This Software User Agreement (this “Agreement”) is entered into by and among Metrixx/360 LLC (Metrixx) an Illinois limited liability company, and YOU or the entity on whose behalf you are entering into this Agreement (“YOU” or “USER”). UPON CLICKING “AGREED” (below) YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS AGREEMENT.
1. Software Materials and Service. Metrixx and/or one or more of its Affiliates is the owner or licensee of an analytics application and associated software and other technology, data, processes, methodologies, legal structures, documents, research and other content (including content available on or through any Metrixx website and data, calculations and information processed by or transmitted by Metrixx, Metrixx-Community website and data, content, calculations and other Intellectual Property of Metrixx) made available or provided in connection therewith (all of the foregoing, collectively, the “Metrixx Content”) and provides a service (which includes any Metrixx website) whereby users may access certain or all of the Metrixx Materials (collectively, the “Service”). As used in this Agreement, “Affiliate” means any entity or individual that, directly or indirectly, controls, is controlled by, or is under common control with, a specified entity. “Metrixx Content” shall include any and all updates, modifications and new versions of the Service and any Metrixx Content as Metrixx may make available from time to time, and all information, data and other content provided through the Service and/or contained within any Metrixx Content.
2. Right of Access. Subject to the terms and conditions of this Agreement, Metrixx grants User a limited, revocable, non-exclusive, non-transferable right to access the Service on a single computer during each session of use, solely for User’s personal or internal business purposes, including calculation of any listed or unlisted Derivative Agreement, Regulated Futures Contract, Listed Option contract, or the use of any position held by held at certain Associated Persons, Floor Brokers, Futures Commission Merchants, Custody Agents, Finance Providers, Hedge Funds, Commodity Trading Advisors, Commodity Pool operators, or Investment Bank in the performance of calculations performed by Metrixx. All rights not specifically granted hereunder are reserved by Metrixx and/or its Affiliates or licensors, as applicable. No provision of this Agreement shall be construed as granting to User a license or any other right in the source code of any Metrixx Content.
3. Passwords and Account Designations. User will receive from Metrixx a password and account designation in order to access the Service. As between Metrixx and User, User shall be solely responsible for maintaining the confidentiality of its password and account designation; (ii) all activities (whether authorized or not) undertaken by users of its password and account designation; (iii) ensuring its password and account designation are used by no other individual or entity; and (iv) notifying Metrixx immediately of any unauthorized use of User’s password and account designation or any other known or suspected breach of security relative to the Service.
4. Restrictions on Use. User shall not, and shall ensure that any other individual or entity does not, rent, license, sublicense, sell, lease, transfer, assign, loan, sell, distribute, market, or otherwise commercially exploit or disclose or make available to any third party the Service or any Metrixx Content, or any portion thereof, in any form; (ii) modify, reverse engineer, reverse assemble, reverse compile, copy or create derivative works based upon the Metrixx Content or any portion thereof, including using data for population of another database; (iii) provide access to the Service or any Metrixx Content via a computer service business, network, multiple CPU or multiple or concurrent user arrangement to users who are not individually licensed by Metrixx; (iv) create Internet “links” to the Service or “frame” or “mirror” the Service or any Metrixx Content on any other server or wireless or Internet-based device; (v) monitor the Service’s availability, performance or functionality, or use the Service for any other competitive purposes; (vi) use, transfer or dispose of the Service or any Metrixx Content in any manner that could compete with the business of Metrixx or its Affiliates; (vii) use, transmit, disseminate, distribute or store via the Service any data, information or other material that infringes or otherwise violates any copyright, trademark, trade secret or other intellectual property or privacy right of any individual or entity; (viii) use the Service or any Metrixx Content to further any unlawful purpose; (ix) violate, or attempt to violate, the security, integrity or performance of the Service or any Metrixx Content, or of Metrixx’ systems, networks, authentication measures, servers or equipment; or (x) undertake any activities that might reasonably be expected to be harmful to the Service or the Metrixx Content or the use thereof by any other user.
5. Term. This Agreement shall take effect as of the earlier of the first date User is provided a password and account designation by Metrixx and the first date User uses the Service, and shall remain in effect until terminated as set forth in Section 7 below.
6. Termination and Suspension. Metrixx, in its sole discretion, may, at any time and for any reason, suspend User’s access to the Service and/or terminate this Agreement; and/or (ii) remove or delete any content within the Service submitted by User, provided that prior to removing any content submitted by User, Metrixx may make such content available to User to be copied from the Service in a format as reasonably determined by Metrixx. Sections 4, 5 and 7-21 shall survive any expiration or termination of this Agreement.
7. Proprietary Rights. Metrixx, its Affiliates or its licensors, as applicable, own all rights, title and interest in and to the Service and the Metrixx Content; (ii) all updates, modifications, enhancements and new versions to or of the foregoing, and all derivative works based thereon; and (iii) all copyrights, patents, trade secrets, database rights and other intellectual property associated with or appurtenant to the property identified in clauses and (ii) above. User shall not (a) remove or obliterate any copyright, trademark or proprietary rights notices of Metrixx or Metrixx’ Affiliates or licensors appearing on any Metrixx Content, or (b) use the trademarks or service marks of Metrixx, its Affiliates or licensors (including METRIXX and the METRIXX logo) for any purpose, without the prior written approval of Metrixx. User grants to Metrixx and the Affiliates of Metrixx a non-exclusive, perpetual, irrevocable license to collect, store, share and use any information provided by User in connection with User’s use of the Service (including performance information) for any purpose, in the reasonable discretion of Metrixx and its Affiliates (as applicable), including for operation of the Service and disclosure to any other users of the Service, provided that use of such information by Metrixx and/or its Affiliates does not identify User as the source of such information, except as may otherwise be agreed by User and Metrixx or any of Metrixx’ Affiliates, as applicable.
8. Confidentiality. User shall retain in confidence all confidential and/or proprietary information of Metrixx and its Affiliates and licensors as may be disclosed in connection with the Service or this Agreement (“Confidential Information”). Except as is expressly permitted hereunder, User shall not disclose any Confidential Information to any individual or entity, other than its officers, directors, employees or agents who have a need to know such information to enable User to exercise those rights expressly granted to User under this Agreement and who are bound by confidentiality obligations at least as restrictive as the terms hereof (“Representatives”), and neither User nor its Representatives shall use the Confidential Information for purposes other than in connection with the exercise of its rights and obligations under this Agreement. Notwithstanding the foregoing, User may disclose Confidential Information when required to do so pursuant to a judicial, governmental or regulatory requirement or order under law, provided that User has provided Metrixx notice of such requirement or order (unless prohibited by a judicial, governmental or regulatory requirement or order under law) and has cooperated fully with Metrixx to obtain an appropriate protective order or other confidential treatment of the information to be disclosed. Notwithstanding the foregoing, Confidential Information will not include information independently developed by User or lawfully received free of restriction from another source that, to User’s knowledge, has the right to furnish such information; (ii) after it has become generally available to the public by acts not attributable to User; or (iii) that, at the time of disclosure to User, was known to User free of restriction.
9. Third Party Software. The Service has been designed to interact with certain third party commercial software products, and may be further enhanced through future releases to work with additional third party software products. Should User elect to license and use such third party software products, User does so at its own risk. METRIXX EXPRESSLY DISCLAIMS ANY LIABILITY IN CONNECTION WITH ANY SUCH THIRD PARTY SOFTWARE OR USER’S USE THEREOF.
10. Links to Third Party Sites. User acknowledges that, at any time, Metrixx may display via the Service links to third party sites. Metrixx is not responsible for the content of such links, or any products, services or other content relating to any linked site or any link contained in a linked site. The display of any link does not imply endorsement by Metrixx of the linked site or any content therein, or any products or services provided by the owner or operator of such site. IN NO EVENT WILL METRIXX BE LIABLE, DIRECTLY OR INDIRECTLY, TO ANYONE FOR ANY DAMAGE OR LOSS ARISING FROM OR RELATING TO ANY USE, CONTINUED USE OR RELIANCE ON ANY PRODUCTS, SERVICES OR OTHER CONTENT RELATING TO ANY SUCH LINKED THIRD PARTY SITE, OR ANY LINK CONTAINED IN A LINKED SITE.
11. User’s Warranties. User represents and warrants that User’s execution and performance of this Agreement will not violate any other agreement or other obligation to which it is bound; (ii) the individual entering into this Agreement on User’s behalf has full authority to enter into the Agreement and bind User to the terms and conditions hereof; (iii) User will comply with all applicable laws, rules and regulations in performing its obligations and exercising its rights under this Agreement; (iv) the information User has given about itself is complete, true and accurate.
12. General Disclaimer. EACH OF THE SERVICE AND THE METRIXX CONTENT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. USER ASSUMES THE SOLE AND ENTIRE RISK OF USE OF THE SERVICE AND THE METRIXX CONTENT AND ANY RELIANCE THEREON. USER ACKNOWLEDGES THAT METRIXX DOES NOT OFFER ADVICE REGARDING THE QUALITY OR SUITABILITY OF ANY INVESTMENT THROUGH THE SERVICE OR ANY METRIXX CONTENT. USER FURTHER ACKNOWLEDGES METRIXX DOES NOT GUARANTEE THAT (A) THE SERVICE WILL OPERATE IN AN ERROR FREE, SECURE OR UNINTERRUPTED MANNER, (B) ANY DEFECTS IN THE SERVICE OR ANY METRIXX CONTENT WILL BE CORRECTED, (C) ANY METRIXX CONTENT WILL BE ACCURATE, COMPLETE, CURRENT, ADEQUATE, SUITABLE FOR USER’S PURPOSES, TIMELY, OR VALID, OR (D) THE SERVICE, METRIXX CONTENT OR SERVER(S) HOSTING THE SERVICE WILL BE FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS. USER ADDITIONALLY ACKNOWLEDGES THAT THE INTERNET, COMPUTER NETWORKS, AND COMMUNICATIONS LINKS AND DEVICES NECESSARY TO ENABLE USER TO ACCESS THE SERVICE AND USE THE METRIXX CONTENT ARE INHERENTLY INSECURE AND VULNERABLE TO ATTEMPTS AT UNAUTHORIZED ENTRY AND ARE NOT CONTROLLED BY METRIXX. METRIXX MAKES NO, AND HEREBY DISCLAIMS ALL, WARRANTIES, UNDERTAKINGS, REPRESENTATIONS, TERMS AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMON LAW OR OTHERWISE, IN REGARD TO THE SERVICE, THE METRIXX CONTENT, OR ANY PORTION OF THE SAME OR THE USE, INABILITY TO USE OR AVAILABILITY THEREOF, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. PLEASE NOTE THAT SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, AND THUS SOME OR ALL OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.
12.1 METRIXX IS OFFERED TO TRADING PROFESSIONALS AND IS INTENDED SOLELY FOR INFORMATION PURPOSES. ANY DATA OR INFORMATION PROVIDED BY METRIXX DOES NOT CONSTITUTE A SOLICITATION OF ANY OFFER TO BUY OR SELL ANY FINANCIAL INSTRUMENT, SECURITY OR COMMODITY, FUTURE OR OPTION INSTRUMENT OF ANY KIND OR TO ENGAGE OR PARTICIPATE IN ANY TRADING STRATEGY. METRIXX MAY NOT BE DISTRIBUTED, COPIED, OR GIVEN TO ANY OTHER PERSON OR ENTITY WHERE SUCH DISTRIBUTION WOULD BE CONTRARY TO LOCAL LAWS OR REGULATIONS.
12.2 METRIXX CALCULATED PRICES, METRIXX INSTRUMENT SCORES, AND METRIXX MARKET STATUS, MARKET STATUS PRO, AND PORTFOLIO STATUS ARE CALCULATED WITH PROPRIETARY METHODS AND INFORMATION BELIEVED TO BE ACCURATE AND RELIABLE, HOWEVER, METRIXX DOES NOT GUARANTEE ITS ACCURACY, TIMELINESS OR COMPLETENESS.
12.3 INFORMATION PROVIDED BY INDEPENDENT THIRD PARTIES IS SUBJECT TO CHANGE WITHOUT NOTICE. ANY AND ALL NEWS AND COMMENTARY PROVIDED SUCH THIRD PARTIES ARE THE SOLE PROPERTY OF THE THIRD PARTY, AND METRIXX IS NOT AFFILIATED WITH ANY THIRD PARTY PROVIDER. METRIXX IS NOT RESPONSIBLE FOR THE CONTENT, AND DOES NOT OR CONTROL WHICH ARTICLE, COMMENT, OR WHITE PAPER INFORMATION APPEARS ON ITS WEBSITE OR IN METRIXX COMMUNITY.
13. Limitation of Liability. EXCLUDING ANY LIABILITY OF METRIXX FOR WILLFUL MISCONDUCT OR GROSS NEGLIGENCE, USER AGREES THAT IN NO EVENT SHALL METRIXX OR ANY OF METRIXX’S AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OR CORRUPTION OF DATA, INVESTMENT LOSSES, OR BUSINESS INTERRUPTION AND THE LIKE, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR USE (WHETHER OR NOT AUTHORIZED) OR INABILITY TO USE THE SERVICE OR METRIXX CONTENT, REGARDLESS OF WHETHER SUCH DAMAGES ARISE IN TORT, CONTRACT, OR OTHERWISE, AND EVEN IF METRIXX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IF A COURT OR OTHER TRIBUNAL OF COMPETENT JURISDICTION SHOULD FIND METRIXX LIABLE FOR ANY LOSS, DAMAGE OR EXPENSES UNDER THIS AGREEMENT, METRIXX’S AGGREGATE LIABILITY UNDER THE AGREEMENT, REGARDLESS OF THE FORM OF ACTION, SHALL IN NO EVENT EXCEED $1,000.
14. Indemnification. User shall defend, indemnify and hold Metrixx, its Affiliates, and the officers, directors, employees, agents, and representatives of Metrixx and its Affiliates (“Metrixx Indemnitees”) harmless from and against all costs, claims, demands, losses, expenses and liabilities of any nature whatsoever (including reasonable attorney’s fees) incurred or suffered by such Metrixx Indemnities arising out of, or in connection with, any third party claim, demand, or cause of action based upon or arising out of use of (or inability to use) the Service or Metrixx Content by User or any other individual or entity gaining access to the Service through User or User’s password and/or account designation (whether or not such use was authorized by User); (ii) breach of any of User’s obligations, representations, warranties or covenants under this Agreement; (iii) any allegation that Metrixx’ use of any information provided by User in connection with its use of the Service infringes or otherwise violates the intellectual property, proprietary or other rights of, or has caused harm to, a third party; and/or (iv) User’s gross negligence or willful misconduct.
15. Notices. Except as otherwise expressly provided herein, all notices, certifications, requests, demands, payments and other communications hereunder: shall be in writing; (ii) may be delivered by certified or registered mail via the United States Postal Service, postage prepaid; by hand; by facsimile, or by any internationally recognized private courier (e.g., Federal Express, DHL); (iii) shall be effective (a) if mailed via certified or registered mail, on the date five (5) days after the date of mailing, or (b) if hand delivered, faxed, or delivered by private courier, on the date of delivery; and (iv) shall be addressed to the applicable Party, (x) if to Metrixx, at the address set forth on Metrixx’ then current website, and (y) if to User, at the address on record with Metrixx, or to such other email or street address as may hereafter be specified by notice given by one Party to the other.
16. Force Majeure. If the performance of this Agreement by Metrixx is prevented, hindered, delayed or otherwise made impracticable by reason of any cause beyond its reasonable control (including any flood, riot, fire, act of terrorism, failure or corruption of data feeds, price vendors or other data sources, failure of electronic or mechanical equipment or communications lines, computer viruses, unauthorized access, theft, operator errors, and judicial or governmental action), Metrixx shall be excused from such performance to the extent, including for the duration of time, that it is prevented, hindered or delayed by such cause.
17. Assignment. This Agreement will not be assignable or delegable by User without the prior written consent of Metrixx.
18. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled exclusively by arbitration administered by JAMS and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in accordance with Section 21; provided, however, that a party may, without inconsistency with this arbitration provision, apply to any court of competent jurisdiction for injunctive relief, as described in Section 20 or until the arbitration award is rendered or the controversy is otherwise resolved. The arbitration will be conducted in Chicago, Illinois, by an arbitrator operating in accordance with the provisions of JAMS Streamlined Arbitration Rules and Procedures in effect at the time of filing of the claim for arbitration. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including the issuance of an injunction. The fees and expenses of such arbitration shall be borne by the non-prevailing party, as determined by such arbitration. Except as necessary in court proceedings to enforce this arbitration provision or an award rendered hereunder, or to obtain interim relief, neither a party nor an arbitrator may disclose the existence, content or results of any arbitration hereunder without the prior written consent of the parties hereto.
19. Injunctive Relief. If User should breach or threaten to breach any of the provisions of this Agreement, then, without prejudice to any remedies at law or in equity otherwise available to Metrixx, Metrixx will be entitled to injunctive and/or other equitable relief awarded by a court of competent jurisdiction, without the requirement of posting any bond or other security or proving monetary damages. User acknowledges money damages alone would be an inadequate remedy for the injuries and damage that would be suffered by Metrixx as a result of a breach of any of the provisions of this Agreement.
20. Miscellaneous. This Agreement is governed by the laws of the State of Illinois, without regard to principles of conflicts of laws. Any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in Cook County, Illinois, and each Party hereby submits to the personal jurisdiction of such courts. This Agreement constitutes the entire agreement between User and Metrixx, with respect to the subject matter hereof. The failure of Metrixx to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of any such right or operate so as to bar the exercise or enforcement thereof at any time or times thereafter. This Agreement may be modified, supplemented or otherwise amended at any time by Metrixx in its discretion. User’s use of the Service or of any Metrixx Content following notice of any such amendment shall constitute User’s acceptance of the amended agreement This Agreement is binding upon, and shall inure to the benefit of, the Parties and their respective administrators, legal representatives, successors, and permitted assigns. If any provision hereof is held by a court of competent jurisdiction to be contrary to law, void or otherwise unenforceable, such provision shall be enforced to the extent possible in order to effect the intention of the Parties the remainder of this Agreement shall remain in full force and effect. References to sections and exhibits are to sections of, and exhibits to, this Agreement, unless otherwise indicated. Section headings are inserted for convenience of reference only and shall not affect the construction of this Agreement. The singular number shall include the plural, and vice versa. Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated.