Last updated: September 14, 2021
BY USING THE SERVICES (INCLUDING ANY FREE TRIALS) OR CLICKING A BOX INDICATING ACCEPTANCE OF THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE USING THE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A COMPANY, CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE SUCH AUTHORITY.
IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE THE AFOREMENTIONED AUTHORITY OR DOES NOT AGREE WITH THE TERMS OF THIS AGREEMENT, THEY MAY NOT USE THE SERVICES OR ACCEPT THIS AGREEMENT.
These Blooma Pro Terms and Conditions (“Agreement”) are entered into between Blooma, Inc., a Delaware corporation (“Blooma”) and the entity or person placing an order or accessing the Services (“Customer” or “you”). The “Effective Date” of this Agreement is the date that the Customer first accesses the Services through any online registration or order process.
1. SERVICES AND SUPPORT
1.1 As used in this Agreement, the “Services” shall mean Blooma Pro, Blooma’s all-in-one CRE lending solution as further described on https://blooma.ai/pricing/.
1.2 Subject to the terms of this Agreement, Blooma will use commercially reasonable efforts to provide access to the Services. Notwithstanding the foregoing, Blooma reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, or (ii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Blooma.
1.3 Subject to the terms of this Agreement, Blooma will use commercially reasonable efforts to provide professional services as set forth in a mutually signed Statement of Work (the “Professional Services”).
1.4 Blooma will use commercially reasonable efforts to provide the service level and support for the Services in accordance with the service level terms and conditions set forth at [insert SLA URL]
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, and will not permit any third party to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas or algorithms of the Services or any software, documentation or data related to the Services (“Software”) (provided that reverse engineering is prohibited only to the extent such prohibition is not contrary to applicable law); modify, translate, or create derivative works based on the Services or Software; use the Services or Software for timesharing or service bureau purposes or for any purpose other than its own use; or use the Services or Software other than in accordance with this Agreement and in compliance with all applicable laws and regulations (including but not limited to any European privacy laws), intellectual property, consumer and child protection, obscenity or defamation).
2.2 Customer will cooperate with Blooma in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required, and taking such other actions as Blooma may reasonably request. Customer will also cooperate with Blooma in establishing a password or other procedures for verifying that only designated employees of Customer have access to any administrative functions of the Services.
2.3 Customer hereby agrees to indemnify and hold harmless Blooma against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Blooma has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Blooma may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer will be responsible for maintaining the security of Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account with or without Customer’s knowledge or consent.
2.5 Customer acknowledges that the timely provision of and access to equipment, assistance, cooperation, complete and accurate information and data from its officers, agents, employees and partners, are essential to performance of the Services and that Blooma’s obligation to complete any Services is dependent upon same. Neither party will be liable to the other for any delay or failure to perform that is due to causes beyond the reasonable control of said party. Customer’s failure to timely perform any of its obligations under this Agreement or a Statement of Work shall relieve Blooma of its dependent obligations to the full extent of such Customer delay.
2.6 Blooma may use and reference Customer’s name, logos, marks and the customer relationship under this Agreement in Blooma’s promotional and marketing materials and activities.
3.1 During the Term, Blooma may present or deliver to Customer through the Services certain data or documents (collectively, the “Services Data”). As between the parties, unless otherwise indicated in the Services, Blooma owns all right, title and interest in and to the Services Data. During the Term, Customer is hereby granted with a non-exclusive, nontransferable, revocable right to use the Services Data for its internal analysis purposes only.
3.2 Customer may submit to Blooma data and documents via email, through the Services or otherwise in connection with the Services (collectively, the “Customer Data”). As between the parties, Customer owns all right, title and interest in and to the Customer Data. Blooma may use the Customer Data to perform the Services (or cause the Services to be performed). Customer represents and warrants that (i) neither the Customer Data nor its use in the Services will infringe, misappropriate or violate any intellectual property rights or other rights or agreements; and (ii) Customer has the proper rights and authority to enter into this Agreement and to grant Blooma the rights set forth under this Agreement. If Blooma receives any notice or claim that any Customer Data, or activities hereunder with respect to any Customer Data, may infringe or violate rights of a third party (a “Claim”), Blooma may (but is not required to) suspend activity hereunder with respect to that Customer Data and Customer will indemnify Blooma from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred.
3.3 Notwithstanding anything to the contrary, Blooma may use the Customer Data to produce or generate Derivatives (as defined below). As between the parties, Blooma owns and retains all right, title and interest in and to the Derivatives. “Derivatives” includes, without limitation, all derivatives, improvements, modifications, enhancements, extensions, products, and the like with respect to, or that incorporate, are based on, interoperate with or are related to, any portion of the Customer Data.
3.4 Customer acknowledges and agrees that in connection with its use of the Services, Customer may access data provided by Blooma’s third party data partners. Accordingly, Customer hereby agrees to the applicable terms and conditions set forth in [insert URL] as a condition to accessing such data and the Services.
4.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
4.2 The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (ii) to give access to such Proprietary Information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it without restriction prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order. Notwithstanding anything in this Agreement to the contrary, Blooma may aggregate data received through the Services and use such aggregated data to evaluate and improve the Services and otherwise for its business purposes.
4.3 Customer acknowledges that Blooma does not wish to receive any Proprietary Information from Customer that is not necessary for Blooma to perform its obligations under this Agreement.
4.4 Both Parties will have the right to disclose the existence but not the terms and conditions of this Agreement, unless such disclosure is approved in writing by both Parties prior to such disclosure, or is included in a filing required to be made by a Party with a governmental authority (provided such party will use reasonable efforts to obtain confidential treatment or a protective order) or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
5. INTELLECTUAL PROPERTY RIGHTS
5.1 Except as expressly set forth herein, Blooma alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Service, the Professional Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to the Services, the Professional Services and/or the Software, which are hereby assigned to Blooma. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Professional Services or Software, or any intellectual property rights.
5.2 Blooma shall hold Customer harmless from liability to unaffiliated third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Blooma is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and sole control over defense and settlement; Blooma will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Blooma, (ii) resulting in whole or in part in accordance from Customer specifications, (iii) that are modified after delivery by Blooma, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of is not strictly in accordance with this Agreement and all related documentation. Customer will indemnify Blooma from all damages, costs, settlements, attorneys’ fees and expenses related to any claim of infringement or misappropriation excluded from Blooma’s indemnity obligation by the preceding sentence.
6. PAYMENT OF FEES
6.1 Customer will pay Blooma the applicable fees (the “Fees”) as set forth on the ordering document or online order specifying the Services (the “Order Form”).
6.2 Customer shall provide Blooma with valid and updated credit card information. Customer authorizes Blooma to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 7 (Term and Termination). Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Blooma will invoice Customer in advance and otherwise in accordance with the relevant Order Form. If not otherwise specified in the Order Form, payments will be due within thirty (30) days of invoice and are nonrefundable.
6.3 The prices stated in this Agreement do not include any federal, state, local or foreign taxes, withholdings, duties, tariffs, levies or similar assessments on the license, delivery or use of the Services, Software or Professional Services. Customer agrees to pay all such charges and not to reduce any payment to Blooma as a result thereof. All amounts due hereunder shall be grossed-up for any withholding taxes imposed by any government. If Customer claims exemption from any tax, then it shall furnish Blooma with a valid tax exemption certificate issued by or acceptable to the applicable taxing jurisdiction or entity.
6.4 Unpaid Fees are subject to a finance charge of one percent (1.0%) per month, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including reasonable attorneys’ fees. Fees under this Agreement are exclusive of all taxes, including national, state or provincial and local use, sales, value-added, property and similar taxes, if any. Customer agrees to pay such taxes (excluding US taxes based on Blooma’s net income) unless Customer has provided Blooma with a valid exemption certificate. In the case of any withholding requirements, Customer will pay any required withholding itself and will not reduce the amount paid to Customer on account thereof.
7. TERM AND TERMINATION; FREE TRIAL
7.1 Subject to earlier termination as provided below, this Agreement is for the Term as specified in the Order Form.
7.2 Either party may terminate this Agreement at any time for any or no reason upon notice to the other party. If Customer terminates this Agreement, the effective date of termination shall be the last day of the then current term or renewal period.
7.3 In the event of any material breach of this Agreement, the non-breaching party may terminate this Agreement prior to the end of the Term by giving thirty (30) days prior written notice to the breaching party; provided, however, that this Agreement will not terminate if the breaching party has cured the breach prior to the expiration of such thirty-day period. Either party may terminate this Agreement, without notice, (i) upon the institution by or against the other party of insolvency, receivership or bankruptcy proceedings, (ii) upon the other party’s making an assignment for the benefit of creditors, or (iii) upon the other party’s dissolution or ceasing to do business without a successor.
7.4 If Customer signed up for the Service under a free trial, the free trial expires on the last day of the tree trial period specified in the Order Form. Customer may immediately terminate this Agreement upon notice to Blooma at any time during such free trial period. Unless Customer has terminated this Agreement on or prior to the last day of such free trial period, this Agreement shall continue in accordance with the terms of this Agreement and Blooma may immediately charge Customer for the Services in accordance with the payment provisions set forth under this Agreement. Additional free trial terms and conditions may appear on the Order Form or the free trial promotions page. Any such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding. Customer may only sign up for one free trial.
7.5 All accrued rights to payment and Sections 2, 3, 4, 5, this Section 7.5, 8, 9, 10, 11 and 12 of this Agreement shall survive termination or expiration of this Agreement.
8. WARRANTY DISCLAIMER
THE SERVICES AND BLOOMA PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, THE PROFESSIONAL SERVICES) ARE PROVIDED “AS-IS,” WITHOUT ANY WARRANTIES OF ANY KIND. BLOOMA (AND ITS AGENTS, AFFILIATES, LICENSORS AND SUPPLIERS) HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
9. LIMITATION OF LIABILITY
IN NO EVENT WILL BLOOMA (OR ANY OF ITS AGENTS, AFFILIATES, LICENSORS OR SUPPLIERS) BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, THE DELAY OR INABILITY TO USE THE SERVICES OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, EVEN IF BLOOMA HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. THE TOTAL LIABILITY OF BLOOMA, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE FEES PAID TO BLOOMA HEREUNDER IN THE THREE (3) MONTH PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE FOREGOING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
10. U.S. GOVERNMENT MATTERS
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Services or any software or anything related thereto or any direct product thereof (collectively “Controlled Subject Matter”), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the foregoing Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Service is representation and warranty that the user is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Blooma are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Service Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
All notices under this Agreement will be in writing (a) for notices to Blooma to [insert new address] and (b) for notices to Customer, to the address electronically submitted by Customer during registration for the Service, or in each case, at such other address as may be given in writing by either party to the other in accordance with this Section 11, and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Blooma’s prior written consent. Blooma may transfer and assign any of its rights and obligations under this Agreement with written notice to Customer. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Blooma in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. Blooma will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws provisions. Unless specified otherwise, all dollar amounts specified under this Agreement shall refer to the United States Dollar.
Support & Service Level Agreement
Data Partner Terms
Last updated: September 14, 2021
Terms for Services Data provided by Moody’s Analytics, Inc.
All Services Data furnished pursuant to this Agreement is obtained by Blooma from sources believed by it to be accurate and reliable. However, because of the possibility of human and mechanical error as well as other factors, all Services Data is provided “AS IS” without warranty of any kind, and BLOOMA (AND BLOOMA’S LICENSORS), IN PARTICULAR, EXPRESSLY DISCLAIM ALL REPRESENTATIONS AND WARRANTIES TO CUSTOMER OR ANY OTHER PERSON OR ENTITY WITH RESPECT TO THE SERVICES DATA, EXPRESS OR IMPLIED, AND WHETHER ORAL OR WRITTEN, INCLUDING WITHOUT LIMITATION (A) ANY WARRANTY, AS TO THE ACCURACY, TIMELINESS, COMPLETENESS, OR THE RESULTS TO BE OBTAINED FROM USE OF THE Services Data, (B) THE IMPLIED WARRANTIES OF NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE EVEN IF BLOOMA HAS BEEN INFORMED OF SUCH PURPOSE; AND (C) ANY WARRANTIES ARISING BY IMPLICATION OR FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE.
To the extent permitted by law, under no circumstance shall Blooma (or Blooma’s Licensors) have any liability to Customer or any other person or entity for (a) any loss, damage or other injury in whole or in part caused by, resulting from or relating to, any error (negligent or otherwise), or any other circumstance or contingency within or outside the control of Blooma or any of its directors, officers, employees or agents, or Licensors, in connection with the procurement, collection, compilation, analysis, interpretation, communication, publication or delivery of any Services Data, or (b) ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR COMPENSATORY DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, LOST PROFITS), EVEN IF BLOOMA SHALL HAVE BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, IN EITHER CASE CAUSED BY, RESULTING FROM OR RELATING TO THE USE OF, OR INABILITY TO USE, ANY Services Data. Without limiting the foregoing, in no event shall the total liability of Blooma or Blooma’s licensors in the aggregate to Customer arising from this Agreement (based on any cause of action whatsoever) exceed the fees actually paid by Customer to Blooma within the twelve (12) month period immediately preceding the date upon which the relevant claim accrued.
CREDIT RATINGS ISSUED BY MOODY’S INVESTORS SERVICE, INC. AND ITS RATINGS AFFILIATES (“MIS”) ARE MOODY’S CURRENT OPINIONS OF THE RELATIVE FUTURE CREDIT RISK OF ENTITIES, CREDIT COMMITMENTS, OR DEBT OR DEBT-LIKE SECURITIES, AND CREDIT RATINGS AND RESEARCH PUBLICATIONS PUBLISHED BY MOODY’S (“MOODY’S PUBLICATIONS”) MAY INCLUDE MOODY’S CURRENT OPINIONS OF THE RELATIVE FUTURE CREDIT RISK OF ENTITIES, CREDIT COMMITMENTS, OR DEBT OR DEBT-LIKE SECURITIES. MOODY’S DEFINES CREDIT RISK AS THE RISK THAT AN ENTITY MAY NOT MEET ITS CONTRACTUAL, FINANCIAL OBLIGATIONS AS THEY COME DUE AND ANY ESTIMATED FINANCIAL LOSS IN THE EVENT OF DEFAULT. CREDIT RATINGS DO NOT ADDRESS ANY OTHER RISK, INCLUDING BUT NOT LIMITED TO: LIQUIDITY RISK, MARKET VALUE RISK, OR PRICE VOLATILITY. CREDIT RATINGS AND MOODY’S OPINIONS INCLUDED IN MOODY’S PUBLICATIONS ARE NOT STATEMENTS OF CURRENT OR HISTORICAL FACT. MOODY’S PUBLICATIONS MAY ALSO INCLUDE QUANTITATIVE MODEL-BASED ESTIMATES OF CREDIT RISK AND RELATED OPINIONS OR COMMENTARY PUBLISHED BY MOODY’S ANALYTICS, INC. CREDIT RATINGS AND MOODY’S PUBLICATIONS DO NOT CONSTITUTE OR PROVIDE INVESTMENT OR FINANCIAL ADVICE, AND CREDIT RATINGS AND MOODY’S PUBLICATIONS ARE NOT AND DO NOT PROVIDE RECOMMENDATIONS TO PURCHASE, SELL, OR HOLD PARTICULAR SECURITIES. NEITHER CREDIT RATINGS NOR MOODY’S PUBLICATIONS COMMENT ON THE SUITABILITY OF AN INVESTMENT FOR ANY PARTICULAR INVESTOR. MOODY’S ISSUES ITS CREDIT RATINGS AND PUBLISHES MOODY’S PUBLICATIONS WITH THE EXPECTATION AND UNDERSTANDING THAT EACH INVESTOR WILL, WITH DUE CARE, MAKE ITS OWN STUDY AND EVALUATION OF EACH SECURITY THAT IS UNDER CONSIDERATION FOR PURCHASE, HOLDING, OR SALE.
MOODY’S CREDIT RATINGS AND MOODY’S PUBLICATIONS ARE NOT INTENDED FOR USE BY RETAIL INVESTORS AND IT WOULD BE RECKLESS FOR RETAIL INVESTORS TO CONSIDER MOODY’S CREDIT RATINGS OR MOODY’S PUBLICATIONS IN MAKING ANY INVESTMENT DECISION. IF IN DOUBT YOU SHOULD CONTACT YOUR FINANCIAL OR OTHER PROFESSIONAL ADVISER.
Moody’s Rights to Data.
Customer agrees and acknowledges that the Moody’s Services Data is and shall remain the valuable intellectual property owned by, or licensed to, Moody’s Analytics, Inc., (“Moody’s”) and that no proprietary rights are being transferred to Customer in such materials or in any of the information contained therein. Customer agrees that misappropriation or misuse of such materials shall cause serious damage to Moody’s and that in such event money damages may not constitute sufficient compensation to Moody’s; consequently, Customer agrees that in the event of any misappropriation or misuse, Moody’s shall have the right to obtain injunctive relief in addition to any other legal or financial remedies to which Moody’s may be entitled.
Moody’s Investors Services, Inc. (“MIS”), a wholly-owned credit rating agency subsidiary of Moody’s Corporation (“MCO”), hereby discloses that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MIS have, prior to assignment of any rating, agreed to pay to MIS for the rating opinions and services rendered by it fees ranging from $1,000 to approximately $2,700,000. MCO and MIS also maintain policies and procedures to address the independence of MIS’s ratings and rating processes. MCO annually publishes on its website at http://www.moodys.com disclosures regarding certain affiliations that may exist between directors of MCO and rated entities, and between entities who hold ratings from MIS and have also publicly reported to the SEC an ownership interest in MCO of more than five percent (5%). Although certain of the products licensed hereunder are designed to predict what an MIS rating would be based on certain assumptions, financial and portfolio data and/or other variable inputs, the output from such products may or may not reflect a MIS rating actually assigned to such security or issuer, whether or not any of the assumptions or other data are correct, or the ultimate events related thereto differ materially from the factors used as inputs to such products. Nothing in this Agreement will compel MIS to assign, as a result of any Services Data, a particular rating or any revision thereof to the Customer or any securities, debt or other instruments. Customer understands that MIS may at any time refuse to issue any rating, or, if already issued, revise or withdraw such rating. Customer further agrees not to represent, imply or otherwise suggest that any output from such products constitutes or affects an MIS rating, rating action, or opinion.
Customer expressly agrees, on behalf of itself and each other person or entity that it permits to use any Information (“User”), that (a) the credit ratings and other opinions, and valuations, quotes, statistical, quantitative or other information contained in the Services Data are, and will be construed solely as, statements of opinion and not statements of fact or recommendations to purchase, hold or sell any securities, (b) the Services Data will be weighed solely as one factor in any investment decision made by or on behalf of Customer or any User, and (c) it will accordingly make its own study and evaluation of each security, and of each issuer and guarantor of, and each provider of credit support for, each security that it may consider purchasing, holding or selling. Customer agrees, on behalf of itself and each User, that (i) none of the credit ratings and other opinions, and valuations, quotes, statistical, quantitative or other information contained in the Services Data, or any statements or disclosures by Moody’s to Customer or a User regarding the foregoing, shall create any duty of care on the part of Moody’s or any Moody’s Affiliate to Customer, (ii) neither Moody’s nor any Moody’s Affiliate is acting as a financial adviser to Customer, and (iii) none of the credit ratings and other opinions, and valuations, quotes statistical, quantitative or other information contained in the Services Data (whether in oral or written form) or statements or other communications supplied by Moody’s or any of its employees, representatives or agents shall constitute a representation or a warranty, or the provision of investment advice.
Not a Real-Time Service
Customer acknowledges and understands that the Moody’s Ratings Delivery Service is not a real-time service, and that it may not reflect the most recent changes to ratings and other information published by Moody’s Investors Service (“MIS”), until MIS completes its regularly scheduled updates to the service. Users of this service must refer to the official MIS press release announcements of ratings and related changes available on its website to receive up to date information.
Terms for Services Data provided by CompStak, Inc.
Customer acknowledges that CompStak, Inc., a Delaware corporation (“CompStak”) has made available certain of the data pursuant to a data license agreement between Blooma and CompStak. Accordingly, as a condition to using the Services, Customer agrees that Customer shall: (a) not allow any users to access the Services (including, without limitation, CompStak’s Services Data) except as permitted in the Order Form; (b) not use CompStak’s Services Data for any purpose except for Customer’s internal business purposes; (c) not distribute CompStak’s Services Data or otherwise violate the intellectual property rights relating to CompStak’s Services Data; (d) not remove trademarks displayed on the Services (including, without limitation, CompStak’s trademarks); (e) if permitted to use CompStak’s Services Data by CompStak, Customer shall provide prominent attribution of the source of the CompStak’s Services Data; (f) cooperate in protecting all intellectual property rights of Blooma and CompStak; and (g) return or destroy all copies of CompStak’s Services Data upon termination of the applicable agreement between Blooma and Customer.
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