Licensing for
ETP Directory® Data Set
USER AGREEMENT
READ CAREFULLY: THIS ETP RESOURCES PRODUCTS USER AGREEMENT (THIS “AGREEMENT”) DESCRIBES THE TERMS ON WHICH ETP RESOURCES, LLC, AN OHIO LIMITED LIABILITY COMPANY (“ETP RESOURCES”) OFFERS YOU (“USER”) ACCESS TO AND USE OF CERTAIN DATA, COMPILLATIONS, REPORTS AND OTHER PROPRIETARY MATERIALS AND INFORMATION DEVELOPED AND DISTRIBUTED BY ETP RESOURCES PERTAINING TO U.S. REGISTERED SECURITIES (THE “ETP RESOURCES PRODUCTS”). THE ETP RESOURCES PRODUCTS ARE OFFERED TO USER ONLY UPON THE CONDITION THAT USER ACCEPTS ALL OF THE TERMS CONTAINED IN THIS AGREEMENT.
BY SELECTING THE “I ACCEPT” BUTTON AT THE END OF THIS AGREEMENT OR BY ACCESSING OR USING ALL OR ANY PORTION OF THE ETP RESOURCES PRODUCTS YOU AGREE TO ENTER INTO THIS AGREEMENT. A CONTRACT IS THEN FORMED BETWEEN ETP RESOURCES AND USER.
IF YOU DO NOT AGREE OR DO NOT WISH TO BIND YOURSELF OR THE ENTITY YOU REPRESENT TO THE TERMS OF THIS AGREEMENT: (A) DO NOT ACCESS OR USE THE ETP RESOURCES PRODUCTS; AND (B) SELECT THE “CANCEL” LINK IN THE PAYMENT DIALOGUE TO CANCEL YOUR TRANSACTION.
COPYING, DISPLAY OR USE OF THE ETP RESOURCES PRODUCTS EXCEPT AS PERMITTED BY THIS AGREEMENT IS UNAUTHORIZED AND CONSTITUTES A MATERIAL BREACH OF THIS AGREEMENT AND AN INFRINGEMENT OF THE COPYRIGHT AND OTHER INTELLECTUAL PROPERTY RIGHTS IN THE ETP RESOURCES PRODUCTS. IF YOU COPY OR USE ALL OR ANY PORTION OF THE ETP RESOURCES PRODUCTS WITHOUT ENTERING INTO THIS AGREEMENT OR OTHERWISE OBTAINING WRITTEN PERMISSION OF ETP RESOURCES, YOU ARE VIOLATING COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. IN SUCH CASE, YOU MAY BE LIABLE TO ETP RESOURCES FOR DAMAGES, AND YOU MAY BE SUBJECT TO STATE AND FEDERAL CIVIL AND CRIMINAL SANCTIONS.
THIS AGREEMENT GOVERNS USER’S ACCESS TO RECEIVE AND USE THE ETP RESOURCES PRODUCTS. THIS AGREEMENT SETS FORTH THE SOLE TERMS AND CONDITIONS UNDER WHICH USER MAY USE THE ETP RESOURCES PRODUCTS AND CONSTITUTES A BINDING LEGAL AGREEMENT BY AND BETWEEN ETP RESOURCES AND USER. (THE PARTIES TO THIS AGREEMENT ARE SOMETIMES REFERRED TO HEREIN INDIVIDUALLY AS A “PARTY” AND COLLECTIVELY AS THE “PARTIES”).
I. Delivery of ETP Resources Products. Subject to all terms and conditions of this Agreement, ETP Resources shall deliver the requested ETP Resources Products to User in exchange for the user fee described in Section 4. THE ETP RESOURCES PRODUCTS ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND DO NOT CONSTITUTE LEGAL, ACCOUNTING, INVESTMENT ADVISORY OR OTHER FINANCIAL ADVICE. USER SHOULD OBTAIN WHATEVER PROFESSIONAL ADVICE USER DEEMS NECESSARY OR DESIRABLE FOR USE OF THE ETP RESOURCES PRODUCTS. User acknowledges that, notwithstanding any agreement, ETP Resources may, in its discretion, discontinue disseminating the ETP Resources Products or change or alter the composition and substance of one or more compilations or reports (or subsets thereof), and the method of delivery of the ETP Resources Products. User acknowledges and agrees that ETP RESOURCES reserves the right to disapprove any User for any reason or no reason and to reject any User’s application for the ETP Resources Products on account of breach of User’s duties hereunder.
2. User’s Use of ETP Resources Products. User’s use of the ETP Resources Products shall be governed by the parameters set forth in this Section 2 (“Use Parameters”).
(a) Use Parameters. ETP Resources and User have agreed in the transaction protocol accompanying this Agreement upon one or more of the following Use Parameters pertaining to User’s use of the ETP Resources Products:
i. Individual-User License. An individual user license is granted to a single, individual User who is a natural person and not a business entity. An individual user license grants User (and only User) the right and license to use the ETP Resources Products for User’s own internal business activities and not to display the ETP Resources Products in any form other than to facilitate the individual User’s internal business activities. (The term “for User’s own internal business activities” means for User’s (a) analysis, for its own account or for the account of its customers, (b) evaluating, for its own internal business decisions, or (c) for providing advice to its customers, with respect to the design and strategy characteristics, market and other features, regulatory filings and other information pertaining to U.S. registered securities).
ii. Public Internet Display License. A public internet display license grants an individual, organization or business entity the right to display ETP Resources Products externally (to non-employees) in un-altered, display form only, through public interconnected computer networks (such as the world wide web).
iii. Enterprise License (Internal Display). An enterprise license with internal display rights granted to a corporation, limited liability company or other business entity, permits such enterprise User to use the ETP Resources Products solely for such User’s own internal business activities, for viewing by User’s employees.
iv. Enterprise License (External Display). An enterprise license with external display rights granted to a corporation, limited liability company or other business entity, permits such enterprise User to use the ETP Resources Products for such User’s own internal business activities, for viewing by User’s employees, and for viewing by third parties who are not User’s employees.
v Media Publication License. A media publication license permits a media organization to display ETP Resources Products to the public in unaltered, display form only, in such media organization’s specified customary distribution channels, such as newspaper, radio, television or similar information services, provided that electronic storage and/or processing of ETP Resources Products by the recipient is prevented, excluded and/or expressly forbidden without prior permission from ETP Resources.
b. Grant and Acceptance of License to Use ETP Resources Products. ETP Resources hereby grants User, subject to the terms and conditions set forth herein, a limited, non-exclusive, non-transferrable (except as expressly set forth in Section 8(a)) license to receive ETP Resources Products and to use ETP Resources Products in accordance with the applicable Use Parameters. User accepts the terms and conditions of this Agreement and accepts full responsibility for performance by all of its employees and third parties to which access and viewing of ETP Resources Products is permitted hereunder (if any). User shall cause all such employees and third parties to comply with the terms and conditions of this Agreement.
c. Limitations. User agrees (i) not to format, display or alter the ETP Resources Products or any other information or data received through and from the ETP Resources Products in violation of this Agreement; (ii) not to communicate or otherwise furnish, or permit to be communicated or otherwise furnished, the ETP Resources Products, in any format, to any party or other than that designated in the applicable Use Parameters; (iii) not to affect materially the integrity of the ETP Resources Products; (iv) not to alter the ETP Resources Products in any manner that adversely affects its accuracy or integrity; (v) not to render the ETP Resources Products or any information contained therein or comprised thereof inaccurate, unfair, uninformative, fictitious, misleading or discriminatory. User will abide by any other limitations on such use that ETP Resources may specify from time to time. If the applicable Use Parameters permit individual use or internal display (without external display rights), User will use its best efforts to insure that its partners, officers, directors, employees and agents maintain sole control and physical possession of, and sole access to, ETP Resources Products received through Devices in User's possession or control. “Devices” means any equipment, fixed or portable, that receives accesses or displays ETP Resources Products in visible, audible or other comprehensible form. If User becomes aware of any unauthorized use of ETP Resources Products by any person who receives ETP Resources Products from User, User shall notify ETP Resources immediately of such use.
d. No Unauthorized Dissemination. User will use its best efforts to ensure that no unauthorized dissemination of ETP Resources Products is permitted by User or any person authorized to view the ETP Resources Products on account of User’s rights hereunder.
3. Proprietary Rights. User acknowledges and agrees as follows with respect to the ETP Resources Products:
a. Exclusive ETP Resources Rights. ETP Resources has exclusive and valuable property rights in and to the ETP Resources Products, that the ETP Resources Products constitute valuable confidential information, trade secrets and/or proprietary rights of ETP Resources, not within the public domain, that the ETP Resources Products shall remain valuable confidential information, trade secrets and/or proprietary rights of ETP Resources, and that, but for this Agreement, User would have no rights or access to the ETP Resources Products.
b. Unauthorized Disclosure. Unauthorized disclosure of all or any part of the ETP Resources Products, or any breach or threatened breach of any other User covenants or agreements contained herein, would cause irreparable injury to ETP Resources for which money damages would be an inadequate remedy. User therefore acknowledges and agrees that ETP Resources shall be entitled to specific performance and injunctive and other equitable relief from the breach or threatened breach of any provision, requirement or covenant of User set forth in this Agreement (including, without limitation, any unauthorized disclosure or threatened disclosure of the ETP Resources Products) in addition to, and not in limitation of, any other legal or equitable remedies which may be available to ETP Resources hereunder.
c. Security. User shall take reasonable security precautions to prevent unauthorized individuals or entities from gaining access to any of the ETP Resources Products via User’s method and system for receiving, transmitting or disseminating electronic information. User shall comply with all reasonable security specifications or requirements of ETP Resources in order to prevent the ETP Resources Products and all information comprising the ETP Resources Products from being improperly used or accessed or from being improperly taken. User shall notify ETP Resources promptly upon any breach in security procedures related to the ETP Resources Products or information comprising the ETP Resources Products of which it becomes aware.
d. Inspection and Audit. ETP Resources may have access, on reasonable notice to User, during User’s regular business hours, to observe the use made by User and User’s employees (if any under applicable use parameters) of the ETP Resources Products hereunder and to examine and inspect any Devices, attachments or apparatuses owned or controlled by User and/or User’s employees in connection with User’s receipt and use of the ETP Resources Products hereunder. If such audit results in ETP Resources determining that User has engaged in unauthorized use and/or distribution of the ETP Resources Products, User will immediately on notice of such results, discontinue such unauthorized use and/or distribution and pay ETP Resources compensation for any applicable user fees associated with such unauthorized use and/or distribution, pursuant to ETP Resources’ then-applicable fee schedule, together with interest at the rate of 1.5% per month on the outstanding balance, or the maximum rate permitted by law, whichever is higher (the “Default Interest Rate”).
e. ETP Resources Intellectual Property Rights. User acknowledges and agrees that ETP Resources has proprietary rights in certain names, including but not limited to the names and trademarks of ETP RESOURCES™, ETP DIRECTORY® and ETP TAXONOMY®. User shall not use any of ETP Resources’ names, trademarks or service marks (collectively, the “ETP Resources Marks”) in any way that would infringe upon such ETP Resources Marks and shall not use the ETP Resources Marks in advertising or marketing materials except with ETP Resources’ prior written consent. User further acknowledges that the ETP Resources Products, the ETP Resources internet website and related creative works (the “ETP Resources Creative Works”) are protected by state and federal copyright laws. User shall not use the ETP Resources Creative Works or the ETP Resources Marks in any way that would infringe upon any applicable trademark, copyright, trade secrets or other intellectual property law protections afforded to same.
4. User Fee. User will pay ETP Resources for the right to receive the ETP Resources Products in accordance with the then-current fee schedule (established by ETP Resources from time to time and published on ETP’s website: etpresources.com). User fees for future ETP Products requested by User are subject to modification by ETP Resources at any time, without prior notice to User. All payments to ETP Resources for the ETP Resources Products shall be made in immediately available funds, in U.S. Dollars, by credit card, electronic funding or other electronic payment method approved in advance by ETP Resources. ETP Resources may store User’s payment information, including but not limited to, credit card information or other electronic payment and funding information, for use with future transactions. Due to the nature of the ETP Resources Products, all sales are final and non-refundable, except as expressly provided in Section 6(a).
5. User Representations and Warranties. User represents, warrants and agrees that: (a) User is not engaged in the business of distributing data in the nature of the ETP Resources Products; (b) User will not use or permit any person or business entity to use the ETP Resources Products for any illegal purpose; (c) User will not use ETP Resources Products in any way to compete with ETP Resources, nor use the ETP Resources Products in any way so as to assist or allow a third party to compete with ETP Resources; (d) the provision of the ETP Resources Products hereunder is conditioned upon User's strict compliance with the terms of this Agreement and that the ETP Resources may, with or without notice and with or without cause, forthwith terminate User’s license and authorization to use all ETP Resources Products whenever in its judgment there has been any default or breach by User of the provisions hereof; (e) User has all necessary power and authority to enter into and perform this Agreement; (f) this Agreement is legal, valid, binding and enforceable against User; (g) neither the execution of, nor performance under, this Agreement by User violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to User; and (h) User’s access to and use of the ETP Resources Products hereunder will be in accordance with all applicable federal, state, and local laws, regulations, and treaties.
6. Express Limited Warranty; Limitations on Liability.
(a) Limited Warranty. ETP Resources warrants to User that, to ETP Resources’ knowledge, the access to and use of the ETP Resources Products provided and licensed through this Agreement do not infringe upon the United States patent, copyright, trademark or trade secret rights of any third party. This limited warranty is void if infringement results from: (a) modifications of any part of the ETP Resources Products that were not effectuated by ETP Resources; (b) the use of the ETP Resources Products in connection with another product or service not provided by ETP Resources; or (c) ETP Resources’ compliance with the specific instructions of User. User’s remedy for breach of this limited warranty shall be, at ETP Resources’ option, for ETP Resources to: (i) obtain the right for User to use the ETP Resources Products without additional or increased cost to User; (ii) modify the ETP Resources Products without materially diminishing their functionality, performance or usefulness as contemplated herein, to become non-infringing, at ETP Resources’ sole expense; or (iii) require that User discontinue the use of the ETP Resources Products, in which event, ETP shall refund User the user fee actually paid by User in connection with User’s use of such ETP Resources Products.
(b) Representations and Warranties Limited. ETP RESOURCES DOES NOT MAKE ANY WARRANTY, REPRESENTATION OR GUARANTY AS TO THE AVAILABILITY, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING OR SPEED OF DELIVERY OF THE ETP RESOURCES PRODUCTS OR OTHER DATA OR INFORMATION FURNISHED TO USER HEREUNDER. THE WARRANTIES SET FORTH IN PARAGRAPH 6(a) ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, REPRESENTATIONS AND GUARANTIES, EXPRESS OR IMPLIED, AND ALL SUCH OTHER WARRANTIES, REPRESENTATIONS, AND GUARANTIES ARE HEREBY DISCLAIMED. ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR USAGE OF TRADE, ARE HEREBY EXPRESSLY DISCLAIMED.
(c) Limitations on Liability. If ETP Resources fails to provide the remedy provided in Paragraph 6, or if ETP Resources otherwise fails to perform its duties and obligations under this Agreement, and User can establish that as a direct result thereof User has incurred any damages, liabilities, losses, fees, costs or expenses, then ETP Resources’ liability to User for actual damages for any cause whatsoever, during the term of this Agreement, whether in contract, tort (including negligence), strict liability or otherwise, shall not exceed in the aggregate the fees that User has paid for the ETP Resources Products in question. IN NO EVENT SHALL ETP RESOURCES OR ANY OTHER PROVIDER OR SOURCE OF DATA AND/OR INFORMATION FOR ETP RESOURCES, BE LIABLE FOR ANY LOSS OF PROFIT OR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, MULTIPLE, PUNITIVE OR CONSEQUENTIAL DAMAGES SUSTAINED OR INCURRED IN CONNECTION WITH THE ETP RESOURCES PRODUCTS, ANY ACTION ETP RESOURCES TAKES OR FAILS TO TAKE AS A RESULT OF COMMUNICATIONS USER SENDS TO ETP RESOURCES OR THE DELAY OR INABILITY TO USE ANY ETP RESOURCES PRODUCTS, OR ETP RESOURCES’ REMOVAL, MODIFICATION OR DELETION OF ANY ETP RESOURCES PRODUCTS SUBMITTED TO OR RECEIVED BY USER PURSUANT TO THIS AGREEMENT REGARDLESS OF THE FORM OF THE ACTION AND WHETHER SUCH DAMAGES WERE FORESEEN OR UNFORESEEN AND EVEN IF ETP RESOURCES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION ON-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, USER’S LOSS OF PROFITS OR THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
7. Indemnity. User shall indemnify, defend and hold harmless ETP Resources and its affiliates, officers, members, managers, employees, agents, contractors, licensors and any information providers and any other service or software providers for ETP Resources, from and against any and all third party demands, claims, actions, proceedings, damages, liabilities, losses, fees, costs or expenses (including without limitation reasonable attorneys’ fees and the costs of any investigation) directly or indirectly arising from or in any way connected with (i) the use of or reliance on the ETP Resources Products and/or other information supplied or to be supplied to User under this Agreement, (ii) any breach of or default under the terms or conditions of this Agreement by User, or (iii) any negligence, gross negligence or willful misconduct by or on behalf of User or its employees or agents. ETP Resources reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by User and in such case, User agrees to cooperate with ETP Resources it the defense of such matter.
8. Miscellaneous.
(a) Assignment. User may not assign any of its rights or obligations under this Agreement, by operation of law or otherwise, without first obtaining ETP Resources’ written consent, except that User may assign this Agreement without ETP Resources’ consent (i) to an affiliate (controlled by or under common control with, User); or (ii) in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of User’s assets not involving a direct competitor of ETP Resources; provided that User provides prompt written notice to ETP Resources of such assignment. Any attempt to assign User’s rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the Parties and their respective successors and permitted assigns.
(b) Notice. Except as otherwise provided in this Agreement, any notice to User that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon transmission when sent by e-mail or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, to the address provided by User in the subscription materials provided to ETP Resources in connection with entering into this Agreement or to such other address as provided in writing by User to ETP Resources for such purposes. Except as otherwise provided in this Agreement, any notice to ETP Resources that is required or permitted by this Agreement shall be in writing and shall be deemed effective upon receipt, when sent by e-mail to: notice@etpresrouces.com or mailed by first class, registered or certified mail, postage prepaid or when sent by overnight courier service, such as Federal Express or equivalent, to: ETP Resources, LLC, 7020 Rob Roy Drive, Dublin, OH 43017. Upon receipt, if a valid e-mail address is provided and remains current, ETP Resources may give notice to or communicate with User by e-mail addressed to the persons identified in the subscription process or to such other e-mail address or persons as User shall hereafter specify by prior written notice. By providing an e-mail address, User agrees that any receipt received by ETP Resources from User’s service provider or internet computer server indicating that the e-mail was received shall be deemed proof that User received the message. If User cannot see or print all or a portion of a message, User agrees that it is User’s responsibility to contact ETP Resources to resolve such technical issues.
(c) Force Majeure. Due performance of any duty or obligation hereunder by ETP Resources shall be excused if prevented by acts of God, information providers or other service providers, public enemy, war, terrorism, any accident, explosion, fire, storm, earthquake, flood, strike, computer outage or virus, telecommunications failure or any other circumstance beyond or event beyond the ETP Resources’ reasonable control.
(d) Severability. If any one or more of the provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason, then the validity, legally or enforceability of the remaining provisions of this Agreement shall not be affected thereby. To the extent permitted by applicable law, the parties waive any provisions of law that render any provision of this Agreement invalid, illegal or unenforceable in any respect.
(e) Waiver or Consent. Any failure by either of the Parties to comply with any obligation, covenant, condition or agreement contained herein may be waived in writing by the party entitled to the benefits thereof, but such waiver or failure to insist on strict compliance with such obligation, covenant, condition or agreement shall not operate as a waiver of or estoppel with respect to any subsequent or other failure. To be effective, any consent by the ETP Resources must be in writing and signed by an authorized representative of the ETP Resources.
(f) Entire Agreement. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes and replaces all prior writings or oral negotiations or other understandings with respect thereto. User’s use of the etpresources.com is subject to the Terms of Use thereof, posted at: http://www.etpresources.com/Terms.
(h) Independent Parties. Nothing in this Agreement shall be construed as creating a partnership, joint venture, fiduciary or agency relationship between the parties, or as authorizing either party to act as an agent for the other. The parties to this Agreement are independent parties.
(i) Governing Law. This Agreement and all terms and conditions included or incorporated by reference herein shall be governed by and interpreted in accordance with the laws of the State of Ohio applicable to agreements made and wholly performed therein. User hereby consents to the exclusive jurisdiction of the federal and state courts of competent jurisdiction located in Franklin County, Ohio for the adjudication of any disputes arising out of or relating to this Agreement or User’s access to or use of the ETP Resources Products. User hereby waives any objection to venue or inconvenient forum laid therein.