Subscription & Usage Terms
These terms and conditions govern access and use of services and data by organizations, individuals and their agents (“Users”) who agree to be bound by them (the “Agreement”), for the purpose of accessing the services and data of Pythia Insurance, LLC (“Pythia”). Capitalized terms have the definitions set forth herein.
The User agrees to be bound by this Agreement and the Agreement becomes effective on the date when the User first (1) signs the Service Order, (2) registers for a free trial of a Service, (3) provides confirmation of consent for the acquisition of a Service, or (4) accesses or uses a Service, or authorizes or permits any Agent to use a Service, whichever occurs first (the “Effective Date”).
The User acknowledges and agrees that Pythia owns the copyright and all trade secret, trade name, and other proprietary rights, title, and interest in and to the Services, Data Products, and Platform furnished. The User also agrees to take no action adverse to such rights of Pythia as sole copyright proprietor.
This is not a contract of sale, and the User does not obtain any rights to redistribute (with or without compensation), reproduce, resell, or otherwise exploit the Services or Data Products except as expressly permitted under this Agreement. The User is granted limited rights only, specifically outlined herein, and no rights are conveyed under Section 109 of the Copyright Act of 1976.
Table of Contents:
- Definitions
- Access and use of Services and Data Products
- Restrictions
- Billing, expenses and payment
- Term, cancellation and termination
- Warranties
- Limits on liability
- Force Majeure
- Confidential Information
- General terms
GENERAL TERMS & CONDITIONS
1. Definitions
The following capitalized terms shall have the meanings given to them in this Section 1:
“Agent(s)” means an individual authorized to use the Service(s) as an agent, account owner and/or administrator of the User, each as identified through an individual Agent Login;
“Agent Login” means a unique username and associated password provisioned to an individual Agent to permit them to access the Services and Data Products;
“Applicable Law” means any law (including common law), statute, act, decree, ordinance, rule, directive (to the extent having the force of law), order, treaty, code or regulation or any interpretation of any of the foregoing, as enacted, issued or promulgated by any Governmental Authority and as amended, supplemented or otherwise modified and in effect from time to time, including any replacement thereof, that is applicable in the context in which this defined term is used;
“Confidential Information” means any and all confidential information, (whether in oral, written or electronic form) including technical or other information imparted in confidence or disclosed by one party to the other or otherwise obtained by one party relating to the other’s business, finance or technology, know-how, intellectual property, assets, strategy, products and customers, including without limitation information relating to manufacturing or other processes, management, financial, marketing, technical and other operations of any person, firm, or organization associated with that party, including any confidential Data Products and the contents of this Agreement. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party from a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without the use of the disclosing Party’s Confidential Information;
“User” means any party bound by this Agreement, as defined in the preamble of this Agreement, typically the party referenced in the Service Order;
“Data Products” means the information being supplied and licensed by Pythia under this Agreement, as described in the Service Order and/or sub-clause 2.1(a) on Services description, which shall include, for the avoidance of doubt, any updates, additions or new versions thereof together with such other information as is provided to the User from time to time by or on behalf of Pythia in connection with the Services under this Agreement;
“Fees” means the fees and other amounts payable under clause 4 (Billing, expenses and payment);
“Force Majeure” means any circumstances beyond a party’s reasonable control, including, but not limited to, an act of God, act of government, flood, fire, earthquake, pandemic, civil unrest, act of terror, strike or other labor problem (other than one involving Pythia employees), Internet service provider failure or delay, services not associated with Pythia, or acts undertaken by third parties, including without limitation, denial of service attack.
“Governmental Authority” shall mean the government of the United States, any state of the United States or political subdivision thereof, and any other governmental authority, instrumentality, agency, or commission, domestic or foreign, including without limitation any court, tribunal, administrative agency or board thereof.
“Intellectual Property Rights” means any and all of a Party’s patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights;
“Materially Adverse Effect” means, with respect to a party, any change, event or effect that, individually or in the aggregate, has had or is reasonably expected to have a material adverse effect upon (a) the business, operations, assets (including intangible assets), liabilities, condition (financial or otherwise), property, prospects or results of operation of such party, (b) the validity or enforceability of this Agreement, or (c) the ability of such party to perform its obligations or exercise its rights under this Agreement.
“Person” means any individual, partnership, corporation, company (including without limitation, any limited liability company, joint venture, association (including without limitation, any voluntary association)), trust, unincorporated organization or entity, and any Governmental Authority.
“Pythia” means Pythia Insurance, LLC, registered in Delaware at 131 Continental Dr, Suite 305, Newark, 19713
“Reports” means Pythia’s proprietary documents presenting detailed analyses, which include, without limitation, interpretations and summaries of information and qualitative analysis. Data Products may be comprised of one or several Reports;
“Service Order” means a written ordering form signed by the User for the acquisition of Services from Pythia, in each case setting out the particulars of the terms on which Services are to be provided to the User. Each Service Order forms a part of and is governed by the terms and conditions of this Agreement;
“Service(s)” means all products and services provided to the User by Pythia under this Agreement, either through Pythia’s Platform or via other delivery channels (e.g., spreadsheets or presentations), including, without limitation, the licensing of Data Products to the User, whether on a trial or paid basis, as specified in a Service Order. From time to time, the names and descriptions of the Services or any individual Service may be changed. To the extent the User is given access to such Service as so described by virtue of a prior Service Order or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such Service as newly named or described.
“Software” means the source code deployed to facilitate the functionality of the Services and Data Products;
“Term” means the term of a Service Order as set out in the Service Order;
“Platform” means Pythia’s proprietary Platform where Services and Data Products can be accessed.
2. Access & use of Services & Data Products
2.1 Pythia grants the User a license to access and use the Services and Data Products (including any Intellectual Property Rights therein) for the Term, subject to the terms set out below.
(a) Services and Data Product description: Financial sector data, information and analysis provided to the User. For the avoidance of doubt, any other services requested by the User that are not set out in the Service Order may be supplied by Pythia subject to the same terms and conditions, as Pythia shall reasonably deem appropriate.
(b) Format of supply: Services will be available to the User either through Pythia’s Platform or via other delivery channels (e.g., spreadsheets or presentations). When the User acquires access to Pythia’s Platform, Pythia will provide the User with the log-in and password details necessary.
(c) License scope: The license granted is non-exclusive and allows the User to utilize the Intellectual Property Rights inherent in the Services and Data Products, strictly for purposes as outlined and within the limits set by this Agreement.
(d) License transferability: This license is non-transferable by the User and cannot be sub-licensed without Pythia’s consent (such consent, however, is not to be unreasonably withheld or delayed).
(e) Licensed use: The Services and Data Products may only be used in accordance with the provisions of clause 2.2 below, any conditions specified in the Service Order and in connection with the User’s ordinary course of business and may not be reproduced, re-sold or distributed to third parties except as set out herein;
(f) Other conditions: Each party shall be responsible at its own expense for complying with any applicable laws that apply to it, including data protection laws.
(g) Except as expressly set out in this Agreement, no Intellectual Property Rights of either party in the Services and Data Products or otherwise are assigned or transferred except as expressly agreed in writing by the parties.
2.2 The User is prohibited from engaging, or authorizing others to engage, in any of the following activities regarding the Services, Data Products, or the Platform:
(a) use in a way that is unlawful;
(b) use in connection with any material which contains computer viruses or spyware or malware of any description or with any material which is designed to adversely affect the operation of any computer hardware or Software or any communications network;
(c) use or allow the usage by a greater number of Agents or users than the number defined in the Service Order;
(d) copy, sell, rent, lend, lease, license, sub-license, distribute or in any other manner transfer or grant any rights to third parties; or
(e) decode, reverse engineer, disassemble, decompile or otherwise translate or convert the Software other than in the circumstances set out in clause 3.3.
(f) remove or modify any copyright or similar notices, or any of Pythia’s or any other person’s branding, that the Software causes to be displayed when used; or
(g) attempt to circumvent or interfere with any security features of the Software.
2.3 If it is necessary for the User to decompile the Software in order to create an independent program to allow the interoperability of the Software with other software, it shall notify Pythia in writing in advance and request the provision of the information necessary to enable such interoperability. Pythia may, but is not obliged to, provide such information and assistance to the User as it considers appropriate.
2.4 Pythia shall maintain the Platform, Software and Services to ensure that they are available and operating properly, and that functionality is not adversely affected.
2.5 Without limiting its other obligations hereunder, Pythia shall maintain the Services and Data Products by removing any bugs and any malware, and resolving all technical issues that affect the performance of the Services, Platform or Data Products (“Faults”). For the avoidance of doubt, such maintenance shall not include
(a) The correction of Faults caused by the acts or omissions of the User;
(b) The correction of Faults arising from the User’s unauthorized use of the Data Products;
(c) The correction of Faults required by the User’s upgrade of its IT systems (other than as recommended or approved by Pythia); or
(d) Faults attributable to a failure of the User’s hardware, telecommunications network or electricity supply.
2.6 Any enhancements to the Services, Data Products or other products and services available from Pythia may be purchased by the User on such terms and conditions as Pythia reasonably requires from time to time.
2.7 The User shall accept responsibility for configuring its information technology, computer programs and platform in order to access the Services and Data Products. Pythia will cooperate with the User in good faith and provide all information and assistance reasonably requested by the User to enable the User to access and use the Services, the Platform and the Data Products.
2.8 The User is prohibited from granting sub-licenses or extending such rights to any third parties concerning the Services and Data Products.
3. Restrictions
3.1 The rights granted to the User under this Agreement do not include
(a) any resale of any part of the Services, Data Products, Platform or other medium that contains Pythia’s Services and/or Data Products;
(b) any collection and use of any derivative of the Platform or their contents;
(d) any use of data mining, robots, or similar data gathering and extraction tools; or
(c) any downloading or copying of account information for the benefit of any third party.
3.2 Services (including Data Products) may not be redistributed (with or without compensation), reproduced, duplicated, copied, sold, resold or otherwise exploited (in whole or in part) for any purpose inconsistent with the limited rights granted to the User under this Agreement.
3.3 To ensure the stability of our systems and to protect our intellectual property, Users might be restricted from downloading or otherwise transferring excessive volumes of data from our database. The term “excessive” is defined as any amount of data transfer that (i) significantly exceeds the average amount of data transfer by Pythia’s other customers, and (ii) could potentially degrade system performance or lead to significant duplication of Data Products. Violations of this policy may result in the temporary or permanent suspension of User access privileges if the User does not cure the violation within thirty (30) days after receiving written notice by Pythia of the violation.
3.4 The User may not frame or utilize framing techniques to enclose any trade mark, logo, or other Pythia-generated content of the Platform and/or other documents, or use meta tags or any other “hidden text” or data elements utilizing Pythia’s name or trademarks without the express written consent of Pythia.
3.5 The User may not assign, subcontract or encumber any right or obligation under this Agreement, in whole or in part, without Pythia’s prior written consent.
3.6 Pythia shall in no way be responsible or liable for unauthorized use or disclosure of personal information by the User.
4. Billing, expenses & payment
4.1 The User shall pay Pythia the amounts listed in the Service Order, in accordance with Pythia’s payment instructions and the provisions of this Agreement and the Service Order itself. For the avoidance of doubt, fees due in respect of training and for any professional implementation services ordered by the User from Pythia shall be invoiced separately, but payable in accordance with the foregoing deadline.
4.2 Access to Platform will only be provided upon receipt of payment by Pythia.
4.3 Pythia shall invoice the User electronically to the email address notified by the User in writing to Pythia for all sums due under this Agreement and the User shall remain solely responsible for payment of the Fees in accordance with the terms hereof.
4.4 Amounts due under this Agreement, not subject to a good-faith dispute, shall be payable within 30 days of the date of User’s receipt of Pythia’s invoice properly due.
4.5 Where undisputed sums due are not paid in full by the due date, Pythia may, without limiting its other rights, charge interest on such sums at a rate not to exceed six percent (6%) per annum. Interest will apply from the due date for payment until actual payment in full, whether before or after judgment.
5. Term, cancellation & termination
5.1 This Agreement shall continue from the Effective Date for the Term, as set out in the Service Order, at which point it will renew automatically for successive periods equal in duration to the Term, unless terminated earlier
5.2 Either party may elect to terminate the Agreement by providing written notice to the other party at least thirty (30) days prior to the end of such Term.
5.3 Pythia may terminate the Agreement immediately for cause and/or suspend the User’s access to Services, by providing a notice to the User in writing, if:
(a) the User fails to make any payment when due. Such termination or suspension shall not constitute a waiver by Pythia of any other rights which it may have against the User;
(b) the User is in material or persistent breach of any of its obligations under this Agreement and has failed to remedy that breach within 14 days after receiving written notice requiring it to remedy that breach. The User continues to be liable for any unpaid Fees covering the remainder of the Term pursuant to the Service Order;
(c) the User becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors;
(d) the User pursues legal proceedings against Pythia contesting its right, title, and interest in and to the Services, Data Products, and/or Platform, or contesting its power, right, or authority to obtain, transmit, or distribute such Services, Data Products, and/or Platform; or
(e) licenses granted to Pythia on which the rights granted herein are dependent are revoked.
5.4 Pythia may terminate the Agreement immediately for cause, without providing a notice to the User, if provision of the Service violates applicable law, regulation or court order. Such revocation shall not (i) relieve the User of its obligations to pay those Fees that had become due prior thereto; or (ii) entitle the User to a reimbursement of such Fees as it had paid prior thereto.
5.5 Termination of this Agreement for whatever reason shall not operate to affect any provisions that expressly or by implication survive termination.
5.6 On termination or expiry of this Agreement all login identifiers shall be disabled preventing ongoing access to the Service and the User shall be responsible for contacting Pythia to make arrangements for the return and/or deletion of personal data stored within the Service.
6. Warranties
6.1 Pythia warrants and represents to the User that:
(a) Pythia has the right to grant to the User the rights contemplated herein;
(b) the Service contains nothing which infringes the statutory or common law rights of any third party;
(c) the Service, Data Products and any Intellectual Property Rights are not subject to any claims or litigation, are free from all liens and encumbrances and do not infringe any rights (whether of intellectual property of otherwise) of any third party;
(d) any and all technical information contained within the Service has been obtained from third parties and Pythia is unable to guarantee its accuracy.
(e) Neither Pythia’s execution of this Agreement nor its performance of the Services violate any Applicable Law (including without limitation, privacy, import, export, currency control, labor, hazardous materials, safety and environmental laws, rules and regulations), or any contract between Pythia and any other Person.
(f) There are no actions, suits, proceedings or investigations of any kind pending or threatened against Pythia before any governmental authority that, if adversely determined, would have a Materially Adverse Effect.
(g) Neither the Services, the Platform, nor the Software, contains computer viruses or spyware or malware of any description or any material which is designed to adversely affect the operation of any computer hardware or software or any communications network.
6.2 All other warranties and representations, whether statutory or implied, are hereby expressly excluded to the fullest extent permitted by law.
7. Limits on liability
7.1 Subject to the following sub-clauses, in no event shall the aggregate liability of either party – whether contract, tort (including negligence) or otherwise – and in respect of all claims, losses and damages arising under or in connection with this Agreement exceed an amount equal to four times (4X) the sum of (i) the total amounts payable under this Agreement, plus (ii) the total amounts payable under this Agreement. Each party shall indemnify the other against any third-party claims arising from their respective breaches of this Agreement;
7.2 Pythia shall not be liable to the User for any loss and damage resulting diurectly from:
(a) The User’s failure to follow Pythia’s instructions in respect of accessing the Services and Data Products;
(b) Any third party claims arising from repair works undertaken in reliance on the Services and Data Products;
(c) Non-availability of the Services and Data Products as a result of third party hardware, software or infrastructure faults
7.3 Each party’s liability to the other in contract, tort (including negligence), breach of statutory duty or otherwise arising out of or in connection with this Agreement shall not extend to any:
(a) loss of profits;
(b) loss of business opportunity;
(c) loss of goodwill;
(d) loss of data;
(e) loss of anticipated savings; or
(f) any special, indirect or consequential loss or damage whatsoever.
7.4 The parties agree that the limitations on liability in this Agreement are reasonable given their respective commercial positions and ability to purchase relevant insurance in respect of risks under this Agreement. No member, owner, agent, or employee of either party hereto shall be personally liable on account of any claim another party may have under or in connection with the matters contemplated by the agreement. Each party expressly waives any and all rights it may have to claim or recover punitive or exemplary damages.
7.5 Notwithstanding the above or other limitations and exclusions of liability set out in this Agreement, neither party excludes nor limits any liability for:
(a) fraud or fraudulent misrepresentation;
(b) breach of Confidentiality obligations;
(c) breach of Intellectual Property Rights;
(d) gross negligence or criminal misconduct;
(e) any other liability to the extent the same cannot be excluded or limited by law.
8. Force Majeure
8.1 Neither party will not be liable if delayed in or prevented from performing its obligations hereunder due to Force Majeure, provided that it:
(a) promptly notifies the other of the Force Majeure event and its expected duration, and
(b) uses reasonable endeavors to minimize the effects of that event.
8.2 If, due to Force Majeure, a party is unable to perform a material obligation or is delayed in or prevented from performing its obligations for a continuous period of more than sixty (60) days, the other party may, within a further ten days terminate this Agreement upon written notice, otherwise this Agreement shall continue in full force and effect.
9. Confidential Information
9.1 Each party shall maintain the confidentiality of the other party’s Confidential Information and shall not without the prior written consent of the other use, disclose, copy or modify the other party’s Confidential Information (or permit others to do so) other than as necessary for the performance of its rights and obligations under this Agreement.
9.2 Each party undertakes to:
(a) disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom and to the extent to which such disclosure is necessary for the purposes contemplated under this Agreement; and
(b) to procure that such persons are made aware of and agree in writing to observe the obligations in this clause.
(c) Each party shall give notice to the other of any unauthorized misuse, disclosure, theft or loss of the other party’s Confidential Information immediately upon becoming aware of the same.
9.3 The provisions of this clause shall not apply to information which:
(a) is or comes into the public domain through no fault of the recipient, its officers, employees, agents or contractors;
(b) is lawfully received by the recipient from a third party free of any obligation of confidence at the time of its disclosure;
(c) is independently developed by the recipient, without access to or use of such information; or
(d) is required by law, by court or governmental or regulatory order to be disclosed provided that the relevant party, where possible, notifies the other party at the earliest opportunity before making any disclosure.
9.4 The obligations under this clause shall survive 2 (two) years after the expiry or termination of this Agreement.
10. General terms
10.1 This Agreement, along with the rights and duties of the parties involved, and any associated claims or disputes, will be governed and interpreted according to the laws of the State of Delaware, disregarding any principles of conflicts of law.
10.2 The parties hereby agree to submit to the jurisdiction of the federal and state courts located in the State of Delaware for the purposes of all legal proceedings arising out of or related to this Agreement. Each party irrevocably waives any claim of inconvenient forum or other objection it may now or hereafter have with respect to the venue of any proceeding brought in such court. EACH OF THE PARTIES HEREBY WAIVES ANY RIGHT IT MAY HAVE TO A JURY TRIAL IN ANY SUIT, ACTION OR PROCEEDING UNDER OR RELATING TO THIS AGREEMENT. In the event that any party brings an action or proceeding to enforce or interpret any of the covenants, conditions, agreements or provisions of this Agreement, the prevailing party in such action or proceeding shall be entitled to recover all reasonable costs and expenses of such action or proceeding, including without limitation, reasonable attorney’s fees, charges, disbursements and the fees and costs of expert witnesses.
10.3 This Agreement shall be binding upon, and ensure to the benefit of, each of the parties, their respective personal representatives and their respective successors in title.
10.4 Provisions which by their terms or intent are to survive termination of this Agreement will do so.
10.5 The parties are independent businesses and not partners, principal and agent, or employer and employee, or in any other relationship of trust to each other.
10.6 No amendment or variation of this Agreement will be valid unless agreed in writing by an authorized signatory of each party.
10.7 If any clause in this Agreement (or part thereof) is or becomes illegal, invalid or unenforceable under applicable law, but would be legal, valid and enforceable if the clause or some part of it was deleted or modified (or the duration of the relevant clause reduced), the relevant clause (or part thereof) will apply with such deletion or modification as may be required to make it legal, valid and enforceable, and the parties will promptly and in good faith seek to negotiate a replacement provision consistent with the original intent of this Agreement as soon as possible.
10.8 Unless otherwise expressly agreed, no delay, act or omission by either party in exercising any right or remedy will be deemed a waiver of that, or any other, right or remedy.
10.9 All payments under this Agreement will be made without set-off or counterclaim, free and clear of and without deduction of any taxes, levies, duties, charges and withholdings of any kind now or in future imposed in any jurisdiction.
10.10 The amounts due under this Agreement shall not change, except as mutually agreed by the parties.
10.11 Notices under this Agreement must be in writing and sent to the other party’s registered office or at the electronic address provided in the Service Order.
10.12 This Agreement constitutes the entire agreement between the parties and supersedes any prior written or oral agreements and understandings between the parties.