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ETF Global LLC Subscription Agreement
ETF Global LLC and/or its affiliates ("ETF Global") provides a service that makes available for transmission to and reception by subscribers certain market information, sometimes referred to as "Real-Time Streaming Quotes" (the "Service").
Your use of and access to the Service and the information made available through the Service are subject to your compliance with all of the terms and conditions set forth in this Subscription Agreement (the "Agreement").
As used in this Agreement, the terms below are defined as follows:
"Business Day": Any day other than: Saturday, Sunday, Good Friday, or a day which is appointed an official holiday in Canada, the Province of Quebec or in the United States.
"Claims" or "Losses:" Any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, judgments, settlements, and expenses of whatever nature, including, without limitation, i) direct, indirect, punitive, special, consequential and incidental damages, and ii) administrative costs, litigation costs, and attorneys' and auditors' fees and disbursements.
"Delayed Data": Market data that has been delayed for the delay period specified by the data's source prior to its release:
i) at least 15 minutes; or
ii) at least 20 minutes, restricted to fields which do not contain Information related to bid and offered prices, or index data which originates at the exchange, in the cases of Information originating at the New York Stock Exchange and the American Stock Exchange; or
iii) at least 20 minutes in cases of Information originating from the Dow Jones indexes. Delayed Data shall be subject to current and future restrictions specified by the originating exchange to satisfy per-exchange requirements for the distribution of delayed and/or non-proprietary data, and in all cases, clearly indicated as being delayed.
"Indemnified Parties":ETF Global, the Information Providers and each of their respective officers, directors, partners, employees and agents.
"Information": All information made available through the Service.
"Information Provider": Source from which ETF Global receives the Information made available through the Service including, but not limited to, any source of information for the Information Provider(s) which provide(s) the Information to ETF Global.
"Interrogation Device": Any device or equipment including, without limitation, any one computer, data processing equipment, communications equipment, terminal, cathode ray tube or monitor, which receives the Service from ETF Global, and which at any time during any month displays, transmits or communicates the Information to any individual in visual, audible, or other comprehensible form.
"Person"/references: Throughout this Agreement, the term "person" refers to any natural person, proprietorship, corporation, partnership, or other entity whatsoever; the singular refers to the plural and the plural refers to the singular, as appropriate.
"Real-Time Data": Market data provided as released by each Information Provider, with no built in delay.
"Subscriber", you or your: Each person who signs for the Service.
"System": The computerized securities information system operated by ETF Global which collects, processes and disseminates the Information.
Term of Service
System Interface. You shall be responsible for obtaining the requisite (a) common carrier communication lines and internet connection(s) and (b) interface with the System.
Configuration. You understand and agree that nothing in this Agreement shall be deemed to constitute an undertaking by ETF Global to continue to disseminate the Information in the present content description, form or configuration. ETF Global, in its sole discretion and without your consent, may from time to time, make modifications to the Information, the Service and the System, irrespective of whether such modifications would require changes to be made by you to the Interrogation Devices, or other equipment, or would render the Interrogation Device or such equipment inoperative with respect to the Information. You shall bear all risks of failing to make concurrent modifications to your Interrogation Devices or other equipment and you acknowledge and agree that neither ETF Global nor the Information Providers shall be responsible if such changes sever or affect your access to or use of the Service in any way.
Ownership of Software. Software included as part of the Service contains software proprietary to ETF Global and/or to third parties ("Third Party Suppliers") and licensed to ETF Global ("ETF Global Software"). ETF Global and Third Party Suppliers retain title and ownership to the ETF Global Software recorded on the media and all copyright and other intellectual property rights therein. Your receipt of the Service does not constitute a sale of the ETF Global Software or any copy. As licensee, you own the media on which the ETF Global Software is originally or subsequently recorded, but none of the content placed thereon. You agree not to alter, decompile, or disassemble the ETF Global Software.
Proprietary Rights; Corporate Names. You understand and agree that ETF Global and the Information Providers have proprietary rights in certain trade marks, service marks, trade names, corporate names and in the Information that originates on or derives from markets regulated or operated by the Information Providers and in the compilation of Information gathered from other sources (the "Intellectual Property"). You agree not to use such Intellectual Property in any way which would infringe the rights of ETF Global and the Information Providers. You agree not to alter, remove, or obscure any copyright notices or other proprietary notices on and in any part of the Service and to include on and in any copies of the ETF Global Software provided as part of the Service the same proprietary notices and other legends contained on and in the ETF Global Software as furnished by ETF Global.
Third Party Beneficiary. You agree that the Information Providers have the right to enforce the terms of this Agreement and are specifically intended to be third party beneficiaries hereof.
Authorized Use of Information. You are authorized to receive and use the Information solely in accordance with this Agreement. Any other use of the Information by you, including, but not limited to, retransmission or reprocessing, in whole or in part, is prohibited and you agree not to transmit, divulge, or publish any part of the contents or substance or in any way provide the Information, or any part thereof, to any other person. You acknowledge and agree that as a condition of its continued receipt of market information originating from ETF Global, its suppliers or any of their affiliates or agents, you shall not create, sponsor or permit the trading on its exchange facilities, if any, of financial instruments or investment products (including, without limitation, derivatives, structured products, investment funds, exchange-traded funds or derivatives based on exchange-traded funds (e.g., options on ETFs or futures on ETFs)) where the price, return and/or performance of such instrument or product is based on, related to, or intended to track, any index published by any of ETF Global's suppliers or financial instrument or investment product (e.g., an exchange-traded fund) linked to an index published by any ETF Global supplier, without a separate written agreement with the applicable ETF Global supplier for such purpose.
Subscription Fees. The subscription fees are set forth on the website for Real-Time Streaming Quotes and may be amended at ETF Global's sole discretion from time to time without notice and are payable monthly or annually in advance by credit card. Subscription fees which remain unpaid thirty (30) days after their due date shall bear interest at the rate of fifteen percent (15%) per annum or the maximum interest permitted by law, whichever is lesser, until paid.
A portion of your subscription fees may include an Exchange fee that is paid to the securities exchanges by ETF Global on a monthly basis. This Exchange fee is non-refundable.
Trials: If a trial period is offered, subscriptions are billed upon completion of the trial offer. You must cancel before your trial period has expired in order to prevent automatic and recurring billing of your subscription. If no trial period is offered, you will be billed upon signup and automatically until you cancel. There is a limit of one (1) trial offer per customer.
Monthly Subscribers: You agree to provide to ETF Global the right to debit your credit card monthly in advance for all Service provided to you. You may cancel at any time, but you are subject to a 30 day cancellation policy if you cancel after your trial period has expired.
Annual Subscribers: You agree to provide to ETF Global the right to debit your credit card annually in advance for all Service provided to you. Cancellations must be made before your current annual period expires in order to prevent automatic and recurring billing of your subscription. No refunds are permitted for annual subscriptions.
Taxes. You shall be solely responsible for the payment of any taxes, charges or assessments imposed on you or ETF Global, and any penalties or interest thereon, relating to the provision of the Service (except for any income taxes, if any, imposed on ETF Global).
All New York State residents must pay 8.875% sales tax on subscription and exchange fees.
Information from Subscribers. All information provided to you pursuant to this Agreement is being provided at the request of you and the Information Providers. ETF Global shall request in writing any additional information from you required by any Information Providers or their auditors. Failure to promptly provide the requested information shall result in termination of access to the Service until such time as the request is complied with.
Representations by Non-Professional Subscriber. You represent and warrant that you: i) are an individual neither (A) acting as a broker or dealer in the purchase or sale of negotiable financial instruments for third parties and registered or qualified in any capacity under any U.S. federal or state or Canadian or provincial securities or commodities trading law, rule or regulation, or the rules or regulations of any securities or commodities exchange, market or association; (B) engaged as an "investment advisor" or "investment banker" as defined in the Investment Advisors Act of 1940 of the United States (whether or not registered or qualified under that Act); nor (C) employed by a bank or other organization exempt from registration under federal, state or provincial securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt; ii) shall use the Information solely in connection with your own individual personal investment activities and not in connection with any trade or business activities; iii) are over eighteen (18) years of age and your principal place of residence is in the United States or Canada; and iv) are a party to this Agreement in your own capacity and not on behalf of a firm, corporation, partnership, trust or association.
Compliance with Laws. You represent and warrant that you are not engaged in, and agree not to engage in, any unlawful transaction or business, and/or will not use or knowingly permit anyone to use the Information and/or the Service for: i) any purpose or in any manner not authorized by this Agreement, or ii) for any unlawful purpose or in any manner not in compliance with the statutes, rules and regulations referenced in Section 10.
No Endorsement. You understand that neither ETF Global, nor any part of the Service, or any equipment utilized by ETF Global is sponsored or endorsed by any of the Information Providers.
NO WARRANTIES. ETF Global shall furnish the Service and the Information to you as promptly and accurately as is reasonably practicable, but neither ETF Global nor the Information Providers, their respective affiliates, agents and licensors warrant or guarantee the timeliness, sequence, accuracy or completeness of the Information. FURTHER, WITH RESPECT TO THE INFORMATION AND THE SERVICE, THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OF THE INFORMATION OR SERVICES AVAILABLE THROUGH THE SERVICE. NEITHER ETF Global, THE INFORMATION PROVIDERS NOR THEIR THIRD-PARTY INFORMATION PROVIDERS AND THEIR RESPECTIVE AFFILIATES, AGENTS OR LICENSORS SHALL BE LIABLE TO YOU OR ANYONE ELSE FOR ANY LOSS OR INJURY CAUSED IN WHOLE OR IN PART BY THEIR NEGLIGENCE OR CONTINGENCIES BEYOND THEIR CONTROL IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING ANY INFORMATION OR SERVICE OR BY ANY DELAYS, INACCURACIES, ERRORS IN OR OMISSIONS OF ANY OF THE INFORMATION OR THE TRANSMISSION THEREOF OR IN THE PROVISION OF THE SERVICE. IN NO EVENT WILL ETF Global, THE INFORMATION PROVIDERS, THEIR THIRD-PARTY INFORMATION PROVIDERS, AND THEIR RESPECTIVE AFFILIATES, AGENTS OR LICENSORS BE LIABLE TO YOU OR ANYONE ELSE FOR ANY DECISION MADE OR ACTION TAKEN BY YOU IN RELIANCE UPON SUCH INFORMATION OR SERVICE.
Limitation of Liability. Neither ETF Global nor the Information Providers and their respective affiliates, agents or licensors, shall be liable to you , or any other person, regardless of the cause (unless resulting from the gross negligence or willful misconduct of ETF Global or the Information Providers) or duration, for any errors, inaccuracies, omissions, or other defects in, or untimeliness or unauthenticity of, the Service or Information, or for any delay or interruption in the transmission thereof to you, or for any Claims or Losses arising there from or occasioned thereby. Neither ETF Global nor the Information Providers and their respective affiliates, agents or licensors shall be liable to you or to any other person for indirect, punitive, special, consequential or incidental damages (including, but not limited to, trading losses, loss of profits or 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 ETF Global, the Information Providers, or their respective affiliates, agents or licensors have been advised of the possibility of such damages.
If any or all of ETF Global, the Information Providers and their respective affiliates, agents or licensors are for any reason held liable to you or to any person, the liability of any or all of ETF Global, the Information Providers and their respective affiliates, agents or licensors and any other person claiming through, on behalf of, or as harmed by you, is limited to: i) if you continue to receive the Information, a month's credit of any monies paid to ETF Global by you for the period at issue; or ii) if you no longer receive the Information, a refund of any monies due to ETF Global from you for the period at issue.
Indemnification of ETF Global. You shall indemnify the Indemnified Parties against, and hold the Indemnified Parties harmless from, any and all Claims or Losses imposed on, incurred by, or asserted against the Indemnified Parties as a result of or relating to your non-compliance with any of the terms and conditions of this Agreement and your breach of any of your representations and warranties in this Agreement.
Default by Subscriber. If ETF Global determines, in its sole discretion, that i) you are not in compliance with any of the conditions, terms or provisions of this Agreement; ii) any of your representations in this Agreement are untrue; or iii) a petition or other proceeding in bankruptcy, insolvency, or for the appointment of a receiver is filed by or against you, then ETF Global shall have the immediate right, in its sole discretion, to take one or more of the following actions: x) to terminate this Agreement without notice; or y) to pursue such other remedies as it may be entitled to by virtue of or under this Agreement, or at law or in equity.
Default by ETF Global. If ETF Global has breached or is in default under this Agreement, and such breach or default continues unremedied for fifteen (15) days after you have given written notice to ETF Global, you shall have the right to take one or more of the following actions; provided, however, that if such breach cannot be remedied by ETF Global in good faith and with due diligence within fifteen (15) days and the failure to so remedy within fifteen (15) days does not cause you to be in violation of applicable laws or regulations or to otherwise materially injure you, then ETF Global shall not be considered to be in default for so long as ETF Global commences such actions as are necessary to remedy such breach within such fifteen (15) day period and thereafter diligently pursues such actions to remedy such breach or default: i) terminate this Agreement; or ii) to pursue such other remedies, as you may be entitled to by virtue of or under this Agreement or at law or in equity.
Term. The initial term of this Agreement shall commence on the date specified in Section 30 (the "Commencement Date") and shall continue until the end of the current calendar month if the subscription is effectuated before the 15th day of the month and the applicable monthly fees will be prorated accordingly. If the subscription is effectuated on or after the 15th day of the month, then the initial term shall begin on the Commencement Date and will continue until the end of the calendar month following the month of the Commencement Date, and the applicable monthly fees will be prorated accordingly. Subsequent to the initial term, the term of this Agreement shall automatically be extended for successive additional periods of one (1) month unless terminated by written notice by a party hereto. Notice must be received by ETF Global by the twentieth (20th) day of any month for termination to be effective on the last day of such month.
No Use of Information After Termination. Upon termination of this Agreement for whatever reason, you shall immediately cease any and all use of the Information.
Assignment; Third-Party Rights. This Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns. You shall not assign this Agreement or any of your rights and obligations hereunder without the prior written consent of ETF Global, which shall not be unreasonably withheld. ETF Global may assign this Agreement and all of ETF Global's rights and obligations hereunder to an affiliate or subsidiary or to the surviving entity in the case of a merger or sale of all or substantially all of the assets of ETF Global, provided however, that such assignment shall not relieve ETF Global of its obligations hereunder.
Amendment. No amendment shall be binding on ETF Global unless provided in an instrument duly executed by an authorized officer of ETF Global.
Waiver; Good Faith. No failure on the part of ETF Global or you to exercise, or delay in exercising, any right, power or privilege, 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. The parties hereto shall act in good faith in the performance of their respective obligations under this Agreement and shall act as promptly as is reasonably practicable under the circumstances in granting or denying any consent or approval required hereunder.
Entire Agreement. This Agreement constitutes the entire agreement between you and ETF Global with respect to the subject matter hereof, and supersedes all prior negotiations, communications, understandings and agreements with respect thereto.
Governing Law. This Agreement shall be deemed to be entered into, governed by and construed in accordance with the laws of the state of New York without reference to its conflict of laws principles.
Notices. All notices, approvals, proposals and other communications required or permitted to be given under this Agreement shall be in writing and shall be delivered either by personal delivery, telex, facsimile, e-mail or other similar telecommunications device, or mailed to the appropriate contact persons as described below. Any notice, consent or other communication delivered hereunder shall be deemed to have been delivered and received, if sent by telex, facsimile, email or other similar telecommunications device on the Business Day next following receipt of such transmission or, if personally delivered or delivered by mail, to have been delivered and received on the date of such delivery, provided however, that if such date is not a Business Day, then it shall be deemed to have been delivered and received on the Business Day next following the date of such delivery. Either party may change its address for service or specify a different contact person for purposes of this Section 25 by giving notice as provided hereunder. Notices to ETF Global must be sent to: ETF Global LLC, 501 Madison Avenue – Suite 501, New York, NY 10022; with a facsimile copy to 646-607-9877, Attn: Legal Department. Notices to Subscriber must be sent to: The Subscriber e-mail address as provided by Subscriber during the online subscription process.
Severability. Any Section, Subsection or other subdivision of this Agreement or any provision of this Agreement which is, or becomes, illegal, invalid or unenforceable shall be severed here from and shall be ineffective to the extent of such illegality, invalidity or unenforceability and shall not affect or impair the remaining provisions of this Agreement.
Force Majeure. In addition to the provisions of Sections 13 and 14, neither you nor ETF Global shall be liable for delay or failure in performance of any of the acts required by this Agreement when such delay or failure arises from circumstances beyond the reasonable control and without the gross negligence or willful misconduct of you or ETF Global, respectively. Such causes may include, without limitation, acts of God, acts of government in its sovereign or contractual capacity, acts of public enemy, acts of civil or military authority, war, riots, civil strife, terrorism, blockades, sabotage, rationing, embargoes, epidemics, earthquakes, fire, flood, quarantine restrictions, power shortages or failures, utility or communication failure or delays, labor disputes, strikes, or shortages, supply shortages, equipment failures, or software malfunctions. The time for performance of any act delayed by such events may be postponed for a period equal to the period of the delay. This Section 27 shall not apply to the payment of money and shall not toll the accrual of interest.
Survival. The provisions of Sections 3, 4, 7, 8, 9, 12, 13, 14, 15, 16, 17, 24, 27 and 28 shall survive the completion of performance or any termination of this Agreement.
Change of Agreement Terms by ETF Global. ETF Global reserves the right to change the terms of this Agreement, including the associated Service fees, without notice to you and such notice shall become effective as described in Section 25 above.
Agreement Effective Date. The effective date of this Agreement shall be the date of acceptance by you of this Agreement as evidence by you clicking the "Continue" button herein, or the date you actually use the Service, whichever occurs first. Payment shall be accepted by credit card only.