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In consideration of the mutual promises and covenants hereinafter contained, the parties hereby agree as follows:
1. ACCESS TO INFORMATION.
A. Grant of Access to Information. Subject to the terms of this Agreement, Platts grants to the Company a non-exclusive, revocable, non-transferable, limited license to access and use solely for the purpose of internally evaluating the suitability of the: (i) Platts' proprietary products and services that the Company licenses from Platts on a trial basis (the "Service(s)") (such products and services, together with the information contained in the Services, the "Platts Information") and (ii) Platts' delivery platform for use in connection with the Platts Services, in each case only for the Company's own internal business and only through its Authorized Users (the "Permitted Purpose"). "Authorized User" means an employee of the Company or a contractor acting under the Company's direction, in each case (i) in the ordinary course of the Company's business, (ii) subject to the restrictions set forth in this Agreement as well as an appropriate confidentiality undertaking in writing, and (iii) who is authorized by Platts to access the Platts Information. The Company is responsible for ensuring compliance by its Authorized Users with the terms and conditions of this Agreement.
B. Scope of License. the Company shall use the Platts Information solely for the Permitted Purpose, and not for any commercial purpose. The Company acknowledges and agrees that it cannot use the Platts Information for any commercial purpose unless and until the parties enter into a separate master subscription agreement. The Company shall not provide access to the Platts Information or any portion thereof to any person (either within or outside the company), firm or entity other than an Authorized User, including, without limitation, any affiliate. The Company shall grant access to the Platts Information to only those Authorized Users who have accepted these Platts Trial Subscription Terms and Conditions.
C. Restrictions on the Use of the Platts Information. the Company shall not create any derivative work from the Platts Information and the Company shall not publish, display, reproduce, and/or otherwise distribute, externally or internally, the Platts Information or any component or portion thereof in any manner (including, but not limited, via or as part of any web site or other display) without an additional license. The Company shall not modify, reverse engineer, disassemble or decompile the Platts Information. The Company's Authorized Users are prohibited from: (i) extracting prices or any other Platts Information from any Platts newsletters or any other Platts publications; (ii) inputting or loading any Platts Information from any Platts publications into the Company's internal network configuration or IT systems; or (iii) using any Platts Information from any Platts publication as a substitute for a license to Platts' market data. In addition, the Company: (i) will not collect or attempt to collect information that the Company does not have a right to access pursuant to this Agreement; (ii) will not engage in any screen scraping, use any spider or other automatic data collection method, or any other type of data collection or acquisition method, except as approved by Platts; and (iii) will use reasonable procedures and care in accessing any Platts servers or databases, in each case so as not to attempt to or actually disrupt or impair any Platts servers or databases, or breach their security.
2. DELIVERY/ACCESS. the Company may access the Platts Information using the platforms and methods stated in Exhibit A (such platforms and methods subject to revision by Platts on notice to the Company), and only in accordance with the limitations and restrictions set forth in this Agreement. The Company shall hold and cause all of its Authorized Users to hold any passwords/user IDs issued by Platts or by the Company in connection with access to the Platts Information in strict confidence, and the Company shall instruct all Authorized Users of their obligations in this regard. The Company shall not permit the sharing of user IDs or passwords, or simultaneous access to the Platts Information via the same user ID or password. Platts shall not be liable or otherwise responsible for any of the following: (i) the procurement, installation or maintenance of any equipment on which the Platts Information is accessed by the Company; (ii) any communications connection by which the Platts Information is transmitted; (iii) any communication delays or interruptions of the Platts Information; (iv) the transmission to the Company of the Platts Information; or (v) any fees payable by the Company for any communication lines, to any third-party network operator (a "Network Operator") or to any other person, firm or entity.
3. THIRD PARTY AGREEMENTS AND INFORMATION.
A. The Company acknowledges that the Platts Information may contain information that is provided to Platts by third-party Suppliers. If the Company wishes to receive any Platts Information that contains content provided either: (i) by any third-party supplier(s) or (ii) via any third-party platform provider, in each case including, but not limited to, any exchanges, and data and/or software providers or licensors, and Network Operators (such content licensors and platform providers, collectively "Suppliers") and such Suppliers require Platts' customers who receive such content to sign an agreement directly with such Suppliers, in such event the Company shall enter into separate agreements with any such Suppliers and the Company shall agree to be bound by and comply with all conditions, restrictions, or limitations imposed in such agreements. In the event that the Company declines to enter into any such agreement with a Supplier or to comply with the obligations of such agreement, the Company acknowledges and agrees that: (i) Platts' obligation to provide Platts Information containing content from or provided via such Suppliers would cease; and (ii) in such event, Platts would bear no liability for suspending or terminating the provision of such Platts Information to the Company. In addition, the Company agrees to indemnify and hold harmless Platts, its affiliates and their Suppliers from and against any and all losses, costs, claims, damages, expenses and liabilities (including, but not limited to, reasonable legal expenses and court costs) and/or penalties as any Supplier(s) may impose, arising out of any breach or alleged breach by the Company of its obligations under this Section 3 or any failure to comply with the contractual requirements of, or other obligations imposed on the Company by, any Supplier(s).
B. The Company agrees that any Supplier of any portion of the Platts Information may enforce its rights against the Company as an intended third-party beneficiary of this Agreement, even though such Supplier is not a party to this Agreement.
C. The Company's right to receive and use those portions of the Platts Information pursuant to licenses or access granted to Platts by any Suppliers is subject to automatic modification, termination or discontinuation without liability on the part of Platts if such licenses or access are modified, terminated or discontinued by such Supplier.
A. Term; Renewal. This Agreement shall commence on the Effective Date set forth above and shall continue in effect for so long as an active trial is in place between the Company and Platts("Term"), unless terminated earlier pursuant to this Section 4.
Events of Termination.
In the event of a breach by the Company of any term or provision of this Agreement, provision of this Agreement, Platts may terminate the Agreement by the Company five (5) days' prior written notice thereof. Platts shall have the right to terminate this Agreement, effective immediately, if Platts is required to do so to comply with sanctions or other applicable law.
C. Post-Termination Obligations . Upon the termination of this Agreement by either party, the Company shall immediately cease all use of the terminated Platts Information and the Company shall expunge the relevant Platts Information and any portion thereof, including any copies thereof, from all of the Company's electronic or other systems and records in the Company's possession or control. At Platts' request, a senior officer of the Company shall promptly certify to Platts in writing that the Company has fully complied with this requirement.
5. FEES AND CHARGES. The parties acknowledge and agree that the license under this Agreement to use the Platts Information for the Permitted Purpose is granted free of charge by Platts to the Company.
6. DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY.
PLATTS, ITS AFFILIATES AND ALL OF THEIR SUPPLIERS DISCLAIM ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE AS TO THE PLATTS INFORMATION, INCLUDING THE SERVICE(S), INFORMATION, DATA, SOFTWARE OR PRODUCTS CONTAINED THEREIN, OR THE RESULTS OBTAINED BY THEIR USE OR AS TO THE PERFORMANCE THEREOF, OR ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OR TRADE.
A REFERENCE TO A PARTICULAR INVESTMENT, SECURITY, RATING OR ANY OBSERVATION CONCERNING A SECURITY OR INVESTMENT PROVIDED IN THE PLATTS INFORMATION IS NOT A RECOMMENDATION TO BUY, SELL OR HOLD SUCH INVESTMENT OR SECURITY OR MAKE ANY OTHER INVESTMENT DECISIONS AND DOES NOT ADDRESS THE SUITABILITY OF ANY INVESTMENT OR SECURITY. NO USER OF THE PLATTS INFORMATION SHOULD RELY ON ANY INDEX, BENCHMARK, PRICE ASSESSMENT, OBSERVATION, OPINION OR OTHER INFORMATION CONTAINED IN THE PLATTS INFORMATION IN MAKING ANY INVESTMENT OR OTHER DECISION. THE PLATTS INFORMATION IS NOT A SUBSTITUTE FOR THE SKILL, JUDGMENT AND EXPERIENCE OF COMPANY, ITS MANAGEMENT, EMPLOYEES, ADVISORS AND/OR CLIENTS IN MAKING INVESTMENT AND OTHER BUSINESS DECISIONS.
NEITHER PLATTS, NOR ITS AFFILIATES OR THEIR SUPPLIERS GUARANTEE THE ADEQUACY, ACCURACY, AVAILABILITY, TIMELINESS OR COMPLETENESS OF THE PLATTS INFORMATION OR ANY COMPONENT THEREOF OR ANY COMMUNICATIONS, INCLUDING BUT NOT LIMITED TO ORAL OR WRITTEN COMMUNICATIONS (WHETHER IN ELECTRONIC OR OTHER FORMAT), WITH RESPECT THERETO. PLATTS, ITS AFFILIATES AND THEIR SUPPLIERS SHALL NOT BE SUBJECT TO ANY DAMAGES OR LIABILITY FOR ANY ERRORS, OMISSIONS, INTERRUPTIONS OR DELAYS IN THE PLATTS INFORMATION. THE PLATTS INFORMATION AND ALL COMPONENTS THEREOF ARE PROVIDED ON AN "AS IS" BASIS AND COMPANY'S USE OF THE PLATTS INFORMATION IS AT COMPANY'S OWN RISK.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL PLATTS, ITS AFFILIATES OR THEIR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS, TRADING LOSSES, BUSINESS INTERRUPTION LOSSES, OR LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE.
PLATTS, ITS AFFILIATES AND THEIR SUPPLIERS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST COMPANY BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF PLATTS, ITS AFFILIATES, AND THEIR SUPPLIERS IN CONNECTION WITH THE PLATTS INFORMATION AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM(S) OF ACTION, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE FEES PAID BY COMPANY TO PLATTS UNDER THE AGREEMENT FOR THE PLATTS INFORMATION IN QUESTION IN THE MONTH SUCH LIABILITY IS ALLEGED TO HAVE ARISEN. NOTHING IN THIS AGREEMENT SEEKS TO LIMIT OR RESTRICT LIABILITY FOR DEATH OR PERSONAL INJURY RESULTING FROM NEGLIGENCE.
NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT OR THE PLATTS INFORMATION MAY BE BROUGHT BY COMPANY MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
7. TRACKING AND COMPLIANCE.
To the extent that the Platts Information is delivered to the Company via email, Platts may incorporate tracking mechanisms to enable Platts to determine whether restrictions on use are being violated. Such tracking mechanisms shall allow Platts to collect information about whether the Platts Information distributed by Platts to Authorized Users via e-mail is forwarded to other e-mail addresses and to determine the IP address or other information regarding such other destination e-mail addresses. Platts reserves the right to use such IP address or other e-mail address information to enforce Platts' rights in the event it believes unauthorized redistribution of the Platts Information has occurred. The Company shall, at Platts' request, promptly provide a written certification by a senior officer that the Company is in full compliance with any Authorized User and other license restrictions set forth in this Agreement. In the event that the Company accesses the Platts Information via a Network Operator, Platts may use information obtained by Platts from such Network Operator to verify access to and use of the Platts Information by the Company. The Company agrees to cooperate fully with Platts in reconciling any disparities in Authorized User counts or other licensing disparities revealed by such verification procedure.
8. PLATTS' PROPRIETARY RIGHTS/INJUNCTIVE RELIEF.
A. All rights (including copyrights, trade secrets, database rights and trademark rights) in the Platts Information, including all information, data, price assessments, analytics, analyses, indices, benchmarks, symbology, software, products and documentation contained or included therein, are and shall remain the sole and exclusive property of Platts, its affiliates and their Suppliers. The Company acknowledges that the Platts Information is compiled, prepared, revised, selected, coordinated, and arranged by Platts, its affiliates and/or their Suppliers through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money, and the Platts Information constitutes the valuable intellectual property of Platts, its affiliates and their Suppliers. The Company shall take all precautions that are reasonably necessary to: (i) prevent access to the Platts Information or any component thereof by any individual or entity that is not an Authorized User; (ii) prevent any unauthorized distribution or redistribution of the Platts Information, either internally or externally; and (iii) protect the copyrights, trade secrets, database rights, trademarks and other proprietary rights of Platts, its affiliates and their Suppliers in the Platts Information, including, but not limited to, any contractual, statutory, or common-law rights, during and after the term of this Agreement. The Company shall honor and comply with all reasonable requests made by Platts to protect the rights of Platts, its affiliates, and their respective Suppliers in the Platts Information. No rights are granted to the Company with respect to the Platts Information other than those expressly set forth in this Agreement. Except as otherwise specifically provided herein and therein, Platts reserves all rights to the Platts Information that are not expressly licensed hereunder and thereunder, and nothing in this Agreement shall be construed to transfer to the Company any right to, or interest in, the Platts Information, or in any copyright, trademark or other proprietary right pertaining thereto.
B. Copying of, use of, access to or distribution of the Platts Information or any information, data or software contained therein in breach of this Agreement shall cause Platts, its affiliates and/or their respective Suppliers irreparable injury that cannot be adequately compensated for by means of monetary damages. Platts, its affiliates and their Suppliers may enforce any breach of this Agreement by the Company by means of seeking 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, without the need to prove irreparable harm, or post a bond or other security. In the event Platts has reasonable grounds to believe the Company is violating the terms and/or conditions set forth in this Agreement, Platts shall have the right to suspend delivery of, or the Company's access to, the Platts Information.
C. If Platts or the Company wishes to use promotional material referring to the other party, its services or marks, the party desiring to use such material shall, before using it, submit such material to the other party for review and written approval, which review and written approval shall not be unreasonably delayed, withheld or conditioned.
D. The Company: (i) will not participate, or assist or encourage others to participate, in a denial-of-service attack against, or any activity intended to interfere with or disrupt access to, any Platts databases, websites or servers; and (ii) will not exceed two API calls per second and 5000 API calls per day, or request the same data more frequently than once every sixty (60) seconds. If Platts believes that the Company has violated this provision, whether intentionally or inadvertently, in addition to all other rights and remedies that Platts has under this Agreement or applicable law, Platts shall have the right, exercisable at Platts' sole discretion, to suspend immediately the Company's access to the Platts databases, websites, servers and the Platts Information.
9. INDEMNIFICATION. the Company shall indemnify and hold harmless Platts and its Suppliers from and against any and all costs, claims, damages, expenses and liabilities (including, but not limited to, reasonable legal expenses and court costs) arising from any breach of this Agreement.
10. ASSIGNMENT/CHANGE OF CONTROL. the Company may not assign or transfer (including, but not limited to by operation of law) this Agreement without the prior written consent of Platts, and any attempted assignment or transfer shall be null and void and shall constitute a material breach of this Agreement.
11. MISCELLANEOUS. This Agreement represents the entire agreement between the parties hereto in respect of its subject matter and supersedes all previous agreements, representations, discussions, understandings or writings between the parties with regard to its subject matter. There are no oral or written collateral representations, agreements or understandings. If the Company is an existing customer of Platts and has signed Platts' master subscription agreement (the "Existing Agreement"), the Existing Agreement shall supersede this Agreement with respect to all Platts Services licensed under such Existing Agreement. In the event any conflicts between the English language version of this Agreement and any translations hereof, the English language version shall prevail. The provisions and terms of any purchase order or other agreement shall be of no effect and shall not in any way extend or amend the terms and conditions set forth in this Agreement unless expressly accepted in writing and signed by an authorized representative of Platts. The terms of this Agreement shall be kept confidential by the parties. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. In the event that any signature is delivered in a ".pdf" data file or any other electronic format, such signature shall create a valid and binding obligation of the party signing the Agreement, with the same force and effect as if such ".pdf" signature page or other electronic signature were an original thereof. The parties agree that only electronic copies of this Agreement shall be maintained and that such electronic copies are valid, enforceable and admissible. Platts shall have no responsibility or liability for any delays or interruptions in or failures of its performance under this Agreement beyond its control, including, but not limited to, acts of nature, acts of governmental authority, fire, acts of war, terrorism, flood, strikes, epidemics, pandemics, severe or adverse weather conditions, power failures or communications line or network failures. No amendment of this Agreement shall be binding upon the parties unless in writing and signed by authorized representatives of Platts and the Company. No waiver of any term or condition of this Agreement shall be effective unless agreed to in writing by the party making the waiver. If any term or condition hereof is found by a court, administrative agency or jurisdiction to be unenforceable, the remaining terms and conditions hereof shall remain in full force and effect and shall be enforceable to the maximum extent permitted by law. No action taken by either party shall constitute or be deemed to constitute that such party is the agent of the other, or imply that the parties intend to constitute a partnership, joint venture, or other form of association in which either party may be liable for the acts or omissions of the other. This Agreement and all claims arising out of or relating to this Agreement or the Platts Information shall be interpreted, construed and enforced in accordance with the applicable federal laws of the United States and the laws of the State of New York without giving effect to the conflicts of laws provisions thereof. The parties hereto and their successors and assigns consent to the exclusive jurisdiction of any courts located in the State of New York, County of New York, for the resolution of any disputes arising from or related to this Agreement or the Platts Information, and waive any claim of inconvenient forum. Sections 1B, 1C, 1D 1E, 3, 4C, 6, 7, 8, 9, 10, 11, 12, and 13 shall survive any termination or expiration of this Agreement .
12. COMPLIANCE WITH LAW.
A. General. the Company covenants that it shall, during the entire period of this Agreement, comply with all applicable laws and regulations including but not limited to all anti-corruption, economic sanctions, and anti-money laundering laws and regulations of the United States and other jurisdictions that are applicable to the Company. The Company agrees that it will not engage in, and represents that it is not currently engaged in, the operation of any unlawful transactions or business and that it will not use or permit anyone to use the Platts Information for any unlawful purpose, and that it will not cause any person, including Platts, to violate any applicable laws, including Sanctions (as such term is defined below). Nothing in this Agreement shall be construed to mean that Platts or the Company is required to take any action that Platts determines, in its sole discretion, to be contrary to, or prohibited by, any applicable economic sanctions, or otherwise in violation of any applicable laws or regulations. In the event that Platts determines in its sole discretion that performing one or more of its obligations under this Agreement would be prohibited by any such laws, Platts' failure to perform such obligations shall not constitute a breach of this Agreement by Platts, and Platts shall not be liable to the Company or any third party for any damages arising as a result of Platts' failure to perform such obligations.
B. Sanctions. As of the date of this Agreement, to the best of the Company's knowledge, the Company represents and warrants that: (i) neither the Company nor any of the Company's affiliates, or any Authorized User or any director or corporate officer of the Company or any of its affiliates, is the subject of any sanctions administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury, the U.S. State Department, the European Union, the United Nations Security Council or other applicable sanctions authority (collectively, "Sanctions"); (ii) the Company is not 50% or more owned or controlled, directly or indirectly, by any person or entity that is the subject of Sanctions; (iii) the Company is not an agency or instrumentality of, or an entity owned or controlled by, the government of a jurisdiction that is the subject of territorial Sanctions, or located, organized, or resident in a country that is the subject of territorial Sanctions; and (iv) no entity 50% or more owned or controlled by a direct or indirect parent of the Company is the subject of Sanctions. To the best of Platts' knowledge, no entity 50% or more owned or controlled by a direct or indirect parent of Platts is the subject of Sanctions. For so long as this Agreement is in effect, each party will promptly notify the other if any of these circumstances change. Platts shall have the right to immediately terminate , this Agreement (collectively, the "Contract"), if Platts determines, in its sole discretion, that Platts is required to terminate the Contract to comply with applicable law, or that the Company has breached any of the representations or covenants contained in this Section 12.B or in Section 12.A. The Company shall not distribute or redistribute the Services to any person that is the subject of Sanctions without the prior written consent of Platts.
C. Data Protection. Platts' provision of the Platts Information, as well as the Company's access to and use of the Platts Information, are subject to the terms of the S&P Data Protection Appendix as set forth at www.platts.com/data-protection-appendix, which terms are incorporated into and made a part of this Agreement and are subject to modification by Platts from time to time.
13. COMMENCEMENT OF PLATTS INFORMATION.
the Company acknowledges and agrees that the terms of this Agreement shall apply to the Company as soon as delivery of such Platts Information to the Company begins.
By clicking "Accept" you represent that you have the authority to enter into this Agreement on behalf of the Company and you agree to be bound by the terms of this Agreement.