FINSEMBLE FREE EDITION AGREEMENT
THESE TERMS AND CONDITIONS (THIS “AGREEMENT”) GOVERN YOUR USE OF FINSEMBLE (FREE EDITION). IF YOU PURCHASE FINSEMBLE (PAID EDITION) FROM US, YOUR PURCHASE AN ONGOING USE OF FINSEMBLE (PAID EDITION) WILL BE GOVERNED BY THE SUBSCRIPTION AGREEMENT IN EFFECT BETWEEN YOU AND US (“SUBSCRIPTION AGREEMENT”).
BY ACCEPTING THIS AGREEMENT, EITHER BY INSTALLING FINSEMBLE (FREE EDITION) OR BY EXECUTING AN ORDER FORM WITH A FINSEMBLE ECOSYSTEM PARTNER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE FINSEMBLE (FREE EDITION).
This Agreement was last updated on October 14, 2018. It is effective between You and Us as of the date of Your acceptance of this Agreement.
- “Affiliate” means any entity which directly or indirectly Controls, is Controlled by, or is under common Control with the subject entity.
- “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
- “Finsemble Component” means a software application that interoperates with Finsemble (Free Edition) and/or Finsemble (Paid Edition) including but not limited to those listed in the Finsemble Online Application Registry.
- “Finsemble Ecosystem Partner” means a third party software provider that has (i) developed Finsemble Component and (ii) executed a Finsemble Ecosystem Partnership Agreement with Us.
- “Finsemble (Free Edition)” means the Finsemble open terminal framework (provided by Us free of charge) with certain limitations on functionality as described in the Finsemble Documentation and this Agreement.
- “Finsemble (Paid Edition)” means the Finsemble open terminal framework (provided by Us to paying customers) with full functionality as described in the Finsemble Documentation and the applicable Subscription Agreement.
- “Finsemble Documentation” means documentation describing the Finsemble Ecosystem which may be found via the following link: https://documentation.chartiq.com/finsemble/.
- “Users” means individuals who are authorized by You to use Finsemble (Free Edition). Users may include but are not limited to Your employees, consultants, contractors and agents.
- “We,” “Us” or “Our” means ChartIQ, Inc., a Delaware corporation with offices at 609 East Market Street, Suite 111, Charlottesville, VA 22902.
- “You” or “Your” means the individual, company or other legal entity who has acquired a license for a Finsemble Component from a Finsemble Ecosystem Partner and for which you are accepting this Agreement and Affiliates of that individual, company or entity.
- “Your Data” means all electronic data or information submitted by You to a Finsemble Component.
2. USE OF FINSEMBLE
2.1 Your Responsibilities: You shall (i) be responsible for Users’ compliance with this Agreement; (ii) be solely responsible for the means by which You acquired any Finsemble Components; (iii) use commercially reasonable efforts to prevent unauthorized access to or use of Finsemble (Free Edition), and notify Us promptly of any such unauthorized access or use; and (iv) use Finsemble (Free Edition) only in accordance with the Finsemble Documentation and applicable laws and government regulations.
2.2 Restrictions on Use:
a. You shall not (i) transfer, rent, lease, lend, modify, translate, sublicense, time-share or share Finsemble (Free Edition) to or with a third party in any manner; (ii) disassemble, de-obfuscate or reverse engineer Finsemble (Free Edition) software, or induce or assist any third party to do so; (iii) bypass or circumvent any controls implemented by Finsemble (Free Edition) that limit the functionality of the software for non-paying customers, including but not limited to inter-vendor application interoperability; (iv) replicate any functionality of Finsemble (Paid Edition) that is not part of Finsemble (Free Edition); (v) except as specifically provided for in the Finsemble Documentation, modify the launcher bar, window header, preferences screen, system dialogs, menus, and alerts; or (vi) attempt to gain unauthorized access to Finsemble (Paid Edition) or Our systems or networks.
b. You shall not use Finsemble (Free Edition) to store or transmit (i) infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights or (ii) malicious code or malware, or to engage in phishing or other fraudulent activity.
c. You may not use Finsemble (Free Edition) if You are Our direct competitor, except with Our prior written consent. In addition, You may not use Finsemble (Free Edition) for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
3. THIRD-PARTY PROVIDERS
3.1 Acquisition of Third Party Products and Services. We may offer Finsemble Components for sale pursuant to separate order forms. Any other acquisition by You of third-party products or services, including but not limited to Finsemble Components and implementation, customization and/or other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, including Finsemble Components, whether or not they are designated by Us as “certified” or otherwise, except as specified in a separate agreement signed by Us specifically identifying the products or services.
3.2 Finsemble Components and Your Data. By installing or enabling a Finsemble Component for use within Finsemble (Free Edition), You acknowledge that the Finsemble Ecosystem Partner providing that Finsemble Component may access Your Data as required for the operation of such Finsemble Component. We shall not have access to Your Data and shall not be responsible for any disclosure, modification or deletion of Your Data resulting from any such access by a Finsemble Component or a Finsemble Ecosystem Partner.
4. No FEES
Unless there is a separate Subscription Agreement between You and US, we are providing Finsemble (Free Edition) at no charge. We reserve the right to change our policies (including pricing) for Finsemble (Free Edition) at any time on 90 days’ notice given in accordance with Section 13.1 (Notices).
5.1 Our License to You. Subject to the terms and conditions set forth herein, We grant you a worldwide non-exclusive license during the term of this Agreement to use Finsemble (Free Edition) to operate the Finsemble Components acquired from Finsemble Ecosystem Partners. You shall not (i) permit any third party to access Finsemble (Free Edition) except as permitted herein or in the Finsemble Documentation, (ii) create derivate works based on Finsemble (Free Edition), other than Finsemble Components in accordance with a separate agreement with Us, (iii) copy, frame or mirror any part or content of Finsemble (Free Edition), other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer Finsemble (Free Edition), or (v) access Finsemble (Free Edition) in order to build a competitive product or service or to copy any features, functions or graphics of Finsemble (Free Edition).
5.2 Suggestions. You grant us a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into our services any suggestions, enhancement requests, recommendations or other feedback provided by You, including Your Users, relating to the operation of our products or services.
6. PROPRIETARY RIGHTS
6.1 Our Proprietary Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to Finsemble (Free Edition), including all related intellectual property rights subsisting therein. We grant no rights to You hereunder other than as expressly set forth herein.
6.2 Your Proprietary Rights. Except as provided in Section 5.2 (Suggestions), We acknowledge and agree that We obtain no right, title or interest from You (or your licensors) under this Agreement in or to Your Data, or any other applications, including any source code and intellectual property rights subsisting therein.
7. EXCLUSION OF WARRANTIES
WE MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND WE SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT YOUR USE OF FINSEMBLE (FREE EDITION) WILL MEET YOUR REQUIREMENTS OR THAT YOUR USE OF FINSEMBLE (FREE EDITION) WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR.
You shall defend Us against any claim, demand, suit, or proceeding (“Claim”) made or brought against Us by a third party alleging that any materials (including Your Data) developed by You (or by a third party on Your behalf) using or related to Finsemble (Free Edition) infringe or misappropriate the intellectual property rights of a third party or violate applicable law (to the extent such infringement, misappropriation or violation does not arise from Finsemble (Free Edition), and shall indemnify Us for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Us in connection with any such Claim; provided, that We (a) promptly give You written notice of the Claim; (b) give You sole control of the defense and settlement of the Claim (provided that You may not settle any Claim unless the settlement unconditionally release Us of all liability); and (c) provide to You all reasonable assistance, at Our expense.
9. LIMITATION OF LIABILITY
IN NO EVENT SHALL WE HAVE ANY LIABILITY TO YOU FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR LOSS OF PROFITS, REVENUE OR DATA OR FOR INTERRUPTIONS IN SERVICE. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
10. TERM AND TERMINATION
10.1 Term. This Agreement commences on the date You accept it and continues until terminated in accordance with Section 10.2 (Termination).
10.2 Termination. You may terminate this Agreement for any reason at any time. We may terminate this Agreement and the license granted hereunder (a) at any time without cause upon 60 days’ written notice to You, or (b) upon 7 days’ written notice to You of a material breach of this Agreement if such breach remains uncured at the expiration of such period. Upon any termination of this Agreement, subject to Section 10.4 (Surviving Provisions), the license set forth herein shall terminate and neither party shall have any further rights or obligations arising hereunder.
10.3 LOSS OF APPLICATIONS AND MATERIALS. UPON ANY TERMINATION OF THIS AGREEMENT YOU RIGHT TO USE FINSEMBLE (FREE EDITION) SHALL TERMINATE. ACCORDINGLY, YOUR ABILITY TO USE ANY FINSEMBLE COMPONENTS SHALL ALSO TERMINATE AND ANY MATERIALS (INCLUDING YOUR DATA) DEVELOPED BY YOU USING FINSEMBLE (FREE EDITION) MAY BE PERMANENTLY LOST.
10.4 Surviving Provisions. Sections 6 (Proprietary Rights), 7 (Exclusion of Warranties), 8 (Indemnification), 9 (Limitation of Liability), 11 (Governing Law and Jurisdiction) and 13 (General Provisions) shall survive any termination or expiration of this Agreement.
11. GOVERNING LAW, VENUE, AND WAIVER OF JURY TRIAL
11.1 Governing Law. This Agreement, and any disputes arising out of or related hereto, shall be governed exclusively by the internal laws of the State of New York and controlling United States federal law, without regard to their conflicts of laws rules or the United Nations Convention on the International Sale of Goods.
11.2 Venue; Waiver of Jury Trial. The state and federal courts located in New York County, New York shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
12. CHANGES TO TERMS
We may make changes to this Agreement from time to time. When these changes are made, We will make a new copy of the Terms available on this web page. You understand and agree that if you use Finsemble (Free Edition) after the date on which this Agreement has changed, We will treat Your use of Finsemble (Free Edition) as acceptance of the updated Terms.
13. GENERAL PROVISIONS
13.1 Notices. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (a) personal delivery, (b) the second business day after mailing, or (c) the first business day after sending by email (provided email shall not be sufficient for notices of material breach or an indemnifiable claim). Notices to Us shall be addressed to the attention of ChartIQ, Inc., 609 East Market Street, Suite 111, Charlottesville, VA 22902, U.S.A., Attention: Director, Finsemble Partner Ecosystem.
13.2 Export Compliance. Each party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using Finsemble (Free Edition). Without limiting the foregoing, (a) each party represents that it is not named on any U.S. government list of persons or entities prohibited from receiving exports, and (b) it shall not permit Users to access or use Finsemble (Free Edition) in violation of any U.S. export embargo, prohibition or restriction.
13.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.4 No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
13.5 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
13.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
13.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, provided, however, You may not so assign this Agreement if such acquirer is Our direct competitor. A party’s sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party’s election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.8 Entire Agreement. This Agreement, together with any Subscription Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted.