This means that if you upgrade near the end of the month, YOU WILL BE CHARGED FOR THE ENTIRE CURRENT MONTH.
To avoid this, we suggest you wait until the beginning of the next month to upgrade.
This also applies to exchange royalties - if you sign up for realtime or depth you will ALWAYS BE CHARGED FOR THE ENTIRE CURRENT MONTH.
To avoid this, we suggest you wait until the beginning of the next month to sign up.
Appendix A
PINK SHEETS SUBSCRIBER AGREEMENT
THIS AGREEMENT, dated as of the date indicated below, by and among the Vendor and the Subscriber, each as identified below.
PLEASE NOTE THAT PINK SHEETS IS A THIRD PARTY BENEFICIARY OF THIS AGREEMENT. THIS AGREEMENT MAY NOT BE MODIFIED BY THE VENDOR, BUT MAY BE AMENDED BY PINK SHEETS PURSUANT TO A PROCEDURE THAT PROVIDES FOR NOTICE TO THE VENDOR. FAILURE TO TERMINATE THE AGREEMENT BEFORE, OR USE OF THE INFORMATION AFTER, SUCH AN AMENDMENT CONSTITUTES CONSENT TO THE AMENDMENT BY THE SUBSCRIBER. THE VENDOR IS OBLIGATED TO PROVIDE NOTICE TO THE SUBSCRIBER OF ANY SUCH AMENDMENT, BUT THE AMENDMENT WILL NONETHELESS BE EFFECTIVE WHETHER OR NOT THE VENDOR PROVIDES OR FAILS TO PROVIDE SUCH NOTICE.
1. Definitions.
a. “Pink Sheets” shall mean Pink Sheets LLC, a Delaware limited liability company and its affiliates.
b. “Information” shall mean the information and data contained in Pink Sheets’ proprietary Electronic Quotation Service Data Feed (Qdist) provided to Subscriber by Vendor.
c. “Claims and Losses” shall mean 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).
d. “Non-Professional Subscriber” shall mean any natural person using the Information that 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) an "investment adviser" as defined in Section 202(a)(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified thereunder), without taking account of the exclusions to such definition contained in such section, (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 or by an organization except for such exemption or (d) using, or planning to use, to reproduce, duplicate, copy, sell, trade, resell or exploit or make any other use of, any part of, or the use of, or access to, the Information for any commercial purpose.
e. “Professional Subscriber” shall mean any Subscriber that is not a Non-Professional Subscriber.
f. “Subscriber” shall mean Professional and Non-Professional Subscribers collectively.
g. “Vendor’s Service” shall mean the service provided by the Vendor, including the data processing equipment, software, and communications facilities related thereto, for transmitting and disseminating the Information to, for use by, Subscriber.
h. “Vendor” shall mean the person transmitting and disseminating the Information to Subscriber.
2. Right to Receive Information; Payments by a Professional Subscriber. Subscriber is granted the right to receive from Pink Sheets the Information subject to the terms and conditions herein. In the event that a Professional Subscriber is required to make any payment directly to Pink Sheets under this Agreement, payment in full is due in immediately available U.S. funds within 30 days of the date of an invoice, whether or not use is made of, or access is made available to, 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 Pink Sheets (except for U.S. federal, state, or local income taxes, if any, imposed on Pink Sheets) 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.
3. Use of Information. Pink Sheets hereby provides to Subscriber a non-exclusive, non-assignable, non-transferable license to receive and use the Information only for the personal, non-commercial use of the Non-Professional Subscriber and the internal business use or personal, non-commercial use of the Professional Subscriber. By representing to Vendor that Subscriber is a Non-Professional Subscriber, or by continuing to receive the Information at a Non-Professional Subscriber rate, Subscriber is affirming to Vendor and Pink Sheets that Subscriber meets the definition of Non-Professional Subscriber as set forth in paragraph 1 above. Subscriber will give prompt 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; provided, however, that Professional Subscribers may furnish Information to customers, on a non-continuous basis, using only the following limited methods: (a) In written advertisements, correspondence, or other literature, or (b) during voice telephonic conversations not entailing computerized voice, automated information inquiry systems, or similar technologies. Subscriber will not engage in the operation of any illegal business or use or permit anyone else to use the Information, or any part thereof, for any illegal purpose. Subscriber may not present the Information in any unfair, misleading, or deceptive format. Subscriber shall take reasonable security precautions to prevent unauthorized Persons from gaining access to the Information.
4. Modifications to Pink Sheets’ System. Subscriber acknowledges that Pink Sheets may, in its sole, absolute and unfettered discretion, make modifications to its system or the Information from time to time and at any time. Such modifications may require corresponding changes to be made in Vendor's Service. Such changes, or the failure to make timely changes, by Vendor or Subscriber may sever or otherwise adversely affect Subscriber's access to or use of the Information. Subscriber agrees that Pink Sheets shall have no responsibility or liability whatsoever for any such adverse effects.
5. Intellectual Property Rights. Subscriber agrees not to use the Information for any purpose that is inconsistent with the terms of this Agreement. Subscriber acknowledges and agrees that Pink Sheets has exclusive proprietary rights in the Information. Subscriber further acknowledges and agrees that Pink Sheets’ third party information providers have exclusive proprietary rights in their respective Information. In the event of any misappropriation or misuse, Subscriber agrees that the legal remedies available to Pink Sheets or its third party information providers will not be adequate to prevent harm to each of their proprietary rights, and Pink Sheets and such third party information providers shall each have the right to obtain injunctive relief or other equitable remedies, individually or collectively, to protect each of their proprietary rights in such Information. Subscriber will attribute source as appropriate under all the circumstances.
6. Restriction on Use by Certain Persons. Subscriber acknowledges that Pink Sheets may by notice to Vendor unilaterally limit or terminate the right of any or all persons, including Subscriber, 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 Pink Sheets.
7. Inspection. Professional Subscriber shall make its premises available to Pink Sheets for physical inspection of Vendor's Service and of Professional 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. Non-professional Subscriber shall comply promptly with any reasonable request from Pink Sheets for information regarding the Non-Professional Subscriber's receipt, processing, display, redistribution or other use of the Information.
8. LIMITED WARRANTES; DISCLAIMER. PINK SHEETS WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE INFORMATION AS PROMPTLY AND AS ACCURATELY AS IS REASONABLY PRACTICABLE.
NO WARRANTY IS GIVEN THAT THE INFORMATION IS ERROR-FREE OR ACCURATE. THE INFORMATION AND ANY OTHER PRODUCT THAT PINK SHEETS DIRECTLY OR INDIRECTLY PROVIDES ARE PROVIDED “AS IS.” EXCEPT AS SPECIFICALLY SET FORTH HEREIN, NEITHER PINK SHEETS NOR ANY OF ITS LICENSORS AND SUPPLIERS MAKE ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SUBSCRIBER EXPRESSLY ASSUMES ALL RISKS FROM USING THE INFORMATION, AND/OR RELATED PRODUCTS THAT PINK SHEETS OR ITS LICENSORS AND SUPPLIERS DIRECTLY OR INDIRECTLY PROVIDE.
This Section applies to all claims irrespective of the cause of action underlying the claim, including, but not limited to breach of contract (even if in the nature of a breach of condition or a fundamental term or a fundamental breach) and tort (including but not limited to negligence or misrepresentation).
9. LIMITATION OF LIABILITY. IN NO EVENT SHALL ANY OF PINK SHEETS, ITS LICENSORS, OR SUPPLIERS 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 ONE OR MORE OF THEM HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN THE EVENT THAT THE INFORMATION IS NOT AVAILABLE OR ACCURATE AS A RESULT OF A FAILURE BY PINK SHEETS TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT, PINK SHEETS WILL ENDEAVOR, GIVING DUE REGARD FOR THE COST, TIME, AND EFFECT ON OTHER PERSONS, TO CORRECT ANY SUCH FAILURE. IN THE EVENT THAT THE INFORMATION IS NOT AVAILABLE OR ACCURATE FOR A CONTINUOUS PERIOD OF FOUR (4) HOURS OR MORE DURING THE TIME THAT PINK SHEETS REGULARLY TRANSMITS THE INFORMATION DUE TO THE INTENTIONAL FAULT OR GROSS NEGLIGENCE OF PINK SHEETS (EXCEPT FOR A REASON PERMITTED IN THE AGREEMENT), SUBSCRIBER’S OR ANY OTHER INDIVIDUAL'S OR ENTITY'S EXCLUSIVE REMEDY AGAINST PINK SHEETS SHALL BE, AT PINK SHEETS' OPTION, EITHER A PRORATED MONTH'S CREDIT OR A PRORATED MONTH'S REFUND OF ANY MONIES DUE TO PINK SHEETS FROM SUBSCRIBER FOR THE INFORMATION AT ISSUE FOR THE PERIOD AT ISSUE.
SUBSCRIBER AND PINK SHEETS UNDERSTAND AND AGREE THAT THE TERMS OF THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK AND LIMITATION OF LIABILITY.
10. Force Majeure. None of Pink Sheets, Vendor or Subscriber shall be liable for any delays or failures to perform any of its obligations hereunder to the extent that such delays or failures are due to circumstances beyond its reasonable control, including act of God, strikes, riots, acts of war (whether declared or undeclared), acts of terror or governmental regulations imposed after the date of this Agreement.
11. Indemnification. Subscriber shall defend, be liable to, indemnify against, and hold Pink Sheets, its employees, directors, and other agents (collectively, "Pink Sheets Indemnified Parties") harmless from, any and all Claims or Losses imposed on, incurred by or asserted against any of the Pink Sheets Indemnified Parties, as such Claims and Losses are incurred, 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.
Vendor, Subscriber and Pink Sheets shall indemnify and hold harmless (and in every case, Pink Sheets shall be permitted solely to defend and settle) each other and their respective 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).
12. Third-Party Agreement. Subscriber agrees that Pink Sheets 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.
13. Conflicts. 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 Pink Sheets and Subscriber.
14. Termination. 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 Pink Sheets on 30 days written notice either to Vendor or Subscriber. Pink Sheets 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 or discovery of the untruth of any representation of Subscriber, Pink Sheets may terminate this Agreement on not less than three (3) days written notice to Subscriber provided either by Pink Sheets or Vendor.
15. No Endorsement. Pink Sheets does not endorse or approve any equipment, Vendor, or Vendor's Service.
16. Authority. 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 that 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.
17. Notices. All notices, invoices, and other communications required to be given in writing under this Agreement shall be directed to Pink Sheets LLC, 304 Hudson Street, 2nd Floor, New York, New York 10013, 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.
18. Modifications. 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 Pink Sheets 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.
19. Survival. The terms of this Agreement that survive any cancellation, termination, or rescission of this Agreement shall include obligations to make payment for services rendered under this Agreement and those obligations relating to intellectual property, indemnification, limitation of liability, warranties and disclaimer of warranties.
20. Rules of Construction. The descriptive headings in this Agreement are included for convenience of reference only and shall not affect in any way the meaning or interpretation of this Agreement. All personal pronouns used in the Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, if and where applicable. The word "or" includes the word "and". The use of the singular in the Agreement shall include the plural, and vice versa.
21. Applicable Law. This Agreement and its validity, construction and performance shall be governed in all respects by the laws of the State of New York without giving effect to conflicts of law principles thereof. The parties hereto, their successors and assigns, consent to the jurisdiction of the courts of the State of New York with respect to any legal proceedings that may result from a dispute as to the interpretation or breach of any of the terms and conditions of this Agreement.
The Subscriber hereby warrants and represents that it qualifies as a Professional Subscriber, as defined in paragraph one of the Pink Sheets Subscriber Agreement.
Yes No
The Subscriber hereby warrants and represents that it qualifies as a Non-Professional Subscriber, as defined in paragraph one of the Pink Sheets Subscriber Agreement.
Yes No
IN WITNESS WHEREOF, the parties hereto have executed or caused this Agreement to be executed by their duly authorized officers. Signature on this cover sheet is in lieu of and has the same effect as signature on each document noted herein.
Vendor Enter Vendor Name
By: Canjex Publishing Ltd.
Name: John Woods
Title: President
Subscriber Enter Subscriber Name
(Name on Account)
By:
Name: Enter Name
Position: Enter Position
Date of Agreement: Enter Date
On-Line Montreal Exchange Subscriber Agreement
NON-PROFESSIONAL AGREEMENT FOR
RECEIPT OF BOURSE DE MONTRÉAL INC. DATA
TO BECOME A SUBSCRIBER AND RECEIVE THE BOURSE DE MONTRÉAL INC. DATA, YOU MUST SELECT "I ACCEPT THE AGREEMENT" TO ACKNOWLEDGE YOUR CONSENT TO THE TERMS OF THIS AGREEMENT. IF YOU CLICK "I ACCEPT THE AGREEMENT" WITHOUT READING THE AGREEMENT, YOU ARE STILL AGREEING TO BE BOUND BY ALL TERMS OF THE AGREEMENT, WITHOUT LIMITATION. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MUST SELECT "I DO NOT ACCEPT THE AGREEMENT" AND YOU SHALL NOT RECEIVE THE MX DATA.
1. For the purpose of this Agreement, the following terms shall have the meanings set out below:
a) "Bid/Ask Data" means the bid-ask quotations as quoted for securities or derivatives traded on the MX, to be provided on a timely basis upon request subject to limitations imposed by systems and communications network capacity.
b) "Data" means Market Data and/or Data Feed as the case may be.
c) "Data Feed" means a bundled transmission of electronic signals provided by the MX containing the Market Data.
d) "Delayed Data", "Delayed Market Data" and "Delayed Data Feed" means that the Market Data and/or the Data Feed is delivered to the Vendor or a person fifteen (15) minutes or more after the MX makes it available through its transmission facilities.
e) "Last Sale Data" means, at any given time, those last sale prices which reflect completed transactions for securities or derivatives traded on the MX, to be provided on a timely basis following the occurrence of each transaction subject to limitations imposed by systems and communications network capacity.
f) "Market Data" means the trading information with respect to securities or derivatives traded on the MX, including, without limitation, Last Sale Data and Bid/Ask Data.
g) "MX" means Bourse de Montréal Inc.
h) "Non-Professional" means any natural person who is not a Professional.
i) "Professional" means any broker, dealer, investment adviser, person or a person otherwise employed by an organization conducting professional activities involving the buying and selling of financial instruments such as stocks, bonds, options, futures contracts or other trading instruments. In addition, a person shall be considered a Professional if it is a consultant, independent contractor, software developer or provider or other that use Data for any purposes for profit other than the trading of a personal account. A Professional can be a person registered or qualified with:
1. a provincial securities commission;
2. the Securities Exchange Commission;
3. the Commodities Futures Trading Commission;
4. the Financial Services Authority;
5. any provincial state or other government securities or derivatives agency;
6. any securities or derivatives exchange or association.
j) "Real-time Data", "Real-time Market Data" and "Real-time Data Feed" means that the Market Data and/or Data Feed is delivered to the Vendor or the Subscriber within a fifteen (15) minute period after the MX makes it available through its transmission facilities.
k) "Unit" means any type of equipment, fixed, portable or wireless, that is enabled to receive Data for subsequent display, voice display, viewing, interrogation, processing, storage or communication as a result of a broadcast of the Data to that equipment or as a response to an inquiry and to which Vendor or Sub-vendor controls Data access. Vendor’s or Sub-vendor’s control does not allow for concurrent reception of Data as access is unique to each end-user.
2. The Subscriber is not and will not be engaged in the operation of any illegal business and will not use, or permit any person to use, the Market Data obtained, or any part thereof, for any illegal purpose.
3. Subscriber understands and acknowledges that the MX has a proprietary interest in the Data and that the same is not within the public domain. The use of any Data provided to the Subscriber by the Vendor or Sub-vendor is subject to the limitations set out in this Agreement.
4. The Subscriber will not furnish the Market Data received, or any part thereof, to any other person, firm or corporation nor to any other office or place, including a branch office, nor will it copy, reproduce or retransmit Market Data without prior written approval from the MX.
5. If the Subscriber shall furnish, or permit to be furnished, the Market Data, or any part thereof, to any person, firm or corporation without the approval of the MX and in contravention of this Agreement, the MX may take any action against such person, firm or corporation to whom the Market Data is furnished to prevent the receipt of use thereof by said person, firm or corporation either with or without making the Subscriber a party to such action.
6. The MX shall be entitled, without any liability to Subscriber or to any other person, firm or corporation to make such changes in the speed or other characteristics of the signals presently being furnished by it, as the MX may from time to time determine (whether or not such changes would require changes to be made by the Vendor or Sub-vendor or Subscriber to its or their mode(s) or operation or would render its or their equipment or software unsatisfactory or inoperative).
7. Trademarks and logos used by MX are registered or unregistered marks or logos of MX or others, are the property of their respective owners and may not be used without written permission of the owner of such marks or logos.
8. Neither the MX nor its managers, officers, employees or agents guarantees the sequence, accuracy or completeness of the Market Data. The MX, its managers, officers, employees and agents shall not be liable in any way to the Subscriber or to any other person, firm or corporation for any delays, inaccuracies, errors or omissions from the Market Data, or in the transmission or termination thereof, or any non-performance or interruption of service, or for any damages, consequential or otherwise, arising therefrom or occasioned thereby, whether or not resulting from negligence on his, its or their part. The MX, its managers, officers, employees and agents shall not in any event, including its own negligence, be liable beyond the actual amount of the loss or damage, or the sum of fifty (CA$ 50.00) dollars, whichever is less.
9. Subscriber discharges the MX, its managers, officers, employees, and agents from any liability for any damages, loss, costs, expense or claim suffered by or made against the Subscriber as a result of its use of the Market Data. Furthermore, the Subscriber shall indemnify the MX and its representatives for any loss or damage that it incurs as a result of a breach or default by the Subscriber under this agreement.
10. Subscriber acknowledges that the MX may, on its sole discretion, terminate the right of any or all persons, firms or corporations including the Subscriber, to receive all or any part of the Market Data through the Vendor or Sub-vendor services, and the MX shall not be liable to the Subscriber in any manner whatsoever by virtue of any such termination. The Subscriber acknowledges that the Vendor or Sub-vendor shall, forthwith upon written request from the MX, cease furnishing any portion of the Market Data to any Subscriber or group of Subscribers or other person or persons.
11. The MX does not and will not endorse in any manner any of the equipment through which the Subscriber receives the Market Data.
12. The Subscriber may terminate this agreement with thirty (30) days prior written notice to the Vendor or Sub-vendor. Termination of this agreement is final. Subscriber is required to execute a new agreement to receive Market Data thereafter.
13. This Agreement shall be interpreted in accordance with and be governed in all respects by the laws of Canada and of the Province of Quebec.
14. The parties hereto confirm that it is their wish that this Agreement as well as all other documents relating hereto, including notices, have been and shall be drawn up in English only. Les parties aux présentes confirment leur volonté que cette convention de même que tous les documents afférents, y compris tous avis s’y rattachant, soient rédigés en anglais seulement.
On-Line Nasdaq Subscriber Agreement version 2.0
DISCLOSURE - PLEASE READ
Subscribers must sign a contract entitled The Nasdaq Stock Market, Inc. ("Nasdaq") Subscriber Agreement ("Agreement") in order to receive Information [see definition in Paragraph [1] of the Agreement] from Nasdaq. While all terms are important, please particularly note the following. For more information regarding each term, the paragraph number at the end of each term refers to the paragraph in the Agreement where more information can be located.
RESTRICTIONS ON USES & TRANSFER: Subscribers may not provide access to Information or transfer the Agreement to others. The Information is only for personal non-professional use or, if you are a Professional Subscriber (see definition in Paragraph [1] of the Agreement) for internal business use and/or personal use. [Paragraph 3]
MOST TYPES OF DAMAGES ARE EXCLUDED AND REMAINING DAMAGES ARE LIMITED: Nasdaq is not liable for trading losses, lost profits or incidental, consequential or other indirect damages, even if the Information is untimely or incorrect. Other damages (if any), are strictly limited (in contract, tort, or otherwise) to a capped amount. [Paragraphs 9 and 10]
NO IMPLIED OR STATUTORY WARRANTIES OR DUTIES: All warranties and duties (if any) are eliminated. There are no express warranties except for a Limited Warranty regarding efforts only. STOCK QUOTES MIGHT NOT BE CURRENT OR ACCURATE. [Paragraph 9]
SUBSCRIBERS PROVIDE AN INDEMNITY: Subscriber indemnifies and holds harmless Nasdaq for any Claims or Losses (see definition in Paragraph [1] of the Agreement) resulting from Subscriber's breach of the Agreement, for Subscriber's infringement of a third party's intellectual property rights, or from any third party suit related to Subscriber's use or receipt of the Information. [Paragraph 13 and 14]
MARYLAND LAWS AND COURTS APPLY: Everything relating to the Agreement is governed by the laws of the United States and the State of Maryland and any disputes can only be heard in Maryland. [Paragraph 23]
NO ORAL AMENDMENTS & ONLY NASDAQ MAY AMEND: The Agreement may not be altered orally and may be altered by Nasdaq pursuant to an Agreement procedure which includes notice either to Subscriber or to Vendor. Failure to terminate the Agreement before, or use of Information after, an amendment will be Subscriber's consent (or confirmation of an earlier consent) to the amendment. [Paragraph 17 and 21]
VENDORS CAN IMPACT SUBSCRIBER'S RIGHTS BUT NOT NASDAQ'S RIGHTS: Vendor does not have authority to change the Agreement. Vendors are obligated to provide notice of Nasdaq changes to Subscriber, but if they do not, Nasdaq's notice to Vendor is still effective, as to Subscriber including notice of cancellation. [Above Paragraph 1 and Paragraph 17]
The Agreement appears below. If you are at least 18 years old, sign it as either a Professional or a Non-Professional Subscriber by signing your name or other symbol of your signature on the "Signature" line in the appropriate signature part(s) below.
If you signed the Agreement, make a copy for your records (electronically or otherwise). If you did not intend to sign, or signed
electronically in error, click on "Cancel". To confirm your signature and the accuracy of the information above click on "Signature
Confirmed" which will submit the Agreement and legally bind Subscriber to the Agreement.
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.
1. The word "Nasdaq" 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 Nasdaq or to activities of Nasdaq; or gathered by Nasdaq 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.
2. 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 Nasdaq including, but not limited to, those requirements established by Nasdaq's rule filings (with such SEC approval as may be required), Nasdaq's decisions and interpretations and any User Guides, or successors of the components of the NASD Rules, as they may exist at the time. For Professional Subscriber, 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 the date of an invoice, whether or not use is made of, or access is made to, 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.
3. The Information is licensed only for the personal use of the Non-Professional Subscriber and the internal business use and/or personal use 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 Nasdaq 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.
4. 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.
5. 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 Nasdaq has proprietary rights in the Information that originates on or derives from markets regulated or operated by Nasdaq and compilation or other rights in Information gathered from other sources. Subscriber further acknowledges and agrees that Nasdaq's 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.
6. 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.
7. Professional Subscriber shall make its premises available to Nasdaq for physical inspection of Vendor's Service and of Professional 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. Non-professional Subscriber shall comply promptly with any reasonable request from Nasdaq for information regarding the Non-Professional Subscriber's receipt, processing, display and redistribution of the Information.
8. 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.
9. 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.
10. NASDAQ'S LIMITATION OF LIABILITY. (A) EXCEPT AS MAY OTHERWISE BE SET FORTH HEREIN, NASDAQ 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 NASDAQ HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
(B) NASDAQ 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.
(C) IF NASDAQ IS FOR ANY REASON HELD LIABLE TO SUBSCRIBER OR TO ANY OTHER PERSON, WHETHER IN TORT OR IN CONTRACT, THE LIABILITY OF NASDAQ 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 AN AMOUNT OF SUBSCRIBER'S DAMAGES THAT ARE ACTUALLY INCURRED BY SUBSCRIBER IN REASONABLE RELIANCE, AND WHICH AMOUNT DOES NOT EXCEED THE LESSER 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 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, A REFUND OF ANY MONIES DUE DIRECTLY TO NASDAQ FROM SUBSCRIBER, OR, IF APPLICABLE, FROM ANY OTHER PERSON, FOR THE INFORMATION AT ISSUE DURING THE PERIOD AT ISSUE; OR (II) $500.00.
(D) THIS SECTION SHALL NOT RELIEVE NASDAQ, 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.
(E) SUBSCRIBER AND NASDAQ UNDERSTAND AND AGREE THAT THE TERMS OF THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK AND LIMITATION OF LIABILITY.
11. 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.
12. 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.
13. Subscriber will indemnify and hold harmless Nasdaq and its 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.
14. 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 Nasdaq) 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).
15. 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).
16. 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 Nasdaq and Subscriber.
17. 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 Nasdaq 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.
18. Nasdaq does not endorse or approve any equipment, Vendor, or Vendor's Service.
19. 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.
20. All notices, invoices, and other communications required to be given in writing under this Agreement shall be directed to: The Nasdaq Stock Market, Inc., 1735 K Street, NW, Washington, DC 20006, Attn.: Manager: Market Data Distribution, 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.
21. 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.
22. 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.
23. This Agreement shall be deemed to have been made in the United States in the State of Maryland and shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of Maryland, without reference to principles of conflicts of laws thereof. Subscriber hereby consents to submit to the jurisdiction of the courts of or for the State of Maryland in connection with any action or proceeding instituted relating to this Agreement.
End of The Nasdaq Subscriber Agreement.
NON-PROFESSSIONAL APPLICATION AGREEMENT FOR RECEIPT OF
CANADIAN EXCHANGE GROUP
MARKET DATA
1. DEFINITIONS
(a) “Canadian Exchange Group” or “CEG” means The Toronto Stock Exchange Inc. (TSX) and the Canadian Venture Exchange Inc., together with such other Persons as may become CEG members from time to time. The CEG members have appointed TSX as agent for the purposes of entering into this and other agreements necessary for provision of Market Data to Subscriber on 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 members comprising the Canadian Exchange Group jointly and severally.
(b) “Interrogation Device” means any device or equipment, including, without limitation, any computer, data processing equipment, communications equipment, terminal, Cathode Ray Tube (“CRT”) or monitor, which is authorized by the CEG to receive the Market Data from a Supplier or which does in fact receive Market Data 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 Market Data to devices as described in the preceding clause (i). The term “Interrogation Device” includes any device or equipment which is capable of being used as an “Interrogation Device”.
(c) “Market Data” means any information provided through the facilities of TSX and/or the CEG, directly or indirectly, relating to (i) securities or other financial instruments, markets, products or indices; (ii) information, data and services from Third Party Contributors; and (iii) other information and data, and includes, without limitation, order data provided from the CEG and Third Party Contributors.
(d) “Non-Professional” shall mean a natural person who is not a securities professional and who is acting in his/her personal capacity and not as 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 other entity that performs functions that are equivalent to those of such Persons.
(e) “Person” includes any natural person or proprietorship of any corporation, partnership or other organization.
(f) “Receipt of Market Data” means the physical capability whether used or not of successfully retrieving Market Data through the means of an Interrogation Device.
(g) "Subscriber" means any Person in Receipt of Market Data through facilities furnished by the Supplier and who has accepted the terms and conditions of this Agreement.
(h) "Supplier" means any Person delivering Market Data to Subscriber.
(i) “Third Party Contributor” means any Person, other than the members of the CEG, who provides any information to the CEG for dissemination by the CEG pursuant to the terms of this Agreement.
2. PROPRIETARY INTEREST OF CEG
Subscriber understands and acknowledges that the CEG and/or Third Party Contributors have 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 and/or Third Party Contributors, is copyrighted by the CEG and/or Third Party Contributors, and as such Subscriber’s use of such Market Data is subject to the limitations set out in this Agreement.
3. DATA SECURITY
(a) RETRANSMISSION PROHIBITED - Subscriber shall use Market Data only for its individual use. Subscriber shall not furnish Market Data to any other person nor retransmit Market Data without prior written approval from the CEG.
(b) EQUIPMENT SECURITY - Subscriber understands that this Section 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 Section 3. Subscriber guarantees that any Person installing or maintaining Subscriber Interrogation Devices will comply with this Section 3.
4. DATA NOT GUARANTEED
(A) 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.
(B) 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:
(a) any inaccuracy, error or delay in, or omission of, (i) any such data, information or message or (ii) transmission or delivery of any such data, information or message, or
(b) 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 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 reasonable control of the CEG.
5. 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.
6. 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 that indicated herein, and Subscriber is continuing to receive Market Data from such Supplier, this Agreement shall serve as a companion agreement to the agreement previously submitted to the CEG. The parties may only modify this Agreement in writing signed by or on behalf of each of them.
7. ASSIGNMENTS
Subscriber may not assign all or part of this Agreement without the written consent of the CEG.
8. 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 (e.g., by causing or permitting any other Person to do the act).
9. INDEMNIFICATION
The Subscriber shall indemnify and hold harmless and defend the CEG, their members, governors, directors, 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 legal fees, arising out of or in connection with the Subscriber’s use of Market Data.
10. NOTICES; NOTIFICATION OF CHANGES
Subscriber shall send communications relating to this Agreement to:
The Toronto Stock Exchange Inc.
The Exchange Tower
130 King Street West
Toronto, ON M5X 1J2
Attention: Market Data Services
The CEG may each change its address for notice by written notice to Subscriber. Subscriber shall give the CEG prompt written notice of any change in (a) its representations and warranties hereunder, and (b) any other information provided to the CEG by Subscriber in connection with the receipt of Market Data.
11. SUBSCRIBER’S REPRESENTATIONS AND WARRANTIES
Subscriber represents and warrants that (s)he is a Non-Professional, as defined herein.
12. FAILURE TO QUALIFY
(a) Non-Qualification - Subscriber understands that if the CEG determines at any time that Subscriber does not qualify as a Non-Professional subscriber, Subscriber may continue to receive Market Data only after entering into one or more appropriate agreements with the CEG. The CEG may deny Subscriber the opportunity to enter into such agreement(s) if Subscriber’s failure to qualify results from wilful misrepresentations or omissions or from wilful breach of this Agreement.
(b) Retroactive Payment - In the event that a determination of non-qualification is based upon a misrepresentation made herein by Subscriber, or a failure by Subscriber to update information provided to the CEG, the CEG may notify Subscriber in writing (i) of such determination, (ii) of the period, as determined by the CEG, during which Subscriber received Market Data but did not qualify as a Non-Professional Subscriber and (iii) of the amount, calculated at the CEG’s then-current Professional Subscriber rates, applicable to such period. Within thirty (30) days of receipt of such notice, Subscriber shall pay such amount to the CEG.