BEFORE GOING FURTHER WITH THE INSTALLATION, CUSTOMER MUST AGREE TO THESE TERMS. BY CLICKING THE ACCEPTANCE BUTTON OR ACCESSING THE SOFTWARE PROGRAM, CUSTOMER REPRESENTS IT UNDERSTANDS THIS AGREEMENT AND AGREES TO AND CONSENTS TO BE BOUND BY ALL TERMS OF THIS AGREEMENT AND TO THIS TRANSACTION BEING CONDUCTED BY ELECTRONIC MEANS, AND THE PERSON CLICKING THE ACCEPTANCE BUTTON REPRESENTS HE/SHE HAS THE AUTHORITY TO BIND THE CUSTOMER. EXANTE IS ALLOWING USE OF THE MARKET DATA AND PROPRIETARY INFORMATION IN CONSIDERATION OF CUSTOMER’S AGREEMENT TO THESE TERMS. IF CUSTOMER DOES NOT AGREE TO ALL TERMS OF THIS AGREEMENT, CUSTOMER MAY NOT ACCESS OR USE THE MARKET DATA OR PROPRIETARY INFORMATION.
This Agreement is between EXANTE and you and the company you represent if applicable (“Customer”).
Services and Definitions
EXANTE will provide the Services to Customer pursuant to this Agreement. “Services” means providing information from exchanges and other information sources (“Market Data”) (such exchanges and sources are herein collectively, “Market Data Originators”) specified on the order from Customer accepted by EXANTE, during available transmission times, utilizing the Proprietary Information. “Proprietary Information” means software programs, protocols, displays, databases, manuals and supporting documentation, including the selection, arrangement and sequencing of the contents of the Services, provided by EXANTE, but excluding Market Data. Customer’s “User Location”, “Billing Address” and “Notice Address” are as previously provided by Customer.
In order to receive the Services Customer will provide and maintain at its expense
EXANTE is not required to maintain any of Customer’s property used in connection with the Services.
This Agreement shall be effective as of the earlier of the date Customer first has access to the Market Data or Services or the date this Agreement is accepted by Customer. Unless terminated earlier in accordance with this Agreement, either party may terminate this Agreement by giving the other party at least 30 days advance written notice of the termination of this Agreement.
3. Market Data Compliance
Customer will sign and deliver all agreements (such as subscriber agreements) and other documents required by applicable Market Data Originators for receipt of Market Data. Customer will comply with subscriber agreements and applicable laws, regulations and Market Data Originator rules.
Customer and its employees may use the Market Data for its own internal business purposes only, and Customer will not transfer, transmit, display on any website, publish, redistribute or resell all or any part of the Services or Market Data, nor will Customer permit others to do the same or have access to the Services or Market Data. Subject to applicable limitations imposed by Market Data Originators, Customer may use limited and minor printed extracts of screen displays of Market Data in Customer’ business, if all proprietary notices including copyrights are properly included. Customer will be responsible for the persons having access to the Market Data by or through Customer and Customer will cause such persons to comply with this Agreement. Subscriber acknowledges and agrees that each of the Market Data Originators has exclusive and valuable property rights in and to its own Market Data, and that such Market Data constitutes confidential information, trade secrets and/or proprietary rights of each of the Market Data Originators. Market Data Originators retain all right, title and interest (except as otherwise licensed by the Market Data Originators) in and to the Market Data and any and all compilations thereof.
Disclosure of Customer Information
EXANTE is contractually and legally required to report certain non-public information to Market Data Originators and regulators, so Customer consents to EXANTE providing Customer’s name, addresses, telephone numbers, email addresses, account number, employee names and other required information to Market Data Originators and regulatory agencies. Customer may revoke its consent to such disclosure by EXANTE at any time, but if the consent is revoked, EXANTE may terminate this Agreement on notice to Customer.
4. Proprietary Information
Services include Proprietary Information. Customer acknowledges the Proprietary Information is proprietary and unique to EXANTE, as to which copyright, patent or other proprietary rights may be held by or licensed to EXANTE. Customer will not disclose, and will take or cause to be taken all necessary precautions to maintain the confidentiality of, the Proprietary Information (except that which is generally available to the public or previously known by Customer if not due to a breach of confidentiality obligations), will comply with all copyright, trademark, trade secrets, patent and other laws necessary to protect all rights in the Proprietary Information, and will not remove or conceal any copyright or other proprietary notice included in the Services. Customer will report the location of all copies of the Proprietary Information in Customer’s possession or control upon request and return them to EXANTE upon termination of this Agreement.
Right to Use
EXANTE grants Customer a nonexclusive, nontransferable, nonsublicensable right to use the Proprietary Information, including the software contained therein, and the Market Data, for the term of this Agreement, only at the User Location and on the number of display terminals permitted under the Services subscribed to by Customer. Customer may not assign, copy, modify, merge, transfer, decompile or reverse engineer any of the Proprietary Information, or use the same in conjunction with any non-approved software or hardware. Customer’s rights to the Services, Market Data and Proprietary Information cease upon termination of this Agreement.
5. Warranties, Disclaimers and Limits of Liability
EXANTE will make commercially reasonable efforts to provide Market Data in a prompt and accurate manner. If Customer notifies EXANTE of a defect in Market Data or Proprietary Information, EXANTE will use reasonable efforts to try to correct it, giving due regard to the nature and extent of the defect. Customer acknowledges that:
DISCLAIMER. THE RIGHT TO THE SERVICES AND TO USE THE PROPRIETARY INFORMATION AND MARKET DATA IS GRANTED “AS IS” AND “WITH ALL FAULTS”. NEITHER EXANTE NOR ANY MARKET DATA ORIGINATOR MAKES ANY REPRESENTATIONS, GUARANTIES OR WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR, IN THE CASE OF MARKET DATA ORIGINATORS, IN CUSTOMER’S AGREEMENTS WITH THEM. CUSTOMER ACKNOWLEDGES IT HAS NOT RELIED UPON ANY REPRESENTATION, GUARANTY OR WARRANTY MADE BY EXANTE EXCEPT AS EXPRESSLY STATED HEREIN.
No Liability for Losses
Customer acknowledges EXANTE, its employees, agents, contractors, and Market Data Originators, will not be liable for any loss (including without limitation trading losses and lost profits), cost or damage, suffered or incurred by Customer or any third party arising out of any lost data, faults, interruptions or delays in the Services, or inaccuracies, errors or omissions in the information contained in the Services as supplied to or contributed by Customer, however such matters arise, unless due to EXANTE’s gross negligence or willful misconduct.
Limit of Liability
Notwithstanding any provision hereof, in no event will
Customer will defend, indemnify and hold harmless EXANTE and Market Data Originators, and their directors, employees, representatives, agents and contractors from and against any claim, loss, liability, cost or damage, including reasonable attorneys fees, arising from
EXANTE will indemnify and hold Customer harmless from and against any claim of infringement of a United States patent or copyright based upon use of the Proprietary Information which is not a Customer breach of this Agreement, provided Customer gives EXANTE prompt notice of and the opportunity to defend any such claim and Customer cooperates in the defense thereof. EXANTE will have the right to settle such claim, and, at EXANTE’s option, provide Customer
The following events constitute “Defaults” under this Agreement:
Upon a Default by EXANTE, Customer may terminate this Agreement by notice to EXANTE.
Upon a Default by Customer, EXANTE may terminate this Agreement on notice to Customer, and recover from Customer all charges due and possession of EXANTE’s property. EXANTE shall also be entitled to injunctive and other equitable relief against Customer for breaches of this Agreement. EXANTE’s rights and remedies are cumulative and not exclusive.
Return of EXANTE Property
Upon the termination of this Agreement, Customer will return at its expense and in a safe and commercially reasonable manner the Proprietary Information, Equipment and other property of EXANTE.
8. Order Routing Service
The terms in this Section apply only if EXANTE provides Customer with access to EXANTE’s electronic order/trade routing service (“ORS”), and if so provided, the ORS shall be deemed to be part of the Services.
Subject to Customer’s subscribing to the ORS, EXANTE will grant Customer non-exclusive and non-transferable access to use the ORS solely for purposes of routing orders, trades and related information among Customer, exchanges and brokers or dealers with whom Customer has an account and who have entered into an ORS agreement with EXANTE (“Broker”). Customer must notify EXANTE of the identity of the Broker(s), and Customer may access the ORS after Broker has authorized Customer to use the ORS. Customer may access the ORS only through the terminals Customer is authorized to use for the receipt of the Services. EXANTE may be compensated by Broker for transactions made through the ORS.
Order Acceptance by Broker
Customer acknowledges and agrees:
Customer represents it is financially sophisticated and experienced in the type of trading to be routed through the ORS. Customer understands that EXANTE, in granting Customer access to the ORS, is offering order/trade routing services and an information conduit only, and EXANTE does not offer any advice regarding the nature, potential value or suitability of any particular transaction or investment strategy. NOTHING IN THIS AGREEMENT OR IN EXANTE’S PERFORMANCE SHALL BE CONSTRUED AS A SOLICITATION OR RECOMMENDATION TO USE ANY BROKER OR DEALER, BUY OR SELL ANY SECURITY OR INSTRUMENT OR ENGAGE IN ANY TRANSACTION.
EXANTE may terminate Customer’s access to the ORS without notice for any reason, including but not limited to pursuant to a request from Broker, or due to Customer’s breach of this Agreement, or a breach or termination of EXANTE’s agreement with Broker or the applicable exchange. Customer understands that Broker also may have the right and ability to disable Customer’s access to the ORS.
Any and all materials (including software) that EXANTE provides to Customer in connection with the ORS are the property of EXANTE and are intended only for Customer’s use in connection with accessing the ORS. Customer shall not copy, sell or distribute such materials to others, nor permit access to the ORS by others. Customer shall not delete any copyright notices or other indications of protected intellectual property rights from such materials, including those that Customer prints or downloads from the ORS.