Terms and conditions
1.1 Unless the context requires otherwise, capitalised words and phrases used in this Agreement shall have the meanings given to them in this clause 1.1:
Means the general terms of agreement set out in this RQR Rating Agreement and each Order;
Means any entity that, directly or indirectly, controls, is controlled by, or is under common control with RQR, or under common control with NeoNew from time to time;
Means the data and other information relating to the assets that form part of the Client’s property investment fund(s), estates and/or other data collected from the Client or submitted by the Client, its agent, representative or any contributor, pursuant to this Agreement. Client Data shall exclude personal data (as defined by any relevant legislation and data privacy laws);
Means any information concerning trade secrets, customer or supplier details and business transactions of either party which may come to the attention of the other, and in relation to RQR, any information and/or knowledge that the Client may acquire concerning the methods or techniques used to provide the Rating Services, and any information and/or knowledge that RQR may acquire concerning the businesses, trade secret, know-how of the Client;
Means a third party that provides RQR and/or RQR’s Affiliates with data which is incorporated into the Rating Services from time to time;
Means any data Rating fees and/or reports in relation to Client Data, supplied by RQR and/or RQR’s Affiliates on behalf of RQR to the Client from time to time as specified in the applicable Order, individually and collectively, and may include the provision of reports as agreed by the parties;
Means the funds listed in an Order from time to time;
Means copyright, database right, patents, registered and unregistered trademarks, design rights and all other industrial, commercial, or intellectual property rights, know-how, trade secrets existing in any jurisdiction in the world and all the rights to apply for the same;
Means the minimum period of the supply of any Rating Services as defined in an Order;
Means a written order for Rating Services on RQR’s prescribed form;
Means the date as set out in an Order;
Means the sum or fee set out in an Order and includes any other fees or charges payable under this Agreement.
2.1 This Agreement together with all Orders constitutes the complete agreement between the parties.
This Agreement together with all Orders contains the only terms and conditions which govern the relationship between RQR and the Client regarding the rating of the assets as described in the preamble. Each of the parties acknowledges and agrees that in entering into the Agreement it does not rely on and shall have no remedies in respect of any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the Agreement or not) relating to the subject matter of the Agreement, other than as expressly set out in the Agreement. Nothing in this clause 2.1 shall limit or exclude any liability for fraudulent misrepresentation.
2.2 Unless stated to the contrary, in the event of any conflict or inconsistency between any provisions of this Agreement and any Order, the provisions of the Order shall prevail.
3. CLIENT DATA
3.1 When the Client is providing Client Data pursuant to this Agreement then the following will apply:
3.1.1 The Client shall supply RQR with all data and other information that RQR may reasonably request from time to time for the purposes of this Agreement. The data provided will be in relation to the assets identified in an Order that the Client owns, manages, or acts directly or indirectly for, and will include details of properties, tenancies and other investments as specified from time to time by RQR. The Client shall not provide any personal data (as defined by any relevant legislation and data privacy laws) to RQR as part of the Client Data.
3.1.2 The Client shall submit to RQR Client Data (i) that is true, accurate and complete, to the best of the Client’s knowledge, (ii) that is in accordance with RQR’s submission standards, and (iii) that is in accordance with the requirements of any applicable rules, principles, regulations or laws regarding ratings as the case may be and as set out by RQR, and the Client shall take all actions reasonably required as a contributor or submitter of data under any such applicable rules, principles, regulations or laws.
At any time, RQR acting as an expert of ratings, shall provide Client with appropriate advisories and warnings regarding the applicable laws.
3.1.3 Without limiting the generality of clause 3.1.2, the Client shall provide Client Data in the form prescribed by RQR from time to time and within the timetable as notified.
3.1.4 If the Client is unable to supply Client Data in accordance with clauses 3.1.2 or 3.1.3, then the Client shall take all necessary steps as quickly as is reasonably possible so that it is able to meet such requirements.
3.1.5 If any claims are made in respect of the Client Data, or in RQR’s reasonable opinion are likely to be made, by any third party the Client shall, at its expense: (i) procure the right for RQR and RQR’s Affiliates to continue using the relevant Client Data (including any part of it) in accordance with the terms of this Agreement; or (ii) modify the relevant Client Data to avoid infringement or replace the relevant Client Data with non-infringing information.
3.1.6 Where any Client Data is provided by any agents, representative or any other contributor of the Client pursuant to this Agreement then the Client shall procure that such agents, representative or any contributor, shall also comply with clauses 3.1.1 to 3.1.5 above and any act or omission by any such agents or representative of the Client of this Agreement is deemed to be an act or omission of the Client.
4. PROVISIONS RELATING TO RATING SERVICES
4.1 Any Rating Services that RQR provides under this Agreement shall be set forth in an Order, and RQR shall not be required to provide any Rating Services until the relevant Orders are agreed and signed by each party.
4.2 The Client shall, identify a principal contact of appropriate seniority within its organization and to the extent that the Rating Services are related to Funds, in the Order, the Client must identify such principal contact for each applicable Fund to deal with queries, invoices and to be a recipient of the Rating Services. By doing so, the Client authorizes the disclosure of Client Data to those recipients. If the Client is the owner of a Fund and names a managing agent in an Order, then the Client understands and agrees that unless the Client instructs RQR in writing to the contrary, RQR will provide to such managing agent any reports supplied to the Client as part of the Rating Services (and such reports may include Client Data).
4.3 The Client and RQR will use its best efforts to take all actions and to do all things necessary, proper, or advisable to consummate, make effective, and comply with all the terms of this Agreement.
4.4 To the extent that Rating Services include the delivery of reports, the Client shall review the draft of each report delivered to the Client for accuracy and completeness and shall provide corrections and comments to RQR within the timetable for notification of comments provided by RQR which cannot be less than 5 (five) business days. If the Client does not provide any comments or corrections to the draft report within the timetable provided by RQR, the Client is deemed to have accepted the draft report as accurate and complete.
5. USE OF DATA AND RATING SERVICES
5.1 In consideration of payments made by the Client to RQR and subject to the provisions of any Order, RQR grants the Client with the right to use the Rating Services for both internal and external purposes. The client shall ensure that when the Rating Services is used for external purposes, it is accompanied by the appropriate RQR disclaimers, as amended from time to time.
5.2 The Client shall ensure that any reproduction of all or part of the Rating Services includes the following notice: ”© [insert relevant year] RQR Inc. All rights reserved. RQR has no liability to any person for any loss, damage, cost or expense suffered as a result of any use of or reliance on any of the information”.
5.3 The Client shall ensure that the external communication of all or part of the Rating Services is done solely on an RQR generated scoring and rating, free of any manipulation.
5.4 Except as expressly permitted in the Order, the Client shall not:
5.4.1 copy, alter, modify, adapt, reconfigure, reverse engineer, decompile the Rating Services, or any component thereof;
5.4.2 use the Rating Services in a manner that would substitute for a license or purchase of any portion of the Rating Services (for example, use any Rating Services to create a separate or substitute database).
5.5 The Rating Services may continue to evolve in the light of business, market, and technical developments. Accordingly, RQR reserves the right to make improvements, substitutions, modifications and to add or remove elements of the Rating Services. The Client acknowledges that none of RQR, RQR’s Affiliates or the Data Providers shall be liable to the Client or any third party for any modification, discontinuance, or suspension of the Rating Services. This change will be of no effect on the reports already issued.
6.1 The Client shall pay the Rating Fee in full, unless otherwise indicated in the Order, and within thirty (30) days from the date of the invoice.
6.2 The Rating Fee includes the fees relating to the provision of Rating Services and third-party fees that may be necessary for the provision of Rating Services. RQR reserves the right to charge an additional structuring of data fee, should the Client provide access to a data room containing an unusual number of documents.
Additional structuring of data fee applicable over 10 documents to be examined shall be as follows:
6.3 Payment will be made by bank transfer.
6.4 The Client shall pay interest computed at the rate of the interest rate applied by the European Central Bank to its last refinancing operation plus ten (10) points, on any undisputed amounts due hereunder that are remitted after the due date. Moreover, RQR shall apply the fixed indemnity for debt recovery set forth in article L.441-6 of the French mark of commerce. If the debt recovery costs actually incurred are higher than fixed indemnity, RQR may require additional compensation upon justification.
6.5 RQR may vary the Rating fee, at a maximum in compliance with article 6.6, by providing the Client with at least ninety (90) days’ notice (email is sufficient), which variation apply to the following renewal period of the applicable Order.
6.6 Notwithstanding clause 6.5 to the contrary, RQR may automatically increase the Rating Fees annually without notice to the Client, by an amount equal to or less than the applicable rate of CPI (the Consumer Price Index) (or any other relevant index rate), which increase shall apply to the following renewal period of the applicable Order.
6.7 Without prejudice to any of RQR’s other rights or remedies RQR may upon fourteen (14) days written notice withhold the supply of the Rating Services in the event that the Client is overdue with any undisputed payment or is in material breach of this Agreement until such time as the Rating fee is paid or the breach is remedied.
7. |MISSING TITLE|
7.1 This Agreement will be deemed to come into force from the Effective Date and will terminate on the Termination Date or otherwise terminated in accordance with the Agreement.
7.2 Each Order will be deemed to come into force from its Start Date and will continue for the Minimum Period. If there is no Minimum Period stated the Order will continue for an initial period of twelve (12) months. Thereafter, the Order shall automatically renew for consecutive periods of twelve (12) months unless either party gives to the other not less than ninety (90) days written notice of termination expiring prior to the end of the then current period.
8. INTELLECTUAL PROPERTY
8.1 The Client shall retain ownership of the IPRs (if any) in the Client Data, and Confidential Information Client (its agent, representative or any contributor) provides RQR with.
8.2 The Client consents to RQR and/or RQR’s Affiliates, both for the term of this Agreement and afterwards, processing Client Data, incorporating it into the Rating Services and making it available as part of any product or service of any kind that RQR and/or RQR’s Affiliates may provide from time to time, provided that Client data is aggregated and anonymised.
8.3 Subject to any underlying rights the Client holds under clause 8.1 solely to the Client Data, the Client acknowledges that any and all IPRs in the Rating Services, in any databases, and products and services that are created from the Rating Services or the Client Data are RQR’s property, excluding any and all Client’s Confidential Information.
8.4 RQR may terminate any Rating Services, Order or this Agreement immediately on written notice, if the Client challenges the validity of any of RQR’s rights as set out above.
8.5 Client may terminate any Rating Services, Order or this Agreement immediately on written notice, if RQR challenges the validity of any of Client’s IP rights or Confidential Information as set out above.
9.1 The Client warrants and undertakes that:
9.1.1 the Client has the right to provide the Client Data it supplies under this Agreement to RQR and the Client Data, to Client’s best knowledge, do not infringe or violate any rights of any third party;
9.1.2 to the best of the Client’s knowledge, the Client Data is accurate and complete; and
9.1.3 the Client shall not make any misleading statements about any information that it derives from the Rating Services.
10. DISCLAIMER OF WARRANTIES
10.1 RQR has the right to provide Client with the Data it supplies to it, and warrant and undertakes that, to its best knowledge, said Data nor Rating Services do no infringe or violate any rights of any third party.
The Client acknowledges that the Rating Services include data that is provided by third parties or is otherwise publicly available, and although RQR obtains such data from sources that RQR considers reliable, RQR is not able to control or verify the accuracy or completeness of such data. Accordingly, RQR, any of its Affiliates and any Data Providers (collectively, the ‘‘RQR Parties’‘):
10.1.1 makes no warranty or representations (whether express or implied) about the accuracy or fitness for any particular purpose of the Rating Services will be uninterrupted, timely or secure;
10.1.2 accepts no liability for any inaccuracy, incompleteness or other error in the Rating Services which arises as a result of the Client Data provided by the Client or any Data Provider; and
10.1.3 expressly disclaims any responsibility or liability for the Rating Services and any data which is incorporated into the Rating Services and is provided to RQR or any Data Provider.
Notwithstanding anything to the contrary in this Agreement, any data which is incorporated into the Rating Services and which is provided by the Client is hereby expressly excluded from the indemnity given by RQR in clause 12.1 of this Agreement.
10.2 The Client acknowledges that:
10.2.1 none of the Rating Services or systems which use empirical data and/or statistical data and/or data modelling techniques to provide indicative and/or predictive data, can be taken as a guarantee of any particular outcome;
10.2.2 systems for the following purposes, to (a) assess the creditworthiness and/or propensity to act fraudulently and/or level of insurance risk of persons (being individuals, partnerships or corporations) and/or (b) predict future movements in any particular market, being empirically based, can only be statistically predictive;
10.2.3 in the ordinary course of events and by its very nature, the accuracy and utility of the Rating Services will deteriorate rapidly following its delivery to the Client.
10.3 Accordingly RQR does not make any warranty or representation that the use by the Client of the Rating Services will achieve any particular result for the Client. The Client agrees and acknowledges that the Rating Services are not intended to be used as the sole basis for any business decision and that the Client uses the Rating Services at its own risk and on an ‘‘as is’‘ basis.
11. LIMITATION OF LIABLITY
11.1 Subject to clause 12.3 and otherwise to the maximum extent permitted by law, RQR’s total liability to the Client, in respect of claims arising out of or in connection with this Agreement, whether in contract or tort (excluding negligence and infringement) or otherwise, shall, in no circumstances exceed the total Rating Fees payable by the Client to RQR under the applicable Order in the year that the claim is made or €10,000 if no Rating Fees are payable or paid in the year that the claim is made by the Client to RQR.
11.2 Subject to clause 11.3 and otherwise to the maximum extent permitted by law, RQR shall not have any liability to the Client for any:
11.2.1 loss of profits,
11.2.2 loss of business,
11.2.3 loss of anticipated savings,
11.2.4 loss of sales or turnover,
11.2.5 loss of, or damage to, reputation,
11.2.6 loss of contract,
11.2.7 loss of customers,
11.2.8 loss of use or of any software or data,
11.2.9 wasted management or any staff time,
11.2.10 losses or liabilities in relation to or under any other contract, or
11.2.11 any indirect or consequential losses, any type of anticipated or incidental losses, or any type of financial loss, even if RQR had notice of the possibility of the Client incurring such losses.
11.3 Nothing in this Agreement excludes or limits RQR’s liability for:
11.3.1 death or personal injury caused by RQR’s negligence or omission,
11.3.2 fraudulent misrepresentation, or
11.3.3 infringement of any third party proprietary rights, based on the provision, to Client, of the Rating Services and/or data acquired by RQR from any third party or Data Provider, said tort being subject to clause 12;
11.3.4 any other liability that may not be excluded or limited by law.
12. THIRD PARTY CLAIMS
12.1 RQR shall indemnify, defend and hold harmless the Client against all and any losses suffered by the Client including legal expenses (reasonably and properly incurred) arising out of or connected with any third party claim or action threatened or brought against the Client that the Client’s use of the Rating Services in accordance with this Agreement constitutes an infringement of the IPRs of the relevant third party, provided that such indemnity shall not apply to any use of the Rating Services which is in breach of any of the provisions of this Agreement or to any data provided by any Data Provider or to any Client Data.
12.2 If any claims are made, or in RQR’s reasonable opinion are likely to be made, by any third party alleging that its rights are infringed by the Client’s use of the Rating Services as permitted by the terms of this Agreement, RQR may at its sole option and expense:
12.2.1 procure for the Client the right to continue using the relevant Rating Services or any component thereof in accordance with the terms of this Agreement;
12.2.2 modify the relevant Rating Services or any component thereof to avoid the infringement or replace the relevant Data Rating fee Service with non-infringing materials, whilst still providing the same, or substantially similar, functionality to the infringing materials; or
12.2.3 immediately terminate this Agreement, an Order or any individual Rating Services licensed hereunder and RQR shall refund to the Client the Rating fee (if paid) pro-rated, calculated by RQR according to the Rating Services not performed as at the date of termination, determined by RQR in its sole discretion.
12.3 If RQR exercises one of the options set out in clause 12.2, RQR shall have no further liability to the Client in respect of a claim relating to the subject matter of clause 12.1 from the date RQR completes such option. In case of its gross negligence resulting in losses, RQR shall indemnify, defend and hold Client harmless against all any losses, suffered by Client, including legal expenses (reasonably and properly incurred), arising out of, or connected with RQR rendering the Rating Services and any breach of clauses 8 and 10 of this Agreement.
12.4 In case of its gross negligence resulting in losses, Client shall indemnify, defend and hold RQR harmless against any losses, suffered by RQR, including legal expenses (reasonably and properly incurred) arising out of or connected with the Client rendering the Rating Services inaccurate or incomplete (by any act or omission) or modifying it by data input or manipulation and any breach of clauses 5 and/or 10 of this Agreement and/or any additional license terms in an Order.
12.5 In case of its gross negligence resulting in claims, Client shall also indemnify, defend and hold RQR harmless against all and any losses suffered by RQR including legal expenses (reasonably and properly incurred) arising out with any third party claim or action threatened or brought against RQR related to or arising from any use of, or inability to use, the Rating Services by the Client.
12.6 The indemnified party shall promptly notify the indemnifying party of any such claim or action (although failure to do so will only relieve the indemnifying party of its obligations hereunder to the extent the indemnifying party was prejudiced thereby). The indemnified party shall reasonably cooperate with the indemnifying party, at the indemnifying party’s expense, in the defense of any such claim or action. The indemnifying party shall have full control over the defense and settlement of any such claim or action, subject to this clause 12.6. The indemnified party shall have the right, at its own expense, to participate in the defense of any such claim or action. The indemnifying party shall have total control over all negotiations for the settlement or compromise of a claim or action which such party is required to defend and/or handle under clause 12, provided that such settlement or compromise is solely monetary in nature. )
13.1 Both RQR and the Client shall ensure that their respective officers, employees, independent contractors, representatives, agents and professional advisers and in RQR’s case, RQR’s Affiliates, (i) maintain in strictest confidence and not divulge or communicate to anyone else any Confidential Information relating to the other except as permitted by this Agreement and (ii) only use the Confidential Information relating to the other strictly for the purposes of this Agreement.
13.2 The obligations of clause 13.1 above shall not apply to information which:
13.2.1 is already public knowledge, through no act or default of either party;
13.2.2 either party is required to divulge by a court, tribunal, regulatory, or governmental authority with competent jurisdiction;
13.2.3 was known to the recipient before the date of disclosure (as evidenced by written evidence) without obligation of confidentiality; or
13.2.4 was subsequently obtained by the recipient from someone else without that person breaching any obligations of confidentiality that they have to either party.
13.2.5 RQR reserves the right to publish anonymized market statistics and evaluation results. The publication of this data will apply strict confidentiality rules designed to make it difficult, if not impossible, to associate a specific fund or asset with a result.
14. PRIVACY AND PERSONAL DATA
14.1 RQR and the Client are committed to respect privacy and to ensure lawful processing of personal data. Each Party shall be individually responsible, as a sole data controller, for its own processing of personal data pursuant to and/or in connection with this Agreement.
15.1 Either party may terminate an Order by giving the other written notice in accordance with clause 7.2.
15.2 RQR may terminate this Agreement, a Rating Service or an Order immediately on written notice if:
15.2.1 the Client fails to comply with clauses 3.1.2, 3.1.3, or 3.1.4 or in the event of the circumstances described in clauses 3.1.5 or 12.2.3;
15.2.2 the Client stops providing RQR with Client Data; or
15.2.3 RQR ceases to provide the Rating Service(s) due to circumstances beyond its reasonable control. In this event, RQR may refund to the Client the Rating fee (if paid).
15.3 Either party may terminate an Order or this Agreement immediately by written notice if:
15.3.1 the other party has committed a material breach of any of its obligations under this Agreement and fails to remedy that breach (if capable of remedy), within thirty (30) days of receiving written notice from the other party specifying the breach and requiring its remedy; or
15.3.2 if any Order is made or resolution passed for the winding up of the other party or if the other party has an administrator or receiver appointed over the whole or any part of its assets.
15.4 In the event this Agreement, any Rating Services, or any Order or portion thereof is terminated: (a) the Client shall pay all undisputed amounts due and owing to RQR hereunder or thereunder, as applicable, as of the effective date of such termination; and (b) except as provided in clauses 11.2.3, 13.2.3 and 15.2.3, the Client shall not be entitled to any refund or credit of fees paid or payable hereunder.
16. EFFECT OF TERMINATION
16.1 Upon termination of any Data Rating fee Service, Order or Agreement (for whatever cause), the Client’s rights to use the relevant Rating Services will immediately cease.
16.2 Termination will not affect any rights that either party has acquired before termination except for the rights granted to the Client in clause 5.1 and the rights granted in the Orders, all of which are subject to clause 16.1.
16.3 The provisions of clauses 6 (with respect to any Rating fees that became due prior to termination), 8, 9, 10, 11, 12, 13, 15, 16, 17 and 19 shall survive termination of this Agreement and shall remain in full force and effect.
17. FORCE MAJEURE
17.1 Neither party will be liable for any failure or delay in performing any or all of its obligations under this Agreement resulting from any act of God, governmental act, terrorism, war, fire, flood, strike, explosion or civil commotion, any failure of telecommunications service(s) or equipment which is used by RQR and/or any of RQR’s Affiliates to provide the Rating Services which is due.
17.2 If either party fails or delays in performing any or all of its obligations under this Agreement for any reason given in the previous sub-clause it will notify the other as soon as practical and shall resume its obligations when the event comes to an end. Should the event of Force Majeure duration exceed more than 2 (two) months, then each of the Party may terminate the Agreement upon a prior height (8) days notices.
The Client may not assign or transfer any of its rights under this Agreement without RQR’s prior written consent, which shall not be unreasonably withheld or delayed. This prohibition shall not apply to an assignment in the Client’ Affiliates. Assignment shall be valid upon a written notice from Client to RQR;
RQR is entitled to assign or transfer its rights under this Agreement. RQR will provide prior written notice to the Client, which will be generally at the same time and generally by the same method as to RQR’s other licensees of the relevant Rating Services. Should the Agreement be assigned to one of the Client competitor, then Client shall be entitled to terminate the Agreement as of right, without any right to RQR and its assignee to claim. Pending Orders shall be duly performed, at Client sole discretion.
The Client agrees that RQR may include the Client’s name, fund names and/or logo as its client in any client lists RQR may publish for promotional purposes from time to time except where the Client instructs RQR, in writing, to the contrary.
20.1 If either party fails to or delays in exercising any right or remedy available under this Agreement then that failure or delay does not constitute a waiver or bar to the exercise of that right or remedy.
20.2 If any of the provisions of this Agreement is found by a court of competent jurisdiction to be void or unenforceable then that provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect.
20.3 Except for RQR and the Client, no other party is intended, or shall be deemed, to be a beneficiary of any provision of this Agreement, provided that this sentence shall not be interpreted as affecting the rights of any RQR Parties (meaning RQR or its Affiliates) as set forth in this Agreement.
20.4 This Agreement shall be governed by and construed in accordance with French law. Both parties agree that the courts of Paris (France) shall have exclusive jurisdiction to settle any disputes that may arise out of or in connection with this Agreement.
20.5 A reference to a statute or statutory provision is a reference to it as amended, extended, or re-enacted from time to time.
20.6 This Agreement may be executed in counterparts, which counterparts, taken together, shall constitute one agreement and each party hereto may execute this Agreement by signing such counterpart. The parties hereby agree that an authorized representative of either party may execute this Agreement and any Orders, schedules, addenda, exhibits, amendments or other documents or modifications to or governed by this Agreement using an electronic signature, and any such electronic signature shall be deemed effective, binding and enforceable against such party. No amendment or other modification to this Agreement (including any Order) shall be valid or binding with respect to either party unless acknowledged and agreed to in writing and signed by a duly authorized officer of each party.
20.7 Except as otherwise provided herein, notices and other communications under this Agreement shall be in writing and shall be delivered in person or via courier to RQR and to the Client at the relevant addresses set forth.