Terms and Conditions
Advantage Data Terms and Conditions of Service
ATTENTION: PLEASE READ THESE TERMS CAREFULLY BEFORE USING THIS SITE. BY PROCEEDING INTO THE SITE OR ANY SERVICE OF THIS SITE YOU SIGNIFY YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SERVICE (hereinafter the “Terms & Conditions”). From time to time, Advantage Data, in its sole discretion, may modify these terms and conditions. Accordingly, please review these terms and conditions whenever accessing or using this site. Your use of the Service (as defined below) after the posting of modifications to the Terms & Conditions of service will constitute YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS OF SERVICE, AS MODIFIED.
Hereafter, Advantage Data Inc. will be referred to as “ADI”, and the end user and company at which such end user is employed will be referred to as “user”. This site and any content, information, service, application or data that ADI provides to user through this site or otherwise will be referred to collectively, as the “Service”, and the time frame beginning with user’s first access to the site until ADI discontinues user’s access will be referred to as the “Access Period.” The term “Supplier(s)” means individually and collectively, the direct and indirect, affiliated and unaffiliated, vendors, service providers, and data sources of ADI and their respective Affiliates. The term “Affiliate(s)” means the ultimate corporate parent of ADI or any of its Suppliers, the direct and indirect majority owned subsidiaries of such parent, as well as all of its officers, directors, employees, and agents.
As pertains to any developers or technicians employed by ADI or any of ADI’s ISP or software vendors who access the site, such persons assent to sections 1, 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 13, 15, 16, 17, 18, 19 , 20, 21, 22, 23, 24 and 26 of the Terms & Conditions.
1. USER CONSENT TO TERMS. User represents and agrees to be bound by the Terms & Conditions. ADI may provide user with security devices or prescribe security procedures (the “Security Measures”) relating to use or access to some or all of the Service, which may include, but are not limited to, the use of such devices as digital certificate(s), user name(s) and/or password(s) (any such devices being referred to hereafter as “User Code(s)”). Any input of a User Code to access the Service shall constitute user’s representation and warranty at such time that: (a) user is the person to whom the User Code that user had used and are using to access the Service was issued, (b) the information provided to ADI in the course of issuance of such User Code was and is accurate and complete, (c) user’s authority to represent and receive information regarding the person(s) on whose behalf user was issued such User Code, or whose information is made available through the Service, has not been revoked, and (d) user’s access to and use of the Service has not exceeded, and will not exceed, such authority. Furthermore, user agrees that any agreement, consent or assent communicated from such access to the Service, or any internet site where any of the Service is made available or to which they are linked, shall be deemed to be a duly signed writing of user sufficient to bind user thereto. User further agrees: (a) to comply with U.S. law regarding the transmission of any data obtained from the Service in accordance with the Terms & Conditions, and (b) not to use the Service for illegal purposes.
2. TITLE. Title, ownership rights, and intellectual property rights in the Service and documentation (“Documentation”) shall remain in ADI and/or its Suppliers. The Service is protected by copyrights, trademarks, service marks, international treaties and/or other proprietary rights and laws of the U.S. and other countries. The Terms & Conditions give user no rights to such content. The Service is also protected as a collective work or compilation under U.S. copyright and other laws and treaties.
3. CONFIDENTIALITY. User will not at any time or in any manner, either directly or indirectly, use for the personal benefit of user, or divulge, disclose, or communicate to a third party in any manner any information that is proprietary to ADI and/or its Suppliers. User will protect such information and treat it as strictly confidential. The obligation of user not to disclose confidential information shall continue during the Access Period and for a period of ten (10) years after user’s last access to the Service.
4. RESTRICTIONS ON USE. The service is solely and exclusively for the use of the user and shall not be used for any illegal purpose or in any manner inconsistent with the provisions of the Terms and Conditions. User agrees not to use, transfer, distribute or dispose of any information contained in the Service that would compete with the business of ADI and/or its Suppliers. User acknowledges that the Service has been developed, compiled, prepared, revised, selected and arranged by ADI and others (including its Suppliers) through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and money and constitutes valuable intellectual property and trade secrets of ADI and such others. User agrees to protect the proprietary rights of ADI and all such others having rights in the Service during and after the Access Period and to comply with all reasonable written requests made by ADI or its Suppliers to protect their and others’ contractual, statutory and common law rights in the Service. User agrees to notify ADI in writing promptly upon becoming aware of any unauthorized access or use of the Service by any party or of any claim that the Service infringes upon any copyright, trademark or other contractual, statutory or common law rights of a third party.
5. FURTHER RESTRICTIONS ON USE. User may not:
- copy, cut, paste from, reproduce, recompile, decompile, disassemble, reverse engineer, distribute, publish, display, perform, modify, create derivative works from, transmit or in any way exploit any part of the Service unless otherwise explicitly authorized in writing by ADI or the appropriate Supplier. Where such written permission or access is given data is for ad hoc internal use only meaning for use generally within a user’s specific department, including but not limited to, preparation of hardcopy reports, but is not intended to be for further dissemination in electronic form, electronic dissemination of viewable information, or for construction of products or services that would compete with any of the Services, including, but not limited to databases or data feeds of any kind. Internal use does not include use for the benefit of a parent or affiliated organization of a user or joint venture to which a user is a party;
- recirculate, redistribute or publish the analysis and presentation included in the Service without both ADI’s prior written consent and proper attribution to “Advantage Data Inc.” (or as otherwise instructed by ADI). Modification of the Service’s content would be a violation of ADI’s and/or its Suppliers’ copyright and other proprietary rights
- offer any part of the Service for sale or disclose or distribute it over any other medium including but not limited to over-the-air television or radio broadcast, a computer network or hyperlink framing on the internet without the prior written consent of ADI and/or the appropriate Supplier;
- use the Service or any part thereof to construct a database of any kind. Nor may the Service be stored (in its entirety or in any part) in databases for access by user or any third party or to distribute any database services containing all or part of the Service;
- use the Service in any way to improve the quality of any data sold or contributed by user to any third party;
- use the Service in an illegal or unethical manner;
- compete against the Service in any direct or indirect way;
- show or demonstrate the Service to any web developer or third party vendor;
- share his/her User Code or access to the Service with any other person or entity. Each person who accesses or uses the Service must have his/her own unique User Code issued by ADI;
- allow any part of the Service to be cached in proxy servers and accessed by individuals who do not have their own unique username and password;
- unless explicitly authorized in writing by ADI or the appropriate Supplier, reproduce, transmit, display or commercially exploit any information or material contained on or in the Service without the written consent of ADI or the appropriate Supplier(s); and
- use a free trial of the Service for productive purposes other than to evaluate the Service.
6. User agrees to be responsible for all data or information and assumptions input into the Service and all consequences thereof, whether entered by authorized or unauthorized personnel or by any other person or entity. ADI does not assume responsibility for the accuracy or completeness of such data, information and assumptions. User further agrees that: (i) it shall not, nor shall user permit any other person or entity to, remove, modify, exchange, disable, penetrate or otherwise defeat any Security Measures; (ii) it will take all necessary actions to preserve the confidentiality of any User Codes; (iii) it shall restrict access to any User Code and the Service to those persons who are duly authorized to have such access; (iv) it is responsible for all acts or omissions that occur under any such User Code; and (v) it shall notify ADI immediately in writing upon the occurrence of any of the following: (w) any such User Code is lost, stolen, or improperly disclosed to a third party; (x) the authority or employment of any person in User’s organization who has been issued a User Code has been, or is about to be, terminated; (y) the confidentiality of any such User Code has been compromised in any way; or (z) it learns about a possible or actual unauthorized access to and/or use of the Service.
7. LINKS TO OTHER WEB SITES. Links to third party Web sites on the Service are provided solely as a convenience to user. ADI has not reviewed these third party sites and does not control and is not responsible for any of these sites or their content. ADI does not endorse or make any representations about them, or any information, software or other products or materials found therein, or any results that may be obtained through their use. If user decides to access any of the third party sites linked to the Service, user does so entirely at his or her own risk.
8. USER SUBMISSIONS. User is prohibited from posting or transmitting to or from the Service any unlawful, threatening, libelous, defamatory, obscene, pornographic, or other material that would violate any law or regulation.
9. LICENSE. User acquires absolutely no rights or licenses in or to the Service and materials contained within the Service other than the limited non-exclusive, non-transferable, non-sublicenseable and revocable license to utilize the Service during the Access Period in accordance with the Terms & Conditions. ADI and its Sources hereby reserve all rights and licenses not herein specifically granted to User.
10. SUBMITTED MATERIAL. If user submits material, including but not limited to research reports, bond pricing, descriptive data, new issuance and forward calendar information, to the Service, unless ADI indicates otherwise, user grants ADI, its successors and assigns, a nonexclusive, royalty-free, perpetual, irrevocable, and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, copy, and display such content throughout the world in any form, media, or technology now known or hereafter developed. User grants ADI the right to use the name that user submits in connection with such content. User represents and warrants that user owns or otherwise controls all of the rights to the material that user submits; that the material user submits is truthful and accurate; that use of the material user supplies does not violate these Terms and Conditions of Service and will not cause injury to any person or entity; and that user will indemnify ADI and its Suppliers, agents, directors, officers, employees, representatives, successors, and assigns disclaim any responsibility and assume no liability for any material submitted by user or any third party.
11. RIGHTS RESERVED. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including rights in and to all applications and registrations relating to the Service (the “Intellectual Property Rights”) shall, as between user and ADI, at all times be and remain the sole and exclusive property of ADI and/or its Suppliers. All present and future rights in and title to the Service (including the right to exploit the Service and any portions of the Service over any present or future technology) are reserved to ADI and/or its Suppliers for their exclusive use.
12. REVIEW BY ADI. During the Access Period, User agrees to allow ADI representatives to come to user’s office to review use of the Service. The review shall be scheduled upon reasonable notice during normal business hours.
13. UPGRADES. ADI reserves the right at any time to update and upgrade the Service, including but not limited to the user interface, databases, functionality, procedures and documentation. User accepts that ADI has the right to change the content or technical specifications of any aspect of the Service at any time at ADI’s sole discretion and without notice, and that the Terms & Conditions are subject to any requirements of ADI’s agreements with Suppliers, including those requirements which may be imposed by such Suppliers from time to time. User further accepts that such changes may result in user being unable to access the Service.
14. NON-COMPETE COVENANT. During the Access Period and for a period of three (3) years after user’s last access to or use of the Service, user will not directly or indirectly engage in any business that competes with ADI and/or its Suppliers.
15. NON-SOLICITATION COVENANT. During the Access Period and for a period of three (3) years after user’s last access to or use of the Service, user will not directly or indirectly solicit business from, or attempt to sell, license or provide the same or similar service or services as are now provided or are planned to be provided to any customer or client by ADI and/or its Suppliers. Further, during the Access Period and for a period of three (3) years after user’s last access to or use of the Service, user will not directly or indirectly solicit, induce or attempt to induce any employee of ADI to terminate his or her employment with ADI.
16. FEES AND PAYMENTS. Upon receiving user’s authorization for a subscription, ADI shall charge fees for access to the Service on a quarterly basis either for an annual subscription or a calendar quarter-to-quarter subscription. Portions of the Service may be billed on a monthly basis to get user onto a standard calendar quarterly billing regimen. ADI reserves the right to change these fees at any time. Each subscription is intended for one user only. Each person who accesses or uses the Service must have their own unique username and password issued by ADI.
17. TERM AND TERMINATION. ADI may terminate user’s User Code and authorized access at any time for any reason in its sole discretion. Furthermore, any violation of the Terms & Conditions, fraudulent, abusive, or otherwise unauthorized or illegal activity may be grounds for termination. User may terminate his or her account by providing 30 days notice before the end of the current annual term by notifying ADI in writing or sending an e-mail to email@example.com and destroying all materials obtained from the Service and any copies thereof. All cancellations will take effect at the end of the subscription term providing that no less than 30 days notice is given, otherwise cancellations with take effect at the end of the next annual subscription term. Quarterly subscriptions are only available to accounts with 5 users or less. User may terminate quarterly accounts by providing no less than 30 days notice before the end of the then current term. Upon termination, any balances remaining on the account will be disclosed to user and due within thirty (30) days. Sections two through fourteen (2-14) and sixteen through thirty (16-30) shall survive any termination of the Terms & Conditions.
18. TRANSFER POLICY. User access may be transferred during the annual or two year term when an end user leaves the firm, his or her job functions have proven to have materially changed, or at the reasonable discretion of ADI. User access must be transferred in its entirety, modules may not be divided between multiple end users. User access will absolutely not be allowed to be transferred more than once in any 6 month period, but all transfers remain at the reasonable discretion of ADI. In instances where multiple end users are found to be sharing an account in violation of these Terms and Conditions, all end users must be properly licensed before any user access may be transferred.
19. DISCLAIMER. The Service is provided by ADI exclusively on an “as is” basis only. To the fullest extent permissible by law, neither ADI nor its Suppliers make any representation or warranty of any kind, express or implied, including, without limitation, warranties of merchantability, fitness for a particular purpose, title, non-infringement, freedom from computer virus, and implied warranties arising from course of dealing or course of performance. Neither ADI nor its Suppliers make any representation, warranty or guarantee as to the accuracy or completeness of the information (including news, prices, statistics, analyses and the like) provided through the Service. Neither ADI nor its Suppliers make any warranty that the Service will meet users’ requirements, or that the Service will be uninterrupted, timely, secure or error free. Any copying, reproduction and/or redistribution of any of the documents, data, content or materials contained on or provided by the Service, without the express written consent of ADI is strictly prohibited. User expressly agrees that the entire risk as to the quality and performance of the Service and the accuracy or completeness of the content is assumed solely by user. In no event shall ADI, its Suppliers, or their respective Affiliates be liable to any person or firm or any other third party for any decision made or action taken in reliance upon the information provided by or through the Service. Neither ADI nor its Suppliers shall be responsible for user’s data residing on ADI servers. User is responsible for printing and storing current copies of user’s information. Neither ADI nor its Suppliers take any responsibility for the content, claims or representations of any contributors or users to this Service. Neither ADI nor its Suppliers warrant availability or response time of the Service.
20. FURTHER DISCLAIMER AND LIMITATION OF LIABILITY. Anything to the contrary herein set forth notwithstanding, ADI, its Suppliers, and their respective officers, employees, Board of Directors, general partner, affiliates, subsidiaries, successors and assigns, and third-party agents shall not, directly or indirectly, be liable, in any way, to user or any other person or entity for any: (i) inaccuracies or errors in or omissions from the Service including, but not limited to, quotes and financial data; (ii) delays, errors or interruptions in the transmission or delivery of the Service; or (iii) loss or damage arising there from or occasioned thereby, or by any reason of nonperformance.
21. LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL THE INDEMNIFIED PARTIES (DEFINED IN SECTION 21 BELOW) BE LIABLE TO USER OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY OR CONSEQUENTIAL DAMAGES EVEN IF AN ADI AUTHORIZED REPRESENTATIVE HAD BEEN ADVISED SPECIFICALLY OF THE POSSIBILITY OF SUCH DAMAGES ARISING FROM USE OF OR INABILITY TO USE THE SERVICE OR ANY LINKS OR ITEMS ON THE SERVICE OR ANY PROVISION OF THE TERMS & CONDITIONS, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS. Applicable law may not allow the limitation or exclusion of liability or incidental or consequential damages. IN NO EVENT SHALL THE INDEMNIFIED PARTIES’ TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE LESSER OF $100.00 OR TEN PERCENT (10%) OF THE AVERAGE AMOUNT RECEIVED BY ADI FROM USER UNDER THESE TERMS & CONDITIONS FOR THAT PORTION OF THE SERVICE WHICH IS AT ISSUE, WHICH AMOUNT SHALL BE CALCULATED BASED ON THE PRECEDING TWELVE (12) MONTH PERIOD (OR IF THIS AGREEMENT HAS BEEN IN EFFECT FOR FEWER THAN TWELVE (12) MONTHS, THAT PERIOD OF TIME DURING WHICH THESE TERMS & CONDITONS WERE IN EFFECT). USER AGREES THAT THE REMEDIES, DISCLAIMERS, LIMITATIONS AND INDEMNITY SET FORTH IN THESE TERMS & CONDITIONS ALLOCATE THE RISKS OF SERVICE NONCONFORMITY BETWEEN ADI AND USER AS AUTHORIZED BY ALL APPLICABLE LAWS AND REGULATIONS. THE FEES IN THESE TERMS & CONDITIONS REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF RISK AND THE EXCLUSION OF CONSEQUENTIAL DAMAGES SET FORTH IN THESE TERMS & CONDITIONS.
22. REPRESENTATIONS AND WARRANTIES. User represents, warrants and covenants that: (a) user has the power and authority to enter into this agreement; (b) user is at least eighteen (18) years old; (c) user shall not use any rights or licenses granted hereunder for any unlawful purpose; and (d) user shall use the Service only as described in the Terms & Conditions.
23. INDEMNIFICATION. User agrees, at user’s own expense, to indemnify, defend and hold harmless ADI, its Suppliers, and their respective Affiliates, employees, representatives, and agents (individually an “Indemnified Party” and collectively the “Indemnified Parties”), against any claim, suit, action, government or regulatory investigation, arbitration or other proceeding (all of the foregoing collectively, a “Claim”) brought against an Indemnified Party, by a third party, to the extent that such Claim is based on or arises in connection with users’ access to or use of the Service, or any links on the Service, including, but not limited to: (i) user’s use or anyone’s unauthorized use of or access to the Service, including, via user’s computer or any computer with user’s User Code; (ii) user’s use of, or someone using, user’s account, where applicable; (iii) a violation of the Terms & Conditions by user or anyone using user’s computer, User Code (or account, where applicable); (iv) a claim that any use of the Service by user or someone using user’s computer, User Code (or account, where applicable) infringes any Intellectual Property Right (as herein defined) of any third party, or any right of personality or publicity, is libelous or defamatory, or otherwise results in injury or damage to any third party; (v) any additions, deletions, alterations to, insertions, or any unauthorized use of, the Service by user or someone using user’s computer, User Code (or account, where applicable); (vi) any misrepresentation or breach of representation or warranty made by user contained herein; or (vii) any breach of any covenant or agreement to be performed by user hereunder. User agrees to pay any and all costs, damages and expenses of the Indemnified Parties as incurred, including, but not limited to, reasonable attorney’s fees and costs awarded against or otherwise incurred by or in connection with or arising from any such Claim.
24. NOTICES, ADVERTISEMENTS AND CUSTOMER LISTS. ADI reserves the right to use the name of user’s firm in any notices, advertisements and customer lists.
25. SECURITY DISCLOSURES. Moody’s Investors Services, Inc. (‘MIS’) hereby discloses that most issuers of debt securities (including corporate and municipal bonds, debentures, notes and commercial paper) and preferred stock rated by MIS have, prior to assignment of any rating, agreed to pay to MIS for the appraisal and rating services rendered by it fees ranging from $1,500 to $2,400,000. Moody’s Corporation (MCO) and its wholly-owned credit rating agency subsidiary, MIS also maintain policies and procedures to address the independence of MIS’s ratings and rating processes. Information regarding certain affiliations that may exist between directors of MCO and rated entities, and between entities who hold ratings from MIS and have also publicly reported to the SEC an ownership interest in MCO of more than 5%, is posted annually on Moody’s website at www.moodys.com under the heading “Shareholder Relations — Corporate Governance — Director and Shareholder Affiliation Policy.”
User expressly agrees, on behalf of itself and each other person or entity that it permits to use any Information (“User”), that (a) the credit ratings and other opinions contained in such Information are, and will be construed solely as, statements of opinion and not statements of fact or recommendations to purchase, hold or sell any securities, (b) each rating or other opinion will be weighed solely as one factor in any investment decision made by or on behalf of Subscriber or any User, and (c) it will accordingly make its own study and evaluation of each security, and of each issuer and guarantor of, and each provider of credit support for, each security that it may consider purchasing, holding or selling.
26. RELEASE. Because ADI is not and cannot be involved in user-to-user dealings, in the event that user has a dispute with one or more users, user releases the Indemnified Parties from claims, demands and damages (actual, consequential and punitive) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Service or such disputes. User waives the provisions of any state law limiting or prohibiting such a release.
27. INJUNCTION. It is agreed that if user violates the Terms & Conditions, irreparable harm will occur and money damages will be insufficient to compensate ADI and/or its Suppliers. Therefore, ADI and/or its Suppliers, as the case may be, shall be entitled to injunctive relief (i.e., a court order that requires user to comply with the Terms & Conditions) among other remedies to enforce the terms of the Terms & Conditions.
28. SEVERABILITY. The parties have attempted to limit the non-compete provision so that it applies only to the extent necessary to protect legitimate business and property interests. If any provision of the Terms & Conditions shall be held to be invalid or unenforceable for any reason, the remaining provision shall continue to be valid and enforceable. If a court finds that any provision of the Terms & Conditions is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed, and enforced as so limited.
29. ENTIRE AGREEMENT. The Terms & Conditions and any other terms and conditions on www.advantagedata.com and its successor, constitute the entire agreement between user and ADI and govern use and access to the Service.
30. GOVERNING LAW. The Terms & Conditions shall be governed and construed in accordance with the laws of the United States and the Commonwealth of Massachusetts (except for conflict of law provisions). User agrees to submit to the personal jurisdiction of the state and federal courts located in Suffolk County in the Commonwealth of Massachusetts with respect to any legal proceedings that may arise in connection with the Service or from a dispute as to the interpretation or breach of the Terms & Conditions. The application of the United Nations Convention of Contracts for the International Sale of Goods is expressly excluded. Although User and its employees may remotely access the Service or any portion thereof via computer interface, such systems are maintained in Massachusetts and such access will be and for all purposes will be deemed to be in Massachusetts.
31. REMEDIES. All remedies set forth in the Terms & Conditions are cumulative and in addition to and not in lieu of any other remedy of the Indemnified Parties at law or in equity.
32. SURVIVAL. The terms and conditions providing for any activity following the termination or expiration of this Agreement, any warranties, disclaimers, remedies and any indemnification obligations, and any other provision which, by its terms is intended to survive the termination of the Terms & Conditions, shall survive the termination or expiration of the Terms & Conditions.
33. WAIVER. Any failure of one party to comply with any obligation hereunder may be expressly waived in writing by the other party, but such waiver or failure to insist upon strict compliance with such obligation shall not operate as a waiver of, or estoppel with respect to, any subsequent failure.
BTDS SUBSCRIBER AGREEMENT
The BTDS Subscriber Agreement appears below. If you are at least 18 years old, execute 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 BTDS Subscriber 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 BTDS Subscriber Agreement and legally bind Subscriber to the BTDS Subscriber Agreement.
A. MANDATORY FOR ALL SUBSCRIBERS
Date of Execution:
B. AGENT USE ONLY (complete only if you signed on behalf of the Subscriber)
(Enter Name of person signing for Subscriber)
(In order to enter into this Agreement you must have actual authority to legally bind Subsriber)
THE VENDOR (INCLUDING ITS REPRESENTATIVES AND AGENTS) MAY NOT MODIFY OR WAIVE ANY TERM OF THIS BTDS SUBSCRIBER AGREEMENT. ANY ATTEMPT TO MODIFY THIS BTDS SUBSCRIBER AGREEMENT, EXCEPT BY FINRA, IS VOID.
1. Definitions and Usages.
a. “FINRA” means The Financial Industry Regulatory Authority, Inc. and its subsidiaries, affiliated entities.
b. “Information” means certain data and other information relating to eligible corporate debt securities or other financial instruments, products, vehicles or devices; or relating to Persons regulated by FINRA or to activities of FINRA; or gathered by FINRA from other sources.
c. “Or” includes the word “and”.
d. “Business Day” means any day when FINRA is disseminating the Information in realtime.
e. “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 (1) indirect, special, punitive, consequential or incidental loss or damage, (including trading losses, loss of opportunities, loss of anticipated revenues, 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 each case, in-house personnel).
f. “Including”, “includes” or “include” shall mean “including, without limitation”.
g. “Person” means any natural person, proprietorship, corporation, partnership, or other entity whatsoever.
h. “Non-Professional Subscriber” shall have the meaning “a natural person who uses TRACE transactions data solely for his or her personal, non-commercial use” or as set forth in FINRA Rule 7010(k) or any successor thereto.
i. “Professional Subscriber” shall have the meaning set forth in FINRA Rule 7010(k) or any successor thereto..
J. “Vendor’s Service” means the service from a vendor, including the data processing equipment, software, and communications facilities related thereto, for accessing, receiving, processing, transmitting, using and disseminating the Information to or by Subscriber.
2. Subscriber is granted the right to receive from FINRA the Information under the terms stated herein and in the FINRA Rules. “FINRA 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 FINRA including those requirements established by FINRA’s rule filings (with such SEC approval as may be required), FINRA’s decisions and interpretations or successors of the components of the FINRA Rules, as they may exist at the time. For Professional Subscriber, if any payment is due directly to FINRA under this BTDS Subscriber Agreement, payment in full is due FINRA in immediately available U.S. funds by check or electronic funds transfer drawn against a United States bank or other financial institution acceptable to FINRA or by any other means mutually acceptable to the parties, within thirty (30) days of the date of an invoice, whether or not use is made of, or access is made to, the Information. Interest at the rate of one percent (1%) per month on any outstanding balance shall be due from the date thirty (30) days after the date of the invoice to the time that the amount(s) that are due have been received by FINRA. Subscriber shall assume full and complete responsibility for the payment of all taxes, charges or assessments imposed on Subscriber or FINRA (except for U.S. federal, state, or local income taxes, if any, imposed on FINRA) 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 nonprofessional subscriber rate, Subscriber is affirming to Vendor and FINRA 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 FINRA 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 false, unfair, misleading, or discriminatory format. Subscriber shall take all reasonable security precautions to prevent unauthorized Persons from gaining access to the Information.
4. Subscriber acknowledges that FINRA, 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. FINRA shall not be responsible for such effects.
5. FINRA grants to Subscriber a nonexclusive, non-transferable, non-assignable right and license during the term of this BTDS Subscriber Agreement to receive and use the Information transmitted to it by Vendor for any purpose not inconsistent with the terms of this BTDS Subscriber Agreement or with the FINRA Rules. Subscriber acknowledges and agrees that FINRA owns all right, title and interest, including intellectual property and other proprietary rights in and to the Information and any further derivatives or compilations thereof. Subscriber further acknowledges and agrees that FINRA’s third party providers own all right, title and interest, including intellectual property and other proprietary rights in and to their respective Information. In the event of any misappropriation or misuse, FINRA and its third party providers shall have the right to obtain injunctive relief for their respective materials, and Subscriber agrees that FINRA and each of its third party providers shall be a third party beneficiary of this BTDS Subscriber Agreement for such purpose. Subscriber will attribute the source of the Information as appropriate under all the circumstances, and will not remove or modify any proprietary notices contained within the Information. Subscriber agrees not to use any trade or service mark that belongs to FINRA or any of FINRA’s subsidiaries or affiliates, registered or unregistered, without the prior written permission of FINRA, and even after receiving written permission, in any way that would infringe upon such marks under applicable law. If FINRA so elects, Subscriber shall assign and shall ensure that all of its agents assign, all right, title and interest in and to any suit, including its subject matter, of or concerning the System, the Information or which otherwise arises out of or is related to this Agreement, to FINRA.
6. Subscriber acknowledges that: (a) FINRA is registered with the SEC as a registered national securities association pursuant to Section 15A of the Securities Exchange Act of 1934 (the Act); (b) FINRA has a statutory obligation to protect investors and the public interest and to ensure the integrity of Information (including the Information supplied to investors and the public); (c) Section 19(g)(1) of the Act mandates that FINRA, as a self-regulatory organization, comply with the provisions of the Act, the rules and regulations there under, and the FINRA Rules; and (d) FINRA has jurisdiction to enforce compliance with the Act, the rules and regulations promulgated there under, and the FINRA Rules over its members, Vendor and Subscriber. Subscriber acknowledges that FINRA, when required to do so by FINRA in fulfillment of it’s statutory obligations, may by notice to Vendor or Subscriber unilaterally limit or terminate the right of any or all Persons to receive or use the Information, and that Vendor and Subscriber will immediately comply with any such notice and will terminate or limit the furnishing of the Information and confirm such compliance by notice to FINRA. Any affected Person will have available to it such procedural protections as are provided by the Act and applicable rules thereunder. FINRA shall not have any liability when complying with such statutory obligations.
7. Professional Subscriber shall make its premises available to FINRA for physical inspection of Vendor’s Service and of Professional Subscriber’s access, receipt, processing, use, display and dissemination 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 BTDS Subscriber Agreement. Non-professional Subscriber shall comply promptly with any reasonable request from FINRA for information regarding the Non-Professional Subscriber’s access, receipt, processing, use, display and dissemination 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 FINRA to any service or facility operated by FINRA 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. WARRANTIES; DISCLAIMERS OF WARRANTIES. EACH PARTY REPRESENTS AND WARRANTS THAT IT SHALL OBTAIN, MAINTAIN AND COMPLY WITH ALL PERMITS, CONSENTS AND APPROVALS NECESSARY FOR SUCH PARTY TO ENTER INTO AND FULFILL ITS OBLIGATIONS UNDER THIS AGREEMENT. FINRA WILL ENDEAVOR TO OFFER THE INFORMATION AS PROMPTLY AND AS ACCURATELY AS IS REASONABLY PRACTICABLE. IN THE EVENT THAT THE INFORMATION IS NOT AVAILABLE AS A RESULT OF A FAILURE BY FINRA OR ITS THIRD PARTY PROVIDERS TO PERFORM ITS OBLIGATIONS UNDER THIS AGREEMENT, FINRA OR ITS THIRD PARTY PROVIDERS 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 AN ENTIRE BUSINESS DAY AND REMAINS AFFECTED AT THE COMMENCEMENT OF THE IMMEDIATELY SUCCEEDING BUSINESS DAY DUE TO THE SOLE NEGLIGENCE OF FINRA (EXCEPT FOR A REASON PERMITTED IN THE BTDS VENDOR AGREEMENT), SUBSCRIBER’S EXCLUSIVE REMEDY AGAINST FINRA SHALL BE, (A) IF SUBSCRIBER CONTINUES TO RECEIVE THE INFORMATION OR ANY OTHER DATA AND/OR INFORMATION OFFERED BY FINRA, A PRORATED CREDIT OF ANY MONIES DUE FOR AND DIRECTLY ATTRIBUTABLE TO THE AFFECTED INFORMATION TO FINRA FROM SUBSCRIBER FOR THE PERIOD AT ISSUE OR, (B) IF SUBSCRIBER NO LONGER RECEIVES EITHER THE INFORMATION OR ANY OTHER DATA AND/OR INFORMATION OFFERED BY FINRA, A PRORATED REFUND OF ANY MONIES DUE FOR THE AFFECTED INFORMATION TO FINRA FROM SUBSCRIBER FOR THE PERIOD AT ISSUE. SUCH CREDIT OR REFUND SHALL BE REQUESTED BY NOTICE TO FINRA WITH ALL PERTINENT DETAILS. BEYOND THE WARRANTIES STATED IN THIS SECTION, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING TITLE, OWNERSHIP, INTELLECTUAL PROPERTY INFRINGEMENT, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, AVAILABILITY, FREEDOM FROM INTERRUPTION, ANY IMPLIED WARRANTIES ARISING FROMTRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE).
10. FINRA’S LIMITATION OF LIABILITY.
(a) EXCEPT AS MAY OTHERWISE BE SET FORTH HEREIN, NEITHER FINRA NOR ITS THIRD PARTY PROVIDERS SHALL BE LIABLE TO SUBSCRIBER, ITS VENDOR OR TO ANY OTHER PERSON FOR INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGE (INCLUDING TRADING LOSSES, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED REVENUES, LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED EXPENSES OF OPERATION, OR OTHER LOSS OR DAMAGE) OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF FINRA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES. NEITHER FINRA NOR ITS THIRD PARTY PROVIDERS SHALL BE LIABLE TO SUBSCRIBER, VENDOR OR ANY OTHER PERSON FOR ANY UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF THE INFORMATION UNLESS SUCH UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF THE INFORMATION LASTS FOR AN ENTIRE BUSINESS DAY AND CONTINUES AT THE COMMENCEMENT OF THE IMMEDIATELY SUCCEEDING BUSINESS DAY.
(b) IF FINRA OR ANY OF ITS THIRD PARTY PROVIDERS IS FOR ANY REASON HELD LIABLE, WHETHER IN TORT, CONTRACT OR OTHERWISE, THE AGGREGATE LIABILITY OF FINRA FOR ALL REASONS DURING THE TERM OF THIS AGREEMENT IS LIMITED TO THE LOWER OF: (1) IF SUBSCRIBER CONTINUES TO RECEIVE THE INFORMATION OR ANY OTHER DATA AND/OR INFORMATION OFFERED BY FINRA, A PRORATED CREDIT OF ANY MONIES DUE TO FINRA FROM SUBSCRIBER FOR THE PERIOD AT ISSUE OR, IF SUBSCRIBER NO LONGER RECEIVES EITHER THE INFORMATION OR ANY OTHER DATA AND/OR INFORMATION OFFERED BY FINRA, A REFUND OF ANY MONIES DUE TO FINRA FROM SUBSCRIBER FOR THE PERIOD AT ISSUE; OR (2) U.S. $5000.00.
(c) THIS SECTION SHALL NOT RELIEVE FINRA, ITS THIRD PARTY PROVIDERS OR SUBSCRIBER FROM LIABILITY FOR DAMAGES THAT RESULT FROM THEIR OWN GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, OR FROM PERSONAL INJURY OR WRONGFUL DEATH CLAIMS.
(d) SUBSCRIBER, VENDOR AND FINRA UNDERSTAND AND AGREE THAT THE TERMS OF THIS SECTION REFLECT A REASONABLE ALLOCATION OF RISK AND LIMITATION OF LIABILITY.
(e) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, FINRA SHALL NOT BE RESPONSIBLE FOR OR LIABLE TO SUBSCRIBER, OR ANY PERSON FOR ANY UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS, OR INACCURACY OF INFORMATION THAT IS NOT CAUSED SOLELY BY THE NEGLIGENCE OF FINRA.
(f) NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, FINRA SHALL NOT BE LIABLE TO SUBSCRIBER OR ANY PERSON FOR THE UNAVAILABILITY, INTERRUPTION, DELAY, INCOMPLETENESS OR INACCURACY OF INFORMATION FROM FINRA’ S THIRD PARTY PROVIDERS, OR FOR THE INFRINGEMENT OF ANY PERSON’S INTELLECTUAL PROPERTY OR OTHER RIGHTS BY THE INFORMATION PROVIDED TO FINRA BY THIRD PARTY PROVIDERS.
11. THIRD PARTY PROVIDERS’ LIMITATIONS OF LIABILITIES.
(a) FINRA’S THIRD PARTY PROVIDERS SHALL HAVE NO LIABILITY FOR THE INACCURACY, UNAVAILABILITY, INCOMPLETENESS OR INTERRUPTION OF, OR FOR DELAYS OR OMISSIONS IN, ANY OF THE INFORMATION OR SERVICES PROVIDED BY THEM. FINRA’S THIRD PARTY PROVIDERS SHALL HAVE NO LIABILITY FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL LOSS OR DAMAGE (INCLUDING TRADING LOSSES, LOSS OF OPPORTUNITY, LOSS OF ANTICIPATED REVENUES, LOSS OF ANTICIPATED PROFITS, LOSS BY REASON OF SHUTDOWN IN OPERATION OR INCREASED EXPENSES OF OPERATION, OR OTHER LOSS OR DAMAGE) OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF THE THIRD PARTY PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES.
(b) SUBSCRIBER AND VENDOR ACKNOWLEDGE AND AGREE THAT FINRA’S THIRD PARTY PROVIDERS HAVE EXCLUSIVE PROPRIETARY RIGHTS IN THEIR RESPECTIVE INFORMATION.
(c) SUBSCRIBER AND VENDOR AGREE THAT ACCESS TO THE INFORMATION OR SERVICES OF FINRA’S THIRD PARTY PROVIDERS IS SUBJECT TO FINRA’S RECEIPT OF THE INFORMATION OR SERVICES FROM SUCH THIRD PARTY PROVIDERS PURSUANT TO THE AGREEMENTS BETWEEN FINRA AND SUCH THIRD PARTY PROVIDERS AND THAT FINRA’S ACCESS TO AND RECEIPT OF SUCH INFORMATION OR SERVICES MAY BE DELAYED, TERMINATED OR OTHERWISE AFFECTED.
12. Subscriber will indemnify, defend and hold harmless FINRA 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 this BTDS Subscriber Agreement including any claim of infringement or other violation of an intellectual property right by Subscriber, its actions or omissions, equipment, or other property; and (c) any defense of or participation by FINRA in any action, suit, arbitration, mediation, judicial or administrative proceeding, or any other proceeding involving any Claims or Losses described in this BTDS Subscriber Agreement. The indemnification provided by this Section 12 shall include FINRA’s investigative and administrative costs relating to the detection of any material noncompliance by Subscriber as provided above, or any access, receipt, processing, use, transmission or dissemination of the Information by any other Person, provided, however, that such costs are not excessive as compared to the injury FINRA could suffer as a result of any such non-compliance.
13. Subscriber and Vendor agree that FINRA may enforce the terms of this BTDS Subscriber Agreement against any Person, whether or not Vendor or Subscriber is a party to any such action, or against Vendor or Subscriber, and Vendor and Subscriber agree that FINRA shall be a third party beneficiary of this BTDS Agreement for such purpose. In any action there shall beavailable injunctive relief or damages, with the prevailing party being awarded costs and attorneys’ fees (including in-house counsel).
14. In the event of any conflict between the terms of this BTDS Subscriber Agreement and of the Vendor’s agreements with Subscriber, the terms of this BTDS Subscriber Agreement shall prevail as between FINRA and Subscriber.
15. Subscriber acknowledges and agrees that Vendor is not an agent of FINRA and is not authorized to add to or delete from this BTDS Subscriber Agreement and is not authorized to modify any provision of this BTDS Subscriber Agreement. Vendor is obligated to provide notice of FINRA changes to Subscriber, but if Vendor does not, FINRA’s notice to Vendor is still effective as to Subscriber, including notice of cancellation.
16. Notwithstanding any other language in this Agreement or any other agreement between Vendor and Subscriber, Vendor may terminate this Subscriber Agreement solely for cause or in the event Vendor ceases to provide the Information to a particular class of individuals which includes Subscriber. Vendor may not terminate this Subscriber Agreement under any other circumstances. Subscriber may terminate this BTDS Subscriber Agreement for any reason or no reason on thirty (30) days written notice to Vendor. FINRA may terminate this Agreement on thirty (30) days written notice either to Vendor or Subscriber. In the event of Subscriber breach, discovery of the falsity of any representation or warranty of Subscriber, or where directed by FINRA in its regulatory authority, FINRA may terminate this BTDS Subscriber Agreement on not less than three (3) days written notice to Subscriber provided either by FINRA or Vendor.
17. FINRA does not endorse or approve any equipment, Vendor, or Vendor’s Service.
18. Natural persons executing this BTDS Subscriber Agreement warrant and represent that they are at least eighteen (18) years of age. Subscriber and the Person executing this BTDS Subscriber 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 this BTDS Subscriber Agreement on behalf of Subscriber. All notices, invoices, and other communications required to be given to FINRA under this BTDS Subscriber Agreement shall be in writing, and shall be directed to: Data Administrator, FINRA TRACE Data Services, One Liberty Plaza, 52nd Floor, New York, NY 10006, Toll-Free Telephone #: 888-507-3665, Fax #: 212-858-4083, 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. Notices of breach or default or termination shall also be sent to Financial Industry Regulatory Authority, Inc., 1735 K Street, N.W., 10th Floor, Washington, D.C. 20006-1500, Attn: FINRA Office of General Counsel ? Commercial Contracts Group.
19. Subscriber shall not assign this BDTS Subscriber Agreement (including by operation of law). Notwithstanding the foregoing, this BDTS Subscriber Agreement shall be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
20. Except as may be otherwise set forth herein, FINRA may modify any part of this BDTS Subscriber Agreement on forty-five (45) days prior notice. FINRA shall notice Subscriber of any change in this BTDS Subscriber Agreement by posting such change to the following http://www.FINRA.org/trace Subscriber’s failure to reject by written notice to Vendor the modification within thirty (30) days of the effective date of the modification shall be deemed to be an acceptance of the modification. Any rejection by Subscriber of any amendment made by FINRA in accordance with this Section 21 may, at FINRA’s sole discretion, result in termination of this BTDS Subscriber Agreement by Vendor or FINRA. Except as otherwise provided herein, no provision of this BTDS Subscriber Agreement, or any attachments which are a part hereof, may be amended, modified or waived unless by an instrument in writing executed on behalf of each of the parties by their respective duly-authorized officers.
21. This BTDS Subscriber Agreement shall be deemed to have been made in the State of New York and shall be construed and enforced in accordance with the laws of the State of New York, without reference to principles of conflicts of laws thereof. Each party irrevocably agrees that any legal action, suit or proceeding (other than entry or enforcement of an arbitration award or decision) brought by it in any way arising out of this BTDS Subscriber Agreement must be brought solely and exclusively in the United States District Court for the Southern District of New York or in the state courts of the State of New York in New York County and irrevocably accepts and submits to the sole and exclusive jurisdiction of each of the aforesaid courts in persona, generally and unconditionally with respect to any action, suit or proceeding brought by it or against it by the other party; provided, however, that this Section 22 shall not prevent a party against whom any legal action, suit or proceeding is brought by the other party in the state courts of the State of New York in New York County from seeking to remove such legal action, suit or proceeding, pursuant to applicable Federal Law, to the district court of the United States for the district and division embracing New York County, and in the event an action is so removed each party irrevocably accepts and submits to the jurisdiction of the aforesaid district court. Each party hereto further irrevocably consents to the service of process from any of the aforesaid courts by mailing copies thereof by registered or certified mail, postage prepaid, to such party at its address designated pursuant to this BTDS Subscriber Agreement, with such service of process to become effective thirty (30) days after such mailing. Each party hereby irrevocably waives their right to a jury trial.
22. No failure on the part of any party to exercise, no delay in exercising, and no course of dealing with respect to any right, power or privilege under this BTDS Subscriber Agreement or at law or equity 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 BTDS Subscriber Agreement or at law or equity.
23. If any of the provisions of this BTDS Subscriber Agreement, or the application thereof to any Person or circumstance, shall to any extent be invalid or unenforceable, the remainder of this BTDS Subscriber Agreement, or the application of such terms or provisions to Persons or circumstances other than those as to which they are invalid or unenforceable, shall not be affected thereby, and each term and provision of this BTDS Subscriber Agreement shall be valid and enforceable to the fullest extent permitted by law.
24. The section headings used in this BTDS Subscriber Agreement are intended solely for convenience of reference and shall not in any way or manner amplify, limit, modify or otherwise be used in the interpretation of this BTDS Subscriber Agreement. All personal pronouns used in this BTDS Subscriber Agreement, whether used in the masculine, feminine or neuter gender, shall include all other genders, if and where applicable. The use of the singular in this BTDS Subscriber Agreement shall include the plural, and vice versa.
25. No party will be liable for delay or failure in performance of any of the acts required by this BTDS Subscriber Agreement when such delay or failure arises from circumstances beyond its reasonable control (including acts of God, fire, flood, war, explosion, sabotage, terrorism, embargo, civil commotion, acts or omissions of any government entity, supplier delays, communications or power failure, equipment or software malfunction, or labor disputes), and without the gross negligence or willful misconduct, of the party. If the period of non-performance exceeds ten (10) calendar days, then the party to whom the performance is due will have the right to terminate this BTDS Subscriber Agreement by giving notice five (5) calendar days before such date of termination.
26. This BTDS Subscriber Agreement, including any attachments hereto which are an integral part hereof and materials referenced herein (collectively, Attachments) and the FINRA Rules, as any of these items may be added to, deleted from, or amended from time to time, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations, communications, writings and understandings with respect to the subject matter of this BTDS Subscriber Agreement. In the event of any conflict between the provisions of this BTDS Subscriber Agreement, the Attachments the BTDS Vendor Agreement or the FINRA Rules, the order of preference shall be the FINRA Rules, the BTDS Vendor Agreement, the Attachments and this BTDS Subscriber Agreement.
27. This BTDS Subscriber Agreement shall become effective on the date executed by Vendor. (Effective Date).
28. This BTDS Subscriber Agreement may be executed in one or more counterparts, which shall each be considered an original, but all of which together shall constitute one and the same BTDS Subscriber Agreement.
COPYRIGHTED 2002-2017 FINRA. ALL RIGHTS RESERVED BTDS SUBSCRIBER AGREEMENT V.5 (REV. 09/07)