Issuer Access Agreement
AST ISSUER ELECTRONIC ACCESS SERVICE AGREEMENT (“Agreement”)
PART A: GENERAL
1. Scope: This Agreement, as amended from time to time, governs the provision of electronic access services (the “Services”) and applies when you access or use the Services, regardless of the technology you use to access the Services.
2. Other Agreements: This Agreement supplements any other existing and future written agreements that you have with us and any terms, conditions or disclaimers provided on our Website. In the event of any conflict or inconsistency between the terms of this Agreement (including any amendments) and the other agreement(s) of which this Agreement forms a part, the terms of this Agreement shall prevail, unless expressly stated otherwise in such other agreement(s).
3. Amendments: We may change this Agreement at any time by giving notice to you. We will notify you of a change to this Agreement by posting a notice on our Website. Your use of the Services after we post the notice means that you agree to and accept this Agreement as amended. If you do not agree to a change in this Agreement, you must immediately stop using the Services.
4. Changes to the Services: You understand that we may add, remove or change any part or feature of the Services at any time, without giving notice to you.
5. Interpretation: Capitalized terms used in this Agreement are defined in Part B below.
PART B: DEFINITIONS
Authorized User shall mean the following persons who are permitted to utilize the Services: (a) employees of Client; and (b) other persons designated by Client that are approved by AST.
Client shall mean a transfer agency client of AST.
Commands shall mean directions given via computer, including but not limited to keystrokes and mouse clicks.
Client Data shall mean Client's securities registry information sourced from AST’s (or its affiliates’) recordkeeping and other systems and provided or accessed through the Services, provided that Client Data will not be construed to include Proprietary Information.
AST shall mean AST Trust Company.
Information shall encompass any software, text, graphics, files, scripts or other content or materials, any database and any proprietary data, processes, information and documentation made available to Client by AST.
Information Provider shall mean any third party source, excluding a Third Party Service Provider, from which Proprietary Information may have been gathered.
Proprietary Information shall mean Information provided or available through the Services in which AST, its affiliates or Information Providers have a proprietary interest, including without limitation the following: (i) pricing; and (ii) other data identified to a proprietary source or data in either in this Agreement or on the Website.
Services shall mean the means by which AST provides Clients with: (a) Proprietary Information and Client Data; (b) other services set forth or referenced below or any supplement or addendum to this Agreement; and (c) the support of those means provided by AST through the Website to which Client may subscribe from time to time and to which Client will have direct access through its Authorized Users.
Third Party Service Provider shall mean any other party (excluding an Information Provider) that provides services to AST and its affiliates in relation to the Services. Website shall mean the component of the Services consisting of the Internet Websites hosted by or on behalf of AST on the World Wide Web through which Proprietary Information or Client Data is accessed.
PART C: SERVICES
(a) AST will provide electronic access to Client and its affiliates through Client’s Authorized Users via the Website. Client and Authorized Users will gain access to and be able to download Proprietary Information and Client Data by issuing Commands through the Website. Client Data provided through the Services, however, is subject to change because: (a) such Client Data is generally updated as of the prior business day’s close of business; and (b) as is customary in securities transactions, is subject to adjustment and correction. Client’s ability to view and download certain Proprietary Information is subject to the terms and restrictions under which that information is provided to AST and its affiliates and is subject to the terms of this Agreement.
(b) AST retains complete discretion and authority to add, delete or substantially revise in whole or in part the Services offered to Client.
3. Term and Termination
(a) The term of this Agreement shall commence with the first permitted use of the Services and shall continue until terminated as provided herein.
- AST may terminate this Agreement upon thirty (30) days written notice to the other party.
- Either AST or Client may terminate this Agreement effective upon the termination of the transfer agency agreement covering transfer agency services provided to the Client.
- Notwithstanding the foregoing, AST may immediately terminate access through an Authorized User’s user-id and password and may, at its discretion, also terminate access by an Authorized User, without right of cure, in the event of an unauthorized use of an Authorized User’s user-id or password, and where AST believes there is a security risk created by such access.
- In addition, AST may terminate, immediately and without notice, and without right of cure, any portion or component of the Services, the Website or Proprietary Information in the event an Information Provider or Third Party Service Provider: (i) ceases to provide such portion or component to AST; or (ii) prohibits AST from permitting Client to access the Information Provider’s Proprietary Information.
(c) Client shall be responsible for notifying all Authorized Users of the effective date of the termination of this Agreement, irrespective of whether the termination was initiated by AST or the Client, within five (5) business days of receiving or giving notice of such termination.
(d) In the event of termination, AST will cease providing the Services to Client.
4. License/Proprietary Rights
(a) Electronic Access and Proprietary Information
The Website, Services and Proprietary Information are proprietary to AST, its licensors, Information Providers or Third Party Service Providers. Client agrees to comply with reasonable written requests from AST to protect AST’s, AST’s licensors’, Information Providers’ and/or Third Party Service Providers’ respective rights in the Website, the Services or Proprietary Information. Nothing in this Agreement shall be construed as giving Client and Authorized Users any license or right to use any of AST’s, AST’s licensors’, Information Providers’ and/or Third Party Service Providers’ trademarks, logos and/or service marks. AST retains the right to modify the Websites, the Services and Proprietary Information from time to time and, to the extent possible, AST will provide reasonable notice of such modifications.
(b) Proprietary Information
- Proprietary Information provided hereunder may be subject to certain additional provisions or restrictions in licenses AST and/or its affiliates have with Information Providers. Such Information Providers may also require Client to agree to certain terms and conditions, which are shown on the Website. Terms on the Website may be revised periodically by the Information Providers. Use of the Services, and continued use of the Services following any Information Provider’s revision of any terms on the Website, constitutes Client’s acceptance of and agreement to the then-current terms shown on the Website.
- Except to the extent Client is permitted otherwise pursuant to its own licenses with applicable Information Providers, Client agrees that the Proprietary Information shall be solely for its internal use. As used herein, Client’s “internal use” may include Client making available such Proprietary Information to its third party professional advisors, provided such advisors are legally obligated to treat such Proprietary Information in a confidential manner and legally prohibited from using such Proprietary Information in any manner other than in support of its services to Client. Client also agrees not to, and to cause Authorized Users and third party professional advisors, not to: (i) reproduce or repackage, retransmit, disseminate, sell, distribute, publish, broadcast, or circulate to third parties not covered by “internal use” or otherwise commercially exploit Proprietary Information; (ii) identify and extract Proprietary Information from the Services independent of any Client Data; (iii) use Proprietary Information in any client or third party software application; or (iv) use Proprietary Information in an environment shared by Client and third parties, in each case without the express written consent of AST and without first obtaining any licenses needed from the relevant Information Provider(s). The foregoing shall not be construed to permit any third party professional advisor to have direct access to the Services through the use of a user id and password. In the event Client requires any such professional advisor to have such direct access, Client shall notify AST in writing and AST will have the right to require such third party professional advisor to execute a separate Agreement consistent with the terms hereof.
(c) The Services
Client and Authorized Users are not granted any rights or title in and to the Services, or any material contained in or delivered via the Services except to the extent granted by this Agreement.
(a) Client shall furnish AST with a written list of the names, and extent of authority or level of access of Authorized Users. Upon AST’s approval of Client and/or its Authorized Users, AST shall send to Client a Client user-id and password for each Authorized User as appropriate.
Client shall be responsible for immediately notifying AST in writing in the event of the change in status of any Authorized User that would cause such individual to no longer need access to the Services.
Client shall be responsible for the confidentiality and use of the Authorized Users’ AST-assigned user-ids and passwords. Client shall be responsible for all Commands processed through the Website through and under the Authorized Users’ user-ids and passwords. Client agrees to notify AST immediately if it becomes aware of:
(1) Any loss or theft of any Authorized Users’ user-ids or passwords; or
(2) Any unauthorized use of any Authorized Users’ user-ids or passwords, or of the Services, Proprietary Information or Client Data.
AST shall be authorized and entitled, until notified in writing by Client of a change of the status of an Authorized User, and AST’s and its affiliates’ computer systems have acknowledged such change in status, to rely on, and shall be fully protected in acting upon, any Commands that are acknowledged by AST’s and its affiliates’ computer systems and are associated with a password issued to an Authorized User in his, her or its use of the Services. Notwithstanding the foregoing, if Client requested a user id for an Authorized User, Client will be solely responsible for instructing AST to revoke the authorization granted to any Authorized User upon Client’s determination that the authorization is no longer necessary for such Authorized User’s job duties or the Authorized User has left Client’s employ or for any other reason.
(b) Web Access
Browser software compatibility may be published on the Website, and may be updated from time to time by AST without notice to Client. Client agrees to, and to cause Authorized Users to, comply with the compatibility requirements published from AST from time to time. AST security measures apply only to electronic communications and Commands sent or received over the secure areas of the Website. AST does not guarantee the security of any Information or Commands transmitted over the Internet and is not responsible for any security breach with respect to such Information or Commands.
(c) Use of Software, Programs, Applications or Other Devices to Access the Services
With the exception of applications commonly known as web browser software or other applications formally approved by AST in writing, Client agrees not to use, and require each Authorized User not to use, any software, program, application or any other device to access or log on to AST’s computer systems, the Website or to automate the process of obtaining, downloading, transferring or transmitting any Proprietary Information or Client Data.
(d) Data Protection
If Client or Authorized Users provide AST with any personal data through the Services, Client will ensure that the provision of such data to AST, and AST’s use of such data is in accordance with Client’s instructions in the provision of the Services, complies with any applicable data protection law or regulation.
6. Client Responsibilities and Obligations
(a) Client is responsible for, and shall require its Authorized Users to be responsible for, acquiring and maintaining the necessary computer hardware and software, to utilize the Services. Client shall be responsible for all maintenance and support services of its systems required in order for Client to obtain the Services and shall accept and properly install any updates or modification to any software forming part of the Services which AST considers necessary, and shall cause its Authorized Users to do the same.
(b) Client agrees to the following terms with respect to Client’s use of Commands issued through the Website:
(1) to use the Services only within the scope of the Agreement and shall not permit the use of the Services by any third party that is not an Authorized User.
(2) not to use any Command or other feature of the Website for any purpose that is unlawful.
(3) to keep all information contained in Client’s profile up-to-date.
(4) to be bound by all terms and conditions of this Agreement for use of the Website and the Services which are set forth in this Agreement.
(5) to accept full and sole responsibility for all Commands and instructions issued by Authorized Users and for all commands and instructions issued under an Authorized User’s user-id and password and to release AST from any liability for acting on such Commands or instructions. Client acknowledges that all Commands and instructions associated with a password and user-id issued to an Authorized User are issued at Client’s sole risk.
(6) Client agrees that any access to third party websites linked to or referenced in the Website is at Client’s or each Authorized User’s sole discretion. Additionally, AST is not responsible for third party websites that collect information from parties who visit their Websites through links on the Website.
(7) Client agrees that it does not intend to and will not knowingly, export or re-export, directly or indirectly, any part of the Services.
(a) The Services (including without limitation the design, programming techniques, algorithms and codes contained within the Services) and Proprietary Information are confidential property of AST, its licensors or the Information Providers or Third Party Service Providers, but for purposes hereof shall be deemed the confidential property of AST (“AST Confidential Property”).
(b) Client shall not, and Client agrees to be responsible that its Authorized Users do not, disclose or make unauthorized use (a use not permitted under this Agreement or a separate agreement between Client and an Information Provider or Third Party Service Provider) of the AST Confidential Property. Client will take reasonable care to protect AST Confidential Property from examination by anyone except for its employees who have a need to know or as otherwise permitted under this Agreement. Client shall be responsible for the consequences of any misuse of, or unauthorized use of or access to, or the disclosure of any AST Confidential Property by Client’s Authorized Users.
(c) The obligations in this section shall not restrict any disclosure by Client pursuant to any applicable law, or by order of any court or government agency of competent jurisdiction.
(d) AST shall be entitled, but is not obligated under this Agreement, to review or retain records of Client or Authorized User’s Commands for any applicable legal or regulatory requirement and, among other reasons, for monitoring the quality of service Client receives, Client’s compliance with this Agreement and the security of the Information.
PART D: Limited Warranty/Exclusion of Other Warranties
8. Limited Warranty/Exclusion of Other Warranties
(a) Limited Warranty. AST represents and warrants that it has the full right and authority to enter into this Agreement and to provide the Services under its terms.
(b) DUE TO THE NATURE OF COMPUTER SOFTWARE INFORMATION DELIVERY TECHNOLOGY, AND THE NECESSITY OF RELYING ON VARIOUS DATA SOURCES, SOME OF WHICH ARE EXTERNAL, THE SERVICES, PROPRIETARY INFORMATION AND CLIENT DATA ARE PROVIDED ON AN “AS-IS” BASIS AND CLIENT ACCEPTS THE ENTIRE RISK AS TO HOW AND FOR WHAT PURPOSES CLIENT AND AUTHORIZED USERS USE THE SERVICES, PROPRIETARY INFORMATION AND CLIENT DATA. CLIENT ACKNOWLEDGES AND AGREES THAT ALL SUCH DATA IN THE SERVICES, PROPRIETARY INFORMATION AND CLIENT DATA IS NOT RECONCILED ON A REALTIME BASIS AND IS PROVIDED VIA THE SERVICES SOLELY AS A CONVENIENCE TO CLIENT AND IS COMPILED WITHOUT ANY INDEPENDENT INVESTIGATION BY AST, AND CLIENT AGREES THAT IT SHALL NOT RELY ON SUCH DATA IN MAKING ANY INVESTMENT OR OTHER DECISION. NEITHER AST, THE INFORMATION PROVIDERS NOR THE THIRD PARTY SERVICE PROVIDERS SHALL HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE, UNDER THIS AGREEMENT FOR THE ACCURACY, COMPLETENESS, TIMELINESS OR CORRECT SEQUENCING OF PROPRIETARY INFORMATION OR CLIENT DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CLIENT IN RELIANCE UPON SUCH DATA IN PROPRIETARY INFORMATION, CLIENT DATA OR THE SERVICES. NEITHER AST, THE INFORMATION PROVIDERS NOR THE THIRD PARTY SERVICE PROVIDERS SHALL HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE FOR INTERRUPTION OF SUCH DATA IN PROPRIETARY INFORMATION, CLIENT DATA OR THE SERVICES. THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE AND NO WARRANTY OF NONINFRINGEMENT. THERE IS NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE PROPRIETARY INFORMATION, CLIENT DATA OR ELECTRONIC ACCESS. NOTHING IN THIS AGREEMENT SHALL BE DEEMED TO MODIFY OR LIMIT THE OBLIGATIONS OF AST UNDER ANY OTHER AGREEMENTS BETWEEN CLIENT AND AST.
9. Limitation of Liability
(a) IN NO EVENT WILL AST, ITS LICENSORS, THE INFORMATION PROVIDERS OR THE THIRD PARTY SERVICE PROVIDERS BE LIABLE TO CLIENT, ANY AUTHORIZED USER OR ANYONE ELSE FOR ANY DAMAGES, INCLUDING CONSEQUENTIAL, RELIANCE, EXEMPLARY, INCIDENTAL, SPECIAL, COMPENSATORY, ECONOMIC, PUNITIVE OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSSES AND DAMAGES THAT RESULT FROM THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE ELECTRONIC ACCESS OR PROPRIETARY INFORMATION OR CLIENT DATA), EVEN IF AST, ITS LICENSORS, THE INFORMATION PROVIDERS OR THE THIRD PARTY SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES.
(b) AST disclaims any representation and makes no guarantee that the Services and Proprietary Information are virus-free; however, AST will make commercially reasonable efforts to ensure that the systems used by AST to provide the Services and Proprietary Information are virus-free. AST is not liable for any loss or damage resulting from voluntary shutdown of the server or the Website by AST to address computer viruses, denial-of-service messages or other similar problems. AST is not responsible for any damage to Client’s computer, software, modem, telephone or other property resulting from Client’s use of the Services.
(i) Survival The following sections all survive the expiration or earlier termination of this Agreement: 4, 6, 7, 8, and 9.