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Real Time Agreement

INTERACTIVE DATA DESKTOP SOLUTIONS TERMS AND CONDITIONS OF SERVICE

SERVICES AGREEMENT

IMPORTANT: PLEASE READ THIS SERVICES AGREEMENT BEFORE USING ANY INTERACTIVE DATA DESKTOP SOLUTIONS SERVICES. INITIATION OF SERVICE INDICATES YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT.
BY REGISTERING FOR THE SERVICES, YOU REPRESENT AND WARRANT THAT (a) ALL REGISTRATION INFORMATION YOU SUBMIT IS ACCURATE AND THAT YOU WILL MAINTAIN THE ACCURACY OF SUCH INFORMATION, (b) YOU ARE EIGHTEEN (18) YEARS OF AGE OR OLDER, YOUR USE OF THE SERVICES WILL NOT VIOLATE ANY APPLICABLE LAW OR REGULATION, AND (c) YOU HAVE THE RIGHT AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND PERFORM HEREUNDER.
  1. Definitions. The following terms, as used in this Agreement, shall have the meanings set forth below.
    1. Agreement - This Services Agreement.
    2. Customer Account - Subscriber's account with Interactive Data Desktop Solutions, including the particular Services to which Subscriber has subscribed.
    3. Data Providers - Third parties providing data to Interactive Data Desktop Solutions for distribution to Subscribers, including, but not limited to, stock exchanges.
    4. Default - The occurrence of any of the following events: (i) any Data Provider revokes Subscriber's right to receive the applicable Services or directs Interactive Data Desktop Solutions to discontinue Services to Subscriber; or (ii) Subscriber fails to comply with any of the terms and conditions of this Agreement.
    5. Interactive Data Desktop Solutions : Interactive Data Desktop Solutions, a division of Interactive Data Corporation or Interactive Data Online Properties, Inc., a subsidiary of Interactive Data Corporation.
    6. Real-Time Information - The processing and transmission of data and information that is initiated by Interactive Data Desktop Solutions in "real time" (as defined by the Data Providers), subject to processing requirements, transmission methods, facilities, and Subscriber equipment.
    7. Service Facilitators - Any (i) third party data provider that makes its data available to Subscriber through or in conjunction with the Services; or (ii) person or entity providing products or services that may be offered by Interactive Data Desktop Solutions in conjunction with the Services.
    8. Services - Any and all financial, commentary, and news related data and other services offered by Interactive Data Desktop Solutions.
    9. Subscriber - The person "clicking through" and thereby agreeing to be bound by this Agreement.
  2. License. This Agreement constitutes a two-party agreement between Subscriber and Interactive Data Desktop Solutions. Subject to these Terms and Conditions of Service, Interactive Data Desktop Solutions hereby grants Subscriber a non-exclusive, non-transferable, limited license to use the Services for its own internal use and not for further dissemination or redistribution. Use of the Services on multiple devices (e.g., your home and work computer) at the same time with a single user name, password or similar identifier is strictly prohibited.
  3. Contingencies. Subscriber acknowledges and agrees that notwithstanding any other provision of this Agreement: (i) Interactive Data Desktop Solutions' ability to grant Subscriber rights relating to the Services is contingent upon all rights, titles, licenses, permissions and approvals obtained by Interactive Data Desktop Solutions pertaining thereto remaining in full force and effect during the term of this Agreement; (ii) in the event certain of Interactive Data Desktop Solutions' rights, titles, licenses, permissions or approvals pertaining to the Services are cancelled, terminated, rescinded or not renewed, Subscriber's rights to use the affected portions of the Services shall automatically terminate, which termination shall not constitute a breach by Interactive Data Desktop Solutions of any of its obligations hereunder; (iii) this Agreement is subject to any requirements of the Data Providers under Interactive Data Desktop Solutions' agreements with such Data Providers, including such additional financial and contractual requirements as may be imposed by such Data Providers from time to time; (iv) Interactive Data Desktop Solutions may be obligated to disclose the existence of this Agreement to certain Data Providers, which disclosure may result in, among other things, the imposition on Subscriber of financial and contractual obligations by such Data Providers; provided that, in lieu of dealing with a Data Provider directly and/or paying additional fees, Subscriber may elect to terminate the applicable data set upon at least ten (10) days prior written notice to Interactive Data Desktop Solutions; and (v) Interactive Data Desktop Solutions reserves the right to add or delete data from the Services, as it deems appropriate to service all of its subscribers.
  4. Professional/Non-Professional Status.A Subscriber is a 'Non-Professional User' if he or she is able to meet the qualifications set forth in section 4(a) below. If a Subscriber is unable to meet these qualifications, he or she is deemed a 'Professional User'. All Subscribers must confirm whether they are a Non-Professional User or a Professional User.
    1. Non-Professional Status : With respect to Services involving the receipt of financial market information, Subscriber represents and warrants that he/she meets and complies with all requirements for qualification as a "Non-Professional Subscriber" as currently in effect and which may be issued from time to time by NYSE, AMEX, NASDAQ and any other Data Providers that may issue Non-Professional Subscriber qualifications. Subscriber further represents and warrants that the following statements are true and shall continue to be true for as long as Subscriber receives Services hereunder:
      1. Subscriber makes this Agreement in his/her own individual capacity and not on the behalf of any firm, corporation, partnership, trust, association or other entity.
      2. Subscriber shall use the Services solely in connection with his/her own individual personal investment activities and not in connection with any trade or business activities.
      3. Subscriber is not a securities broker-dealer, investment advisor, futures commission merchant, commodities introducing broker or commodity trading advisor, registered representative of any of the foregoing, member of a securities exchange or association or futures contract market, or an owner, partner or associated person of any of the foregoing.
    2. Status Changes : In addition to any other remedies available to Interactive Data Desktop Solutions and the Data Providers, Subscriber shall be liable to Interactive Data Desktop Solutions and the Data Providers for the difference between any Fees paid by the Subscriber as a Non-Professional Subscriber and the Fees applicable to Professional Subscribers for the same type of Services. Further, Professional Subscribers who identify themselves as Non-Professional Subscribers will have their Customer Account cancelled by Interactive Data Desktop Solutions and risk professional exchange fee penalty billing.
  5. Copyright Protection, Ownership of Services.
    1. All rights, title, and interest in the Services in all languages, formats, and media throughout the world, including all copyrights, trademarks and service marks therein, are and shall continue to be the exclusive property of Interactive Data Desktop Solutions, its affiliates, the Data Providers, the Service Facilitators and/or other third party suppliers. SUBSCRIBER SHALL NOT REPRODUCE, RETRANSMIT, DISSEMINATE, SELL, PUBLISH, BROADCAST, CIRCULATE, PROVIDE OR REDISTRIBUTE THE SERVICES IN ANY MANNER OR FOR ANY PURPOSES (PERSONAL OR BUSINESS) WITHOUT THE PRIOR EXPRESS WRITTEN CONSENT OF INTERACTIVE DATA DESKTOP SOLUTIONS AND THE RELEVANT DATA PROVIDERS.
    2. Subscriber shall not disassemble, decompile or reverse engineer the Services, or create any derivative works from the Services.
    3. Subscriber shall not use the Services for any unlawful purpose and shall comply with all reasonable requests by Interactive Data Desktop Solutions to protect the respective rights of Interactive Data Desktop Solutions and the Data Providers in the Services.
  6. Disclaimer of Warranties; Limitation of Liability.
    1. THE SERVICES ARE PROVIDED "AS IS." NEITHER INTERACTIVE DATA DESKTOP SOLUTIONS, THE DATA PROVIDERS, THE SERVICE FACILITATORS NOR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF ANY OF THE FOREGOING MAKE ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, REGARDING ANY ASPECT OF THE SERVICES (INCLUDING, BUT NOT LIMITED TO, INFORMATION ACCESS). SUBSCRIBER RECOGNIZES THAT THE ACCURACY OF THE SERVICES SHOULD BE CHECKED BEFORE SUBSCRIBER RELIES ON IT. NEWS STORIES RECEIVED BY SUBSCRIBER, IF ANY, REFLECT ONLY THE AUTHOR'S OPINION AND NOT THAT OF INTERACTIVE DATA DESKTOP SOLUTIONS.
      Some jurisdictions do not allow the disclaimer of implied warranties. In such jurisdictions, the foregoing disclaimers may not apply to you insofar as they relate to implied warranties.
    2. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT INTERACTIVE DATA DESKTOP SOLUTIONS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR, AND THAT NEITHER INTERACTIVE DATA DESKTOP SOLUTIONS, THE DATA PROVIDERS, THE SERVICE FACILITATORS, ANY THIRD PARTY SUPPLIER, NOR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF ANY OF THE FOREGOING SHALL HAVE ANY LIABILITY, CONTINGENT OR OTHERWISE FOR, THE TRUTHFULNESS, ACCURACY OR TIMELINESS OF THE SERVICES OR THE TRUTHFULNESS, ACCURACY, TIMELINESS, COMPLETENESS OR CORRECT SEQUENCING OF THE INFORMATION, OR FOR ANY DECISION MADE OR ACTION TAKEN BY SUBSCRIBER IN RELIANCE UPON THE SERVICES, OR FOR ANY INTERRUPTION OR DELAY OF ANY DATA, INFORMATION, OR ANY OTHER ASPECT OF THE SERVICES.
    3. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, SUBSCRIBER'S MAXIMUM RECOVERY FOR ANY DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION THAT IMPOSES LIABILITY, WHETHER IN CONTRACT, EQUITY, NEGLIGENCE, INTENDED CONDUCT, TORT OR OTHERWISE, SHALL NOT EXCEED TWO THOUSAND DOLLARS ($2,000 USD).
      Some jurisdictions do not permit limitations of liability. In such jurisdictions, the foregoing limitation may not apply to Subscriber.
    4. IN NO EVENT WILL INTERACTIVE DATA DESKTOP SOLUTIONS, THE DATA PROVIDERS, THE SERVICE FACILITATORS, OR ANY THIRD PARTY SUPPLER, OR ANY OFFICER, DIRECTOR, EMPLOYEE, AGENT, REPRESENTATIVE OR AFFILIATE OF ANY OF THE FOREGOING BE LIABLE TO SUBSCRIBER OR ANY OTHER PARTY FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, TRADING LOSSES, OR DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY, ERROR OR LOSS OF THE USE OF THE SERVICES), OR CLAIMS ARISING IN TORT (INCLUDING NEGLIGENCE), EVEN IF INTERACTIVE DATA DESKTOP SOLUTIONS, THE DATA PROVIDERS OR THE SERVICE FACILITATORS HAVE BEEN ADVISED OF OR ARE OTHERWISE AWARE OF THE POSSIBILITY OF ANY OF THE FOREGOING.
      Some jurisdictions do not permit limitations of liability. In such jurisdictions, the foregoing limitation may not apply to Subscriber.
    5. SUBSCRIBER UNDERSTANDS AND AGREES THAT ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED BY OR THROUGH THE SERVICES IS DONE AT SUBSCRIBER'S OWN DISCRETION AND RISK AND THAT SUBSCRIBER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO SUBSCRIBER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL. SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT INTERACTIVE DATA DESKTOP SOLUTIONS DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY FOR THE ACCURACY, CONTENT, COMPLETENESS, LEGALITY, REALIABILITY, OPERABILITY OR AVAILABILITY OF THE SERVICES. INTERACTIVE DATA DESKTOP SOLUTIONS DISCLAIMS ANY RESPONSIBILITY FOR THE DELETION, FAILURE TO STORE, MISDELIVERY OR UNTIMELY DELIVERY OF ANY OF THE SERVICES. INTERACTIVE DATA DESKTOP SOLUTIONS DISCLAIMS ANY RESPONSIBILITY OR LIABILITY FOR ANY HARM RESULTING FROM DOWNLOADING OR ACCESSING ANY INFORMATION OR MATERIAL THROUGH THE SERVICES, INCLUDING, WITHOUT LIMITATION, HARM CAUSED BY VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES.
    6. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE NOT INTENDED TO SUPPLY INVESTMENT, FINANCIAL, TAX OR LEGAL ADVICE. INTERACTIVE DATA DESKTOP SOLUTIONS OFFERS NO ADVICE REGARDING THE NATURE, POTENTIAL VALUE, OR SUITABILITY OF ANY PARTICULAR SECURITY, TRANSACTION, INVESTMENT OR INVESTMENT STRATEGY. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT THE USE OF THE SERVICES, AND ANY DECISIONS MADE IN RELIANCE UPON THE SERVICES, ARE MADE AT SUBSCRIBER'S OWN RISK.
    7. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED.
  7. Indemnification and Release. Subscriber shall defend, indemnify and hold Interactive Data Desktop Solutions, the Data Providers, the Service Facilitators and any third party suppliers, and their respective officers, directors, employees, agents, representatives and affiliates harmless from and against any and all claims, losses, liabilities, costs, and expenses (including, but not limited to, reasonable attorneys' fees) arising from or relating to: (i) Subscriber's use of the Services; (ii) Subscriber's breach or violation of this Agreement; or (iii) Subscriber's infringement of any third-party's intellectual property rights, including, but not limited to, copyright, proprietary, and privacy rights. By using the Services Subscriber hereby releases Interactive Data Desktop Solutions, the Data Providers, the Service Facilitators and any third party suppliers, and their respective officers, directors, employees, agents, representatives and affiliates from any and all claims, demands, debts, obligations, damages (actual or consequential), costs, and expenses of any kind or nature whatsoever, whether known or unknown, suspected or unsuspected, disclosed or undisclosed, that you may have against them arising out of or in any way related to the Services. SUBSCRIBER HEREBY WAIVES ALL LAWS THAT MAY LIMIT THE EFFICACY OF SUCH RELEASES. FOR EXAMPLE, SUBSCRIBER EXPRESSLY WAIVES ANY RIGHTS OR BENEFITS UNDER CALIFORNIA CIVIL CODE SECTION 1542 OR ANY EQUIVALENT OR SIMILAR STATUTE. CALIFORNIA CIVIL CODE SECTION 1542 PROVIDES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
  8. Third Party Beneficiaries. Any third party providing data, services or technology in connection with the offering or operation of the Services, including, but not limited to Data Providers and Service Facilitators, shall be deemed to be a third party beneficiary hereunder to the extent required by Interactive Data Desktop Solutions' agreement with such third party.
  9. Termination by Interactive Data Desktop Solutions.
    1. Interactive Data Desktop Solutions may terminate this Agreement (which includes all Services under the same Customer Account) immediately without prior notice in the event of Subscriber's Default.
    2. Interactive Data Desktop Solutions reserves the right to restrict, terminate, suspend or cancel any Service (or portion thereof) or this entire Agreement, in full or in part, at any time and for any reason, without prior notice and without liability.
    3. If any of the Data Providers furnishing data or other information utilized in the Services discontinue transmission of such data or information or cease to furnish same in a manner that is compatible with Interactive Data Desktop Solutions' equipment, Interactive Data Desktop Solutions may terminate as much of this Agreement as is affected by the discontinued data or information, without advance notice and without incurring any liability to Subscriber.
  10. Audit. During the term of this Agreement and for a three (3) year period thereafter, Interactive Data Desktop Solutions and/or the Data Providers shall have the right, during normal business hours and upon reasonable notice to Subscriber, to audit and review Subscriber's relevant books and records to confirm that usage has been accurately determined and restrictions on access and use have been observed. The costs of such audit shall be borne by Interactive Data Desktop Solutions unless such audit reveals a material variance in the use of and access to the Services from the use and access contemplated by this Agreement, in which case Subscriber shall be liable for all fees and charges relating to the unauthorized use of the Services discovered during such audit, as well as all reasonable audit expenses incurred by Interactive Data Desktop Solutions.
  11. Miscellaneous.
    1. Modifications to this Agreement. Interactive Data Desktop Solutions reserves the right to change or modify any and all of the terms of this Agreement without notice. Subscribers' use of the Services following any such change or modification constitutes Subscriber's express agreement to be bound by this Agreement as so changed or modified.
    2. Waiver. Failure of any party to enforce any provision of this Agreement shall not constitute or be construed as a waiver of such provision or of the right to enforce such provision.
    3. Governing Law and Jurisdiction. This Agreement will be governed by and construed in accordance with the laws of the State of New York without application of the principles of conflicts of law. Any legal action or proceeding arising under this Agreement will be brought exclusively in the Federal or state courts located in the State of New York and the parties hereby consent to the personal jurisdiction and venue therein.
    4. Force Majeure. Neither Interactive Data Desktop Solutions, nor any of the Data Providers, Service Facilitators or third-party suppliers, nor any of their respective officers, directors, employees, agents, representatives or affiliates shall be liable for any loss resulting from, and Interactive Data Desktop Solutions' and the Data Providers' performance under this Agreement shall be excused in the event of, any interruption and/or delay due to any cause over which such entities do not have direct control, including, but not limited to, acts of God, acts of any government, terrorism, war or other hostility, civil disorder, the elements, fire, earthquake, explosion, power failures, equipment failure, industrial or labor dispute, acts of Data Providers, acts of Service Facilitators, acts of third-party information providers, third-party software, third-party hardware, or communication method interruption.
    5. Incorporated Terms. Neither Interactive Data Desktop Solutions, nor any of the Data Providers, Service Facilitators or third-party suppliers, nor any of their respective officers, directors, employees, agents, representatives or affiliates shall be liable for any loss resulting from, and Interactive Data Desktop Solutions' and the Data Providers' performance under this Agreement shall be excused in the event of, any interruption and/or delay due to any cause over which such entities do not have direct control, including, but not limited to, acts of God, acts of any government, terrorism, war or other hostility, civil disorder, the elements, fire, earthquake, explosion, power failures, equipment failure, industrial or labor dispute, acts of Data Providers, acts of Service Facilitators, acts of third-party information providers, third-party software, third-party hardware, or communication method interruption.
    6. Entire Agreement. This Agreement (including all documents incorporated herein by reference) and the Service Subscription Agreement embody the entire understanding between the parties with regard to its subject matter and supersede any and all prior representations and agreements, oral or written.
    7. Headings. The headings appearing herein are inserted only as a matter of convenience and as a reference, and in no way define, limit or describe the scope or intent of the applicable clause or this Agreement.
    8. Severability. Should any provision of this Agreement be held to be void, invalid, unenforceable or illegal by a court, such provision shall be valid and enforceable to the extent permitted by applicable law and the validity and enforceability of the other provisions shall not be affected thereby.
    9. Assignment. This Agreement shall not be assignable by Subscriber, either in whole or in part. Interactive Data Desktop Solutions reserves the right to assign its rights and obligations under this Agreement and this agreement shall be binding upon its successors and assigns.
    10. Notices. Except as otherwise provided herein, all written notices permitted or required hereunder shall be sent to Interactive Data Desktop Solutions at the following office address: Interactive Data Desktop Solutions, P.O. Box 5028, Hayward, California 94545-3720; Attention: Customer Service or, by e-mail, to the following e-mail address: customerservice@mail.esignal.com. All notices shall be deemed to have been given upon actual receipt by Interactive Data Desktop Solutions.
    11. Controlling Language. English is the controlling language of this Agreement. Any version of this Agreement appearing in any other language shall be for accommodation only and shall not bind the parties.
    12. Survival. All provisions of this Agreement which, by their nature, impose continuing obligations, shall survive termination of this Agreement.