BBH&Co. Agency Securities Lending DealBoard™ (“DealBoard”) is a proprietary electronic facility offered by Brown Brothers Harriman & Co. (“BBH&Co.”) which, inter alia, presents to the user (“Client” or “you”) information regarding indicative securities lending opportunities and, if the parties hereto have entered into a Securities Lending Agency Agreement (“SLAA”), routes instructions from you to BBH&Co. to modify restrictions and authorize securities lending transactions (“Instructions”) under the SLAA. The following terms and conditions (the “Terms and Conditions”) govern your access to and use of DealBoard:
1. SCOPE OF SERVICE; LIMITS
1.1. You may use DealBoard to view indicative securities lending opportunities based on your holdings that are under custody with BBH&Co. or information that you either furnish or make available to BBH&Co. Nothing reviewed or obtained through DealBoard constitutes tax, accounting, regulatory, legal, insurance or investment advice. Neither the information, nor any opinion, contained on DealBoard constitutes a solicitation, recommendation or offer by BBH&Co. or its affiliates to lend, borrow, buy or sell any securities, futures, options or other financial instruments.
1.2. In order for BBH&Co. to negotiate or effect a securities lending transaction for you, a fully executed SLAA must be on file with BBH&Co.
1.3. Any action that you take or that is taken on your behalf to approve a transaction using DealBoard shall constitute an Instruction under the SLAA and shall be subject to and governed solely by the terms thereof. You will be bound by any Instructions you give to BBH&Co. through DealBoard. BBH&Co. shall have no duty to verify whether you authorized any Instruction, whether sent by your employee or agent or otherwise. BBH&Co. may act on your Instruction and any transactions resulting therefrom will be binding on you. You will take appropriate steps to maintain and to ensure that you and your affiliates, employees, attorneys, accountants, investment advisers, or other advisors or agents (“Client Representatives”) maintain the confidentiality of authorized passwords to access DealBoard.
1.4. You understand and agree that the securities lending related opportunities presented by BBH&Co. through DealBoard are estimated, indicative, and not actual or verified, opportunities. You further acknowledge and agree that BBH&Co.’s receipt of an Instruction does not constitute a guarantee that any trade or desired outcome will be achieved.
2. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
Without prejudice to your obligations under the BBH Online Terms and Conditions:
2.1 All copyright, trademark, servicemark, trade secret and other intellectual property rights in DealBoard shall remain at all times the sole and exclusive property of BBH&Co., and you shall have no right or interest in DealBoard, whether by way of license or otherwise, except for the right to access and use DealBoard as specified herein.
2.2 You acknowledge that DealBoard is proprietary to BBH&Co. and has been developed through the expenditure of substantial time, skill, effort and money.
2.3 You agree to use DealBoard solely in connection with your evaluation of and participation in BBH&Co.’s agency securities lending program (the “Permitted Purpose”), to limit access to and use of DealBoard only to your employees and authorized agents with a need for such access for the Permitted Purpose and to ensure that you, your employees and your authorized agents maintain information obtained or accessed through DealBoard in strict confidence. You shall be responsible for any disclosure or use in violation of these Terms and Conditions by you, your employees and your authorized agents. You will not copy, modify, de-compile, reverse engineer, make derivative works of DealBoard or otherwise attempt to ascertain the design or proprietary features of DealBoard or the manner in which it operates.
3. THIRD PARTY MARKET DATA; LEGAL DISCLAIMER; INDEMNIFICATION
3.1. Through DealBoard, BBH&Co. may provide you with market information developed by BBH&Co. or obtained from third parties, including without limitation data licensed by EquiLend LLC (together, the “Market Data”). Such Market Data is provided through DealBoard on the basis that, for BBH&Co. and where required by the relevant third party, you provide certain warranties in respect of its use and disclosure, including that (a) the Market Data is provided for your internal use only, for the Permitted Purpose; and (b) you may store, use and copy the Market Data only for your internal business purposes in connection with the Permitted Use, but you may not modify, create derivative works of or otherwise make use of the Market Data. Without limiting the foregoing, you (including any Client Representative or other person or entity authorized by you or acting for or on your behalf) are expressly prohibited from further distributing the Market Data, or any portion thereof, to any other person or entity. You covenant and agree that you have expressly and duly authorized any person or entity to whom you have provided or permitted access to or use of the Market Data and that such authorization shall be strictly limited to access and use solely for and on your behalf, for the Permitted Purpose, and not for any other person, entity or purpose.
3.2. NONE OF BBH&CO., ITS PARTNERS, EQUILEND LLC, ANY THIRD PARTY OR ANY OF THEIR RESPECTIVE EMPLOYEES, AFFILIATES, INVESTORS, THIRD PARTY VENDORS, CONTRACTORS OR TECHNOLOGY SUPPLIERS (EACH, A "DATA PROVIDER"), MAKES ANY WARRANTY WITH RESPECT TO THE MARKET DATA, WHETHER EXPRESS OR IMPLIED, INCLUDING (1) ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (2) ANY WARRANTY OF NON-INFRINGEMENT, OR (3) ANY WARRANTY REGARDING THE CORRECTNESS, QUALITY, ACCURACY, RELIABILITY, SECURITY, PERFORMANCE, COMPLETENESS, TIMELINESS OR CONTINUED AVAILABILITY OF THE MARKET DATA OR ANY PORTION THEREOF. NO DATA PROVIDER SHALL HAVE ANY LIABILITY, DIRECT OR INDIRECT, CONTINGENT OR OTHERWISE, TO YOU, ANY CLIENT REPRESENTATIVE OR ANY THIRD PARTY, ARISING FROM OR RELATED TO THE MARKET DATA, INCLUDING, WITHOUT LIMITATION, FOR THE CORRECTNESS, QUALITY, ACCURACY, RELIABILITY, SECURITY, PERFORMANCE, COMPLETENESS, TIMELINESS OR CONTINUED AVAILABILITY OF THE MARKET DATA OR ANY PORTION THEREOF. IN NO EVENT SHALL ANY DATA PROVIDER BE LIABLE TO YOU FOR ANY DIRECT, SPECIAL, INDIRECT, EXEMPLARY, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING ANY SUCH DAMAGES FOR LOSS OF PROFITS, LOSS OF OPPORTUNITY AND LOSS OF USE), RELATING IN ANY MANNER TO THE MARKET DATA OR ANY PORTION THEREOF, EVEN IF SUCH DATA PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES COULD HAVE BEEN FORESEEN OR PREVENTED. NEITHER THE MARKET DATA NOR THE PROVISION THEREOF SHALL CONSTITUTE INVESTMENT ADVICE BY ANY DATA PROVIDER, AND THE MARKET DATA SHALL NOT BE CONSTRUED AS ANY DATA PROVIDER MAKING FORECASTS, PROJECTING RETURNS OR RECOMMENDING ANY PARTICULAR COURSE OF ACTION.
3.3. UNDER NO CIRCUMSTANCES AND UNDER NO THEORY OF LAW (TORT, CONTRACT, STRICT LIABILITY OR OTHERWISE), SHALL ANY DATA PROVIDER BE LIABLE TO YOU, ANY CLIENT REPRESENTATIVE OR ANY OTHER PERSON FOR ANY DAMAGES ARISING FROM BBH&CO’S PROVISION OF SERVICES UNDER THESE TERMS AND CONDITIONS OR YOUR USE OR YOUR CLIENT REPRESENTATIVES’ USE OF DEALBOARD.
3.4. You agree to indemnify and hold harmless BBH&Co. (which, for purposes of this paragraph shall include its respective officers, directors, partners, managers, employees and agents) and any Data Provider from and against any liabilities, losses, claims, costs, damages, penalties, fines, obligations, or expenses of any kind (including without limitation, reasonable attorneys’, accountants’, consultants’, or experts’ fees and disbursements) arising from your access to or use of DealBoard.