BY USING THE WALL STREET GLOBAL WEBSITE AND/OR BECOMING A CLIENT OF WSGlobal.com, YOU HEREBY AGREE TO BE BOUND BY ALL OF THE FOLLOWING TERMS AND CONDITIONS.
1. Wall Street Global. (the "Company") hereby grants you a non-exclusive, non-transferable license for the term of this Agreement to access and use, the Company's Internet-based securities trading service (the "Service"). The Product is available through the World Wide Web protocol of the Internet, and allows you to obtain information concerning your brokerage account with the Company, enter orders in such account to buy and sell certain securities, stock options and mutual funds, and obtain quotations and other information (some of which may be provided by third parties). You agree not to assign, sub-license or otherwise convey or transfer your rights under this Agreement to another person or entity.
2. You shall be the only authorized user of the Product under this Agreement. Data, information and services accessible through the Product may be displayed, reformatted and printed for your personal, non-commercial use only. You agree to keep confidential and not cause or permit such data, information or services to be published, broadcasted, retransmitted, reproduced, commercially exploited or otherwise re-disseminated. You agree not to create any derivative works (including databases) based on the Product or any data, information or services contained therein.
3. You understand that all the terms and conditions of your Customer Account Agreement with the Company and the Company's Agreement with its clearing agent, Pershing, including margin and options agreements, if applicable and any applicable prospectus, control the operation of your account hereunder and those terms and conditions are incorporated herein by reference. You acknowledge the Product may involve the transmission to you of information that may be considered personal financial information, including but not limited to the identity and number of shares that you trade and the net dollar price for the shares. You acknowledge that the Company cannot assure the security of electronic transmission of such information over the Internet. You consent to the transmission by electronic means of such information through the Product, such consent shall be effective at all times that you use the Product.
4. Your use of the Product requires your receipt from the Company and the use of a unique identification number ("ID") and associated password ("Password"). You hereby agree to maintain your ID and Password in strict confidence. Due to the nature of the Internet, the limited security mechanisms associated with the Product and the inherent limitations of such mechanisms, the Company cannot ensure the privacy, security or authenticity of your communications with the Product. Accordingly, you must assess whether the use of the Product or the Internet is adequately secure to meet your particular needs. Further information on this topic may be obtained the from the Company.
5. You agree that any request to enter an order given by you and any information furnished to you through the use of the Product shall be subject to the following terms and conditions:
a. If a request to enter an order has been sent to the Company through the Product and you did not receive acknowledgment that the request was successfully transmitted and/or receive a message stating that you must call the Company, you shall immediately call the Company.
b. If a request to enter an order has been placed through the Product and you have not received an accurate written confirmation of the order or of its execution within five (5) business days, you shall immediately notify the Company.
c. If you have received confirmation of an order which you did not place or any similar conflicting report, you shall immediately notify the Company.
d. You shall immediately notify the Company if there is unauthorized use of your ID, Password or other security data.
e. You shall immediately notify the Company if there is a discrepancy in the account balance, stock position or order status associated with any of your accounts.
f. You shall immediately notify the Company of any other type of discrepancy or suspicious or unexplained occurrence relating to the Product.
g. All notifications to the Company pertaining to this Agreement should be sent directly to the Company unless otherwise specified.
6. As a condition of being approved to use the Product, you represent and agree that the following statements are and will continue to be true for so long as you have access to the Product:
a. You will not use or distribute any information or market data that you access through the Product that is provided by a national securities exchange or association in connection with any professional or commercial activities, and you agree to notify the Company if you intend to do so and, if such re-transmission rights can be obtained, to pay any additional charges in connection therewith.
b. You will use the information that you access through the Product solely in connection with your personal investment activities and not in connection with any trade or business activities or in your capacity as a registered representative.
c. You are not a securities broker/dealer, investment advisor, futures commission merchant, commodities introducing broker or commodity trading advisor, member of a securities exchange or association or futures contract market, or an owner, partner or associated person of any of the foregoing.
d. You are not employed by a bank or insurance company or an affiliate of either to perform functions related to securities or commodity futures trading activity.
7. Your use of the Product or certain features and functions of the Product may be subject to certain fees imposed by the Company. The Company will notify you of such fees, if applicable.
8. You understand that each participating national securities exchange or association asserts a proprietary interest in all of the market data it furnishes to the parties that disseminate the data. You also understand that neither any participating national securities exchange or association nor any supplier of market data guarantees the timeliness, sequence, accuracy or completeness of market data or any other market information or messages disseminated by any party. No disseminating party shall be liable in any way, and you agree to indemnify and hold harmless each such party, for (a) any inaccuracy, error or delay in, or omission of (i) any such data, information or message or (ii) the transmission or delivery of any such data, information or message, or (b) any loss or damage arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) nonperformance, or (iii) interruption of any such data, information or message, due either to any act or omission not constituting gross negligence or willful misconduct by any disseminating party or to any "force majeure" (i.e., flood, extraordinary weather conditions, earthquake or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, telecommunications or power failure, equipment or software malfunction) or any other cause beyond the reasonable control of any disseminating party.
9. The Product includes facts, analysis and recommendations of certain persons and entities. The Company does not guarantee the accuracy, completeness or timeliness of, or otherwise endorse, these analyses or recommendations, give investment advice, or advocate the purchase or sale of any security.
10. THE PRODUCT MAY CONTAIN TECHNICAL AND OTHER ERRORS AND LIMITATIONS AND IS PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND. THE COMPANY AND ITS LICENSORS CANNOT AND DO NOT WARRANT THE ACCURACY, COMPLETENESS, CURRENTNESS, NON-INFRINGEMENT, SECURITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE PRODUCT AND ALL INFORMATION MADE AVAILABLE THROUGH THE PRODUCT. THE ENTIRE RISK AS TO RESULTS AND PERFORMANCE OF THE PRODUCT, INCLUDING THE ENTRY OF ORDERS TO SELL AND BUY SECURITIES, IS ASSUMED BY YOU.
11. UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY, TORT, CONTRACT, OR OTHERWISE, SHALL THE COMPANY, ITS LICENSORS OR ANYONE ELSE INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF THE PRODUCT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SUCH AS, BUT NOT LIMITED TO, LOSS OF ANTICIPATED PROFITS OR BENEFITS ARISING OUT OF THE USE, RESULTS OF USE, OR INABILITY TO USE THE PRODUCT, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS.
12. You acknowledge that the Licensers and others are relying on your entering into this agreement and their receiving the benefit of the provisions set forth in this Agreement.
13. This Agreement, and your rights hereunder, may be terminated by the Company at any time. In the event of termination, the Company will immediately notify you in writing. Your access to the Product , and your ability to place orders through the Product, will cease as of the effective date of termination. Termination of your Customer Account with the Company shall be deemed a cancellation of all of your outstanding orders, if any, submitted before the effective date of such termination of your Customer Account with the Company.
14. This Agreement is the complete and exclusive statement of obligations and responsibilities of the Company and its licensors to you and supersedes any other agreement or understanding, whether written or oral, by or on behalf of the Company relating to the provision and use of the Product.
15. The Company may revise the terms of this Agreement. When the terms are revised, the Company will notify you by posting a revised version of the Agreement. Your use of the Product under the revised terms requires your affirmative acceptance of such terms by clicking the "Accept" button before accessing the Product.
16. If any provision of this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect.
You hereby agree that you have read the terms stated above; (2) you understand the terms stated above; (3) you intend to form a legally binding contract by clicking the "I Agree" button of our User Agreement when you register as a customer of WSGlobal.com; (4) a printout of the terms stated above will constitute a "writing" under any applicable law or regulation; and (5) you agree to abide by all the terms of the agreement stated above."
NYSE END-USER AGREEMENT
TERMS AND CONDITIONS
PROPRIETARY NATURE OF DATA -- Subscriber understands and acknowledges that each "Authorizing SRO" (i.e., the New York Stock Exchange, Inc. ("NYSE"), each CTA Plan Participant and each CQ Plan Participant), and each other entity whose information is made available over the facilities of the Authorizing SROs (an "Other Data Disseminator")has a proprietary interest in the Market Data that originates on or derives from it or its markets. For the purposes of this Addendum, "Market Data" means (a) CTA Network A last sale information, (b) CQ Network A quotation information, (c) such bond and other equity last sale and quotation information, and such index and other market information, as the Authorizing SROs or any Other Data Disseminator may make available and as NYSE may from time to time designate as "Market Data", and (d) all information that derives from any such information.
THIRD-PARTY BENEFICIARIES; ENFORCEMENT -- Subscriber understands and acknowledges that this Addendum confers third-party beneficiary status on the Authorizing SROs. In authorizing Vendor to take any action, or to receive any communication, this Addendum authorizes Vendor to act on its own behalf and on behalf the Authorizing SRO(s). NYSE may enforce this Addendum as to all Market Data, and any Authorizing SRO may enforce this Addendum as to Market Data that originates on or derives from its markets, by legal proceeding or otherwise, against Subscriber and may likewise proceed against any person that obtains such Market Data other than as this Addendum contemplates. No act or omission on the part of Vendor and no other defense that might defeat recovery by Vendor against Subscriber shall affect the rights of the Authorizing SROs as third-party beneficiaries under this Addendum. Subscriber shall pay the reasonable attorney's fees that any Authorizing SRO incurs in enforcing this Addendum against Subscriber.
DATA NOT GUARANTEED -- Subscriber understands that neither NYSE, any other Authorizing SRO, any Other Data Disseminator nor the Processor under the CTA Plan or the CQ Plan (the "Disseminating Parties") guarantees the timeliness, sequence, accuracy or completeness of Market Data or of other market information or messages disseminated by any Disseminating Party. Neither Subscriber nor any other person shall hold any Disseminating Party liable in any way for (a) any inaccuracy, error or delay in, or omission of, (i) any such data, information or message or (ii) the transmission or delivery of any such data, information or message, or (b) any loss or damage arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) non-performance or (iii) interruption in any such data, information or message, due either to any negligent act or omission by any Disseminating Party, to any "force majeure" (e.g., flood, extraordinary weather conditions, earthquake or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications or power failure, equipment or software malfunction) or to any other cause beyond the reasonable control of any Disseminating Party.
REDISSEMINATION PROHIBITED - Subscriber shall use Market Data only for its individual use. Subscriber shall not furnish Market Data to any person or entity other than an officer, partner or employee of Subscriber.
DISSEMINATION DISCONTINUANCE OR MODIFICATION - Subscriber understands that, at any time, the Authorizing SROs may discontinue disseminating any category of Market Data, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics. Subscriber shall not hold the authorizing SROs liable for any resulting liability, loss or damages that may arise therefrom.
DURATION; SURVIVAL - This Addendum remains in effect for so long as Subscriber has the ability to receive Market Data as contemplated by this Addendum. In addition, either Subscriber or Vendor may terminate this Addendum on 30 days' written notice to the other. Subscriber understands that Vendor is obligated to terminate this Addendum pursuant to this Paragraph upon notice to that effect from NYSE. Paragraphs [PROPRIETARY NATURE OF DATA], [THIRD-PARTY BENEFICIARIES; ENFORCEMENT] AND [DATA NOT GUARANTEED] survive termination of this Addendum. This Addendum supersedes each previous agreement between the Subscriber and NYSE insofar as the superseded agreement pertains to the Market Data services that Vendor provides to Subscriber pursuant to the Vendor-Subscriber Agreement.
The Vendor and its agents may NOT modify or waive any term of this Agreement. Any attempt to modify this Agreement, except by Nasdaq, is void.
The Nasdaq Stock Market, Inc.
("Nasdaq") Consolidated Subscriber Agreement
1. The word "Corporations" means The Nasdaq Stock Market, Inc. and its affiliates. The word "Information" means certain data and other information: relating to securities or other financial instruments, products, vehicles or devices; or relating to Persons regulated by the Corporations or to activities of the Corporations; or gathered by the Corporations from other sources. The word "or" includes the word "and". The phrase "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, without limitation, (1) indirect, special, punitive, consequential or incidental loss or damage, (including, but not limited to, trading losses, 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-house personnel). The word "Person" means any natural person, proprietorship, corporation, partnership, or other entity whatsoever. The phrase "Non-Professional Subscriber" means any natural person who is neither: (a) registered or qualified in any capacity with the SEC, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association; (b) engaged as an "investment advisor" as that term is defined in Section 201 (11) of the Investment Advisors Act of 1940 (whether or not registered or qualified under that Act); nor, (c) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt. The phrase "Professional Subscriber" means all other persons who do not meet the definition of Non-Professional Subscriber. When it appears alone, the word "Subscriber" encompasses all Non-Professional and Professional Subscribers. The phrase "Vendor's Service" means the service from a vendor, including the data processing equipment, software, and communications facilities related thereto, for receiving, processing, transmitting, using and disseminating the Information to or by Subscriber.
2. Subscriber is granted the right to receive from Nasdaq the Information under the terms stated herein or in the NASD Rules.
"NASD 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 the Corporations including, but not limited to, those requirements established by the Corporations' rule filings (with such SEC approval as may be required), the Corporations' decisions and interpretations and any User Guides, or successors of the components of the NASD Rules, as they may exist at the time. If any payment is due directly to Nasdaq under this Agreement, payment in full is due Nasdaq in immediately available U.S. funds, within 30 days of date of invoice, whether or not use is made of the Information. Interest shall be due from the date of the invoice to the time that the amount(s) that are due have been paid. Subscriber shall assume full and complete responsibility for the payment of any taxes, charges or assessments imposed on Subscriber or Nasdaq (except for U.S. federal, state, or local income taxes, if any, imposed on Nasdaq) 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.
1. The Information is licensed only for the personal use of the Non-Professional Subscriber and the internal use in the business of the Professional Subscriber. By representing to Vendor that Subscriber is a non-professional, or by continuing to receive the Information at a non-professional subscriber rate, Subscriber is affirming to Vendor and the Corporations 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 NASD 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 unfair, misleading, or discriminatory format. Subscriber shall take reasonable security precautions to prevent unauthorized Persons from gaining access to the Information.
You hereby agree that this information is only for personal non-professional use or internal business use of a professional subscriber.
You hereby agree that you will not re-disseminate or give third party access to the information:
2. Subscriber acknowledges that Nasdaq, 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. Nasdaq shall not be responsible for such effects.
3. Nasdaq grants to Subscriber a nonexclusive, non-transferable license during the term of the Agreement to receive and use the Information transmitted to it by Vendor and thereafter to use such Information for any purpose not inconsistent with the terms of the Agreement or with the NASD Rules. Subscriber acknowledges and agrees that the Corporations have proprietary rights in the Information that originates on or derives from markets regulated or operated by the Corporations and compilation or other rights in Information gathered from other sources. Subscriber further acknowledges and agrees that the Corporations' third party Information providers have exclusive proprietary rights in their respective Information. In the event of any misappropriation or misuse, Nasdaq or its third party information providers shall have the right to obtain injunctive relief for its respective materials. Subscriber will attribute source as appropriate under all the circumstances.
4. Subscriber acknowledges that Nasdaq, as a subsidiary of NASD, when required to do so by NASD in fulfillment of NASD's statutory obligations, may by notice to Vendor unilaterally limit or terminate the right of any or all Persons to receive or use the Information, and that Vendor will immediately comply with any such notice and will terminate or limit the furnishing of the Information and confirm such compliance by notice to Nasdaq. Any affected Person will have available to it such procedural protections as are provided by the Exchange Act and applicable rules thereunder. Neither Nasdaq nor NASD shall have any liability when complying with such NASD notice.
5. Subscriber will maintain such accurate and verifiable records regarding the use of the Information and including the number and location of all devices that receive the Information, as may be required, and will make these records available for a period of 3 years in a form acceptable to Nasdaq for inspection by Nasdaq's auditors upon reasonable notice. Subscriber shall make its premises available to Nasdaq for review of said records and for physical inspection of Vendor's Service and of Subscriber's use of the Information, all at reasonable times, upon reasonable notice, to ensure compliance with this Agreement.
6. 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 Nasdaq to any service or facility operated by Nasdaq 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.
7. NASDAQ'S WARRANTIES/DISCLAIMER OF WARRANTIES. Nasdaq shall endeavor to offer the Information as promptly and accurately as is reasonably practicable. In the event that the Information is not available as a result of a failure by Nasdaq to perform its obligations under this Agreement, Nasdaq 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 a continuous period of four (4) hours or more during the time that Nasdaq regularly transmits the Information due to the fault of Nasdaq (except for a reason permitted in this Agreement or in Nasdaq's agreement with the Vendor), Subscriber's or any other Person's exclusive remedy against Nasdaq shall be (A) if Subscriber or any other Person continues to receive the Information or any other data and/or information offered by Nasdaq, a prorated month's credit of any monies due, if any, for the affected Information directly to Nasdaq from Subscriber, or, if applicable, from said other Person, for the period at issue or, (B) if Subscriber or any other Person no longer receives either the Information or any other data and/or information offered by Nasdaq, a prorated month's refund of any monies due for the affected Information directly to Nasdaq from Subscriber, or, if applicable, from said other Person, for the period at issue. Such credit or refund shall, if applicable, be requested by written notice to Nasdaq with all pertinent details. BEYOND THE WARRANTIES STATED IN THIS SECTION, THERE ARE NO OTHER WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION), ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE.
You hereby agree that Nasdaq is not liable for any trading losses or for consequential or incidental damages even if the Information is untimely or incorrect.
You hereby agree that you will indemnify and hold harmless Nasdaq for any Claims or Losses resulting from my breach of the Agreement, for infringement of a third party's intellectual property rights, or from any third party suit related to my use or receipt of the Information.
8. CORPORATIONS' LIMITATION OF LIABILITY. (a) Except as may otherwise be set forth herein, the Corporations shall not be liable to Subscriber, its vendor or any other Person for indirect, special, punitive, consequential, or incidental loss or damage (including, but not limited to, trading losses, loss of 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 the Corporations have been advised of the possibility of such damages.
(b) The Corporations shall not be liable to Subscriber or any other Person for any unavailability, interruption, delay, incompleteness, or inaccuracy of the Information that lasts less than four (4) continuous hours during the time that Nasdaq regularly transmits the Information or if the Information is materially affected for less than four (4) continuous hours during the time that Nasdaq regularly transmits the Information.
(c) If any or all of the Corporations are for any reason held liable to Subscriber or to any other Person, whether in tort or in contract, the liability of all or any of the Corporations within a single year (from the effective date of the Agreement) of the Agreement, combined with the total of all Claims or Losses of Subscriber's vendor, and any other Person claiming through, on behalf of, or as harmed by Subscriber, is limited to the greater of: (i) if Subscriber or any other Person continues to receive the Information or any other data and/or information offered by Nasdaq, a prorated month's credit of any monies due directly to Nasdaq from Subscriber, or, if applicable, from any other Person, for the period at issue or, if Subscriber or any other Person no longer receives either the Information or any other data and/or information offered by Nasdaq, a refund of any monies due directly to Nasdaq from Subscriber, or, if applicable, from any other Person, for the period at issue; or (ii) $500.00.
(d) This section shall not relieve any or all of the Corporations, Subscriber or any other Person from liability for damages that result from their own gross negligence or willful tortious misconduct, or from personal injury or wrongful death claims.
(e) Subscriber and the Corporations understand and agree that the terms of this section reflect a reasonable allocation of risk and limitation of liability.
You hereby agree that Nasdaq's damages, even where the information is untimely or incorrect for more than 4 continuous hours, are strictly limited (in contract, tort, or otherwise) to a refund of the monthly charge for Nasdaq Information for the period of the problem.
9. THIRD PARTY INFORMATION PROVIDERS' DISCLAIMERS OF WARRANTIES/LIMITATIONS OF LIABILITIES. NASDAQ'S THIRD PARTY INFORMATION PROVIDERS MAKE NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY (INCLUDING, WITHOUT LIMITATION, TIMELINESS, TRUTHFULNESS, SEQUENCE, COMPLETENESS, ACCURACY, FREEDOM FROM INTERRUPTION), ANY IMPLIED WARRANTIES ARISING FROM TRADE USAGE, COURSE OF DEALING, OR COURSE OF PERFORMANCE, OR THE IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE AND THEY SHALL HAVE NO LIABILITY FOR THE ACCURACY OF, OR FOR DELAYS OR OMISSIONS IN, ANY OF THE INFORMATION PROVIDED BY THEM. Nasdaq's third party information providers shall also have no liability for any damages, whether direct or indirect, whether lost profits, indirect, special or consequential damages of the Subscriber or any other Person seeking relief through Subscriber, even if the third party information providers have been advised of the possibility of such damages. In no event will the liability of the third party information providers or their affiliates to Subscriber or any other Person seeking relief through Subscriber pursuant to any cause of action, whether in contract, tort, or otherwise, exceed the fee paid by Subscriber or any other Person seeking relief through Subscriber, as applicable.
10. Notwithstanding any other term or condition of this Agreement, Nasdaq, its third party information providers or Subscriber shall not be obligated to perform or observe their respective obligations undertaken in this Agreement (except for obligations to make payments hereunder and regulatory obligations) if prevented or hindered from doing so by any circumstances found to be beyond their control.
11. Subscriber will indemnify and hold harmless the Corporations and their 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 the Agreement.
12. Each party warrants and represents and will indemnify and hold harmless (and in every case, Nasdaq shall be permitted to solely defend and settle) another party (including the Corporations) and their officers, directors, employees, and other agents, against any Claims or Losses arising from, involving, or relating to a claim of infringement or other violation of an intellectual property right by the indemnifying party, its actions or omissions, equipment, or other property. This right is conditioned on the indemnified party giving prompt written notice to the indemnifying party (as does not prejudice the defense) of the Claims or Losses and providing cooperation in the defense of the Claims or Losses (without waiver of attorney-client, work-product or other legal privilege, or disclosure of information legally required to be kept confidential).
You hereby agree that Nasdaq can alter the terms of the Agreement with at least 30 days notice. Continued use after the notice period will be considered acceptance of the new terms.
13. Subscriber agrees that Nasdaq may enforce the terms of this Agreement against any Person, whether or not Vendor or Subscriber is a party to any such action or against Subscriber itself. In any action there shall be available 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 Agreement and of the Vendor's agreement, the terms of this Agreement shall prevail as between the Corporations and Subscriber.
15. In addition to terminations permitted under the Vendor's agreement, this Agreement may be terminated by Subscriber on 30 days written notice to Vendor and by the Corporations on 30 days written notice either to Vendor or Subscriber. Nasdaq may also alter any term of this Agreement on 60 days written notice either to Vendor or Subscriber, and any use after such date is deemed acceptance of the new terms. In the event of Subscriber breach, discovery of the untruth of any representation of Subscriber, or where directed by NASD in its regulatory authority, Nasdaq may terminate this Agreement on not less than three (3) days written notice to Subscriber provided either by Nasdaq or Vendor.
16. Nasdaq does not endorse or approve any equipment, Vendor, or Vendor's Service.
17. Natural persons executing this Agreement warrant and represent that they are at least eighteen (18) years of age. Subscriber and the Person executing this Agreement on behalf of Subscriber which 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 the Agreement on behalf of Subscriber.
18. All notices, invoices, and other communications required to be given in writing under this Agreement shall be directed to: Trading & Market Services, The Nasdaq Stock Market, Inc., 1735 K Street, NW, Washington, DC 20006, Attn.: Manager, Trading and Market Services, 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.
19. Except as otherwise provided herein, no provision of this Agreement may be amended, modified, or waived, unless by an instrument in writing executed by a duly authorized signatory of the party against whom enforcement of such amendment, modification, or waiver is sought. No failure on the part of Nasdaq or Subscriber to exercise, no delay in exercising, 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. If any of the provisions of this Agreement, or application thereof to any Person or circumstance, shall to any extent be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to Persons or circumstances other than those as to which they are held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
20. The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely, obligations relating to intellectual property, indemnification, limitation of liability, warranties, disclaimer of warranties, and Exchange Act related provisions.
21. This Agreement shall be deemed to have been made in the United States in the District of Columbia and shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the District of Columbia, without reference to principles of conflicts of laws thereof. Subscriber hereby consents to submit to the jurisdiction of the courts of or for the District of Columbia in connection with any action or proceeding instituted relating to this Agreement.
You hereby agree that the Agreement is deemed to have been made in and is subject to United States, District of Columbia, Law.