IMPORTANT- READ CAREFULLY
PLEASE READ THIS AGREEMENT IN ITS ENTIRETY BEFORE ACCESSING TRUEFX AND USING THE SERVICES THEREON. BY CLICKING ON THE "I AGREE" BUTTON BELOW, YOU, AND THE ENTITY YOU REPRESENT IDENTIFIED BELOW (COLLECTIVELY "YOU") AGREE, AS OF THE DATE AND TIME YOU CLICK "I AGREE" ("EFFECTIVE DATE") TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, THEN DO NOT CLICK ON THE "I AGREE" BUTTON AND YOU WILL NOT BE ABLE TO ACCESS TRUEFX AND/OR USE THE SERVICES THEREON. THIS AGREEMENT REPRESENTS THE ENTIRE AGREEMENT RELATING TO YOUR USE OF THE SYSTEM.
In consideration of the mutual promises herein, the receipt and sufficiency of which is hereby acknowledged by the Parties, the Parties agree as follows:
1. The TrueFX System.
The TrueFX System, based upon Integralís patented FinXML language, ("System") is comprised of two parts:
(a) TrueFX Real-Time Streaming Data: This part of the System is designed to allow You to access and view foreign exchange ("FX") market data on a real-time basis through the Integral website, API or widget.
(b) TrueFX Historical Data Download: This part of the System is designed to allow You to access and use historical FX datafor Your own internal purposes.
2. Access Grant.
Subject to the terms of this Agreement, Integral grants to You a non-exclusive, revocable, non-transferable (except as expressly stated herein), non-sublicensable and limited license for You to download a single instance of, and access, the "System," or parts thereof, for Your own internal purpose of viewing and analyzing FX market data. Without limiting the foregoing, You shall not transmit, distribute, publish or otherwise disseminate the System, or any part thereof, and/or the content on or from the System including, without limitation, FX prices. Notwithstanding the immediately foregoing, You may redistribute, without modification of any kind, the widget allowing viewing of the TrueFX Real-Time Streaming Data ("Widget"), but You may not redistribute any content from the Widget.
3. Use of the System.
You represent and warrant on a continuing basis as long as You are authorized to access and use the System that:
(a) You shall access and use the System only in conformity with all applicable statutes, rules, and regulations, and the interpretations of any regulatory agency with jurisdiction ("Applicable Law") and Integral operational materials.
(b) You are responsible for all communications made through the System associated with Your identity and/or password. You transmit and receive such information at your own risk.
(c) You have in place all security, systems and compliance procedures required to prevent violation of Applicable Law and unauthorized access, use or misuse of the System. You will not alter, delete, disable or otherwise circumvent any security device. You will notify Integral immediately if you become aware of any unauthorized access to or use of the System.
(d) You will not, nor attempt to, access information or applications that You have not been authorized to access or use by Integral.
(e) You will not use the System or any feature of the System for any illegal or improper reason including, without limitation, to post or transmit inappropriate information.
Each party represents and warrants to the other that it has the right and full power to enter into this Agreement and that this Agreement creates legal, valid and binding obligations on it which are enforceable against it in accordance with its terms. Further, Integral represents that the System does not infringe on any registered patent, trademark, or copyright of a third party.
5. Fees, Settlement and Payment.
As of the Effective Date, there is no charge for the access and use of the System pursuant to the terms herein. Integral may institute and/or modify a fee for access and use of the System upon no less than 45 days notice, which notice may occur by announcement on or through the System or on Integralís website. You shall pay all taxes, levies or duties resulting from this Agreement including sales tax or similar tax but excluding tax solely on Integralís income.
6. Reservation of Rights.
Integral has exclusive ownership of and rights to the System, its use and the content of the System, including without limitation FinXMLģ and related patent, the data, API, tools, applications and screens associated with or related to the System. Without limiting the generality of the immediately foregoing, as between You and Integral, Integral owns all related copyrights, trademarks, service marks, patent rights, and trade secrets and any other intellectual property rights therein (registered or unregistered) including any applications, anywhere in the world related to TrueFX. You will not (i) copy, alter, decompile or reverse engineer the System or any of its components, or (ii) sell, lease, transfer, make derivative works from the System. Notwithstanding the immediately foregoing, You may develop and use front-end applications to connect to and access the TrueFX Real-Time Streaming Data through the Integral API but solely for Your internal business purposes as expressly stated herein. Further, You will not remove, obscure or change any copyright or other notices or legends contained in the System or any of its components.
7. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY.
THE SYSTEM AND ALL CONTENT ARE PROVIDED "AS IS." NEITHER INTEGRAL NOR ANY CONTENT PROVIDER OR THIRD PARTY VENDOR MAKE ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHATABILITY AND FITNESS FOR A PARTICULAR PURPOSE. FURTHER, INTEGRAL DOES NOT REPRESENT OR WARRANT THAT THE SYSTEM, ANY PART THEREOF, OR THE SYSTEMíS CONTENT INCLUDING, WITHOUT LIMITATION, THE DATA, IS CURRENT, COMPLETE, ACCURATE OR WITH OUT ERROR. INTEGRAL DISCLAIMS ANY OBLIGATION TO KEEP THE SYSTEM SECURE OR FREE OF ERRORS OR VIRUSES OR TO MAINTAIN UNINTERRUPTED ACCESS. INTEGRAL MAY STOP PRODUCING OR UPDATING ALL OR ANY PART OF THE SYSTEM AT ANY TIME WITH OR WITHOUT NOTICE. INTEGRAL SHALL NOT HAVE ANY LIABILITY TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF PROFITS, LOSS OF DATA, INDIRECT, SPECIAL OR CONSEQUENTIAL LOSS OR OTHER DAMAGE OR LIABILITY ARISING OUT OF, OR IN CONNECTION WITH, THE PROVISION OR USE OF (OR ANY INABILITY TO USE) THE SYSTEM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE OR OTHERWISE, EVEN IF INTEGRAL HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. EXCEPT WITH RESPECT TO YOUR MISUSE OF INTEGRALíS INTELLECTUAL PROPERTY, YOUR INDEMNIFICATION LIABILITY OR YOUR BREACH OF CONFIDENTIALITY, THE TOTAL MAXIMUM LIABILITY FOR ANY LOSS OR DAMAGES HOWSOEVER CAUSED AND IN RELATION TO ANY CLAIM OR SERIES OF CLAIMS RELATING TO THIS AGREEMENT SHALL BE LIMITED TO THE GREATER OF 1) THE FEES PAID BY YOU TO INTEGRAL DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE CLAIM OR 2) ONE THOUSAND DOLLARS.
You shall indemnify, defend and hold harmless Integral from any and all claims, liabilities, damages, costs and expenses (including attorneys' fees) arising from Your intellectual property infringement and/or breach of this Agreement and/or Your use of the System and/or any part thereof including, without limitation, trading losses, the accuracy or completeness of any quote, failure to deliver or complete a transaction and any failure to comply with any Applicable Law or regulation.
9. Confidentiality and Use of Data.
All (oral or written) business, technical, financial and other information provided by Integral ("disclosing party") to You ("receiving party") under this Agreement and marked "confidential" or with words to that effect, or from the facts and circumstances should reasonably be deemed to be confidential, shall be deemed "Confidential Information". The confidentiality obligations set forth herein shall not apply to information disclosed by the disclosing party that the receiving party can prove by admissible evidence (i) is or has become generally publicly known through no fault of the receiving party, (ii) was in its possession or known by it, without restriction, prior to receipt from the disclosing party, (iii) was rightfully disclosed to it by a third party without restriction, (iv) was independently developed without use of or access to any Confidential Information of the disclosing party, or (v) was required to be disclosed by court order, provided that the receiving party has promptly notified the disclosing party about such requirement, has attempted to limit such disclosure and to obtain confidential treatment or a protective order, and has allowed the disclosing party to participate in any such undertakings and proceedings. All Confidential Information shall be held in confidence by the receiving party and not disclosed or used by the receiving party except as permitted by this Agreement or as expressly authorized in writing by the other party. Notwithstanding the foregoing, You acknowledge and agree that any content transmitted by You through or with the assistance of the System may be used by Integral. Also, Integral may publicly announce and use in its marketing materials the existence (but not the terms) of this Agreement and the Your role with respect to the System. Further, Integral shall not be liable for the privacy of e-mail addresses, registration and identification information, communications or any other content stored on Integralís equipment, transmitted over networks accessed by the System, or otherwise connected with Your use of the System. Integral shall not be liable for the loss, corruption of, or incompleteness, of data, content, or any other information provided to Integral or downloaded to or from the System by You.
10. Data Protection.
If any personal data (including sensitive personal data) belonging to Your users or Your customers, or other individuals, is provided to Integral by or through You, You represent and warrant that such persons are aware of and explicitly consent to the use of such personal data by Integral and You agree to indemnify Integral and any counterparty receiving such information against any loss or damage either may incur arising out of a breach by You of this representation and warranty; and You further acknowledge and agree that Integral may monitor Your use of the System and Your use of e-mail and/or instant messaging in connection with the System and may monitor and tape record telephone conversations with You concerning the System.
11. Term and Termination.
This Agreement shall commence on the Effective Date and shall continue in effect unless terminated by either party, with or without reason, by written notice. Integral may provide such notice through the System or pursuant to the terms herein.
The Parties agree that any dispute or controversy arising out of or relating to any interpretation, construction, performance or breach of this Agreement or arising out of or relating to this Agreement shall be settled by arbitration in San Francisco, California in accordance with the rules then in effect of the American Arbitration Association. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration and shall include an award of costs and fee including, without limitation, attorneys fees and costs to the prevailing party. Judgment, including costs and fees, may be entered on nothing more than a copy of the arbitrator's decision in any court having jurisdiction over the party. Notwithstanding the foregoing, it is hereby understood and agreed that damages may be an inadequate remedy in the event of a breach by either party of any of said covenants, including without limitation those with respect to confidentiality, and that any such breach will cause great and irreparable injury and damage, and thus accordingly, each party agrees that the other party shall be entitled, without waiving any additional rights or remedies otherwise available at law or in equity or by statute, and without need of posting a bond, to injunctive and other equitable relief from a court of competent jurisdiction in the event of a breach or intended or threatened breach by the other of any of said covenants.
Integral shall not have any liability for any failure to perform or delay in performing its obligations under this Agreement due to any Act of God, act of governmental authority, change in law or regulation, war, criminal act, fire, explosion, earthquake, flood, weather condition, power failure, transportation or other accident beyond its reasonable control. This Agreement constitutes the entire agreement between the parties for access to the System and supersedes all proposals, negotiations and discussions, oral or written, relating to access to and use of the System, and You have been advised to obtain independent legal advice before entering into this Agreement. Neither Party may assign this Agreement without the express written consent of the other party which consent shall not be unreasonably withheld or delayed, except that Integral may assign this Agreement due to a business combination or asset sale. The failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. Each and every notice and consent required or otherwise given or made under this Agreement shall be in writing, and shall be deemed given or made when personally delivered, when sent by confirmed fax or email, or through announcement on Integralís website, or three days after being sent by prepaid certified or registered mail to the last known address or fax number of the party, and Integral may also give notice by transmission through the System. The headings and captions used in this Agreement are used for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the state of California, without regard to Californiaís conflict of laws or principles. Any suit brought under this Agreement shall be brought in the state or federal court sitting in San Francisco, California. Neither party shall be deemed to be an employee, agent, partner or legal representative of the other for any purpose, and neither shall have any right, power, or authority to create any obligation or responsibility on behalf of the other. Sections 7,8,9 and 12 shall survive the termination of this Agreement. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY AND LIABILITY DISCLAIMERS AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE A MATERIAL BARGAINED FOR BASIS OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
By agreeing You acknowledge that you have read, understand and agree to be bound by the terms above. Further, the person agreeing represents that he/she is an authorized representative with the power and authority to accept and bind the entity entering into this Agreement to the terms of this Agreement.