit Ratings are assigned by an entity that is not a NRSRO and, consequently, the rated obligation will not qualify for certain types of treatment under U.S. laws. MJKK and MSFJ are credit rating agencies registered with the Japan Financial Services Agency and their registration numbers are FSA Commissioner (Ratings) No. 2 and 3 respectively. MJKK or MSFJ (as applicable) hereby disclose that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MJKK or MSFJ (as applicable) have, prior to assignment of any credit rating, agreed to pay to MJKK or MSFJ (as applicable) for ratings opinions and services rendered by it fees ranging from JPY100,000 to approximately JPY550,000,000. MJKK and MSFJ also maintain policies and procedures to address Japanese regulatory requirements.
Ratings Disclosures. The following Regulatory Terms shall apply to Information that includes MIS credit rating data or that include MIS rating scorecards or models:
MIS hereby discloses that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MIS have, prior to assignment of any credit rating, agreed to pay to MIS for the credit rating opinions and services rendered by it fees ranging from $1,000 to $5,000,000. Moody's Corporation (MCO) and its wholly-owned credit rating agency subsidiary MIS also maintain policies and procedures to address the independence of MIS's credit ratings and credit rating processes. MCO annually publishes on its website at www.moodys.com disclosures regarding certain affiliations that may exist between directors of MCO and rated entities, and between entities who hold credit ratings from MIS and have also publicly reported to the SEC an ownership interest in MCO of more than five (5) percent. Although certain of the products licensed hereunder are designed to predict what an MIS rating would be based on certain assumptions, financial and portfolio data and/or other variable inputs, the output from such products may or may not reflect a MIS rating actually assigned to such security or issuer, whether or not any of the assumptions or other data are correct, or the ultimate events related thereto differ materially from the factors used as inputs to such products. Nothing in this Agreement will compel MIS to assign, as a result of any Information, a particular rating or any revision thereof to the Client or any securities, debt or other instruments. Client understands that MIS may at any time refuse to issue any rating, or, if already issued, revise or withdraw such rating. Client further agrees not to represent, imply or otherwise suggest that any output from such products constitutes or affects an MIS rating, rating action, or opinion.
13. CHANGES IN AGREEMENT: MOODY’S RESERVES THE RIGHT TO CHANGE THE TERMS OF THIS AGREEMENT UPON NOTICE, WHICH MAY BE GIVEN BY MOODY’S POSTING SUCH CHANGE (OR REVISED TERMS OF AGREEMENT) ON THE SITE, BY E-MAIL, OR BY ANY OTHER REASONABLE WAY. IF A CHANGE IS NOTIFIED BY A POSTING ON THE SITE, IT SHALL BE DEEMED TO TAKE EFFECT WHEN POSTED; IF A CHANGE IS NOTIFIED BY E-MAIL, IT SHALL BE DEEMED TO TAKE EFFECT WHEN THE E-MAIL IS SENT; AND IF A CHANGE IS NOTIFIED IN ANY OTHER WAY, IT SHALL BE DEEMED TO TAKE EFFECT WHEN THE RELEVANT NOTICE IS SENT OR ISSUED BY OR ON BEHALF OF MOODY’S. CLIENT’S CONTINUED USE OF THE INFORMATION FOLLOWING NOTICE OF SUCH CHANGES WILL BE CONCLUSIVELY DEEMED CLIENT’S ACCEPTANCE OF ANY CHANGES TO THIS AGREEMENT. CLIENT AGREES THAT NOTICE OF CHANGES TO THIS AGREEMENT ON THE SITE, DELIVERED BY EMAIL, OR PROVIDED IN OTHER REASONABLE WAY CONSTITUTES REASONABLE AND SUFFICIENT NOTICE.
14. NOTICES AND LANGUAGES:
a. Any notice to a party under this Agreement shall be in writing in the English language, signed by or on behalf of the party giving it and shall be delivered personally, by pre-paid first class post, (or airmail, if abroad), prepaid recorded delivery (or international equivalent) to the address of the party appearing on the Order Confirmation, or as otherwise notified in writing from time to time. A notice shall be deemed to have been served at the time of delivery, if delivered personally, or forty-eight (48) hours after posting for an address in the USA and five (5) working days after posting for any other address.
b. Notwithstanding any translation of the Agreement, the English language shall exclusively control the interpretation of the Agreement and all other writings between the parties.
15. SPECIAL TERMS
15.1 The Information shall be used by Client in assessing and managing risk with respect to Regulatory Compliance Obligations. The term “Regulatory Compliance Obligations” means legal and regulatory compliance obligations with respect to money laundering, fraud, corruption, terrorism, organized crime, regulatory and suspicious activity reporting, sanctions, embargoes, and other regulatory risks and associated obligations.
15.2 Notwithstanding any other term, the Information may not under any circumstances be used (i) to establish a consumer's eligibility for credit, insurance, employment, government benefits or licenses or any other transaction initiated by a consumer; (ii) to collect on an account; (iii) to determine whether a consumer continues to meet the terms of an account; or (iv) if the Information is to be used within the United States or for impacts within the United States, then for any other use that would be classified as a ‘consumer report’ or a ‘permissible purpose’ for the purposes of the Fair Credit Reporting Act, 15 U.S.C. §§ 1681 et seq. Client shall assume full liability for any violation of this provision and shall indemnify and hold harmless the Moody’s Parties for any third party claims against the Moody’s Parties arising out of Client or a Client’s Affiliate’s breach of this provision.
15.3 Each User shall access and use the Information hereunder via a username and password. The Information and associated accesses described in the preceding sentence may only be used on behalf of the Client. Client will cause any individuals who are authorized by Client to access and use the Information (“Authorized Users”) to comply with all terms and conditions of this Agreement and Order Confirmation as if they were a direct party thereto, and will remain responsible for any actions or omission of the Authorized User (including, but not limited to, any breach of such terms and conditions by its Authorized Users). Client shall not (and shall cause each User and Authorized User to not) disclose or share their user-ID and password to any individual or entity outside of the Client. If Moody’s is made aware of any Client utilization of the Information that may be in violation of applicable law or third party rights, Moody’s has the right, but not the obligation, to require Client to cease such use, or to disable Client’s access to the Information. The kompany Website is available 24/7, except in the case of maintenance work. However, the availability of Information and/or Content depends and is based on the official operating hours of the respective third-party databases and services.
15.4 Except as expressly specified herein, Client will not (i) resell, rent, lease, sublicense or distribute the Information, or use it to render time sharing or service bureau services, or otherwise use the Information to provide services for or on behalf of third parties; (ii) use the Information and/or products hereunder to store or transmit any malicious code or any material that is infringing, libelous, unlawful or otherwise injurious or that would violate a person’s privacy rights; (iii) scan or otherwise test the kompany Website, the Information or any other technology assets owned by Moody’s or its affiliates for vulnerability or penetration; (iv) remove any copyright, trademark, or other proprietary notices contained in the Information; or (v) utilize any means to circumvent login, password, and other protections put in place to restrict access to certain parts of the Information.
15.5 “Content” means any of the Information listed at https://www.kompany.com/i/support/price that is ordered by the Client and accepted by Moody’s in accordance with the procedures set forth in this Section 15.5. From time to time during the Term, by submitting an order via the kompany Website, the Client may request Moody’s to furnish to Client certain Content and, if Moody’s accepts such request, in consideration thereof, Client shall pay to Moody’s the corresponding fees listed at https://www.kompany.com/i/support/price or as stated in an Order Confirmation, as such fees can be amended from time to time by Moody’s in accordance with this Section 15.5. Content will be delivered to Client via the kompany Website. A list of Content currently offered by Moody’s is set forth at https://www.kompany.com/i/support/price. Moody’s reserves the right to amend the fees for Content and discontinue the provision of any Content from time to time with immediate effect by updating the corresponding fees for Content on the kompany Website or removing any Content from the kompany Website.
15.6 The Client shall pay for the access and/or use of the Information and/or Content in accordance with the charges set out on the kompany Website and/or any Order Confirmation.) Moody’s offers different plan types, each one bearing a specific fee in accordance with the services and/or products offered, as detailed on the kompany Website The plan fee is displayed at the time of the order and on the recurring invoices. The respective charges are due at the beginning of the plan period (e.g., monthly or yearly) and have to be paid in full (without offset or deduction for any fees and taxes, including banking/transfer fees or any withholding tax, or customs duties). Costs related to the orders of Information during the period will typically be invoiced monthly, however, Moody’s reserves the right to invoice at any time. Individual purchases of Information without a plan are not possible.
15.7 “Open Source Software” means individual software components that are provided with the Information for which the source code is made generally available to the public, and that are licensed under the terms of various published open source software license agreements or copyright notices accompanying such software components that permit the free redistribution and modification of the licensed software components. Client agrees and acknowledges that Open Source Software may be included or provided in connection with the Information. Any such Open Source Software is licensed pursuant to the original license governing such Open Source Software, which licenses are identified in and provided with the materials accompanying the relevant Information (including any “license,” “copyright”, “about,” “readme” or similar files contained in the Information). Notwithstanding anything to the contrary in this Agreement, all Open Source Software is provided by Moody’s on an “AS IS” basis and Moody’s disclaims all warranties with regard to the Open Source Software including, without limitation, all implied warranties of merchantability, non-infringement, and fitness for a particular purpose.
15.8 Invoices by Moody’s will be issued in electronic form (PDF) and shall be due and payable by Client upon receipt. Invoices are past due if not paid within 1 calendar day from the date of invoice. Late payments will be subject to interest of the maximum rate allowed by applicable law. The invoiced Fees shall be paid in full by Client (without offset or deduction for any fees, including banking/transfer fees, or customs duties). Moody’s shall have the right to increase any of its fees set forth hereunder with immediate effect in case third-party providers and/or its Licensors increase their prices which impacts the Information and/or Content, especially with respect to government fees charged to obtain the requested Information and/or Content (“Transitory Item”). Hence, Moody’s reserves the right to change the fees hereunder with respect to Transitory Items at any time. Moody’s will inform the Client about such changes as soon as reasonably possible.
15.9 Moody’s does not and cannot control the flow of information to and from the kompany Website and the performance of services provided by third parties (e.g. internet, PEP and sanctions screening providers, credit reference agencies, translation services). For this reason, Moody’s provides no warranty that use of third-party products and/or services will be uninterrupted or error free. In the event that Moody’s is unable to access Information or Content from a third-party, necessary to deliver such products or services, Moody’s will not be liable for any interruption in such products or services.
15.10 Client shall indemnify, defend, and hold harmless Moody’s, its Affiliates, successors and assigns, and each of their respective officers, directors, employees, shareholders, legal representatives, and agents (the “Moody’s Indemnified Parties”), from and against any damages, liabilities, costs and expenses (including reasonable attorneys’ and professionals’ fees and court costs) arising out of any third-party claim based on or arising out of Client’s or its Users’ access to or use of the Information, or the use or dissemination of any Information; provided, however, that (a) Moody’s shall have promptly provided Client with written notice thereof and reasonable cooperation, information, and assistance in connection therewith (except that Moody’s failure to do so will not relieve Client of its obligations under this Section 15.10 except to the extent that Client is materially prejudiced by such failure), and (b) Client shall have sole control and authority with respect to the defense, settlement, or compromise thereof; provided that Moody’s reasonable consent to any such settlement or compromise shall be required unless it includes a full release of liability for all the Moody’s Indemnified Parties and does not purport to impose any objections on any such Moody’s Indemnified Party. Moody’s shall be entitled, at its own expense, to participate in the defense of any claim subject to this Section 15.10 through counsel of its own choosing, and Client shall provide Moody’s with reasonable cooperation and assistance in such defense.
15.11 If Client receives any complaint, notice or communication (including from an individual, a regulator or law enforcement agency) which relates directly or indirectly to the Information, any personal data provided in the Information, or to either party’s legal compliance, including but not limited to applicable privacy laws or the parties’ privacy policies, it shall immediately notify Moody’s and it shall provide Moody’s with full co-operation and assistance in relation to any such complaint, notice or communication.
15.12 Client hereby authorizes Moody’s to collect, compile and use any information collected in the provision and/or delivery of the Information (including, but not limited to, any electronic data and information submitted by or for Client to Moody’s) for the purpose of providing the Information to Client, developing, testing and improving Moody’s and/or its Affiliates’ products and services, analyzing, and reporting the effectiveness of, and any trends in, corporate ethics and compliance programs according to industry, company size, country, geographic region or other relevant classification, and/or for other uses as Moody’s may decide.
15.13. In addition to any restrictions contained in this Agreement, Client shall not, for any internal or external purpose: (i) obscure, alter, remove or delete any copyright or other proprietary notices or disclosures contained in the Information, (ii) modify, create derivatives of, export, repackage, disseminate, broadcast, reproduce, license, transfer, sell or re-sell (directly or indirectly), mirror, frame, “deep link”, “scrape” or data mine any Information, without Moody’s prior written consent, (iii) use the Information to develop, improve, train or retrain any software program or database, including, but not limited to, for any artificial intelligence, machine learning or natural language processing software, algorithm, methodology and/or model, (iv) access or use the Information for any purpose by means of any automated program, expert system, electronic agent “bot,” “spider” or similar tool, or (v) post any Information to forums, newsgroups, list serves, mailing lists, electronic bulletin boards, or other websites.