1. Definitions. The following capitalized terms shall have the meanings specified in this Section 1.
“Amendment Date” shall have the meaning set forth in Section 12 (d) hereof.
“CFTC” shall mean the United States Commodities Futures Trading Commission.
“Content” shall mean all electronic data and information not made publicly available by the Company that can be accessed using the Service, including Pricing Data.
“Malicious Code” shall mean code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“NFA” shall mean the National Futures Exchange.
“Pricing Data” shall mean all market event and market pricing data submitted by the Subscriber in the course of his, her or its use of the Service.
“Service” shall mean the functionality available through the Website by which the Subscriber may derive information for use in trading foreign exchange futures.
“Subscriber Content” shall mean Content that is supplied by the Subscriber and Content that results solely from the Subscriber’s use of the Service, in each case other than Pricing Data.
“Term” shall have the meaning set forth in Section 7(a) hereof.
“Website” shall mean the Internet website to be made available to the Subscriber at the URL www.bazzabot.com and any successor URL utilized for the same purpose.
2. Rights Granted. The Company hereby grants to the Subscriber a limited, non-exclusive, non-assignable right to access the Website and use the Service during the Term.
3. Intellectual Property.
(a) No ownership rights in any intellectual property are granted to the Subscriber hereunder, including, but not limited to, any patent rights, copyrights, trade secret rights or other intellectual property rights.
(b) The Subscriber hereby grants to the Company a worldwide, royalty-free, non-exclusive, perpetual license to use, reproduce, distribute, publicly perform, modify and adapt any and all Pricing Data.
4. Subscriber’s Responsibilities. The Subscriber shall (a) not allow any other party to use the Subscriber’s password or otherwise gain access to the Service; (b) notify the Company promptly after discovery of any such unauthorized use; (c) comply with all laws applicable to the Subscriber’s use of the Service, including all rules and regulations promulgated by the CFTC and the NFA, if applicable; (d) not use the Service to store or transmit material in violation of third-party rights; (e) not use the Service to store or transmit Malicious Code; and (f) not access the Service or Content for the purpose of building a competitive Service or to reverse engineer the Service.
5. Company Responsibilities. The Company will maintain administrative, physical and technical safeguards for the protection of the Subscriber’s Content, including measures for preventing access, use, modification or disclosure (except as required by law) of such Content.
6. Payment.
(a) The Subscriber shall pay such monthly subscription fees as are set forth on the signature page hereto in accordance with the payment schedule set forth therein and the Subscriber hereby authorizes the Company to charge the credit card designated by the Subscriber for any such payments when due. Each such fee shall be nonrefundable.
(b) Any fees not paid when due shall bear interest at the rate of 1.5% per month and all of the Company’s overdue fees (including reasonable expenses and legal fees incurred in collecting reasonable legal fees) shall be reimbursed by the Subscriber. If any amount owed by the Subscriber is overdue for at least ten (10) business days, the Company may, without limiting its other rights and remedies, suspend the Subscriber’s access to the Service until such overdue amount is paid in full, and appropriate security for future payment is provided, by the Subscriber.
(c) All fees payable under this Agreement are exclusive of tax and duty. The Subscriber shall pay or reimburse the Company for all value-added, sales, use, property, and similar taxes; all customs duties, import fees, stamp duties, license fees, and similar charges; and all other mandatory payments to government agencies of whatever kind imposed with respect to the Services provided by the Company under this Agreement, except taxes imposed on the net income of the Company. All payments by the Subscriber to the Company pursuant to this Agreement shall be made without any withholding or deduction of any withholding tax or other tax or mandatory payment to government.
7. Term and Termination.
(a) Term. This Agreement shall be binding upon the parties hereto as of the Effective Date and shall continue in full force and effect until terminated in accordance herewith (the “Term”).
(b) Termination. This Agreement may be terminated as follows:
(i) Either party may terminate this Agreement upon thirty (30) days’ prior written notice provided that no such termination may take effect until three months after the Effective Date.
(ii) Notwithstanding the foregoing, either party may terminate this Agreement immediately if the other party breaches any of his, her or its obligations hereunder.
8. Effect of Termination. Upon termination of this Agreement:
(a) all rights granted to the Subscriber under Section 2 0f this Agreement shall immediately terminate; and
(b) the rights and obligations of the parties hereunder which by their nature should survive any expiration or termination of this Agreement shall so survive, including this Section 8 and Sections 3, 4, 5, 6, 9, 10, 11 and 12.
9. Warranty. THE COMPANY MAKES NO WARRANTIES OR REPRESENTATIONS IN CONNECTION WITH THE SERVICE OR THIS AGREEMENT TO THE SUBSCRIBER OR ANY OTHER PERSON. THE COMPANY HEREBY DISCLAIMS ALL OTHER WARRANTIES, BOTH EXPRESS AND IMPLIED, INCLUDING (WITHOUT LIMITATION) ANY WARRANTY OF NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, AND MERCHANTABILITY. The Subscriber acknowledges that in entering into this Agreement the Subscriber has relied upon the Subscriber’s own experience, skill and judgment to evaluate the Service and that he, she or it has satisfied himself, herself or itself as to the suitability of the Service to meet his, her or its requirements. The Service is designed for experienced foreign exchange and options traders who understand the limitations of automated trading software. The Service is merely a tool used by such experienced traders to calculate possible market outcomes more quickly than could be accomplished by the trader without the Service. The Company makes no claims whatsoever as to the accuracy of the Service. Nor does it claim that any transaction entered into as a result of using the Service will be profitable or will be more advantageous than any other transaction the Subscriber might otherwise have entered into. Each Subscriber must decide whether the Service is useful and terminate the Subscriber’s subscription in accordance with this Agreement if he, she or it is dissatisfied with the Service. The Subscriber hereby acknowledges and represents that the Company has made no promises or representations regarding the functionality of the Service or about the success of others as a result of using the Service. The Subscriber also (a) acknowledges and represents that any training or instructions voluntarily provided by the Company is not part of the Service and is accepted at the Subscriber’s sole risk and (b) waives and releases the Company from any liability whatsoever relating to such training or instructions.
10. Indemnification. The Subscriber (the “Indemnitor”) shall defend, indemnify and hold harmless the Company and its directors, officers, employees, agents and subcontractors (collectively, the “Indemnified Parties”) from and against any and all claims, damages, expenses, and losses of any kind whatsoever (“Losses”) that may be incurred by, imposed upon or asserted or awarded against an Indemnified Party to the extent that such Losses arise out of acts or omissions of the Indemnitor or its officers, directors, shareholders, agents, employees or contractors (including any violation of law). Such Indemnified Party will give the Indemnitor prompt written notice of the existence of any such event of which the Indemnified Party becomes aware, provided that the failure to provide such notice in a timely fashion shall not relieve the Indemnitor from any liability or obligation of Indemnitor hereunder unless such failure actually and materially prejudices the interests of the Indemnitor. The Indemnitor will give each Indemnified Party an opportunity to participate in the defense thereof at the Indemnified Party’s expense and will pay all reasonable expenses of the Indemnified Party in assuming such defense if the Indemnitor fails to pursue such defense in a timely and competent manner.
11. Limitation of Liability. THE COMPANY SHALL NOT BE LIABLE FOR LOST PROFITS, LOST REVENUES, LOST BUSINESS, INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE SUBSCRIBER FOR ANY CLAIMED LOSS, LIABILITY OR DAMAGE THAT EXCEEDS THE FEES PAID BY SUCH SUBSCRIBER DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE DATE SUCH CLAIM IS MADE.
12. General Terms.
(a) Injunctive Relief. The Subscriber acknowledges and agrees that a breach of this Agreement by the Subscriber may cause irreparable harm to the Company and that a remedy at law may be inadequate. Therefore, in addition to any and all remedies available at law, the Company shall be entitled to seek an injunction or other equitable remedies in all legal proceedings in the event of any threatened or actual breach of any of the foregoing provisions or representations by the Subscriber, without posting any bond.
(b) Governing Law. This Agreement shall be governed in all respects by the laws of the State of New York notwithstanding such state’s law that would otherwise specify the law of a different state. The parties hereby waive and disclaim the applicability of the provisions of the United Nations Convention on the International Sale of Goods, any trade usage or course of dealings or performance between the parties. In the event of any controversy, claim, or dispute between the parties arising out of or relating to this Agreement, the parties irrevocably submit to the exclusive jurisdiction of the federal and state courts located in New York, New York. Notwithstanding such exclusive jurisdiction, any judgment obtained in such a court may be enforced in any court having jurisdiction over such enforcement.
(c) No Agency; Relationship of Parties. The Subscriber is not, and shall not be deemed to be, the legal representative or agent of the Company for any purpose whatsoever, and the Subscriber is not authorized by the Company to incur obligations (express or implied), pledge credit, or make any promises, warranties or representations in the name of or on behalf of the Company. The Company and the Subscriber are acting as independent contractors, and nothing contained in this Agreement shall be construed to create the relationship of partners, joint ventures, principal-agent or employer-employee.
(d) Entire Agreement; Modification. This Agreement, including any Exhibits attached hereto, constitutes the entire agreement between the parties, and supersedes all previous and contemporaneous negotiations, representations and agreements heretofore made by the parties with respect to the subject matter hereof. This Agreement shall not be modified except by a subsequently dated written amendment signed on behalf of the party to be bound thereby. Notwithstanding the foregoing, the Company may notify the Subscriber in writing that the Company is modifying the terms of this Agreement effective as of a date at least thirty 30) days after the date of such notice (the “Amendment Date”). The Subscriber’s use of the Service after such Amendment Date will constitute the Subscriber’s consent to any such modification. The Subscriber represents that no oral or written comments by the Company, including comments regarding future or modified functionality, have induced the Subscriber to enter into this Agreement.
(e) Waiver. Any failure to enforce, or delay in enforcing, any provision of this Agreement by either party shall not be construed to be a waiver of any breach of such provision or any other provision of this Agreement. No waiver of any breach of a provision of this Agreement shall be effective unless made in writing and signed by the waiving party. The waiver of a breach of a provision of this Agreement shall in no way be construed as a waiver of any subsequent breach of such provision or as a waiver of the provision itself.
(f) Severability. In the event that any provision of this Agreement is unenforceable or invalid under any applicable law or is so held by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decision.
(g) Notices. All notices required or permitted under this Agreement shall be in writing, shall reference this Agreement and shall be deemed given: (i) when delivered personally; (ii) when sent by email if the recipient of such email responds to it or confirms its receipt; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial express carrier, specifying delivery in one (1) day or less, with written verification of receipt. All communications shall be sent to the addresses set forth on the signature page hereto, or such other addresses as the parties may notify each other of from time to time in accordance with this Section 12(g):
(h) Language. This Agreement is in the English language only, which language shall be controlling in all respects, and all versions hereof in any other language shall be for accommodation only and shall not be binding upon the parties hereto. All communications, notices, documentation and technical assistance pursuant to this Agreement, and all documentation and support to be provided hereunder, unless otherwise provided for herein, shall be in the English language.
(i) Assignment. Except as otherwise provided herein, the Subscriber shall not assign or transfer, by operation of law or otherwise, any of his, her or its rights or obligations under this Agreement without the prior written approval of the Company, and any attempt to make such assignment without such approval shall be invalid and void. Subject to the foregoing, the rights and obligations of the parties under this Agreement shall inure to the benefit of, and shall be binding upon, their respective successors and assigns.
(j) Counterparts. Each counterpart of this Agreement (including a pdf copy) may be signed and delivered by fax or other electronic means, each of which counterpart shall be deemed an original, but which together shall constitute one instrument.
(k) Force Majeure. Except for payment of money, neither party shall be liable for failure to fulfill his, her or its obligations under this Agreement or for delays in such fulfillment due to causes beyond his, her or its reasonable control, including but not limited to acts of God, man-made or natural disasters, earthquakes, fire, riots, flood, material shortages, strikes, delays in transportation or inability to obtain labor or material through its regular sources. The time for performance of any such obligation shall be extended for the time period lost by reason of the delay.
(l) Foreign Corrupt Practices Act. In conformity with the United States Foreign Corrupt Practices Act, the parties and their employees and agents shall not directly or indirectly make any offer, payment, or promise to pay; authorize any payment; nor offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing any act or decision of an official of any government worldwide or the United States Government (including a decision not to act) or inducing such person to use his or her influence to affect any such governmental act or decision in order to assist such party in obtaining, retaining or directing any such business.
