Bloomberg Second Measure LLC Standard Terms and Conditions

Last updated date: July 11, 2022

The following terms and conditions (the “Terms and Conditions”) together with the applicable Order Form (as defined below) are a contract between your company (“Licensee”) and Bloomberg Second Measure LLC, a Delaware limited liability company (“Licensor”) governing Licensee’s use, and Licensor’s provision, of the Services (as defined below).  These Terms and Conditions together with the applicable Order Form entered into by Licensee and Licensor will be referred to as the “Agreement.” By using the Services, Licensee acknowledges that it has read, understood, accepted, and agreed to be bound by the Agreement.

1. Definitions

A. “Authorized User” means an employee or other personnel of Licensee, which shall not include affiliates of Licensee, that has (1) been authorized by Licensee to access the Services solely on behalf and for the benefit of Licensee, (2) been assigned a unique username-password combination to access and use the Services, and (3) registered online to access and use the Services.

B. “Content” means data or information that Licensor has sourced or created and makes available through the Services Platform for Licensee’s use pursuant to the Content License (as defined in paragraph 2(a)).

C. “Delivery Channels” means Licensor’s or third-party software that Licensor makes available to Authorized Users to access the Services Platform which may include, but is not limited to, web access, an Application Program Interface (“API”), or direct access to the Services Platform, as specified in the Order Form.

D. “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, moral rights, know-how, and any other intellectual property rights recognized in any country or jurisdiction in the world.

E. “Limited Amount” means brief, limited extracts of the Content or analysis derived therefrom that, in each case (1) have de minimis or no independent commercial value and (2) could not reasonably be used as a substitute for any Services or any substantial portion thereof.

F. “Order Form” means a writing that (1) is executed by the parties, (2) references these Terms and Conditions, (3) describes in reasonable detail the Content and Delivery Channels to be used by Licensee, (4) specifies the Fees to be paid, and (5) includes any attachments thereto that are incorporated by specific reference.

G. “Resultant Data” means data or other information derived from the Content, provided that the Content does not remain identifiable and may not be readily-extracted or reverse-engineered.

H. “Services” means the Content, Services Platform, Delivery Channels, and related services provided by Licensor that enable Licensee to view, analyze, and download Content.  The Services features and capabilities available to Licensee shall be limited to those detailed in the applicable Order Form.  Access shall be restricted to Licensee’s Authorized Users.

I. “Services Platform” means Licensor’s platform hosting the Content.

J. “Term” means the term of the Agreement, including the applicable Order Form, as set forth in the Order Form.

K. “Third-Party Content Providers” means third-party providers (other than Licensor or its affiliates) of Content or other data or information made available through the Services.

L. “Usage Data” means data that Licensor has collected regarding Licensee’s use of the Services including which Content that Licensee accesses and the frequency of Licensee’s access.

2. The Services

(a) Subject to Licensee’s compliance with the terms and conditions of the Agreement, Licensor grants Licensee a non-exclusive, non-transferable, non-sublicensable, revocable license to use the Content and Delivery Channel(s) identified on the Order Form solely for Licensee’s internal benefit and internal business purposes (the “Content License”).  Licensee may include a Limited Amount of the Content or Resultant Data in materials created internally and provided to its actual or potential clients in the ordinary course of business, in each case, provided that (i) such clients are subject to valid written confidentiality agreements with Licensee wherein they agree to treat such materials as confidential and (ii) Licensee enforces any breach of such confidentiality agreements. Licensor reserves all rights in the Content and Services not expressly granted to Licensee in the Agreement.

(b) Licensee shall register to use the Services by providing certain profile and contact information to Licensor, which will be used to create a Licensee account.  Licensee accounts will be accessible to Authorized Users through individual access credentials.  Licensee and Authorized Users are responsible for maintaining the accuracy of registration information and the confidentiality of their usernames and passwords and shall not share usernames or passwords with anyone, including other employees of Licensee that are not Authorized Users. Licensee shall, and shall ensure that Authorized Users shall, keep confidential and not disclose to any third parties, any user identifications, account numbers and account profiles.

(c) Licensee agrees that Licensee’s and its Authorized Users’ use of the Services is dependent upon access to telecommunications and Internet services.  Licensee shall be solely responsible for acquiring and maintaining all telecommunications and Internet services and other hardware and software required to access and use the Services, including, without limitation, any and all costs, fees, expenses, and taxes of any kind related to the foregoing.

(d) Licensee shall not attempt to interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect thereto (except as required to access and use the Services). Subject to paragraph 2(a) herein, Licensee shall not allow access to or use of the Services by anyone other than Authorized Users and shall not share any Content or other information based on the Services with anyone other than Licensee’s personnel. Licensee shall not: (i) distribute any portion of the Content or Services; (ii) disclose, rent, lease, loan or otherwise transfer or provide access to the Services to any third parties; (iii) make any attempt to “re-identify” any Content or otherwise combine or associate Content with any other data or information in a manner that could infer information about or otherwise be linked to an individual or household; or (iv) transfer any of its rights hereunder (except as specified in paragraph 9).  Upon notification by Licensor, Licensee shall also abide by any requirements of applicable Third-Party Content Providers. Licensee understands that Third-Party Content Providers may choose at any time to limit, suspend or terminate the availability of use of their data in the Services and that Licensor or its affiliates shall not be responsible for or have any liability therefor. Licensee shall not use any Services in any manner that could, in Licensor’s good faith judgment, compete with any business, product or service of Licensor or its affiliates. Licensee shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, regulations and the rights of others.

(e) As between Licensor and Licensee, the Services (including all copies of the Services Platform, the Content, and the Delivery Channels), and all Intellectual Property Rights therein or relating thereto, are and shall remain the exclusive property of Licensor or its licensors.

(f) Licensee shall not use any of Licensor’s or its affiliates’ trademarks, trade names, or service marks (collectively the “Licensor Marks”) in any manner without Licensor’s prior written consent, and Licensee acknowledges that it has no ownership rights in and to the Licensor Marks.

(g) Licensor shall have the right at any time to make changes, enhancements, or upgrades to the Services and Licensee shall take all reasonable steps to maintain compatibility with the Services. Licensee agrees that Licensor may use Usage Data to improve and market the Services and other products or services reasonably related to the Services and to create analytics for distribution through the Services and other products or services reasonably related to the Services, provided that Licensee and Authorized Users are not identifiable and information identifying Licensee or Authorized Users may not be readily extracted from any analytics so distributed. Licensor reserves the right at any time to disable Licensee’s electronic requests or to cease providing the Services to Licensee in order to protect the integrity and security of Licensor’s network.

(h) Licensor may delegate certain of its responsibilities, obligations and duties under or in connection with the Agreement to a third party or an affiliate of Licensor, which may discharge those responsibilities, obligations and duties on behalf of Licensor.

(i) Each of Licensee and Licensor agrees to comply with all applicable laws and regulations with respect to its activities hereunder, including but not limited to, applicable data privacy and securities laws and regulations of the United States. Licensor reserves the right at any time to remove Content that in Licensor’s good faith belief would represent a failure by Licensor to comply with applicable law or regulation, or result in Licensor being subject to any regulatory requirement with respect to the provision of Content and/or the use of such Content by Licensee or any Authorized Users.

(j) Notwithstanding any other provision of this Agreement, Licensor  does not represent that the Services Licensee receives from Licensor or anything created using the Services is appropriate or available for use in any particular location or for any or all purposes. Licensee represents, warrants and covenants to Licensor and its affiliates that none of Licensee or any person who acts on behalf of or at the direction of Licensee shall use (or enable others to use) the Services or anything created using the Services in connection with: (i) activities relating to nuclear, chemical or biological weapons proliferation, terrorism, corruption, undermining of democratic rights and government, money laundering, tax evasion or human rights violations, or other similarly egregious activities or (ii) activity in, or for the benefit of, Crimea, Syria, Cuba, North Korea, or Iran (each, an “Excluded Jurisdiction”).

(k) Licensee represents, warrants and covenants to Licensor and its affiliates that none of Licensee or any person who acts on behalf of or at the direction of Licensee shall use (or enable others to use) the Services or anything created using the Services in connection with activity: (i) in, or for the benefit of, any country or region with respect to which the United Nations, United States, European Union and/or United Kingdom (the “Sanctioning Authorities”) maintains sanctions prohibiting all or substantially all shipment or provision of services, goods, technology or software (a “Sanctioned Jurisdiction”); (ii) going to, or for the benefit of, the government of an Excluded Jurisdiction or a Sanctioned Jurisdiction or a person located in or normally resident of an Excluded Jurisdiction or a Sanctioned Jurisdiction; (iii) involving or benefiting a government or person whose assets a Sanctioning Authority has blocked or to which a Sanctioning Authority restricts the shipment or provision of services, goods, technology or software (a “Prohibited Party”); (iv) for the purpose of, to the extent applicable, transacting in, providing financing for, or otherwise dealing in prohibited equity or debt of, or extending credit to, persons identified by (or owned or controlled, whether individually or in aggregate, by persons identified by) any Sanctioning Authority as being subject to sanctions prohibiting such activities; or (v) for any purpose that would be prohibited under the economic sanctions of any Sanctioning Authority.

(l) Each time Licensee receives or uses the Services or anything created using the Services, Licensee shall be deemed to represent and warrant to Licensor and its affiliates that none of Licensee or any person who acts on behalf of or at the direction of Licensee or any person on whose behalf Licensee is acting, is: (i) located in, normally a resident of, or the government of, any Excluded Jurisdiction or Sanctioned Jurisdiction; or (ii) a Prohibited Party.

3. Term and Termination

(a) Either party may terminate this Agreement, including the applicable Order Form, upon written notice if the other party materially breaches the Agreement and fails to correct the breach within fifteen (15) days following written notice specifying the breach; provided that the cure period for any default with respect to payment shall be five (5) business days.  If Licensor terminates the Agreement based on Licensee’s failure to pay Fees, then Licensee shall owe Licensor all of the fees due for the full Term.

(b)  Upon expiration or termination of the Agreement, Licensee’s and the Authorized Users’ right to access and use the Services shall immediately terminate. Licensee and its Authorized Users shall immediately (i) cease all use of the Services and (ii) delete and purge all Content (or ensure that Content is deleted and purged, as applicable), including any copies thereof, from any System (defined below) except that Licensee may store or archive (A) Resultant Data and (B) Content only as necessary to comply with internal audit and regulatory requirements, provided that Licensee does not otherwise use the Content and Licensee’s use of Resultant Data remains subject to the terms of the Agreement. Licensee shall provide Licensor with evidence satisfactory to Licensor of such deletions, purges and cessation of use. “System” means any software, hardware or other equipment or services used by Licensee to receive, store, analyze, or manipulate Content.

(c)  The rights and obligations of Licensor and Licensee contained in paragraphs 2e, 2(f), 3(b), 3(c), 4(b), and 5–12 and any other provision that expressly or by implication indicates survival after the Term, shall survive any expiration or termination of the Agreement.

4. Charges

(a)  In consideration for Licensor providing the Services, Licensee shall pay to Licensor the Fees in accordance with the Order Form. (b)  All Fees stated or referred to in the Agreement are exclusive of taxes, duties, levies, tariffs, and other governmental charges (including, without limitation, VAT) (collectively, “Taxes”).  Licensee shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on Licensor’s net income.

5. Warranties and Limitations of Liabilities 

(a) The Services, including without limitation the Content, Services Platform, and Delivery Channels, are provided “AS IS”, without warranty of any kind. LICENSOR AND ITS THIRD-PARTY CONTENT PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT OR THE SERVICES.  WITHOUT LIMITING THE FOREGOING, LICENSOR AND ITS THIRD-PARTY CONTENT PROVIDERS DISCLAIM ANY WARRANTY THAT THE SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED.  LICENSOR AND ITS THIRD-PARTY CONTENT PROVIDERS FURTHER DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SERVICES AS TO MERCHANTABILITY, ACCURACY OF ANY INFORMATION PROVIDED, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.  LICENSOR FURTHER DISCLAIMS ANY AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM LICENSOR OR ELSEWHERE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE AGREEMENT.

(b)  Nothing in the Services shall constitute or be construed as an offering of financial instruments or as investment advice or investment recommendations (i.e., recommendations as to whether or not to “buy”, “sell”, “hold”, or to enter or not to enter into any other transaction involving any specific interest or interests) by Licensor or a recommendation as to an investment or other strategy by Licensor.  No aspect of the Services is based on the consideration of Licensee’s individual circumstances, and data and other information available via the Services should not be considered as information sufficient upon which to base an investment decision.  Licensor does not express an opinion on the future or expected value of any security or other interest and does not explicitly or implicitly recommend or suggest an investment strategy of any kind.  The Services are not and shall not be construed as tax, accounting, legal or regulatory advice or opinions, or sufficient to satisfy any tax, accounting, legal or regulatory requirements. Licensee assumes sole responsibility and liability for results and Content obtained from the use of the Services and for conclusions drawn from such use. To the maximum extent permitted by law, Licensor and Third-Party Content Providers shall have no responsibility or liability, contingent or otherwise, for any injury or damages (whether caused by negligence or otherwise) arising in connection with the Agreement, and shall not be liable for any lost profits, losses, punitive, incidental or consequential damages. Licensor and Third-Party Content Providers shall have no responsibility or liability for any claims, losses, or damage caused by errors, inaccuracies, omissions or other failures in, or delays or interruptions of, the Services. Licensor shall have no liability for any claims, losses or damages arising out of or in connection with Licensee’s or any Authorized User’s use of any third-party products, services, software or web sites that are accessed via links from within the Services. Licensee shall indemnify Licensor and its affiliates and hold them harmless and at Licensee’s expense defend Licensor and its affiliates against any loss, claim, demand or expense (including reasonable attorneys’ fees) arising in connection with the use of the Services by Licensee or Authorized Users. Licensee’s indemnification obligations are contingent upon: (A) Licensor providing Licensee with prompt written notice of such claim; (B) Licensor providing reasonable cooperation to Licensee, at Licensee’s expense, in the defense and settlement of such claim; and (C) Licensee having sole authority to defend or settle such claim  (provided that no settlement shall contain admissions, or liability undertaken, by Licensor without Licensor’s consent, which consent shall not be unreasonably withheld or delayed). To the maximum extent permitted by law, it is agreed that the aggregate liability of Licensor arising in connection with the Agreement and the Services for damages, regardless of the form of the action, shall not exceed the Fees paid under the Order Form(s) by Licensee for the Services during the six (6) months immediately preceding the alleged injury or damage, and that this shall be Licensee’s exclusive remedy. No action, regardless of form, arising out of or pertaining to the Services may be brought by Licensee more than one (1) year after the cause of action has accrued. Licensor shall not be liable for any claim or demand against Licensee by a third party.

(c)  Notwithstanding any limitations contained in paragraph 5(b) of the Agreement to the contrary, Licensor shall indemnify Licensee and hold it harmless and at Licensor’s expense defend Licensee against any claim that the Services infringe any Intellectual Property Rights of any third party; provided that (i) Licensee promptly notifies Licensor in writing of the claim, (ii) Licensor shall have sole control of the settlement and defense of any action to which this indemnity relates (provided that no settlement shall contain admissions, or liability undertaken, by Licensee without Licensee’s consent, which consent shall not be unreasonably withheld or delayed), (iii) Licensee cooperates in every reasonable way to facilitate such defense and (iv) if Licensee becomes aware of any suspected infringement by a third party of any proprietary rights of Licensor, Licensee shall promptly notify Licensor of such activities. Notwithstanding anything to the contrary in this paragraph 5(c), Licensor shall not indemnify Licensee for any claim to the extent it arises from or in connection with any (x) additions, changes or modifications to the Services that were not made by Licensor or its affiliates, (y) incorporation of the Services into any product or service not provided by Licensor or its affiliates, or (z) breach or non-compliance with the terms of this Agreement. In the event that Licensor’s right to provide the Services is enjoined or in Licensor’s reasonable opinion is likely to be enjoined, Licensor may obtain the right to continue providing the Services, replace or modify the Services so that they become non-infringing, or, if such remedies are not reasonably available, terminate the Agreement without liability to Licensee.  THE FOREGOING STATES THE ENTIRE OBLIGATION OF LICENSOR AND ITS LICENSORS WITH RESPECT TO ANY ALLEGED OR ACTUAL INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS BY THE SERVICES.  Licensor shall have no liability under this paragraph 5(c) to the extent that any third-party claims described herein are based on use of the Services in a manner that violates the Agreement or the instructions given to Licensee by Licensor.

(d)  Neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder (except for the payment of money) on account of events beyond the reasonable control of such party, which may include without limitation denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes and material shortages (each a “Force Majeure Event”).  Upon the occurrence of a Force Majeure Event, the non-performing party will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues and such party continues to use commercially reasonable efforts to resume performance.

6.   Remedies 

(a)  The parties acknowledge that an actual or threatened breach of the Agreement by Licensee or any Authorized Users would cause irreparable harm to Licensor that could not be adequately relieved by monetary damages only. The parties therefore intend and agree that if such actual or threatened breach occurs, Licensor shall be entitled to injunctive relief to enforce the provisions hereof, but nothing herein shall preclude Licensor from pursuing any action or other remedy for any actual or threatened breach of the Agreement, all of which shall be cumulative.  If Licensor prevails in any such action, Licensor shall be entitled to recover from Licensee all reasonable costs, expenses and attorneys’ fees incurred in connection therewith.

(b)  Except as set forth in paragraph 5(c), the exercise by either party of any remedy under the Agreement will be without prejudice to its other remedies under the Agreement or otherwise.

7. Parties

Nothing in the Agreement shall be construed to create a partnership, joint venture or agency relationship between the parties.  Neither party will have the power to bind the other or to incur obligations on the other’s behalf without such other party’s prior written consent. Licensee agrees that Licensor’s affiliates and Third-Party Content Providers are third-party beneficiaries with respect to Licensee’s agreements and obligations hereunder.

8.   Access and Audit

(a)  Licensee shall at all times: (i) provide Licensor with good faith cooperation and access to such information as may be reasonably required by Licensor in order to provide the Services, including, but not limited to, providing registration information and security access; and (ii) carry out in a timely manner all other Licensee responsibilities set forth in the Agreement.  In the event of any delay in Licensee’s performance of any of the obligations set forth in (i) or (ii), or any other delays caused by Licensee, Licensor may suspend Licensee’s access to the Services as reasonably necessary to account for such delays.

(b)  Licensee shall ensure that all Authorized Users comply with the terms and conditions of the Agreement. Licensee shall be liable for any violation of the terms and conditions of the Agreement by any Authorized User. Licensee shall promptly notify Licensor of any suspected or alleged violation of the terms and conditions of the Agreement. Licensor and its affiliates may, in accordance with this paragraph, audit the Licensee’s premises, computers (including but not limited to, hardware, software, network services) and personnel for the purpose of determining Licensee’s compliance with the Agreement and use of Content. Any on-site auditing or access by Licensor or its affiliates shall be during normal business hours under the supervision and control of Licensee’s designated personnel and subject to Licensee’s reasonable and standard security procedures provided in writing to Licensor; provided, however, that such control and procedures shall not frustrate the purpose of (or the ability to conduct) the full audit. Upon Licensor’s request, Licensee shall arrange for personnel with sufficient knowledge of and expertise of Licensee’s use of the Services to provide a demonstration of such use, permissioning and access to the Services in the live, production environment(s) for observation by Licensor and its affiliates. Licensor and its affiliates shall not conduct more than one on-site audit in a calendar year unless Licensor suspects, in its good faith judgment, that Licensee has breached the Agreement, in which event Licensor and its affiliates may conduct additional on-site audits.  If an audit reveals Licensee to be in breach of the Agreement, including using the Services in a manner not specifically authorized, without prejudice to any other rights and remedies available to Licensor, Licensor shall have the right to terminate the Agreement and/or suspend or terminate any Authorized User’s access to the Services upon notice to Licensee. Licensee shall, upon request, no more than once per year and at the end of the Term, provide to Licensor a certificate signed by an authorized person knowledgeable about Licensee’s use of the Services and acceptable to Licensor confirming that Licensee is in full compliance with the Agreement.

9.   Assignment

Licensee shall not assign the Agreement or any of its rights hereunder without Licensor’s written consent in advance.

10.  Complete Agreement; Modifications or Waivers

(a) These Terms and Conditions together with the applicable Order Form constitute the complete and exclusive agreement between the parties concerning its subject matter and supersede all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of the Agreement.

(b) No alteration, amendment, waiver, cancellation or any other change in any term or condition of these Terms and Conditions or the applicable Order Form, shall be valid or binding on either party unless mutually assented to in writing by both parties. The waiver by either party of any default or breach of the Agreement shall not constitute a waiver of any other or subsequent default or breach.

11.  Validity 

If any provision of the Agreement shall be held invalid or unenforceable, the remainder of the Agreement shall not be affected and shall be valid and enforceable to the fullest extent permitted by law. The Agreement shall be reformed to the minimum extent necessary to correct any invalidity while preserving to the maximum extent the rights and commercial expectations of the parties. The headings in the Agreement are intended for convenience of reference and shall not affect its interpretation.

12.  Governing Law

The Agreement and all matters arising out of or relating to the Agreement shall be governed by the laws of the State of New York without giving effect to conflicts-of-law principles thereof.  The parties, and their successors and assigns, agree to submit to the exclusive jurisdiction of each of the federal and state courts located in New York County, New York in connection with any matters arising out of or relating to the Agreement and, in connection with any matters brought in such courts, the parties, and their successors and assigns, waive any objection to such venue, including forum non conveniens, sovereign immunity, Act of State or analogous doctrines.