Terms and conditions
ForexStreet Media, operating under the commercial brand FinancialMarkets.media, or its licensors will exclusively supply, and Distributor will use and distribute on the Service, the Content from fxstreet.com in accordance with the following terms and conditions:
1. GRANT Of RIGHTS AND RESTRICTIONS
1.1 Grant of Rights. FXstreet.com and ForexStreet Media or its licensors grants to Distributor, subject to the terms and conditions contained in the Order Form and these Terms and Conditions (“the Agreement"), a limited, personal, non exclusive, non-transferable (without right of sublicense) right during the term of the Agreement to: i) access the Content by the delivery method referenced in the Order Form or as otherwise mutually agreed upon by the Parties; and ii) distribute and display the Content to any individual and/or customer who has access to the Content ("Users") but subject to the territory limitation of the United States (or such territory where Distributor's affiliates, customers or potential customers may be located).
1.2 Limitations on Use. FXstreet.com and ForexStreet Media or its licensors commit to offer the most accurate Content possible. The Content is for the sole use of Distributor and its affiliates for their internal business purposes and to create Derived Data. The term “Derived Data" means any Content manipulated to such a degree that it (a) cannot be identified as originating or deriving directly from the Content and (b) cannot be reverse-engineered such that it can be so identified. Distributor will not be allowed to resell the Content.
1.3 Additional Restrictions.
1.3.1 Translation. If it is necessary that the Content is in a language other than one of the languages in which FXstreet.com makes the Content available, Distributor must seek authorization from FXstreet.com to translate the Content into such language. Any such translation will be deemed Content for all purposes of this Agreement, except as otherwise expressly stated.
2. CONDITIONS
2.1 Adequate Security and Tracking Measures. Distributor will use commercially reasonable efforts to implement and maintain, at its expense, effective security and tracking measures to restrict unauthorized access to, and usage of, the Content.
2.2 Delivery and Installation. Distributor will acquire, install, operate and maintain at its expense all communication lines, equipment, software, services and related technology necessary to receive, use and display the Content. Distributor also will be responsible for and will bear the cost of, any development work, software or hardware relating to the setup and integration of the Content, including any formatting, timing, storage and other limitations as may be stated in the Agreement.
2.3 Developers. No person other than Distributor may host the Content, except that a third party developer ("Developer") under contract to Distributor may do so. Distributor assumes responsibility for the Developer's compliance with all terms and conditions of this Agreement as if all acts and omissions of the Developer were affected by Distributor. FXstreet.com will not be responsible for acts or omissions of a Developer which delivers the Content.
2.4 Presentation.
2.4.1 Presentation Requirements. Distributor must display the Content in a manner that clearly identifies headlines, stories and other portions of the Content as content from FXstreet.com.
2.4.2 No Alterations. Except for translation referenced in Section 1.4.2, Distributor must not edit, alter or otherwise change in any manner the Content, including, without limitation, the time and date information applicable to each headline and story and all copyright and proprietary rights notices.
2.5 Specifications. Distributor will adhere to all reasonable written specifications provided by FXstreet.com to Distributor concerning the receipt, delivery, use and display of the Content. Distributor must not store, and must dispose of, any codes and other content it receives from FXstreet.com, other than as is permitted under the Agreement.
3. PROPRIETARY RIGHTS
3.1 Intellectual Property. The Parties acknowledge and agree that; (i) FXstreet.com or its licensors are the sole owners of the Content; (ii) all uses of all trade names, trademarks (including, without limitation, logos and brand names), and service marks used in connection with the Content, including without limitation, "FXstreet.com" ("Marks") by Distributor, any references in approved written or electronic public announcements, press releases, advertising, marketing, promotional materials ("Marketing Materials") are subject to a limited, revocable, non-exdusive, non-transferable, and non-sublicensable license; although such limitations are pursuant to the terms of the Agreement; (iii) Distributor will not contest or deny the validity of the Marks or the proprietary interest of FXstreet.com therein; (iv) Distributor will abide by FXstreet.com's reasonable instructions and guidelines for use of the Marks, induding, without limitation, the display of trademark and service mark registration symbols and notices; and (v) Distributor will not use any other word, trademark, service mark, brand name, trade name, symbol, design or the Jike, or register or obtain a license to any domain name, that is similar to or may be confusingly similar to the Marks. For the avoidance of doubt, Distributor owns all its Derived Data at all times.
3.2 Quality control.
3.2.1 Mark Usage. Distributor will not use the Marks in connection with any Marketing Materials, products or services that do not meet a reasonable standard of professionalism consistent with prevailing industry standards.
3.2.2. Ad Guidelines. Distributor warrants that any advertising, sponsorship or promotional materials that appear on the same page, same display, or web page as any Content or Mark will comply with all applicable laws, regulations and rulings.
3.2.3 FXstreet.com shall be permitted access to the Content and the manner in which it is provided by Distributor, however, FXstreet.com shall not have access to any of Distributor's customer information, including but not limited to names and electronic mail addresses.
4. LIMITATION OF LIABILITY.
FXSTREET.COM AND ITS SUBSIDIARIES, AFFILIATES AND SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES AND LICENSORS ("THE FXSTREET.COM PARTIES") WILL NOT BE LIABLE (JOINTLY OR SEPARATELY) TO DISTRIBUTOR, USERS, OR ANY THIRD PAR1Y, FOR INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS (DIRECT OR INDIRECT), LOSS OF ANTICIPATED SAVINGS (DIRECT OR INDIRECT) AND LOST OF REVENUES (COLLECTIVELY, "EXCLUDED DAMAGES") HOWSOEVER ARISING, WHETHER OR NOT CHARACTERIZED IN NEGLIGENCE, TORT, CONTRACT OR OTHER THEORY OF LIABILITY, EVEN IF ANY OF FXSTREET.COM PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN ANY OF THE EXCLUDED DAMAGES. EXCEPT' AS PROVIDED HEREIN IN NO EVENT WILL THE LIABILITY OF FXSTREET.COM PARTIES ARISING OUT OF ANY CLAIM RELATED TO THIS AGREEMENT OR THE SUBJECT MATTER HEREOF EXCEED THE AGGREGATE AMOUNT PAID BY DISTRIBUTOR HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT RISE TO SUCH CLAIM. WHERE REQUIRED BY APPLICABLE LAW, NOTHING IN THIS AGREEMENT WILL BE EFFECTIVE TO OMIT OR RESTRICT THE RESULTING DIRECTLY FROM USE OF THE CONTENT, CAUSED IN WHOLE OR PART BY THE NEGLIGENCE OR CONTINGENCIES BEYOND THE CONTROL OF THE FXSTREET.COM PARTIES IN PROCURING, COMPILING, INTERPRETING, REPORTING OR DELIVERING THE FXSTREET.COM CONTENT. IF ANY APPLICABLE AUTHORITY HOLDS ANY PORTION OF THIS SECTION TO BE ENFORCEABLE, THEN THE FXSTREET.COM PARTIES' LIABILITY WILL BE LIMITED TO THE POSSIBLE EXTENT PERMITTED BY APPLICABLE LAW.
5. DISCLAIMER.
DISTRIBUTOR ACKNOWLEDGES AND AGREES THAT CONTENT IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS AND FXSTREET.COM DOES NOT MAKE ANY AND HEREBY SPECIFICALLY DISCLAIMS AND REPRESENTATIONS, ENDORSEMENTS, GUARANTEES, OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR TITLE.
6. PAYMENT; RECORDS
6 .1 Payments and Reports. In consideration of the rights granted hereunder, Distributor must pay all amounts required under the Order Form within ten (10) days of receipt of an invoice and such amounts shall be the fees due per the period stated in the Order Form. Fees must be paid in advance unless stated otherwise in the contract. Always at the beginning of the year, due to annual adjustments, cost of service will increase annually by a 2.5 % in concept of annual tax adjustments. This enables fxstreet.com to keep the high quality of the service whilst also improving it going forward.
6.2 Taxes. In addition to the amounts set forth in this Agreement, Distributor will pay FXstreet.com or to the relevant taxing authority, as appropriate, any applicable sales, use, goods and services, value-added or other taxes payable under this Agreement (excluding income taxes imposed on FXstreet.com's income). In all cases, the amounts due under this Agreement will be paid by the Distributor to FXstreet.com in full without any right of set-off or deduction.
6.3 Fees. The fees derived from the payments (Bank transfer, Paypal) must be settled on the customer's side to make sure FXStreet will get the full amount agreed and invoiced.
7. TERM AND TERMINATION
7.1 Terms. The term of this Agreement will become effective on the date both parties have executed and delivered a copy of the Contract and will continue for the period specified in the Order form.
7.2 Early Termination. If the Distributor decides to end the contract before its due date, the Distributor must inform fxstreet.com or its licensors with a thirty-day (30) notice. The notice period will be charged and invoice to the distributor in concept of compensation for losses resulting of early termination.
7.3 Termination
7.3.1 Insolvency. If either Party is adjudged insolvent or bankrupt, or upon the institution of any bankruptcy proceedings, either Party may immediately terminate this Agreement without penalty.
7.3.2 Change in Control. In the event of the consummation of a reorganization, merger, consolidation or sale or other disposition of substantially all of the assets ("Change of Control”) of either Party, the Change of Control Party must give notice of such to the other Party. In response to such notice and at its option, the other Party may terminate this Agreement within thirty (30) days by promptly notifying the Change of Control Party. Such termination will not result in a penalty to either Party, and Distributor will be entitled to the Pro Rata Reimbursement.
7.3.3. Uncured Breach. If either Party breaches any provision contained in this Agreement, and such breach is not cured within thirty (30) days after receiving written notice of such breach from the other Party ("Notice of Breach"), the Party giving such notice may then deliver a second written notice to the breaching Party which will immediately terminate this Agreement. Should such a termination occur, the licenses granted in this Agreement will terminate on the date specified in such second notice. Any termination pursuant to Sections 7.3.1, and 7.3.2, may be immediate and will not require a cure period, however immediate notice must be provided pursuant to Section 10.1.
7.4 Effect of Termination. Upon the expiration or termination of this Agreement for any reason, Distributor will: (i) immediately inhibit all access to the Content; (ii) delete any Content then stored on any server within Distributor's control; (iii) cease advertising and promoting the availability of the Content; and (iv) discontinue all uses of the_Marks. Further, upon such termination, each Party, at its expense, must promptly return to the other all copies of the other Party's Confidential Information as defined in Section 8.
8. CONFIDENTIAL INFORMATION
8.1 Confidentiality. The Parties understand and agree that in the performance of this Agreement each Party may have access to private or confidential information of the other Party, including, but not limited to, trade secrets, marketing and business plans and technical information, which either is marked as "confidential" or "proprietary" to the giving Party or the receiving Party should reasonably know under the circumstances that such information is confidential and/or proprietary information of the other Party ("Confidential Information"). Both Parties agree that the terms and conditions of this Agreement, including, without limitation, its financial terms and conditions, will be deemed Confidential Information owned by both Parties. Distributor acknowledges and agrees that the technical and functional specifications and all tools and utilities supplied by fXstreet.com to Distributor under this Agreement are the Confidential Information of FXstreet.com.
8.2 Duties. Each party agrees to: (i) maintain, and use commercially reasonable methods to cause its employees and agents to maintain, the confidentiality of the Confidential Information by, among other things, not copying, publishing or disclosing the Confidential Information to any third parties or using the Confidential Information other than pursuant to terms of this Agreement; and (ii)return or destroy all copies of Confidential Information upon request of the other Party, Notwithstanding the foregoing, a Party may share Confidential Information with its attorneys, accountants, and financial advisors under an obligation of confidentiality no less protective to the disclosing Party than the terms and conditions of this Section 8.
8.3 Exclusions. Notwithstanding the foregoing, Confidential Information will not include any information to the extent such information, as proved by written records: (a) is or becomes a part of the public domain through no act or omission on the part of the receiving Party; (b) is disclosed to third parties by the disclosing Party without restriction on such third parties; (c) is disclosed to the receiving Party through a third-party source or series of sources without any direct or indirect violation of confidentiality with respect to such information, or (d) is independently developed by the receiving Party without reference to the disclosing party's Confidential Information, as evidenced through written records created in the normal course of the receiving Party's business. Should either Party receive a subpoena, regulatory request, court order or similar demand which would result in the potential or actual disclosure of such Confidential Information, the receiving Party will provide immediate written notice to the other Party of such demand as permissible by law. The purpose of such notice will be to permit the Party who owns the Confidential Information to seek a protective order or take other action as it may deem necessary.
9. INDEMNIFICATION
9.1 By FXstreet.com. If a third party brings a claim, suit or action against Distributor or its directors, officers, employees or independent contractors (the "Distributor Indemnified Parties") under claim of copyright infringement (other than as a result of Distributor's translation of FXstreetcom Content pursuant to Section 1.4.2), then FXstreet.com, at its expense, will defend such claim, suit or action, and will indemnify and hold harmless the Distributor Indemnified Parties from and against any damages assessed, awarded, and/or fined in such daim, suit or action by a court of competent jurisdiction or pursuant to an arbitration proceeding, or any amounts due pursuant to a settlement of such claim, suit or action.
9.2 By Distributor. If a third party brings a daim, suit or action against FXstreet.com or its directors, officers, employees, or independent contractors (the"FXstreet.com Indemnified Parties") arising out of the Service or the use or distribution of the FXstreet.com Content on the Service other than those claims, suits or actions arising out of the content of the FXstreet.com Content as provided by FXstreet.com to Distributor, the Distributor, at its expense, must defend such claim, suit or action, and mist indemnify and hold harmless the FXstreet.com Indemnified Parties from and against any damages assessed, awarded and/or fined by a court of competent jurisdiction or pursuant to an arbitration processing, or any amounts due pursuant to a settlement of such daim, suit or action
10. GENERAL
Notices. All notices must be in writing, and delivered either by: (i) email, (ii) facsimile or (iii) overnight courier service with return-receipt signature confirmation, or (iv) certified first class mail. Notice will be deemed delivered and received on the date it is actually received and/or signed for as applicable.
10.1 Amendment, Assignment and No Third Party Benefidaries. This Agreement may not be amended except in a writing executed by authorized representatives of Distributor and FXstreet.com. This Agreement is not transferable, assignable, delegable or sublicensable by either Party in whole or in part, without the prior written permission of the other Party. Any such transfer, assignment, delegation or sublicense by a Party without the prior written consent of the other Party (including, without limitation, direct and indirect transfers and assignments, transfers and assignments by operation of law, as wen as transfers and assignments in connection with a merger or other Change in Control) will be null and void and of no force or effect. No third party is beneficiary of this Agreement, and this Agreement will be binding upon the benefit of the Parties and their respective successors, trustees, administrators, and permitted assigns.
10.2 Survival. Any provision of or obligation under this Agreement which contemplates performance or observance subsequent to any termination or expiration of this Agreement shall survive any such termination or expiration, and shall continue in full force and effect. In addition, all provisions of this Agreement shall survive the termination or expiration of this Agreement to the fullest extent necessary to give the Parties the full benefit of the bargain expressed herein and of the intent contemplated hereunder
10.3 Independent Contractor. FXstreet.com is acting in performance of the Agreement as an independent contractor. Except if specifically stated in this Agreement, neither Party, nor any of their respective employees or agents, will have the power or authority to bind or obligate the other Party.
10.4 Severability. If any provision of this Agreement, or the application thereof, is determined to be invalid or unenforceable, the remainder of that provision and all other provisions of this Agreement shall remain valid and enforceable.
10.5 Governing Law, Arbitration and Jurisdiction. This Agreement, as well as any and all tort claims arising from this Agreement or arising from any of the proposals, negotiations, communications or understandings regarding this Agreement, will be governed by and construed in accordance with the laws of the United States for US Clients and the laws of Spain for European and other International clients excluding the US. The sole jurisdiction and venue for any litigation arising out of this agreement will be an appropriate court of Spain; provided, however, if Distributor is a company based outside of Europe and Asia, then the sole jurisdiction and venue will be the United States Of America. The parties agree not to raise, and waive, any objections or defenses based upon venue or forum non-conveniens. Notwithstanding the foregoing, if in FXstreet.com's opinion the courts in Distributor's country of domicile do not give full recognition to the judgments of the courts of Spain or United States of America, as the case may be, then FXstreet.com may commence litigation arising out of this Agreement in the courts in Distributor's country of domicile and, in any event, FXstreet.com may temporary injunctive relief in any venue of its choosing. Distributor agrees to accept service of any summon , complaint, or other processes in connection with any litigation arising out of this Agreement (''Process Service. Within thirty (30) days after Process Service, or such other time as may be mutually agreed upon writing by the attorneys for the parties to such action or proceeding, Distributor must appeal or answer such Process Service. Should Distributor so served fail to appeal to answer within such thirty (30) day period or such extended period, as the case may be, Distributor will be deemed in default and Distributor will not object to judgment be entered against Distributor for the amount and remedies demanded pursuant to such Process Service.
10.6 Force Majeure. Any failure or delay by FXstreet.com in the performance of its obligations pursuant to this Agreement will not be deemed a default or breach of the Agreement or a ground for termination to the extent such failure or delay is due to fire, flood, earthquake, elements of nature or acts of God, acts of war; terrorism, riots, civil unrest, rebellions or revolution in Spain or any nation where the obligations under this Agreement are to be executed, strikes, supplier and third party failure, fadeouts, or labor difficutties, or any similar cause beyond the reasonable control of FXstreet.com. 10.8 Entire Agreement. This Agreement contains the final and entire agreement of the parties and supersedes all previous and contemporaneous verbal or written negotiations, understandings, or agreements regarding the Agreement's subject matter.