END USER LICENSE AGREEMENT

 

Terms and Conditions

 

This license agreement (“License”) is a legal agreement between you, the end-user (“you” or “Client”), and Aon Consulting Inc., and any applicable affiliate (“Aon”, “us” or “we”). The Aon IP (defined below) is owned and licensed by Aon to the eVestment Company (as defined on the Order Form to which this End User License Agreement is referenced) for distribution to the Client for the Covered Entities’ use pursuant to this License. Client hereby acknowledges and agrees that its and the Covered Entities use of the Aon IP is subject to the terms of this License.

WHEREAS, Aon is in the business of providing a unique proprietary “Operational Risk IQ Exchange” or “Exchange”, which includes operational risk reporting and analytics (including, but not limited to ODD IQ Summary Reports and ODD IQ Portfolio Reports; together “ODD IQ Reports”) or underlying operational risk and due diligence information (“ODD IQ Data”). Aon shall retain all intellectual property rights in and to the Exchange, ODD IQ Reports, and ODD IQ Data (together, the “Aon IP”).

WHEREAS, as the individual employed by our clients, you are also granted license to use the Aon IP on the terms of this License, as an end-user. This License shall not constitute an assignment, transfer or sale to you of any underlying intellectual property rights. We or our licensors (as the case may be) remain the owners of the Aon IP at all times.

WHEREAS, Client desires to obtain a license to use the Aon IP for its internal purposes and Aon desires to grant Client a license to use the Aon IP in accordance with the terms and conditions of this License.

By using the Aon IP, you agree that you will be bound by the terms of this License. If you do not agree to these terms, please do not use the Aon IP (or continue forward on this site). Please also note these terms may be amended from time to time and you will be notified of the posting of the revised terms. In continuing to use the Aon IP, you confirm that you accept the then current terms in full at the time you use the Aon IP.

1. Definitions. As used in this License, and in addition to any other terms defined in this License, the following terms will have the following meanings:
   1. “Aon Competitor” means any entity (including each individual agent, employee, contractor or subcontractor employed or contracted by such entity) that carries on any business which is, or is intended to be, similar to or competitive with any business carried on by Aon or its affiliates, which includes, but is not limited to, insurance and reinsurance brokers which are not subsidiaries of Aon plc, actuarial consulting firms, and catastrophe modeling firms.
   2. “Client Representative” means Client, Client’s directors, officers, employees and agents (collectively, “Client Representatives”).
   3. “Client Data”, if applicable, means information supplied by the Client, including but not limited to names of third party investment managers and strategies within Client’s portfolios.
   4. “Confidential Information” Neither party may use or disclose any Confidential Information of the other party, except as expressly permitted in this License. This License and its terms are Confidential Information. Disclosure of Confidential Information to employees of the parties will be limited to those who have a need to know such information in connection with carrying out the obligations or exercising the rights of that party pursuant to this License. Client acknowledges that all parts of the Aon IP, including all data, information and materials related thereto, are the Confidential Information of Aon and/or Aon’s licensors, if applicable, and Client agrees to treat such information as Confidential Information in accordance with the terms of this License. A “party” will be deemed to include each party’s respective subsidiaries, affiliates and sister companies or any other organization in which such party has a material ownership stake or over which such party can exert control, each of which such party will cause to observe the confidentiality requirements of this License with respect to the information disclosed by the other party under this License. The receiving party will only allow its independent contractors to receive the Confidential Information if such contractors execute nondisclosure agreements with confidentiality restrictions no less protective than those of this License; provided that Client, as a receiving party, will not under any circumstances provide access to Aon’s Confidential Information to any Aon Competitor.
   5. “Derivative Works” means any suggestions, contributions, enhancements, improvements, supplementations, modifications or changes to the referenced materials, including but not limited to any commercial or academic applications.
   6. “Documentation” means the documentation and any other operating, training, support and reference manuals relating to the use of the Aon IP, as supplied by Aon to Client in Aon’s sole discretion, based in part on the type of license(s) granted as indicated herein.
   7. “Intellectual Property Rights” means all rights in and to any of the following, however constituted: trade secrets, patents, copyrights, trademarks, service marks, URLs, trade dress, brand features, know-how, moral rights, contract rights, code (executable, source and other) and similar rights of any type under the laws of any applicable governmental authority, or international treaty, including, without limitation, all applications and registrations relating to any of the foregoing.
   8. “Intellectual Property” or “IP” shall mean all intangible (including intellectual) property whether registered or unregistered related to any designs, applications, patents trademarks, service marks, trade or business names, unregistered trade marks (including without limitation all and any goodwill associated therewith), prior registrations, topography rights, logos, know-how, trade secrets, technical information, secret formulae and processes, copyrights (including without limitation rights in computer software), database rights, databases, data collections and other directories, analytical tools, development tools, design tools, data models, analytic models, analysis methods and know-how, technology, computer or online software programs or platforms, software codes, algorithms, pseudocode, documentation, inventions, rights under licenses and other proprietary rights and consents in relation to such rights, and rights of the same or similar effect or nature, together with all goodwill attaching or relating to thereto, including in process developments of the foregoing, in any part of the world (whether or not capable of protection by registration), the right to apply for, prosecute, and obtain patent or other industrial property protection throughout the world in respect of the inventions which are the subjects of the patents and patent applications including the right to claim priority therefrom under the terms of the International Convention and other relevant International Treaties and Arrangements, and all patent applications that may hereafter be filed for the inventions in any country, and in and to any and all patents which may be granted therefor and in and to any and all divisions, continuations, substitutions and renewals thereof, and in and to any and all reissues of said patents to the full end of the term for which said patents have been granted or may be granted.
2. License Grant. Aon grants to Client a limited, non-exclusive, non-transferable license, without the right to sublicense, to use the Aon IP in accordance with the terms of this License for the length of time solely for Client’s internal business purposes of operational due diligence, operational monitoring, or operational reporting, which includes the right to use the Aon IP for analysis of Client’s existing portfolio(s); provided that, in no event will any of the uses be interpreted to allow Client to provide the Aon IP to any third party, whether in whole or partial format. Any use, reproduction or distribution of Aon IP, except as expressly authorized in this License or by Aon in writing, is strictly prohibited.
3. Ownership, Permitted Uses and Restrictions
   1. Ownership in Aon Intellectual Property. Client acknowledges and agrees that Aon owns all Intellectual Property Rights in the Aon IP (specifically excluding any Client Data incorporated within Derivative Works). Client shall have no rights in or to the Aon IP (specifically excluding any Client Data incorporated within Derivative Works).
   2. Rights in the Licensed Aon IP. Aon owns all Intellectual Property Rights for generating the Aon IP and to the ODD IQ Data itself. Aon retains all its rights and interests in the Aon IP, and Client receives no rights in or to the Aon IP, except those specifically set forth herein. If Client becomes aware of any violation of Aon’s proprietary rights in the Aon IP, Client will notify Aon promptly in writing.
   3. Use Restrictions. Unless otherwise expressly authorized in this License or by Aon in writing, Client will not, nor permit any third party to: (i) modify, adapt, alter, translate, or create Derivative Works from the Aon IP; (ii) sublicense, resell, re-distribute, lease, rent, loan, disclose or otherwise transfer the Aon IP (or any part thereof) or any other associated products and services to any third party; (iii) reverse engineer, decompile, or disassemble the Aon IP (or any part thereof); (iv) otherwise use or copy the Aon IP (or any part thereof), or any other associated products and services to any third party; (v) alter, distort, or remove any confidential, proprietary, copyright, trademark, trade secret, or patent legends from any copy of the Aon IP (or any part thereof); or (vi) copy, redistribute or publish (in hard copy printed form, via disc, CD-ROM, tape or any other media or medium, form or format), the Aon IP or any portion thereof. Client will be fully responsible for all Client Representatives and their compliance with the terms of this License. In no event will any Client Representatives include an Aon Competitor without prior agreement from Aon.
4. Disclaimer of Warranties. Except as set forth in this License, Client accepts all Aon IP provided by Aon on an “AS IS” basis. Other than as expressly set forth in this License, neither Aon, its affiliates, licensors or suppliers, nor their officers, directors, employees, shareholders, agents or representatives makes any express or implied warranties, conditions, or representa¬tions to Aon, or any other person or entity with respect to the Aon IP provided hereunder or otherwise regarding this License, whether oral or written, express, implied or statutory, including without limitation the implied warranty or condition of merchantability, the implied warranty against infringement, and the implied warranty or condition of fitness for a particular purpose. Aon relies on third party investment managers to respond to questions on the Platform and cannot guarantee that any investment manager will complete our questionnaires, in whole or in part. Aon furthermore cannot guarantee the accuracy of the information provided by investment managers in responding to questions on the Platform. AON IP IS PROVIDED “AS IS.” AON DISCLAIMS, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. AON DOES NOT WARRANT THAT THE RESULTS OF USING THE AON IP WILL BE ACCURATE, COMPLETE, OR ERROR FREE, OR THAT THE AON IP WILL BE ACCESSIBLE OR ERROR FREE.
5. Updates. Aon is not required to Update the Aon IP or the content incorporated into the Aon IP. However, if Aon, in its sole discretion, elects to provide any Updates, any such Updates are deemed included in the Aon IP and are subject to the terms of this License unless other terms of use are provided by Aon with such Updates. “Update” means a modification, error correction, bug fix, new release or other Update to or for the Aon IP.
6. Effect of Termination or Expiration. Upon termination or expiration of this License, Client will cease all use of the Aon IP, except to the limited extent expressly permitted by this Section. In accordance with applicable legal and disaster recovery requirements, Client may store a copy of the Aon IP in electronic archives or backups made in the ordinary course of business which shall not be returned or destroyed but shall remain subject to the restrictions set forth herein.
7. General. Client shall comply with all foreign and local laws and regulations which apply to Client’s use of the Aon IP in whatever country Client is physically located. This License, its subject matter and its formation (and any non-contractual disputes or claims) are governed by New York law. We both agree to the exclusive jurisdiction of the courts of New York.
8. Indemnification.
   1. Aon hereby indemnifies and agrees to defend and hold harmless, in an amount not to exceed the total fees paid under this License, Client and their directors and officers from and against any and all liabilities, damages or expenses, including court costs and reasonable attorneys’ fees, payable to a third party (collectively, “Losses”) resulting from any and all claims, demands and actions (each an “Action”) brought by such third party against Client and the Covered Entities arising out of or related to: (i) the infringement or misappropriation of such third party’s U.S. intellectual property rights (including without limitation, trade secrets, copyrights, trademarks, patents or other proprietary rights) caused by the Aon IP as provided by Aon’s data input partner, the eVestment Company; or (ii) the Aon’s breach of the representations. Notwithstanding anything contained to the contrary in this License, Aon will not have any obligation under this Section 8 or otherwise with respect to an Action: (A) Client’s or any breach under this License; (B) any use of the Aon IP not in accordance with this License; and (C) any modification to the Aon IP by any person other than Aon.
   2. Client hereby indemnifies and agrees to defend and hold harmless Aon and their directors and officers from and against any and all Losses resulting from an Action brought by a third party arising out of or relating to (i) Client’s breach of the representations and warranties made by Client in this License; (ii) any use of any third party data made available through a Technology Solution or misuse of the Aon IP in breach of this License, except to the extent that Aon has an indemnification obligation for such Loss under Section 8(a); and (iii) any violations of a third party’s intellectual property rights (including without limitation, trade secrets, copyrights, trademarks, patents or other proprietary rights) caused by any information or data provided by Client or any investment manager to Aon.
   3. Each party's indemnification obligations under this License shall be subject to: (i) receiving prompt written notice of the existence of any Action (provided that the indemnified party’s failure or delay in providing prompt written notice of the Action shall not relieve the indemnifying party of its indemnification obligations under this License except to the extent that the indemnifying Party is actually and materially prejudiced by such failure or delay); (ii) being able, at its sole option, to control the defense of such Action; and (iii) receiving reasonable cooperation, at the indemnifying Party’s cost and expense, of the indemnified party in the defense thereof. No indemnifying party may settle any Action without the consent of the indemnified party unless such settlement: (A) does not admit any liability on behalf of the indemnified party; and (B) does not impose on the indemnified party any obligation to act or omit from taking any action, except for no longer using the Aon IP pursuant to the License.
9. Liability. You acknowledge that the Aon IP has not been developed to meet your individual requirements, and that it is therefore your responsibility to ensure that the facilities and functions of the Service meet your requirements. We will operate the Aon IP with the reasonable skill and care of an online service provider. We do not guarantee the Aon IP will be available at all times or be error free. From time to time, it may be necessary to suspend access to the Aon IP for a period of time for maintenance and other reasons and any such interruptions shall not constitute a breach of these terms. We shall not be liable to you under any circumstances, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, arising under or in connection with the License or Aon IP for any:
   1. business, financial or economic loss (such as loss of profits, sales, business, or revenue);
   2. business interruption;
   3. loss of anticipated savings;
   4. loss or corruption of data or information;
   5. loss of business opportunity, goodwill or reputation; or
   6. any indirect or consequential loss or damage.

1. Nothing in this License shall limit or exclude our liability for:
   1. death or personal injury resulting from our negligence;
   2. Aon’s fraud or fraudulent misrepresentation; or
   3. any other liability that cannot be excluded or limited by applicable law.

This License sets out the full extent of our obligations and liabilities in respect of the supply of the Aon IP.

Except as expressly stated in this License, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Service which might otherwise be implied into, or incorporated in, this License whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.