Tick-by-Tick Rates License Agreement
1. Grant of License
OANDA hereby grants to Licensee, and Licensee hereby accepts from OANDA, a non-exclusive, non-transferable, limited right and license for the term of this Agreement to receive and use OANDA's proprietary foreign exchange market data comprised of tick-by-tick rates as executed on OANDA's FXtradeTM platform ("OANDA Rates") for the limited purposes and under the terms and conditions set forth in this Agreement.
2. Scope of License and Restrictions
- Licensee may use OANDA Rates solely for its own Internal Use. For the purposes of this Agreement, the term "Licensee" does not include any subsidiary or other entity controlled by, controlling, or under common control with, Licensee, and "Internal Use" means access to and use of OANDA Rates for performance of research and analysis, preparation of hard-copy research documents and reports (which may incorporate insubstantial amounts of OANDA Rates as an incidental part of such research documents) and for other data processing use, analysis within Licensee's own organization only.
- Licensee shall not communicate, resell, retransmit or otherwise make available, or permit to be communicated or otherwise make available, OANDA Rates (or any part thereof) to any third party (including but not limited to the clients or customers of Licensee or to any other non-Licensee persons or entities).
- In the event Licensee becomes aware of any unauthorized use by a third party of OANDA Rates, Licensee will give OANDA prompt notice thereof. Licensee will, thereafter, cooperate with OANDA in investigating the same.
- Any violation of the foregoing provisions may be deemed by OANDA to be a material breach of the terms of this Agreement.
3. Right of Inspection
Licensee agrees to furnish to OANDA, upon OANDA's written request, such information concerning its use of OANDA Rates as OANDA shall reasonably require for the purpose of monitoring compliance with this Agreement. Licensee and OANDA agree that if OANDA believes, on reasonable grounds, that Licensee is, or may be, in breach of Section of this Agreement, a person or persons designated by OANDA (accompanied by a representative of Licensee, at Licensee's discretion) shall have reasonable access to Licensee's business premises and the right to audit Licensee's use of OANDA Rates. If, the result of such audit shall determine that Licensee has used OANDA Rates in breach of this Agreement then, without prejudice to OANDA's legal remedies, OANDA shall have the right to terminate this Agreement immediately.
4. Proprietary Rights
Licensee acknowledges that OANDA Rates consists of factual information gathered, selected and arranged by OANDA at considerable expense and by application of methods of selection and judgment unique to OANDA, and that such information shall be and remain the sole property of OANDA during and after the term of this Agreement. Licensee agrees not to make any use of the name "OANDA" or any other name or mark of OANDA (including but not limited to the "OANDA Rate" trademark), alone or in connection with any other word or words, without the prior written consent of OANDA, which consent may be withheld in OANDA's sole and unfettered discretion.
5. Limitation of Access
- only provide access to OANDA Rates to its employees on a "need to know" basis,
- advise each such employee of the proprietary nature of OANDA Rates, and
- direct each such employee to treat OANDA Rates pursuant to the confidentiality provisions of this Agreement.
6. EXCLUSION OF WARRANTIES
OANDA DOES NOT WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF OANDA RATES, AND LICENSEE ACKNOWLEDGES THAT OANDA RATES ARE BEING PROVIDED TO LICENSEE "AS IS", WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATIONS OF LIABILITY; EXCLUSION OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL OANDA BE LIABLE TO LICENSEE, OR TO ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE USE OF OANDA RATES, OR FOR ANY DELAYS, INACCURACIES, ERRORS, INTERRUPTIONS OR OMISSIONS IN FURNISHING OANDA RATES, OR FOR ANY DIRECT, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING THEREFROM, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY PERSON ACTING IN RELIANCE UPON OANDA RATES DOES SO AT THEIR OWN RISK. IN THE EVENT THE FOREGOING LIMITATION IS FOUND BY A COURT OF COMPETENT JURISDICTION TO BE INEFFECTIVE, THE PARTIES AGREE THAT OANDA'S MAXIMUM LIABILITY FOR ANY CLAIM ARISING HEREUNDER (WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) SHALL BE LIMITED TO FIFTY DOLLARS ($50) U.S.
Licensee agrees to indemnify and hold OANDA, its shareholders, officers, employees and agents harmless from and against any and all losses, claims, damages or liabilities (including reasonable attorneys' fees) to which any of them may become subject and which are in any way related to or which have arisen under or in connection with the following, in each case whether arising under any statute, at common law or otherwise, and to reimburse them for all legal or other out-of-pocket expenses (including the reasonable costs of investigation and preparation) incurred in connection therewith:
- any breach of this Agreement or non-compliance by Licensee with the terms and conditions of this Agreement;
- any misuse by Licensee of OANDA Rates; and
- any third-party action related to Licensee's receipt and utilization of OANDA Rates, whether authorized or not authorized under this Agreement.
This Agreement shall be effective upon execution by the parties and shall continue (unless sooner terminated by the provisions hereof) for a period of one (1) year from the date hereof and from year-to-year thereafter (the "Term").
- Notwithstanding the provisions of Section, this Agreement may be terminated:
- at any time by mutual agreement of the parties;
- at any time by either party for convenience upon thirty (30) days prior written notice to the other party; or
- immediately by OANDA upon notice to Licensee in the event of a breach by Licensee of any of Sections 4, 5, 8, or 11 hereof.
- Upon termination of this Agreement for any reason whatsoever the license to use OANDA Rates and access thereto will be immediately revoked, and Licensee will forthwith destroy all copies of OANDA Rates, and will provide OANDA with documentation certifying such destruction.
Licensee agrees that it shall not, directly or indirectly, in whole or in part;
- disclose to any other person, or
- use for any purpose not permitted by this Agreement, any Confidential Information received from OANDA.
It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Section 11. Accordingly, in the event of a breach or threatened breach of any such obligation, Licensee hereby consents to the granting of a temporary restraining order, preliminary injunction and/or permanent injunction against it by any court of competent jurisdiction, without requiring the posting of any bond or other security therefor, prohibiting it from committing or continuing any such breach or threatened breach. In any proceeding upon a motion for such a temporary restraining order, preliminary injunction or permanent injunction, its ability to answer in damages shall not be a bar, nor be interposed as a defense, to the granting of any such equitable relief against it. As used herein, "Confidential Information" shall mean OANDA Rates and any other information or data received by Licensee from OANDA pursuant to this Agreement which is not in the public domain (other than as a result of a disclosure directly or indirectly by Licensee.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement may not be assigned, in whole or in part, by Licensee. For the purposes of this Agreement, an assignment shall be deemed to include a merger, consolidation or other corporate reorganization, or a transfer or sale of a controlling interest in Licensee's stock, or of substantially all of its assets.
Notwithstanding the termination of this Agreement for any reason, Sections 2(b) and (c), 4, 6, 7, 8, 10, 11 and 15 hereof shall survive such termination and shall remain in full force and effect.
14. Force Majeure
Neither party shall be liable for any delays or failures to perform any of their respective obligations hereunder to the extent that such delays or failures are due to circumstances beyond their reasonable control including, without limitation, acts of God, strikes, riots, acts of war, telecommunications failure or governmental regulations imposed after the date of this Agreement.
15. Dispute Resolution
Except for the right of OANDA to apply to a court for injunctive relief or other such provisional remedy to prevent irreparable harm, OANDA and Licensee agree that, with respect to any controversy or claim arising out of or relating to this Agreement, OANDA and Licensee will first work together in good faith to resolve the matter internally by escalating it to higher levels of management. Failing resolution, the parties may mutually agree to proceed to arbitration by a single arbitrator pursuant to the rules of the American Arbitration Association. The decision of the arbitrator will be binding and not subject to appeal.
- The arrangements set forth herein between the parties are non-exclusive including, by way of example and not limitation, the right of OANDA to distribute OANDA Rates or any part or component thereof to third parties.
- Each party agrees to execute, acknowledge, file and record such further documents, and do such further acts and things as may be required hereunder or as shall be reasonably necessary to carry out the intent and purposes of this Agreement.
- This Agreement constitutes a valid and binding obligation of each of the parties, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors' rights generally and except as may be limited by the exercise of judicial discretion in applying principles of equity.
- This Agreement shall be construed in accordance with the laws of the State of New York, without reference to the conflict of laws provisions thereof or the conflict of laws provisions of any other jurisdiction.
- This Agreement constitutes the complete understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all prior communications with respect thereto.
- This Agreement may not be modified, amended or in any way altered or waived, except in a writing signed by both parties.
- Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute a consent to, waiver of, or excuse for any other different or subsequent breach. This Agreement may be executed in counterparts, all of which together shall be deemed one and the same Agreement.
- All notices required hereunder shall be in writing and shall be deemed to have been duly given:
- three business days after posting by certified mail, postage prepaid,
- upon confirmed receipt if delivered by telecopier and
- the next day if delivered by overnight commercial courier, in each case to the address set forth below:
New York, NY 10005
Phone: +1 212 858-7690
Fax: +1 212 208-4356
- All monetary amounts referred to in this Agreement shall be in U.S. dollars.
- The parties to this Agreement are and shall remain independent contractors, and nothing herein shall be construed to create a partnership or joint venture between them.
- If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.