BROKEREACH.COM USE AGREEMENT
PLEASE READ THIS BROKEREACH.COM USE AGREEMENT ("Agreement") CAREFULLY BEFORE SELECTING THE "I accept the terms in the Agreement" OPTION BELOW, OR USING THE BROKEREACH.COM WEB SITE AND ITS ACCOMPANYING MATERIALS. BY SELECTING THE "I accept the terms in the Agreement" OPTION BELOW, OR USING THE BROKEREACH.COM WEB SITE, YOU ("Customer") ARE CONFIRMING YOUR AGREEMENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY AND TERMINATION PROVISIONS BELOW. IF CUSTOMER IS A CORPORATION, LLC, PARTNERSHIP, OR OTHER NON-INDIVIDUAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT ON BEHALF OF THAT ENTITY REPRESENTS AND WARRANTS THAT THEY HAVE ALL NECESSARY AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE "Cancel" OPTION AND DO NOT USE THE BROKEREACH.COM WEB SITE.
IMPORTANT: THE BROKEREACH.COM WEB SITE IS A PROPRIETARY PRODUCT AND IS PROTECTED BY COPYRIGHT AND OTHER INTELLECTUAL PROPERTY LAWS. IT IS LICENSED (NOT SOLD) FOR USE SUBJECT TO THE CONDITION THAT LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT.
WHEREAS, InfoReach ASP, LLC ("InfoReach") is the owner of a certain web site located at www.brokereach.com
and the software, documentation, and all fixes, updates, revisions and modifications of such software and documentation associated therewith (all of the foregoing, collectively, "Brokereach"); and
WHEREAS, Customer desires to use Brokereach to submit trades to a broker (or brokers) of Customer's choice for execution; and
WHEREAS, such brokers (the "Broker(s)") may accept or reject any trades proposed by Customer and designate either the Broker or Customer as the payor of InfoReach's then-current fees;
NOW THEREFORE, in consideration of the mutual promises contained herein and for other good and valuable consideration the receipt, adequacy and sufficiency of which is hereby acknowledged, the parties agree as follows:
1.1 "Affiliate" means any entity controlled by, or under common control with, Customer. As used in the previous sentence, "control" means: (i) owning more than fifty percent (50%) of the entity; and (ii) having the right to direct voting of more than fifty percent (50%) of the voting securities of the entity.
1.2 "Authorized User" means any person designated by Customer to access and use Brokereach subject to the terms of this Agreement.
4.0 FEES & PAYMENT.
3.1 Unless expressly permitted by this Agreement, or otherwise approved by an officer of InfoReach in writing, Customer expressly agrees that it will not:
i. use Brokereach other than as permitted by this Agreement;
ii. rent, lease, license, service-bureau, transfer or otherwise provide access to Brokereach to any third party (other than any Affiliates of Customer). However, Section 3.1(ii) shall not prohibit Customer or any of its Affiliates from using Brokereach internally in connection with the facilitation of trades for its own account or for the account of any of its customers;
iii. alter, remove or obstruct any proprietary rights notice in or on Brokereach;
iv. modify, change, alter, translate, create derivative works from, produce a source listing, decompile, disassemble, or otherwise reverse engineer, Brokereach, or attempt to do the same or assist another in the same;
v. interfere, or attempt to interfere, with Brokereach in any way;
vi. engage in any fraudulent, illegal or unauthorized use of Brokereach;
vii. introduce into or transmit through Brokereach any virus, worm, trap door, back door, spyware, timer, clock, counter or other harmful, malicious, unauthorized or limiting routine, instruction or design;
viii. transmit or otherwise make available any content that is false, harmful, threatening, abusive, harassing, tortious, defamatory, libelous, disparaging (including disparaging of InfoReach), vulgar, obscene, pornographic, invasive of another's privacy, or that promotes violence, racial hatred, terrorism or illegal acts or is otherwise objectionable (as determined by InfoReach in its sole discretion);
ix. use Brokereach to interfere with any third party;
x. use Brokereach to engage in any illegal acts or unauthorized transactions; and
xi. redistribute or resell Brokereach or any output or reports generated by Brokereach.
3.2 Customer acknowledges and agrees that InfoReach is permitted to prevent access to Brokereach in the event: (i) Customer breaches this Agreement in any material respect and fails to cure the breach within five (5) days following notice of the breach; or (ii) fails to pay any amounts owed by Customer under this Agreement within five (5) days following the date payment of the amount is due. INFOREACH WILL HAVE NO LIABILITY FOR DENYING CUSTOMER ACCESS TO BROKEREACH BY THE USE OF ANY DISABLING OR SECURITY DEVICE IN THE EVENT CUSTOMER BREACHES THIS AGREEMENT IN ANY MATERIAL RESPECT AND FAILS TO CURE THE BREACH WITHIN FIVE (5) DAYS FOLLOWING WRITTEN NOTICE OF THE BREACH.
3.3 Customer acknowledges and agrees that InfoReach will provide access to and use of Brokereach to multiple customers and that the use of Brokereach is non-exclusive and non-transferable by Customer.
3.4 The parties acknowledge that since the Internet is neither owned nor controlled by any one entity, InfoReach makes no guarantees that any Authorized User will be able to access Brokereach at any given time, and except as may be otherwise expressly provided herein, InfoReach will not be liable to Customer for failure of accessibility to Brokereach.
5.0 CUSTOMER RESPONSIBILITIES.
4.1 The fees to be paid hereunder are set forth on Brokereach. Customer should confirm the then-current fees before placing any trade. Customer's transmission of any trade is an acknowledgement and acceptance of InfoReach's then-current fees on Brokereach. The Broker that accepts any trade placed by Customer will designate either Customer or the Broker as the payor of InfoReach's fees. InfoReach will invoice fees monthly for the use of Brokereach. If Customer is designated as the payor for any trade placed through Brokereach, Customer will pay all fees in accordance with, and by the due date of, the invoice of InfoReach.
4.2 If Customer fails to pay any amounts owing to InfoReach by the applicable due date, InfoReach will have the right to: (i) assess late charges at a monthly rate equal to the lesser of one and one-half percent (1½%) of the overdue amounts, computed daily, or the maximum amount permissible under applicable law, computed daily; and (ii) suspend any or all access to Brokereach or terminate this Agreement upon notice to Customer, unless the designated payor pays the amounts owing within five (5) days of notice that the amounts are overdue, without relieving Customer of its obligations with respect to any amounts due to InfoReach.
4.3 All amounts are payable in United States dollars. Customer agrees that InfoReach may, in its sole discretion, increase the fees effective upon posting the revised fees on Brokereach.
4.4 Notwithstanding any provision herein to the contrary, in the event Customer objects in good faith to the amount set forth in any invoice:
i. Customer shall be obligated to pay, when due, the undisputed portions of charges set forth in the invoice;
ii. Customer must notify InfoReach of the dispute before the invoice due date ("Dispute Notice"). The Dispute Notice shall set forth the justification for the dispute in sufficient detail to allow InfoReach to investigate the disputed fees; and
iii. Upon InfoReach's receipt of the Dispute Notice, InfoReach and Customer shall immediately negotiate in good faith to resolve the issue that is the subject of the Dispute Notice. If the parties are unsuccessful in resolving the issue in dispute within ten (10) days of InfoReach's receipt of the Dispute Notice, then InfoReach shall have the ability to assert its rights in Section 4.2 above.
4.5 The fees and all other amounts payable to InfoReach by Customer for Brokereach under this Agreement do not include sales, use and other taxes, levies and governmental impositions of any type, all of which Customer agrees to pay, exclusive, however, of income taxes levied upon InfoReach. If InfoReach pays any tax for which Customer is responsible under this Section 4.0, Customer will reimburse InfoReach within thirty (30) days upon invoice.
4.6 Customer will be responsible for, and InfoReach is entitled to recover from Customer, all costs associated with collecting any fees or other amounts due and owing to InfoReach from Customer, including but not limited to any reasonable legal costs, attorneys' fees, court costs and collection agency fees.
5.1 Performance. Customer is solely responsible for the accuracy of all data and information entered into Brokereach.
5.2 Customer is responsible for all storage, backup and retrieval of Customer's data.
5.3 Customer is responsible for, and must provide, all telephones, telecommunications connections, computers, hardware and software equipment and services necessary to access the Internet and Brokereach. InfoReach gives no assurance that Customer's equipment will be compatible with Brokereach.
5.4 Customer will be responsible for: (i) for maintaining the confidentiality of all of its Authorized User's login information (username and passwords) and for restricting access to Brokereach through its usernames and passwords. Customer will notify InfoReach immediately if Customer believes the security of any username/password combination has been compromised in any way; (ii) ensuring that each Authorized User uses Brokereach in accordance with the terms and conditions of this Agreement; and (iii) any and all damages, costs and expenses incurred through the use of Brokereach by any of Customer's Authorized Users.
5.5 InfoReach will not be liable for any failure or delay by Customer in performing Customer's responsibilities set forth in this Section 5. InfoReach will be excused from performance of any of its obligations to the extent InfoReach cannot perform due to Customer's failure or delay.
6.1 Customer's Warranty. Customer represents and warrants to InfoReach that:
i. Customer has the authority to enter into this Agreement and perform its obligations under this Agreement;
ii. Customer and its Authorized Users will only use Brokereach for lawful purposes and will not violate any law of any country or the intellectual property rights of any third party;
iii. Customer will provide all reasonable assistance to InfoReach in providing Brokereach set forth hereunder;
iv. Customer warrants that it is not located in a country where export or re-export of the contents of information received via the Internet or Brokereach is prohibited; and
v. should Customer receive notice of any claim regarding Brokereach, Customer will promptly provide InfoReach with a written notice of the claim.
6.2 InfoReach's Limited Warranty. InfoReach represents and warrants to Customer that InfoReach has the authority to enter into this Agreement.
6.3 EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, INFOREACH DISCLAIMS ALL WARRANTIES WITH RESPECT TO THIS AGREEMENT AND BROKEREACH, WHICH IS PROVIDED "AS IS", AND INFOREACH DISCLAIMS ALL OTHER WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING, USAGE, OR TRADE. OTHER WRITTEN OR ORAL STATEMENTS BY INFOREACH, ITS REPRESENTATIVES OR OTHERS DO NOT CONSTITUTE WARRANTIES OR CONDITIONS OF INFOREACH. NOTHING STATED IN THIS AGREEMENT WILL IMPLY THAT CUSTOMER'S ACCESS TO BROKEREACH WILL BE UNINTERRUPTED, SECURE, OR ERROR FREE, OR THAT ANY ERRORS WILL BE CORRECTED. INFOREACH DOES NOT WARRANT THE ACCURACY, RELIABILITY, COMPLETENESS OR TIMELINESS OF THE CONTENT OF DATA RECEIVED BY CUSTOMER VIA THE INTERNET. CUSTOMER ASSUMES RESPONSIBILITY FOR THE SELECTION AND TESTING OF BROKEREACH TO ACHIEVE CUSTOMER'S INTENDED RESULTS AND FOR THE USE AND RESULTS OBTAINED FROM BROKEREACH. THE EXCLUSION OF IMPLIED WARRANTIES IS NOT PERMITTED IN SOME JURISDICTIONS; CONSEQUENTLY, THIS EXCLUSION MAY NOT APPLY TO CUSTOMER.
6.4 INFOREACH MAKES NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, COMPLETENESS, SEQUENCE, TIMELINESS OR AVAILABILITY OF BROKEREACH. INFOREACH MAKES NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING ANY OTHER INFORMATION OR THE LIKELIHOOD OF PROFITABLE TRADING USING BROKEREACH. CUSTOMER ACCEPTS FULL RISK AND RESPONSIBILITY FOR ANY INVESTMENT DECISIONS OR STOCK, SECURITIES OR OTHER INVESTMENT TRANSACTIONS MADE BY CUSTOMER USING BROKEREACH.
7.0 LIMITATION OF LIABILITY. IN NO EVENT WILL INFOREACH OR THE OFFICERS, EMPLOYEES OR SUPPLIERS OF INFOREACH BE LIABLE TO CUSTOMER OR ANY THIRD PARY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST SAVINGS OR LOST DATA) ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE BROKEREACH, EVEN IF INFOREACH HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES OR CLAIMS. IN NO EVENT WILL THE LIABILITY OF INFOREACH OR ITS OFFICERS, EMPLOYEES OR SUPPLIERS UNDER OR ARISING OUT OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE AGGREGATE FEES ACTUALLY PAID TO INFOREACH BY CUSTOMER FOR THE MONTH (OR THE FIRST MONTH, IF MULTIPLE MONTHS) IN WHICH THE EVENT(S) GIVING RISE TO A CLAIM OCCURRED. THE LIMITATION IN THIS SECTION 7 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND WILL APPLY EVEN IN THE EVENT OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
8.0 TERM & TERMINATION.
Either party may terminate this Agreement immediately upon written notice to the other party. InfoReach may also terminate this Agreement (and Customer's access to Brokereach) immediately either with or without notice to Customer in the event Customer breaches Section 2.0 or Section 3.0 above. Upon the expiration or termination of this Agreement for any reason: (i) Customer's access and license to Brokereach will terminate; and (ii) Customer will return to InfoReach any and all Confidential Information, equipment, software, documentation or other deliverables provided to Customer by InfoReach including any copies held by Customer.
9.0 EXPORT RESTRICTIONS.
This Agreement is expressly made subject to any laws, regulations, orders, and other restrictions on the export from the United States of America of Brokereach and any information about Brokereach that may be imposed from time to time by the government of the United States of America. Customer may not export or re-export, directly or indirectly, any services and any information about Brokereach to any country for which the United States government, or any agency thereof, requires an export license or other governmental approval at the time of export or re-export without first obtaining the required license or approval.
Customer agrees to indemnify, defend (at InfoReach's sole option and at Customer's sole expense) and hold harmless InfoReach, its directors, officers and employees and agents, from and against any action, claim, lawsuit, demand, cause of action, cost, expense, debt or liability, including reasonable attorneys' fees ("Claims"), arising out of or relating to: (a) Customer's use of or access to Brokereach or the Internet; (b) all data or information entered into Brokereach by Customer and Authorized Users; (c) Customer's use of the product of Brokereach; (d) any claim of fraudulent or unauthorized use or misuse of Brokereach, including but not limited to any unauthorized access using Customer's login information; (e) any combination of Brokereach with goods, services, hardware or software not provided by InfoReach; (f) Customer's hardware and software; (g) any customization specifications provided by Customer to InfoReach related to Brokereach; and (h) any act or omission of Customer, its agents, contractors, servants, employees or other users.
No right (except for the license granted in Section 2.0 above), title or interest of intellectual property or other proprietary rights in and to Brokereach and other products or services made available under this Agreement is transferred to Customer by this Agreement. InfoReach and its third-party licensors retain all right, title and interests, including, without limitation, all copyright and other proprietary rights in and to Brokereach and other products or services provided under this Agreement. As between InfoReach and Customer, Customer will retain all right, title and interest to the data entered into Brokereach by Customer.
12.1 Nondisclosure of Confidential Information. Customer acknowledges that in the course of performing this Agreement, it will have access to certain confidential information of InfoReach concerning InfoReach's business, plans, customers, data, technology, products, and other information held in confidence by InfoReach ("Confidential Information"). Confidential Information includes, without limitation, all materials related to Brokereach and InfoReach's provision of services in connection with Brokereach, and all information that is in writing or tangible form related to Brokereach. Except as reasonably required by law or regulation or in connection with the performance of Customer's obligations under this Agreement, Customer agrees that it will not use in any way for its own account, or for the account of any third party, InfoReach's Confidential Information, or disclose it to any third party. Customer will take commercially reasonable precautions to protect the confidentiality of InfoReach's Confidential Information, at least as stringent as it takes to protect its own Confidential Information.
12.2 Exceptions. Information will not be deemed Confidential Information hereunder if such information: (i) is known to Customer prior to receipt from InfoReach; (ii) becomes known (independently of disclosure by the disclosing party) to Customer from a source other than one having an obligation of confidentiality to InfoReach; (iii) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by Customer; or (iv) is independently developed by Customer without reference to InfoReach's Confidential Information, as reasonably established by Customer. Customer may disclose Confidential Information for the limited purpose of complying pursuant to the requirements of a governmental agency or by operation of law, provided that it gives InfoReach reasonable prior written notice sufficient to permit InfoReach to contest and/or limit such disclosure.
12.3 Remedies. Customer acknowledges and agrees that remedies at law for a breach or threatened breach of any of the provisions under this Section 12.0 would be inadequate and, in recognition of this fact, in the event of a breach or threatened breach by Customer of any of the provisions contained in this Section 12.0, InfoReach, without posting any bond, will be entitled to obtain equitable relief in the form of temporary restraining order and permanent injunction and Customer agrees not to contest same. Nothing contained in this Agreement will be construed as prohibiting InfoReach from pursuing any other remedies available to it for a breach or threatened breach of Section 12.0. Pursuit of any remedy at law or in equity will not be deemed as an election of remedies.
12.4 Return of Confidential Information. Unless InfoReach directs Customer to destroy such Confidential Information, upon the written request of InfoReach or upon termination of this Agreement, Customer will return to InfoReach all tangible expressions (including all copies) of Confidential Information.
13.1 This Agreement is governed by the laws of the State of Illinois, USA, without regard to principles of conflicts of laws, and the United Nations Convention on Contracts for the International Sale of Goods will not apply. State and federal courts sitting in Cook County, Illinois will have exclusive venue and jurisdiction over any disputes under this Agreement. Notwithstanding the foregoing, nothing in this Agreement will limit the ability of either party to seek injunctive or other equitable relief in any court having jurisdiction.
13.2 InfoReach has and may cumulatively exercise all rights it might have at law or in equity for the protection of Brokereach, including, without limitation, injunctive relief enjoining the breach or threatened breach of this Agreement. In the event Customer breaches or threatens a breach of this Agreement, Customer agrees that InfoReach will be entitled to injunction and other temporary and permanent equitable relief without requirement of posting bond and without the necessity of showing actual money damages.
13.3 This Agreement constitutes the entire agreement between Customer and InfoReach pertaining to use of Brokereach, and supersedes all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, with respect to the subject matter hereof.
13.4 Unless expressly permitted herein, no amendment or waiver of any term of this Agreement will be binding unless executed in writing by the parties.
13.5 If one or more of the provisions of this Agreement is deemed invalid, unlawful or unenforceable by law, the provision(s) will be enforced to the greatest extent possible and the remaining provisions hereof will remain in full force and effect.
13.6 Customer may not assign this Agreement by law or otherwise without the prior written approval of InfoReach. This Agreement shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and permitted assigns.
13.7 The headings used in this Agreement are for reference and convenience only and may not enter into the interpretation of this Agreement.
13.8 Force Majeure. Except for the obligation to make payments, InfoReach will not be liable to Customer nor deemed in breach of this Agreement to the extent that performance is rendered impossible or delayed due to events beyond the reasonable control of or not due to the negligence of InfoReach, including but not limited to act of war, terrorism, strike, fire, flood, storm, vandalism, cable cut, failure of telecommunications equipment (including Internet connections), power failure, riot, explosions, governmental acts or orders or restrictions, acts of God, failure of suppliers, or any other reason where failure to perform is beyond the control of InfoReach.
13.9 The terms and conditions of Sections 4.0, 7.0, 8.0, 10.0, 11.0, 12.0 and 13.0 will survive the termination or expiration of this Agreement.