- an access right to access and to use the Licensed Index Data; and
- a license to access and use the Licensed Index Data.
Scientific Infra is part of the EDHEC Group and seeks to develop, calculate, maintain and publish the Indices. Scientific Infra owns intellectual property rights related to the Indices, the data comprised therein and the files containing such data. In addition, Scientific Infra has registered certain trademarks in various countries worldwide (the “Trademarks”).
Scientific Infra makes its data and related information available on its website (currently indices.edhecinfra.com (the “Scientific Infra Website”). Scientific Infra also provides to authorized recipients upon request certain further information and data related to the Indices.
“Addendum” means any addendum to these Terms notified by Scientific Infra to the Licensee, which is part on these Terms.
“Affiliate” means in respect of either Party an entity either directly or indirectly Controlled by, Controlling or under common Control (as defined below) with such Party.
“Authorized Affiliate” means an Affiliate of the Licensee that is authorized by Scientific Infra, upon request of the Licensee, to access and use the Licensed Index Data according to these Terms and/or any applicable Addendum. Under these Terms, the Licensee is allowed to designate one, and one only, entity that is authorized to receive all Licensed Index Data. This entity can be changed from time to time at the express request of the Licensee. The responsibilities defined in these Terms and/or any Addendum, notably with regard to the obligations of third parties, shall apply to such Authorized Affiliate.
“Authorized Third Party” means any entity that is authorized by Scientific Infra, after a request from the Licensee, to access and use some or all of the Licensed Index Data, as Scientific Infra may decide.
“Commencement Date” means the date the Licensee accepts these Terms.
“Communication” has the meaning ascribed to in clause 3.11.
“Confidential Information” has the meaning ascribed to it in clause 15.2.
“Control” means direct or indirect ownership of greater than 50% of the equity interest in an entity.
“Derived Data” means any information or data resulting from the Licensee’s substantial manipulation or analysis of Index Data (whether generated by human or machine), whether alone or in conjunction with Licensee’s or third parties’ data such that the underlying Information is not discernable as being sourced from Scientific Infra.
“Derived Product” means any product that includes any Derived Data.
“EDHEC” means EDHEC Business School.
“EDHEC Group” means EDHEC and all the entities Controlled, directly or indirectly, by EDHEC Business School.
“Index” means an index created by Scientific Infra, and “Indices” means several of them.
“Index Data” means the composition lists, component level data, and any other data related to component level data, historical index values, index adjustments (reviews and changes) and other data and information, such as news, reports and charts, related to the Index, as amended by Scientific Infra from time to time, however published by Scientific Infra on the Scientific Infra Website, or delivered directly via File Transfer Protocol, or made available over the network operated by a third-party distributor or vendor that has a current, written agreement with Scientific Infra, permitting distribution of the Index Data or other any additional delivery/access methods provided by Scientific Infra.
“Informational Material” means the materials described in clauses 5.1 and 5.2, as applicable.
“Intellectual Property Rights” means patents, trademarks, service marks, trade names, design rights, copyrights, data base rights, know-how, formulas, methods, methodologies, any other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of any such rights, and any other legal protection, such as, but not exclusively, the protection granted through unfair competition legislation.
“Licensed Index Data” means those portions of the Index Data that are made available to the Licensee on the Scientific Infra Website and as may be amended from time to time by Scientific Infra.
“Licensee” refers to the natural person, company or other legal entity that has agreed to be bound by these Terms by accepting them.
“Licensee Client” means a client of the Licensee or of an Authorized Affiliate of the Licensee.
“License Fee” means the fee to be paid by Licensee to Scientific Infra, as applicable, under these Terms and/or any applicable Addendum.
“Licensor” means any third party which has licensed its Intellectual Property Rights to Scientific Infra, (notably, EDHEC).
“Party” or “Parties” refers to one or both parties to these Terms.
“Scientific Infra” means Scientific Infra Pte. Ltd., domiciled at 1 George Street, #15-02, Singapore 049145.
“Scientific Infra Intellectual Property” means any Intellectual Property Rights which apply to the Indices and which are owned by Scientific Infra, including but not limited to, the Trademarks.
“Territory” means the list of countries as may be amended from time to time by Scientific Infra, which includes to date all the countries of the world.
“Trademarks” means EDHECINFRA and any other registered or non-registered trade and service marks which are owned by, or licensed to, Scientific Infra.
- Grant of License
- Subject to these Terms, Scientific Infra hereby grants to the Licensee and its Authorized Affiliate a non-transferable, non-exclusive right and license to access and use the Licensed Index Data, and any associated Intellectual Property Rights under the terms and conditions hereinafter set forth in the Territory.
- The Licensee acknowledges that:
- the license granted under these Terms is subject to the Licensee’s and Licensee’s Authorized Affiliate’s full compliance with these Terms and/or any applicable Addendum;
- the Licensee must use and refer to the Licensed Index Data names in accordance with clauses 5 and 6 in all Informational Materials and acknowledges that Scientific Infra is the source of the Licensed Index Data;
- these Terms are strictly limited to the term as provided in clause 7 (i.e. Licensee must not use the Licensed Index Data, Index Data and/or Intellectual Property Rights before and/or after the term subject to anything provided for in these Terms or any other agreement between the Parties hereto);
- these Terms and/or any applicable Addendum is strictly limited to the use of the Licensed Index Data in connection with the reporting and analysis of the performance of the Licensee’s investments or investments in which they have an interest, on condition that these analyses are done under their own responsibility or in their sole interest. As a consequence of this provision, the Licensee is forbidden from using the Licensed Index Data to carry out a reporting or infrastructure investment analysis service to the benefit of a third party that has not been explicitly authorized by Scientific Infra. In the same way, transmission of Index Data to third parties is strictly limited to Authorized Affiliates and Authorized Third Parties;
- the Licensee is authorized to reproduce for its own personal use the documents associated with the Licensed Index Data;
- the Licensee is authorized to distribute Licensed Index Data such as performances, compositions and risks of the Licensed Index Data within its departments, to its Authorized Affiliate or with regards to Licensee Clients of investment products or investment products for which they cover advisory or commercialization activities. Such redistribution right is limited to the Licensed Index Data, and any associated Intellectual Property Rights only. The Licensee is not authorized, under these Terms, to redistribute any third party data that is part of the Licensed Index Data;
- the Licensee is authorized to use and refer to the Trademarks in connection with the management, marketing and promotion of its investment products or products for which it exercises advisory or sales activities in order to indicate that the performance or risk analyses produced are based on the Licensed Index Data and that Scientific Infra is the source of the Licensed Index Data. The Licensee is not authorized to use and refer to the Trademarks in its investment products; and
- the Licensee shall provide accurate contacts details when creating its user account on the Scientific Infra Website (as may be updated from time to time by the Licensee) for the transmission of the Licensed Index Data to the Licensee by Scientific Infra within the framework of the Licensee’s use of the Licensed Index Data.
- Notwithstanding anything to the contrary in these Terms, each Authorized Third Party shall be entitled to access and use part of the Licensed Index Data for the proper performance of its services for the Licensee and/or any other Authorized Third Party.
- The Licensee shall use reasonable endeavors to ensure that each Authorized Third Party complies with these Terms and that limitation of use, confidentiality and intellectual property protection rules contained in these Terms are known and respected by each Authorized Third Party. To this end, the Licensee will request yearly specific representation and warranties to each Authorized Third Party as to their conformance with these Terms. The Licensee shall refer to Scientific Infra of any breach of these Terms by any Authorized Party it has knowledge of. To the extent legally or contractually possible, the Licensee will subrogate Scientific Infra in its rights against any Authorized Third Party.
- Limitation of Use
- The Licensee acknowledges that the right of usage of the Licensed Index Data granted hereunder is limited to reporting and performance and risk analysis purposes in accordance with clause 2 and and/or any applicable Addendum. Specifically, these Terms do not provide for the possibility for the Licensee to build an investment strategy with the goal of totally or partially replicating one of the Index Data or of communicating on this subject.
- These Terms and/or any applicable Addendum does not allow the Licensee to give information on the composition of the Licensed Index Data to third parties which are not an Authorized Affiliate or Authorized Third Parties (with the exception of the information intended for a Licensee Client as part of its reasonable contractual or regulatory obligations).
- The Licensee acknowledges that the Licensed Index Data and its compilation and composition, and any changes therein, are and will be in the complete control and sole discretion of Scientific Infra and/or its Licensors.
- Nothing contained in these Terms and/or any applicable Addendum shall restrict Scientific Infra from licensing the Licensed Index Data or the Trademarks to any person or entity at any time.
- Nothing contained in these Terms and/or any applicable Addendum constitutes a license to the Licensee to use the Licensed Index Data or the Trademarks other than as expressly permitted herein.
- The Licensee acknowledges that the Licensed Index Data and the Trademarks are the exclusive property of Scientific Infra and that Scientific Infra has and retains all Intellectual Property Rights therein. These Terms and/or any applicable Addendum shall not be construed to transfer to the Licensee any ownership right to the Licensed Index Data or the Trademarks.
- The Licensee agrees that, unless otherwise expressly permitted in an Addendum to these Terms, nothing in these Terms includes a license grant to issue, list or trade options, futures, structured products or other derivatives on the Derived Product(s) and/or on the Derived Data.
- If the Licensee is in material breach of any provision of this clause 3, the following shall apply:
- Scientific Infra is entitled to block the Licensee’s access to Index Data and Scientific Infra Website with immediate effect.
- Scientific Infra is entitled to seek damages, in accordance with the limitations of liability herein.
- Furthermore, Scientific Infra is entitled to request that the Licensee rectify such a breach immediately. In particular, Scientific Infra shall have the right to request, inter alia, that the Licensee cease use of any Index Data, material, document, products, works, etc. that have been used or produced in breach of this clause 3.
- The foregoing does not entail any waiver or limitation of any other right or remedy available to Scientific Infra under the applicable laws and/or these Terms and/or any applicable Addendum.
- The Licensee may retain copies of historical Index Data to the extent and for the period reasonably necessary to satisfy its regulatory and audit obligations, and standard archival policies, only.
- Scientific Infra, may, upon giving Licensee not less than 30 (thirty) days’ notice audit on a confidential basis, during normal business hours and maximum once per year Licensee’s records and other relevant documents (excluding Licensee’s systems) related to Licensed Index Data solely to verify that the Licensee is in compliance with these Terms and/or any applicable Addendum. If Licensed Index Data have been transferred to an Authorized Third Party, the Licensee must make all arrangements in agreement with the Authorized Third Party to enable Scientific Infra to verify compliance by the Authorized Third Party of the rules relating to it as part of these Terms and/or any applicable Addendum. Scientific Infra shall bear the costs and any applicable charges of any such audit. If the audit reveals that the Licensee has not been in compliance with these Terms and/or any applicable Addendum, the Licensee will pay the costs of such audit and any applicable charges. It is expressly agreed that the execution or non-execution of this audit by Scientific Infra has no consequence on the responsibilities or liabilities of the Licensee or any Authorized Third Party.
- The Licensee shall communicate to the Authorized Third Parties the applicable provisions in these Terms and/or any applicable Addendum that relate to the use of Licensed Index Data (“Communication”). The Licensee shall provide Scientific Infra with a copy of the Communication within a reasonable time of Scientific Infra’s request. In no event shall the Licensee be required to provide Scientific Infra with any other communications, notices, documents or agreements it may have with or provide to any Authorized Third Party (including any underlying agreement therewith). In order for the Licensee to comply with this clause 3.11, Scientific Infra hereby provides its consent to the Licensee to disclose to each Authorized Third Party a redacted copy of these Terms and/or any applicable Addendum provided that Scientific Infra has approved the redacted copy before any Communication to Authorized Third Parties.
- License fees
In consideration of the rights granted to the Licensee in these Terms and each applicable Addendum, the Licensee acknowledges and accepts that the replication rights of the Licensed Index Data is not subject to any payment of any fees. At any time Scientific Infra may decide to establish fees to be paid by the Licensee to benefit from the rights of these Terms (the “License Fees”), subject to prior written notice to the Licensee and acceptance by the Licensee of such new terms.
- All confirms, term sheets, prospectuses, registration statements, and other offering documents, and all documents required to be filed with governmental or regulatory organizations, in each case that (i) relate to the investment products managed by the Licensee or are the object of an advisory or sales activity referring to the Licensed Index Data or that in any way use or refer to Scientific Infra, and (ii) are intended to be sent to or accessed by a third party outside the Licensee or of its Authorized Affiliate, shall contain a notice substantially similar to the long disclaimer specified in clause 6.
- All brochures, promotional materials, advertisements, and other similar documents that relate to the investment products managed by the Licensee or are the object of an advisory or sales activity and that (i) refer to the Licensed Index Data or that in any way use or refer to Scientific Infra and (ii) which are intended to be sent to or accessed by a third party outside the Licensee or of its Authorized Affiliate, shall contain a notice substantially similar to the short disclaimer specified in clause 6.
- The materials listed in clauses 5.1 and 5.2 will be referred to as the “Informational Materials”.
- For the avoidance of doubt, and without limiting the foregoing, the Licensee may include in its Informational Materials additional notices and disclaimers as may be required by law or otherwise.
- Display Guidelines
Subject to and in accordance with clause 5 of these Terms, the Licensee shall include the disclaimers below in all Informational Materials related to any Derived Product(s). The Long Disclaimer shall be used in all Informational Materials listed in clause 5.1 and the Short Disclaimer in all Informational Materials other than those listed in clause 5.1:
“The [insert name(s) of the Licensed Index Data] (the “Index”) referenced herein are the property of Scientific Infra. Each party acknowledges and agrees that the investment products managed, advised or commercialized by [insert name of the Licensee] are not sponsored, endorsed or promoted by Scientific Infra. Scientific Infra makes no representation whatsoever, whether express or implied, and hereby expressly disclaims all warranties (including without limitation, those of merchantability or fitness for a particular purpose or use), with respect to the Index or any data included therein or relating thereto, and in particular disclaims any warranty either as to the quality, accuracy and/or completeness of the Index or any data included therein, the results obtained from the use of the Index and/or the composition of the Index at any particular time on any particular date or otherwise and/or the creditworthiness of any entity, or the likelihood of the occurrence of a credit event or similar event (however defined) with respect to an obligation, in the Index at any particular time on any particular data or otherwise. Scientific Infra shall not be liable (whether in negligence or otherwise) to the parties or any other person for any error in the Index, and Scientific Infra is under no obligation to advise the parties or any person of any error therein.
Scientific Infra makes no representation whatsoever, whether express or implied, as to the advisability of purchasing or selling investment products referring to the Index, the ability of the Index to track relevant markets’ performances, or otherwise relating to the Index or any transaction or product with respect thereto, or of assuming any risks in connection therewith. Scientific Infra has no obligation to take the needs of any party into consideration in determining, composing or calculating the Index.
The [insert names of the Licensed Index Data] used in the present document are the intellectual property (including registered trademarks) of Scientific Infra and/or its licensors, which is used under license within the framework of the Scientific Infra activity. Scientific Infra is not responsible for the moral or material consequences of their use.
- Term and Termination
- Except as otherwise expressly provided for in an Addendum, these Terms shall commence on the Commencement Date and shall continue in full force and effect for an unlimited period of time, until the Licensee unsubscribes from the Scientific Infra Website.
- Scientific Infra reserves the right to terminate the subscription of a Licensee in case such Licensee does not log in into its account for a period of twelve consecutive months, subject to Scientific Infra giving prior written notice to such Licensee.
- Scientific Infra may terminate these Terms and/or any applicable Addendum upon 30 days prior written notice to the Licensee.
- The Licensee may terminate these Terms and/or any applicable Addendum simply by deleting its account on the Scientific Infra Website.
- In the event of termination of these Terms, the Licensee’s access to Scientific Infra Website will cease and the Licensee will not have access to Index Data. In accordance with clause 2.2 (c), the Licensee must not use the Licensed Index Data, Index Data and/or Intellectual Property Rights before and/or after the term subject to anything provided for in these Terms or any other agreement between the Parties hereto
- If there is a material breach of these Terms and/or an Addendum by either Party (such Party, the “breaching Party”), and, the other Party (the “non-breaching Party”), then the non-breaching Party may terminate these Terms and all applicable Addenda effective immediately after written notice thereof to the breaching Party (with reasonable specificity as to the nature of the breach or the condition causing such damage or harm, as the case may be, and including a statement as to such non-breaching Party’s intent to terminate).
- Notwithstanding anything to the contrary herein, Scientific Infra shall have the right, in its sole discretion, to cease compiling, calculating and publishing values of the Licensed Index Data at any time that Scientific Infra determines that such Licensed Index Data no longer meets or will not be capable of meeting the criteria established by Scientific Infra for maintaining the Licensed Index Data, and thereupon to terminate the license granted with respect to such Licensed Index Data under these Terms and/or any applicable Addendum.
- The Licensee agrees and acknowledges that certain data contained in the Licensed Index Data are, or may in the future be, licensed to Scientific Infra for redistribution by third parties, and the availability of such data and/or the Licensee’s right to receive and use those portions of the Licensed Index Data provided by Scientific Infra pursuant to licenses granted to Scientific Infra by third parties is subject to automatic termination without liability on the part of Scientific Infra upon the discontinuation or termination of the provision thereof to Scientific Infra.
- If Scientific Infra discontinues providing the Licensed Index Data and related information, Scientific Infra may terminate these Terms; and in such event Scientific Infra shall have no liability.
- Third Party Data
- The Licensee acknowledges and accepts that no further redistribution of the content provided by any third party is allowed under these Terms and/or Addendum except if the Licensee has previously entered into a separate, legally binding agreement with such third party and provided that such content is clearly identified in the relevant documents from Scientific Infra (together with the identity of the relevant third party), and that such redistribution does not create an adverse effect to Scientific Infra.
- Intellectual property
- The Licensee acknowledges and accepts that the entire content of the Scientific Infra Website, the Index Data and the files containing Index Data are, and shall remain, the property of Scientific Infra and/or its Licensors and that they are protected by copyright and/or other intellectual property laws and/or unfair competition or misappropriation laws. Such content may only be used in accordance with these Terms and/or any Addendum. Any unauthorized use is strictly prohibited.
- All trade names, trademarks, service marks and other product and service names and logos on the Scientific Infra Website or in any files provided by Scientific Infra are proprietary to their respective owners and are protected by applicable trademark laws. Any of the trademarks, service marks or logos (collectively, the “Marks”) displayed on the Scientific Infra Website or in any files provided by Scientific Infra may be registered or unregistered marks of Scientific Infra or others. Any unauthorized use of the Marks, including the Trademarks, is strictly prohibited.
- The portfolios and the respective returns, portfolio values, constituents, methodologies and all other subsets or elements of these portfolios are proprietary to Scientific Infra and are protected by copyright, patents, trademark law, data base rights and/or other Intellectual Property Rights, as the case may be.
- All Index Data produced by Scientific Infra, along with the associated data and documentation, are deemed part of Scientific Infra Intellectual Property or its partners associated with the Scientific Infra offering.
- The Parties agree to make all the necessary arrangements to protect Scientific Infra Intellectual Property associated with the Licensed Index Data, in accordance with these Terms and/or any applicable Addendum. Specifically, the Licensee will promptly disclose to Scientific Infra any case actually known to the Licensee of an infraction of the provisions of these Terms and/or any applicable Addendum by one of its employees or a third party who provides services to the Licensee in connection with the Licensed Index Data.
- The Licensee shall, at no cost to Scientific Infra, display/include the following notice on any display of any chart or table or other Derived Data or Derived Product, or other of any limited extract of Index Data which is intended to be sent to or accessed by a third party outside the Licensee or its Authorized Affiliate:
“Based on data sourced from Scientific Infra (indices.Scientific Infra.com) Copyright © 2019 Scientific Infra. All rights reserved.”
- The Licensee will own all Intellectual Property Rights which are not already Scientific Infra Intellectual Property in any and all Derived Data.
- Each Party hereby represents and warrants to the other Party that:
- it possesses the authorizations and the competences to carry out all of its obligations hereunder associated with the provision and use of the Licensed Index Data. In addition, the Licensee acknowledges that the exercise of its Licensee Client management mandate and any fiduciary obligations to its Licensee Client that may be related thereto will be independent of Scientific Infra. As such, the Licensee is solely responsible for the management decisions associated with the use of the Licensed Index Data.
- These Terms and each Addendum have been duly accepted by the Licensee and constitute a legal, valid and binding obligation of each Party, enforceable against the other Party in accordance with their provisions.
- The Parties agree that the representations and responsibilities set forth in this clause 10 shall survive the termination of these Terms and each Addendum.
- Scientific Infra shall use commercially reasonable efforts (including the use of industry standard antivirus software protection) to prevent the Index Data from being infected with any virus or disabling devices.
- Licensee will be able to contact a customer service department (the “Scientific Infra Client Services Department”) as referred below for any questions related to the delivery technical set-up of the Licensed Index Data and for any questions related to this delivery:
- Phone: +65 64380030
- E-mail: firstname.lastname@example.org
- Disclaimer of Responsibilities
- Neither Scientific Infra nor its Licensors are providing investment advice, tax advice, legal advice, or other professional advice and neither Scientific Infra nor its Licensors sponsor, recommend or endorse the purchase or sale of any security or investment product. Inclusion of a company or other component in a portfolio does not in any way reflect an opinion of Scientific Infra or its Licensors of the investment merits of such a company or other component. Subject to clause 11.3, all the Index Data have been prepared by Scientific Infra and are provided on an “as is” basis, are impersonal and not tailored to the needs of any person, entity or group of persons.
- Subject to clause 11.3, neither Scientific Infra nor any of its Licensors represents or warrants the accuracy, completeness, timeliness, sequence, currentness, merchantability, quality or fitness for any particular purpose of the Index Data, or any portion thereof. If the Licensee wishes to rely on the Licensed Index Data in any way, it is the Licensee’s responsibility to independently verify the accuracy, completeness or timeliness of those Licensed Index Data.
- In providing the Licensed Index Data, Scientific Infra shall use commercially reasonable endeavors to perform its obligations hereunder in accordance with Good Industry Practice (where “Good Industry Practice” means, in relation to any particular circumstances, the degree of skill, diligence, prudence, foresight and operating practice which would reasonably and ordinarily be expected from a skilled and experienced provider of equivalent services (including as to timeliness and method of data creation) and/or data of a similar type to that provided pursuant to these Terms and/or any applicable Addendum under the same or similar circumstances and conducted in accordance with all applicable laws, rules and regulations).
- The Index Data shall not be used for any unlawful or unauthorized purposes.
- Limitation of Liability
- To the extent permitted under applicable law and subject to clause 12.5, neither Scientific Infra nor any of its Affiliates, agents or Licensors shall be liable to the Licensee or anyone else for contingencies beyond its reasonable control in procuring, compiling, interpreting, reporting or delivering Index Data.
- Scientific Infra will do everything in its power to guarantee quality of service but cannot be held responsible for any involuntary errors or omissions relating to any Index Data, provided that it will deploy reasonable efforts to promptly notify the Licensee of any such errors or omissions of which it becomes aware.
- To the extent permitted under applicable law and subject to clause 12.5, in no event will Scientific Infra or any of its Affiliates, agents or Licensors be liable to the Licensee or anyone else for any conclusions derived from, any decision made, or any actions taken by the Licensee or anyone else based on the use of any Index Data provided and to the extent that Scientific Infra has complied with clause 11.3.
- To the extent permitted under applicable law and subject to clause 12.5 neither Party nor any of its Affiliates, agents and Licensors shall be liable to the other Party or anyone else for (i) any indirect, punitive or consequential loss or damage, or (ii) any loss of income, profits, goodwill, data, contracts, use of money, or loss or damage arising from or connected in any way to business interruption (in each case on an indirect basis), and in each case whether in tort (including without limitation negligence), contract or otherwise, even if advised of the possibility of such damages.
- Nothing herein excludes or limits the liability of either Party or any of its Affiliates, agents or Licensors (i) for fraud, (ii) for death or personal injury caused by its negligence, or (iii) which may not be excluded or limited under applicable law. The limits of each Party’s liability shall not apply in respect of (i) any liability arising as a result of its gross negligence or willful misconduct; (ii) a willful breach of the Intellectual Property Rights of either Party by the other Party or its Affiliates; and (iii) each Party’s obligations under clauses 13 (Indemnification) and 15 (Confidentiality).
- Neither Party nor any of its Affiliates, agents and Licensors shall be liable for damages resulting from 'force majeure', riot, acts of war, epidemics, natural disasters, or other events over which they have no control, (including, without limitation, strikes, lock-outs, traffic disruptions, orders by governmental authorities, or (provided that the relevant Party has implemented and maintained business continuity and disaster recovery systems in accordance with Good Industry Practice) as a consequence of technical problems, such as IT disruptions, for which they are not at fault. The term 'force majeure' shall also include computer viruses or intentional attacks by 'hackers' on IT systems, provided that reasonable security systems were in place to avert damage from such attacks.
- The Licensee will indemnify, defend and hold harmless Scientific Infra, its Affiliates, officers, directors, employees, Licensors and agents (together the “Scientific Infra Indemnitees”) from and against any and all losses, liabilities, damages, costs (including reasonable attorneys’ and experts’ fees) as a result of any claim, action, or proceedings brought by any third party against any Scientific Infra Indemnitees arising from (i) any third party accessing of all or part of the Index Data through or by the Licensee in breach of these Terms and/or any applicable Addendum; or (ii) a breach of clause 15 (Confidentiality) below.
- Scientific Infra will indemnify, defend and hold harmless the Licensee and its Authorized Affiliate and Authorized Third Parties (together the “Licensee Indemnitees”) from and against any and all claims brought by any third party against any Licensee Indemnitees arising from (i) any claim that the provision of the Licensed Index Data by Scientific Infra infringes or misappropriates any Intellectual Property Rights of such third party or (ii) a breach of clause 15 (Confidentiality) below.
- Subject to clause 12.5, the total aggregate liability (whether in tort (including without limitation negligence), contract or otherwise) of Scientific Infra (including its Authorized Affiliates, officers, directors, employees and agents), arising out of or in connection with these Terms and all Addenda together, shall in relation to all events occurring in any calendar year not exceed the License Fees.
- Performance disclosure
- Charts and graphs are provided for illustrative purposes. Past performance is no guarantee of future results. These charts and graphs may reflect hypothetical historical performance. All information presented prior to the index inception date is back-tested. Back-tested performance is not actual performance, but is hypothetical. The back-test calculations are based on the same methodology that was in effect when the Index was officially launched. Complete Scientific Infra index methodology details are available on the Scientific Infra Website. Besides, the Licensee accepts and acknowledges that any changes in the methodology may have an impact on the back-test calculations.
- Past performance of an index is not an indication of future results. Prospective application of the methodology as well as revisions to economic data, where applicable, used to construct the index may not result in performance commensurate with the back-test returns shown. The back-test period does not necessarily correspond to the entire available history of the index. Please refer to the methodology paper for the index, available at the Scientific Infra Website for more details about the index, including the manner in which it is rebalanced, the timing of such rebalancing, criteria for additions and deletions, as well as all index calculations.
- Another limitation of back-tested hypothetical information is that generally the back-tested calculation is prepared with the benefit of hindsight. Back-tested data reflect the application of the index methodology and selection of index constituents in hindsight. No hypothetical record can completely account for the impact of financial risk in actual trading. For example, there are numerous factors related to the equities (or fixed income, or commodities) markets in general which cannot be, and have not been accounted for in the preparation of the index information set forth, all of which can affect actual performance.
- The index returns shown do not represent the results of actual trading of investable assets/securities. Scientific Infra maintains the index and calculates the index levels and performance shown or discussed, but does not manage actual assets. Index returns do not reflect payment of any sales charges or fees an investor may pay to purchase the securities underlying the Index or investment funds that are intended to track the performance of the index. The imposition of these fees and charges would cause actual and back-tested performance of the securities/fund to be lower than the index performance shown.
- Each Party shall treat as confidential and, except as otherwise provided herein, shall not disclose or transmit to any third party (i) the information provided under these Terms and/or any applicable Addendum and (ii) these Terms and and/or any applicable Addendum. All of the provisions of these Terms and any applicable Addendum are submitted to a strict obligation of confidentiality. Moreover, each Party will make all arrangements to ensure the highest level of confidentiality with respect to the information provided by the other Party within the framework of the execution of these Terms and any applicable Addendum.
- Except as expressly provided below, each Party agrees that all information, whether oral, written, via computer disk or electronic media or otherwise, to which such Party is given access or are made available to such Party by the other Party (including by the other Party’s agents and Representatives, defined below) in connection with these Terms and/or any applicable Addendum is referred to as “Confidential Information”. Confidential Information shall include, without limitation, all Intellectual Property Rights, technology, know-how, processes, trade secrets, contracts, proprietary information, historical and projected financial information, operating data and organizational cost structures, strategic or management plans, customer information and customer lists, whether received before or after the date hereof. Confidential Information shall also include information of or relating to any parent, subsidiary or Affiliate of each Party.
- Except as expressly provided herein, each Party agrees to hold all Confidential Information in confidence, that it will not disclose any Confidential Information to any person (including any entity), other than its directors, officers, auditors, advisors or employees (including contingent workers hired for staff augmentation purposes) who have a need to know such information in connection with these Terms and/or any applicable Addendum (collectively, “Representatives”), and that it and its Representatives will not use any such Confidential Information for purposes other than in connection with these Terms and/or any applicable Addendum. Each Party agrees to inform its Representatives of the confidential and valuable nature of the Confidential Information and of its obligations under these Terms and/or each applicable Addendum. Each Party shall be responsible and liable for any breach of these Terms and/or any applicable Addendum by its Representatives.
- The strict obligation of confidentiality shall not apply to any confidential information which (i) was already rightfully known to the receiving Party prior to the time that it is disclosed to the receiving Party hereunder; (ii) is or has become publicly available through no breach of these Terms and/or any applicable Addendum or other wrongful act of the receiving Party; (iii) has been rightfully received from a third party not under obligation of confidentiality to the disclosing Party and without breach of these Terms and/or any applicable Addendum; (iv) has been approved for release by written authorization of the disclosing Party; (v) is independently developed by one Party without using the Confidential Information of the other Party; or (vi) is required to be disclosed by a Party or its Representatives in connection with a deposition, interrogatory, request for documents, subpoena, civil investigative demand, request of regulatory agency or self-regulatory agency having or claiming jurisdiction over a party, or similar process, provided that the disclosing Party has been given reasonable notice of the pendency of such an order and the opportunity to contest it.
- The provisions of this clause 15 shall survive any termination of these Terms.
- Scientific Infra reserves the right to amend these Terms from time to time. These amendments shall apply to the Licensee as soon as they are approved online by the Licensee. Failure by the Licensee to consent to amendments of these Terms shall entitle Scientific Infra to the suspension of the license.
- Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other Party’s prior written consent (not to be unreasonably withheld); provided, however, either Party may assign this license in its entirety, without the other Party’s consent to its Affiliates or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a Party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this license upon written notice.
- Invalidity / No Waiver
- If any provision in these Terms and/or any Addendum is invalid or unenforceable under the applicable law, the remaining provisions will continue in full force and effect.
- The failure of either Party to insist upon strict compliance with any term or provision of these Terms and/or any Addendum shall not be construed as a waiver with regard to any subsequent failure to comply with such term or provision.
- Competent jurisdiction and applicable law
- Each Party irrevocably agrees to submit to the jurisdiction of the courts of Singapore as regards any claim or matter arising under or in connection with these Terms or any Addendum or their subject matter or formation (including non-contractual disputes and claims).
- These Terms and each Addendum and all disputes and claims arising out of or in connection with them or their formation (including non-contractual disputes and claims), shall be governed and construed in accordance with the laws of Singapore.
- Other matters
- All notices and other communications under these Terms shall be (i) in writing, (ii) by electronic mail at the electronic mail address, in the case of the Licensee, used by the Licensee to create its account on the Scientific Infra Website, and in the case of Scientific Infra email@example.com (or to such electronic mail address as any Party may from time to time notify the other). A notice so served by electronic mail shall be deemed to have been given, at the time such communication is sent provided that no notification was received by the sender that the electronic mail was undeliverable, provided that in case where delivery by electronic mail occurs after 6.00 pm on a business day or on a day which is not a business day, a service of electronic mail shall be deemed to occur at 9.00 am on the next following business day.
- Scientific Infra may transfer its rights and obligations under these Terms and/or any Addendum to any entity controlled or managed by EDHEC without any formality other than simple information to the Licensee.
- The Parties hereto are independent contractors. Nothing herein shall be construed to place the Parties in the relationship of partners or joint venturers, and neither Party shall acquire any power, other than as specifically and expressly provided in these Terms and/or any applicable Addendum, to bind the other in any manner whatsoever with respect to third parties.
- No breach, default or threatened breach of these Terms and/or any applicable Addendum by either Party shall relieve the other Party of its obligations or liabilities under these Terms and/or any applicable Addendum.