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QUODD’s Terms of Service

GENERAL TERMS AND CONDITIONS

These General Terms and Conditions, (this “Agreement”) governs your use of QUODD FINANCIAL INFORMATION SERVICES (“QUODD”) proprietary software and related services, collectively, “QUODD Datafeed Services””) to be provided by QUODD (“us, we, our”). You acknowledge and agree that either by electronically indicating your acceptance of this Agreement, or by using the QUODD Datafeed Services:

You agree you have received and read this Agreement.

You are binding the customer (“Customer”) to the terms and conditions of this Agreement, either via a trial license or term license as set forth further herein and this Agreement shall be enforceable against Customer by us; and

You represent that you have the authority to bind Customer and its Affiliates (as defined below) to this Agreement.

NOTE, this Agreement contains provisions which:

  • limit our liability, including for most damages;
  • limit Customer’s legal remedies against us and third parties;
  • disclaim implied and statutory warranties;
  • require Customer to indemnify us for certain claims;
  • require Customer to maintain the QUODD Datafeed Services and related information as confidential; and
  • restrict venue (i.e. where a court will resolve any litigation brought by us or you) and the law governing this Agreement to the Commonwealth of Pennsylvania, U.S.A.

If you do not have, or do not know if you have, authority to bind Customer, or if you disagree with any of the terms and conditions of this Agreement, including those stated above, you should not enter into this Agreement and should not use the QUODD Datafeed Services.

Defined Terms. As used in this Agreement, the following terms have the following meanings:

  • “Affiliate” means, with respect to a specified Person, any Person which directly or indirectly controls, is controlled by, or is under common control with the specified Person as of the date of this Agreement, for as long as such relationship remains in effect.
  • “Documentation” means the standard on-line user documentation we provide with access to the QUODD Datafeed Services.
  • “Effective Date” means the date you indicated Customer’s acceptance of this Agreement.
  • “including,” whether capitalized or not, means including but not limited to.
  • “Person” means any individual, sole proprietorship, joint venture, partnership, corporation, company, firm, bank, association, cooperative, trust, estate, government, governmental agency, regulatory authority, or other entity of any nature.
  • “QUODD Datafeed Services” means our software platform and all related streaming market data solutions incorporated from third party data providers or directly by QUODD (“QUODD Content”) and any related services provided to Customer pursuant to this Agreement.

1. QUODD DATAFEED SERVICES

1.1. Scope of Use. Non-professional’s of Customer and its designated non-professional employees as defined under the New York Stock Exchange (“Authorized Users”) may use the QUODD Datafeed Services only in the ordinary course of internal business operations for the benefit of Customer and only in accordance with the terms stated in the Documentation and these General Terms and Conditions (the “Scope of Use”). Customer shall be liable for any breach of the terms of this Agreement by Authorized Users. (Please see Exhibit A attached hereto for further clarification of a non-professional.)

1.2. Data Privacy. If we process any personal data on Customer’s behalf when performing our obligations under this Agreement, then: (a) Customer shall ensure that it is entitled to transfer the relevant personal data to us so that we may lawfully use, process and transfer the personal data in accordance with this Agreement on Customer’s behalf; (b) we shall process the personal data only in accordance with the terms of this Agreement and any lawful and reasonable instructions given by Customer from time to time, and Customer shall be responsible for ensuring that the processing of the personal data complies with relevant data protection legislation; and (c) each party shall take appropriate technical and organizational measures against unauthorized or unlawful processing of the personal data or its accidental loss, destruction or damage.

1.3. Modifications. We may modify, revise and update the QUODD Datafeed Services and Documentation from time to time as we deem appropriate.

1.4. Third Party Providers. Customer hereby acknowledges and agrees that certain data, services or QUODD Datafeed Services provided under this Agreement for use with the QUODD Datafeed Services is data, services and QUODD Datafeed Services of certain third parties, including banks and data feed providers (“Third Party Providers”), and that such data, services and software (“Third Party Data and Services”) contain information obtained, selected and consolidated by Third Party Providers under the authority of the Third Party Providers, that Customer’s use of the Third Party Data and Services must be authorized and will be regulated by the Third Party Providers, that the Third Party Providers retain all intellectual property rights in the Third Party Data and Services and further that the Third Party Providers may require that they be provided with information and data about Customer and Authorized Users in connection with their provision of Third Party Data and Services. Customer agrees to comply with any specific conditions related to the Third-Party Data and Services imposed by the Third-Party Providers and as notified to you by us or the Third-Party Providers from time to time. Customer also acknowledges that the Third Party Providers may modify the Third Party Data and Services, discontinue availability of Third Party Data and Services or modify the rules concerning availability and applicable royalties, costs, expenses and/or fees of any of the Third Party Data and Services, in which case neither we nor the Third Party Providers may be held responsible for such modification and discontinuance. Any changes required by the Third-Party Providers shall be made a part of this Agreement by us providing notice to Customer of any such changes.** Customer shall indemnify us against any claim brought by a Third-Party Provider against us arising from Customer’s use of the Third-Party Data and Services in violation of such Third-Party Provider’s rights or the terms of this Section 1.4.

2. CUSTOMER’S OTHER OBLIGATIONS

2.1. Procurement of Hardware. Customer shall be responsible, at its expense for procuring and maintaining the computer hardware, systems software and other items required for access and use of the QUODD Datafeed Services including those described in the Documentation (the “Specified Configuration”) and for updating the Specified Configuration in accordance with our published updates.

2.2. Passwords and QUODD Datafeed Services Access. Each Customer’s Authorized Users will be provided a unique access code in order to access the QUODD Datafeed Services (a “Password”). Customer agrees to hold the Passwords in strict confidence and will not assign, share, sell, barter, transfer, exchange, misuse or abuse the Passwords in any way or attempt in any way to disable, deactivate or render ineffective the password protection of the QUODD Datafeed Services. If Customer suspects or learns that a Password is being used to gain unauthorized access to the QUODD Datafeed Services, Customer will immediately change the applicable Password. Customer shall indemnify and hold us harmless from any liability resulting from unauthorized access to Customer’s information or a security breach by Customer’s Authorized Users or Persons using a Password issued to Customer. We may suspend access to the QUODD Datafeed Services without advance notice if we reasonably believe the QUODD Datafeed Services is being used or accessed in an unauthorized, illegal or disruptive manner.

2.3. Attribution. If Customer incorporates any calculations generated through the use of the QUODD Datafeed Services and/or the use of QUODD site or QUODD Content in any reports, charts, tables or other documents to be distributed to any third party, Customer shall accurately identify, in print on the relevant document, the QUODD Datafeed Services and QUODD as having generated such calculations, that the foregoing is the proprietary property of QUODD.

3. PAYMENTS

3.1. Fees. The trial period under this Agreement shall be offered to Customer at no charge. Thereafter, and beginning on the Effective Date and continuing until termination of this Agreement, Customer shall pay to us our published fees currently in effect as may be adjusted from time to time (the “Fees”).

3.2. Taxes. The Fees and other amounts payable by Customer to us under this Agreement do not include any taxes of any jurisdiction that may be assessed or imposed upon the copies of any software or Documentation delivered to Customer, use of the QUODD Datafeed Services and any other services provided under this Agreement, or otherwise assessed or imposed in connection with the transactions contemplated by this Agreement, including sales, use, excise, value added, personal property, export, import and withholding taxes, and customs duties, excluding only taxes based upon our net income. Customer shall directly pay any such taxes assessed against it, and Customer shall promptly reimburse us for any such taxes payable or collectable by us.

3.3. Payment Terms. Payment terms for Fees and other amounts payable are as stated in your applicable invoice. Interest at the rate of twelve percent (12%) per annum (or, if lower, the maximum rate permitted by applicable law) shall accrue on any amount not paid by Customer to us when due under this Agreement and shall be payable by Customer to us on demand. Except as provided in the last sentence of Section 4.1, all Fees and other amounts paid by Customer under this Agreement are non-refundable. All dollar amounts referred to in this Agreement are in United States Dollars.

3.4. Fees and Charges Adjustment. QUODD has the right at the beginning of each calendar year to increase the cost of the Service. The increase in the cost will be determined at the discretion of QUODD and will be an amount not less than the Consumer Price Index percentage for all urban consumers as issued by the Bureau of Labor in the New York/New Jersey Metropolitan area (“CPI”) from the fourth quarter of the previous year but no more than a maximum of CPI plus (5%) five percent.

3.5. Third Party Fees. The Fees payable by Customer to us in accordance with this Agreement do not include any applicable royalties, costs, expenses and/or fees that may be imposed by any Third-Party Providers for the Third-Party Data and Services. Customer shall be solely responsible for, and shall pay, all such third-party fees as and when directed by the Third-Party Providers.

4. WARRANTIES AND LIMITATIONS

4.1. Right to Perform Services; No Infringement. We shall defend and indemnify Customer against any third-party claim that the QUODD Datafeed Services or Documentation infringe upon any valid United States (i) patent registered as of the date of this Agreement, or (ii) copyright, trade secret or other proprietary right of any Person. We shall have no liability or obligation under this Section 4.1 unless Customer gives written notice to us within ten (10) days (provided that later notice shall relieve us of our liability and obligations under this Section 4.1 only to the extent that we are prejudiced by such later notice) after any applicable infringement claim is initiated against Customer and allows us to have sole control of the defense or settlement of the claim. If any applicable infringement claim is initiated, or in our sole opinion is likely to be initiated, then we shall have the option, at our expense, to modify or replace all or the infringing part of the QUODD Datafeed Services or terminate use of the QUODD Datafeed Services and refund to Customer any prepaid Fees, excluding exchange fees.

4.2. Customer Infringement and Compliance. Customer, warrants to us that Customer has the full legal right to grant to us the right to use the data, QUODD Datafeed Services, files, designs, plans, specifications, improvements, works or other materials provided by or on behalf of Customer for storage on or inclusion in the QUODD Datafeed Services or Documentation including but not limited to Customer Data (collectively, “Customer Material”) and that Customer Material (a) does not infringe upon any patent, copyright, trade secret, trade-mark or other proprietary right of any Person and (b) complies with all applicable law. Customer warrants to us that Customer has obtained all necessary assignments or licenses and waivers of moral rights from its employees and/or contractors, including the right to modify any applicable work contained in Customer Material and to associate any applicable work contained in Customer Material with any product or service. Customer shall indemnify and defend us against any third-party claim alleging a breach of the foregoing warranties

4.3. Liability for Use. We shall have no liability for any loss or damage resulting from any application of the results obtained from the use of the QUODD Datafeed Services or from any unintended or unforeseen results obtained from the use of any applicable services.

4.4. Exclusion for Unauthorized Actions. We shall have no liability under any provision of this Agreement with respect to any performance problem, claim of infringement or other matter to the extent attributable to any unauthorized or improper use or modification of the QUODD Datafeed Services, any unauthorized combination of the QUODD Datafeed Services with other QUODD Datafeed Services (other than QUODD Datafeed Services included in the Specified Configuration), or any breach of this Agreement by Customer or Authorized Users.

4.5. Force Majeure. We shall not be liable for, nor shall it be considered in breach of this Agreement , any failure to perform its obligations under this Agreement as a result of a cause beyond its control, including any act of God or a public enemy, act of any military, civil or regulatory authority, criminal acts by unaffiliated third parties, change in any law or regulation, fire, flood, earthquake, storm or other like event, disruption or outage of communications (including the internet or other networked environment), power or other utility, labor problem, unavailability of supplies, or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by the non-performing party with reasonable care. Customer acknowledges that availability of QUODD Datafeed Services is subject to normal QUODD Datafeed Services downtime and that we are not responsible for delays or inability to access services caused by communications problems.

4.6. Disclaimer. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, WE MAKE NO REPRESENTATIONS OR WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE, REGARDING THE QUODD DATAFEED SERVICES OR ANY OTHER MATTER PERTAINING TO THIS AGREEMENT.

4.7. Limitations. EXCEPT FOR OUR INDEMNIFICATION OBLIGATIONS UNDER SECTION 4.1, OUR TOTAL LIABILITY AND THE TOTAL LIABILITY OF OUR AFFILIATES UNDER THIS AGREEMENT SHALL UNDER NO CIRCUMSTANCES EXCEED THE FEES ACTUALLY PAID BY CUSTOMER TO US UNDER THIS AGREEMENT DURING THE FIRST THREE-MONTH PERIOD OF THIS AGREEMENT.

4.8. Consequential Damage Exclusion. UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR LOST REVENUES, LOST PROFITS, LOSS OF BUSINESS, TRADING LOSS, OR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES OF ANY KIND OR NATURE, INCLUDING, SUCH DAMAGES ARISING FROM ANY USE OF THE QUODD DATAFEED SERVICES, BREACH OF THIS AGREEMENT INCLUDING FUNDAMENTAL BREACH, OR ANY TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT OR OTHERWISE, WHETHER OR NOT FORESEEABLE, EVEN IF WE OR OUR AFFILIATES HAVE BEEN ADVISED OR WERE AWARE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.

4.9. Data Exclusion. UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR LOSS OR CORRUPTION TO CUSTOMER MATERIAL. UNDER NO CIRCUMSTANCES SHALL WE OR OUR AFFILIATES BE LIABLE FOR THE TRUTH, ACCURACY, SEQUENCE, TIMELINESS OR COMPLETENESS OF ANY INFORMATION (INCLUDING THIRD PARTY DATA AND SERVICES) PROVIDED BY OR PROCESSED BY THE QUODD DATAFEED SERVICES OR THE THIRD PARTY PROVIDERS, FOR ANY INCONVENIENCE CAUSED BY THE LOSS OF THE THIRD PARTY DATA AND SERVICES OR FOR ERRORS, MISTAKES OR OMISSIONS THEREIN OR FOR ANY DELAYS OR INTERRUPTIONS IN THE OPERATION OF THE QUODD DATAFEED SERVICES FROM WHATEVER CAUSE.

4.10. Other Limitations. The warranties made by us in this Agreement, and our obligations under this Agreement, run only to Customer and not to its Affiliates, its customers or any other Persons. Under no circumstances shall any Affiliate of Customer or other Person be considered a third-party beneficiary of this Agreement or otherwise entitled to any rights or remedies under this Agreement, even if such Affiliates or other Persons are provided access to the QUODD Datafeed Services or data maintained in the QUODD Datafeed Services via the Internet or other networked environment. Customer shall have no rights or remedies against us except as specified in this Agreement. No action or claim of any type relating to this Agreement may be brought or made by Customer more than one (1) year after Customer first has knowledge of the basis for the action or claim.

5. PROPRIETARY ITEMS

5.1. Proprietary Items, Ownership Rights. The QUODD Datafeed Services and Documentation, the object code and the source code for the QUODD Datafeed Services, the visual expressions, screen formats, report formats and other design features of the QUODD Datafeed Services, QUODD Content, all ideas, methods, algorithms, business processes, formulae and concepts used in developing and/or incorporated into the QUODD Datafeed Services or Documentation, all future modifications, revisions, updates, releases, refinements, improvements and enhancements of the QUODD Datafeed Services or Documentation, all adaptations or derivative works (as such term is used in the U.S. copyright laws) based upon any of the foregoing, and all copies of the foregoing (collectively, the “Proprietary Items”) are our trade secrets and proprietary property, having great commercial value to us. All Proprietary Items provided to Customer under this Agreement are being provided on a strictly confidential and limited use basis. Customer shall not, directly or indirectly, communicate, publish, display, loan, give or otherwise disclose any Proprietary Item to any Person, or permit any Person to have access to or possession of any Proprietary Item except as expressly permitted by this Agreement. Title to all Proprietary Items and any related patent, copyright, trademark, service mark, trade secret, intellectual property or other ownership rights shall remain exclusively with us, even with respect to such items that were created by us specifically for or on behalf of Customer. This Agreement is not an agreement of sale, and no title, patent, copyright, trademark, service mark, trade secret, intellectual property or other ownership rights to any Proprietary Items are transferred to by virtue of this Agreement. All copies of Proprietary Items in Customer’s possession shall remain our exclusive property and shall be deemed to be on loan to r Customer during the term of this Agreement. Customer Material is the proprietary property of Customer. Customer hereby grants us a non-exclusive, worldwide, royalty free license to modify, copy, use or otherwise include Customer Material in the QUODD Datafeed Services or Documentation. Nothing in this Agreement shall be construed to limit our right to independently develop, including without limitation, through the use of our resources who have had access to Customer Material, functionality or report formats similar to any of Customer Material or to assist third parties in their independent development or implementation of similar functionality or report formats.

5.2. Use Restrictions. Customer shall not do, attempt to do, nor permit any Affiliate or other Person to do, any of the following: (a) use any Proprietary Item for any purpose, at any location or in any manner not specifically authorized by this Agreement; or (b) make or retain any copy of any Proprietary Item except as specifically authorized by this Agreement; or (c) create or recreate the source code for the QUODD Datafeed Services, or re-engineer, reverse engineer, decompile or disassemble the QUODD Datafeed Services; or (d) modify, adapt, translate or create derivative works based upon the QUODD Datafeed Services or Documentation, or combine or merge any part of the QUODD Datafeed Services or Documentation with or into any other QUODD Datafeed Services or documentation; or (e) refer to or otherwise use any Proprietary Item as part of any effort to develop a program having any functional attributes, visual expressions or other features similar to those of the QUODD Datafeed Services or to compete against us; or (f) remove, erase or tamper with any copyright or other proprietary notice printed or stamped on, affixed to, or encoded or recorded in any Proprietary Item, or fail to preserve all copyright and other proprietary notices in any copy of any Proprietary Item made by Customer; or (g) sell, market, license, sublicense, distribute or otherwise grant to any Person, including any outsourcer, vendor, consultant or partner, any right to use any Proprietary Item, whether on Customer’s behalf or otherwise; or (h) use the QUODD Datafeed Services to conduct any type of service bureau or time-sharing operation or to provide remote processing, network processing, network telecommunications or similar services to any Person, whether on a fee basis or otherwise.

5.3. Enforcement. Customer acknowledges that the restrictions in this Agreement are reasonable and necessary to protect our legitimate business interests and that any breach of any of the provisions of this Section 5 will result in irreparable injury to us for which money damages may not adequately compensate. If there is a breach or likely breach, then we shall be entitled, in addition to all other rights and remedies which we may have at law or in equity, to have a decree of specific performance or an injunction issued by any competent court requiring the breach to be cured or enjoining all Persons involved from continuing the breach. The existence of any claim or cause of action that Customer or any other Person may have against us shall not constitute a defense or bar to the enforcement of any of the provisions of this Section 5.

6. TERMINATION

6.1. Trial Period, Term and Termination. Customer shall be afforded a trail period for use of the QUODD Datafeed Services for a period of thirty (30) days from acceptance hereof. Thereafter, this Agreement shall automatically roll into the designated Term set forth herein, unless Customer expressly terminates the Agreement in writing five (5) days prior to commencement of the Term. The term of this Agreement shall commence on the conclsuionof the Trial Period (“Effective Date”) and shall continue for a period of one (1) year, (“Term”),unless either party provides the other with thirty (30) days prior written notice of its intent to terminate thirty (30) days priod to the anniversary date thereof. QUODD may immediately terminate this Agreement, by giving written notice of termination to Customer, upon the occurrence of any of the following events:

a) Customer breaches any of its material obligations under this Agreement and does not cure the breach within thirty (30) days (provided that the breach is susceptible to cure) after QUODD gives written notice to Customer describing the breach in reasonable detail.

b) Customer dissolves or liquidates or otherwise discontinues all or a significant part of its business, or any governmental or regulatory body or agency or any self-regulatory organization having jurisdiction over the Customer (i) initiates proceedings against, suspends or revokes requisite registration, membership or licensure, or otherwise restricts the Customer's ability to conduct its business or perform its duties and responsibilities hereunder; and (ii) requires QUODD to terminate this Agreement or suspend performance hereunder.

6.2 Effect of Termination. Upon a termination of this Agreement, whether under this Section 6 or otherwise, Customer shall: (a) immediately cease all use of the QUODD Datafeed Services, Documentation and Proprietary Items, and (b) promptly return to us all copies of any Proprietary Items then in Customer’s possession. Customer shall remain liable for all payments due to us with respect to the period ending on the date of termination. The provisions of Sections 3, 4, 5 and 7 shall survive any termination of this Agreement, whether under this Section 6 or otherwise.

6.3. Certain Other Remedies for Nonpayment. If Customer fails to pay to us in a timely manner, in addition to all other rights and remedies which we may have at law or in equity, we may, in our sole discretion and without further notice to Customer, suspend performance of any or all of our services under this Agreement until and unless we determine, in our sole discretion and upon whatever conditions we choose to impose on Customer, to resume performance of some or all of the suspended services or allow Customer access to the QUODD Datafeed Services and files.

7. OTHER PROVISIONS

7.1. Parties in Interest. This Agreement shall bind, benefit and be enforceable by and against us and Customer and each party’s respective successors and assigns. Customer may not assign this Agreement or any of its rights hereunder, nor delegate any of its obligations hereunder, without our prior written consent. For the purposes of this Section 7.3, any change in control of Customer and any assignment by merger or otherwise by operation of law shall constitute an assignment of this Agreement.

7.2. Export Laws and Use Outside of the United States. Customer shall comply with all laws, administrative regulations and executive orders of the United States of America and any other jurisdiction where any Proprietary Items will be located or from where any Proprietary Items will be accessed under this Agreement, as such laws relate to the control of imports and exports of commodities and technical data, use or remote use of QUODD Datafeed Services and related property, or registration of this Agreement, including the Export Administration Regulations of the U.S. Department of Commerce (the EAR), the International Traffic in Arms Regulations of the U.S. Department of State, and the economic sanctions regulations of the U.S. Treasury Department’s Office of Foreign Assets Control. Customer shall not export or re-export, directly or indirectly (including via remote access), any part of the QUODD Datafeed Services or any Proprietary Items to any jurisdiction for which a license or other authorization is required under any such export laws without first obtaining the license or authorization. In particular, You represent that You: (1) are not a party identified on any government export exclusion list, including but not limited to the U.S. Denied Persons, Entity, and Specially Designated Nationals, Specially Designated Terrorists, Specially Designated Narcotics Traffickers Lists, or the Table of Denial Orders and any similar list, (2) are not located in, a resident of, or acting on behalf of the government of any country or territory subject to an embargo authorized or enforced under any U.S. export regulations, trade sanctions or other laws (including countries listed in Country Group E:1 as identified in the EAR, and that You are also not a national of such a country unless You are also a citizen of or authorized to permanently reside in a country other than those countries. Finally, You represent and agree that You maintain adequate policies and procedures to comply with the foregoing provisions. If at any time we determine that the laws of any Applicable Jurisdiction have become insufficient to protect our rights in the QUODD Datafeed Services or any Proprietary Items, both parties shall work in good faith to protect our rights in that country.

7.3. U.S. Government End Users. If the QUODD Datafeed Services is used by or on behalf of a unit or agency of the United States government, this Section 7.3 applies. The QUODD Datafeed Services is (a) utilizing existing computer software that was developed at private expense, (b) is a trade secret of ours for all purposes of the Freedom of Information Act, (c) uses “commercial computer software” subject to limited utilization as expressly stated in this Agreement, (d) in all respects is proprietary data belonging to us, and (e) is unpublished and all rights are reserved under the copyright law of the United States. For civilian agencies and entities using the Software under this Agreement, the right to use the Software is licensed only with “Restricted Rights” and use, reproduction or disclosure is subject to restrictions set forth in subparagraph (a) through (d) of the Commercial Computer Software – Restricted Rights clause at 52.227-19 of the Federal Acquisition Regulations and its successors. For units of the Department of Defense (DoD), the Software is licensed only with “Restricted Rights” and use, duplication, or disclosure is subject to restrictions as set forth in subdivision (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at 252.227-7013 of the DoD Supplement to the Federal Acquisition Regulations and its successors.

7.4. Relationship. The relationship between the parties created by this Agreement is that of independent contractors and not partners, joint venturers or agents.

7.5. Entire Understanding. This Agreement, which includes and incorporates any other exhibits or addenda hereto, states the entire understanding between the parties with respect to its subject matter, and supersedes all prior proposals, marketing materials, negotiations and other written or oral communications between the parties with respect to the subject matter of this Agreement. Any written, printed or other materials which we provide to Customer that are not included in the Documentation are provided on an “as is” basis, without warranty, representation or condition, and solely as an accommodation to Customer.

7.6. Modification and Waiver. No modification of this Agreement, and no waiver of any breach of this Agreement, shall be effective unless accepted in writing or electronically by an authorized representative of the party against whom enforcement is sought. No waiver of any breach of this Agreement, and no course of dealing between the parties, shall be construed as a waiver of any subsequent breach of this Agreement.

7.7. Severability. A determination that any provision of this Agreement is invalid or unenforceable shall not affect the other provisions of this Agreement.

7.8. Headings. Section headings are for convenience of reference only and shall not affect the interpretation of this Agreement.

7.9. Jurisdiction and Process. In any action relating to this Agreement, (a) each of the parties irrevocably consents to the exclusive jurisdiction and venue of the federal and state courts located in the Commonwealth of Pennsylvania, United States of America, (b) each of the parties irrevocably waives the right to trial by jury and (c) the prevailing party shall be entitled to recover its reasonable legal fees on a full indemnity basis (including, if applicable, charges for in-house counsel), court costs and other legal expenses from the other party.

7.10. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE COMMONWEALTH OF PENNSYLVANIA, UNITED STATES OF AMERICA, EXCLUDING CHOICE OF LAW, PROVIDED, HOWEVER, THAT (a) THE TERMS OF ANY APPLICABLE LAW NOW OR HEREAFTER ENACTED THAT IS BASED ON OR SIMILAR TO THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT DRAFTED BY THE NATIONAL CONFERENCE OF COMMISSIONERS ON UNIFORM STATE LAWS SHALL NOT APPLY AND (b) THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON FOR THE INTERNATIONAL SALE OF GOODS IS SPECIFICALLY EXCLUDED FROM APPLICATION TO THIS AGREEMENT.

EXHIBIT A

NON-PROFESSIONAL STATUS EXAMPLES

  • You use Market Data solely for personal, non-business use.
  • Market Data is not received for your business or any other entity.
  • You are not registered or qualified with the SEC or the CFTC.
  • You are not currently registered or qualified with any securities agency, any securities exchange, association or regulatory body, or any commodities or futures contract market, association or regulatory body, in the United States or elsewhere.
  • Whether you are located within or outside of the United States, you do not perform any functions that are similar to those that require an individual to register or qualify with the SEC, the CFTC, any other securities agency or regulatory body, any securities exchange or association, or any commodities or futures contract market, association or regulatory body.
  • You are not engaged to provide investment advice to any individual or entity.
  • You are not engaged as an asset manager.
  • You do not use the capital of any other individual or entity in the conduct of your trading.
  • You do not conduct trading for the benefit of a corporation, partnership, or other entity.
  • You have not entered into any agreement to share the profit of your trading activities or receive compensation for your trading activities.
  • You are not receiving office space, and equipment or other benefits in exchange for your trading or work as a financial consultant to any person, firm or business entity.