Trial and Evaluation Agreement
Introduction
Access to S&P Global Products for trial and evaluation purposes is subject to the following terms and conditions ("Agreement"). By accessing S&P Global Products you accept and agree to be bound by this Agreement during the Trial Period.
1. The Product licensed hereunder is identified in the confirmation email or any other document which S&P Global sends to Client to confirm that S&P Global has accepted the Client's requests to access the Product for Trial Period ("Order Confirmation") and includes any documentation, and updates and corrections thereto provided by S&P Global to Client for evaluation purposes ("Product"). Subject to and in consideration of Client's compliance with the terms of this Agreement, S&P Global hereby grants the Client a personal, non-exclusive, non-transferable, royalty-free, revocable license solely for the purpose of internal trial and evaluation of the Product by a maximum number of Authorized Users as identified in the Order Confirmation. Client agrees that its employees will be participating in such internal trial and evaluation of the Product ("Authorized Users") for a period commencing from License Start Date and ending on License End Date as specified in the Order Confirmation ("Trial Period") at the locations set forth in the Order Confirmation ("Site"). Upon expiration or termination of this Agreement or Trial Period, unless otherwise instructed by S&P Global or unless Client has purchased a license for the Product, Client shall cease all use and shall promptly destroy or return the Product (including all copies) and so certify in writing upon S&P Global request.
2. Client shall not reverse decompile, disassemble or otherwise reverse engineer the Product in whole or in part. Client shall not duplicate, transfer, disclose, provide, distribute, sell, lease, republish, sublicense or otherwise make available the Product, or any part or copies thereof, to any third party. Client shall not alter, modify, or make derivative works of the Product without the prior written consent of S&P Global. Client will not remove any copyright, trademark or other proprietary notices. No title to or ownership of the Product is transferred to Client. Title to and ownership of the Product and all applicable rights in patents, copyrights and trade secrets in the Product shall remain in S&P Global. The Product provided hereunder is confidential and/or proprietary to S&P Global and Client shall safeguard the Product accordingly.
3. THE PRODUCT LICENSED HEREUNDER IS PROVIDED "AS-IS". S&P GLOBAL MAKES NO WARRANTIES, REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, IN RESPECT OF THIS AGREEMENT, THE PRODUCT OR DOCUMENTATION PROVIDED HEREUNDER, AND ALL WARRANTIES INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARE EXPRESSLY DISCLAIMED. CLIENT AGREES THAT S&P GLOBAL SHALL NOT BE LIABLE FOR ANY LOSS, CLAIM, OR DAMAGE, TO CLIENT OR ANY THIRD PARTY WHETHER DIRECT OR INDIRECT, WHETHER BASED ON CONTRACT, TORT, OR ANY OTHER LEGAL THEORY RELATING TO CLIENT'S USE OR POSSESSION OF OR RELIANCE ON THE PRODUCT INCLUDING WITHOUT LIMITATION ANY INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
4. Client may not assign any of its rights or delegate any of its obligations hereunder and any attempted assignment shall be null and void. This Agreement sets forth the entire agreement between the parties and supersedes any and all prior proposals, agreements or communications, written or oral, of the parties with respect to the subject matter hereof. This Agreement and its performance shall be governed by the laws of England and Wales, other than its laws pertaining to conflict of laws. Parties hereby submit to the exclusive jurisdiction of English courts.
5. If Client breaches any of its obligations under this Agreement, S&P Global shall have the right, in addition to any and all other remedies it may have hereunder, at law or in equity, in its own discretion (i) to terminate this Agreement immediately upon notice to Client; (ii) to claim the reasonable value of unauthorized use of the Product from the Client; and (iii) to be indemnified by the Client against any cost, loss or damage suffered by S&P Global including S&P Global attorneys' fees as a result of the said breach or non-compliance.
6. Client represent and affirm that (i) it will comply with all applicable country laws relating to anti-corruption and anti-bribery, including the US Foreign Corrupt Practices Act and the UK Bribery Act; and (ii) it will not perform, offer, give and receive bribes or corrupt actions in relation to the procurement or performance of this Agreement. For the purposes of this section, "bribes or corrupt actions" means any payment, gift, or gratuity, whether in cash or kind, intended to obtain or retain an advantage, or any other action deemed to be corrupt under the applicable country laws.
7. The Product provided hereunder: (a) was developed at private expense and is in all respects the proprietary information of S&P Global; (b) was not developed with government funds; (c) is a trade secret of S&P Global for all purposes of the Freedom of Information Act; (d) is a commercial item and thus, duplication or disclosure of the Product is subject to the restrictions set forth by S&P Global. Any Product used by, for, or on behalf of the U.S. Government is provided with LIMITED RIGHTS as per S&P Global standard terms applicable to the Product at the time of trial.
8. Export laws and regulations of the United States and other relevant local export laws apply to the Products provided hereunder Client agrees to comply with all such export laws and regulations, and agrees that it will not export, re-export, transfer, sell or use the Products without the prior express written permission of S&P Global.
Subscriber Terms and Conditions
Access to S&P Global Products is subject to the following terms and conditions ("Agreement"). By accessing S&P Global Products you accept and agree to be bound by this Agreement.
1. DEFINITIONS
1.1 "Authorized User(s)" means full- or part-time employees of Client and those Client contractors who are required to access a Product solely for the purpose of assisting Client's use of the Product for its internal business purposes only. Client will be fully liable and responsible for the acts and omissions of its Authorized Users.
1.2 "Concurrent Users" applicable only to certain Products, means the number of Authorized Users at any Site who may access the Product at the same time as set forth in the Order Confirmation. Additional Concurrent Users will affect Client's Fees.
1.3 "Directory Products" means S&P Global proprietary database or any part thereof, including without limitation, details of particular company/organisation, key personnel, financial/statistical information, products/services description, organisational structure and any other information pertaining to the such company(s)/organisation(s) operating in various industrial sector.
1.4 "Documentation" means the user guides and manuals provided by S&P Global to Client for use with a Product, if any.
1.5 "Expenses" means all reasonable and documented expenses, if any, incurred by S&P Global in providing specific Products to Client, (including, without limitation, media and shipping charges, accommodation and meals communications and/or administrative charges, courier and travel costs, if applicable) and for which Client is obligated to pay S&P Global.
1.6 "Enterprise-Wide License" applicable only to certain Products, means that Client has purchased access to Products throughout Client's locations, including through proxy or community access from a variety of locations, and that an unlimited number of Authorized Users may access the Product at the same time. Client acknowledges that the Enterprise-Wide License creates additional risk of misuse and abuse and that S&P Global pricing reflects this increased risk.
1.7 "Site" means those Client locations whose addresses are specified in the Order Confirmation.
1.8 "Fees" means the money due and owing to S&P Global for Products provided, as set forth in the Order Confirmation. Fees are exclusive of Expenses and taxes, which will be charged separately to the Client. If the initial term as set out in the Order Confirmation is more than 12 months, S&P Global reserves the right to modify the Fees after the expiry of the initial 12 month subscription period anytime by providing at least 45 days prior written notice to the Client; provided such change will occur no more than once in any 12 month period.
1.9 "S&P Global Affiliate" means any entity that owns, is owned by or is under common ownership of either a holding company or any of the subsidiaries of S&P Global. S&P Global Affiliates are not deemed to be subcontractors for any term or condition hereunder that relates to the use of subcontractors.
1.10 "Order Confirmation" includes the order form or confirmation email or any other document which S&P Global sends to Client to confirm that S&P Global has accepted the Client's order and which identifies the name of the Client, Product(s) being supplied, delivery information, Fees and any terms or conditions unique to the particular Product to be supplied hereunder. Only on S&P Global sending the Order Confirmation will S&P Global and the Client be entering into a binding contract.
1.11 "Product(s)" means all information (including without limitation data, databases, standards, photographs and well logs) provided by S&P Global to Client, online or through disk(s) and includes Directory Products. Products also include any web tools, search engines or software that are incorporated into CDs or DVDs or that can be used by Client when accessing Products via the Internet and S&P Global website.
1.12 "Site License" applicable only to certain Products, means that Client's access to the Product is restricted to the Sites listed in the Order Confirmation. Proxy or community access from off-Site locations to the Site(s) is strictly prohibited, except where expressly permitted by S&P Global in writing. Additional Sites will affect Client's Fees. Client acknowledges that Fees for Site Licenses are based on the specific access restrictions to them.
1.13 "User License" applicable only to certain Products, means Client has access to the Product limited to number of Authorized Users specified in the Order Confirmation.
2. FEES
2.1 S&P Global will invoice Client for all Fees and Expenses as set forth in the Order Confirmation in advance for licensing the Products under this Agreement, such Fees and Expenses are quoted in the currency set forth in the Order Confirmation and Client must pay in said currency. Except as otherwise stated herein, Fees for Products are not refundable.
2.2 Client will pay S&P Global the Fees and Expenses set forth in the Order Confirmation within 30 days from date of an invoice issued to Client by S&P Global. Any payments not received by S&P Global when due will be considered past due, and S&P Global may choose to accrue interest at the rate of five percent (5%) above the European Central Bank "Marginal lending facility" rate. In addition to all other rights, S&P Global, in its sole discretion, may discontinue the provision of Products if Client does not pay any invoice within the cure period provided in section 9 of this Agreement. Client has no right of set-off.
2.3 For all Products provided hereunder, delivery is deemed to occur and risk of loss passes when S&P Global provides access codes to Client that allow Client to access or to take immediate possession of Products, whichever occurs first.
2.4 All Fees and Expenses specified in this Agreement are exclusive of and Client is solely responsible for payment of all value-added, sales, use, import, duties, customs or other taxes applicable to the providing of Products under this Agreement, except for any taxes assessed upon the income of S&P Global. To receive tax exempt status, Client must submit applicable documentation proving tax-exempt status to S&P Global prior to S&P Global issuing the first invoice. Client must pay the said taxes invoiced prior to receipt by S&P Global of such documentation.
3. TERM & RENEWAL
3.1 Unless sooner terminated in accordance with the provisions of this Agreement, the initial term of this Agreement commences from the Product subscription start date and continues for a period as set forth in the Order Confirmation.
3.2 PLEASE NOTE: This sub-clause 3.2 applies to all new S&P Global customers from 1st December 2010 and all renewal subscriptions of existing S&P Global customers from 1st January, 2011.
So long as Client is not in material breach of this Agreement, the initial term will automatically renew for successive renewal terms of 12 month period, unless Client provides S&P Global with written notice of its intent not to renew at least 30 days prior to the end of the initial or any renewal term.
3.3 If Client attempts to terminate this Agreement or any Product subscription set forth in the Order Confirmation during the term, any Fees payable under this Agreement for such period will be invoiced by S&P Global in full. Where Client has already paid the Fees in advance any Fees relating to unused period of the term shall be forfeited.
4. LICENSE/AUTHORIZED USE/INTELLECTUAL PROPERTY RIGHTS
4.1 S&P Global grants to Client under this Agreement the type of license (Site License, Enterprise-Wide, User License ), for each of the Products, as set forth in theOrder Confirmation and for the term set forth therein. Certain Products are not eligible for Enterprise-Wide Licenses. Any License granted hereunder is a nonexclusive, nontransferable, revocable license allowing Client to use the Products in the specified media and accompanying Documentation (if any), for Client's internal business use only for the term specified herein or in any Order Confirmation. The licenses granted herein are personal to Client and its Authorized Users only.
4.2 Client may not copy, distribute, republish, transfer, sell, license, lease, give, permanently retain, decompile, reverse engineer, disseminate, publish, assign (whether directly or indirectly, by operation of law or otherwise), transmit, scan, publish on a network, or otherwise reproduce, disclose or make available to others or create derivative works from, the Product or any portion thereof, except as specifically authorized herein. Client must not remove any proprietary legends or markings, including copyright notices, electronically encoded information, watermarks, or any S&P Global-specific markings. Client may use the details of any third party company and/or personal data if any included, in the Directory Product(s) for its internal business use only to the extent and in such manner, as stated herein and is necessary for the limited purpose of enquiring about the products and services of the companies/organisations listed therein who have given permission for their data to be used for this purpose only. Client must comply with the UK Data Protection Act and all other applicable data protection and privacy laws and regulations. For Products which allow the download of the results of a data search into a .txt or .xls file, an Authorized User may only download such an amount of data which is normal, fair and reasonably necessary for Client's internal business use and to the extent and in such manner as is within the license grant. In no event shall an Authorized User download all or substantially all data contained in the Product. If S&P Global, at its sole discretion, believes that the amount of data an Authorized User downloads is not consistent with normal, fair and reasonable necessary use then, notwithstanding its other rights under this Agreement, S&P Global is entitled, at its sole option, to charge additional fees for the excessive usage, move the Client to a more appropriate license and suspend and in the most extreme cases terminate access to the Product. Wherever reasonably possible S&P Global will endeavour to give Client written notice before taking any such action and allow a reasonable period to enable Client to modify its usage.
4.3 Client may retain one archival hard copy of all Products licensed hereunder. Such archival copy may not be accessed on a day-to-day basis for reference or to form a library or other purposes and may only be used in emergency situations, such as when Client's electronic access to the Products is unavailable.
4.4 Client may retain as few copies of the Products, or any portion thereof, as are necessary if specifically required by law. Such copies may not be accessed on a day-to-day basis for reference or other purposes. Except as set forth herein, Client may not otherwise permanently retain copies of Products: (a) in any file or on any hard drive, server or other form of memory; or (b) in any printed form filed to form part of any hard copy reference collection.
4.5 Client must secure all forms of Product files to prevent access by unauthorized individuals or local area network users. Under a Site License, Client is not authorized to transmit Products electronically or by any other means in any form to any other Site. Client may make a reasonable number of copies of any Documentation, provided all such copies include all legends, copyright and other proprietary notices that appear on the original.
4.6 Client acknowledges that the data, photographs, software, equipment, and Documentation contained in Product(s) and all material, whether delivered on data tape, hard copy, electronically or otherwise are developed entirely at private expense, comprise valued proprietary and commercial information of S&P Global and third party providers and are the property of S&P Global and third party providers. Client acknowledges that this license granted herein does not confer any ownership rights whatsoever in Products.
4.7 Client will not remove any copyright, trademark or other proprietarynotices of S&P Global or any third party contained on or in Products or other materials delivered to Client, and Client will reproduce all such notices on all copies permitted to be made by Client under this Agreement. Client will take any and all actions that may reasonably be required by S&P Global to protect the proprietary rights as owned by S&P Global or third party providers.
4.8 S&P Global may use all suggestions, feedback, improvements, report formats or the like that Client provides to S&P Global or otherwise makes with respect to Products without any obligation to Client.
4.9 In the event the Products licensed hereunder are provided along with any web tool or search engine or software in order to access the Products ("Software"), Client undertakes and agrees to use the Software only for purpose of accessing the Products and subject to the restrictions as set forth herein. Client may not transfer, sublicense, relicense or commercially exploit the Software or use such Software for third party transactions, commercial time-sharing, rental or service bureau use or publicly perform or publicly display the Software. Client must take all reasonable steps to ensure that no unauthorized persons shall have access to the Software. Client must not reverse engineer, disassemble, decompile, create derivative works or otherwise alter or modify the Software. Unless otherwise agreed, Client shall not be entitled to any technical support in relation to the Software.
5. CONFIDENTIALITY
5.1 Where either party ("Discloser") provides the other ("Recipient") with Confidential Information, it shall be held in strict confidence and shall not be disclosed or used for any purpose other than as specifically authorised by either party or as expressly provided in this Agreement without the prior written consent of the other. The Parties shall exercise the same degree of care they use to protect their own confidential or proprietary information but no less than a reasonable degree of care.
5.2 For the purpose of this section, "Confidential Information" means: (a) information related to Products, Documentations, S&P Global methodologies; (b) any Discloser business or technical information, including, without limitation, any information relating to Discloser's products, services, prices, marketing plans, business process management, analytics technologies, business opportunities, customers, or personnel; (b) any other information of Discloser that is specifically designated as confidential or proprietary; or (c) any information that by its nature, Recipient knows or should know is confidential or proprietary. Confidential Information shall not include information: (i) which is or becomes public knowledge other than by a breach of this clause, (ii) that is required to be disclosed by any applicable law or by any recognised stock exchange, (iii) obtained from a third party without breach of an obligation of confidentiality and (iv) information which can be shown to have been independently developed by the parties by means other than through its access to the confidential information or material.
6. WARRANTIES AND DISCLAIMERS.
6.1. Each party represents and warrants that it is fully authorized to enter into this Agreement.
6.2 The Product(s) provided under this Agreement is provided "AS IS" and "AS AVAILABLE", such Product(s) are compiled from materials furnished to or obtained by S&P Global from outside sources. S&P Global does not warrant the completeness or accuracy of the information, that Client's use of Product(s) will be uninterrupted or error-free, or that the results obtained will be successful or will satisfy Client's requirements. Client is solely responsible for its use of Products.
6.3 Disclaimer of Warranties. S&P GLOBAL DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, CONDITIONS AND OTHER TERMS, WHETHER STATUTORY, ARISING FROM COURSE OF DEALING, OR OTHERWISE, INCLUDING WITHOUT LIMITATION TERMS AS TO QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. CLIENT ASSUMES ALL RISK IN USING THE RESULTS OF PRODUCT(S).
7. INDEMNIFICATION
7.1 S&P Global will indemnify, defend and hold harmless Client from and against any third party claims alleging that Products furnished under and used in accordance with the terms and conditions of this Agreement infringe or misappropriate a US/UK patent issued as of the Effective Date or US/UK copyright, trademark or trade secret ("Infringement Claim"). S&P Global will not so indemnify, defend and hold harmless Client to the extent any Infringement Claim would not have arisen but for: (i) any modification of a Product not specifically authorized in writing by S&P Global; (ii) the incorporation of any feature or information provided by or requested by Client into a Product; (iii) the combination of Product with any third party software, equipment or information not specified in the Documentation; (iv) the use of a version of a Product other than the then-current version, if the infringement would have been avoided by use of the then-current version and S&P Global informed Client of same; (v) Client's misuse of the Product or failure to protect S&P Global Confidential Information as required herein. In the event Products are held or are believed by S&P Global to infringe, S&P Global may choose, at its sole option and expense, (a) to modify the Products so that they are non-infringing; (b) to replace the Products with non-infringing Products that are functionally equivalent; (c) to obtain a license for Client to continue to use the Products as provided hereunder; or if none of (a), (b), or (c) is commercially reasonable, then (d) to terminate this Agreement for the infringing Products and refund Fees paid, prorated from the date of the Infringement Claim. This section 7.1 states the entire liability of S&P Global and Client's sole and exclusive remedy for any infringement of third party proprietary rights of any kind.
7.2 Client will indemnify and hold S&P Global harmless from and against any loss or damage suffered by S&P Global as a result of Client's breach of the licenses and rights granted herein.
7.3 Each Party will indemnify, defend and hold the other Party harmless from any claim, demands, liabilities, suits or expenses of any kind for personal injury or damage to tangible property to the extent arising from its negligence or willful misconduct on the other Party's premises.
7.4 Indemnification Procedure. The indemnification obligations of each party under this section 7, are contingent upon the indemnified party providing to the party who has the indemnification obligation: (a) prompt written notice of the alleged claim; (b) sole control of the defence or settlement of the alleged claim; and (c) reasonable cooperation and assistance, at the request and expense of party to indemnify, in the defence or settlement of the alleged claim. If the indemnified party chooses to be represented by counsel, it shall be at the indemnified party's sole cost and expense.
8. LIMITATION OF LIABILITY.
8.1 EXCEPT FOR CLIENT'S BREACH OF LICENSE GRANTS OR RESTRICTIONS CONTAINED IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR:
(i)ANY INDIRECT, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER, SUFFERED BY THE OTHER PARTY; OR
(ii) ANY LOSS OF ACTUAL OR ANTICIPATED PROFITS, REVENUE, SAVINGS OR BUSINESS; OR
(iii) LOSS OF DATA OR INFORMATION; OR
(iv) LOSS OF GOOD WILL OR REPUTATION AND/OR SIMILAR LOSSES; OR
(v) BUSINESS INTERRUPTIONS; OR
(vi) OTHER ECONOMIC LOSS OR DAMAGE;
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR ANY USE OF OR INABILITY TO USE PRODUCTS EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. FOR PURPOSES OF THIS SECTION, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES AWARDED BY A COURT TO A THIRD PARTY AND PAID BY THE PARTY TO BE INDEMNIFIED ARE CONSIDERED DIRECT DAMAGES HEREUNDER.
8.2.1 S&P GLOBAL WILL NOT BE LIABLE FOR ANY DAMAGES ARISING OUT OF OR RELATED IN ANY WAY TO:
(i) USE OF PRODUCTS; OR
(ii) CLIENTS' NEGLIGENCE AND WILLFUL ACT; OR
(iii) MODIFICATIONS TO PRODUCTS; WHETHER SUCH DAMAGES ARE SUFFERED BY CLIENT OR ANY THIRD PARTY.
8.2.2 Client's sole and exclusive remedies for breach of warranty by S&P Global are set forth in this Agreement.
8.3 Except for Client's breach of license grants or restrictions contained in this Agreement each Party's total aggregate liability in contract, tort, (including negligence) misrepresentation or otherwise, including liability for any damages arising out of or related to this Agreement will not exceed Fees paid by Client hereunder for the Products that is the subject of the claim for the immediately preceding 6 months or for the period of time the defective Product are provided, whichever is shorter. Client acknowledges that the S&P Global pricing reflects this allocation of risk, and the limitation of liability specified in this section will apply regardless of whether any limited or exclusive remedy specified in this Agreement fails of its essential purpose.
8.4 The limitations set forth in this section will not apply to (i) damages related to death or personal injury arising out of the negligence or willful act of the other Party; and (ii) any damages or liability incurred as a result of fraud or fraudulent misrepresentation of the other Party.
9. TERMINATION.
9.1 Either Party may terminate this Agreement if: (a) the other Party commits a breach of any material term or condition of this Agreement and does not cure such breach within thirty (30) days of written notice thereof; or (b) the other Party's assets are transferred to an assignee for the benefit of creditors, to a receiver or to a trustee in bankruptcy, a proceeding is commenced by or against the other Party for relief under bankruptcy or similar laws and such proceeding is not dismissed within sixty (60) days, or the other Party is adjudged bankrupt. Neither party has to right to terminate for cross default.
9.2 Either Party may terminate or suspend its performance under this Agreement with no less than 5 days written notice if: (a) necessary, as expressed by an opinion of outside counsel to protect its legal liability to third parties; or (b) it has reasonable evidence of the other Party's fraudulent or illegal use of Products; or (c) required by legal or regulatory authority. In addition, S&P Global may terminate this Agreement if (i) S&P Global no longer has the necessary right from any third party to license or distribute the Product; or (ii) Client fails to join any applicable trade association' membership during a certain period or ceases to be a member of such association after entering into this Agreement or at any time during the term and refuses to pay S&P Global the non-member rates, applicable to a change of its membership status. Any termination under this section 9 does not relieve either Party of any liability incurred prior to such termination, or for Client's payment for unaffected Products.
9.3 Upon the termination of this Agreement, all Fees and Expenses owed by Client through the date of termination automatically and immediately become due and payable.
9.4 Upon any expiration or other termination of this Agreement all licenses granted herein immediately will terminate. Client represents and warrants that upon expiration or other termination of this Agreement, Client immediately will (i) discontinue all use of Product(s); (ii) destroy any items relating to Products (including but not limited to data, software, and Documentation) and purge any Product data from all electronic media; and (iii) provide a notarized written certification to S&P Global that Client has complied with this section.
10. FOREIGN CORRUPT PRACTICES ACT.
Client acknowledges that under the laws of the U.S., it is unlawful for S&P Global, its divisions, subsidiaries and representatives, directly or indirectly, to make any payment or to give anything of value to any foreign official (other than a foreign official whose duties are essentially administrative or clerical) or to any foreign political party, any official of a foreign political party or any candidate for foreign political office for the purposes of influencing any action or failure to take action on the part of such person in connection with the obtaining, retaining or directing of business to any person or company. Client will not make any such payment directly or indirectly, on behalf of S&P Global or S&P Global Affiliates, while this Agreement is in effect.
11. U.S. GOVERNMENT USE.
This section applies to any Products, Client licenses hereunder to use on behalf of a unit or agency of the U.S. Government, its agencies or instrumentalities (U.S. Government") or where Client obtains such licenses directly or indirectly on behalf of a unit or agency of the U.S. Government. The Products provided hereunder: (a) were developed at private expense and are in all respects the proprietary information of S&P Global; (b) were not developed with government funds; (c) are a trade secret of S&P Global for all purposes of the Freedom of Information Act; (d) are commercial items and thus, pursuant to Section 12.212 of the Federal Acquisition Regulations (FAR) and DFAR Supplement Section 227.7202, Government's use, duplication or disclosure of the Products is subject to the restrictions set forth by S&P Global. Any Product, used by, for, or on behalf of the U.S. Government is provided with LIMITED RIGHTS as set forth herein. Any software or tools embedded in Product(s) used by or on behalf of the U.S. Government is provided with RESTRICTED RIGHTS set forth in herein. Use, duplication, or disclosure of data or software by the U.S. Government is subject to restrictions as set forth in the Rights in Technical Data and Computer Software clause at FARS 12.211 and 12.212(a) and/or Commercial Computer Software at DFARS 227.7202-1(a) or subparagraphs (c)(1) and (2) of the Commercial Computer Software-Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is S&P Global.
12. EXPORT CONTROL.
The Products provided by S&P Global under this Agreement may contain technical data (e.g., encryption technology) the export, re-export, transfer or sale of which is controlled by U.S. export control laws. S&P Global will export the Products as per this Agreement consistent with U.S. law and Client agrees that diversion of the Products contrary to U.S. law is prohibited. Client acknowledges that other nations' laws may apply to the Products. In particular, several jurisdictions have controls that may apply to Products containing encryption technology. Client must comply with all applicable laws that may impose registration, reporting, licensing, or other requirements on the Products.
13. AUDIT.
Upon reasonable notice by S&P Global to Client, and not more than once annually (unless prior violations have been discovered), S&P Global may audit relevant records at Client's location during normal business hours to enable S&P Global to ensure Client's compliance with this Agreement.
14. FORCE MAJEURE.
Either Party may be excused from the performance of any obligation under this Agreement, except payment for any Products, due to any act or condition whatsoever beyond the reasonable control of and not occasioned by the fault or negligence of such Party, including, without limitation, acts of God, acts of terrorism, acts of nature or of a public enemy, acts of a federal government or any state or political subdivision thereof, internet outages, fires, floods, explosions, wars, or other catastrophes; labor disturbances; freight embargos; or delays of a supplier or subcontractor due to such causes.
15. SECURITY MEASURES
15.1 S&P Global may impose whatever security measures it reasonably deems appropriate to ensure compliance with this Agreement, including covert and overt copy-detection and license awareness technology and encoding of requestor/user information in printed and electronic formats. Any attempt to circumvent such access restrictions or S&P Global security measures will be considered a material breach of this Agreement.
15.2 For certain Products, S&P Global will issue to Client a password to access the Product, which Client acknowledges is only for Client's and its Authorized Users use and may not be shared with anyone other than Authorized Users. Client is solely responsible for all use, authorized or unauthorized, of Product (including use by Authorized Users). Client must notify S&P Global immediately of any unauthorized use of Product(s) and/or passwords.
16. HELPDESK SUPPORT.
S&P Global shall provide telephone or on-line helpdesk support to assist Client's with any material issues relating to the access of the Product in accordance with the S&P Global Customer Care Policy in force from time to time.
17. MISCELLANEOUS.
17.1 The Parties are independent contractors and nothing in this Agreement will be construed to create a partnership, joint venture or employment relationship between the parties.
17.2 This Agreement sets forth the entire agreement between the parties and supersedes any and all prior proposals, agreements or communications, written or oral, of the parties with respect to the subject matter hereof. Nothing contained in any Client-issued purchase order, purchase order acknowledgement, purchase order terms and conditions or invoice will in any way modify or add any additional terms or conditions to this Agreement. Such Client-issued purchase orders are for Client's internal purposes only and do not affect in any way Client's obligations under this Agreement; provided however that such typically variable terms as price, quantity, tax exempt status, delivery date, shipping instructions and the like, as applicable and only as mutually agreed upon and as may be specified on Client-issued purchase orders. S&P Global reserves the right to amend this Agreement from time to time.
17.3 No failure or delay by either Party to exercise any right hereunder at any time operates as a waiver of such right at any future time.
17.4 Client may assign this Agreement to any third party (whether directly or indirectly, by operation of law or otherwise) only with the prior written consent of S&P Global, which consent will not be unreasonably conditioned, withheld or delayed. Any requested assignment (i) to a direct competitor of S&P Global; (ii) that would interfere with performance of obligations under this Agreement; or (iii) that changes the scope of the usage and the intent contemplated by the Parties under this Agreement, is deemed unreasonable. Any assignment or transfer in violation of the above is void.
17.5 This Agreement is binding on the Parties, their successors and assigns. S&P Global at its sole discretion reserves the right to subcontract any or all of its obligations under this Agreement to subcontractors of its choosing.
17.6 This Agreement will be construed under the laws of England and Wales, without regard to its conflicts of law principles and each Party hereby submits to the exclusive jurisdiction of English Courts. The parties hereby disclaim the application of the 1980 U.N. Convention on Contracts for the International Sale of Goods. The English language version of this Agreement will be controlling in the interpretation or application of the terms of this Agreement.
17.7 If any provision of this Agreement is found invalid or unenforceable by an arbitrator or a court of competent jurisdiction, the remaining portions will remain in full force and effect.
17.8 All notices required under this Agreement must be in writing and delivered by commercially established courier service, facsimile with written confirmation of success, personal courier or via certified mail, return receipt requested, to the addresses specified on the first page of this Agreement or at such other address as the parties will designate in writing from time to time. Notices are deemed delivered when received by any of the above means. Any legal notices must also be copied to "Attention: S&P Global Legal Department, Vice President & Chief Legal Officer."
17.9 S&P Global and Client agree that S&P Global may publicize the fact that Client is a user of the Products in a mutually agreed upon initial press release. Thereafter, S&P Global will use Client name only in a list of other S&P Global Clients. Any additional publicity concerning Client will require Client's prior written consent. Client acknowledges and agrees that details of Clients and Authorized Users and payment record may be submitted to other third parties for the purpose of validating Clients membership of any applicable trade organization.
17.10 The terms and conditions of this Agreement will survive the expiration or other termination to the fullest extent necessary for their enforcement and for the realization of the benefit thereof by the Party in whose favor they operate.
17.11 No term of this Agreement is intended to confer a benefit on or to be enforceable by, any person who is not a party to this Agreement.
17.12 Each person accepting this Agreement on behalf of any entity hereby represents and warrants that he or she is duly authorized and has full authority to do so.