CBSDIRECT ADDENDUM

TO THE ELECTRONIC ACCESS AGREEMENT

 

CBSDirect Application Addendum dated May17, 2018

 

This CBSDirect Application and Database Addendum (“Database Addendum”) to the Electronic Access Agreement (the “Access Agreement”) is issued pursuant to and deemed to be a part of the Access Agreement between you and us with the terms and conditions of the Access Agreement incorporated by reference, and any violation or breach of this Database Addendum shall be deemed a violation or breach of the Access Agreement as well.  To the extent there is a conflict between the terms of the Access Agreement and the terms of this Database Addendum, with respect to the Database and your use thereof, the terms and conditions of this Database Addendum will prevail.  Capitalized terms and other terms not otherwise defined herein and defined in the Access Agreement shall possess the meanings ascribed in the Access Agreement. 

 

BEFORE ACCESSING THIS APPLICATION AND DATABASE PLEASE READ THIS DATABASE ADDENDUM WHICH GOVERNS ACCESS TO, AND USE OF, THE APPLICATION KNOWN AS CBSDIRECT (THE “APPLICATION”), AND THE DATABASE (DEFINED BELOW) AND CONTAINS IMPORTANT INFORMATION ABOUT YOUR LEGAL RIGHTS AND LIABILITIES. 

 

For the purposes of this Database Addendum, the “Database” includes the global investor data, other data and information collected and compiled by us, and/or our vendor/licensor/supplier, who shall be deemed a Source under the Access Agreement, and accessed via the Application and all other database content accessed via the Application, and is part of the defined term “Services” contained in the Access Agreement.   

 

1.License

Subject to the terms and conditions of the Access Agreement and this Database Addendum (collectively “Agreement”), we grant to you a nontransferable , nonexclusive right to use the Database on the following terms: (a) access will be limited to permitted users each of whom is an employee or agent of our client (“Client”) and each of whom has been issued a password by  us (each a “Permitted User”); (b) your rights are personal, non-transferable, non-sublicensable, non-exclusive; and (c) access may be terminated and this license revoked by us upon any breach by you of the Agreement. We shall provide one or more passwords or other information necessary to permit access.  You shall be permitted to substitute a user upon written notice (which may be via e-mail), which notice states the name, e-mail address, department and location of such user, so long as such user is permitted to access the data licensed hereunder.  The license and your access is expressly conditioned upon your compliance with the following requirements:

(a) You may access and use the Database solely for use in the Investor Relations Activities of our Client for its internal use and not for any further redistribution or for any other person, entity or purpose, and in connection with the foregoing, for the following purposes: (i) to view any of the data; (ii) to send information or materials to persons or institutions whose Contact Data (defined below) is found in the Database (“Database Contacts”) through the “BD Mail” feature on the Application or via regular mail or courier, provided that all such communications comply with Applicable Laws and the Data Privacy provisions contained herein; (iii) to download limited portions of information from the Database through the “Excel Download” feature on the Website for use by Permitted Users; and (iv) to print limited portions of the Database for use by Permitted Users.

(b) You agree to abide by the following restrictions on the use of the Database: (i)  you may not create a “local” copy of any portion of the Database on any computer, system, form of media or otherwise; (ii) you may not permit any third party or any other employee or agent of our Client other than yourself to use your password or otherwise have access to the Database; (iii)  except as expressly permitted in the first paragraph of this Section 1, you may not disclose any information from the Database to any third party at any time, nor may you redistribute any information obtained from the Database in any form or manner to any third party; (vi) unless otherwise agreed in writing you may not use information from the Database to create investor profiles for external distribution or otherwise in a manner not permitted by this Agreement; (v) you may not use information from the Database to update your or our Client’s or any other entity’s own internal database; and (vi) after termination or expiration of this license, you may not use any information obtained from the Database for any purpose, including, but not limited to, sending any fax, e-mail or mailing to any Database Contacts, and upon such termination or expiration shall delete or destroy all Database data (including any documents or materials containing Database data) in your possession and/or control except that you may use Contact Data (as defined below) from the Database to continue communications with Database Contacts you had communicated with, and from whom our Client has received revenue, within the twelve months prior to termination of this license and Database Addendum. “Contact Data” shall include only the name, office address, office email, office telephone and fax number, and business title of the Database Contact, plus notes added by you. Notwithstanding the above, you may retain one copy of such documents or materials containing Database data for archival purposes only to the extent required for regulatory purposes, or as otherwise required by law or in connection with the business continuity/disaster recovery policies of our Client and, further, provided that such copies shall not be accessed or used for any other purpose and, in any event, shall remain subject to the restrictions herein.

(c) You will not use or permit anyone else to use the Database in connection with the creating, managing, advising, writing, trading, marketing or promotion of any securities or financial instruments or products, including, but not limited to, funds, synthetic or derivative securities (e.g., options, warrants, swaps, and futures), whether listed on an exchange or traded over the counter or on a private-placement basis or otherwise or to create any indices (custom or otherwise). 

(d) As between us and you, you shall treat the Database as proprietary to us and our Source.  Further, as between you and us, you acknowledge that we and/or our Source, and/or its third party providers are the sole and exclusive owner(s) of the Database, application, functionality and any trade secrets, copyrights, patents, trademarks and other intellectual property rights in or to the Database, application and the applications functionality.

(e) You hereby acknowledge our Source as a third party beneficiary of the Agreement, entitled to enforce all provisions therein relating to the Database.

2.     Disclaimer of Warranties and Limitation on Liabilities

We and/or Sources may provide feeds of third party content, by bringing the third-party material into the Application via a Really Simple Syndication Feed (an "RSS Feed"). We and/or Sources have no discretion to alter, update, or control the content accessed through an RSS Feed. The fact that we provided access to a site is not an endorsement, authorization, sponsorship, or affiliation with respect to such site, its owners, or its providers. There are inherent risks in relying upon using, or retrieving any information found on the internet, and we urge you to make sure you understand these risks before relying upon, using, or retrieving any such information accessed via an RSS Feed. WE AND/OR SOURCES DO NOT ENDORSE AND ARE NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH AN RSS FEED, (B) ANY CONTENT PROVIDED BY ANY RSS FEEDS OR (C) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM AN RSS FEED. WHEN YOU ACCESS AN RSS FEED VIA THE SITE, YOU DO SO AT YOUR OWN RISK. WE AND/OR SOURCES TAKE NO RESPONSIBILITY FOR THIRD PARTY ADVERTISEMENTS WHICH ARE OR MAY BE POSTED ON ANY RSS FEED.

SEE THE DISCLAIMER OF WARRANTIES AND LIMITATION ON LIABILITY CONTAINED SECTION 14 OF THE ACCESS AGREEMENT, WHICH AS STATED ABOVE, ARE INCORPORATED HEREIN AND SHALL APPLY TO THE DATABASE AND THE SERVICES PROVIDED UNDER THIS DATABASE ADDENDUM AS THOUGH FULLY SET FORTH HEREIN AND FOR PURPOSES OF SUCH SECTION, J.P. MORGAN PERSONS SHALL INCLUDE OUR SOURCE AND ITS THIRD PARTY PROVIDERS.   

IN NO EVENT SHALL WE OR ANY SOURCE OR ANY THIRD PARTY INVOLVED IN OR RELATED TO THE MAKING OR COMPILING OF THE DATA OR THE DATABASE, BE LIABLE TO YOU, OR ANY OTHER THIRD PARTY, FOR ANY DIRECT OR INDIRECT DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOST PROFITS, LOST SAVINGS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THIS DATABASE ADDENDUM OR THE INABILITY OF THE CLIENT TO USE THE DATABASE, REGARDLESS OF THE FORM OF ACTION. THE ABOVE SHALL NOT BE DEEMED TO CONFLICT WITH OR IN ANY WAY LIMIT ANY DISCLAIMERS OR LIMITATIONS ON LIABILITIES CONTAINED IN THE ACCESS AGREEMENT.

3.Indemnification

See “Indemnity and Injunctive Relief” in Section 21 of the Access Agreement, which as stated above, is incorporated herein and shall apply to this Database Addendum and the Services provided under this Database Addendum as though fully set forth herein. Additionally, for purposes of such Section, our Source and its third party providers shall be deemed J.P. Morgan Persons, and any violation or breach of this Database Addendum shall be deemed a breach or violation of the Access Agreement.

4. Governing Law

Notwithstanding anything contained in the Access Agreement, or any master agreement or any other agreement between you (or our Client) and us, the collection, storage, processing and provision of the application and the Database and any and all data and content included therein and the Services provided hereunder are governed by the laws of the state of New York without giving effect to the conflicts of law provisions thereof.   

5.Uploaded Information

You acknowledge that you may submit personal information about yourself and your contacts in connection with your use of the Application (the “Uploaded Information”). This information will be treated in accordance with our privacy policy, which can be found on the homepage of the J.P. Morgan Markets portal, including those provisions that permit service providers to collect, use and store information in order to provide services to us.  You further acknowledge that the Database, as collected and sold to customers, contains information on individuals and companies in the financial and investment communities, which information is collected independently by the research department at our Source. You (and/or the contacts contained in your Uploaded Information) may be a part of the financial community and therefore personal information about you (or such contact) may appear in the Database. Nonetheless, your Uploaded Information is kept separate from, and is not used in connection with, this Database information, which Database information will continue to be used as part of the general database sold to customers.

Neither we nor any Source shall have any responsibility for any Uploaded Information or access thereto, and neither we nor any Source shall be responsible for any loss, unavailability, or corruption of the content of any Uploaded Information. You are responsible for (i) ensuring that all Uploaded Information submitted by you complies with applicable law and (ii) obtaining all necessary rights to upload, publish, or disseminate such Uploaded Information.

We and our Source reserve the right to refuse to post or transmit or to remove any Uploaded Information in whole or in part, in our respective sole discretion, including any Uploaded Information that we or our Source believe has been uploaded in violation of this Addendum or the Access Agreement or constitutes a threat to the operation or integrity of the Application.

YOUR COMPANY (I.E., OUR CLIENT) HAS ELECTED TO ENABLE THE “ENTERPRISE” FUNCTIONALITY (THE ABILITY TO SHARE INFORMATION WITHIN COMPANY USER ACCOUNTS) WITHIN THE APPLICATION. THEREFORE YOUR UPLOADED INFORMATION WILL AUTOMATICALLY BE SHARED WITH OTHER APPLICATION USERS WITHIN YOUR COMPANY AS SOON AS YOU PROVIDE IT. IF YOU DO NOT WANT YOUR UPLOADED INFORMATION SHARED WITH OTHER USERS IN YOUR COMPANY, YOU SHOULD NOT UPLOAD ANY INFORMATION INTO THE APPLICATION.

6.    Data Privacy Provisions

( a) You acknowledge and agree that with respect to any processing undertaken by or on behalf of your company (our Client) of any Personal Data contained in the Database (including any Contact Data) to the extent that such Personal Data is governed by or subject to the Data Protection Legislation (defined below) (the “Relevant Personal Data”), our Client is the Data Controller. We and our Source acknowledge and agree that with respect to any processing undertaken by any of us of any Relevant Personal Data, we or our Source is the Data Controller. You agree to comply with the Data Protection Legislation (including terms applicable to it as a Data Controller) and the e-Privacy Legislation, in connection with processing of the Relevant Personal Data by you on behalf of our Client or on your behalf.

(b)   We and our Source have implemented appropriate technical and organizational measures designed to ensure and to enable our Source to demonstrate that its processing of the Relevant Personal Data is performed with adequate safeguards for the protection of the Relevant Personal Data.  Additionally, our Source has adopted and implemented policies, procedures and systems to respond to its legal obligations and the needs of the Data Subject whose Relevant Personal Data is being processed (“Relevant Data Subjects”), including the provision for Relevant Data Subjects to unsubscribe/opt-out from the Database and/or marketing communications, and will update its records accordingly.

(c)   You acknowledge and agree that (i) the Database includes business contacts of third party individuals that are collected by our Source from a variety of public sources and from third party purchased lists, for the following purposes: to compile such data and include it in a database resource of contacts in the capital markets community, and to license such database to customers to use for internal business purposes and to facilitate relevant Business to Business Communications (including information exchanges) within the capital markets community, subject to compliance by you and our Client with all Applicable Laws, including Data Protection Legislation, e-Privacy Legislation and other laws applicable to communications with the Relevant Data Subject in the jurisdiction where the Relevant Data Subject is located; (ii) you will process the Relevant Personal Data only for Business to Business Communications, and in compliance with all Applicable Laws (including Data Protection Legislation, e-Privacy Legislation and other laws applicable to communications with the Relevant Data Subject in the jurisdiction where the Relevant Data Subject is located), and, prior to carrying out any processing of the Relevant Personal Data that is outside the scope of Business to Business Communications, or if required under other laws applicable to communications with the Relevant Data Subject in the jurisdiction where the Relevant Data Subject is located, prior to any communications with the Relevant Data Subject, it will obtain the prior explicit consent of the Relevant Data Subjects to its intended use of the Relevant Personal Data; (iii) you shall, and shall cause our Client’s Permitted Users, personnel, agents and subcontractors to, refrain from using the Relevant Personal Data to contact Relevant Data Subjects who have unsubscribed or opted-out from communications for any purpose, including direct marketing or Business to Business Communications and shall maintain appropriate suppression lists of Relevant Data Subjects who unsubscribe from, or opt-out of, receiving to any form of communications; (iv) you will promptly notify us and/or our Source of the Relevant Data Subjects’ communication preferences, including where the Relevant Data Subjects unsubscribe/opt-out of any form of communications, to enable our Source to update its own records; (v) you shall review the Relevant Data Subjects’ preferences and any suppression lists or notices maintained by us or our Source regularly and before sending any communications to any Relevant Data Subject, including Business to Business Communications; (vi) prior to processing any Relevant Personal Data, you shall implement, and confirm that our Client has implemented, appropriate technical and organizational measures designed to ensure and to enable our Client to demonstrate that its processing of such Relevant Personal Data is performed with adequate safeguards for the protection of the Relevant Personal Data, including ensuring that it has implemented appropriate adequate safeguards prior to any transfer of the Relevant Personal Data outside the European Economic Area; (vii) notwithstanding anything contained in the Agreement to the contrary, you and our Client will permit and assist with any audits conducted by us or our Source regarding Relevant Personal Data, and (viii) prior to processing any Relevant Personal Data, you shall confirm that our Client has adopted and implemented policies, procedures and systems to respond to its legal obligations and the needs of the Relevant Data Subject whose Relevant Personal Data is being processed, including the provision for Relevant Data Subjects to unsubscribe/opt-out of the communications, and update its records accordingly.

(d)   As used in this Database Addendum, the following terms have the meanings ascribed to them as follows:

“Applicable Laws” shall have the meaning set forth in the Access Agreement, and for purposes of this Database Addendum shall also include “(F) the jurisdiction of our relevant Source entity, of the Relevant Data Subject and any other jurisdiction applicable to the Database, the Contact Data and/or your or our Client’s use thereof.”

“Business to Business Communications” shall mean communications between or directed at corporate organizations (not including individuals, sole traders or partnerships) for the purposes of selling or marketing goods and/or services to the organization, which are relevant to the business of the individuals to whom such communications are sent, and which the individual would expect to receive in his/her business role.

“Data Protection Legislation” means any law or regulation in force from time to time which implements the European Community’s Directive 95/46/EC, Directive 2002/58/EC, the General Data Protection Regulation 2016/679 (“GDPR”), which shall only apply from 25 May 2018, and/or any equivalent national laws and regulations which otherwise regulate the processing of Personal Data and is applicable to the Products or Services provided pursuant to this Agreement. "Data Controller,” “Data Processor”, “Data Subjects” and “Personal Data” have the meanings given to each respectively in the Data Protection Legislation.

“e-Privacy Legislation” means any law or regulation in force from time to time which implements the European Community’s Directive 2002/58/EC and/or the proposed e-Privacy Regulation 2017/0003 (COD), which is intended to replace the Directive 2002/58/EC and/or any equivalent national laws and regulations which otherwise regulate direct marketing to individuals pursuant to this Agreement.

 

PLEASE EVIDENCE (i) YOUR AGREEMENT TO THIS DATABASE ADDENDUM ON BEHALF OF YOURSELF AND OUR CLIENT BY CLICKING ON THE BUTTON BELOW MARKED “ACCEPT” OR (ii) THAT YOU DO NOT AGREE TO THIS DATABASE ADDENDUM BY CLICKING ON THE BUTTON BELOW MARKED “NOT ACCEPT”.  BY CLICKING ON THE BUTTON BELOW MARKED “ACCEPT” YOU (A) ACKNOWLEDGE AND AGREE ON BEHALF OF YOURSELF AND THE ABOVE REFERENCED CLIENT THAT YOU AND SUCH CLIENT AGREE AND INTEND FOR THIS DATABASE ADDENDUM TO BE THE LEGAL EQUIVALENT OF A SIGNED, WRITTEN CONTRACT AND EQUALLY BINDING, AND (B) WARRANT AND REPRESENT THAT YOU HAVE ALL REQUISITE LEGAL AND CORPORATE POWER TO ENTER INTO THIS DATABASE ADDENDUM ON BEHALF OF SUCH CLIENT. ANY SUCH CLICKING SHALL HAVE THE SAME FORCE AND EFFECT AS A PAPER COPY OF AN ADDENDUM THAT HAS BEEN MANUALLY SIGNED AND DELIVERED BY YOU ON YOUR BEHALF AND AS AN AUTHORIZED SIGNATORY OF THE REFERENCED CLIENT.

The parties agree that:

(a)           This Database Addendum will be formed by your clicking the “Accept” button.

(b)           The time of formation of this Database Addendum will be the time at which the J.P. Morgan IT system receives the record of your clicking the “Accept” button.

(c)           The place of formation of this Database Addendum will be:

i.        New York where you click the “Accept” button in an Americas Country,

ii.       London where you click the “Accept” button in an EMEA Country, and

iii.      Singapore where you click the “Accept” button in an APAC Country.

Notwithstanding clauses ii. and iii. above, or anything contained in the Access Agreement to the contrary, Section 4 “Governing Law” above shall apply regardless of the place of formation of the contract.