(a) Order Form. Each Order Form shall be deemed to incorporate these Terms and Conditions and together they shall constitute the entire agreement between Customer and Fastmarkets for the Services (the “Agreement”). All terms not defined in these Terms and Conditions shall have the meanings ascribed to them on the Order Form. The Customer may order additional Services from time to time by executing additional Order Forms which will reference these Terms and Conditions.
(b) Subscription Term. The initial term (the “Initial Term”) shall be as set forth on the Order Form and it shall be automatically extended by successive renewal terms equal to the term of the Initial Term, unless either party notifies the other in writing of its decision not to extend the term at least thirty (30) days before the expiration of the term then in effect. Except as provided in this Section 1(b), these Terms and Conditions may not be cancelled or terminated by Customer prior to expiration of the term then in effect.
(c) Grant of License. Subject to payment of the Subscription Fee (defined below) and compliance with these Terms and Conditions and the Order Form, Fastmarkets Global Limited anywhere in the world or RISI, Inc. if the Customer is based in the United States unless an alternative contracting group entity is specified in the Order Form, (individually, as the context requires, “Fastmarkets”) grants to Customer a non-exclusive, revocable, non-transferable limited license for the term of this Agreement to permit Authorised Users (as defined below) to access and use Fastmarkets’ proprietary products and services set forth in the applicable Fastmarkets Order Form (the “Services”, and the information contained therein, the “Fastmarkets Information”) for its internal business purposes only. For the purposes of this Agreement, Fastmarkets Information also includes, without limitation, (i) any and all works that Fastmarkets has developed prior to commencement of this Agreement; (ii) materials that Fastmarkets makes generally available to certain of its customers; (iii) Fastmarkets Information and any updates or modifications thereto; and (iv) Fastmarkets’ research methodology.
(d) Custom Research. Any deliverables that are both specified in an Order Form and created specifically for Customer by Fastmarkets pursuant to the performance of certain Services or the publication of custom reports, to the extent they exist, are referred to herein as “Custom Research” and do not form part of the Fastmarkets Information. Any agreement to use Custom Research requires a separate agreement to be entered into as separate terms and conditions are applicable.
(e) Derived Data. Where Fastmarkets Information or Custom Research are merged with any other data or information or altered or manipulated or incorporated into any part of any other publication, work, document or other materials in any media of any type provided, the new dataset created from such process is referred to as “Derived Data”. Any and all ownership and intellectual property rights in the Derived Data vests in and is hereby assigned to Fastmarkets. Subject to the terms of this Agreement, Fastmarkets grants to Customer a non-exclusive, revocable, non-transferable limited licence to access and use, and permit its Authorized Users to access and use, the Derived Data for its internal business purposes only for the term of this Agreement.
(f) Financial Derivative. Any financial instrument whose value is derived from, or linked to, any Fastmarkets price information solely, or where the Fastmarkets price information is a component of, that is created for trading on a regulated trading venue or over the counter [where specific external use has been authorised], is referred to as a “Financial Derivative.” The creation of Financial Derivatives is excluded from this Agreement.
(g) Non-Compete. The Customer shall not, and shall ensure that all Authorized Users shall not, use, reproduce, modify, transfer, exploit, distribute or dispose of any Fastmarkets Information, Custom Research or Derived Data for any purpose, whether direct or indirect, in any manner that might compete with Fastmarkets’ business.
(h) Access. The Services, Fastmarkets Information and Custom Research are accessible either online via Fastmarkets’ cloud-based platform (“Online Platform”) or offline via delivery methods as detailed in the Order Form.
(i) Use of the Online Platform: (i) The Customer and its Authorized Users are granted a limited, personal, non-transferable, revocable at any time license to use the Online Platform solely for the purpose of using the Services and Fastmarkets Information in accordance with this Agreement.(ii) Fastmarkets may provide the Customer with access credentials such as username and password to enable each of its Authorized Users to access the Online Platform only for the purposes of using the Services and accessing Fastmarkets Information. The Customer shall, and procure that its Authorized Users shall, keep such access credentials confidential and secured and ensure that they will not be disclosed and/or used in any unauthorized way. The Customer shall inform Fastmarkets of any unauthorized use and/or disclosure of any access credentials. Where access credentials are compromised, Fastmarkets reserves the right to suspend or disable the relevant access as appropriate. (iii) Without limiting the foregoing, the Customer shall comply with Fastmarkets’ reasonable instructions and security guidelines relating to access to the Online Platform. (iv) The Customer acknowledges that the Online Platform may contain links and connections to a third party’s website and may rely on the public internet connectivity over which Fastmarkets has no control. Fastmarkets shall not be liable for the unavailability or interruption of the Services, Fastmarkets Information, Custom Research or Derived Data caused by failures of such third party’s websites or internet connectivity or other network traffic problems not arising in or from networks actually or required to be provided or controlled by Fastmarkets.
(a) Subscription Fee. In consideration for the Services provided hereunder, Customer shall pay the annual fee (the “Subscription Fee”) set forth on the Order Form. The Subscription Fee will automatically be increased each year by twenty five percent (25%) unless otherwise agreed in the Order Form. If the Customer does not give at least thirty (30) days prior written notice not to renew the then current term in accordance with Clause 1(b) then the Customer shall be deemed to have accepted the fee increase for the next renewal term. Additionally, the Customer acknowledges and agrees that Fastmarkets may increase the Subscription Fee during the Term on thirty (30) days’ prior notice to Customer in the event Customer acquires, is acquired by or merges with any other company or corporate entity, charity or partnership. The Customer shall not have the right to terminate the Agreement on the basis of such price increase.
(b) Taxes. All fees and prices hereunder are exclusive of any taxes including value added tax or other applicable sales tax, which shall be paid by the Customer to Fastmarkets at the rate and in the manner prescribed by law from time to time. The Customer shall be responsible for any federal, state, local or provincial sales, use, property or similar taxes that are or may be imposed on transactions hereunder between Fastmarkets and the Customer except for taxes on the income of Fastmarkets.
(c) Payment Terms. Unless otherwise stated on the Order Form, invoices for the Subscription Fee will be issued annually in advance and payment in full is due immediately upon receipt of invoice and, if not paid in cleared funds within thirty 30 days of the invoice date, is subject to interest at the lesser of (i) one point five percent 1.5% above base rate of the Bank of England per month; or (ii) the maximum rate permitted by law, plus all costs of collection (including reasonable attorney’s fees). In addition to all other rights and remedies available to Fastmarkets at law or in equity, Fastmarkets also may suspend delivery of the Service(s) or any component thereof for as long as any such amount remains unpaid after such thirty 30-day period. The Customer must make payments of all invoices in full without any set-off, deduction or counterclaim.
(a) Authorized Users; Use of Fastmarkets Information, and Derived Data. “Authorized User” means an employee of Customer or one (1) of its subsidiaries, or a contractor acting on behalf of Customer, in the ordinary course of Customer’s business and subject to the restrictions set forth in this Agreement and an appropriate confidentiality undertaking, in each case who is authorized by Fastmarkets to access the Fastmarkets Information and Derived Data. Only Authorized Users shall have access to or use of the Fastmarkets Information, and Derived Data. Each Authorized User may download and print or save electronically a single copy of any Fastmarkets Information, and Derived Data for their individual use. Except as provided in the applicable Order Form or in Clause 3(b) below, Customer shall use the Fastmarkets Information, and Derived Data only for Customer’s own internal business purposes, and Customer shall not provide access to the Fastmarkets Information, and Derived Data or any portion thereof to any person (either within or outside the company), firm or entity, other than as authorized in this Agreement, including without limitation any subsidiary, parent or other entity that is affiliated with Customer and not specifically identified in the Order Form. Customer is responsible for ensuring compliance by its Authorized Users with the terms and conditions of this Agreement and shall promptly inform Fastmarkets of any unauthorized use or non-compliance by its Authorized Users. In such situations, Fastmarkets reserves the right to suspend or disable the relevant Authorized User’s access to the Online Platform and the Services as appropriate.
(b) Limited Redistribution. At no point may Fastmarkets Information, Fastmarkets publications, or Derived Data be redistributed to any party. Notwithstanding the foregoing and subject to all of the conditions set forth in this Clause 3(b), Customer shall have a limited right to redistribute limited extracts of the Fastmarkets Information, and Derived Data internally, such as for internal company or investor reports to senior management that are not distributed to other parties. In such cases the Fastmarkets Information, and Derived Data must only be provided on a non-continuous basis, contain only an insubstantial amount of data and/or portions of text less than a paragraph long and the redistribution must be incidental to the Authorized User’s job function. Authorized Users may share that material with other individuals who are Authorized Users under this Agreement.
(c) Restriction on Use. Customer shall not use the Fastmarkets Information, or Derived Data for any illegal purpose or in any manner inconsistent with this Agreement or competitive with Fastmarkets’ business. Customer shall not modify, reverse engineer, disassemble or decompile the Fastmarkets Information or Derived Data; and except as provided in Clause 3(b). Customer shall not create any derivative work from the Fastmarkets Information or Derived Data, nor shall Customer publish, reproduce, and/or otherwise distribute, externally or internally, the Fastmarkets Information or Derived Data or any component or portion thereof in any manner. Without Fastmarkets’ express prior consent, the Customer shall not, and shall procure that its Authorized Users do not, use all or any part of the Services, the Fastmarkets Information or Derived Data in any AI Systems either as input data to generate any further outputs for any purposes, or as training data for the purpose of developing, testing, improving or training any other AI Systems other than the Fastmarkets’ own systems. Under this Agreement, “AI Systems” means any machine-based system that can, for a given set of pre-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments. Without limiting any of the foregoing, Customer shall not use any Fastmarkets price index data included in the Fastmarkets Information or Derived Data, or any Fastmarkets trade names, trademarks, service marks associated with any such index (whether registered or unregistered), in connection with the trading, clearing or settlement of physical commodity contracts, futures contracts, forwards, options or financial instruments of any kind, unless expressly authorized in the Order Form. In connection with Fastmarkets Information or Derived Data that Customer redistributes pursuant to Clause 3(b), Customer shall always identify Fastmarkets as the source of such information, and shall display, whenever practical, on each screen, document page or other format that includes Fastmarkets Information or Derived Data attribution to Fastmarkets and a Fastmarkets copyright notice.
(d) Third party materials. The Customer acknowledges that the Services may include information from financial exchanges and/or other data or news providers (the “Data Source(s)”), who have certain rights in this information. The Customer agrees to comply with any additional terms and conditions set by a Data Source for the use, access, storage or redistribution of its information, which may change from time to time.
(e) User Authorizations. Customer will co-operate with Fastmarkets to ensure proper activation of each Authorized User account and will notify Fastmarkets in advance of any additions, subtractions or substitutions to Authorized Users. Customer agrees that any Authorized User identifications, passwords or other entitlement information related to Customer’s Authorized Users shall be maintained in confidence and used only by the Authorized User to which such information is assigned. Customer shall not permit the sharing of user IDs or passwords, or simultaneous access to the Fastmarkets Information or via the same user ID or password, or otherwise.
(f) Copyright protection. The Customer shall ensure that any document (electronic or hardcopy) containing any Fastmarkets Information,and Derived Data shall contain the following statement: Includes content supplied by Fastmarkets; Copyright © Fastmarkets, [publication year]. All rights reserved.
Fastmarkets may, at its discretion, make the Online Platform and Fastmarkets Information available to the Customer for an initial free trial of up to a maximum of thirty (30) days (the “Free Trial”). The Free Trial is provided to the Customer free of charge, on an “as is” basis and will automatically expire at the end of the specified time period unless terminated earlier by Fastmarkets in accordance with Clause 7(d). Upon the expiry or termination of the Free Trial, Fastmarkets will revoke the Customer’s and its Authorized Users’ access to Fastmarkets’ proprietary products and services including the Online Platform unless the parties have entered into a separate Order Form for the paid-for Services. Fastmarkets shall have no liability to the Customer or Authorized Users for the use or access of the Online Platform or Fastmarkets Information or otherwise under this Agreement in relation to a Free Trial.
(a) During the term of the Agreement and for a period of three (3) years after its expiry or termination, Fastmarkets and its authorized personnel, auditors, agents, attorneys and accountants (“Auditors”) shall have the right to audit, review, inspect and make copies of the Customer’s records and documents to verify the Customer’s compliance with this Agreement upon not less than thirty (30) days’ advance notice to the Customer. Notwithstanding the foregoing, Fastmarkets and its Auditors may conduct an audit without advance notice if it reasonably suspects that the Customer has committed a material breach of the Agreement or where such notice is prohibited under the law or where required or recommended by a regulatory body or a regulatory requirement.
(b) When carrying out an audit Fastmarkets shall, and procure that its Auditors shall, (i) conduct the audit within the Customer’s normal business hours and take reasonable steps to minimise the impact on the Customer’s business and (ii) treat all information obtained in the audit confidentially and use it only for the purpose of verifying compliance with this Agreement.
(c) Subject to the Customer’s confidentiality obligations, the Customer shall provide Fastmarkets and its Auditors with all reasonable co-operation, access and assistance in relation to each audit.
(d) Each party shall bear its own costs and expenses incurred in respect of an audit. However if an audit identifies a material breach including an underpayment of the Subscription Fees by the Customer or a discrepancy of five percent (5%) or more users than the number of Authorized Users, the Customer shall reimburse the cost of the audit incurred by Fastmarkets, any Subscription Fees owed (including applicable interest) plus, in the event of an underpayment, an administrative cost of five percent (5%) of the underpaid amount or the chargeable amount for the additional users.
(e) The Customer shall keep at its normal place of business detailed, accurate and up-to-date records and books of account evidencing its compliance with this Agreement including a record of its use and deletion (as the case may be) of the Fastmarkets Information, Derived Data for at least three (3) years unless a longer retention period is required by law. The Supplier shall ensure that such records and books of accounts are sufficient to enable the Customer to verify the Supplier’s compliance with its obligations under this Clause 5.
Without prejudice to Fastmarkets’ audit rights under Clause 5, the Customer agrees that technical usage of the Fastmarkets website, products and services provided to Customer under this Agreement may be monitored by tracking systems to help Fastmarkets ascertain whether such use conforms to the terms of this Agreement and applicable law.
(a) This Agreement may be terminated (in whole or in part) by Fastmarkets with immediate effect: (i) for any material or persistent breach of this Agreement by Customer; or (ii) if the Customer suffers a change of control, with “change of control” being defined as a transfer (whether in a single transaction or a series of related transactions) of more than fifty percent (50%) of the stock or other equity interests having voting or other rights to direct the management of Customer.
(b) Fastmarkets reserves the right, at its discretion, on a minimum of sixty (60) days’ written notice to the Customer, to discontinue the Services, in whole or in part. In the event a Service is discontinued or terminated in part, Fastmarkets will use commercially reasonable efforts to give the Customer as much advance written notice as possible in such circumstances. In such event Fastmarkets’ sole obligation will be to refund any prepaid Subscription Fees attributable to the discontinued Service. Fastmarkets may change the content, format, medium and/or means of access to or delivery of the Services from time to time, provided that if any such change is material, Fastmarkets shall provide Customer with reasonable prior written notice of such change.
(c) On termination or expiry of this Agreement for any reason the Customer shall, and shall procure that all Authorized Users shall, delete all copies or extracts of (including all digitally stored copies and back-ups) Fastmarkets Information and Derived Data and shall provide a written declaration signed by a senior representative of the Customer that such deletion has taken place, unless otherwise agreed with Fastmarkets in writing, or as required by applicable law. For the avoidance of doubt, where there is the retention of any Fastmarkets Information or Derived Data, Customer agrees that it shall only be retained to the extent required by applicable law or regulation or agreed and shall not be used for commercial purposes. All applicable terms of this Agreement shall continue to apply to any retained information or data after termination or expiry of the Agreement.
(d) Without prejudice to other provisions of this Agreement, Fastmarkets may terminate the Customer’s and/or any of its Authorized Users’ account and/or access to and use of the Online Platform and Fastmarkets Information under a Free Trial at any time on immediate effect without any liability to the Customer.
(e) Expiry or termination of this Agreement for any reason shall not release either party from any obligation or terminate any right which, by its nature, is intended to survive termination including the obligations under Clause 3(c) (Restriction on Use), Clause 5 (Audit), Clause 8 (Fastmarkets’ Proprietary Rights; Available Relief), Clause 9 (Indemnification), Clause 10 (Warranty, Disclaimers and Limitation of Liability), Clause 11 (Confidentiality and Publicity) and Clause 14 (Miscellaneous).
(a) All proprietary rights (including, but not limited to, copyrights, trade secrets, database rights, registered and unregistered trademark rights, domain names, patents, registered and unregistered design rights, and all other industrial, commercial or intellectual property rights existing in any jurisdiction in the world and all the rights to apply for the same) in the Fastmarkets Information, Custom Research and Derived Data including, but not limited to, all information, data, software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of Fastmarkets and its third-party licensors, including the Data Sources. The Fastmarkets Information and Custom Research is created, compiled, prepared, revised, selected and arranged by Fastmarkets and its third-party licensors through the application of expertise, methods and standards of judgment developed and applied through the expenditure of substantial originality, time, effort and money, and the Fastmarkets Information, Custom Research and Derived Data constitute the valuable intellectual property of Fastmarkets and its third-party licensors. Customer shall protect the copyrights, trade secrets, database rights, trademarks and other proprietary rights of Fastmarkets and its third-party licensors in the Fastmarkets Information, Custom Research and Derived Data, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement. Customer shall honour and comply with all reasonable requests made by Fastmarkets to protect the rights of Fastmarkets and its third-party licensors in the Fastmarkets Information, Custom Research and Derived Data.
(b) Copying of, use of, access to or distribution of the Fastmarkets Information, Custom Research and Derived Data or any product, publication, information, data or software contained therein in breach of this Agreement may cause Fastmarkets and and/or its third-party licensors irreparable injury that cannot be adequately compensated for by means of monetary damages. Fastmarkets and its third-party licensors may seek to enforce any breach of this Agreement by Customer by means of equitable relief (including, but not limited to, injunctive relief and temporary and preliminary injunctive relief) in addition to any and all other rights and remedies that may be available. Fastmarkets services, publications, and content are original Fastmarkets’ creations protected by copyright.
(c) Fastmarkets takes a firm position on copyright compliance, which the Customer acknowledges. In the event of a breach of this Agreement by the Customer or any of its Authorized Users, Fastmarkets, in addition to other remedies provided by Law, shall have the right to suspend or terminate Customer’s access to the Fastmarkets website including the Online Platform and the products and services provided under this Agreement.
(a) Customer shall defend, indemnify and hold harmless Fastmarkets, and its agents, representatives, contractors and third party licensors from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees and court costs) arising out of or relating to any breach by Customer or Authorized Users of the licence terms under Clause 1(a) (Grant of Licence), or of its obligations, the limitations or restrictions under Clause 3(c) (Restrictions on Use), Clause 8(a) (Fastmarkets’ Proprietary Rights, Available Relief) and Clause 11 (Confidentiality and Publicity).
(b) Subject to compliance with Clause 9(c) Fastmarkets shall defend, indemnify and hold harmless Customer, and its Authorized Users from and against any and all losses, damages, liabilities, costs and expenses (including reasonable attorney’s fees and court costs) arising out of any third party claim that Customer’s use of the Services or the Fastmarkets Information, Custom Research and Derived Data as permitted by this Agreement infringes a patent, copyright, trademark or other intellectual property right of a third party, or misappropriates a trade secret or other intellectual property right of a third party. This indemnity shall not apply to any claims arising from Customer’s or its Authorized Users’ (i) failure to use the Services or the Fastmarkets Information, Custom Research and Derived Data in accordance with this Agreement; (ii) modification of the Services or the Fastmarkets Information, Custom Research and Derived Data without Fastmarkets’ prior written consent; (iii) combination of the Services or the Fastmarkets Information, Custom Research and Derived Data with any third party materials including software, equipment, or information, provided a claim under this Clause 9(b) would not have arisen but for the combination with such third party materials; or (iv) creation of Derived Data (v) use of a version of the Services or the Fastmarkets Information, Custom Research and Derived Data other than the then-current version, if a claim under this Clause 9(b) would have been avoided by use of the then-current version.
(c) In the event of a claim pursuant to Clause 9(b), Customer shall: (i) notify Fastmarkets promptly on becoming aware of any infringement claim for which Customer is entitled to the indemnity under Clause 9(b), (ii) not make any admission of liability, settlement, agreement or compromise in respect of such matter or claim, without Fastmarkets’ prior written consent (such consent not to be unreasonably withheld or delayed); (iii) give Fastmarkets sole authority to conduct and/or settle negotiations and/or proceedings relating to such matter or claim; and (iv) at the Customer’s own cost and expense, cooperate with Fastmarkets in the defence of any such claim including complying with Fastmarkets’ reasonable requests for information, records, documents, assistance in the conduct of any such negotiations and/or proceedings. Nothing in this clause shall restrict or limit the Customer’s general obligation at law to mitigate any loss it may suffer or incur as a result of an event that may give rise to a claim under this indemnity.
(d) During the negotiations and/or proceedings pursuant to Clause 9(c), Fastmarkets may at its sole discretion: (i) procure for the Customer the right to continue using the relevant Services or Fastmarkets Information, Custom Research and Derived Data (or any part of them) in accordance with the terms of this Agreement; and/or (ii) modify the relevant Services or Fastmarkets Information, Custom Research and Derived Data to avoid the infringement; and/or (ii) replace the relevant Services or Fastmarkets Information, Custom Research and Derived Data with non-infringing materials, whilst still providing the same, or substantially similar, functionality to the infringing materials.
(a) Nothing in the Agreement excludes or limits Fastmarkets’ liability in respect of: (i) death or personal injury caused by its negligence; or (ii) fraud or fraudulent misrepresentation; or (iii) any liability which legally cannot be excluded or limited.
(b) Fastmarkets Information, Custom Research and Derived Data is provided “as is” and is based upon data which is provided by third parties, the accuracy and/or completeness of which it would not be possible and/or economically viable for Fastmarkets to guarantee. The Customer acknowledges that Fastmarkets shall not be liable for any damages, losses or costs incurred by Customer arising as a result of or in connection with: (i) reliance upon the Services; (ii) any inaccuracy, incompleteness or other error in the Fastmarkets Information, Custom Research and Derived Data; or (iii) any failure of the Services to achieve any particular result for the Customer.
(c) Subject to Clause 10(a) and Clause 10(d), Fastmarkets’ entire liability arising out of this Agreement shall be limited to and shall not exceed the fee paid or payable to Fastmarkets by Customer in the twelve (12) months preceding a claim.
(d) Notwithstanding Clause 10(c) and subject to Clause 10(a), Fastmarkets shall have no liability to the Customer in respect of the Free Trial.
(e) In no event will Fastmarkets be liable for any consequential, indirect, special, or incidental damages or costs or any damages or costs for lost profits or business failure or loss (whether direct or indirect), arising out of use of the Services whether or not Fastmarkets has been advised of the possibility of such damages.
(f) Only the relevant Fastmarkets entity who is the contracting party (Fastmarkets Global Limited if the Customer is based in the UK, or RISI, Inc. if the Customer is based anywhere else in the world) will be liable under this Agreement. In no circumstances will any other group entity have any liability to the Customer or any Authorized User in relation to the Online Platform, Fastmarkets Information, Custom Research, Derived Data, the Services or otherwise under or in connection with this Agreement.
(g) Fastmarkets warrants that it shall use reasonable efforts to compile and analyse the Fastmarkets Information, and Derived Data using sources reasonably available to Fastmarkets at any given time and that any opinions reflect Fastmarkets’ judgment at the time they are given and are subject to change. The foregoing warranty is in lieu of all warranties, express, or implied, statutory or otherwise, including without limitation, any implied warranties of merchantability or fitness for a particular purpose, and warranties as to accuracy, completeness, or adequacy of information. Fastmarkets reserves the right to modify Services at any time.
(h) Fastmarkets disclaim all warranties in respect of the Free Trial. In particular, Fastmarkets does not warrant that the Free Trial: (i) is the same as any product description, (ii) is of satisfactory quality, (iii) does not contain any errors or defects, (iv) is fit for any particular purpose, (v) meets any of the Customer’s requirements, or (vi) is secure, compatible with any hardware or software, or available at any time or for any period.
(a) Each party undertakes that it shall not at any time disclose to any person any confidential information disclosed to it by the other party or which comes in to its possession in the course of performing its obligations under this Agreement concerning the business or affairs of the other party or of any member of its Group or the terms of this Agreement (for the purpose of this Agreement “Group” shall mean a party and any body corporate or partnership which is from time to time a holding company of that party, a subsidiary of that party or a subsidiary of a holding company of that party or a partner in such partnership or an entity which is otherwise controlled by, under the control of or in common control with that party, including information relating to a party’s operations, processes, plans, product information, know-how, designs, trade secrets, software, market opportunities and customers (“Confidential Information”).
(b) Each party may disclose the other party’s Confidential Information:(i) to its, and to its Group’s, employees, officers, agents, consultants, advisers, subcontractors, Auditors or service providers (“Representatives”) who need to know such information for the purpose of carrying out the party’s obligations under this Agreement and for that party’s legitimate internal business purposes, provided that the disclosing party takes all reasonable steps to ensure that its Representatives comply with the confidentiality obligations contained in this Clause 11 as though they were a party to this Agreement. The disclosing party shall be responsible for its Representatives’ compliance with the confidentiality obligations set out in this Clause 11.(ii) as may be required by law, court order or by any governmental or regulatory authority or any securities exchange to which the relevant party is subject or submits; and(iii) to the extent the Confidential Information has become publicly available or generally known to the public at the time of the disclosure other than as a result of a breach of this Clause 11.
(c) The Customer agrees that damages may not be an adequate remedy for any breach of this Clause 11 by the Customer or any other person authorized to receive Confidential Information obtained from or disclosed by or on behalf of Fastmarkets pursuant to this Clause 11, and Fastmarkets shall be entitled to seek any legal and/or equitable relief, including an injunction, in the event of any breach of the provisions of this Clause 11, in addition to its other remedies at law, in equity and under this Agreement.
(d) Notwithstanding Fastmarkets’ obligations under this Clause 11, the Customer acknowledges and agrees that Fastmarkets shall have the right to use the information provided by the Customer to Fastmarkets under this Agreement for the purposes of providing the Services and improving Fastmarkets’ systems and services, including developing, training, testing or improving Fastmarkets’ AI Systems.
(e) Fastmarkets has the right to use the Customer’s name and/or Customer’s company logo in Fastmarkets publicity releases, interviews, promotional or marketing materials, announcements, customer listings, or advertising, in each case for the sole purpose of identifying Customer as a Fastmarkets customer.
Fastmarkets shall not be liable to or through Customer for delays or inability to perform due to circumstances beyond its reasonable control, including pandemic or public health emergency, fire, flood, explosion, severe weather, acts of God, war or other hostilities, terrorism, civic commotion, acts of government, acts or omissions of other contractors, strikes or labour disputes, failure of telecommunication carriers, and system malfunctions. The time for performance of the Services will be extended on a day-for-day basis by any such delay.
Fastmarkets may update the Online Platform and any part of the Services from time to time for any technical, security, legal or operational reasons, provided that such update does not cause any materially adverse impact to the provision of the Services. Fastmarkets may also change the Online Platform or any part of the Services where it considers it reasonably necessary to comply with applicable laws and regulations. The Customer’s continued usage of the Services shall constitute its acceptance of such changes.
(a) This Agreement supersedes all proposals, negotiations, representations and agreements and understandings between the parties including those contained in any Customer-provided purchase orders, “click wrap” or “shrink wrap” agreements or confidentiality agreements and constitutes the complete and exclusive agreement between Customer and Fastmarkets relating to the subject matter hereof.
(b) The parties envisage that no personal data will be processed by Fastmarkets for the purposes of providing the Services under this Agreement.
(c) The Customer warrants that it has full capacity and authority to enter into this Agreement and that those signing each and every Order Form are duly authorized to bind the party for whom they sign.
(d) No representation or statement not expressed herein shall be binding upon Fastmarkets.
(e) Except for the changes in the Subscription Fee under Clause 2(a) and changes permitted under Clause 13, this Agreement may be amended, modified or superseded, and any of its terms, covenants, representations, warranties or conditions may be waived only in writing signed by duly authorized representatives of the parties.
(f) Notwithstanding Clause 14(e), no failure, delay or omission by either party in exercising any right, power or remedy provided by law or under this Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right or remedy. No single or partial exercise of any right, power or remedy provided by law or under this Agreement shall prevent any future exercise of it or the exercise of any other right, power or remedy.
(g) The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision hereof and any such invalid provision shall be deemed to be severable.
(h) All notices and other communications required to be given under this Agreement shall be in writing and shall be deemed to have been duly delivered if delivered by hand or by a widely recognised delivery service (with evidence of the delivery date), or sent by prepaid post, certified mail or electronic mail (provided that electronic mail shall not be used for notices given in legal proceedings), addressed to the respective party at such address as identified on the Order Form.
(i) The Customer shall not be entitled to assign, novate or transfer any of its rights or obligations under this Agreement, in whole or in part, without the prior written consent of Fastmarkets. Any attempt by Customer to assign its rights or obligations hereunder without the prior written consent of Fastmarkets shall be void. Fastmarkets may assign or transfer any of its rights under this Agreement at any time.
(j) This Agreement and any dispute or claim arising out of or in connection with it shall be governed and construed in accordance with the laws of the State of New York.
(k) The parties hereto and their successors and assigns irrevocably agree that the courts of the State of Massachusetts shall have exclusive jurisdiction to settle any dispute or claim that arises out of, or in connection with, this Agreement.