Server: Microsoft-IIS/3.0
Date: Thu, 18 Dec 1997 11:19:07 GMT
Content-Type: text/html
Accept-Ranges: bytes
Last-Modified: Tue, 02 Dec 1997 00:54:48 GMT
Content-Length: 106830
Service Subscription Agreement
THE EXCHANGES REQUIRE THAT YOU PRINT THIS FULL AGREEMENT,
ALTHOUGH YOU DO NOT NEED TO RETURN ANY PORTION TO US
Last Update: 11/97
DBC SUBSCRIPTION SERVICE
AGREEMENT TERMS AND CONDITIONS
IMPORTANT: PLEASE READ THIS SERVICE SUBSCRIPTION AGREEMENT
BEFORE USING ANY DBC SERVICES. YOUR EXECUTION OF THE SERVICE
SUBSCRIPTION AGREEMENT INDICATES YOUR ACCEPTANCE OF ALL OF THE
FOLLOWING TERMS AND CONDITIONS:
- Definitions.
- Account - Subscriber’s subscription account with DBC/ BMI, including the particular Services Subscriber has requested.
- Add-On Service - Services and any fees associated therewith, which are in addition to the Services Subscriber originally requested when he/she first became a Subscriber. Add-On Service fees may include, but are not limited to, Data fees, Premium Service fees and Data Provider fees.
- Agreement - this Subscription Service Agreement, along with the terms and conditions contained herein.
- Data Providers - those companies providing data to DBC/BMI for distribution to its Subscribers, such as the New York Stock Exchange, Nasdaq, New York Mercantile Exchange and Dow Jones, among others.
- DBC/BMI - Data Broadcasting Corporation /Market Information Corporation DBA, DBC/BMI, respectively.
- Equipment - all Receivers, hardware, software and support or other documentation which may be licensed or leased to Subscriber for use in connection with the Services.
- Information - all financial, sports, commentary, and news related data provided by DBC/BMI through its Services.
- On-line Services - those services that are provided over a global computer network, such as MarketWatch and StockEdge On-line
- Premium Services - those Services which, in the sole discretion of DBC/BMI, provide enhanced Information to Subscriber, such as DBC/BMI Reports, etc.
- Product - a set of related Services offered to Subscribers by DBC/BMI.
- Real Time Information - Information, the processing and transmission of which is initiated by DBC/BMI upon receipt (in "real time," as defined by the Data Providers) of the data from the Data Providers and which is directed to the Subscriber as soon as possible, consistent with processing requirements, transmission methods, facilities and Subscriber equipment.
- Receiver - the device that may be provided to Subscriber by DBC/BMI which enables Subscriber to receive and translate the Information broadcast by DBC/BMI.
- Request - those orders which Subscriber may make electronically, through his or her Account, regarding modifications to his or her Account, such as requests for additional Services, cancellation of the Account, etc.
- Service(s) - any financial, sports, commentary and news related information service or services offered by DBC/BMI, by all means, including, but not limited to, radio broadcast and electronic means
- Subscriber - the individual or entity executing this Agreement.
- Subscription - Subscriber’s arrangement for receiving the Services through one of DBC/BMI’s approved payment methods.
In respect to On-line service, account shall be paid in manner noted at account set up. There are no hardware costs associated with On-line services.
- Payment.
In exchange for the Services requested by Subscriber in connection with Subscriber’s Account, Subscriber agrees to pay DBC/BMI the appropriate fees as listed on the Service Subscription Agreement. All monthly subscription fees, Add-On Service fees, satellite, lease, Premium Service, and Data Provider fees payable to DBC/BMI are due in advance of the Next Statement Date which is printed on Subscriber’s current DBC/BMI Statement. Subscription, Add-On Service and Data Provider fees payable to DBC/BMI for any partial month shall be prorated on a thirty (30) day per month basis.
- Payment By Credit Card: Subscriber hereby authorizes DBC/BMI to use the credit card information furnished by Subscriber to DBC/BMI hereunder for purposes of fulfilling Subscriber’s payment obligations under this Agreement. Subscriber further represents and warrants that (i) the credit card information provided to DBC/BMI (card number, expiration date and card-holder’s name) is valid in all respects and lawfully authorized for use, and that (ii) such credit card belongs to Subscriber or has been authorized for use by Subscriber by the valid card-holder ("Subscriber’s Credit Card"). Upon expiration of the Subscriber’s Credit Card, Subscriber shall notify DBC/BMI of the new credit card expiration date and any other relevant new information pertaining to the new credit card.
- Late and Returned Check Charges: Payments not received by the DBC/BMI Next Statement Date, as designated on each monthly Statement, will be assessed a late charge of $10.00 and Subscriber may thereafter be charged up to the maximum legal interest on any unpaid balance. Payments returned to DBC/BMI for insufficient funds will result in a service charge of $10.00 to Subscriber.
- Subscription Options.
- Annual Prepaid Subscriptions: If applicable, Subscribers may structure the billing of their Accounts as Annual Prepaid Subscriptions, in which Subscriber prepays all fees associated with the receipt of Services for twelve (12) consecutive months. All Annual Prepaid Subscription fees are nonrefundable, nontransferable and exclude Add-On Service, Data Provider, satellite and hardware usage/lease fees. Add-On Service, Data Provider and satellite fees are billed on a monthly basis.
Prior to the Next Statement Date as shown on the next to last Statement for the Annual Prepaid Subscription, Subscriber must notify DBC/BMI to renew the Annual Prepaid Subscription. If no notification is received, Subscriber’s Account will automatically convert to an Annual Billed Monthly Subscription for BMI accounts and a monthly Subscription for DBC accounts.
Example 1 (DBC Annual Prepaid Subscriptions): If Subscriber opened his/her Account with DBC on March 1, 1997 on an Annual Prepaid basis and, at the end of such subscription desired to terminate the subscription, Subscriber would be required to give notice of termination prior to the Next Statement Date shown on Subscriber’s January, 1998 bill. Since Subscriber’s bill for January, 1998 would arrive on approximately January 1, 1998, and might show a Next Statement Date of January 20, 1998, Subscriber would be required to give notice of termination prior to January 20, 1998 in order for his/her Annual Prepaid Subscription to be effectively terminated for March, 1998. Failure of Subscriber to give notice prior to January 20, 1998 would result in Subscriber’s Account reverting to a Monthly Subscription for DBC accounts.
Example 2 (BMI Annual Prepaid Subscriptions): If Subscriber opened his/her Account with BMI on March 10, 1997 on an Annual Prepaid basis and, at the end of such subscription desired to terminate the subscription, Subscriber would be required to give notice of termination up through the last business day of the month following the expiration of the current contract term. In the above example, this would terminate subscription on March 31, 1998.
Failure of Subscriber to give notice prior to March 10, 1998 would result in Subscriber’s Account reverting to an Annual Billed Monthly Subscription for BMI accounts.
Online Service Cancellation. Upon the last date of your twelve (12) month consecutive contract period, your annual Agreement will automatically renew for another (12) consecutive months unless you give DBC notice prior to the end of the current contracted period.
For cancellation terms, refer to Section 10 of this Agreement.
- Annual Billed Monthly Subscriptions. If applicable, Subscribers may structure the billing of their Accounts as Annual Billed Monthly Subscriptions, in which Subscriber pays monthly for the receipt of Services for a period of twelve (12) consecutive months. All Annual Billed Monthly Subscription fees are nonrefundable, nontransferable, and exclude Add-On Service, Data Provider, satellite and hardware usage/lease fees. Furthermore, fees for Services that Subscriber would have paid for the balance of the annual period will be charged to Subscribers who terminate their Accounts in the initial twelve month subscription term. Add-On Service, Data Provider and satellite fees are billed on a monthly basis. Hardware usage/lease fees may be prepaid or billed on a monthly basis at the Subscriber’s option. Subscriber’s Annual Billed Monthly account with DBC/BMI shall continue as an Annual Billed Monthly subscription account and Subscriber shall be obligated to DBC/BMI for all applicable monthly subscription fees
DBC/BMI is authorized to charge any unpaid Annual Billed Monthly Subscription fees to Subscriber’s Credit Card pursuant to Section 2(d) of the Agreement.
For cancellation terms, refer to Section 10 of this Agreement.
- Monthly Subscriptions: If applicable, Subscribers may structure the billing of their Accounts as Monthly Subscriptions, in which Subscriber pays monthly for his/her Account. All Monthly Subscriptions shall include a surcharge, to be determined by DBC/BMI and subject to change without notice, over the monthly subscription rate for Annual Billed Monthly Subscriptions, and hardware usage fees must be prepaid. Add-On Service, Data Provider and satellite fees are billed on a monthly basis.
- Thirty (30)Day Trial: For the first thirty (30) calendar days of Subscriber’s receipt of a product, Subscriber may cancel the Product and receive a refund of hardware usage, lease, deposit, Service, and satellite fees paid by Subscriber, if applicable. Data Provider, Premium Services, Registration and shipping fees are not refundable. Subscriber is entitled to only one (1) 30-Day Trial with each product. For example, Subscriber is entitled to one 30-Day Trial for Subscriber’s initial receipt of a particular product, but not for individual Services related to the Product that the Subscriber may select at a later date.
There is no thirty (30) trial for on-line services, with the exception of StockEdge On-line and Signal On-line.
- Initial Registration and Restart Fees: Subscriber may restart an Account which he/she had previously subscribed to at any time subject to payment in full of a restart fee, at least one month subscription, Service, Data Provider, satellite, lease, and shipping (if applicable) fees and any past due balance remaining on the Account. Subscribers who have canceled within the 30-day trial period discussed in 2(d) above and have received applicable refunds, and choose to reactivate the particular Service shall be assessed registration, usage, and shipping fees along with the initial subscription, Service, Data Provider, satellite and lease fees, where applicable.
- Fee Changes: Subscriber acknowledges that Service fees are subject to change at any time without advance notice and that any individual Data Provider fees are subject to change in accordance with the terms of each Data Provider.
- Changes In Subscription Service. Subscriber may add additional Exchanges or Services offered by DBC/BMI by written request to DBC/BMI, subject to confirmation and receipt of properly signed contracts (if applicable), and to payment of all applicable fees. All fees added are prorated on the basis of a 30 day month.
- Charges For Failure To Return Equipment: If Subscriber fails to return Equipment pursuant to Section 7(a) within thirty (30) days after termination of the Service or Services requiring the Equipment, Subscriber shall be charged the full retail value of the Equipment. If all outstanding fees are not paid within thirty (30) days of DBC/BMI’s closing Statement, all legal remedies may be taken by DBC/BMI against Subscriber. If Subscriber is a credit card customer, DBC/BMI reserves the right to charge such amount against Subscriber’s Credit Card.
- Taxes: All applicable sales and use taxes arising from Subscriber’s Account shall be paid by Subscriber, whether or not such taxes are included in the fees as listed on the Service Subscription Agreement or assessed by the taxing authority to DBC/BMI or Subscriber.
Professional/Non-Professional Status.
With respect to Services involving the receipt of financial market Information, unless otherwise indicated on the front page of the Service Subscription Agreement, Subscriber represents and warrants that he/she meets and complies with all NYSE, AMEX, and Nasdaq requirements for qualification as a Non-Professional Subscriber, and that the following statements are and shall continue to be true for so long as Subscriber receives Information or Services pursuant to the terms and conditions of this Agreement:
- Subscriber makes this Agreement in his or her own individual capacity and not on the behalf of a firm, corporation, partnership, trust, or association.
- Subscriber shall use the Information and Service(s) solely in connection with his or her own individual personal investment activities and not in connection with any trade or business activities.
- Subscriber shall receive the Information and Service(s) only at the location and via the equipment provided by DBC/BMI, and shall not furnish the Information or Service(s) to any other person.
- Subscriber is not a securities broker-dealer, investment advisor, futures commission merchant, commodities introducing broker or commodity trading advisor, registered representative of any of the foregoing, member of a securities exchange or association or futures contract market, or an owner, partner or associated person of any of the foregoing.
- Subscriber is not employed by a bank or an insurance company or an affiliate of either, or any other organization which performs business functions related to securities or commodity futures investment or trading activity.
Subscriber acknowledges and agrees that if his/her status with respect to any of the foregoing statements is affected or changed in anyway, Subscriber shall immediately notify DBC/BMI in writing of such change of status or position. In addition to other remedies available to DBC/BMI and the Data Providers, Subscriber shall be liable to DBC/BMI and the Data Providers for the difference between any fees and costs paid by the Subscriber and the fees and costs applicable to Professional Subscribers for the same type of Information and Services that the Subscriber improperly received as a Non-Professional Subscriber.
Nasdaq Professional Subscribers.
Nasdaq Professional Subscribers represent that they have read and understood the Nasdaq Consolidated Subscriber Agreement, included in this pamphlet.
Access and Security.
- Subscriber accepts responsibility for the confidentiality and use of access number(s), account number(s) and user number for Subscriber’s access to and use of the Service. Subscriber accepts responsibility for all time used, and all Requests placed through or under Subscriber’s access number(s), user number, and/or account number(s), and any Requests so received by DBC/BMI will be deemed to have been received from, and with the authorization of, Subscriber. All Requests shall be deemed to be made at the time received by DBC/BMI and in the form received.
- Subscriber agrees to notify DBC/BMI immediately if he/she becomes aware of any: (i) loss, theft or unauthorized use of Subscriber’s access number(s), and/or account number(s); (ii) failure by Subscriber to receive an electronic message (through the Service) that a Request initiated by Subscriber through the Service has been received and/or executed through the Service; (iii) failure by Subscriber to receive accurate, written confirmation of a Request or its execution within five (5) business days after entering the Request through the Service; or (iv) receipt of written confirmation or electronic message of a Request which Subscriber did not place, or any similarly inaccurate or conflicting report or information.
?
Copyright Protection, Ownership of Information, Retransmission and Redistribution of Data.
- All rights, title, and interest in the Information and the Services, in all languages, formats, and media throughout the world, including all copyrights and trademarks therein, are and shall continue to be the exclusive property of DBC/BMI and/or any and all third party Data Providers. SUBSCRIBER AGREES NOT TO REPRODUCE, RETRANSMIT, DISSEMINATE, SELL, DISTRIBUTE, PUBLISH, BROADCAST, CIRCULATE OR PROVIDE THE INFORMATION OR SERVICES IN ANY MANNER OR FOR ANY PURPOSES (PERSONAL OR BUSINESS) WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF DBC/BMI AND THE RELEVANT DATA PROVIDER(S). Subscriber further agrees not to use the Information or Services for any unlawful purpose and agrees to comply with reasonable requests by DBC/BMI to protect the respective rights of DBC/BMI and/or the Data Providers in the Information and the Services. Subscriber shall not, without the prior express written consent of DBC/BMI and the relevant Data Providers, make copies of any of the software or documentation included with the Equipment, electronically or otherwise, nor rent, distribute, sublicense, lease or copy the Equipment, including, but not limited to, translating, decompiling, disassembling, or creating derivative works.
- Unless Subscriber has entered into the appropriate multi-user Exchange and Subscription Agreements, Subscriber may not receive the Information or Services, nor any portion thereof, through more than one (1) Receiver or, if DBC/BMI does not provide a Receiver (e.g., an Internet based Service) to Subscriber, through more than one (1) personal computer or computer terminal. Subscriber explicitly covenants that he/she will not disseminate, broadcast, distribute or publish the Information or Services over a computer network, such as local area network (LAN), wide area network (WAN), or any other network, unless the Subscriber has entered into the appropriate multi-user Exchange and Service Subscription Agreements.
Ownership, Return and Repair of Equipment.
- DBC/BMI retains ownership of all Equipment. All Equipment licensed to Subscriber shall be subject to the terms of a license agreement (enclosed with the Equipment). All Equipment is, and shall at all times remain, the sole property of DBC/BMI. Upon termination of this Agreement, Subscriber agrees to promptly return any Equipment provided to Subscriber by DBC/BMI, and to destroy any copies of any software or documentation relating to the Services within Subscriber’s possession and/or control.
- Subscriber shall use the Receiver, if provided, only for its intended purpose in accordance with this Agreement and the license agreement enclosed with the Receiver. Subscriber shall not attempt to access any of the internal components of the Receiver, nor shall Subscriber allow any other person to have access to the Receiver for any purpose. Subscriber shall promptly notify DBC/BMI directly of any problem with any Equipment provided to Subscriber by DBC/BMI.
- In the event of an error in Subscriber’s reception of any of the Services, DBC/BMI shall provide technical support for the reception of such Services via telephone or other means of communication (e.g., facsimile, electronic mail, etc.) for so long as Subscriber maintains an active Account with DBC/BMI. Subscriber shall follow the instructions of the DBC/BMI Service Representative for diagnosing and remedying any technical problems and for returning any failed Equipment to DBC/BMI if requested to do so.
- DBC/BMI will replace any piece of Equipment that fails to operate properly, as determined in DBC/BMI’s sole discretion.
- DBC/BMI will pay shipping charges during the first ninety (90) days of Subscriber’s receipt of Services when sending Subscriber replacement Equipment. Subscriber will pay shipping charges when returning defective Equipment to DBC/BMI. Subscriber shall be responsible for all shipping charges after the first ninety (90) days of receipt of Services.
- Nothing in this Agreement including, but not limited to, Section 7(d), shall affect DBC/BMI’s right to charge Subscriber for the actual cost of repair, replacement or maintenance for all damage to any piece of Equipment resulting from misuse, abuse, theft or any other cause, normal wear and tear excepted.
- SUBSCRIBER SHALL PROMPTLY NOTIFY DBC/BMI DIRECTLY OF ANY PROBLEM WITH THE EQUIPMENT, INFORMATION OR SERVICE BY CALLING THE DBC/BMI CLIENT SERVICES TELEPHONE NUMBER PROVIDED TO SUBSCRIBER BY DBC/BMI.
Warranty
- Subscriber agrees that neither DBC/BMI, the Data Providers, nor any agent, subsidiary, or representative thereof shall have any liability, contingent or otherwise, for the truthfulness, accuracy or timeliness of the Services or the truthfulness, accuracy, timeliness, completeness or correct sequencing of the Information, or for any decision made or action taken by Subscriber in reliance upon the Information or the Services, or for interruption or delay of any data, Information, or any other aspect of the Services. THE SUBSCRIPTION SERVICES ARE PROVIDED "AS IS." THERE IS NO WARRANTY OF MERCHANTABILITY, NO WARRANTY OF FITNESS FOR A PARTICULAR USE, AND NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE INFORMATION OR ANY ASPECT OF THE SERVICES (INCLUDING BUT NOT LIMITED TO INFORMATION ACCESS). SUBSCRIBER RECOGNIZES THAT THE ACCURACY OF THE INFORMATION SHOULD BE CHECKED BEFORE SUBSCRIBER RELIES ON IT.
- IN NO EVENT WILL DBC/BMI OR THE DATA PROVIDERS BE LIABLE TO SUBSCRIBER, SUBSCRIBER’S CUSTOMERS OR ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF THE USE OF THE SERVICES), OR CLAIMS ARISING IN TORT (INCLUDING NEGLIGENCE), EVEN IF DBC/BMI OR THE DATA PROVIDERS HAVE BEEN ADVISED OF OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING.
- Neither DBC/BMI nor the Data Providers shall be liable for any loss resulting from a cause over which such entities do not have direct control, including but not limited to the failure of electronic or mechanical equipment or communication lines, telephone or other interconnect problems, unauthorized access, theft, Subscriber errors, or the causes stated in Section 12 of this Agreement.
- Subscriber acknowledges and agrees that neither the Services nor any of the Information are intended to supply investment, financial, tax or legal advice. DBC/BMI offers no advice regarding the nature, potential value, or suitability or any particular security, transaction, investment or investment strategy. Subscriber acknowledges and agrees that the use of the Services and Information, and any decisions made in reliance upon the Services and Information, are made at Subscriber’s own risk.
Indemnification
Subscriber agrees to indemnify and hold DBC/BMI and the Data Providers harmless from and against any and all claims, losses, liability, costs and expenses (including but not limited to attorneys’ fees) arising from or relating to Subscriber’s use of the Information, Services or Equipment, and/or Subscriber’s violation of this Agreement or any third party’s rights, including but not limited to copyright, proprietary and privacy rights.
Modification and Termination of Service.
- Notwithstanding any provision in this Agreement, DBC/BMI reserves the right to terminate any Service, in full or in part, to Subscriber and/or to cancel this Agreement, in full or in part, at any time. Except in an event of Default (as defined and discussed below), and notwithstanding provisions in this Agreement to the contrary, upon termination, DBC/BMI shall refund to Subscriber any prepaid fees for which Subscriber has not received corresponding Services. The amount of such refund shall be pro-rated based upon the number of days of Services Subscriber has already received, assuming a thirty (30) day month. Other than for the refund of prepaid fees for Services not received, in the event of a termination by DBC/BMI, the Data Providers and DBC/BMI shall have no liability to Subscriber.
- Default. Subscriber shall be in default under the terms of this Agreement upon the occurrence of any of the following events:
- Subscriber fails to timely remit payment for any charge after the date on which it becomes past due.
- Any Data Provider revokes Subscriber’s right to receive the Information or directs DBC/BMI to discontinue Service to Subscriber.
- Subscriber fails to comply with any of the terms and conditions of this Agreement.
In an event of Default, DBC/BMI may terminate this Agreement and retain any prepaid subscription and other fees which Subscriber has paid to DBC/BMI; furthermore, DBC/BMI may seek any and all legal remedies available to DBC/BMI as a result of damages from Subscriber’s Default.
- Upon termination of this Agreement, all unpaid charges, if any, shall become immediately due and payable. Subscriber authorizes DBC/BMI to apply any unpaid Account balance to any active DBC/BMI Account held by Subscriber at DBC/BMI’s discretion.
- Termination by Subscriber. DBC/BMI shall continue to provide Subscriber’s Services from the date of activation through the effective date of termination, as discussed below. Pursuant to the notice requirements of this Section 10, Subscriber shall provide DBC/BMI with timely notice of termination. Notice of termination by Subscriber must be submitted to DBC/BMI in writing. Under no circumstances may any Service be terminated prior to the expiration of Subscriber’s then-current service.
- Notice Of Termination. - Signal Real-Time, QuoTrek
- If DBC receives notice of termination on any business day between the first (1st) day of the month and as of the last day of the month and the Next Statement Date, as shown on Subscriber’s Current DBC Statement, termination of Subscriber’s Services will be effective as of the sixteenth (16th) day of the month following the expiration of Subscriber’s current password.
- If DBC receives notice of termination on any business day between the first (1st) day of the month and the Next Statement Date, as shown on Subscriber’s current DBC Statement, termination of any delayed Services that are being subscribed to on a real-time Account will be effective on the sixteenth (16th) day of the month following the expiration of Subscriber’s current password.
- If DBC receives notice of termination on any business day after the Next Statement date as shown on Subscriber’s current DBC Statement, but before Subscriber receives the next statement, the cancellation will be effective as of the sixteenth (16th) day of the second month following notification.
- Upon termination by Subscriber, Subscriber’s deposit (if applicable) will be applied toward any outstanding balance. Any remaining balance must be paid within thirty (30) days of termination of Service. If no outstanding balance remains on Subscriber’s Account after termination, Subscriber’s deposit shall be refunded by DBC.
- Notice Of Termination - BMI Real-Time, BMI Delayed, Signal Delayed, EOD, Sports Products.
Subscriber’s Subscription for the BMI Real-time, BMI Delayed, Signal Delayed, EOD, and Sports Products shall be terminated as of the last day of the month in which notice of termination is received. Upon termination of Services, Subscriber’s deposit (if any) shall be applied toward any outstanding balance. Any remaining balance must be paid within thirty (30) days of the termination of Services. If no outstanding balance remains on Subscriber’s Account after termination, Subscriber’s deposit (if applicable) shall be refunded by DBC/BMI.
- Notice of Termination - Online Services. Marketwatch, StockEdge Online, Signal Online.
Subscriber may request cancellation of the Online Service at any time, but Service will continue, and Subscriber may be billed, until the next date that marks the monthly anniversary of the date that Subscriber began receiving the Online Service. Upon cancellation, any prepaid fees are nontransferable and nonrefundable.
- Partial Termination. If any of the Data Providers furnishing data discontinues transmission of data or ceases to furnish it in a manner which is compatible with DBC/BMI’s equipment, DBC/BMI may terminate as much of this Agreement as is affected by the discontinued data, without advance notice and without incurring any liability to Subscriber. Except in an event of Default, and notwithstanding provisions in this Agreement to the contrary, upon partial termination resulting from the actions of a Data Provider, DBC/BMI shall refund to Subscriber any prepaid fees for which Subscriber has not received corresponding Services. The amount of such refund shall be pro-rated based upon the number of days of Services Subscriber has already received, assuming a thirty (30) day month. Other than for the refund of prepaid fees for Services not received, in the event of partial termination, the Data Providers and DBC/BMI shall have no liability to Subscriber.
Data Providers Enforcement Right
Data Providers may enforce the Agreement against Subscriber by legal proceedings or other appropriate means.
Mailing List
Except for the Subscriber’s name and mailing address contained in a mailing list produced by DBC/BMI, DBC/BMI agrees not to sell to any third party information regarding Subscriber, Subscriber’s Account with DBC/BMI, or Subscriber’s use of Services. Subscriber must notify DBC/BMI in writing if he/she does not wish his/her name and address to be listed on said DBC/BMI mailing list. Subscriber agrees to notify DBC/BMI of any change to Subscriber’s billing address within thirty (30) days of such change.
Force Majeure
DBC/BMI’s performance under this Agreement shall be excused in the event of interruption and/or delay due to causes beyond its reasonable control such as acts of God, acts of any government, war or other hostility, civil disorder, the elements, fire, earthquake, explosion, power failures, equipment failure, industrial or labor dispute, acts of Data Providers, acts of third-party information providers, third-party software, or communication method interruption.
Entire Agreement
This Agreement between Subscriber and DBC/BMI embodies the entire understanding between the parties and supersedes any and all prior representations and agreements, oral or written.
Severability
Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, the validity and enforceability of the other provision shall not be affected thereby. Failure of any party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision. This Agreement shall be interpreted in accordance with the laws of the State of Utah. Subscriber acknowledges that, notwithstanding the use of Utah law for purposes of interpreting this Agreement, and, except with regard to Utah citizens or residents, no substantive right or remedy under Utah law, including the consumer protection laws of Utah, shall be available to Subscriber as a basis for any action, claim or other proceeding against DBC/BMI, and Subscriber hereby waives any such rights under Utah law. In any action arising under this Agreement, Subscriber consents to the jurisdiction and venue of the courts of Utah.
Assignment
This Agreement shall not be assignable by Subscriber, either in whole or in part. DBC/BMI reserves the right to assign its rights and obligations under this Agreement.
Survival
Sections 6 and 8 of this Agreement shall survive the termination of this Agreement and shall apply indefinitely.
Notices
Except as otherwise provided herein, all notices herein to be provided to DBC/BMI shall be provided in writing to: DBC/BMI, PO Box 5979, San Mateo, California 94402-0979, Attention: Client Services or, by email to the following addresses:
QuoTrek,SporTrax, and RaceTrax email: QuoTrek@dbc.com
Signal email: SigCS@dbc.com
BMI email: CSBMI@dbc.com
StockEdge Online email: SEOnline@dbc.com
Signal Online email: Sigonline@dbc.com
MarketWatch email: mwsupport@dbc.com
Modifications
No change or modification of this Agreement shall be valid unless made in writing and signed by both parties hereto.
THE VENDOR AND ITS AGENTS MAY NOT MODIFY OR
WAIVE ANY TERM OF THIS AGREEMENT. ANY ATTEMPT TO MODIFY THIS
AGREEMENT, EXCEPT BY NASDAQ, IS VOID.
The Nasdaq Stock Market, Inc. ("Nasdaq")
Consolidated Subscriber Agreement
- The word "Corporations" means The Nasdaq Stock
Market, Inc. and its affiliates. The word
"Information" means certain data and other
information: relating to securities or other financial
instruments, products, vehicles or devices; or relating
to Persons regulated by the Corporations or to activities
of the Corporations; or gathered by the Corporations from
other sources. The word "or" includes the word
"and". The phrase "Claims or Losses"
means any and all liabilities, obligations, losses,
damages, penalties, claims, actions, suits, costs,
judgments, settlements, and expenses of whatever nature,
whether incurred by or issued against an indemnified
party or a third party, including, without limitation,
(1) indirect, special, punitive, consequential or
incidental loss or damage, (including, but not limited
to, trading losses, loss of anticipated profits, loss by
reason of shutdown in operation or increased expenses of
operation, or other indirect loss or damage) and (2)
administrative costs, investigatory costs, litigation
costs, and auditors' and attorneys' and fees and
disbursements (including in-house personnel). The word
"Person" means any natural person,
proprietorship, corporation, partnership, or other entity
whatsoever. The phrase "Non-Professional
Subscriber" means any natural person who is neither:
(a) registered or qualified in any capacity with the SEC,
the Commodities Futures Trading Commission, any state
securities agency, any securities exchange or
association, or any commodities or futures contract
market or association; (b) engaged as an "investment
advisor" as that term is defined in Section 201 (11)
of the Investment Advisors Act of 1940 (whether or not
registered or qualified under that Act); nor, (c)
employed by a bank or other organization exempt from
registration under federal or state securities laws to
perform functions that would require registration or
qualification if such functions were performed for an
organization not so exempt. The phrase "Professional
Subscriber" means all other persons who do not meet
the definition of Non-Professional Subscriber. When it
appears alone, the word "Subscriber"
encompasses all Non-Professional and Professional
Subscribers. The phrase "Vendor's Service"
means the service from a vendor, including the data
processing equipment, software, and communications
facilities related thereto, for receiving, processing,
transmitting, using and disseminating the Information to
or by Subscriber.
- Subscriber is granted the right to receive from Nasdaq
the Information under the terms stated herein or in the
NASD Rules. "NASD Rules" shall mean all
applicable laws (including intellectual property,
communications, and securities laws), statutes, and
regulations, the rules and regulations of the SEC, the
rules and regulations of the Corporations including, but
not limited to, those requirements established by the
Corporations' rule filings (with such SEC approval as may
be required), the Corporations' decisions and
interpretations and any User Guides, or successors of the
components of the NASD Rules, as they may exist at the
time. If any payment is due directly to Nasdaq under this
Agreement, payment in full is due Nasdaq in immediately
available U.S. funds, within 30 days of date of invoice,
whether or not use is made of the Information. Interest
shall be due from the date of the invoice to the time
that the amount(s) that are due have been paid.
Subscriber shall assume full and complete responsibility
for the payment of any taxes, charges or assessments
imposed on Subscriber or Nasdaq (except for U.S. federal,
state, or local income taxes, if any, imposed on Nasdaq)
by any foreign or domestic national, state, provincial or
local governmental bodies, or subdivisions thereof, and
any penalties or interest, relating to the provision of
the Information to Subscriber.
- The Information is licensed only for the personal use of
the Non-Professional Subscriber and the internal use in
the business of the Professional Subscriber. By
representing to Vendor that Subscriber is a
non-professional, or by continuing to receive the
Information at a non-professional subscriber rate,
Subscriber is affirming to Vendor and the Corporations
that Subscriber meets the definition of Non-Professional
Subscriber as set forth in paragraph 1 above. Subscriber
will promptly give written notice to Vendor of any change
in the name or place of residence or place of business at
which the Information is received. Subscriber may not
sell, lease, furnish or otherwise permit or provide
access to the Information to any other Person or to any
other office, or place. Subscriber will not engage in the
operation of any illegal business; use or permit anyone
else to use the Information, or any part thereof, for any
illegal purpose; or violate any NASD Rule. Professional
Subscribers may, on a non-continuous basis, furnish
limited amounts of the Information to customers: in
written advertisements, correspondence, or other
literature; or during voice telephonic conversations not
entailing computerized voice, automated information
inquiry systems, or similar technologies. Subscriber may
not present the Information rendered in any unfair,
misleading, or discriminatory format. Subscriber shall
take reasonable security precautions to prevent
unauthorized Persons from gaining access to the
Information.
- Subscriber acknowledges that Nasdaq, in its sole
discretion, may from time to time make modifications to
its system or the Information. Such modifications may
require corresponding changes to be made in Vendor's
Service. Changes or the failure to make timely changes by
Vendor or Subscriber may sever or affect Subscriber's
access to or use of the Information. Nasdaq shall not be
responsible for such effects.
- Nasdaq grants to Subscriber a nonexclusive,
non-transferable license during the term of the Agreement
to receive and use the Information transmitted to it by
Vendor and thereafter to use such Information for any
purpose not inconsistent with the terms of the Agreement
or with the NASD Rules. Subscriber acknowledges and
agrees that the Corporations have proprietary rights in
the Information that originates on or derives from
markets regulated or operated by the Corporations and
compilation or other rights in Information gathered from
other sources. Subscriber further acknowledges and agrees
that the Corporations' third party Information providers
have exclusive proprietary rights in their respective
Information. In the event of any misappropriation or
misuse, Nasdaq or its third party information providers
shall have the right to obtain injunctive relief for its
respective materials. Subscriber will attribute source as
appropriate under all the circumstances.
- Subscriber acknowledges that Nasdaq, as a subsidiary of
NASD, when required to do so by NASD in fulfillment of
NASD's statutory obligations, may by notice to Vendor
unilaterally limit or terminate the right of any or all
Persons to receive or use the Information, and that
Vendor will immediately comply with any such notice and
will terminate or limit the furnishing of the Information
and confirm such compliance by notice to Nasdaq. Any
affected Person will have available to it such procedural
protections as are provided by the Exchange Act and
applicable rules thereunder. Neither Nasdaq nor NASD
shall have any liability when complying with such NASD
notice.
- Subscriber will maintain such accurate and verifiable
records regarding the use of the Information and
including the number and location of all devices that
receive the Information, as may be required, and will
make these records available for a period of 3 years in a
form acceptable to Nasdaq for inspection by Nasdaq's
auditors upon reasonable notice. Subscriber shall make
its premises available to Nasdaq for review of said
records and for physical inspection of Vendor's Service
and of Subscriber's use of the Information, all at
reasonable times, upon reasonable notice, to ensure
compliance with this Agreement.
- To the extent permitted by applicable law, Subscriber
acknowledges and agrees that the termination of the
Vendor's Service for failure to make payments shall not
be deemed or considered to be, and Subscriber waives any
right to represent or assert that any such exercise
constitutes, an act or omission or an improper denial or
limitation of access by Nasdaq to any service or facility
operated by Nasdaq as contemplated in Section 11A of the
Exchange Act, or any other provision of the Exchange Act,
or any rule, regulation, or interpretation adopted
thereunder.
- NASDAQ'S WARRANTIES/DISCLAIMER OF WARRANTIES.
Nasdaq shall endeavor to offer the Information as
promptly and accurately as is reasonably practicable. In
the event that the Information is not available as a
result of a failure by Nasdaq to peRFORM ITS OBLIGATIONS
UNDER THIS AGREEMENT, NASDAQ WILL ENDEAVOR, GIVING DUE
REGARD FOR THE COST, TIME, AND EFFECT ON OTHER USERS, TO
CORRECT ANY SUCH FAILURE. IN THE EVENT THAT THE
INFORMATION IS NOT AVAILABLE, IS DELAYED, IS INTERRUPTED,
IS INCOMPLETE, OR IS NOT ACCURATE OR IS OTHERWISE
MATERIALLY AFFECTED FOR A CONTINUOUS PERIOD OF FOUR (4)
HOURS OR MORE DURING THE TIME THAT NASDAQ REGULARLY
TRANSMITS THE INFORMATION DUE TO THE FAULT OF NASDAQ
(EXCEPT FOR A REASON PERMITTED IN THIS AGREEMENT OR IN
NASDAQ'S AGREEMENT WITH THE VENDOR), SUBSCRIBER'S OR ANY
OTHER PERSON'S EXCLUSIVE REMEDY AGAINST NASDAQ SHALL BE
(A) IF SUBSCRIBER OR ANY OTHER PERSON CONTINUES TO
RECEIVE THE INFORMATION OR ANY OTHER DATA AND/OR
INFORMATION OFFERED BY NASDAQ, A PRORATED MONTH'S CREDIT
OF ANY MONIES DUE, IF ANY, FOR THE AFFECTED INFORMATION
DIRECTLY TO NASDAQ FROM SUBSCRIBER, OR, IF APPLICABLE,
FROM SAID OTHER PERSON, FOR THE PERIOD AT ISSUE OR, (B)
IF SUBSCRIBER OR ANY OTHER PERSON NO LONGER RECEIVES
EITHER THE INFORMATION OR ANY OTHER DATA AND/OR
INFORMATION OFFERED BY NASDAQ, A PRORATED MONTH'S REFUND
OF ANY MONIES DUE FOR THE AFFECTED INFORMATION DIRECTLY
TO NASDAQ FROM SUBSCRIBER, OR, IF APPLICABLE, FROM SAID
OTHER PERSON, FOR THE PERIOD AT ISSUE. SUCH CREDIT OR
REFUND SHALL, IF APPLICABLE, BE REQUESTED BY WRITTEN
NOTICE TO NASDAQ WITH ALL PERTINENT DETAILS. BEYOND THE
WARRANTIES STATED IN THIS SECTION, THERE ARE NO OTHER
WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY
(INCLUDING, WITHOUT LIMITATION, TIMELINESS, TRUTHFULNESS,
SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM
INTERRUPTION), ANY IMPLIED WARRANTIES ARISING FROM TRADE
USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR
THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR USE OR PURPOSE.
- CORPORATIONS' LIMITATION OF LIABILITY.
- Except as may otherwise be set forth herein, the
Corporations shall not be liable to Subscriber,
its vendor or any other Person for indirect,
special, punITIVE, CONSEQUENTIAL, OR INCIDENTAL
LOSS OR DAMAGE (INCLUDING, BUT NOT LIMITED TO,
TRADING LOSSES, LOSS OF ANTICIPATED PROFITS, LOSS
BY REASON OF SHUTDOWN IN OPERATION OR INCREASED
EXPENSES OF OPERATION, COST OF COVER, OR OTHER
INDIRECT LOSS OR DAMAGE) OF ANY NATURE ARISING
FROM ANY CAUSE WHATSOEVER, EVEN IF THE
CORPORATIONS HAVE BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES.
- The Corporations shall not be liable to
Subscriber or any other Person for any
unavailability, intERRUPTION, DELAY,
INCOMPLETENESS, OR INACCURACY OF THE INFORMATION
THAT LASTS LESS THAN FOUR (4) CONTINUOUS HOURS
DURING THE TIME THAT NASDAQ REGULARLY TRANSMITS
THE INFORMATION OR IF THE INFORMATION IS
MATERIALLY AFFECTED FOR LESS THAN FOUR (4)
CONTINUOUS HOURS DURING THE TIME THAT NASDAQ
REGULARLY TRANSMITS THE INFORMATION.
- If any or all of the Corporations are for any
reason held liable to Subscriber or to any other
Person, whether in tort or in contract, the
liability of ALL OR ANY OF THE CORPORATIONS
WITHIN A SINGLE YEAR (FROM THE EFFECTIVE DATE OF
THE AGREEMENT) OF THE AGREEMENT, COMBINED WITH
THE TOTAL OF ALL CLAIMS OR LOSSES OF SUBSCRIBER'S
VENDOR, AND ANY OTHER PERSON CLAIMING THROUGH, ON
BEHALF OF, OR AS HARMED BY SUBSCRIBER, IS LIMITED
TO THE GREATER OF: (I) if Subscriber or any other
Person continues to receive the Information or
any other data and/or information offered by
Nasdaq, a prorated month's credit of any monies
due directly to Nasdaq FROM SUBSCRIBER, OR, IF
APPLICABLE, FROM ANY OTHER PERSON, FOR THE PERIOD
AT ISSUE OR, IF SUBSCRIBER OR ANY OTHER PER SON
NO LONGER RECEIVES EITHER THE INFORMATION OR ANY
OTHER DATA AND/OR INFORMATION OFFERED BY NASDAQ,
A REFUND OF ANY MONIES DUE DIRECTLY TO NASDAQ
FROM SUBSCRIBER, OR, IF APPLICABLE, FROM ANY
OTHER PERSON, FOR THE PERIOD AT ISSUE; OR (II)
$500.00.
- This section shall not relieve any or all of the
Corporations, Subscriber or any other PERSON FROM
LIABILITY FOR DAMAGES THAT RESULT FROM THEIR OWN
GROSS NEGLIGENCE OR WILLFUL TORTIOUS MISCONDUCT,
OR FROM PERSONAL INJURY OR WRONGFUL DEATH CLAIMS.
- Subscriber and the Corporations understand and
agree that the terms of this section reflect a
reasonable allocation of risk and limitation of
liability.
- THIRD PARTY INFORMATION PROVIDERS' DISCLAIMERS OF
WARRANTIES/LIMITATIONS OF LIABILITIES. NASDAQ'S THIRD
PARTY INFORMATION PROVIDERS MAKE NO WARRANTIES OF ANY
KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT
LIMITATION, TIMELINESS, TRUTHFULNESS, SEQUENCE,
COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION), ANY
IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF
DEALING, OR COURSE OF PERFORMANCE, OR THE IMPLIED
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
USE OR PURPOSE AND THEY SHALL HAVE NO LIABILITY FOR THE
ACCURACY OF, OR FOR DELAYS OR OMISSIONS IN, ANY OF THE
INFORMATION PROVIDED BY THEM. NASDAQ'S THIRD PARTY
INFORMATION PROVIDERS SHALL ALSO HAVE NO LIABILITY FOR
ANY DAMAGES, WHETHER DIRECT OR INDIRECT, WHETHER LOST
PROFITS, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES OF
THE SUBSCRIBER OR ANY OTHER PERSON SEEKING RELIEF THROUGH
SUBSCRIBER, EVEN IF THE THIRD PARTY INFORMATION PROVIDERS
HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN
NO EVENT WILL THE LIABILITY OF THE THIRD PARTY
INFORMATION PROVIDERS OR THEIR AFFILIATES TO SUBSCRIBER
OR ANY OTHER PERSON SEEKING RELIEF THROUGH SUBSCRIBER
PURSUANT TO ANY CAUSE OF ACTION, WHETHER IN CONTRACT,
TORT, OR OTHERWISE, EXCEED THE FEE PAID BY SUBSCRIBER OR
ANY OTHER PERSON SEEKING RELIEF THROUGH SUBSCRIBER, AS
APPLICABLE.
- Notwithstanding any other term or condition of this
Agreement, Nasdaq, its third party information providers
or Subscriber shall not be obligated to perform or
observe their respective obligations undertaken in this
Agreement (except for obligations to make payments
hereunder and regulatory obligations) if prevented or
hindered from doing so by any circumstances found to be
beyond their control.
- Subscriber will indemnify and hold harmless the
Corporations and their employees, officers, directors,
and other agents from any and all Claims or Losses
imposed on, incurred by or asserted as a result of or
relating to: (a) any noncompliance by Subscriber with the
terms and conditions hereof; (b) any third-party actions
related to Subscriber's receipt and use of the
Information, whether authorized or unauthorized under the
Agreement.
- Each party warrants and represents and will indemnify and
hold harmless (and in every case, Nasdaq shall be
permitted to solely defend and settle) another party
(including the Corporations) and their officers,
directors, employees, and other agents, against any
Claims or Losses arising from, involving, or relating to
a claim of infringement or other violation of an
intellectual property right by the indemnifying party,
its actions or omissions, equipment, or other property.
This right is conditioned on the indemnified party giving
prompt written notice to the indemnifying party (as does
not prejudice the defense) of the Claims or Losses and
providing cooperation in the defense of the Claims or
Losses (without waiver of attorney-client, work-product
or other legal privilege, or disclosure of information
legally required to be kept confidential).
- Subscriber agrees that Nasdaq may enforce the terms of
this Agreement against any Person, whether or not Vendor
or Subscriber is a party to any such action or against
Subscriber itself. In any action there shall be available
injunctive relief or damages, with the prevailing party
being awarded costs and attorneys' fees (including
in-house counsel).
- In the event of any conflict between the terms of this
Agreement and of the Vendor's agreement, the terms of
this Agreement shall prevail as between the Corporations
and Subscriber.
- In addition to terminations permitted under the Vendor's
agreement, this Agreement may be terminated by Subscriber
on 30 days written notice to Vendor and by the
Corporations on 30 days written notice either to Vendor
or Subscriber. Nasdaq may also alter any term of this
Agreement on 60 days written notice either to Vendor or
Subscriber, and any use after such date is deemed
acceptance of the new terms. In the event of Subscriber
breach, discovery of the untruth of any representation of
Subscriber, or where directed by NASD in its regulatory
authority, Nasdaq may terminate this Agreement on not
less than three (3) days written notice to Subscriber
provided either by Nasdaq or Vendor.
- Nasdaq does not endorse or approve any equipment, Vendor,
or Vendor's Service.
- Natural persons executing this Agreement warrant and
represent that they are at least eighteen (18) years of
age. Subscriber and the Person executing this Agreement
on behalf of Subscriber which is a proprietorship,
corporation, partnership or other entity, represent that
such Person is duly authorized by all necessary and
appropriate corporate or other action to execute the
Agreement on behalf of Subscriber.
- All notices, invoices, and other communications required
to be given in writing under this Agreement shall be
directed to: Trading & Market Services, The Nasdaq
Stock Market, Inc., 1735 K Street, N.W., Washington, D.C.
20006, Attn.: Manager, Trading and Market Services, or to
Subscriber at the last address known to the Vendor, and
shall be deemed to have been duly given upon actual
receipt by the parties, or upon constructive receipt if
sent by certified mail, postage pre-paid, return receipt
requested, at such address or to such other address as
any party hereto shall hereafter specify by written
notice to the other party or parties hereto.
- Except as otherwise provided herein, no provision of this
Agreement may be amended, modified, or waived, unless by
an instrument in writing executed by a duly authorized
signatory of the party against whom enforcement of such
amendment, modification, or waiver is sought. No failure
on the part of Nasdaq or Subscriber to exercise, no delay
in exercising, and no course of dealing with respect to
any right, power, or privilege under this Agreement shall
operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power, or privilege
preclude any other or further exercise thereof or the
exercise of any other right, power, or privilege under
this Agreement. If any of the provisions of this
Agreement, or application thereof to any Person or
circumstance, shall to any extent be held invalid or
unenforceable, the remainder of this Agreement, or the
application of such terms or provisions to Persons or
circumstances other than those as to which they are held
invalid or unenforceable, shall not be affected thereby
and each such term and provision of this Agreement shall
be valid and enforceable to the fullest extent permitted
by law.
- The terms of this Agreement apply to those obligations
that survive any cancellation, termination, or
rescission, namely, obligations relating to intellectual
property, indemnification, limitation of liability,
warranties, disclaimer of warranties, and Exchange Act
related provisions.
- This Agreement shall be deemed to have been made in the
United States in the District of Columbia and shall be
construed and enforced in accordance with, and the
validity and performance hereof shall be governed by, the
laws of the District of Columbia, without reference to
principles of conflicts of laws thereof. Subscriber
hereby consents to submit to the jurisdiction of the
courts of or for the District of Columbia in connection
with any action or proceeding instituted relating to this
Agreement.
UNIFORM SUBSCRIBER ADDENDUM
THIS ADDENDUM is entered into by and between the subscriber as
listed on the Service Subscription Agreement, and Data
Broadcasting Corporation and each of the following exchanges,
Chicago Mercantile Exchange, Chicago Board of Trade, New York
Mercantile Exchange, COMEX, and MidAm.
- DEFINITIONS.
- "Device" means any unit of equipment,
fixed or portable, that receives, accesses or
displays Market Data in visible, audible or other
comprehensible form.
- "Force Majeure Event" means any flood,
extraordinary weather conditions, earthquake or
other act of God, fire, war, insurrection, riot,
labor dispute, accident, action of government,
communications or power failures, or equipment or
software malfunctions.
- "Person" means any natural person,
proprietorship, corporation, partnership, limited
liability company or other organization.
- "Market Data" means information and
data pertaining to futures contracts and options
contracts traded on the Exchanges, that includes,
without limitation, opening and closing range
prices, high-low prices, settlement prices,
current bid and ask prices, last sale prices,
price limits, requests for quotations, estimated
and actual contract volume data, text messages
pertaining to market activity, contract
specifications, fast or late messages and, as
determined by each of the Exchanges, may include
information respecting exchange-for-physical
(EFP) transactions. With respect to Subscriber's
obligations under this Addendum, Market Data
includes information, data and materials that are
derived from the foregoing and that convey
information to Subscriber that is substantially
equivalent to Market Data.
- PROPRIETARY RIGHTS IN THE MARKET DATA.
- Subscriber acknowledges and agrees that each of
the Exchanges has exclusive and valuable property
rights in and to its own Market Data, that such
Market Data constitute valuable confidential
information, trade secrets and/or proprietary
rights of each of the Exchanges, not within the
public domain, that such Market Data shall remain
valuable confidential information, trade secrets
and/or proprietary rights of each of the
Exchanges at least until the Exchanges place
their respective Market Data in the public domain
or authorize placement of their respective Market
Data in the public domain, and that, but for this
Addendum, Subscriber would have no rights or
access to such Market Data. Whether or not a
particular Exchange has placed its Market Data in
the public domain or has authorized the placement
of its Market Data in the public domain shall be
determined according to the terms of such
Exchange's agreement with Vendor, which agreement
is described in Section 3(a).
- Subscriber acknowledges and agrees that
disclosure of any Market Data, or any breach or
threatened breach of any other covenants or
agreements contained herein, would cause
irreparable injury to each of the Exchanges for
which money damages would be an inadequate
remedy. Accordingly, Subscriber further
acknowledges and agrees that each of the
Exchanges shall be entitled to specific
performance and injunctive and other equitable
relief from the breach or threatened breach of
any provision, requirement or covenant of this
Addendum (including, without limitation, any
disclosure or threatened disclosure of Market
Data) in addition to and not in limitation of any
other legal or equitable remedies which may be
available.
- RECEIPT OF MARKET DATA BY SUBSCRIBER.
- Vendor and Subscriber have entered into an
agreement by which Vendor will, among other
things, provide Subscriber with Market Data.
Vendor has entered into agreements with each of
the Exchanges whereby Vendor has been granted the
right to receive Market Data and to retransmit
the same to Subscriber. This Addendum to the
agreement between Vendor and Subscriber sets
forth the terms and conditions upon which
Subscriber may receive and use Market Data.
Subscriber acknowledges that, notwithstanding
such agreement, each of the Exchanges may, in its
discretion, discontinue disseminating its own
Market Data or change or eliminate its own
transmission method, speed or signal
characteristics. In addition, Subscriber
acknowledges and agrees that the Exchanges
reserve the right to disapprove any Subscriber
and retains the right to direct Vendor to
terminate any Subscriber's receipt of Market Data
for any reason or no reason, in which event the
Exchanges shall so notify Vendor and Vendor shall
cease providing Market Data to Subscriber as soon
as practicable.
- (1) Except as provided in (2) below, Subscriber
will use Market Data only for its own internal
business activities and only at the offices and
locations and on the Devices designated by
Subscriber in writing to Vendor from
time-to-time. Subscriber agrees that it will not
communicate or otherwise furnish, or permit to be
communicated or otherwise furnished, the Market
Data, in any format, to any other party or any
office or location other than that designated
above, nor allow any other party to take,
directly or indirectly, any of the Market Data
from such offices or locations, and will adopt
and enforce any policy that is reasonable to
prevent the Market Data from being taken
therefrom. Subscriber will abide by any other
limitations on such use that any of the Exchanges
may specify. Subscriber will use its best efforts
to ensure that its partners, officers, directors,
employees and agents maintain sole control and
physical possession of, and sole access to,
Market Data received through Devices in
Subscriber's possession. (2) Notwithstanding (1)
above, Subscriber may, in the regular course of
its business, occasionally furnish, to each of
its customers, branch offices, and guaranteed
introducing brokers, in a quantity restricted to
that necessary to enable Subscriber to conduct
its business, a de minimis number of segments of
Market Data. Such redissemination must be
strictly limited to telephonic communications not
entailing the use of computerized voice
synthesization or any other technology and must
be strictly related to the trading activity of
Subscriber or any such recipients. Any such
recipients must be advised by Subscriber that
such segments are proprietary and confidential
information not to be disclosed or disseminated
to other persons or entities. Subscriber agrees
to make all reasonable efforts to ensure that
such recipients abide by the provisions of this
Addendum.
- In the event that Vendor has agreed to permit
Subscriber to receive, access or display Market
Data through means other than a Vendor-provided
Device, such as by means of: (i) the Internet,
any Intranet or any other type of network; (ii)
portable Devices (e.g., pocket pagers, personal
digital assistants, laptop computers, etc.); and
(iii) synthesized voice responses over
telephones, Subscriber will use its best efforts
to ensure that no other device, attachment or
apparatus is used which may allow third parties
not subject to Subscriber's reporting obligations
under Section 3(b) above to access the Market
Data.
- REPORTING.
Upon request, Subscriber agrees to furnish promptly to
Vendor any information or reports that may be required by
any of the Exchanges as applicable and that is reasonably
related to Subscriber's receipt of Market Data.
Subscriber further agrees to furnish promptly to Vendor
any additional information or reports that may be
required by the agreement between Vendor and Subscriber
referred to in Section 3(a) as it relates to Subscriber's
receipt of Market Data.
- RIGHT OF INSPECTION AND AUDIT.
During regular business hours, any Persons designated by
any Exchange may have access to Subscriber's offices or
locations in order to observe the use made of the Market
Data and to examine and inspect any Devices, attachments
or apparatuses, as well as any books and records required
to be maintained by Subscriber under Sections 3(b) and 4
in connection with its receipt and use of Market Data.
Subscriber will make prompt adjustment (including
interest thereon at the rate of 1% per month), through
Vendor, to compensate any Exchange that discovers an
under-reported use of the Market Data by Subscriber. In
addition, at the election of any such Exchange,
Subscriber will be liable for the reasonable costs of any
audit that reveals a discrepancy in such Exchange's favor
of five percent (5%) or more of the amount of fees
actually due such Exchange. Subscriber shall maintain the
records and books upon which it bases its reporting for
CME, CBOT or MID-AM Market Data for three (3) years
following the period to which the records relate.
Subscriber shall maintain the records and books upon
which it bases the reporting for NYMEX or COMEX Market
Data for six (6) years following the period to which the
records and books relate. In the event that Subscriber
fails to retain such records and books as required above,
Subscriber agrees to pay each Exchange's reasonable
estimate of any discrepancy discovered pursuant to any
such audit.
- EXCHANGE FEES.
Subscriber will pay Vendor (unless Vendor has assumed
Subscriber's payment obligations hereunder), for and on
behalf of each of the Exchanges (as applicable), for the
right to receive Market Data in accordance with the
then-current fee schedule published by each of the
Exchanges from time-to- time (including any and all
applicable federal, state or local taxes). Each
Exchange's fees are subject to modification by each of
them at any time, without prior notice to Subscriber. In
addition, Subscriber agrees to pay Vendor any penalties
assessed against Subscriber by Vendor on behalf of any
Exchange. Nothing herein shall limit a Vendor's
obligation pursuant to separate agreement between Vendor
and any of the Exchanges (as applicable) to pay Exchange
fees.
- COVENANTS, REPRESENTATIONS AND WARRANTIES OF
SUBSCRIBER.
Subscriber covenants, represents and warrants that it is
not engaged in the business of distributing Market Data
and that, to its knowledge after reasonable inquiry, it
is receiving the Market Data from a Vendor that is
authorized by the Exchanges to distribute the Market
Data. Subscriber agrees that it will not use or permit
any other Person to use Market Data for any illegal
purpose. Subscriber agrees that it will not use Market
Data in any way to compete with the Exchanges or Vendor,
nor use the Market Data in any way so as to assist or
allow a third party to compete with the Exchanges or
Vendor. Subscriber agrees that the provision of Market
Data by the Exchanges hereunder is conditioned upon
Subscriber's strict compliance with the terms of this
Addendum and that Vendor may, with or without notice and
with or without cause, forthwith discontinue said service
whenever in its judgment there has been any default or
breach by Subscriber of the provisions hereof, or
whenever directed to do so by any of the Exchanges.
- DISCLAIMER OF WARRANTIES.
SUBSCRIBER AGREES THAT NEITHER VENDOR NOR THE EXCHANGES
MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR
IMPLIED, WITH RESPECT TO THE MARKET DATA, OR THE
TRANSMISSION, TIMELINESS, ACCURACY OR COMPLETENESS
THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OR ANY WARRANTIES OF MERCHANTABILITY, QUALITY
OR FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY
STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING
OR USAGE OF TRADE.
- LIMITATIONS OF LIABILITY AND DAMAGES.
Subscriber agrees that: (i) the provision of Market Data
is made with equipment, communications devices, and/or
leased lines not owned or operated solely by Vendor or
the Exchanges; (ii) neither Vendor nor the Exchanges, nor
their respective members, directors, officers, employees
or agents, guarantees the sequence, accuracy or
completeness of the Market Data, nor shall any of them be
liable to Subscriber or any other Person for any delays,
inaccuracies, errors or omissions in Market Data, or in
the transmission thereof, or for any other damages
arising in connection with Subscriber's receipt or use of
Market Data, whether or not resulting from negligence on
their part, a Force Majeure Event or any other cause
beyond their reasonable control; and (iii) if the
foregoing disclaimer and limitation of liability should
be deemed invalid or ineffective by a court of competent
jurisdiction, neither Vendor nor the Exchanges, nor their
respective members, directors, officers, employees or
agents shall be liable for any of the foregoing beyond
the actual amount of loss or damage, or the sum of fifty
dollars ($50.00), whichever is less.
- TERM AND TERMINATION.
Subject to Subscriber's strict compliance with the
provisions of this Addendum, the provision of Market Data
by any of the Exchanges hereunder will continue in force
during the term of the agreement between Subscriber and
Vendor and any renewal term thereof. In addition, it is
understood that the provisions set forth in paragraphs
2(a) and 2(b) of this Addendum shall survive the
termination of this Addendum.
- INDEMNIFICATION.
Subscriber will indemnify and hold Vendor and the
Exchanges, and their respective members, directors,
officers, employees and agents harmless from and against
any and all claims arising out of or in connection with
this Addendum, including, without limitation, any
liability, loss or damages caused by any inaccuracy in or
omission from, Subscriber's failure to furnish or to
keep, or Subscriber's delay in furnishing or keeping, any
report or record required to be kept by Subscriber
hereunder.
- MISCELLANEOUS.
In case of any breach by Subscriber of its obligations
hereunder, each of the Exchanges will be considered to be
a third-party beneficiary of this Addendum and may bring
an action to enforce its terms directly against
Subscriber. Any action arising out of this Addendum
between the CME, CBOT or MID-AM and Subscriber shall be
governed and construed in accordance with the internal
laws (and not the law of conflicts) of the State of
Illinois. Any action arising out of this Addendum between
NYMEX or COMEX and Subscriber shall be governed and
construed in accordance with the internal laws (and not
the law of conflicts) of the State of New York.
Subscriber may not assign all or any part of this
Addendum without the prior written consent of the
Exchanges (as applicable). Neither Vendor nor Subscriber
may modify or amend the terms of this Addendum. In the
event of any conflict between the terms and conditions of
this Addendum and any other agreement relating to
Subscriber's receipt and use of Market Data, including,
without limitation, the agreement between Vendor and
Subscriber referred to in Section 3(a), the terms and
conditions of this Addendum will prevail. If, for any
reason, one or more provisions of this Addendum is held
invalid, the other provisions of the Agreement shall
remain in full force and effect.
OPTIONS PRICE REPORTING AUTHORITY
Nonprofessional Subscriber Application and
Agreement
(Last Sale and Quotation Information for Personal Nonbusiness Use
Only)
("Applicant") hereby applies to Data Broadcasting
Corporation ("Vendor") for approval as a
Nonprofessional Subscriber to receive for personal nonbusiness
use current options last sale information and current options
quotation information ("the information") published by
the Options Price Reporting Authority ("OPRA") pursuant
to a Plan declared effective by the Securities and Exchange
Commission. In reviewing and approving this Agreement, Vendor is
authorized to act on behalf of the OPRA participants, which are
those national securities exchanges and associations who, from
time to time, are parties to said Plan. Applicant acknowledges
that all representations and agreements made herein and all
payments made hereunder are for the benefit of the OPRA
participants.
For the purpose of this Agreement, Applicant hereby represents
and agrees that the Information provided by Applicant on the
Service Subscription Agreement is true and correct, and that said
information is provided at the address on the Service
Subscription Agreement.
- As condition of being approved as a Nonprofessional
Subscriber, Applicant represents and agrees that the
following statements are and will continue to be true for
so long as Applicant receives Information as a
Nonprofessional Subscriber:
- Applicant is making this Application and
Agreement in his or her own individual capacity
and not on behalf of a firm, corporation,
partnership, trust or association.
- Applicant shall use the information solely in
connection with his or her individual personal
investment activities and not in connection with
any trade or business activities.
- Applicant shall receive the information only at
the location and via the equipment identified in
Items 3 and 4 above, and shall not furnish the
Information to any other person.
- Applicant is not a securities broker-dealer,
investment advisor, futures commission merchant,
commodities introducing broker or commodity
trading advisor, member of a securities exchange
or association of futures contract market, or an
owner, partner, or associates person of any of
the foregoing.
- Applicant is not employed by a bank or an
insurance company or an affiliate of either to
perform functions related to securities or
commodity futures investment or trading activity.
- For the privilege of receiving the Information, Applicant
agrees to pay to Vendor for the Benefit of the OPRA
participants the OPRA Nonprofessional Subscriber Fee in
such amount and at such times as shall be established by
OPRA from time to time, plus any applicable federal,
state or local taxes. This Fee shall be in condition to
any changes imposed by Vendor, OPRA shall provide notice
to Vendor of any change in this Fee not less than 30 days
prior to the effectiveness of such change. Vendor shall
be responsible for notifying its Nonprofessional
Subscribers of all Fee changes.
- Applicant acknowledges that the Information is and shall
remain the property of the respective exchange or other
market on which a reported transaction took place or a
reported quotation was entered, and Applicant shall make
no use of the Information except in compliance with the
terms of the Application and Agreement.
- DISCLAIMER OF LIABILITY NEITHER OPRA NOR ANY OPRA
PARTICIPANTS GUARANTEES THE TIMELINESS, SEQUENCE,
ACCURACY OR COMPLETENESS OF ANY OF THE OPTIONS LAST SALE
PRICES, QUOTATION INFORMATION, OR OTHER MARKET
INFORMATION SUPPLIED TO APPLICANT HEREUNDER AND NEITHER
OPRA NOR ANY OPRA PARTICIPANT SHALL BE LIABLE IN ANY WAY
TO APPLICANT OR TO ANY OTHER PERSON, FOR ANY DELAYS,
INACCURACIES, ERRORS IN OR OMISSIONS OF, ANY OF THE
INFORMATION OR THE TRANSMISSION THEREOF, OR FOR ANY
DAMAGES ARISING THEREFROM OR OCCASIONED THEREBY OR BY
REASON OF NONPERFORMANCE OF INTERRUPTION OF ANY OF THE
OPTIONS LAST SALE PRICES, QUOTATION INFORMATION OR OTHER
MARKET INFORMATION SUPPLIED TO APPLICANT FOR ANY CAUSE
WHATEVER.
- Applicant's privilege of receiving the Information
hereunder may be terminated by Applicant or by Vendor
upon 30 days written notice from the terminating party to
the other party, and shall be terminated immediately at
any time that Vendor or OPRA determines that Applicant is
not in compliance with this Agreement or that any of the
Applicant's representations herein are not true. Upon a
determination by Vendor or OPRA that Applicant received
access to Information as a Nonprofessional Subscriber
during any period when Applicant did not meet the
qualifications for such access, within 30 days of receipt
of written notice of such determination Applicant shall
pay to OPRA's Professional Subscriber fee for the period
during which Applicant had access to the Information,
less Applicant's Nonprofessional Subscriber fees for such
period actually received by OPRA.
- Nothing herein shall be deemed to prevent or restrict any
OPRA Participant from discontinuing to furnish options
last sale information or quotation information for
dissemination nor to restrict OPRA from making such
changes in the speed of transmission, the characteristics
of the electrical signals representing the Information or
the manner of dissemination the same, as OPRA shall from
time to time determine to be appropriate; but in no event
of any such discontinuance or change, OPRA shall give
such notice thereof to Vendor as is reasonable under the
circumstances.
- Applicant agrees to inform Vendor promptly in writing at
its address set forth above of any changes in the
information provided herein and to furnish Vendor any
additional information requested by it in connection with
Applicant's receipt of the information.
NON-PROFESSIONAL APPLICATION AGREEMENT FOR
RECEIPT OF CANADIAN EXCHANGE GROUP MARKET DATA
PART 1: PROVISIONS OF GENERAL APPLICABILITY
- Definitions
- "Canadian Exchange Group" or
"CEG" shall mean the Montreal Exchange
(ME), The Toronto Stock Exchange (TSE) and the
Vancouver Stock Exchange (VSE). ME and VSE have
appointed TSE as agent for the purposes of
entering into this and other agreements necessary
for provision of Market Data to Subscriber on its
and their behalf, and to establish the terms and
conditions under which Market Data is to be made
available to Subscriber. For the purposes of this
Agreement, "Canadian Exchange Group" or
"CEG" shall refer to the exchanges
comprising the Canadian Exchange Group jointly
and severally.
- "Interrogation Device" means any device
or equipment, including, without limitation, any
computer, data processing equipment,
communications equipment, terminal, Cathode Ray
Tube ("CRT") or a monitor, which is
authorized by the TSE to receive the Market Data
from a Supplier or which does in fact receive the
information from a Supplier, and which at any
time during any month either (i) displays,
transmits or communicates the Market Data to any
individual in visible, audible, or other
comprehensible form or (ii) uses or processes the
Market Data for any purpose or in any manner
other than solely to transmit the information to
devices as described in the preceding clause (i).
The term "Interrogation Device" means
any device or equipment which is capable of being
used as an "Interrogation Device".
- "Market Data" shall mean a bundled
transmission of electronic signals emanating from
the TSE containing trading information with
respect to securities traded on the TSE.
- "Non-Professional" shall mean a natural
person who is not a securities professional. It
is a natural person in their personal capacity as
neither a principal, officer, partner, employee
nor agent of any business nor on behalf of any
individual. This definition excludes, brokers,
dealers, investment advisors or persons otherwise
employed by organizations conducting professional
activities involving the buying and selling of
instruments, such as, stocks, bonds, options,
futures contracts and other trading vehicles.
Also excluded are persons engaged as consultants,
independent contractors, software developers and
others that use market information for any
purpose for profit other than the trading of that
person's personal account.
- A Non-Professional cannot be registered or
qualified with:
- A provincial Securities Commission;
- Securities Exchange Commission;
- Commodities Futures Trading Commission;
- Any provincial, state or other government
securities agency;
- Any securities exchange or association;
- Any commodities or futures contract
market or association or perform
functions that are the equivalent to
those of such persons.
- "Person" includes any natural person or
proprietorship or any corporation, partnership or
other organization.
- "Receipt of Market Data" shall mean the
physical capability whether used or not of
successfully retrieving Market Data through the
means of an Interrogation Device.
- Proprietary Interest of CEG
Subscriber understands and acknowledges that CEG has a
proprietary interest in the Market Data and that the same
is not within the public domain. Any Market Data that is
provided directly or indirectly to Subscriber by the CEG
pursuant to this Agreement, has been derived from
databases owned by the CEG, is copyrighted by the CEG,
and as such Subscriber's use of such Market Data is
subject to the limitations set out in this Agreement.
- Data Security
- Retransmission Prohibited - Subscriber
shall use Market Data only for its own individual
use. Subscriber shall not furnish Market Data to
any other person nor retransmit Market Data among
its premises without prior written approval from
the CEG.
- Equipment Security - Subscriber
understands that this paragraph 3 requires
Subscriber to carefully locate and protect
Interrogation Devices in Subscriber's possession.
Subscriber shall abide by any written
requirements that the CEG specifies to regulate
the location or connection of Subscriber
Interrogation Devices or to otherwise assure
compliance with this paragraph 3. Subscriber
guarantees that any person installing or
maintaining Subscriber Interrogation Devices will
comply with this paragraph 3.
- Data Not Guaranteed
- NO WARRANTIES - THE SUBSCRIBER AGREES THAT THE
CEG MAKES NO REPRESENTATION OR WARRANTY, EXPRESS
OR IMPLIED, WITH RESPECT TO THE MARKET DATA; ITS
TRANSMISSION, TIMELINESS, ACCURACY OR
COMPLETENESS, INCLUDING, BUT NOT LIMITED TO,
IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, QUALITY AND FITNESS FOR A
PARTICULAR PURPOSE AND THOSE ARISING BY STATUTE
OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING
OR USAGE OF TRADE.
- No Guaranty - The CEG does not guarantee
the timeliness, sequence, accuracy or
completeness of Market Data or other market
information or messages disseminated by the CEG.
The CEG will not be liable in any way to
Subscriber or to any other Person for;
- any inaccuracy, error or delay in, or
omission of, (i) any such data,
information or message or (ii) the
transmission or delivery of any such
data, information or message, or
- any loss or damage arising from or
occasioned by (i) any such inaccuracy,
error, delay or omission (ii)
non-performance, or (iii) interruption in
any such data, information or message,
due either to any negligent act or
omission by the CEG or "force
majeure" (i.e. flood, extraordinary
weather conditions, earthquake or any
other act of God, fire, war,
insurrection, riot, labour dispute,
accident, action of government,
communications or power failure,
equipment or software malfunction) or any
other cause beyond the reasonable control
of the CEG.
- Dissemination Discontinuance or Modification
The CEG may discontinue disseminating any type of Market
Data, may change or eliminate any transmission method and
may change transmission speed or signal characteristics.
The CEG shall not be liable for any resulting liability,
loss or damages to Subscriber.
- Entire Agreement; Modifications
This writing contains the entire Agreement between the
parties in respect of its subject matter. This Agreement
supersedes each previous Agreement between Subscriber and
the CEG pursuant to which Subscriber has been receiving
Market Data. In the event that Subscriber has previously
submitted an executed agreement to the CEG in respect of
the Receipt of Market Data from a Supplier other than
indicated herein, and Subscriber is continuing to receive
Market Data from the original Supplier, this agreement
shall serve as a companion agreement originally submitted
to the CEG. The parties may only modify this Agreement by
a writing signed by or on behalf of each of them.
- Assignments
Subscriber may not assign all or part of this Agreement
without the written consent of the CEG.
- Governing Law; Construction
This Agreement shall be governed and interpreted by the
laws of the Province of Ontario, Canada. In prohibiting
Subscribers in doing any act, this Agreement also
prohibits Subscriber from doing the act indirectly (eg.
by causing or permitting any other Person to do the act).
- Notices; Notification of Changes
Subscriber shall send communications relating to this
Agreement to: The Canadian Exchange Group
c/o The Toronto Stock Exchange
The Exchange Tower
2 First Canadian Place
Toronto, ON
M5X 1J2
ATTENTION: INFORMATION PRODUCTS
Subscriber and the CEG may each change its address by
written notice to the other. Subscriber shall give the
CEG prompt written notice of any change in (a) the
Subscriber information listed herein, (b) any other
information provided to the CEG in connection with the
receipt of any type of Market Data.
- Indemnification
The Subscriber shall indemnify and hold harmless and
defend the CEG, its members, governors, managers,
officers, employees and agents from and against any and
all suits, proceedings at law or in equity, and any and
all liability, loss or damage, including reasonable
solicitor's fees, arising out of or in connection with
any claim made by any person, firm or corporation in
respect of delays in providing, errors in or omissions
from the Market Data, or the transmission or delivery
thereof, or the termination of, or the failure to supply
any of the Market Data to a Supplier.
- Subscriber's Representations and Warranties
Subscriber represents and warrants that it is a
Non-Professional, as defined herein.
- Failure to Qualify
- Determination - Subscriber understands
that the CEG may determine at any time that, for
any of the following reasons, Subscriber does not
qualify as a Non-Professional subscriber:
- Supplier made an erroneous initial
determination regarding Subscriber's
qualification.
- Supplier discovered a misrepresentation
herein,
- Subscriber failed to furnish all material
information, or
- Subscriber failed to update information
contained herein.
- Subscriber understands that following such a
determination he/she may continue to receive
Market Data only after entering into one or more
appropriate agreements with the CEG. CEG may deny
Subscriber the opportunity to enter into such
agreement(s) if his/her failure to qualify
results from willful misrepresentations or
omissions or from willful breach of this
Agreement.
- RETROACTIVE PAYMENT - In the event that
such a determination is based upon any of clauses
(ii) through (iv) of Paragraph 15(a), CEG may
notify Subscriber in writing (i) of such
determination, (ii) of the period, as determined
by CEG, during which Subscriber received Market
Data but did not qualify as a Non-Professional
Subscriber and (iii) of the amount, calculated at
Professional Subscriber rates, applicable to such
period. Within thirty (30) days of receipt of
such notice, Subscriber shall pay such amount to
CEG.
Dow Jones Financial News Services
Dow Jones News Service®
NON-PROFESSIONAL SUBSCRIBER AGREEMENT®
THIS AGREEMENT between the undersigned individual
("Subscriber") and DOW JONES & COMPANY, INC.
("Dow Jones"), sets forth the terms pursuant to which
Subscriber shall subscribe to the Dow Jones News Service® (the
"DJ Service") through Data Broadcasting Corporation's
("DBC") market data distribution system.
- Subscription; DJ Service Formats.
Subscriber hereby subscribes to the DJ Service upon the
terms set forth herein. the DJ Service is available only
in the Scrolling Headlines Format, a continuous,
real-time, online printing of all headlines contained in
the DJ Service.
- Fees.
Subscriber agrees to pay to DBC in advance monthly
subscription fees in accordance with Dow Jones'
then-current rates for Non-Professional Subscribers, plus
applicable sales or similar taxes and applicable stock
exchange or similar fees, based on the number of Display
Devices on which Subscriber displays or accesses the DJ
Service.
- Copyright; Use Restrictions.
Subscriber agrees that the DJ Service is the property of
Dow Jones and is protected by copyright. Subscriber
agrees that he or she shall use the DJ Service for his or
her personal, noncommercial use only. Subscriber shall
not copy, reproduce, retransmit, disseminate, sell,
distribute, publish, broadcast or circulate the DJ
Service in whole or part to anyone without the express
prior written consent of Dow Jones.
- Subscriber Representation.
Subscriber represents and warrants that he or she is
entering into this Agreement in his or her individual
capacity and not on the behalf of a firm, corporation,
partnership, trust or association; that Subscriber shall
use the information contained in the DJ Service solely in
connection with his or her own personal investment
activities and not in connection with any trade or
business activities; that Subscriber shall receive the DJ
Service only at the location identified below; that
Subscriber is not a registered securities broker-dealer,
registered representative, investment advisor, futures
commission merchant, commodities introducing broker or
commodity trading advisor, member of the Securities
Exchange or Association or Futures Contract market, or
any owner, partner or associated person of the foregoing;
and Subscriber is not employed by a bank or an insurance
company or an affiliate of either to perform functions
related to securities or commodities futures investment
or trading activity.
- Disclaimer.
SUBSCRIBER AGREES THAT NEITHER DOW JONES NOR ANY OF ITS
DISTRIBUTORS, AFFILIATES, AGENTS OR LICENSORS WARRANT THE
ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE OF THE DJ SERVICE. IN NO
EVENT WILL DOW JONES OR ANY OF ITS DISTRIBUTORS,
AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY LOSS,
INCLUDING CONSEQUENTIAL, SPECIAL, OR SIMILAR DAMAGES,
RESULTING DIRECTLY OR INDIRECTLY FROM SUBSCRIBER'S USE OF
THE DJ SERVICE OR FROM ANY DECISION MADE OR ACTION TAKEN
BY SUBSCRIBER OR ANY THIRD PARTY IN RELIANCE UPON
INFORMATION CONTAINED IN THE DJ SERVICE, EVEN IF ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE
LIABILITY OF DOW JONES, ITS DISTRIBUTORS, AFFILIATES,
AGENTS AND LICENSORS ARISING OUT OF ANY CLAIM RELATED TO
THIS AGREEMENT EXCEED THE AGGREGATE AMOUNT PAID BY
SUBSCRIBER HEREUNDER IN THE 12 MONTHS IMMEDIATELY
PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
- Term; Termination.
The term of this Agreement shall commence effective the
date DBC activates the DJ Service feed to Subscriber and
shall continue until Subscriber sends DBC at least thirty
(30) days prior written notice of termination and the DJ
Service will terminate effective the last day of the
month following the month in which such notice is
received by DBC. Dow Jones may, by written notice to
Subscriber at least 30 days before the effectiveness
thereof, change the rates applicable to the DJ Service,
provided that Subscriber may terminate this Agreement as
of the effective date of any such increase by written
notice to DBC in advance of such date.
- Miscellaneous.
Neither party shall be liable to the other for any delay
or failure of performance of any of its obligations
hereunder (other than the payment of money) for reasons
beyond the reasonable control of such party. this
Agreement may not be amended except by written instrument
executed by both parties. Neither this Agreement nor any
obligations or duties hereunder may be assigned or
delegated by either party. This Agreement shall not be
contravened by any terms contained in any purchase order,
confirmation or acknowledgment signed by the parties
hereto, and no modification or amendment of this
Agreement shall be deemed effected by any purchase order,
confirmation or acknowledgment containing other or
different terms. Should any such purchase order,
confirmation or acknowledgment contain additional or
different terms, those terms shall be considered
proposals by Subscriber which are hereby rejected. This
Agreement contains the entire understanding of the
parties and supersedes all previous oral and written
agreements on the subject hereof. This Agreement will be
governed by, and construed in accordance with, the laws
of the State of New York.
CLICK HERE IF YOU HAVE READ, PRINTED, AND AGREE TO THE ABOVE TERMS AND CONDITIONS.