Version: February 2023
These terms and conditions together with the order form (“Order Form”) signed by the client ("you" or “Client”) of Maplecroft.Net Limited ("Verisk Maplecroft") (together "the Agreement") constitute the entire agreement between you and Verisk Maplecroft for the supply and use of the ESRS online tool delivered by Verisk Maplecroft (being hereinafter referred to as the "Tool").
1. Role of Verisk Maplecroft.
1.1 Verisk Maplecroft will provide the Tool set out in the Agreement and will not be obliged to provide any other advice or services (including but not limited to legal, regulatory, tax or accounting matters) unless the Agreement shall be amended or supplemented to increase the scope of services to be provided. Absent such a provision, any advice rendered by Verisk Maplecroft may not be relied upon for such matters.
2. Information and Delegation.
2.1 You understand and agree that Verisk Maplecroft, in creating the Tool, may use and rely upon publicly available information and that Verisk Maplecroft does not assume responsibility for independent verification of such information. Accordingly, Verisk Maplecroft shall be entitled to assume and rely upon the accuracy, fairness and completeness of all such information.
2.2 You hereby authorise Verisk Maplecroft to carry out such steps as it considers necessary to create the Tool, including acting through affiliates, agents and subcontractors.
3. Delivery of the Tool.
3.1 Verisk Maplecroft will provide access to the Tool within two business days of receipt of signed Order Form, unless agreed otherwise, in web based form via it’s secure, client specific portal on www.maplecroft.com. The Tool will be entitled for access by you and your employees only, unless specified otherwise in the Order Form.
3.2 You will be able to download the Tool: (i) for a period of 12 months from the date that access is provided; and (ii) into Microsoft Excel format. For the avoidance of doubt, it is Client’s responsibility to ensure that it has a licence and access to Microsoft Excel in order to use the Tool.
4. Use of the Tool
4.1 The Tool made available by Verisk Maplecroft, is provided to you solely for your benefit and may not be relied on by you other than for the purposes of assessing the Client’s readiness for ESRS compliance reporting and may not be disclosed by you to any third party except as permitted herein. Further, you may not disclose (i) to any third party; or (ii) publicly the Tool unless there is a legal or regulatory obligation to so disclose or announce it.
4.2 If you shall excerpt any portion of the Tool or shall utilise any information contained in the Tool to the extent you are permitted herein, or otherwise with Verisk Maplecroft's explicit consent, you shall specify Verisk Maplecroft as being the source of such data in the following format: Source: ESRS Tool - Verisk Maplecroft with the following disclaimer: “The data and information provided by Verisk Maplecroft should not be interpreted as advice and you should not rely on it for any purpose. You may not copy or use this data and information except as expressly permitted by Verisk Maplecroft in writing. To the fullest extent permitted by law, Verisk Maplecroft accepts no responsibility for your use of this data and information except as specified in a written agreement you have entered into with Verisk Maplecroft for the provision of such of such data and information.".
4.3 Verisk Maplecroft disclaims all liability for any consequence whatsoever should any third-party use or rely on the Tool.
5. Grant of Licence.
5.1 Verisk Maplecroft grants you, and your employees upon the terms and conditions set forth in these terms and conditions, a license to copy tool outputs to Permitted Computers (as such term is defined in paragraph 5.2 below) and to reproduce in storage media of a Permitted Computer, outputs from the Tool.
5.2 For the purposes of the Agreement, “Permitted Computer” means any computer, tablet or mobile device that is part of a network administered by you and is under the personal control of one of your employees.
5.3 The Agreement grants no right to sell, distribute, sublicense, rent or loan the Tool, nor does it grant any right to create a derivative work based upon the Tool.
5.4 You may not copy the Tool or any portion thereof except as permitted herein.
5.5 You may only grant consultants or other third parties access to the Tool with the prior written consent of Verisk Maplecroft, which consent Verisk Maplecroft may withhold in its absolute discretion or may condition upon, among other things, the payment of additional fees.
5.6 You and your employees shall keep confidential access to the Tool and shall ensure it is used only in accordance with this Agreement.
6. Proprietary Rights and Obligations.
6.1 Title to and ownership of the Tool and the copyright and all other intellectual property rights in the Tool shall remain at all times with Verisk Maplecroft. You shall have no rights in any of the foregoing unless expressly granted by the Agreement. The Tool constitutes trade secrets and proprietary and confidential information of Verisk Maplecroft.
6.2 You shall not alter, obscure, remove, interfere with or add to any of the trade marks, trade names, markings or notices affixed to or contained in the Tool and shall ensure that all those trade marks, trade names, markings and notices are reproduced in full on all copies of the Report made by you.
6.3 Verisk Maplecroft shall have the right from time to time to undertake a review of your compliance with the provisions of paragraphs 4, 5 and 6 of these terms and conditions.
6.4 Subject to paragraph 7 of these terms and conditions, Verisk Maplecroft shall defend any and all suits, actions and claims brought against you in respect of, and shall pay all fines, costs, compromises, settlements, awards, judgements and legal and other expenses (including reasonable legal fees) directly resulting from or relating to, any claim that the Tool infringes or violates any copyright, trade mark, trade name or other intellectual property right of any person except for any claim which arises from: (i) breach of this Agreement by you; (ii) a modification to the Tool not made by Verisk Maplecroft; or (iii) use or combination of the Tool with any other software, hardware, goods or services not provided or authorised by Verisk Maplecroft. You agree to, and it shall be a condition to the continuation of the obligations of Verisk Maplecroft pursuant to this paragraph 6.4 that you:
(a) promptly notify Verisk Maplecroft of such alleged infringement or violation;
(b) make no admission as to liability in respect of such claim;
(c) allow the conduct, settlement, negotiation or litigation of the claim to be solely handled by Verisk Maplecroft; and
(d) co-operate reasonably with Verisk Maplecroft, at Verisk Maplecroft’s expense, in the defence of any such claim if requested to do so by Verisk Maplecroft.
In no event shall Verisk Maplecroft be liable for any compromise or settlement entered into without Verisk Maplecroft’s prior written consent. NOTWITHSTANDING ANY OTHER PROVISION OF THE AGREEMENT, IF ANY SUCH INFRINGEMENT SHALL BE ALLEGED VERISK MAPLECROFT SHALL HAVE THE RIGHT TO MODIFY OR REPLACE THE TOOL CLAIMED AGAINST TO AVOID THE INFRINGEMENT, TO PROCURE THE RIGHT FOR YOU TO CONTINUE USING THE TOOL OR TO TERMINATE YOUR USE OF THE TOOL AND REFUND TO YOU THE AMOUNT ACTUALLY PAID BY YOU PURSUANT TO THE AGREEMENT, THE FOREGOING SHALL CONSTITUTE YOUR SOLE AND EXCLUSIVE REMEDY ON ACCOUNT OF SUCH INFRINGEMENT.
7. Limitation of Warranties, Limitations of Liability and Disclaimers.
7.1 Verisk Maplecroft will use reasonable commercial efforts to comply with any date for completion of the Study or any portion thereof, but any such date shall only constitute a statement of expectation and shall not be binding. Failure to complete the Study or any portion thereof by a particular date shall not constitute a breach of contract. Verisk Maplecroft shall not be liable for any loss, cost or damage, direct or indirect, caused by any delay and in no case shall delay be a ground for rejecting the Tool or terminating the Agreement.
7.2 Except for statements that are expressly identified in the Agreement as representations or warranties, Verisk Maplecroft makes no written, oral, statutory, express or implied warranties, conditions or representations concerning the Tool and expressly disclaims any warranties or conditions of satisfactory quality, merchantability or fitness for a particular purpose.
7.3 Verisk Maplecroft represents that it has used reasonable endeavours to obtain the factual information contained in the Tool from sources deemed by it, in its discretion, to be reliable at the time such information was obtained but Verisk Maplecroft makes no warranties or representations about the accuracy or completeness of such information, or about the accuracy or reasonableness of the interpretations it has made regarding such information or otherwise.
7.4 The Tool is provided as is and Verisk Maplecroft shall have no obligation to revise or update the Tool unless expressly stated in the Agreement.
7.5 SUBJECT TO PARAGRAPH 7.8 UNDER NO CIRCUMSTANCES SHALL VERISK MAPLECROFT BE LIABLE FOR
(i) SPECIAL, INCIDENTAL, OR PUNITIVE LOSS;
(ii) INDIRECT OR CONSEQUENTIAL LOSS; OR
(iii) LOSS OF BUSINESS, REVENUE, GOODWILL, PROFITS CONTRACTS OR ANTICIPATED SAVINGS (WHETHER SUCH LOSS IS DIRECT OR INDIRECT, FORESEEABLE OR OTHERWISE), ON ACCOUNT OF ANY CLAIM ARISING FROM OR IN CONNECTION WITH OR OTHERWISE RELATING TO THE AGREEMENT, OR THE TOOL, WHETHER ON THE BASIS OF NEGLIGENCE, TORT, BREACH OF CONTRACT, MISREPRESENTATION, INDEMNITY OR OTHERWISE.
7.6 SUBJECT TO PARAGRAPH 7.8 UNDER NO CIRCUMSTANCES SHALL VERISK MAPLECROFT BE LIABLE IN CONNECTION WITH THE AGREEMENT OR THE TOOL IN AN AMOUNT IN EXCESS OF THE FEES ACTUALLY PAID PURSUANT TO THE AGREEMENT; AND NO ACTION, REGARDLESS OF ITS FORM, ARISING FROM OR PERTAINING TO THE TOOL OR THE AGREEMENT MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER THAT ACTION HAS ACCRUED.
7.7 VERISK MAPLECROFT DISCLAIMS ALL RESPONSIBILITY FOR ANY CONSEQUENCE WHATSOEVER SHOULD ANY THIRD-PARTY USE OR RELY ON THE TOOL OR ANY DATA OR MATERIALS DERIVED FROM THE TOOL.
7.8 Notwithstanding anything to the contrary in the Agreement, Verisk Maplecroft does not limit or exclude its liability for fraud, or fraudulent misrepresentation, or for death or personal injury arising from its negligence or that of its employees, affiliates, agents or subcontractors, or any liability which cannot by law be restricted or limited.
8. Indemnity.
You agree to indemnify and keep indemnified Verisk Maplecroft against all claims, actions, losses, damages, costs and expenses which may be brought against or incurred or suffered by Verisk Maplecroft as a result of your use or disclosure of the Tool in breach of this Agreement.
9. Payment.
9.1 Payment for access to the Tool shall be due within 30 days of receipt of either (i) an invoice from Verisk Maplecroft; or (ii) a secure link to make payment via a payment gateway. Payment shall be made to Verisk Maplecroft at the address set forth in the Agreement or at such other address as may be specified from time to time by Verisk Maplecroft.
9.2 The amount invoiced for services rendered or in connection with any deliverable as described in the Agreement is net of any applicable withholding taxes that may be imposed by governmental authorities of any country from which such payment may be made. If any such withholding taxes shall be imposed or collected in connection with such payment so that the payment actually received by Verisk Maplecroft shall have been reduced from the amount of the payment stated in the Agreement, you shall be responsible for paying to Verisk Maplecroft such additional amounts from time to time as shall be necessary to cause Verisk Maplecroft to have received the full amount stated herein without regard to the imposition or collection of any such withholding taxes.
9.3 Amounts invoiced are also exclusive of value added, sales or use tax or any other tax or other governmental charge payable in connection with the Agreement, the Study or the exercise of your rights hereunder, which tax or charge will be paid by you at the rate and in the manner prescribed by law.
10. Termination.
10.1 Verisk Maplecroft may terminate the Agreement, without any liability to you, upon written notice to you if you: (a) are in breach of any of your obligations under the Agreement and either (i) that breach is incapable of remedy or (ii) you fail to remedy such breach within five business days after receiving written notice requiring you to remedy such breach; (b) are unable to pay your debts (within the meaning of section 123 of the Insolvency Act 1986) or become insolvent or an order is made or a resolution is passed for your administration, winding-up or dissolution or an administrator or other receiver, manager, liquidator, trustee or similar officer is appointed over all or a substantial part of your assets or you enter into or propose any composition or arrangement with your creditors generally or anything analogous to the foregoing occurs in any jurisdiction, or you cease to carry on business as carried on at the date of the Agreement; or (c) undergo a change of control (and for these purposes "control" means the right to direct the affairs of a company whether by ownership of shares, membership of the board of directors, by agreement or otherwise); and upon such termination Verisk Maplecroft may retain all payments previously made to it and you shall be obligated to pay to Verisk Maplecroft all amounts due and unpaid under the Agreement as well as reasonable compensation for work performed by Verisk Maplecroft for which payment is not otherwise yet due and payable.
10.2 Verisk Maplecroft may terminate this Agreement, immediately on written notice to you if there is a legal or regulatory change which prevents or prohibits Verisk Maplecroft from providing the Tool to you in the way that the Tool or Study was provided at the time of the legal or regulatory change. In such case, Verisk Maplecroft will give you a pro rata refund of the fee paid for the Tool if the Tool is available for less than six months, subject to the payment of such refund not being prevented by any applicable laws, regulations, sanctions, or rules or guidance of any relevant authority. Where Verisk Maplecroft is required to obtain authorisation or a licence from any relevant authority to provide a refund under this paragraph 10.2, it will use commercially reasonable endeavours to obtain such authorisation or licence.
10.3 Verisk Maplecroft’s termination of the Agreement shall not relieve you or Verisk Maplecroft of any obligations under the Agreement that arose prior to such termination and that do not, by their terms, end as of such termination and all of the same shall survive such termination.
10.4 Upon Verisk Maplecroft's termination of the Agreement, you will cease using the Tool, and shall return all copies of the Tool to Verisk Maplecroft.
11. Injunctive Relief.
You agree that there can be no adequate remedy at law for any breach of your obligations hereunder regarding the copying and distribution of the Tool or portions thereof and that Verisk Maplecroft, in addition to whatever other remedies it might have at law or in equity, shall be deemed to have been irreparably harmed by, and shall be entitled to appropriate equitable relief to prevent, the disclosure of the Tool in breach of the Agreement or the unauthorised copying or distribution of the Tool or any portion thereof.
12. Governing Law.
The Agreement shall be governed by and interpreted in accordance with the laws of England and you and Verisk Maplecroft agree to submit to the exclusive jurisdiction of the English courts.
13. Entire Agreement; Severability; Waiver.
13.1 The Agreement constitutes the entire agreement with respect to the Tool and the subject matter of the Agreement and supersedes any previous proposals or other communications and any previous agreements.
13.2 The Agreement shall govern in the case of any inconsistency between it and any purchase order, change order, confirmation or other document issued by either party.
13.3 If any provision, clause or application of the Agreement to any party or circumstance is held invalid and unenforceable, this shall not affect any other provision, clause or application thereof.
13.4 A waiver of any of the provisions of the Agreement or of any breach or default will not constitute a continuing waiver, and will not prevent the waiving party from subsequently enforcing any of the provisions of the Agreement not waived or from acting on any subsequent breach or default.
14. Amendments; Assignment.
14.1 No amendment or variation of the Agreement shall be effective unless made in writing and signed by you and Verisk Maplecroft.
14.2 You may not assign any of your rights under the Agreement without Verisk Maplecroft’s prior written consent.
15. Third Party Rights.
A person who is not a party to the Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement, but this does not affect any right or remedy of a third party which exists or is available apart from under that Act.
16. Notices.
All notices, consents, approvals or other communications pursuant to the Agreement shall be made in writing and shall be delivered by personal delivery, by prepaid registered or certified mail (return receipt requested) or by overnight courier (with receipt for delivery) or by confirmed facsimile, in each case to the applicable address or number specified in the Agreement.
17. Export Control.
You acknowledge that the provision of the Tool via the website is subject to export control laws of the United Kingdom and the United States of America, including but not limited to the US Export Administration Regulations, and you therefore agree that you will not, and you will ensure that your employees will not, access the Tool via the website from any location so as to lead Verisk Maplecroft to breach UK or US export control laws. In the event that Verisk Maplecroft determines that you or any of your employees are in breach of this paragraph, Verisk Maplecroft may immediately terminate this Agreement without credit or refund on written notice to you.
18. Anti-Bribery.
The Parties undertake to comply, and to cause its directors, employees and Affiliates to comply, with the applicable laws including but not limited to: (i) the FCPA, (ii) the UK Bribery Act, (iii) international anti-corruption treaties such as the Organization for Economic Cooperation and the Development Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption. Any breach of this clause 18 shall constitute a material breach entitling the non-breaching party to terminate the Agreement with immediate effect on written notice.