Black Diamond makes available its services and related technology under an agreement with its customer (the "Customer Agreement") and, pursuant to such Customer Agreement and subject to these Terms, may make available certain of those services and technology to you. You acknowledge and agree that the Customer Agreement is solely for the benefit of Black Diamond and its customer and that neither you nor any investor, advisor, or other person or entity, is a beneficiary, intended or otherwise, of the Customer Agreement.
By clicking the "Accept" button or accessing or using Black DiamondÃ¢Â€Â™s then-current version of the proprietary application located at bdreporting.com (or such other internet address as Black Diamond may designate from time-to-time)(the "Application") in any way, including without limitation, using any information, and/or submitting any content or personal information via the Application, you agree to and are bound by the terms, conditions, policies and notices contained in these Terms, including without limitation conducting this transaction electronically, third party terms and conditions, disclaimers of warranties, damage and remedy exclusions and limitations, and the choice of Florida law, without regard to its conflicts of laws principles. Black Diamond may modify these Terms from time to time and may notify you of such modifications by any reasonable means, including by posting the revised Terms on the Application. Any such modification will not apply to any dispute between you and us arising prior to the date on which we posted the revised Terms incorporating such modifications, or otherwise notified you of such changes. Please review the "Last Updated" legend at the top of these Terms to see when these Terms were last revised. Updates that are (i) required by law, government authorities or regulatory bodies, (ii) required by vendors, or (iii) do not materially impact your use of the Application will apply immediately. All other changes to these Terms will become effective three (3) business days after the revised Terms have been posted on the Application. Your continued access to or use of the Application following these changes means that you accept the revised Terms.
If you do not want to agree to these Terms, you should click the "Decline" button and immediately cease your access and use of the Application and the bd3.bdreporting.com website.
In exchange for your agreement to these Terms, Black Diamond grants you a limited, non-exclusive, non-transferable, revocable license, without right of sublicense, to use the Application solely in the United States and solely for your own personal, non-commercial, informational purposes, subject to the terms of any applicable agreement between you and Black Diamond. You agree that you shall only use the Application in a manner that complies with all applicable laws in the jurisdictions in which you use the Application, including, but not limited to, applicable restrictions concerning privacy, copyright and other intellectual property rights. As used herein the term Application also means interactive tools, quotes, products and services, research reports, and data concerning financial markets, securities and other subjects, some of which is supplied by companies that are not affiliated with any Black Diamond entity ("Third Party Content"). You acknowledge that information, materials, products, software and/or Third Party Content made available on the Application are subject to change at any time and without notice. You also acknowledge that Black Diamond may from time-to-time add or remove beta or other features within the Application without notice, and the use of or access to any added feature shall be governed by these Terms, provided that the use of any beta feature is at your own risk, if and for so long as available. All beta features are provided on an "AS IS" basis, and Black Diamond makes no warranties and disclaims all liability, direct or indirect, with respect to any and all such beta features.
Under these Terms, you may not and you may not allow others to:
- Transfer your license to use the Application or sublicense or assign your license or your rights under it;
- Use, download, copy, or transfer the Application or parts of the Application except as expressly permitted under these Terms;
- Distribute, rent, sell, loan, lease, sublicense or otherwise deal in the Application and/or any elements of the Application;
- Alter, adapt, merge, modify, translate, or create derivative works of the Application or any elements of the Application in any way, or for any purpose, other than with the prior written consent of Black Diamond;
- Reverse engineer, disassemble, or de-compile the Application or otherwise attempt to obtain or perceive the source code for the Application;
- Remove, change, or obscure any identification marks or notices of proprietary rights and restrictions in the Application or any elements of the Application;
- Enable any timesharing or service bureau use of the Application to or on behalf of any third party;
- Use the Application in any manner that could damage, disable, overburden or impair any Black Diamond network or server or for any unlawful or unauthorized purpose;
- Attempt to gain unauthorized access to other accounts, computer systems or networks connected to any Black Diamond server or to any of the Application through hacking, password mining or any other means;
- "hack", "crack" or "attack" the Application or any firewall, security mechanism, or digital rights management system within or relating to the Application, including, without limitation, websites or servers;
- Attempt to obtain or obtain any materials or information through any means not intentionally made available through the Application;
- perform, or release the results of, benchmark tests or other comparisons of the Application with other services;
- Use the Application in a way that is illegal or otherwise harmful, including, without limitation, in a manner that might be libelous or defamatory or otherwise malicious, or harmful to any person or entity, or discriminatory based on race, sex, religion, nationality, disability, sexual orientation, age, or otherwise objectionable, or
- Redistribute, copy, reproduce or disseminate to any person any information or content, including without limitation the Third Party Content, without Black DiamondÃ¢Â€Â™s prior written consent.
You authorize and grant (and you have obtained any necessary third party rights, consents, waivers, and/or approvals and provided any required notices to make such authorization and grant) to Black Diamond and its vendors the royalty-free right to collect, process, create, receive, store, access, track, aggregate, audit, reproduce, transmit, transfer, distribute, display, convert and/or otherwise use your (i) data for the purposes contemplated by these Terms and the Application; (ii) Usage Data and Relationship Data (as such terms are defined below) to deliver, monitor and manage services, provide support, improve service offerings, offer other services, for internal analysis purposes, and as otherwise contemplated by the Black Diamond Data Use Statement available at bdreporting.com; and (iii) Aggregate Data for any purpose. You agree that Black Diamond and its vendors may use your data, Usage Data, and Relationship Data to generate Aggregate Data, provided that any Aggregate Data that identifies you shall be used solely to deliver and manage services, provide support, improve service offerings, offer other services, for internal analysis purposes, and as otherwise contemplated by the Black Diamond Data Use Statement. "Usage Data" means information about you and your usage of the Application, such as access and usage data (including without limitation userÃ¢Â€Â™s IP address, time stamps, clickstream information, and details of activity on the Application), system performance data, and other information related to software and hardware used by you. "Relationship Data" means information that Black Diamond collects during the registration, activation and maintenance of your account. Such information may include, without limitation, your name and contact details or names and contact details of your users involved in maintaining or using the Application. "Aggregate Data" means any data that has been aggregated in a manner that does not contain any personal identifiable information.
You shall be solely responsible for the accuracy, completeness, timeliness, quality, integrity, backup, archives, legality, reliability and appropriateness of data you submit through the Application.
You are solely responsible for maintaining compatible mobile and other devices used to access the Application, and any Internet and network access, and all charges related thereto. You shall select, protect, and maintain a user name and password in accordance with Black DiamondÃ¢Â€Â™s instructions and published procedures. You will at all times be responsible for maintaining the security of, and any access to or use of, your user name and password. You accept and acknowledge that you will be responsible for all activities that occur under your user name, including dealings with third parties that take place through the Application, and you will hold Black Diamond harmless from any claims related to such activities. You shall promptly notify Black Diamond of any loss, theft or unauthorized use of your password of which you become aware. Black Diamond and its vendors shall not be responsible or liable for the deletion, destruction, damage, loss or failure to store any data uploaded or submitted to the Application.
None of the information contained in the Application is to be construed as investing advice, nor should it be used by others in connection with any sale, offer for sale or solicitation of an offer to buy securities or any other instruments. The materials and information present though the Application is for informational purposes only, and is not an offer or recommendation to buy or sell or a solicitation of an offer to buy or sell any security or instrument or to participate in any particular trading strategy. Black Diamond provides you with access to a variety of resources, including information, content, tools, products and services. You are solely responsible for determining whether any investment, investment strategy, security or related transaction is appropriate for you and/or your clients based on your clientsÃ¢Â€Â™ personal investment objectives, financial circumstances and risk tolerance. You should consult your financial, legal or tax professional regarding your specific situation.
Black Diamond is not acting as a fiduciary or endorsing any company, products, services or securities by publishing any information contained on this Application. We do not warrant or guarantee the accuracy or timeliness of any such information or data and disclaim all liability for investment or other decisions based upon this information. Black Diamond specifically disclaims any and all liability or loss arising out of any action taken in reliance on this information, including but not limited to market value loss on the sale or purchase of securities or other instruments or obligations
Third Party Content is available through framed areas, through hyperlinks to third party websites, or is published or provided through the Application. The Third Party Content is protected by copyright pursuant to United States laws and international treaties, is owned or licensed by the Third Party Content provider(s) credited, are subject to supplemental third-party terms set forth at the end of these Terms (See Supplemental Terms) and, for certain Third Party Content, are subject to additional terms between you and such Third Party Content providers as set forth through framed areas, hyperlinks, or otherwise through the Application ("Additional Third Party Terms"). You acknowledge and agree that the Third Party Content licensed to Black Diamond is subject to automatic termination, in whole or in part, without liability on the part of Black Diamond upon the discontinuation or termination of the provision thereof to Black Diamond.
You acknowledge and agree that these Terms only govern your relationship with Black Diamond and unless expressly set forth herein do not affect your legal relationship with such Third Party Content providers. You bear all risk associated with use of or reliance upon Third Party Content.
You agree that any information you provide to Black Diamond in connection with your use and access of the Application and the bd3.bdreporting.com website shall be governed by Black DiamondÃ¢Â€Â™s Data Use Statement located at bdreporting.com (or such other internet address as Black Diamond may designate from time-to-time), which is incorporated into these Terms by reference. Any information you provide to Third Party Content providers, including but not limited to any credentials you use to log into portals at your financial institutions, shall be governed by the applicable Additional Third Party Terms.
By virtue of these Terms, either party may have access to Confidential Information, which is defined herein as including without limitation the Website, Application and any Modifications thereto, Third Party Content, client account information, and proprietary information of Black Diamond that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Except as expressly permitted herein, you may not allow access to, use or disclosure of, Black DiamondÃ¢Â€Â™s, its affiliatesÃ¢Â€Â™ or their suppliersÃ¢Â€Â™ Confidential Information to third parties. You hereby authorize Black Diamond to provide your data to (i) third party partners, vendors, custodians, and agents engaged and/or used by Black Diamond; and (ii) affiliates of Black Diamond to perform the services contemplated hereunder.
Black Diamond will maintain physical, electronic and procedural safeguards reasonably designed to: ensure the security and confidentiality of client account information stored in the Application and protect against anticipated threats or hazards to or unauthorized access to or use of such account information.
Your rights to use and access the Application may be suspended or terminated automatically, without notice or refund, if you fail to comply with any of these Terms or those of the Agreement (as defined in Section 17), including without limitation the failure to pay any amount due to Black Diamond under the Agreement. Furthermore, notwithstanding anything to the contrary herein or in the Agreement, if applicable, you agree that Black Diamond may (without limiting any other rights or remedies available to Black Diamond) immediately and without notice to you, access, disable or remove data, halt internet traffic or communications to or from all servers or workstations containing data or to any service, or take any other actions that Black Diamond determines, in its sole discretion, may be necessary: (i) to respond to an actual or suspected security threat or to limit a partyÃ¢Â€Â™s potential exposure as a result of a security threat; (ii) to respond to service or technical problems or as requested by you; (iii) to comply with applicable laws and/or requests from government authorities and regulatory bodies, or where your use of the Application causes Black Diamond to be in violation or potential violation of laws, regulations or government or regulatory body requirements; or (iv) to respond to actual or suspected fraudulent or other illegal activity or to prevent actions that may compromise the integrity, performance or security of the Application or any Black Diamond service. These Terms also will terminate automatically and your access to the Application will be terminated without notice if you become bankrupt, go into liquidation, suffer or make any winding up petition, make an arrangement with your creditors, have an administrator, administrative receiver or other receiver appointed, or if you suffer or file any similar action in consequence of debt. In the event these Terms are terminated, Sections 1, 2, 4 and 6-18 shall survive
BLACK DIAMOND AND ITS LICENSORS AND SUPPLIERS ARE PROVIDING THE APPLICATION TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND. BLACK DIAMOND AND BLACK DIAMONDÃ¢Â€Â™S LICENSORS AND SUPPLIERS MAKE NO WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY REGARDING OR RELATING TO THE APPLICATION PROVIDED TO YOU UNDER THESE TERMS. BLACK DIAMOND EXPRESSLY AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, RESULTS, WORKMANLIKE EFFORT, COURSE OF DEALING, TITLE, NONINFRINGEMENT, ACCURACY, TIMELINESS OR COMPLETENESS OF THE APPLICATION AND WITH RESPECT TO THE USE OF THE APPLICATIONOR THAT DEFECTS, IF ANY, APPLICATION WILL BE CORRECTED.
No employee, agent, representative, or affiliate of Black Diamond has authority to bind Black Diamond to any oral representations or warranty concerning the Application. Any written representation or warranty made by an employee, agent, representative, or affiliate of Black Diamond that is not contained in these Terms will not be enforceable.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, BLACK DIAMOND AND ITS SUPPLIERS AND LICENSORS SHALL NOT BE LIABLE, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY OF THE FOLLOWING, HOWEVER CAUSED AND WHETHER ARISING UNDER CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE: LOSS OF BUSINESS, LOSS OF REPUTATION, LOSS OF PROFITS OR GOODWILL, LOSS OF USE, LOSS OR DAMAGE TO OR CORRUPTION OF DATA, THE UNAUTHORIZED DISCLOSURE OF SENSITIVE, VALUABLE, OR CONFIDENTIAL INFORMATION, ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES ARISING FROM THE APPLICATION, THE THIRD PARTY CONTENT OR YOUR USE OF THE APPLICATION OR THIRD PARTY CONTENT, AND/OR ANY COSTS OF PROCURING SUBSTITUTE GOODS, APPLICATION, TECHNOLOGY, OR RIGHTS. THIS LIMITATION SHALL APPLY EVEN IF A PARTY HAS BEEN ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH DAMAGES, IN EITHER CASE CAUSED BY, RESULTING FROM OR RELATING TO THE USE OF OR INABILITY TO USE THE APPLICATION.
YOU ACKNOWLEDGE AND AGREE THAT THE COMMERCIAL AND ECONOMIC TERMS UPON WHICH BLACK DIAMOND AGREES TO LICENSE THE APPLICATION HAVE BEEN CONDITIONED TO A SUBSTANTIAL EXTENT BY THE ABILITY OF BLACK DIAMOND TO MAKE AND ENJOY THE FULL PROTECTION OF THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN THESE TERMS AND YOU AGREE, REPRESENT AND CONFIRM THAT THE CONTENTS OF SECTIONS 6 AND 7 ARE FAIR AND REASONABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. IF ANY EXCLUSION, DISCLAIMER OR OTHER PROVISION CONTAINED IN THESE TERMS IS HELD TO BE INVALID FOR ANY REASON BY A COURT OF COMPETENT JURISDICTION AND BLACK DIAMOND OR ITS LICENSORS OR SUPPLIERS BECOME LIABLE FOR LOSS OR DAMAGE THAT COULD OTHERWISE BE LIMITED, SUCH LIABILITY WHETHER IN CONTRACT, TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT ACTUALLY PAID BY YOU FOR THE APPLICATION OR $1,000.00, WHICHEVER IS LESS.
The Application is owned exclusively by Black Diamond and/or its licensors. All rights, title and interest in and to the Application, including without limitation any corrections, updates, enhancements or modifications thereto (collectively, "Modifications") whether made by you, Black Diamond or any third-party and you hereby assign to Black Diamond any rights in and to such Modifications. All copyright, trade secret rights, patent, trademark, and any other intellectual property or proprietary rights in and to the Application and Modifications shall at all times remain the exclusive property of Black Diamond and/or its licensors. All rights not expressly granted under these Terms are reserved by Black Diamond. No suggestions, feedback, enhancement requests, recommendations or other disclosures related to the Application or other Black Diamond services ("Feedback") made by you shall create any fiduciary or other obligation on the part of Black Diamond, and you hereby acknowledge and agree that such Feedback is not confidential. Black Diamond retains all right, title and interest in the Feedback. You hereby grant Black Diamond the unconditional, irrevocable right to use, commercialize and/or disclose any such Feedback as Black Diamond sees fit (including without limitation incorporating any such Feedback into the Application), without obligation of any kind.
If you are the owner of a copyrighted work and believe that your rights under U.S. copyright law have been infringed by any material on the Application, you may notify Black Diamond by sending Black DiamondÃ¢Â€Â™s designated agent a notification of claimed infringement that satisfies the requirements of Section 512(c)(3) of the U.S. Copyright Act. Notifications that do not comply with Section 512(c)(3) will not be considered. Notices must be sent to Black DiamondÃ¢Â€Â™s designated agent at the following address:
By Mail: Richard Pugh, Chief Security Officer Advent Software, Inc. 600 Townsend Street San Francisco, CA 94103 By Phone: (415) 645-1025 By fax: (415) 556-0626 By email: email@example.com
You agree to indemnify and hold Black Diamond, its parent company, subsidiaries, and affiliates harmless from and against any damages, losses, liabilities, costs and expenses (including reasonable attorneysÃ¢Â€Â™ fees) arising out of claims related to your use of the Application, data, and/or violation of these Terms.
You agree that if you violate or threaten to violate any of these Terms, Black Diamond and its licensors and suppliers will have no adequate remedy at law and will be entitled to immediate injunctive and other equitable relief, without bond and without the necessity of showing actual money damages, in addition to any other legal, equitable, or financial remedies to which Black Diamond or its licensors or suppliers may be entitled.
As defined in FAR Section 2.101, DFAR Section 252.227-7014(a)(1) and DFAR Section 252.227-7014(a)(1) or otherwise, the Software is a "commercial item," "commercial computer software" and/or "commercial computer software documentation." Consistent with DFAR Section 227.7202 and FAR Section 12.212, any use, modification, reproduction, release, performance, display, disclosure or distribution of the Software by the U.S. government shall be governed solely by the terms of these Terms and shall be prohibited except to the extent expressly permitted herein.
- Failure by Black Diamond to enforce any particular term herein shall not be construed as a waiver of any of Black DiamondÃ¢Â€Â™s rights under it.
- If any part of these Terms is held by a court of competent jurisdiction to be unenforceable for any reason whatsoever, you and Black Diamond agree that the validity of the remainder of the terms will not be affected
- The validity, interpretation, construction, and performance of these Terms shall be governed by the laws of the State of Florida, without giving effect to the principles of conflict of laws. Any action under these Terms or related to the Application shall be commenced solely and exclusively in the state or federal courts located in Jacksonville, Florida. YOU HEREBY IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS OR THE APPLICATION. You agree that you will not contest venue, and you waive any rights that you may have to initiate, transfer, or change the venue of any litigation arising from or related to these Terms.
- No variation, amendment of, or addition to these Terms shall be effective without Black DiamondÃ¢Â€Â™s prior written consent.
Black Diamond may make available a single sign on functionality ("SSO Functionality") to permit you to use the same password(s) to access: (i) Black Diamond service and product entitlements, including without limitation the Application ("BD Environment"); (ii) your internal computing environment ("Your Internal Environment"); and/or (iii) your environment on third-party products, services, system(s) or software ("Your External Environment"). Collectively, the three preceding environments will be referred to herein as the "Environments". To the extent that SSO Functionality is available for your Environments you agree and accept the additional terms under this Section 14, and you will be responsible for obtaining all necessary rights to access and use such Environments via the SSO Functionality, and in ensuring compliance with your obligations hereunder and your agreement with third-party owners of Your Internal and External Environments. Black Diamond may provide your vendors ("Your Vendors") with access to and use of your Environments (including any information stored therein).
You will defend, indemnify and hold Black Diamond harmless from and against any loss, damage or costs (including reasonable attorneysÃ¢Â€Â™ fees) incurred in connection with any third-party claim made or brought against Black Diamond arising out of or related to: (i) the SSO Functionality and your Environments (including any information stored therein); (ii) Black DiamondÃ¢Â€Â™s actions authorized herein (including without limitation accessing, using, or displaying your information from the BD environment in Your External Environment), (iii) Your Vendor access to the BD Environment (including without limitation your information contained therein); or (iv) any claims of intellectual property infringement or breach of confidentiality that arise as a result of the SSO Functionality or Black DiamondÃ¢Â€Â™s actions authorized herein; provided, that Black Diamond (a) promptly gives written notice of any such claim(s) to you; (b) gives you sole control of the defense and settlement of the claim(s) (provided that you shall not settle any such claim unless it unconditionally releases Black Diamond of all liability); and (c) provides to you, at your cost, all reasonable assistance.
Black Diamond makes no representations or warranties regarding your right or ability to use or access any Environment via the SSO Functionality and does not represent or warrant that your use of any Environment via the SSO Functionality will be uninterrupted, error-free or will meet your requirements. You understand and agree that access to your Environments may be terminated or suspended by Your Vendor and that Black Diamond will not be liable for any claims as a result of such termination or suspension. In the event Your Vendor modifies Your External Environment or you modify Your Internal Environment, the SSO Functionality provided hereunder may temporarily cease to function as Black Diamond works with you or Your Vendor(s), as applicable, to update the SSO Functionality. You agree that Black Diamond is not obligated to monitor your use of the Environments.
You understand and agree that in the event (i) the Agreement, (ii) agreement that you have with Your Vendor, or (iii) agreement that Black Diamond has with Your Vendor, if any and as applicable, terminates, you will no longer have access to applicable Environment(s) or Your VendorsÃ¢Â€Â™ applicable interface(s) through which you receive Black DiamondÃ¢Â€Â™s data into Your External Environment ("Connectivity Products"). Black Diamond will not be liable to you for any claims resulting from such termination. In order to renew your license to the Connectivity Products, you must be current in your payments for the BD Environment.
Black Diamond is willing to make the SSO Functionality available to you only upon the condition that you specifically agree and accept that the terms under this Section 14 will override any conflicting terms from the Agreement, if applicable, or any other agreement between you and Black Diamond, and you agree that your liability under this Section 14 will not be capped by any limitation or exclusion of liability. IF YOU DO NOT AGREE TO THESE TERMS, IN PARTICULAR THE TERMS UNDER SECTION 14, DO NOT ACCESS OR USE THE SSO FUNCTIONALITY.
Black Diamond may allow you to transmit and store information exchanged with your investment advisor or third party ("Advisor") relating to the operation of AdvisorÃ¢Â€Â™s business with you (the, "Document Vault"). To the extent you access or use the Document Vault functionality, you agree and accept the additional terms under this Section 15.
Black Diamond confirms that it deploys generally accepted industry methods, including encryption, to secure data in transmission and storage. For the avoidance of doubt, as between the parties, you own all rights, title and interests in and to the information you transmit and store via the Document Vault.
BLACK DIAMOND PROVIDES THE DOCUMENT VAULT "AS IS", "AS AVAILABLE", AND "AT YOUR OWN RISK".
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS INHERENT IN THE USE OF THE DOCUMENT VAULT AND THAT BLACK DIAMOND, ITS AFFILIATES AND SUPPLIERS: (I) ASSUME NO LIABLITY FOR ANY ACCESS TO, USE OF OR INFORMATION CONTAINED IN THE DOCUMENT VAULT; (II) MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, QUIET ENJOYMENT, RESULTS, ACCURACY, COMPLETENESS, AVAILABILITY, TIMELINESS, SECURITY, NONINFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE FOR THE DOCUMENT VAULT(INCLUDING WITHOUT LIMITATION ANY INFORMATION CONTAINED THEREIN OR USED THEREWITH); AND (III) HAVE NO LIABILITY FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING FROM OR IN CONNECTION WITH THE DOCUMENT VAULT (INCLUDING WITHOUT LIMITATION ANY INFORMATION CONTAINED THEREIN OR USED THEREWITH), TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMERS, IN ANY EVENT, MAXIMUM LIABILITY WILL NOT EXCEED FIVE HUNDRED DOLLARS ($500). THIS LIMITATION WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL YOU UPLOAD, SUBMIT, OR ALLOW SUBMISSION TO BLACK DIAMOND ANY PERSONAL HEALTH INFORMATION AND/OR ANY OTHER INFORMATION THAT COULD BE CONSIDERED RELATED TO HEALTH OR MEDICAL INFORMATION UNDER APPLICABLE LAW. YOU SHALL BE SOLELY RESPONSIBLE FOR THE ACCURACY, COMPLETENESS, BACKUP, ARCHIVES, QUALITY, INTEGRITY, LEGALITY, RELIABILITY AND APPROPRIATENESS OF INFORMATION IN THE DOCUMENT VAULT.
You hereby release and hold harmless Black Diamond, its officers, directors, employees, agents, affiliates and suppliers from any liability, claims, demands or causes of action, damages or expenses resulting from your access to or use of the Document Vault (including without limitation any information contained therein or used therewith).
You will defend, indemnify and hold Black Diamond, its officers, directors, employees, agents, affiliates, and suppliers harmless from and against any loss, damage or costs (including reasonable attorneysÃ¢Â€Â™ fees) incurred in connection with any third-party claim made or brought against Black Diamond arising out of or related to your access to or use of the Document Vault (including without limitation any information contained therein); provided, that Black Diamond (a) promptly gives written notice of any such claim(s) to you; (b) gives you sole control of the defense and settlement of the claim(s) (provided that you shall not settle any such claim unless it unconditionally releases Black Diamond of all liability); and (c) provides to you, at your cost, all reasonable assistance.
You understand and agree that upon termination of the Agreement, if applicable, and notwithstanding anything to the contrary in such Agreement, Black Diamond will not be responsible for, nor will it assist in the transfer of, any information placed in the Document Vault to you or to any other vendor. The transfer of such documents upon termination will be your sole and exclusive responsibility. Any information contained in the Document Vault following termination or expiration of the Agreement will be subject to Black DiamondÃ¢Â€Â™s then current document retention policy.
You represent and warrant that you have obtained all necessary authority or consents required to allow any information to be transmitted by, or accessed or used in, the Document Vault.
If you direct or cause any confidential information to be used, provided, disclosed or otherwise made available to a party in connection with the Document Vault, Black Diamond shall have no liability to the extent that Black Diamond fulfills or facilitates any interaction with such party. Black Diamond shall be entitled to rely upon any request by you or your representatives for making any information available in connection with the Document Vault without any obligation by Black Diamond to confirm or inquire into the accuracy, legality, validity, or genuineness of such request.
Black Diamond is willing to make the Document Vault functionality available to you only upon the condition that you specifically agree and accept that the terms under this Section 15 will override any conflicting terms from the Agreement, if applicable, or any other agreement between you and Black Diamond and you agree that your liability under this Section 15 will not be capped by any limitation or exclusion of liability. IF YOU DO NOT AGREE TO THESE TERMS, IN PARTICULAR THE TERMS UNDER SECTION 15, DO NOT ACCESS OR USE THE DOCUMENT VAULT FUNCTIONALITY.
You acknowledge that these Terms have the same force and effect as a signed agreement.
These Terms, and any written addendum or amendment signed by Black Diamond to these Terms, and if a written Master Subscription Agreement or Service Agreement, including any exhibits and data sheets thereto (collectively, the Agreement") is in effect between you and Black Diamond, are the entire agreement between you and Black Diamond with respect to the Application and supersede all previous communications, representations, understandings, and agreements, either oral or written, with respect to the Application or other subject matter covered by these Terms. To the extent of any conflict or inconsistency between the provisions of the body of these Terms and the Agreement, the terms of the Agreement shall prevail unless the provisions herein specifically state otherwise, in which case such provisions shall prevail.
The Application may contain information obtained from third parties, including ratings from credit ratings agencies such as Standard & PoorÃ¢Â€Â™s ("S&P"). Reproduction and distribution of Third Party Content in any form is prohibited except with the prior written permission of the related third party, or as otherwise provided below. Third Party Content providers do not guarantee the accuracy, completeness, timeliness or availability of any information, including ratings, and are not responsible for any errors or omissions (negligent or otherwise), regardless of the cause, or for the results obtained from the use of such content. THIRD PARTY CONTENT PROVIDERS GIVE NO EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. Third Party Content providers shall not be liable for any direct, indirect, incidental, exemplary, compensatory, punitive, special or consequential damages, costs, expenses, legal fees, or losses (including lost income or profits and opportunity costs or losses caused by negligence) in connection with any use of ratings. Credit ratings are statements of opinions and are not statements of fact or recommendations to purchase, hold or sell securities. They do not address the suitability of securities or the suitability of securities for investment purposes, and should not be relied on as investment advice. To the extent this is being provided to an individual or institutional account holder, any ratings contained herein are solely for such account holderÃ¢Â€Â™s own non-commercial use and may only be used by or for the benefit of the account holder in connection with the management and/or administration of such account holderÃ¢Â€Â™s holdings and not for any other purpose.
For S&P Third Party Content, such Content is Copyright © 201*, Standard & PoorÃ¢Â€Â™s, a division of The McGraw-Hill Companies, Inc. All rights reserved.
You hereby agree that:
- Neither Black Diamond, S&P, their affiliates nor any third-party licensor shall have any liability for the accuracy or completeness of the information or software furnished through the Application, or for delays, interruptions or omissions therein nor for any lost profits, indirect, special or consequential damages;
- Either Black Diamond, S&P, their affiliates or third-party licensors have exclusive proprietary rights in any information and software received;
- You shall not use or permit anyone to use the information or software provided through the Application for any unlawful or unauthorized purpose;
- Unless otherwise provided herein, you are not authorized or permitted to furnish such information or software to any person or firm for reuse or retransmission without prior written approval of the source of such information or software;
- Access to the S&P Service(s) and information is subject to termination in the event that any agreement between Black Diamond and a provider of information or software distributed through the Application is terminated in accordance with its terms; and
In addition to the General Requirements set forth above, all Investors hereby agree as follows:
- Except as expressly authorized below, any S&P credit Ratings ("Ratings") downloaded in connection with the generation of reports by the Application must remain on an InvestorÃ¢Â€Â™s Individual Computing Device(s) (defined herein as including without limitation, desktops, laptops, phones, tablet(s) or other similar personal computing devices through which you accesses the Internet) and Investors are strictly prohibited from transferring any Ratings from such Individual Computing Device to any other computing device; provided, however, nothing herein shall restrict Investors from providing copies of Application reports that display S&P Ratings for such InvestorÃ¢Â€Â™s holdings to the InvestorÃ¢Â€Â™s financial or legal advisors (or any other beneficiaries of such holdings in the case of institutional Investors) for use solely for or on behalf of the Investor (or as applicable, its customers, in the case of institutional Investors);
- Investors may not upload, copy or otherwise transfer or store and/or manage any of the Ratings on/in any centralized, shared or interdepartmental computer network (i.e., intranet), repository, database, directory or device (other than the Application); provided, however, nothing herein shall restrict an Investor from internally storing or managing Application reports that display S&P Ratings for such InvestorÃ¢Â€Â™s holdings;
- An InvestorÃ¢Â€Â™s ability to download Ratings in connection with the generation of Application reports is provided only as a convenience in connection with the InvestorÃ¢Â€Â™s use of the Application and is not as a substitute for a direct agreement and/or service directly from S&P (e.g. the reporting/download functionality may not be used to populate master security databases).
Specific Requirements for customers of Black DiamondÃ¢Â€Â™s customers ("Investor(s)"):
In addition to the General Requirements set forth above, all Investors hereby agree as follows:
- Except as expressly authorized below, any S&P credit ratings ("Ratings") downloaded in connection with the generation of reports by the Application must remain on your Individual Computing Device(s) (defined herein as including without limitation, desktops, laptops, phones, tablet(s) or other similar personal computing devices through which you accesses the Internet) and you are strictly prohibited from transferring any Ratings to any other computing device;
- You may not upload, copy or otherwise transfer or store and/or manage any of the Ratings on/in any centralized, shared or interdepartmental computer network (i.e., intranet), repository, database, directory or device (other than the Application); provided, however, for the avoidance of doubt, nothing herein shall restrict you from transferring to your customers, as permitted below, or storing or managing, Application reports that display S&P Ratings; and
- Your ability to download Ratings in connection with your generation of Application reports is provided solely as a convenience in connection with your use of the Application and is not as a substitute for a direct agreement and/or service directly from S&P (e.g. the reporting/download functionality may not be used to populate master security databases).
- Notwithstanding anything to the contrary herein, you may, as part of and in the ordinary course of your internal operations, provide to your customers, on a no-charge basis only and solely for your customersÃ¢Â€Â™ own non-commercial use in connection with the management and/or administration of such customerÃ¢Â€Â™s respective holdings and not for any other purpose or further redistribution (except by your customers to their financial or legal advisors, or in the case of institutional customers, to beneficiaries of holdings managed or administrated by them and for use solely for or on behalf of such customers or beneficiaries, as applicable), Application reports that display the Ratings.
All MoodyÃ¢Â€Â™s Third Party Content is Copyright 2011, MoodyÃ¢Â€Â™s Analytics, Inc. and its licensors ("MoodyÃ¢Â€Â™s"). MoodyÃ¢Â€Â™s ratings and other information ("MoodyÃ¢Â€Â™s Information") are proprietary to MoodyÃ¢Â€Â™s and/or its licensors and are protected by copyright and other intellectual property laws. MoodyÃ¢Â€Â™s Information is licensed to Black Diamond by MoodyÃ¢Â€Â™s. MOODYÃ¢Â€Â™S INFORMATION MAY NOT BE COPIED OR OTHERWISE REPRODUCED, REPACKAGED, FURTHER TRANSMITTED, TRANSFERRED, DISSEMINATED, REDISTRIBUTED OR RESOLD, OR STORED FOR SUBSEQUENT USE FOR ANY SUCH PURPOSE, IN WHOLE OR IN PART, IN ANY FORM OR MANNER OR BY ANY MEANS WHATSOEVER, BY ANY PERSON WITHOUT MOODYÃ¢Â€Â™S PRIOR WRITTEN CONSENT.
Moody'sÃ‚Â® is a registered trademark.
MoodyÃ¢Â€Â™s Investor Services, Inc. ("MIS") hereby discloses that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MIS have, prior to assignment of any rating, agreed to pay to MIS for the appraisal and rating services rendered by it fees ranging from $1,500 to $2,400,000. MoodyÃ¢Â€Â™s Corporation (MCO) and its wholly owned credit rating agency subsidiary, MIS, also maintain policies and procedures to address the independence of MISÃ¢Â€Â™s ratings and rating processes. Information regarding certain affiliations that may exist between directors of MCO and rated entities, and between entities who hold ratings from MIS and have also publically reported to the SEC an ownership interest in MCO of more than 5%, is posted annually on MoodyÃ¢Â€Â™s website at www.moodys.comm under the heading "Shareholder RelationsÃ¢Â€Â”Corporate GovernanceÃ¢Â€Â”Director and Shareholder Affiliation Policy."
Subscriber expressly agrees, on behalf of itself and each other person or entity that it permits to use any information ("User"), that (a) the credit ratings and other opinions, and valuations, quotes, statistical, quantitative or other information contained in the Application are, and will be construed solely as, statements of opinion and not statements of fact or recommendations to purchase, hold, or sell any securities, (b) the Application will be weighed solely as one factor in any investment decision made by or on behalf of you or any User, and (c) it will accordingly make its own study and evaluation of each security, and of each issuer and guarantor of, and each provider of credit support for, each security that it may consider purchasing, holding, or selling.
Thomson Reuters is a third-party beneficiary to these Terms.
You hereby agree that:
With respect to any IDC data received through the Application ("IDC Data"), IDC AND ITS SUPPLIERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, AS TO MERCHANTABILITY, FITNESS OR ANY OTHER MATTER.
Limitation on Liability
- IDC and its suppliers shall have no liability to you or a third party, for errors, omissions or malfunctions in the IDC Data services.
- (b) You acknowledge that the IDC Data services are intended for use as an aid to institutional investors, registered brokers or professionals of similar sophistication in making informed judgments concerning securities.
- (c) You accept responsibility for, and acknowledge you exercise your own independent judgment in the selection of any of the IDC Data services, the selection of the use or intended use of such, and any results obtained. Nothing contained herein shall be deemed to be a waiver of any rights existing under applicable law for the protection of investors.
You shall indemnify IDC and its suppliers against and hold IDC harmless from any and all losses, damages, liability, costs, including attorney's fees, resulting directly or indirectly from any claim or demand against IDC or its suppliers by a third party arising out of or related to the accuracy or completeness of any IDC Data services received by you, or any data, information, service, report, analysis or publication derived therefrom. Neither IDC nor its suppliers shall be liable for any claim or demand against you by a third party.
In addition to the General Requirements set forth above, all Black Diamond Customers hereby agree as follows:
Your license to use the IDC Data is limited to "Internal Use" only, defined herein as use by you for the benefit of you and your customers generally, including but not limited to, the preparation of electronic and hardcopy reports produced by the Application, but expressly excludes further redistribution or dissemination of the IDC Data, except you may as part of and in the ordinary course of providing investment advice to your customers and provided that the IDC Data appears only in reports generated by the Application and that the amount of IDC Data appearing in the Application reports is Insubstantial (meaning that in the aggregate, it does not form a significant part of the IDC Data services). In no event may you use the IDC Data for the construction of products or services that may compete with any of the IDC Data services or the Application.
In addition to the General Requirements set forth above, all Investors hereby agree as follows:
Your license to use the IDC Data is limited to "Internal Use" only, defined herein as use by you for your benefit generally, including but not limited to, the preparation of electronic and hardcopy reports produced by the Application, but expressly excludes further redistribution or dissemination of the IDC Data, except for personal, non-commercial purposes. In no event may you use the IDC Data for the construction of products or services that may compete with any of the IDC Data services or the Application.
Frank Russell Company is the source and owner of the trademarks, service marks and copyrights related to the Russell Indexes. RussellÃ‚Â® is a trademark of Russell Investment Group. Russell is a registered trademark of the Frank Russell Company and IdealRatings is a trademark of IdealRatings Inc. Frank Russell Company is the source and owner of all copyrights related to the Russell-IdealRatings Indexes. Frank Russell Company and Research Affiliates LLC have entered into a strategic alliance with respect to the Russell Fundamental Indexes. Subject to Research Affiliate's intellectual property rights in certain content, Russell Investments is the owner of all copyrights related to the Russell Fundamental Indexes. Frank Russell Company and Research Affiliate jointly own all trademark and service mark rights in and to the Russell Fundamental Indexes. Research Affiliates is the owner of the trademarks, service marks, patents and copyrights related to the Fundamental Index and the Fundamental Index methodology.
1. USE OF DATA. 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 NASDAQ OMX or Securities and Exchange Commission ("SEC") Rule or any Financial Services Authority Rule ("FSA") or other applicable law, rule or regulation. 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.
- Non-Professional or Private Subscriber - For Non-Professional or Private Subscriber, the Information is licensed only for personal use. By representing to Distributor that Subscriber is a NonProfessional or Private Subscriber, or by continuing to receive the Information at a Non-Professional or Private Subscriber rate, Subscriber is affirming to Distributor and to NASDAQ OMX that Subscriber meets the definition of Non-Professional or Business Subscriber as set forth in Section 12 of this Agreement. A Non-Professional or Private Subscriber shall comply promptly with any reasonable request from NASDAQ OMX for information regarding the Non-Professional SubscriberÃ¢Â€Â™s receipt, processing, display and redistribution of the Information.
- Professional or Business Subscriber - For Professional or Business Subscriber, the Information is licensed for the internal business use and/or personal use of the Professional or Business Subscriber. Professional or Business 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. Upon request, Professional or Business Subscribers shall make its premises available to NASDAQ OMX for physical inspection of Distributor's Service and of Professional or Business Subscriber's use of the Information (including review of any records regarding use of or access to the Information and the number and locations of all devices that receive Information), all at reasonable times, upon reasonable notice, to ensure compliance with this Agreement.
2. PROPRIETARY DATA. NASDAQ OMX grants to Subscriber a nonexclusive, non-transferable license during the term of the Agreement to receive and use the Information transmitted to it by Distributor and thereafter, to use such Information as permitted under the terms of this Agreement and/or the NASDAQ OMX Requirements. Subscriber acknowledges and agrees that NASDAQ OMX has proprietary rights to the Information that originates on or derives from markets regulated or operated by NASDAQ OMX, and compilation or other rights to Information gathered from other sources. Subscriber further acknowledges and agrees that NASDAQ OMX 's third-party information providers have exclusive proprietary rights to their respective Information. In the event of any misappropriation or misuse by Subscriber or anyone who accesses the Information through Subscriber, NASDAQ OMX 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.
3. PAYMENT. To the extent permitted by applicable law, Subscriber acknowledges and agrees that the termination of the Distributor's Service for failure to make payments shall not be considered an improper limitation of access by NASDAQ OMX.
4. SYSTEM. Subscriber acknowledges that NASDAQ OMX, 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 Distributor's Service. Changes or the failure to make timely changes by Distributor or Subscriber may sever or affect Subscriber's access to or use of the Information. NASDAQ OMX shall not be responsible for such effects. NASDAQ OMX does not endorse or approve any equipment, Distributor or Distributor's Service.
5. EXCLUSIVE REMEDY. NASDAQ OMX 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 failure by NASDAQ OMX to perform its obligations under this Agreement, NASDAQ OMX will endeavor to correct any such failure. If the Information is not available, is delayed, is interrupted, is incomplete, is not accurate or is otherwise materially affected for a continuous period of four (4) hours or more during the time that NASDAQ OMX regularly transmits the Information due to the fault of NASDAQ OMX (except for a reason permitted in this Agreement or in NASDAQ OMXÃ¢Â€Â™s agreement with the Distributor), SubscriberÃ¢Â€Â™s or any other PersonÃ¢Â€Â™s exclusive remedy against NASDAQ OMX shall be:
- If Subscriber or any other Person continues to receive the Information or any other data and/or information offered by NASDAQ OMX, a prorated monthÃ¢Â€Â™s credit of any monies due, if any, for the affected Information directly to NASDAQ OMX from Subscriber or, if applicable, from said other Person, for the period at issue; or
- If Subscriber or any other Person no longer receives either the Information or any other data and/or information offered by NASDAQ OMX, a prorated monthÃ¢Â€Â™s refund of any monies due for the affected Information directly to NASDAQ OMX from Subscriber or, if applicable, from said other Person, for the period at issue.
Such credit or refund shall, if applicable, be requested in writing to NASDAQ OMX with all pertinent details. Beyond the warranties stated in this section, there are no other warranties of any kind Ã¢Â€Â” express, implied, statutory (including without limitation, timeliness, truthfulness, sequence, completeness, accuracy, freedom from interruption), implied warranties arising from trade usage, course of dealing, course of performance or the implied warranties of merchantability or fitness for a particular use or purpose.
6. LIMITATION OF LIABILITY.
- Except as may otherwise be set forth herein, NASDAQ OMX shall not be liable to Subscriber, its Distributor 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 NASDAQ OMX has been advised of the possibility of such damages.
- NASDAQ OMX 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 OMX regularly transmits the Information or if the Information is materially affected for less than four (4) continuous hours during the time that NASDAQ OMX regularly transmits the Information.
If NASDAQ OMX is for any reason held liable to Subscriber or to any other Person, whether in tort or in contract, the liability of NASDAQ OMX within a single year of the Agreement
(one year from the effective data of the Agreement) is limited to an amount of SubscriberÃ¢Â€Â™s damages that are actually incurred by Subscriber in reasonable reliance (combined with
the total of all claims or losses of SubscriberÃ¢Â€Â™s Distributor and any other Person claiming through, on behalf of or as harmed by Subscriber) and which amount does not exceed the
- For Subscriber or any other person that continues to receive the Information or any other data and/or Information offered by NASDAQ OMX, a prorated monthÃ¢Â€Â™s credit of any monies due directly to NASDAQ OMX from Subscriber or, if applicable, from any other Person, for the Information at issue during the period at issue, or if Subscriber or any other Person no longer receives either the Information or any other data and/or information offered by NASDAQ OMX, a refund of any monies due directly to NASDAQ OMX from Subscriber or, if applicable, from any other Person, for the Information at issue during the period at issue; or
- This section shall not relieve NASDAQ OMX, 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 NASDAQ OMX understand and agree that the terms of this section reflect a reasonable allocation of risk and limitation of liability.
7. DISCLAIMERS OF WARRANTIES. NASDAQ OMX and its third-party information providers make no warranties of any kind Ã¢Â€Â” 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, course of performance or the implied warranties of merchantability or fitness for a particular use or purpose or noninfringement.
8. THIRD-PARTY INFORMATION PROVIDERSÃ¢Â€Â™ LIMITATION OF LIABILITY. NASDAQ OMXÃ¢Â€Â™s third-party information providers shall have no liability for any damages for the accuracy of or for delays or omissions in any of the Information provided by them, whether direct or indirect, lost profits, 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.
9. CLAIMS AND LOSSES. Subscriber will indemnify NASDAQ OMX and hold NASDAQ OMX and its employees, officers, directors and other agents harmless 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 OMX shall be permitted to solely defend and settle) another party (including NASDAQ OMX) 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).
10. TERMINATION. Subscriber acknowledges that NASDAQ OMX, when required to do so in fulfillment of statutory obligations, may by notice to Distributor unilaterally limit or terminate the right of any or all Persons to receive or use the Information and that Distributor 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 OMX. Any affected Person will have available to it such procedural protections as are provided by the Act and applicable rules thereunder. In addition to terminations permitted under the Distributor's agreement, this Agreement may be terminated by Subscriber with thirty (30) days written notice to Distributor and by NASDAQ OMX with thirty (30) days written notice either to Distributor or Subscriber. NASDAQ OMX may also alter any term of this Agreement with ninety (90) days written notice either to Distributor 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 the SEC in its regulatory authority, NASDAQ OMX may terminate this Agreement with not less than three (3) days written notice to Subscriber provided either by NASDAQ OMX or Distributor.
11. AMENDMENTS/AGREEMENT. Except as otherwise provided herein, no provision of this Agreement may be amended, modified or waived. No failure on the part of NASDAQ OMX 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 individual, entity or circumstance is held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to individuals, entities 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. In the event of any conflict between the terms of this Agreement and of the Distributor's agreement, the terms of this Agreement shall prevail as between NASDAQ OMX and Subscriber.
Act shall mean the Securities Exchange Act of 1934, applicable only to Information disseminated from a NASDAQ OMX Market in the United States.
Affiliate shall mean any individual, corporation, company, partnership, limited partnership, limited liability company, trust, association or other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such party.
Claims or LossesÃ¢Â€Â” 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, (a) 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 (b) administrative costs, investigatory costs, litigation costs and auditors' and attorneys' fees and disbursements (including in-house personnel).
Distributor shall mean Distributor and its Affiliates as identified in writing to NASDAQ OMX. For purposes of this agreement, "Distributor" shall mean "Vendor".
Distributor's ServiceÃ¢Â€Â” The service from a distributor, including the data processing equipment, software and communications facilities related thereto, for receiving, processing, transmitting, using and disseminating the Information to or by Subscriber.
FSA shall mean a Financial Services Authority in Sweden, the United Kingdom, or other jurisdiction other than the United States.
Information shall mean certain market data and other data disseminated that has been collected, validated, processed, and recorded by the System or other sources made available for transmission to and receipt from either a Distributor or from NASDAQ OMX relating to: a) eligible securities or other financial instruments, markets, products, vehicles, indicators, or devices; b) activities of a NASDAQ OMX Company; c) other information and data from a NASDAQ OMX Company. Information also includes any element of Information as used or processed in such a way that the Information can be identified, recalculated or re-engineered from the processed Information or that the processed Information can be used as a substitute for Information.
NASDAQ OMX shall collectively mean The NASDAQ OMX Group, Inc., a Delaware limited liability company and its subsidiaries and Affiliates (collectively "NASDAQ OMX").
NASDAQ OMX Markets shall mean the regulated securities and options exchange subsidiaries of NASDAQ OMX and other regulated market subsidiaries of NASDAQ OMX, including, but not limited to , The NASDAQ Stock Market ("NASDAQ"), the OMX Nordic Exchange ("OMX"), NASDAQ OMX BX ("BX"), NASDAQ OMX PHLX ("PHLX"), the Philadelphia Board of Trade ("PBOT"), and NASDAQ OMX Europe. The NASDAQ OMX Markets are each a "NASDAQ OMX Market."
NASDAQ OMX RequirementsÃ¢Â€Â” All (i) rules, regulations, interpretations, decisions, opinions, orders and other requirements of the SEC or an FSA, as may be applicable based upon the NASDAQ OMX Market from which the Information is received ; (ii) the rules and regulations, disciplinary decision and rule interpretations applicable to NASDAQ OMX Markets (iii) the NASDAQ OMX Markets' decisions, policies, interpretations, operating procedures, specifications, requirements, and other documentation that is regulatory or technical in nature (including, but not limited to, user guides) published on the NASDAQTrader website located at www.NASDAQTrader.com or another website accessible by and made known to Distributor; and (iv) all other applicable laws, statutes, rules, regulations, orders, decisions, interpretations, opinions, and other requirements, whether promulgated by the United States, England, Sweden or any other applicable jurisdiction (including in the area of intellectual property); and (v) the successors, as they may exist at the time, of the components of the NASDAQ OMX Requirements.
NASDAQ Trader shall mean the website located at www.NASDAQTrader.com or its successor site(s).
OrÃ¢Â€Â” Includes the word "and".
PersonÃ¢Â€Â” Any natural person, proprietorship, corporation, partnership or other entity whatsoever.
SubscriberÃ¢Â€Â” When it appears alone, the word "Subscriber" encompasses all Non-Professional, Private, Professional and Business Subscribers. All subscribers are deemed Professional or Business unless they are qualified as Non-Professional or Private Subscriber.
Non-Professional Subscriber- Any natural person who is NOT:
(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 202(a)(11) of the Investment Advisors Act of 1940 (whether or not registered or qualified under that Act); or 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.
Professional Subscriber- All other persons who do not meet the definition of Non-Professional Subscriber.
Private Subscriber- A natural person for the purpose of managing the SubscriberÃ¢Â€Â™s own personal investments and not for any business purpose, nor for the purpose of giving any form of advice to any other person. A Private Use Subscriber may not:
(a) contract for, receive or use Information for the purpose of Private Use on behalf of any other person or any corporation, partnership, limited liability company, trust, association or other form of entity,
(b) contract for, receive or use Information for the purpose of Private Use in any Service that is paid for by another person or any corporation, partnership, limited liability company, trust, association or other form of entity.
Private Use Subscriber shall, notwithstanding the above:
(c) be permitted to contract for, receive or use Information on behalf of or paid for by another natural person (person B) provided that (1) its for the purpose of managing person BÃ¢Â€Â™s own personal investments and not for any business purpose, and (2) person B have filed a power of attorney or equivalent documentation accordingly with Licensee,
(d) be permitted to contract for, receive or use Information for Private Use on behalf of and/or paid for by a legal entity or other form of non-natural Person in which the Private Use Subscriber has full (100%) ownership and exercises full (100%) control, (e) Section (c) and (d) may not be combined.
Business Subscriber- All other persons who do not meet the definition of Private Subscriber.
"System" shall mean any system NASDAQ OMX has developed for the creation and/or dissemination of Information.
13. INFORMATION FROM OTHER SOURCES. NASDAQ OMX offers Information that has been collected, validated, processed, and recorded by the System or other sources. For data offered from other sources, the governing laws shall apply as identified below.
- All other sources US companies: This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of New York, without reference to principles of conflicts of laws thereof. Any dispute that cannot be amicably settled that arises out of this Agreement shall be referred to arbitration and shall be conducted in accordance with the rules of the American Arbitration Association. All such proceedings shall be held in New York City, NY, and shall be conducted in the English language, which shall also be the language of the documents.
- All other sources Finnish companies: This Agreement shall be governed by and construed in accordance with the laws of Finland. Any dispute that cannot be amicably settled that arises out of this Agreement shall be referred to arbitration and shall be conducted in accordance with the rules for expedited arbitrations of the Arbitration Institute of the Stockholm Chamber of Commerce. All such proceedings shall be held in Stockholm, and shall be conducted in the English language, which shall also be the language of the documents.
- All other sources Norwegian Companies: This Agreement shall be governed by and construed in accordance with the laws of Norway. Any dispute that cannot be amicably settled that arises out of this Agreement shall be referred to arbitration and shall be conducted in accordance with the Norwegian Arbitration Act 2004. Unless the parties agree otherwise such proceedings shall be held in Oslo, and shall be conducted in the English language, which shall also be the language of the documents. The proceedings as well as the verdict shall be confidential between the parties, except for information which a party is required to disclose by virtue of law or governmental order.
- All other sources English Companies: This Agreement shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by English law, without reference to principles of conflicts of laws thereof. Any dispute that cannot be amicably settled that arises out of this Agreement shall be referred to arbitration and shall be conducted pursuant to the Rules of Arbitration of the London Court of International Arbitration from time to time in force. All such proceedings shall be held in London, and shall be conducted in the English language, which shall also be the language of the documents.
14. REQUIREMENTS OF SELF-REGULATORY ORGANIZATION; ACTIONS TO BE TAKEN IN FULFILLMENT OF STATUTORY OBLIGATIONS.
(a) Subscriber acknowledges that in the United States: (i) several of the NASDAQ OMX Markets are registered with the SEC as national securities exchanges pursuant to Section 6 of the Act, and FINRA is registered with the SEC as a national securities association pursuant to 15A of the Act; (ii) FINRA and NASDAQ OMX have a statutory obligation to protect investors and the public interest, and to ensure that quotation information supplied to investors and the public is fair and informative, and not discriminatory, fictitious or misleading; (iii) Section 19(g)(1) of the Act mandates that FINRA and NASDAQ OMX comply with the NASDAQ OMX Requirements; (iv) NASDAQ OMX has jurisdiction to enforce compliance with certain of the NASDAQ OMX Requirements; (v) FINRA has jurisdiction to enforce compliance with certain of the NASDAQ OMX Requirements; and (vi) NASDAQ OMX is obligated to offer terms that are not unreasonably discriminatory between Subscribers, subject to applicable NASDAQ OMX Requirements. Accordingly, Subscriber agrees that NASDAQ OMX, when required to do so in fulfillment of its statutory obligations, may, temporarily or permanently, unilaterally condition, modify or terminate the right of any or all individuals or entities to receive or use the Information. NASDAQ OMX shall undertake reasonable efforts to notify Subscriber of any such condition, modification or termination, and Subscriber shall promptly comply with any such notice within such period of time as may be determined in good faith by NASDAQ OMX to be necessary, consistent with its statutory obligations. Any Person that receives such a notice shall have available to it such procedural protections as are provided to it by the Act and the applicable rules thereunder.
(b) Subscriber acknowledges that, in Europe, NASDAQ OMX is obligated to offer terms that are not unreasonably discriminatory between Subscribers, subject to applicable NASDAQ OMX Requirements. NASDAQ OMX when required to do so in fulfillment of the its statutory obligations, may, temporarily or permanently, unilaterally condition, modify or terminate the right of any and all individuals or entities to receive or use the Information. NASDAQ OMX shall notify the Subscriber of any such condition, modification or termination, and the Subscriber shall promptly comply with any such notice within such period of time as may be determined in good faith by NASDAQ OMX to be necessary, consistent with its statutory obligations. If the Subscriber receives such notice, it will have available to it all procedural protections provided to it by statute and any applicable regulatory rules.
(c) If Subscriber is a member of a NASDAQ OMX Market, then Subscriber expressly acknowledges and agrees that (i) this Agreement does not limit or reduce in any way SubscriberÃ¢Â€Â™s obligations and responsibilities as a member of any applicable NASDAQ OMX Market; (ii) this Agreement does not in any way alter the procedures or standards generally applicable to disciplinary or other actions taken by NASDAQ OMX to enforce compliance with, or impose sanctions for violations of, the NASDAQ OMX Requirements; and (iii) the nonpayment of amounts due under this Agreement could result in the suspension or cancellation of Subscriber's membership in a NASDAQ OMX Market in accordance with the NASDAQ OMX Requirements.