1. Nasdaq Analytics Hub.
Nasdaq hosts operates and maintains the Nasdaq Analytics Hub (the “Service”) that that provides a platform for vetted alternative data. Company wishes to access the Service and license the Data detailed in an applicable order form (“Order Form”) in accordance with these Terms of Service (“TOS”).
2. License; Restrictions.
2.1 License. Nasdaq grants to the Company, Company business, and/or Company Affiliates as expressly detailed in the applicable Order Form, a limited, non-exclusive, non-transferable non-sublicenseable, license to receive, use, process and store within the Territory the Data detailed in the applicable Order Form for internal business purposes only.
2.2 Derived Data. In addition to the rights detailed in Section 1.1,Company may create Derived Data and use it for its internal business purposes provided that: (a) such Derived Data cannot be reversed engineered or decompiled to arrive at the underlying Data; or (b) the Derived Data cannot be a substitute for a service provided by Nasdaq containing the Data. Notwithstanding the foregoing, Company shall be prohibited from creating any Derived Data from any Information for which a Third Party Provider has prohibited the creation and of which the Company has been notified. Company shall exclusively own all rights and title in the Derived Data; provided such Derived Data cannot be distributed outside of Company without Nasdaq’s prior written approval. All rights not granted hereunder are expressly reserved by Nasdaq and/or its Third Party Provider(s).
2.3 Third Party Provider License. In addition to the terms and conditions of these TOS, Company shall comply with the applicable Third Party Provider terms and conditions.
2.4 Restrictions. Company shall not: (a) copy, modify, reverse engineer, decode, decompile, attempt to tamper with, evade, or discover the method of operations of the Services; (b) sell, lease, rent, furnish, retransmit, redistribute, disseminate, divert, release, license, sublicense or otherwise permit or provide access to the Data in any manner not detailed in Section 2.1 or 2.2 or in accordance with Section 2.3; (c) use the Data in violation of these TOS; (d) introduce any harmful data, computer code, or viruses to the Services or damage, disrupt, disable, or harm the Services; (e) use the Services or Data in any time sharing service bureau, software-as-a-service, or other technology service; (f) distribute the Data in any manner that does or could compete with any business, product or service of Nasdaq or serve as a source of, or substitute for, Information made available by Nasdaq; or (g) remove or alter any copyright, ownership and/or identification notices found within the Services or Data.
3. Company Obligations.
3.1 Company shall comply with any Nasdaq technical specifications or requirements in accessing the Service. In the event Nasdaq provides a back-up option to access the Service, Company shall only use such back-up option in cases where the primary means of accessing the Service is unavailable.
3.2 Company shall be responsible for and shall pay for all costs of cabling, communications, electrical and common carrier equipment installation charges incurred in connection with access to and receipt of the Services.
3.3 Company shall implement reasonable security measures and safeguards in accordance with industry standards to prevent unauthorized individuals or entities from gaining access to the Data. Company shall notify Nasdaq promptly upon any known breach in security procedures related to the Services and/or the Data.
3.4 Company hereby understands that Company may be required by Third Party Data Providers to disclose certain information concerning Company’s use of Data as detailed in the applicable Third Party Data License. Company consents to the disclosure of such information.
4. Changes to the Services.
4.1 Company acknowledges and agrees that nothing in these TOS constitutes an undertaking by Nasdaq or the Third Party Provider to continue to provide the Data, the Service, or any aspect of either. Nasdaq, or its Third Party Provider’s may, in its sole discretion and at any time, make changes, modifications or deletions the Data, the Services, or any aspect of either.
4.2 Nasdaq shall not be required to provide notice of any routine modifications, additions or deletions to the Service. For all other modifications, additions or deletions, Nasdaq shall endeavor to provide at least thirty (30) days’ advance notice of any non-material changes and at least sixty (60) days’ advance notice of any material changes, except to the extent a shorter period is: (a) otherwise permitted herein; (b) required due to a malfunction in the System or Data; (c) required due to emergency or priority situation that necessitates such change on an accelerated basis or otherwise precludes advance notice; or (d) required pursuant to an order of a court, an arbitrator, or a regulatory agency.
4.3 Receipt or use of the Data and Services after the applicable notice period shall constitute acceptance of any such change.
5.1 Company shall pay Nasdaq the fees detailed in the applicable Order Form.
5.2 Company agrees to pay the amounts invoiced by Nasdaq no later than thirty (30) days of date of invoice. Company shall pay Nasdaq a late fee equal to the lesser of: (a) one and one-half percent (1.5%) per month; or (b) the maximum amount permitted by applicable law on any amounts due Nasdaq for the period commencing sixty (60) days after the applicable due date of such fees. All payments shall be made in immediately available funds.
5.3 Company shall pay any taxes, including, but not limited to, any VAT, charges or assessments (other than taxes imposed on the net income of Nasdaq) by any government bodies relating to the provision of the Services and Data pursuant to these TOS, and any related penalties or interest. If Company is required by applicable law to deduct or withhold any such tax, charge or assessment from the amounts due Nasdaq, then such amounts due shall be increased so that the net amount actually received by Nasdaq after the deduction or withholding of any such tax, charge or assessment, will equal one hundred percent (100%) of the charges that are owed.
5.4 Nasdaq may impose an increase in the fees detailed in the applicable Order Form on each anniversary of the Order Form Effective Date; provided that in the event such increase exceeds 3%, Nasdaq shall notify Company a minimum of forty five (45) days prior to the end of the then current term year.
6.1 The Data and the Services, including without limitation any and all intellectual property rights inherent therein or appurtenant thereto, shall, as between the two parties, be and remain the sole and exclusive property of Nasdaq. Company shall not, by act or omission, diminish, impair or interfere with in any manner the acquisition, maintenance, and full enjoyment by Nasdaq, its licensees, transferees and assignees, of Nasdaq’s proprietary rights in the Information and Service. Company acknowledges and agrees that Third Party Information Providers have exclusive proprietary rights in their respective information and data and services.
6.2 Company acknowledges and agrees that Nasdaq has proprietary rights in certain trademarks, service marks, copyrights or patents, registered or unregistered including, but not limited to the names and trademarks of the Nasdaq, Inc. Company shall not: (a) use the Nasdaq names, trademarks or service marks in any advertising or marketing materials, except with Nasdaq's prior written consent; or (b) use these trademarks, service marks, copyrights or patents, registered or unregistered, in any way that would infringe, misappropriate or violate such marks, copyrights or patents. Nasdaq acknowledges and agrees that Company has proprietary rights in certain trademarks, service marks, copyrights or patents, registered or unregistered. Nasdaq shall not: (x) use the Company’s names, trademarks or service marks in any advertising or marketing materials, except with Company’s prior written consent; or (y) use these trademarks, service marks, copyrights or patents, registered or unregistered, in any way that would infringe, misappropriate or violate such marks, copyrights or patents.
7. Term; Termination
7.1 Term. The term for each Order Form shall be detailed in the applicable Order Form (“Order Form Term”). In the event the term is not detailed in an Order Form, such Order Form Term shall commence as of the Order Form Effective Date and continue for a period of one (1) year. Thereafter, the term of an applicable Order Form shall renew for subsequent one year terms, unless either Party gives notice to the other at least thirty (30) days before the end of the present Order Form Term of its intent not to renew, or otherwise terminates the Schedule in accordance with Section 7.2.
7.2.1 Either Party may elect, without prejudice to any other rights or remedies, to terminate the applicable Order From, upon thirty (30) days advance notice with an opportunity to cure within the stated period, if the other Party has failed to perform any material obligation under these TOS or applicable Order Form.
7.2.2 Either Party may elect, without prejudice to any other rights or remedies, to terminate the applicable Order Form with advance written notice, if a petition in bankruptcy has been filed by or against the other Party or the other Party has made an assignment for the benefit of creditors, or a receiver has been appointed for the other Party or any substantial portion of the other Party's property, or the other Party or its officers or directors takes action approving or makes an application for any of the above.
7.2.3 Either Party may elect, without prejudice to any other rights or remedies, to terminate an applicable Order Form with thirty (30) days’ notice (or in the event of an emergency, with such notice as is practicable), if either Party's ability to perform its obligations under these TOS or applicable Schedule is substantially impaired by any new statute, or new rule, regulation, order, opinion, judgment, or injunction of the Securities and Exchange Commission, a court, an arbitration panel, or governmental body or Self-Regulatory Organization with jurisdiction over the Party.
7.2.4 Nasdaq may terminate any Order Form immediately, in the event that: (a) Nasdaq is prevented from disseminating the Data, or any part thereof; or (b) Nasdaq, in its sole reasonable discretion, determines that any failure on the part of the Company to comply with these TOS has or is likely to have a materially adverse impact on the operation or performance of the Services or Data or has or is likely to cause disproportionate harm to Nasdaq’s interests should termination be delayed.
7.2.5 Nasdaq may terminate upon not less than ninety (90) days prior written notice, should it determine that it will cease providing the same type of Data or Services to all other customers or entities that were receiving the same type of Information as Company.
7.3 Effect of Termination. Upon termination or expiration of any applicable Order Form for any reason whatsoever, all rights granted to Company hereunder or thereunder to use the applicable Services and Data shall terminate. Company shall: (a) immediately cease using all Services and Data; and (b) delete or purge any Data provided by Nasdaq. Upon Nasdaq’s request, Company shall certify that all such deletions, purges and cessation of use has occurred.
7.4 Survival. The terms of Sections 2.2, 6, 7.3, 7.4, 8, 9, 10, 11, 12, 13, 15, 16 and 18 through 22 shall survive expiration or termination of any applicable Order Form.
8.1 In the event either Party (the “Receiving Party”) obtains during the course of the applicable Order Form, direct or indirect access to the confidential or proprietary information of the other Party (the “Disclosing Party”) (which may include but not be limited to, certain confidential and/or proprietary financial, sales and distribution, marketing, research and development, organizational, employee, technical and business information, policies or practices, portfolio holdings and securities related information and certain non-public personal or financial information received from or relating to third parties such as a Party’s own clients and customers), the Receiving Party shall adhere to industry best practices for securing the Confidential Information of the Disclosing Party so as to reasonably ensure that such Confidential Information is not lost, stolen or otherwise used, modified or accessed by any unauthorized person.
8.2 The Receiving Party shall have the limited right to use the Confidential Information only for the purpose of fulfilling its commitments and obligations to the Disclosing Party under these TOS and for no other purpose.
8.3 The Receiving Party shall promptly notify the Disclosing Party of any breach or suspected breach of the provisions of this Section 7.
8.4 "Confidential Information" shall not include any information which the Receiving Party can demonstrate (i) is in the public domain through no fault or breach of confidentiality by such Receiving Party, (ii) was rightfully known by the Receiving Party prior to its disclosure by the Disclosing Party and was not obtained in such circumstances subject to a requirement of confidentiality, or (iii) was developed independently of, and without the use of or access to, any Confidential Information exchanged pursuant to these TOS.
8.5 Despite the obligations of this Section, the Receiving Party may disclose Confidential Information of the Disclosing Party to the limited extent such Confidential Information is required to be disclosed by the Receiving Party by Law or pursuant to an order of any court, administrative body or self- regulatory organization; provided that, where practicable, the Receiving Party shall provide the Disclosing Party with notice of such request or order, including copies of subpoenas or orders requesting such Confidential Information, and shall not make disclosure pursuant thereto until legally required.
Nasdaq or its designee, upon thirty (30) days advance written request, shall have the right to audit use of the Data by Company. Company shall allow Nasdaq or its designee access to any of the premises, computers (including, but not limited to, hardware, software and network services) and personnel of Company at reasonable times for the purpose of such audits. Such audit request shall not occur more than once per year. Nasdaq or its designee shall comply with all Company policies and procedures when conducting audits at the Company facilities. All information collected as part of the audit shall be deemed Company Confidential Information
NASDAQ WILL ENDEAVOR TO OFFER THE DATA AS PROMPTLY AND AS ACCURATELY AS IS REASONABLY PRACTICABLE. NOTWITHSTANDING THE FOREGOING, COMPANY ACKNOWLEDGES AND AGREES THAT THE SERVICE AND THE DATA AND ANY AND ALL MATERIAL RELATED TO THE DATA, INCLUDING, BUT NOT LIMITED TO, THE SPECIFICATIONS, ARE BEING PROVIDED “AS IS” WITH NO WARRANTIES WHETHER WRITTEN OR ORAL, EXPRESS OR IMPLIED, OR STATUTORY WITH RESPECT TO THE SUBJECT MATTER OF THESE TOS INCLUDING, WITHOUT LIMITATION, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION, ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
11. Limitation of Liability.
11.1 NASDAQ AND ITS THIRD PARTY PROVIDERS SHALL NOT BE LIABLE TO COMPANY OR TO ANY OTHER PERSON FOR TRADING LOSSES, LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR FOR INCREASED EXPENSES OF OPERATION, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGE OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF NASDAQ AND/OR ITS THIRD PARTY PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11.2 NASDAQ SHALL NOT BE LIABLE TO COMPANY OR TO ANY OTHER PERSON FOR THE UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF THE DATATHAT: (I) LASTS LESS THAN FOUR (4) CONTINUOUS HOURS DURING THE TIME THAT NASDAQ REGULARLY TRANSMITS THE INFORMATION; OR (II) LASTS LESS THAN A TOTAL OF TWELVE (12) HOURS DURING THE TIME THAT NASDAQ REGULARLY TRANSMITS THE INFORMATION DURING A SINGLE CALENDAR MONTH. IN THE EVENT OF SUBSECTION (I) OR (II), COMPANY’S OR ANY OTHER INDIVIDUAL'S OR ENTITY'S SOLE AND EXCLUSIVE REMEDY AGAINST NASDAQ SHALL BE, AT COMPANY’S OPTION, EITHER A PRORATED CREDIT OR A PRORATED REFUND OF ANY MONIES DUE TO NASDAQ FROM COMPANY FOR THE DATA AT ISSUE FOR THE PERIOD AT ISSUE. SUCH CREDIT OR REFUND SHALL BE REQUESTED BY WRITTEN NOTICE TO NASDAQ WITH ALL PERTINENT DETAILS INCLUDED. NOTWITHSTANDING THE ABOVE, NASDAQ SHALL IN NO EVENT BE LIABLE TO COMPANY OR TO ANY OTHER PERSON FOR THE UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS OR INACCURACY OF INFORMATION FROM OR IN CONNECTION WITH THE ACTS OR OMISSIONS OF NASDAQ'S THIRD PARTY INFORMATION PROVIDERS.
11.3 IF NASDAQ OR ANY NASDAQ COMPANY IS FOR ANY REASON HELD LIABLE TO COMPANY, OR TO ANY OTHER PERSON, FOR CLAIMS ARISING FROM THE INFORMATION OR SERVICE, WHETHER IN TORT OR IN CONTRACT, THE LIABILITY OF NASDAQ SHALL BE LIMITED TO AN AMOUNT OF COMPANY’S DIRECT DAMAGES THAT ARE ACTUALLY INCURRED BY COMPANY IN REASONABLE RELIANCE, AND WHICH AMOUNT DOES NOT EXCEED, AT COMPANY’S OPTION, A MONTH'S CREDIT OR A MONTH'S REFUND OF THE AVERAGE MONTHLY AMOUNT PAID TO NASDAQ, CALCULATED OVER THE TWELVE (12) MONTHS PRECEDING THE CLAIM.
11.4 COMPANY AND NASDAQ UNDERSTAND AND AGREE THAT THE PRICING FOR THE INFORMATION REASONABLY REFLECTS THE ALLOCATION OF RISK AND LIMITATION OF LIABILITY SET FORTH IN THIS SECTION.
12.1 Company shall defend, be liable to, indemnify, and hold the Nasdaq Indemnified Parties harmless from and against, any and all Claims or Losses imposed on or asserted against any of the Nasdaq Indemnified Parties by third parties to the extent that the Claims and Losses result from or relate to: (a) failure of Company, its employees, independent consultants/subcontractors, directors, and other agents to comply with the terms and conditions of these TOS; or (b) the receipt or use of the Data by Company, its employees, directors, and other agents contrary to the provisions of these TOS.
12.2 Nasdaq shall defend, be liable to, indemnify, and hold the Company Indemnified Parties harmless from and against any and all Claims and Losses imposed on or asserted against Company’s Indemnified Parties by a third party to the extent that the Claims and Losses result from or relate to any claim or allegation that the Data or Services provided by Nasdaq hereunder infringe, violate or misappropriate the intellectual property rights of a third party. In the event of such claim or if, in Nasdaq's opinion, such a claim, action or allegation is likely to occur or if the use of the Services, Data or any specifications is enjoined because of infringement or misappropriation, Nasdaq may, at its sole option and expense: (a) procure for Company the right to continue using the Services, Data or any specifications; (b) replace or modify the Services, Data or any specifications to be non-infringing, and require the return of the potentially infringing or misappropriating items, if applicable, without liability to Company or any other Person; or (c) terminate these TOS immediately without liability to Company or any other Person. The indemnification obligations and remedies detailed in this Section 12.2 shall be Company’s sole and exclusive remedy in the event of an infringement claim.
12.3 The Party obligated to provide indemnification under this Section 12 shall give prompt written notice to the Indemnified Party of any proposed settlement of an indemnifiable claim under this Section 12 and the indemnifying Party may not, without the Indemnified Party’s prior written consent, settle or compromise any claim or consent to the entry of any judgment regarding which indemnification is being sought hereunder unless such settlement, compromise, or consent: (a) includes an unconditional release of the Indemnified Party from all liability arising from the claim; (b) does not contain any admission or statement suggesting any wrongdoing or liability on behalf of the Indemnified Party; and (c) does not require a contribution from any Indemnified Party or contain any equitable order, judgement or term (other than the fact of payment of the amount of such payment from the Company) that in any manner affects, restrains, or interferes with the business or regulatory functions of the Indemnified Party. The Indemnified Party’s duty to cooperate in litigation shall not be deemed a waiver of any attorney-client, attorney-work product, or other legal privilege or protection from disclosure.
13. Notification; Notification of Changes.
13.1 All notices and other communications (except for invoices) required to be given in writing under these TOS shall be: (a) delivered to the address of the applicable Party set forth in these TOS as may be modified from time to time by providing advance notice in accordance with this Section; or (b) for Nasdaq provided notices ) posted on the NASDAQTrader website or a successor site.
13.2 Notices shall be deemed to have been duly given by any one (or more) of the following methods: (a) upon actual receipt (or date of first refusal) by a Party, or (b) upon constructive receipt (or date of first refusal) if sent by certified mail, return receipt requested, or any other delivery method that actually obtains a signed delivery receipt. Additionally, notice shall be deemed to have been duly given by Nasdaq: (x) upon posting the notice or other communication in accordance with Section 12.1(b), or (y) upon receipt, if a valid email address is provided and remains current, Nasdaq may give notice to or communicate with Company by email addressed to the persons identified in subsection (a) or to such other email address or persons as Company shall hereafter specify by prior written notice. By providing an email address, Company agrees that any receipt received by Nasdaq from Company’s service provider or internet computer server indicating that the email was received shall be deemed proof that Company received the message. If Company cannot see or print all or any portion of an email message, Company agrees that it is Company’s responsibility to contact Nasdaq at +1 301 978 5307.
14. Force Majeure.
Notwithstanding any other term or condition of these TOS, Nasdaq, its Third Party Information Providers nor Company shall be obligated to perform or observe its respective obligations under these TOS (except for regulatory obligations) if prevented or hindered from doing so by any circumstances beyond any of their reasonable control.
15. Subsequent Parties; Limited Relationship.
Each Order Form shall inure to the benefit of and shall be binding upon the Parties hereto and their respective permitted successors or assigns. Neither Party shall assign an applicable Order Form (including by operation of law) without the prior written consent of the other Party, such consent not to be unreasonably withheld. Nasdaq may, however, assign an Order Form to any subsidiary or affiliate without the consent of the Company. Nothing in these TOS, express or implied, is intended to or shall (a) confer on any individual or entity other than the Parties hereto, or their respective permitted successors or assigns, any rights to remedies under or by reason of these TOS; (b) constitute the Parties hereto partners or participants in a joint venture; or (c) appoint one Party the agent of the other. There are no third party beneficiaries of these TOS except for Nasdaq, Nasdaq’s third party information providers that are indemnified hereunder.
16. No Government Rights.
These TOS neither grants nor is intended to grant, directly or through Company, to any governmental entity or agency any rights in technical data (including, but not limited to, software) as set forth in FAR Subpart 27.4 or any other regulation. Any such rights of a governmental entity or agency in technical data (including, but not limited to, software) shall be determined by a separate written TOS with Nasdaq.
17.1 These TOS shall inure to the benefit of and shall be binding upon the parties hereto and their respective permitted successors or assigns.
17.2 Neither Party shall assign an Order Form (including by operation of law) without the prior written consent of the other Party, and such consent not to be unreasonably withheld, provided however, that either Party may assign these TOS to one of its Affiliates or subsidiaries, without the prior written consent of the other party, provided that the assigning Party is not currently in breach of these TOS or delinquent in any fees owed.
In no event shall any claim, dispute, controversy or other matter arising pursuant to these TOS (other than claims for financial non-compliance) be made against Nasdaq, Company, or any Person claiming by or through either Nasdaq or Company, later than two (2) years after the claim, dispute, controversy or other matter in question has arisen. Nasdaq, Company, any Person claiming by or through Nasdaq and Company and their respective employees, directors, and other agents expressly waive any claims, disputes, controversies, and other matters not brought within the period set forth above.
19. Entire TOS.
The TOS constitutes the entire TOS between the Parties with respect to the subject matter hereof and supersedes all prior negotiations, communications, writings, and understandings. In the event of any conflict between the provisions of these TOS and the Order From, the order of preference shall be the Order From and then these TOS. All personal pronouns used in the TOS, whether used in the masculine, feminine or neuter gender, shall include all other genders, if and where applicable. The use of the singular in the TOS shall include the plural, and vice versa. Section headings are included for convenience only and are not to be used to construe or interpret these TOS.
20. Amendment; Waiver.
20.1 Nasdaq may alter any term or condition of these TOS on ninety (90) days notice to the Company, and any use of the Service after such date shall be deemed to be acceptance of the new term or condition. The means of notifying the Company of such new term or condition may include, but not be limited to, emailing such term or condition to the Company or posting such alteration on Nasdaq Trader.
20.2 No failure on the part of Nasdaq or the Company to exercise, no delay in exercising, and no course of dealing with respect to any right, power, or privilege under the TOS shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under these TOS.
21. Governing Law.
These TOS shall be deemed to have been made in the United States, State of New York, and shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of New York, without reference to principles of conflicts of laws thereof. the Company hereby consents to submit to the jurisdiction of the courts in and of the State of New York in connection with any action or proceeding instituted relating to the TOS.
If any of the provisions of the TOS, or application thereof to any individual, entity or circumstance, shall to any extent be held invalid, or unenforceable, the remainder of the TOS, or the application of such terms or provisions to individuals, entities, or circumstances other than those as to which they are held invalid or unenforceable, shall not be affected thereby and each such term and provision of the TOS shall be valid and enforceable to the fullest extent permitted by law.
These TOS may be executed in one or more counterparts, which shall each be considered an original, but all of which together shall constitute one and the same TOS.
All capitalized terms used herein without definition shall have the meaning set forth in this Section.
“Affiliate” shall mean any individual, corporation, company, partnership, limited partnership, limited liability company, trust, association, special purpose or other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by or is under common control with such Party.
“Claims and Losses” means any and all liabilities, obligations, losses, damages, penalties, claims, suits, costs, judgments, settlements, and expenses of whatever nature, whether incurred by or issued against an indemnified Party or a third party, including, without limitation, (a) indirect, special, punitive, consequential or incidental loss or damage, (including, but not limited to, trading losses, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation, or other indirect loss or damage) and (b) reasonable out-of-pocket administrative costs, investigatory costs, litigation costs, and auditors’ and attorneys’ fees and disbursements.
“Data” shall mean the data provided pursuant to the applicable Order Form. Data also includes any element of Data as used or processed in such a way that the Data can be identified, recalculated or re-engineered from the processed Data or that the processed Data can be used as a substitute for Data.
“Derived Data” shall mean any information or data resulting from Company’s substantial manipulation or analysis of Data (whether generated by human or machine) whether alone or in conjunction with other Company data, such that the underlying Information is not discernible as being that of Nasdaq or a Third Party Provider.
“Person” shall mean any natural person, proprietorship, corporation, partnership, or other entity whatsoever.
“Service” shall collectively mean the information, data, access, capabilities, dissemination services, functions, features, software, and equipment that relate to Nasdaq Analytics Hub or successor thereto; the Service shall also include as applicable, the performance of services by Nasdaq and any deliverables or items delivered under these TOS as described in these TOS.