Bloomberg Industry Group Customer Agreement
BLOOMBERG INDUSTRY GROUP CUSTOMER AGREEMENT
This BLOOMBERG INDUSTRY GROUP Customer Agreement (“Agreement”) is between THE BUREAU OF NATIONAL AFFAIRS, INC., 1801 S. Bell Street, Arlington, VA 22202, and/or an affiliate of BLOOMBERG INDUSTRY GROUP, including TAX MANAGEMENT INC., BGOV LLC and BNA INTERNATIONAL INC., as indicated on the applicable Order Form referencing this agreement (each referred to herein as “Bloomberg Industry Group”) and Customer.
1. License. Bloomberg Industry Group grants to Customer a non-exclusive, non-transferable, limited right to access and use one or more Bloomberg Industry Group products (“Product(s)”) described in the applicable Bloomberg Industry Group order form(s) (“Order Form(s)”), the terms of which are incorporated herein. Customer agrees to and shall comply with, and shall ensure that Users (as defined below) agree to and comply with, the terms of this Agreement and any other applicable terms and conditions governing website access set forth on and referenced as part of the Terms of Service designated by Bloomberg Industry Group from time to time, as posted on a Product’s webpage. Customer’s execution of an Order Form or use of the Products constitutes acceptance of all terms and conditions contained herein. Customer agrees to keep the terms of this Agreement confidential and agrees to not disclose, either directly or indirectly, such terms.
2. Authorized Users. Electronic Products may be accessed and used only by individuals authorized by Bloomberg Industry Group (“User(s)”). Users must be (a) Customer’s employees, or (b) temporary staff or contractors under Customer’s direct control, limited to the period of engagement and for the sole purpose of providing services to Customer (“Contractor(s)”). Access and use by any other third party is not permitted. Customer will provide to Bloomberg Industry Group, upon request, the names and business addresses of each User.
3. Fees and Payment. Bloomberg Industry Group will send all Customer invoices to a single designated billing address. Product fees do not include applicable taxes, which will set forth on the invoice. Unless Customer provides Bloomberg Industry Group with a valid signed tax exemption certificate applicable to the Product’s ship-to locations, Customer agrees to pay sales and other applicable taxes (excluding taxes based on Bloomberg Industry Group’s income). Payment is due upon Customer’s receipt of an invoice. After thirty (30) days, Bloomberg Industry Group may assess interest on all outstanding balances at a rate of 1% per month or the highest lawful interest rate, whichever is less. Bloomberg Industry Group reserves the right to revise fees for each Product at the end of its Product Subscription Term (as defined below) and will use reasonable efforts to notify Customer prior to such date, provided that notification by email shall be sufficient. Without limiting Bloomberg Industry Group’s termination rights, Bloomberg Industry Group reserves the right to immediately terminate Customer’s access to the Products, without further notice, if Bloomberg Industry Group does not receive payment within sixty (60) days after the invoice date. Customer is responsible for purchasing any equipment, software, communications and access through third party online vendors that may be necessary to access and use the Products.
4. Copyright. Each Product contains proprietary content and/or software protected by copyright and other similar laws. Bloomberg Industry Group and its licensors retain all rights in the Products, including (without limitation) all copyright and other proprietary rights worldwide in all media.
5. Permitted Uses. Users may access and use the Products (and the content contained therein) solely for their own internal business purposes, except as otherwise expressly permitted herein. Users shall not share User names and/or passwords. Customer agrees to notify Bloomberg Industry Group promptly in writing of any known or suspected unauthorized use of the Products or any known or suspected breach of security, including but not limited to, loss, theft, or unauthorized disclosure of User names and passwords. Subject to paragraph 6, in their ordinary course of supporting Customer’s primary business, Users may distribute a limited amount of content from the Products to non-authorized users, including in their reports or briefs. As used herein, a “limited amount” shall mean a de minimis amount and/or type of content, in quantity, frequency of distribution and/or scope of distribution, as determined in Bloomberg Industry Group’s sole judgment.
6. Restrictions. In no event may Customer or a User download, copy or distribute any Product in its entirety or substantial portions thereof, or systematically, routinely or regularly, download, copy and/or distribute copies of individual articles, Bloomberg Industry Group Highlights, table of contents, indexes, or other Bloomberg Industry Group finding aids or other content, even if Customer holds a copyright license with a third party licensing service (e.g., Copyright Clearance Center). Except as otherwise expressly permitted herein, Customer and Users may not reproduce, create derivative works from, perform, publish, transmit, distribute, sell (or participate in any sale), or otherwise access, use, or exploit any content and/or material retrieved from or contained in the Products in any manner whatsoever; store any content and/or materials from the Products in any information storage and retrieval system (except for a back-up system in which content or materials from the Products are accessible only by Users or Customer’s IT personnel); distribute the content and/or materials contained in the Products to any person who is not duly authorized to use or receive the Products; distribute, rent, sublicense, lease, transfer or assign the Products or this Agreement; decompile, disassemble, or otherwise reverse-engineer the Products, or alter, translate, modify, or adapt the Products to create derivative works; make use of “framing” or other means of redirecting content; place or install any portion of the Products on any electronic media, including, but not limited to, local or wide area networks or intranets, timesharing services, multiple processing units, multiple site arrangements, service or software rental bureaus, list servers, online services, electronic bulletin boards or forums, Web sites, or any other server that is Internet-enabled. Notwithstanding anything to the contrary in this Agreement, Customer and Users (a) may not use or distribute, and may not permit any third party to use or distribute, the Products, content and/or materials in any manner that could, in Bloomberg Industry Group’s good faith judgment, cause the Products, content and/or materials so used to (i) be a substitute for, or affect Bloomberg Industry Group’s or its affiliates ability to realize revenue in connection with, the Products, content and/or materials or (ii) compete with the business of Bloomberg Industry Group or its affiliates and (b) agree to comply with all requirements of third-party data providers with respect to the content and materials sourced by all such third parties. Bloomberg Industry Group reserves the right periodically to audit and monitor (physically or electronically) the use of the Products to ensure compliance with the terms herein and to maintain and improve the provision of the Products. Notwithstanding anything to the contrary in this Agreement, if Bloomberg Industry Group believes, in its sole good faith judgment, that any provision of this Agreement has been breached by Customer or a User, Bloomberg Industry Group reserves the right to suspend access to and use of the Products, or any portion thereof, at any time without notice effective immediately.
7. Disclaimer of Professional Advice. The information provided through the Products is not and shall not be construed as tax, accounting, legal, regulatory or other professional advice or sufficient to satisfy any tax, accounting, legal, regulatory or other professional requirements. Customer and/or each User should consult tax, accounting, legal, regulatory or other professional advisor(s) for advice. None of the Products nor any related services or any portion thereof shall constitute or be construed as (a) a solicitation, offer, opinion or recommendation by Bloomberg Industry Group, its affiliates or any supplier, for any transaction in any financial instrument, including but not limited to securities or (b) forming an attorney-client relationship.
8. Representations; Limited Warranty.
8.1. Customer represents and warrants that its use of the Products shall comply with all applicable laws, rules and regulations.
8.2. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, ALL PRODUCTS ARE PROVIDED TO CUSTOMER “AS IS.” BLOOMBERG INDUSTRY GROUP AND ITS AFFILIATES AND THEIR SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND DISCLAIM ALL RESPONSIBILITY FOR ANY LOSS OR CLAIM OF ANY KIND RELATING IN ANY WAY TO THE USE OF THE PRODUCTS AND ANY CONTENT CONTAINED THEREIN, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CUSTOMER SHALL INDEMNIFY, HOLD HARMLESS AND AT CUSTOMER’S EXPENSE DEFEND BLOOMBERG INDUSTRY GROUP AND ITS AFFILIATES AND THEIR SUPPLIERS AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES) ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE PRODUCTS OR ANY CONTENT CONTAINED THEREIN.
8.3. Notwithstanding any limitations contained in paragraph 9, Bloomberg Industry Group shall indemnify and hold Customer harmless and shall defend or settle any claim, suit or proceeding brought against Customer that is based upon a third-party claim that the content provided by Bloomberg Industry Group infringes a United States copyright or violates an intellectual or proprietary right protected by United States law (“Claim”), provided that (a) Customer shall notify Bloomberg Industry Group in writing of any Claim promptly, but in no event later than ten (10) calendar days after Customer first receives notice of the Claim, (b) Bloomberg Industry Group shall have sole control over any Claim (including without limitation the selection of counsel and the right to settle on behalf of Customer on any terms Bloomberg Industry Group deems desirable in the sole exercise of its discretion) and (c) Customer shall provide to Bloomberg Industry Group such assistance and cooperation as Bloomberg Industry Group may reasonably request from time to time in connection with the defense of the Claim. Customer may, at its sole cost, retain separate counsel and participate in the defense or settlement negotiations. Bloomberg Industry Group shall pay actual damages and costs awarded against Customer (or payable by Customer pursuant to a settlement agreement) in connection with a Claim. If a Product or its use becomes the subject of a Claim or its use is enjoined, or if, in the opinion of Bloomberg Industry Group’s legal counsel, the Product is likely to become the subject of a Claim, Bloomberg Industry Group shall attempt to resolve the Claim by using commercially reasonable efforts to modify the Product or obtain a license to continue using the Product. If, in the opinion of Bloomberg Industry Group’s legal counsel, the Claim, injunction, or potential Claim cannot be resolved through reasonable modification or licensing, Bloomberg Industry Group, at its own election, may terminate the Agreement, in whole or in part, the applicable Order Form and/or the applicable Product Subscription without penalty, and will refund to Customer the pro-rata portion of any fees for the infringing Product paid in advance by Customer to Bloomberg Industry Group and attributable to any post-termination period. Bloomberg Industry Group shall have no obligations under this paragraph if the Claim is based on (i) additions, changes or modifications to the Product, (ii) a combination of material, content, products or software not provided by Bloomberg Industry Group or (iii) use of the Product other than as expressly permitted by this Agreement. THE FOREGOING CONSTITUTES BLOOMBERG INDUSTRY GROUP’S SOLE AND EXCLUSIVE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT.
8.4. Customer acknowledges that the Products (and the content contained therein) are highly proprietary in nature and agrees that unauthorized copying, transfer or use may cause Bloomberg Industry Group, its affiliates and their suppliers irreparable injury that cannot be adequately compensated for by means of monetary damages. Customer agrees that Bloomberg Industry Group and its affiliates may enforce any breach of this Agreement by Customer or any User by means of equitable relief (including, but not limited to, injunctive relief) in addition to any other available rights and remedies. Unauthorized reproduction, transfer, and/or use may be a violation of criminal as well as civil law.
9. Limitation of Liability. IN NO EVENT SHALL BLOOMBERG INDUSTRY GROUP, ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS OR REPRESENTATIVES (“BLOOMBERG INDUSTRY GROUP ENTITIES”) HAVE ANY RESPONSIBILITY OR LIABILITY, CONTINGENT OR OTHERWISE, FOR ANY INJURY OR DAMAGES AND/OR BE LIABLE TO CUSTOMER, ANY USER, OR ANY OTHER PERSON FOR ANY LOST PROFITS, LOSSES, SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSS OF GOODWILL IN ANY WAY RELATING TO THE USE OF THE PRODUCTS OR THE PERFORMANCE OR NON-PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING THE FAILURE OF ESSENTIAL PURPOSE, EVEN IF CUSTOMER, USER, OR OTHER PERSON HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURRING. SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO CUSTOMER OR ITS RESPECTIVE USERS. IF THE FOREGOING LIMITATIONS ARE HELD TO BE UNENFORCEABLE, BLOOMBERG INDUSTRY GROUP ENTITIES’ LIABILITY FOR DAMAGES UNDER THIS AGREEMENT TO CUSTOMER, ANY USER, OR ANY OTHER PERSON SHALL IN ANY EVENT NOT EXCEED THE AMOUNT OF THE FEES FOR THE APPLICABLE PRODUCT SUBSCRIPTION PAID BY CUSTOMER FOR THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE OF THE ALLEGED INJURY OR DAMAGE. IN NO EVENT MAY CUSTOMER OR ANY USER BRING ANY CLAIM OR CAUSE OF ACTION AGAINST THE BLOOMBERG INDUSTRY GROUP ENTITIES MORE THAN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION ARISES.
10. Term and Termination. This Agreement shall remain in effect during the applicable term(s) of the Order Form, which except as otherwise set forth within such Order Form, shall each be one year and shall automatically renew for successive one-year periods, unless either party elects not to renew by giving the other party not less than 30 days’ prior written notice (the “Term”), unless earlier terminated in accordance with the terms herein. Bloomberg Industry Group may terminate this Agreement, an Order Form, and/or the applicable Product Subscription upon written notice to Customer if Customer materially breaches any provision of this Agreement, or otherwise upon 30 days written notice. Either party may terminate this Agreement if the other party has any proceedings instituted by or against it seeking relief, reorganization or arrangement under any laws relating to insolvency, or any assignment for the benefit of creditors, or the appointment of a receiver, liquidator or trustee of any of its property or assets, or the liquidation, dissolution or winding up of its business. The Order Forms shall terminate upon the termination of this Agreement, but the termination of any Order Form shall not itself terminate this Agreement. All obligations with respect to any money that was accrued and owing prior to the effective date of any termination under this Agreement shall survive termination. Paragraphs 4, 6, 7, 8, 9, 10, 13 and 14 shall survive any termination of this Agreement and shall continue in full force and effect.
11. Discontinuation of Product. In the event Bloomberg Industry Group discontinues a Product, Bloomberg Industry Group will use commercially reasonable efforts to offer a comparable Bloomberg Industry Group product to Customer. If no product is available, or if Customer does not accept the offered product, at Customer’s option and its sole remedy, Bloomberg Industry Group will provide either a pro rata credit or a refund of the unused portion of fees paid for the discontinued Product. Bloomberg Industry Group reserves the right to revise or discontinue certain Product features or content. In such case, Bloomberg Industry Group will use reasonable efforts to notify Customer to the extent Bloomberg Industry Group believes, in its good faith discretion, that any such revision or discontinuance will have a material and adverse effect on Customer’s use of the Product.
12. Force Majeure. Bloomberg Industry Group shall not be liable for failure to perform any part of this Agreement where such failure is due to fire, flood, power outages, strikes, war (declared or undeclared), acts of terror, embargoes, blockages, legal restrictions, governmental regulations or orders, riots, insurrections, Act of God, or any cause beyond the control of Bloomberg Industry Group. In such event, Bloomberg Industry Group shall use reasonable efforts to resume performance. This Agreement shall not be regarded as terminated or frustrated as a result of such failure of performance not exceeding one (1) month and the parties shall proceed under this Agreement when the causes of such non-performance have ceased or have been eliminated.
13. Notices. Notices of Customer’s intention not to renew an Order Form and/or the Agreement pursuant to the terms herein shall be made by email to: ContractsAdmin@bna.com. All other notices under this Agreement shall be made in writing; sent via certified mail, return receipt requested, or a nationally recognized overnight courier service; effective upon receipt at the address stated below; and addressed as follows: If to Bloomberg Industry Group, to General Counsel, 1801 S. Bell Street, Arlington, VA 22202. All notices to Customer shall be sent to the designated billing contact and address.
14. Miscellaneous Provisions.
14.1. No Waiver. Should Bloomberg Industry Group or any Customer fail to exercise or enforce any provision of this Agreement or to waive any rights in respect thereto, such waiver or failure shall not be construed as constituting a continuing waiver or waiver of any other right.
14.2. Choice of Law. This Agreement shall for all purposes be governed and construed in accordance with the law of the Commonwealth of Virginia without regard to its choice-of-law rules. The parties, and their successors and assigns, agree to submit to the jurisdiction of each of the federal and state courts located in Arlington County, Virginia, in connection with any matters arising out of or relating to this Agreement, and waive any objection to such venue, including forum non conveniens, sovereign immunity, Act of State or analogous doctrines.
14.3. Entire Agreement. Unless otherwise specified in the applicable Order Form, this Agreement, which may be amended by Bloomberg Industry Group from time to time (such updated version being binding on Customer upon renewal of the applicable Order Form), constitutes the entire agreement between Customer and Bloomberg Industry Group, and supersedes all prior or contemporaneous writings, discussions, agreements, and understandings of any kind, with respect to the subject matter of this Agreement.
14.4. Severability. If any provision of this Agreement is held to be unenforceable, the parties shall renegotiate those provisions in good faith to be valid, enforceable substitute provisions, which provisions shall reflect as closely as possible the intent of the original provisions of this Agreement. If the parties fail to negotiate a substitute provision, this Agreement will continue in full force and effect without that provision and will be interpreted to reflect the original intent of the parties.
14.5. Third Party Beneficiaries. All beneficial rights (other than the right to collect fees) granted to or reserved in this Agreement by Bloomberg Industry Group, including limited warranty, limitation of liability, remedies, indemnification, confidentiality, and ownership, shall accrue to and are for the benefit of licensors and suppliers to the same extent as Bloomberg Industry Group. Except as expressly stated herein, nothing contained in this Agreement is intended to create third party beneficiaries thereof.
14.6. Each Party Acting Independently. Bloomberg Industry Group and Customer agree that each is acting independently of the other, that they are not joint venturers, and that neither is an agent, partner, or joint venturer of the other.
14.7. Amendment and Assignment. Except as otherwise expressly set forth herein, neither this Agreement nor any Order Form shall be changed, modified or amended except by a writing signed by a duly authorized representative of Bloomberg Industry Group and the Customer. Neither party may assign this Agreement or any rights or obligations created under this Agreement without the prior written consent of the other party, which consent will not be unreasonably withheld, except that Bloomberg Industry Group may assign this Agreement without consent (i) to any subsidiary or affiliated company, (ii) to an entity succeeding to all or substantially all of its stock or assets, whether by merger or purchase, provided that such entity shall expressly assume all of Bloomberg Industry Group’s obligations under the Agreement, or (iii) in the event Bloomberg Industry Group sells or otherwise transfers a Product to a third party. Customer acknowledges and agrees that Bloomberg Industry Group may delegate certain of its responsibilities, obligations and duties under or in connection with this Agreement to a third party or an affiliate of Bloomberg Industry Group, which may discharge those responsibilities, obligations and duties on behalf of Bloomberg Industry Group. With respect to any such delegation, Bloomberg Industry Group will be responsible and liable for any breach of this Agreement by the third party or affiliate if and to the same extent Bloomberg Industry Group would be responsible and liable pursuant to this Agreement if it had committed such breach directly. Any unauthorized assignment or delegation will be null and void. Subject to the foregoing, this Agreement will be binding upon and inure to the benefit of the parties’ successors and assigns.
14.8. Government Customers. U.S. Government rights to use, modify, reproduce, release, perform, display, or disclose technical data and/or computer databases and/or computer software and/or computer software documentation are subject to the limited rights restrictions of DFARS 252.227-7015(b)(2) (June 2013) and/or subject to the restrictions of DFARS 227.7202-1(a) (Dec. 2013) and DFARS 227.7202-3(a) (Dec. 2013), as applicable for U.S. Department of Defense procurements and the limited rights restrictions of FAR 52.227-14 (Dec. 2007) and/or subject to the restricted rights provisions of FAR 52.227-14 (Dec. 2007) and FAR 52.227-19 (Dec. 2007), as applicable, and any applicable agency FAR Supplements, for non-Department of Defense Federal procurements. Notwithstanding any marking requirements therein, all data and software provided hereunder shall be limited rights data and restricted rights software, respectively.
14.9. Headings and Cross-References. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the scope, meaning or intent of the provisions of this Agreement.
Revised November 2019