MASTER SERVICE AGREEMENT
IMPORTANT CONTRACT NOTICES
YOU MUST CAREFULLY READ THIS MASTER SERVICE AGREEMENT BEFORE YOU USE THIS SERVICE. YOUR USE OF THIS SERVICE INDICATES YOUR AGREEMENT WITH THIS CONTRACT.
IF YOU ARE USING THIS SERVICE FOR A TEMPORARY FREE TRIAL PERIOD, YOU MAY DO SO DURING THE TEMPORARY FREE TRIAL PERIOD WITHOUT INCURRING ANY FEES OR CHARGES BY US. YOUR USE OF THIS SERVICE INDICATES YOUR ACCEPTANCE OF, AND AGREEMENT WITH, THE TERMS AND CONDITIONS OF THIS MASTER SERVICE AGREEMENT.
IF YOU HAVE SUBSCRIBED TO USE THIS SERVICE, YOU AGREE AND CONFIRM THAT YOUR USE OF IT AND YOUR FAILURE TO INFORM FINANCIALCAD CORPORATION WITHIN SEVEN (7) DAYS OF READING THIS MASTER SERVICE AGREEMENT, INDICATES YOUR ACCEPTANCE OF, AND AGREEMENT WITH, THE TERMS AND CONDITIONS OF THIS MASTER SERVICE AGREEMENT. PLEASE PRINT AND RETAIN THIS MASTER SERVICE AGREEMENT FOR YOUR REFERENCE.
THIS MASTER SERVICE AGREEMENT PROVIDES FOR CERTAIN PROPRIETARY RIGHTS IN FAVOUR OF FINANCIALCAD OVER SERVICES OR SOFTWARE THAT MAY BE CREATED BY YOU.
IF YOU HAVE ENTERED INTO A SIGNED, WRITTEN MASTER SERVICE AGREEMENT FOR THE PERFECT HEDGE, DULY ACCEPTED BY FINANCIALCAD, THEN THAT AGREEMENT SUPERSEDES AND REPLACES THIS AGREEMENT WHETHER ENTERED INTO BEFORE OR AFTER YOU ACCEPT THIS ONLINE AGREEMENT.
MASTER SERVICE AGREEMENT
THIS Master Service Agreement ("Agreement") is dated and effective as of the date of the Subscriber’s ("your") first use of the Service.
This Agreement is between FinancialCAD Corporation, City Central, 13450 –102nd Avenue, Suite 1750, Surrey, BC, Canada V3T 5X3 ("us") and the Subscriber ("you") identified below.
1. IMPORTANT DEFINITIONS YOU NEED TO KNOW
1.1 In this Agreement, the following terms shall have the following meanings:
"Activation Fee" means the service activation fee set out for the Service in the Online Account Application.
"Affiliate" means a person that directly or indirectly controls, is controlled by, or is under common control with you;
"Access Code" means a text string, such as, but not limited to, a password or user name, that is required to authenticate the identity of, and gain access to the Service for, an individual End User. Each individual End User who has access to the Service must use a unique Access Code;
"Client Access Quota" means the number of unique Access Codes registered on the Service in any calendar month.
"Data" means restricted data such as Market Data provided by us which may be subject to third party redistribution restrictions, and Subscriber Data which is created or entered into the Service by you.
"Data Feed Source" means an entity, including without limitation a stock exchange or bank that creates Market Data.
"Data Feed Supplier" means an entity that transmits Market Data from Data Feed Sources to us.
"Device" means a computer, workstation, terminal, handheld PC, pager, telephone, "smart phone," or other electronic device.
"End User" means any individual person who has access to the Service;
"FEO financial instrument definition" means an object that encapsulates the properties and methods of a financial instrument that define its value, risk, cash flow and/or other attributes.
"Maintenance releases" means commercial releases of the Service, which contain corrections of, or modifications to, the Service.
"Market Data" means data to which you receive access from us, including but not limited to FEO financial instrument definition data, quote data or Value at Risk data.
"Professional Services" means any consulting or Support Services performed by us for you to assist you in using the Service.
"Publishing Service" means the features of the Service which permit you to create data and share it with other users of the Service.
"Rights" means the rights granted under this Master Service Agreement.
"Service" means the application services provided by us through the Software, Market Data and certain other related services for access to and use by you.
"Software" means: (i) the FinancialCAD software, including without limitation all of its components (such as database components, meta data, system data, sample data, software objects, software packages, software dynamic link libraries (DLLs), active server pages (ASPs), hypertext markup language (HTML) documents, installation scripts, images and other FinancialCAD software components), and any maintenance releases and upgrade releases accessed by you during the Term of the Agreement, which shall be in machine readable object code form, and which may also contain sample source code, and (ii) all documentation concerning the foregoing that we generally publish from time to time.
"Subscriber" and "you" means the person or entity who subscribes to and uses the Service.
"Subscriber Data" means data created by you.
"Support Services" means the standard support services that we, in our sole discretion, generally commercially offer to persons similar to you from time to time to assist them in using the Service.
“Term” means, in the case of a free trial, the Term specified in the Trial Terms of Service in your Online Account Application or, in the case of a paid subscription, the Term specified in the Subscription Terms of Service in your Online Account Application.
1.2 Headings. The division of this Agreement into Articles and sections and the insertion of headings are for convenient reference only, and shall not affect the construction or interpretation of this Agreement. The terms "hereof", "hereunder" and similar expressions refer to this Agreement and not to any particular part, Article, section or other portion hereof and include any agreement supplemental to this Agreement.
1.3 Currency. In this Agreement, all references to currency
are references to the lawful currency of the
1.4 Severability. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement shall be severable and the remainder of this Agreement shall continue in full force and effect and be enforced to the maximum extent permissible so as to effect the intent of the parties.
1.5 Complete Agreement. The provisions of the Online Account Application are hereby incorporated by this reference into this Agreement. This Agreement, including the Online Account Application which incorporates the Trial Terms of Service in the case of a free trial or the Subscription Terms of Service in the case of a paid subscription, constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and supersedes and replaces all prior or contemporaneous proposals, draft or proposed written contracts, negotiations, discussions, understandings or agreements, written or oral, regarding such subject matter. Subject to the introduction of, or changes to, Data Feed Source or Data feed Supplier charges, which may happen at any time and may result in a change in the per User Fee, we may amend the terms of this Agreement, including the financial terms, in order to take into account any new services or new policies, by giving you not less than one hundred and twenty (120) days notice of such changes in written or electronic form. No other amendment or modification of this Agreement shall be binding unless in writing and signed by a duly authorized representative of each of you and us.
1.6 Gender and Number. Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
1.7 Governing Law and Attornment. The parties acknowledge that the prevailing and dominant Internet practice for online service providers, together with the provision of such services, is to govern the provision of such services by the laws of the jurisdiction related to where such service providers carry on business and/or the jurisdiction from which the services are provided. This Agreement shall be exclusively governed by, and construed in accordance with, the laws of the Province of Ontario, Canada, and the federal laws of Canada applicable in that Province, excluding the provisions of the International Sale of Goods Act (by which this Agreement shall not be governed, construed or enforced), and the rights and remedies of the parties hereto shall be determined in accordance with those domestic laws. For the purpose of all legal proceedings concerning this Agreement, this Agreement, the Service and all services, including the Professional Services, shall be deemed to have been performed in the Province of Ontario. Each party attorns and submits to the non-exclusive jurisdiction of the Courts of the Province of Ontario. Each party waives all rights to trial by jury.
1.8 Other Documents. The following document, whether in electronic record or in paper form, forms part of this Agreement:
Online Account Application
2. WE GRANT YOU THE RIGHT TO USE THE SERVICE
2.1 Subject to the terms and conditions of this Agreement, we hereby grant to you, and you hereby accept from us, a non-exclusive, personal, restricted and non-transferable right to access and use the Service, including, if applicable, the Market Data, during the Term of this Agreement for the number of End Users who have been granted Access Codes at any given time. In order to protect our intellectual property rights and control access to the Service, each individual End User must use a separate unique Access Code. You agree to not permit access to the Service by any individual person who is not a registered End User of the Service.
3. YOU HAVE OTHER RIGHTS,
BUT YOUR RIGHTS TO USE THE SERVICE ARE SUBJECT TO LIMITATIONS
3.1 You are authorized:
(i) To use the Service solely for the benefit of your internal operations and your Affiliates. You agree to use the Service strictly in accordance with the documentation and specifications for the Service and the terms of this Agreement. You agree not to use the Service, in whole or in part, or permit the Service to be used in any manner, whether directly or indirectly, that would enable your customers or any other person or entity to use the Service. Except for the rights granted in section 3.1 (ii) of this Agreement, you agree that you will not use the Service to provide any service bureau, outsourcing, third-party services or services over the Internet for your benefit or for the benefit of any other person, without first entering into a separate agreement with us concerning such activities. IF YOU WISH TO USE THE SERVICE FOR ANY OTHER PURPOSES PLEASE CONTACT US.
(ii) To publish Subscriber Data over a network, an intranet or the Internet solely by means of the Publishing Service of the Service, for access by any authorized user of the Service, whether operated by you or any other party, provided that no Market Data is included in such Subscriber Data.
3.2 You will not disassemble, decompile or reverse engineer any aspect of the Service whatsoever. You will not publish, post, distribute or disseminate any materials or information on the Service nor upload any files that contain viruses, corrupted files, or any other similar software or programs that may damage or interfere with the operation of the Service. You may not disclose the results of any benchmark test of the Service without our prior written approval.
3.3 You will not use multiplexing or pooling software without our prior written approval. The number of Devices accessing the Service must be equal to the number of distinct inputs to the multiplexing or pooling software or hardware "front end". Use of software or hardware that reduces the number of Devices or End Users directly accessing or utilizing the Service (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of Devices or End Users accessing the Service, for the purposes of this Agreement.
3.4 With respect to technical information you may provide to us as part of any Support Services related to the Service, you acknowledge and agree that we (and our affiliates and agents) may collect, process and use such information for our business purposes, including for product support and development. We will not utilize such technical information in a form that identifies you or the persons you identify in the information you provide to us.
3.5 The Service contains documentation that is provided in electronic form. You may print copies of such electronic documentation solely to support the Rights granted under this Agreement and for no other purpose. Except in connection with your internal and personal use of the Service, you may not copy the printed materials you receive from us.
3.6 You acknowledge and agree that the Service may contain components that can detect and report to us: the number of Devices to which access to the Service has been granted; the number of unique Access Codes which have been registered on the Service; and the number of transaction records on the Service. However, except for this information and the information provided to us either on your Online Account Application or under section 3.4, no other Subscriber information will be collected by us.
3.7 If you have subscribed for Market Data, all terms, conditions and provisions of this Agreement, including without limitation sections 8, 9 and 10, but excluding sections 8.1 and 8.2, applicable to the Service shall apply equally to the Market Data.
3.8 You acknowledge and agree that your use of the Market Data is subject to the following restrictions, terms and conditions:
(i) you agree to use the Market Data solely in the normal course of using the Service in accordance with the restrictions on use set out in section 3.1 of this Agreement. You acknowledge and agree that Market Data is supplied only for your use as part of the Service and not for use in any software that is not a client application of the Service. You will not permit access to the Market Data by any individual person who is not a registered End User of the Service;
(ii) you agree you will not use the Market Data to create an index if that index will be used as a tradable instrument in the nature of a security;
(iii) you agree to carefully read and to comply with any conditions, restrictions or limitations imposed by any of the Data Feed Sources, including obtaining any applicable written approvals from the appropriate Data Feed Sources or, in the absence of such required approval, accept termination of the Market Data portion of the Service. All such conditions, restrictions and limitations that are not included in this Agreement, if any, shall be provided to you in writing (whether electronically or otherwise), prior to your use of any such Data Feed Sources.
(iv) you acknowledge that the Service contains Market Data that is created by us and by third party Data Feed Sources and Data Feed Suppliers. We reserve the right in our sole discretion to change Data Feed Sources and/or Data Feed Suppliers at any time without notice to you. The Data Feed Suppliers currently providing Market Data for use in the Service are:
Garban Information Systems http://www.garban.com/
Telekurs (
3.9 If you permit your Affiliates or your Affiliates’ employees and/or contractors to use the Service, then you represent, acknowledge and agree that you have the authority to bind those parties to, and guaranty compliance with, the terms of this Agreement. For all purposes under this Agreement, except for your payment obligations, those parties shall be bound by all the terms of this Agreement.
3.10 If you provide hospital, clinical or healthcare services to the public
in the
4. THE TERM OF OUR AGREEMENT IS
SPECIFIED
IN YOUR ONLINE ACCOUNT APPLICATION
4.1 This Agreement shall be and remain in effect during the Term, except as otherwise expressly provided herein.
5. WE WILL PROVIDE YOU WITH CUSTOMER SUPPORT WHILE YOU ARE A SUBSCRIBER
5.1 Subject to the payment of the Monthly Fees, we will provide Support Services for the Service for the Term of this Agreement via such means as we generally use to provide Support Services to our subscribers of the Service from time to time. Support will be provided solely to your Site Administrator as specified in your Online Account Application.
6. YOU AGREE TO PAY US THE FEES TO USE THE SERVICE WHEN THEY ARE DUE
6.1 You hereby agree to pay to us all fees in the amounts and on the dates specified in your Online Account Application and interest at the rate of 1.5% per month (18% per annum) on the outstanding balance of any amounts payable each month, or part thereof, that is not paid within thirty (30) days after the due date specified in the Online Account Application.
6.2 You will pay all federal, state, provincial and local sales, value added, excise, use or similar taxes and all tariffs, duties or similar charges due in connection with this Agreement.
7. ALL INTELLECTUAL PROPERTY IN THE SERVICE BELONGS TO US
7.1 You acknowledge and agree that all right, title and interest in and to the Service and in and to any product of Professional Services performed by us for you, including but not limited to the Software, Market Data, FEO financial instrument definition data and training materials used to provide the Service, in whole or in part, and in any form, including all patent, copyright, trade secret and all other intellectual and industrial property rights in the Service and the Software (including the design, format, so-called "look and feel", screens, content, the structure, sequence and organization), shall exclusively belong to us or our suppliers. You acquire no right, title or interest in respect of the foregoing except those rights expressly granted by us pursuant to this Agreement. You agree and acknowledge that we have and reserve the exclusive, worldwide right in perpetuity to protect all such aspects of the Service under any laws, including, without limitation, laws concerning intellectual and industrial property and trade secrets.
7.2 You agree to take all reasonable steps to protect the Service from unauthorized copying or use, including protecting and controlling your Access Code(s) for the Service. You agree to register a unique Access Code on the Service for each individual user who has access to the Service. You agree that you have a reasonable duty of care to prevent any aspect of the Service, including Market Data, from being misappropriated, used without consent, wrongfully disclosed, harmed, stolen, manipulated, tampered with, sabotaged, interfered with by any person, copied, or electronically transmitted or otherwise used in any manner whatsoever other than in accordance with the terms and conditions of this Agreement.
7.3 You represent, warrant and covenant that (i) you own or have all necessary rights to use, transmit and store the Subscriber Data in connection with the Service, and (ii) your entering into this Agreement and use of the Service is not, in any manner or to any extent, either limited, restricted, prohibited or otherwise contrary to any obligation that you may have to any person, whether contractual, statutory, or otherwise.
7.4 You agree that either party may freely communicate that you have become a subscriber of the Service.
8. OUR WARRANTY TO YOU IS LIMITED AND DOES NOT APPLY TO SOME THINGS
8.1 Except as provided in sections 8.4., 8.6 and 10.1 hereof, we represent, warrant and covenant that:
(i) We have the necessary rights to perform our obligations under this Agreement;
(ii) We are the exclusive owner of the Software, but not portions of the Market Data, and we have the right to provide access to the Service to you;
(iii) To the best of our knowledge, the use of and access to the Service by you will not infringe any copyright or patent right in either Canada or the United States of America of any third party;
(iv) The documentation for the Service provides sufficient information to enable you to fully and properly use the Service;
(v) We have used reasonable efforts in accordance with standard industry practice, to ensure that the Service is free from any viruses or other harmful code;
(vi) We have used reasonable endeavors to ensure the protection and confidentiality of Subscriber Data including reasonable efforts to restrict access to Subscriber Data to only those of our employees, agents or contractors; who are required to access portions of the Software containing Subscriber Data solely to maintain the operation of the Service; who have been informed of the confidential nature of the Subscriber Data; and who have executed valid and binding Non Disclosure Agreements with us;
(vii) Except for the purpose of providing you with the Service, we shall make no use whatsoever of Subscriber Data;
(viii) We have used reasonable endeavors to ensure the reliability of the Service; and
(ix) During the Term of the Agreement the Service will accurately generate and process date/time data from, into, and between the 20th and 21st centuries and the years 1999 and 2000, and will not, as a result of the processing of such data, create any logical or mathematical inconsistency, malfunction, or cease to function; provided (A) any data received by the Service for processing accurately reflects such correct date/time, (B) any software receiving data from the Service can accept and accurately process such correct date/time data, and (C) the hardware, operating system and Subscriber software with which the Service is used will accurately generate and process such correct date/time data.
8.2 Except as provided in sections 8.4., 8.6 and 10.1 hereof, we further represent and warrant that:
(i) The operation of Service will conform in all material respects with the Service’s documentation during the term of the Agreement. You will provide us with time and support to correct any defect, and
(ii) We will perform the Professional Services with a reasonable standard
of professional expertise, care and diligence that is generally commensurate
with industry norms for the commercial provision of similar and comparable services
in the
8.3 The warranties set forth in section 8.1(vi) and 8.2 shall not apply: (i) if the Service is not used by you in accordance with its documentation; (ii) to any changes or modifications made to the Service by you; (iii) if the defect is caused by a change or modification to the Service made by you, the Subscriber Data or your communication or processing systems; (iv) to the extent that the defect is caused by or is contributed to by you; or (v) if the defect is caused by the use or combination of the Service with any technology, good, services, software, hardware or other materials not provided by us and in accordance with the provisions of this Agreement.
8.4 WE DISCLAIM ALL OTHER REPRESENTATIONS, CONDITIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, EXCEPT TO THE EXTENT THAT ANY WARRANTIES IMPLIED BY LAW CANNOT BE VALIDLY WAIVED. We do not warrant that the Service will operate uninterrupted or that it will be free from minor defects or errors which do not materially affect its performance or that the Service is designed to meet all your requirements.
8.5 You are solely responsible for your selection of the Service, its ability to achieve the results intended, and the operation of the Service by you. We provide no representations, warranties or covenants as to the suitability of the Service for any use or particular purpose, or as to the results you may obtain using the Service.
8.6 You acknowledge and agree that neither we, the Data Feed Suppliers nor the Data Feed Sources make any representations or warranties as to the accuracy, completeness or timeliness of the Market Data, and you agree that neither we, the Data Feed Suppliers or the Data Feed Sources nor their agents shall have any liability for the accuracy, completeness or timeliness of the Market Data accessed through the Service, or for any delays, interruptions, or omissions, or for interruptions in the availability of the Service.
9. OUR LIABILITY TO YOU IS LIMITED
9.1 Your sole and exclusive remedies for any damages or loss in any way connected with the Service or the performance of any Professional Services, whether due to our negligence, breach of this Agreement, or breach of any other duty, shall be, at our option: (i) to bring the performance of the Service into substantial compliance with the operational specifications contained in its documentation; (ii) re-performance of any services provided by us; or (iii) return of an appropriate portion of any payment made or to be made by you with respect to the applicable portion of the Service or Professional Services, as the case may be.
9.2 We will not be responsible under this Agreement for: (i) any alteration of the Service to fit your particular requirements if those alterations are not performed by us; (ii) the correction of any defects resulting from any changes or modifications by you.
9.3 You acknowledge that you are responsible for your transmission, connection and communication with the Service. You acknowledge that we provide access to the Service at our site(s) and that we are not responsible for any communication failure or interruption in service caused by a third party communications provider.
9.4 You acknowledge that the Data Feed Sources may have the right to terminate provision of the Market Data to the Data Feed Suppliers or to us with or without notice and that none of the Data Feed Sources, the Data Feed Suppliers or us or our respective employees or agents shall have any liability to you in connection with such termination.
9.5 You acknowledge and agree that your arrangement with us for receipt of the Market Data is subject to termination without notice and without any liability to us in the event that the agreement between us and a Data Feed Source or a Data Feed Supplier is terminated for any reason. If such an agreement is terminated or we are unable to continue to provide the Market Data for any reason whatsoever, then our sole liability to you shall be to return the unearned portion of the fees solely related to the Market Data.
9.6 ANYTHING TO THE CONTRARY IN THIS AGREEMENT NOTWITHSTANDING, UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU, OR TO ANY OTHER PERSON OR ENTITY FOR AN AMOUNT IN RESPECT OF ANY LIABILITY, HARM, DAMAGES, LOSS, INJURY, COSTS OR EXPENSES WHATSOEVER IN EXCESS OF THE SUBSCRIPTION FEES PAID UNDER THIS AGREEMENT OR BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES, LOSS OF GOOD WILL OR BUSINESS PROFITS, WORK STOPPAGE, DATA LOSS, COMPUTER FAILURE OR MALFUNCTION, OR, EXCEPT IN PROCEEDINGS BEFORE A COURT, FOR EXEMPLARY OR PUNITIVE DAMAGES.
9.7 You agree that the limitations and exclusions of liability in this Agreement are fair and reasonable in the commercial circumstances of this transaction, including having regard to the free trial use period for the Service and the subscription fees charged to you herein. Your agreement with all such provisions has been an inducement for us to enter into this Agreement, and we have relied on your agreement accordingly. You agree that the provisions of this Agreement fairly and reasonably allocate the risks between us and you. The subscription fees reflect this allocation of risk and the limitations of liability in this Agreement.
10. WE WILL INDEMNIFY YOU AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS, SUBJECT TO CERTAIN LIMITATIONS
10.1 We make no representation and will have no liability with respect to the possibility of infringement of third party copyright, trade secrets, trademark or patent rights that may directly arise as a result of use of the Service in connection with (i) the use or combination of the Service with any technology, good, services, software, hardware or other materials not provided by us, or (ii) any of your activities not authorized under this Agreement, unless any such use is otherwise prescribed or permitted in the Service’s documentation. The parties agree that we have no duty to investigate nor to warn you of any such possibility.
10.2 We shall have no liability with respect to infringement of any intellectual property rights of any other person to the extent the infringement resulted, directly or indirectly, from any acts or omissions by you, including without limitation any breach of either this Agreement or any other contractual obligations
10.3 Except as otherwise provided in sections 10.1 and 10.2, we will fully indemnify and hold you harmless from and against all claims, harm, expense, liabilities, losses, damages, judgements, awards and costs (including reasonable legal fees and expenses) reasonably incurred in the defence or in connection with: any claim brought against you in Canada or the United States by third parties alleging that your use of the Service infringes or misappropriates: (i) any valid patent in Canada or the United States, (ii) a copyright; or (iii) trade secret rights; or (iv) confidentiality rights; (v) or trade-mark rights, provided that, you promptly notify us in writing of any such claim and we are permitted to control fully the defence and any settlement of such claim. You shall co-operate reasonably in the defence of such claim and may appear, at your own expense, through counsel reasonably acceptable to us. We may, in our sole discretion, settle any such claim on a basis requiring us to substitute for the Service and Documentation alternative substantially equivalent non-infringing services and supporting documentation.
10.4 We alone shall be responsible for taking such actions which we determine are reasonably necessary or desirable in our sole discretion in connection with any infringement or alleged infringement by a third party of any portion of the Service. You shall not undertake any action in response to any infringement or alleged infringement of the Service without our prior written consent. You agree to reasonably co-operate with and to assist us solely at our cost and expense by taking whatever action we, acting reasonably, determine to be necessary or desirable. We agree to reimburse you for all legal fees and all other expenses incurred as a result.
10.5 THE PROVISIONS OF THIS SECTION 10 STATE OUR SOLE, EXCLUSIVE, AND ENTIRE LIABILITY, AND IS YOUR SOLE REMEDY WITH RESPECT TO THE INFRINGEMENT OF THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
11. WE CAN TAKE LEGAL ACTION TO PROTECT OUR RIGHTS
11.1 You agree and acknowledge that our rights and interests pursuant to this Agreement may not (in our sole discretion) adequately be protected, and are not capable of remedy, without resort to equitable remedies, which you consent to and agree that you will not dispute any application for any such remedy and relief by us to a court of competent jurisdiction. Furthermore, you agree and confirm that we will have the unrestricted right to seek, and be entitled to secure, equitable relief from a court of competent jurisdiction without interference by you, including without limitation, accounting remedies, mandatory injunction and specific performance.
11.2 You agree that, if you copy or make any use of the Service or Software to create or develop any software or services, except software or services that are used in operation with the Service, you will assign all right, title and interest in and to such software and services to us. You will promptly execute and deliver all documents, including, without limitation, all additional conveyances, transfers, consents and other assurances and do all other acts and things as we may request to be executed or done in respect of that assignment and transfer.
12. WE CAN TERMINATE YOUR SUBSCRIPTION
IF YOU VIOLATE THE TERMS OF THIS AGREEMENT
12.1 We can terminate your rights to use the Service:
(i) if you fail to pay fully any fees for the Service when due and payable or if you breach any of the terms or conditions of this Agreement, we may immediately terminate the Rights without any further obligation or liability to you. In the event the Rights are terminated under this section 12.1 (i), we may terminate this Agreement at any time by giving you written notice of such termination, without any further obligation or liability to you.
(ii) upon 180 days written notice if we discontinue to generally commercially offer the Service.
12.2 In the event of termination of the Rights pursuant to section 12.1, you shall:
(i) make all payments due under this Agreement within thirty (30) days of termination; and
(ii) immediately cease to use the Service upon termination and immediately destroy any and all copies of any Market Data in your possession or under your control and, upon our request, provide evidence satisfactory to us that all such copies have been destroyed.
12.3 Termination of the Rights or this Agreement pursuant to section 12.1 shall be without prejudice to any other right or remedy to which either party may be entitled hereunder in law.
12.4 You acknowledge and agree that you have no expectation that you will obtain any anticipated amount of profits by virtue of this Agreement. The parties agree that the termination provisions of this Agreement, in terms of both notice and default event, are reasonable and agree not to contest same by way of wrongful termination proceedings or otherwise. We will not be liable, by reason of any termination of the Rights or this Agreement pursuant to section 12.1 or otherwise by legal right, for compensation, reimbursement or damages on account of the loss of prospective profits on anticipated sales or on account of expenditures, investments, leases or commitments whatsoever in connection with your business or goodwill.
13. OTHER MATTERS
13.1 Except for changes to the Agreement permitted under section 1.5, the waiver, amendment or modification of any provision of this Agreement or any right, power or remedy under this Agreement will not be effective unless made in writing and signed by the party against whom enforcement of such waiver, amendment or modification is sought. The terms of this Agreement shall not be amended or changed by the terms of any purchase order or acknowledgment even though we may have accepted or signed such documents. No failure or delay by either party in exercising any right, power or remedy with respect to any of its rights hereunder shall operate as a waiver of those rights. Time shall be of the essence of this Agreement. The following sections of this Agreement will survive any termination of this Agreement: 3.2, 3.8, 6.1, 6.2, 7.1, 7.2, 7.3, 8.4, 9, 10, 11, 12 and this 13.1. Any notice or communication given under this Agreement shall be in writing and delivered to the other party via courier or by electronic means (by either facsimile, telecopier or non-audio on-line computer telecommunications system such as "electronic mail", electronic data interchange, or through the Internet) during ordinary business hours in British Columbia, Canada at the principal business address for each party. English shall be the language of this Agreement and all documents in connection with this Agreement and the parties waive any right to use and rely upon any other language, or translations. Il est de la volonté express des parties quele present contrat et tous les documents qui s’y rattachent soient rédigés en langue anglaise, exception faite des documents pour lesquels la loi exige l’usage exclusif du français. This Agreement is not assignable by you, in whole or in part, without our prior written consent which may not unreasonably be withheld.
This document Copyright © 1999-2005 FinancialCAD Corporation. All rights reserved. FinancialCAD® and fincad® are registered trademarks of FinancialCAD Corporation, other trademarks are the property of their respective holders.
Part0226 FC-TPH MSA-ONLINE revised 05-02-27.doc