API USAGE AGREEMENT
THIS API USAGE AGREEMENT (the
“Agreement”) is dated as of November 6, 2007 (the “Effective Date”) between T2
API Technologies, LLC, a Delaware limited liability company, (“Company”) and
Media Sentiment, Inc. a Nevada corporation (“Vendor”).
A.
WHEREAS, Company is an affiliate of TD AMERITRADE, Inc. (“TD AMERITRADE”), a
registered broker-dealer under applicable law;
B.
WHEREAS, TD AMERITRADE is a securities brokerage firm that offers a trading
platform (the “TD AMERITRADE System”) that provides its clients the ability to
enter securities orders, to verify and determine the status of open orders, to
cancel and modify open orders, and to request basic securities account
information and to receive other securities brokerage products and
services;
C.
WHEREAS, Vendor offers investors and traders [software applications and/or
market data] (“Vendor Application”) that interfaces with third party
trading platforms (“Third Party Platforms”) as a means of providing users of
such system with access to, among other things, the trading and related
functionality of such Third Party Platforms and a market data feed
comprised of real time and delayed stock and/or futures and commodities quotes
of major markets and feeds from major news organizations (together with Vendor
Application, “Vendor System”); and
D.
WHEREAS, Company and Vendor desire to set forth herein their agreement regarding
the development of an interface between their respective systems (referred to as
the “Vendor Interface” and defined in Section 1(a) below) through access to the
Company’s application programming interface (“API”).
NOW
THEREFORE, in consideration of the foregoing recitals, the mutual promises,
agreements and covenants set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties agree as follows:
1) INTERFACE DEVELOPMENT &
CONFIGURATION.
(a) Company
and Vendor will work with each other in good faith to configure (i) the API with
respect to TD AMERITRADE System’s trading and account functionality, and (ii)
the Vendor Interface with respect to the Vendor System’s functionality, to
operate in conjunction with each other for the use by subscribers who are both
clients of TD AMERITRADE and subscribers of Vendor (collectively, the
“Subscribers”). The software permitting the above-referenced
interconnectivity is referred to herein as the “Vendor Interface.” Vendor
acknowledges that all code for the API was written exclusively by Company and
its affiliates and that the API constitutes Company Intellectual Property (as
defined in Section 4(e)). Company acknowledges that all code for the Vendor
Interface was written exclusively by or for Vendor and its affiliates and that
the Vendor Interface constitutes Vendor Intellectual Property (as defined in
Section 4(f)).
(b) Following
completion of the Vendor Interface, both Company and Vendor shall subject the
Vendor Interface to such operational and other tests (collectively, “Acceptance
Tests”) as Company and Vendor may deem reasonably necessary to determine whether
the Vendor Interface meets the parties’ respective operational
criteria. The Vendor Interface shall not be put into commercial use
until each party has accepted the Vendor Interface. For purposes
hereof, “accepted” shall mean each party’s written notification to the other
party that the Vendor Interface has passed all Acceptance Tests.
(c) Company
and Vendor each retains the right at all times to make any changes in their
respective systems that they may deem necessary or desirable.
(d) If any
change to either the Vendor System or the TD AMERITRADE System, results in
required modifications to the other party’s system to avoid interruption in the
Vendor Interface, the parties agree to work in good faith, each at its own
expense, to modify their respective systems to avoid or minimize any such
interruption; provided, however,
that
neither party shall be obligated to make any material capital expenditure to
modify or upgrade its system to be compatible with modifications to the other
party’s system and, in lieu of making any such capital expenditure, may elect to
terminate this Agreement.
(e) The
Vendor Interface will not be co-branded and the underlying technology of the
Vendor System and the TD AMERITRADE System are, and shall remain, independent of
each other.
(f) The
parties will clearly indicate, in appropriate places within their respective
systems, that all securities transactions will be processed by TD
AMERITRADE. For example, “Brokerage
services provided exclusively by TD AMERITRADE, Inc.”
2) USE
OF VENDOR INTERFACE.
(a) Only
Subscribers may utilize the Vendor Interface. In connection
therewith, Vendor will execute its own agreement with Subscribers governing the
Vendor Interface and the Vendor System.
(b) Any and
all trading and other brokerage activities made available to Subscribers via the
Vendor Interface shall be conducted solely by TD AMERITRADE.
(c) Unless licensed as a registered
broker-dealer, Vendor agrees not to engage in the following activities
(“Brokerage Activities”): (i) except as expressly permitted by this
Agreement, describe
TD AMERITRADE’s or any of its affiliates’ brokerage
services, products or
benefits; (ii) recommend or endorse specific
securities or investment
strategies except as
specifically related to Vendor’s business; or (iii) become involved in the financial
services offered by TD
AMERITRADE or any of its
affiliates, including, without limitation, by: (1) opening,
approving, maintaining, administering, or closing third party customer brokerage
accounts with TD AMERITRADE or any of its affiliates; (2)
soliciting, processing, or facilitating securities transactions relating to
customer brokerage accounts with TD AMERITRADE or any of its affiliates; (3)
extending credit to any customer for the purpose of purchasing securities
through, or carrying securities with TD AMERITRADE or any of its affiliates; (4)
answering TD
AMERITRADE or any of its
affiliates’ customer inquiries with respect to their accounts and
transactions; (5)
accepting customer
securities orders, selecting among broker-dealers or routing orders to markets
for, TD
AMERITRADE or any of its
affiliates execution; (6) handling funds or securities of TD AMERITRADE or any of its affiliates’ customers,
or effecting clearance or settlement of customer securities trades or other securities
transaction; (7) resolving
or attempting to resolve any problems, discrepancies or disputes involving TD AMERITRADE or any of its affiliates’ customer
accounts or related
transactions; or (8) receiving compensation based
on securities transactions or provision or investment advice. Vendor acknowledges that TD AMERITRADE
shall be solely responsible for all Brokerage Activities.
3) ADVERTISING.
(a) Except as
provided in Addendum
A, neither party shall be obligated to perform any advertising or
marketing of the Vendor Interface, provided that, subject to the right of the
other party to review and approve in advance all written statements made about
such party, its system or the Vendor Interface (including the right to decline
inclusion in any advertising), either party may, in its sole discretion,
advertise the Vendor Interface and/or refer its prospects and clients to the
Vendor Interface.
(b) In
addition, subject to the right of TD AMERITRADE to review and approve in
advance, all advertising or other promotion of the Vendor Interface by Vendor
shall include the following disclaimers, as applicable, prominently displayed,
in addition to any other disclaimers that may be required by applicable law,
rule or regulation:
(i) “TD
AMERITRADE, Inc. and [vendor Name] are separate, unaffiliated companies and are
not responsible for each other’s services and products.”
(ii) “Brokerage
services provided exclusively by TD AMERITRADE, Inc., member
SIPC”
(c) Each
party is responsible for the accuracy of all sales and marketing materials
relative to its products and the other party shall have no liability in respect
thereof.
(d) Except as
required by any applicable law or regulation or the rules of any recognized
national stock or other exchange or any other self regulatory organization or
association (each a “Governmental Entity”), neither party shall issue or cause
any public announcement (a “Press Release”) to be made regarding this Agreement
without obtaining the prior written consent of the other party and providing the
other party with a reasonable opportunity to review and comment upon the Press
Release. If a Governmental Entity shall require either party to issue
a Press Release, such party shall, to the extent reasonably practicable, provide
the other party at least twenty four (24) hours prior written notice and the
opportunity to review and make
reasonable
comments upon the Press Release prior to its release.
4) LICENSE
AND INTELLECTUAL PROPERTY.
(a) License
to Use API. Subject to the terms and conditions of this Agreement,
Company hereby grants to Vendor a non-exclusive, non-transferable license to use
the API during the term of this Agreement for the sole purpose of enabling the
Vendor System to interact with the TD AMERITRADE System through the Vendor
Interface and the API (“License to Use API”). The License to Use API
shall automatically terminate upon any termination of this
Agreement.
(b) License
to Use Vendor Interface. Subject to the terms and conditions of this
Agreement, Vendor hereby grants to Company and its affiliates a non-exclusive,
non-transferable license to use the Vendor Interface during the term of this
Agreement for the sole purpose of enabling the Vendor System to interact with
the TD AMERITRADE System through the Vendor Interface and API (“License to Use
Vendor Interface”). The License to Use Vendor Interface shall
automatically terminate upon any termination of this Agreement.
(c) License
to Use API: Restrictions.
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(i)
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Vendor
shall not use the API:
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(A) in any way other than as expressly permitted or granted under
this Agreement; and
(B) alone
or in conjunction with the Vendor System in any way that results in or could
result in any security breach with respect to the Company or any of its
affiliates or a violation of any applicable law or regulation or Company’s
informational technology security policies, as published by Company from time to
time.
(ii) The License to Use API shall not include the right of Vendor to
sublicense the API to any third party.
(d) (d)
License to Use Vendor Interface: Restrictions.
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(ii)
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Company
shall not use the Vendor Interface:
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(A) in
any way other than as expressly permitted or granted under this Agreement;
and
(B) alone or in conjunction with the Company System in any way that
results in any security breach with respect to the Vendor or any of
its affiliates or a violation of any applicable law or regulation or Vendor’s
informational technology security policies, as published by Vendor from time to
time and provided to Company;
(ii) The License to Use Vendor Interface shall not include the right
of Company to sublicense the Vendor Interface to any third party.
(e) Except
for the License to Use API, Vendor acknowledges and agrees that it acquires no
license to the TD AMERITRADE System and that Company and its affiliates own all
right, title and interest in and to the TD AMERITRADE System, its data and any
modifications, alterations, translations or derivative works relating to the TD
AMERITRADE System, including, but not limited to, the API and any code written
by Company in connection with the Vendor Interface (collectively, the “Company
Intellectual Property”).
(f) Except
for the License to Use Vendor Interface, Company acknowledges and agrees that it
acquires no license to the Vendor System and that Vendor owns all right, title
and interest in and to the Vendor System, its data and any modifications,
alterations, translations or derivative works relating to the Vendor System,
including, but not limited to, any code written by Vendor in connection with the
Vendor Interface (collectively, the “Vendor Intellectual
Property”).
5) CROSS-TRADEMARK
LICENSES.
(a) Company
and its affiliates hereby grant to Vendor a non-exclusive, non-transferable,
limited license to use Company’s trade names, trademarks, service marks and/or
logos set forth on Addendum A attached to this Agreement (“Company Trademarks”)
(as the same may be amended from time to time to add or delete marks) during the
term of this Agreement (and any renewal terms) for the purpose of promoting the
Vendor Interface. Vendor shall comply with the requirements of the Company and
all guidelines from time to time provided by Company to Vendor concerning the
use of Company Trademarks and, before any use of Company Trademarks, shall
submit a sample or proof of such use for approval by Company. Without limiting
the foregoing, the Company Trademarks may not be used as part of any co-branded
or composite xxxx that also includes any of the Vendor Trademarks.
(b) Vendor
hereby grants to Company and its affiliates a non-exclusive, non-transferable,
limited license to use Vendor’s trade names, trademarks, service marks and/or
logos set forth on Addendum A attached to this Agreement (“Vendor Trademarks”)
(as the same may be amended from time to time to add or delete marks) during the
term of this Agreement (and any renewal terms) for the purpose of promoting the
Vendor Interface. Company shall comply with the requirements of
Vendor and any other guidelines from time to time provided by Vendor concerning
the use of the Vendor Trademarks and, before any use of Vendor Trademarks, shall
submit a sample or proof of such use for approval by Vendor. Without
limiting the foregoing, the Vendor Trademarks may not be used as part of any
co-branded or composite xxxx that also includes any of the Company
Trademarks.
(c) The
trademark licenses granted by each party to the other hereunder shall
automatically terminate upon any termination of this Agreement.
(d) All
goodwill arising from the use by either party of the other party’s trademarks
shall inure solely to the benefit of the trademark owner.
(e) Except as
expressly set forth herein, nothing in this Agreement grants to either party any
ownership of or any rights in or to the other party’s intellectual property or
trademarks.
6) CUSTOMER
SUPPORT. Neither party shall have any customer support
obligations in connection with the Vendor Interface, provided, however, the
parties shall provide customary and usual support of their respective systems
and their other products and services that may be delivered in connection with
the Vendor Interface.
7) FEES AND
COSTS. Except as set forth on Addendum A, neither party shall
be obligated to pay the other any fees, commissions or royalties whatsoever in
connection with this Agreement or the Vendor Interface and each party shall be
responsible for its own costs in performing its obligations
hereunder. Without limiting the foregoing, upon any termination or
expiration of this Agreement neither of the parties to this Agreement will be
entitled to compensation for its efforts in promoting the Vendor Interface or
generating goodwill inuring to the benefit of the other party.
8)TERM AND
TERMINATION.
(a) Unless
terminated as provided herein, the term of this Agreement will commence on the
Effective Date, will continue for a period of one (1) year and will
automatically renew for successive one (1) year periods.
(b) Either
party may terminate this Agreement if
(i) It
provides the other party with 60 days prior written notice of such
termination;
(ii) the other
party materially breaches any provision of this Agreement and fails to cure such
breach within fifteen (15) days after receipt of notice of such
breach;
(iii) the other
party ceases to do business as a going concern without an assignment of its
rights and obligations to a successor-in-interest; applies for or consents to
the appointment of a trustee, receiver or other custodian, or makes an
assignment for the benefit of creditors; becomes insolvent or generally fails to
pay, or admits in writing its inability to pay, its debts as they become due;
or, subject to applicable law, commences or has commenced against it any
bankruptcy, reorganization, debt arrangement, or other case or proceeding under
any bankruptcy or insolvency law, or any dissolution or liquidation proceedings
and, if such case or proceeding is commenced against it, such case or proceeding
is not dismissed within sixty (60) days thereafter; or
(iv) any
substantial part of the other party’s property is or becomes subject to any
levy, seizure, assignment or sale for or by any creditor or governmental agency
without being released or satisfied within ten (10) days
thereafter.
9)TERMINATION-RELATED
OBLIGATIONS.
(a) Upon
any termination of this Agreement, the parties will promptly:
(i) reconfigure
and/or reprogram their respective systems and products to disable the Vendor
Interface;
(ii) cease
all advertising and promotion of the Vendor Interface and, to the extent
possible, cancel pending advertising that has not yet been published or
otherwise distributed;
(iii) cease
all use of the other’s trade names, trademarks, service marks and/or logos and
discontinue use of all materials which reference the other party, its products
or services;
(iv) remove
all links to the other party’s web site(s);
(v) work
in good faith to wind down their relationship in an expeditious and equitable
manner, minimizing disruption in services to Subscribers to the extent
reasonably practicable.
(b) Upon
any termination of this Agreement, the Receiving Party (defined in paragraph 11)
will promptly return to the Disclosing Party, (defined in paragraph 11) at its
request, or destroy, all copies of the Disclosing Party’s Confidential
Information (defined in paragraph 11) in its possession or control, and upon
written request, an officer or other member of senior management of the
Receiving Party will certify to the Disclosing Party as to the return or
destruction of all Confidential Information. In addition, the Receiving Party
will expunge, to the extent practicable, all such Confidential Information from
any computer, word processor or other device containing such
information.
10)NON-EXCLUSIVE
RELATIONSHIP. Unless provided otherwise in Addendum A, each
party shall be free to market its existing products and services and to develop
and market additional products and services (in every case, including to
Subscribers), and to otherwise conduct its business, whether or not such
business is now or in the future directly or indirectly competitive with the
other party’s business or with the Vendor Interface. Without limiting
the generality of the foregoing, (a) both parties acknowledge that each party
offers an Vendor Interface (that is substantially the same as the Vendor
Interface hereunder) with other Third Party Platforms and systems similar to the
Vendor System, which may be competitors of each respective party, and (b) both
parties acknowledge and agree that Subscribers are not the exclusive customers
of either party, each party having an independent contractual relationship with
the Subscribers, and that either party may at any time, both during the term of
this Agreement (including renewal terms) and following the termination of this
Agreement, market their products to Subscribers and solicit Subscribers for any
purpose, subject to applicable law. Neither party will be liable to
the other if a Subscriber elects to terminate receipt of or access to the Vendor
Interface to obtain a service from either of the parties that is competitive
with the Vendor Interface.
11) CONFIDENTIAL
INFORMATION.
(a) For
purposes of the Agreement:
“Representatives”
includes a party’s directors, officers, employees, agents or advisors
(including, without limitation, attorneys, accountants, consultants, bankers and
financial advisors) and those of the party’s affiliates.
“Disclosing
Party” refers to the party disclosing Confidential Information.
“Receiving
Party” refers to the party receiving Confidential Information.”
“Confidential
Information” includes the following: (i) any business or technical
information of Company or its affiliates or Vendor, including, but not limited
to, any information relating to the Company, its affiliates, the TD AMERITRADE
System, the clients of the Company or its affiliates or Company Intellectual
Property, the Vendor, the Vendor System, the Vendor’s customers, or Vendor
Intellectual Property, or Company’s or its affiliates’ or Vendor’s other
intellectual property or product plans, designs, costs, product prices and
names, customer information and lists, lists of prospects, finances, marketing
plans, business opportunities, personnel, research, development or know-how; and
(ii) the terms and conditions of the Agreement. Confidential Information also
includes all notes, analyses, compilations, studies, interpretations or other
documents prepared by the Receiving Party or its Representatives that contain,
reflect or are based upon, in whole or in part, the information furnished by or
on behalf of the Disclosing Party to the Receiving Party or its Representatives
subject to this Agreement..
Confidential
Information does not include information that: (i) is or becomes
generally known to the public through no fault of or breach of the Agreement by
the Receiving Party or is Representatives; (ii) was within the possession of the
Receiving Party or any of its Representatives before its being furnished to the
Receiving Party by or on behalf of the Disclosing Party pursuant to this
Agreement provided,
that the source of such information was not known by the Receiving Party to be
bound by a confidentiality agreement with, or other contractual or legal
obligation of confidentiality to, the Disclosing Party with respect to such
information,; (iii) is independently developed by the Receiving Party without
use of the Disclosing Party’s Confidential Information; or (iv) is or becomes
available to the Receiving Party or its Representatives on a non-confidential
basis from a source other than the Disclosing Party or any of its
Representatives: provided, that such source
was not known to the Receiving Party to be bound by a confidentiality agreement
with, or other contractual or legal obligation of confidentiality to, the
Disclosing Party with respect to such information.
“Customer
Information” includes all data and information provided to Vendor by, and
pertaining to or identifiable to, a customer or client of TD AMERITRADE or any
of its affiliates, prospects or users of the TD AMERITRADE System.
(b)(i) Customer
Information is and shall remain the sole and exclusive property of the Company
and its affiliates, and shall be treated by Vendor as Confidential Information
of Company and its affiliates. Without limiting the confidentiality provisions
of this Agreement, during the term of this Agreement and thereafter in
perpetuity, Vendor will not gather, store, or use any such Customer Information
in any manner except as necessary for the performance of the Agreement and will
not disclose, distribute, sell, share, rent or otherwise transfer or communicate
any such Customer Information to any third party.
(b)(ii) Vendor
agrees to comply with all applicable laws and regulations relating to the
privacy and security of customer data, identifying information of a customer,
and any processed data incorporating any such data and information, to ensure
that any and all contractors and other third parties to which it provides
information in compliance with this Agreement similarly comply with those
requirements. Vendor also agrees to cooperate with Company and its
affiliates in enabling TD AMERITRADE to satisfy its anti-money laundering and
similar regulatory requirements. Upon notice from Company or its
affiliates, Vendor shall provide such auditors and inspectors as Company may
designate in such notice with reasonable access during normal business days and
hours to Vendor premises, systems and business records reflecting Vendor
compliance with the provisions of this paragraph. Vendor shall
provide such auditors and inspectors with any assistance that they may
reasonably require. Company may notify Vendor of any failure to comply with the
terms and conditions of this paragraph, and Vendor agrees to correct such failure to comply within
the time period specified by the auditors/inspectors.
(c) Each
party agrees that it will not use the other party’s Confidential Information
except as necessary for the performance of the Agreement and will not, without
the other party’s prior written approval, disclose such Confidential Information
to any person or third party except to those of its Representatives that need to
know such Confidential Information for the purpose of performing under the
Agreement and who are also bound by the nondisclosure and use restrictions set
forth herein. Each party will maintain the confidentiality of all
Confidential Information in its possession or control using no less than the
efforts that such party ordinarily uses with respect to its own proprietary
information of similar nature and importance, but in no event less than a
reasonable degree of care. All copies of a party’s Confidential
Information shall bear any legend as to confidentiality that may appear on the
original.
(d) The
confidentiality obligations of the Receiving Party under the Agreement will not
restrict it or its Representatives from disclosing Confidential Information of
the Disclosing Party pursuant to the order, requirement or request of a court,
administrative or regulatory agency, or other governmental body or
self-regulatory organization, if in the opinion of the Receiving Party’s counsel
(which may be its internal counsel) such disclosure is required under applicable
law, legal process or the rules and regulations of any securities exchange,
securities market or self-regulatory agency having jurisdiction over the
Receiving Party or its affiliates; provided that the party required to make such
a disclosure gives reasonable notice to the other party (unless prohibited by
applicable law from giving such notice) to afford such party the opportunity to
contest such order or requirement or to obtain an
appropriate protective order or other reliable assurance that confidential
treatment will be accorded the Confidential Information.
(e) Except with respect to disclosures made
pursuant to subsection (d) of this paragraph 11, (i) the Receiving Party shall be
responsible for any breach of this Agreement by any of its Representatives and
the Receiving Party agrees, at its sole expense, to take all reasonable measures
(including but not limited to court proceedings) to prohibit and restrain its
Representatives from prohibited or unauthorized disclosure or use of the
Confidential Information, and (ii) prior to furnishing all or any portion of the
Confidential Information to any Representative, the Receiving Party shall advise
such Representative of the confidentiality restrictions under this
Agreement.
(f) No
right in or license to the Disclosing Party’s Confidential Information is
offered or granted herein, nor shall any right or license be implied by the
disclosure of Confidential Information. IN FURNISHING CONFIDENTIAL
INFORMATION HEREUNDER, THE DISCLOSING PARTY MAKES NO WARRANTY, REPRESENTATION OR
GUARANTEE WHATSOEVER REGARDING THE COMPLETENESS OR ACCURACY OF SUCH CONFIDENTIAL
INFORMATION.
(g) Each
party recognizes that the other party would be irreparably harmed by violation
of the confidentiality obligations set forth herein and shall be entitled to an
injunction or other decree of specific
performance
with respect to any such violation (without any bond or other security being
required), in addition to all other available remedies.
12)DISCLAIMER OF
WARRANTIES.
EXCEPT
FOR ANY EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, EACH PARTY HEREBY
DISCLAIMS ALL WARRANTIES REGARDING THE TD AMERITRADE SYSTEM AND THE COMPANY
INTELLECTUAL PROPERTY, THE VENDOR SYSTEM AND THE VENDOR INTELLECTUAL PROPERTY,
THE API, THE VENDOR INTERFACE, THEIR RESPECTIVE CONFIDENTIAL INFORMATION AND
THEIR RESPECTIVE BUSINESSES, AND ANY THIRD PARTY SOFTWARE OR HARDWARE,
INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING OUT OF
COURSE OF DEALING, USAGE OR TRADE.
13) LIMITATION OF
LIABILITY. EXCEPT FOR CLAIMS PERTAINING TO SECTIONS 11 OR
SECTION 14 OF THE AGREEMENT, OR DAMAGES RESULTING FROM A PARTY’S GROSS
NEGLIGENCE OR WILLFUL MISCONDUCT, NEITHER PARTY WILL BE LIABLE TO THE
OTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,
OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOST
PROFITS, LOST SAVINGS OR LOSS OF USE OF FACILITIES OR EQUIPMENT, REGARDLESS OF
WHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OR
OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR IF SUCH
LOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.
NEITHER
PARTY SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN ITS PERFORMANCE DUE TO
CIRCUMSTANCES BEYOND ITS CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF CIVIL
OR MILITARY AUTHORITY, NATIONAL EMERGENCIES, TERRORISM, LABOR DIFFICULTIES,
FIRE, FLOOD OR CATASTROPHE, ACTS OF GOD, INSURRECTION, WAR, RIOTS OR FAILURE
BEYOND ITS REASONABLE CONTROL OF TRANSPORTATION, POWER SUPPLY, TELEPHONE OR
OTHER COMMUNICATIONS LINES.
14) INDEMNIFICATION.
(a) Company
hereby agrees to defend, indemnify and hold Vendor harmless from and against any
and all claims, damages, liabilities, costs, losses and expenses of any kind or
nature whatsoever (including any legal or other expenses incurred in connection
with investigating any claim, and any amounts paid in settlement or compromise)
(collectively, “Losses”) to which Vendor may become subject, insofar as such
Losses arise out of or are based upon (i) Company’s unauthorized use of the
Vendor Trademarks or Vendor Confidential Information, (ii) any claim by
Subscribers for Losses directly caused by Company or the TD AMERITRADE System or
the API, or (iii) any claim that the TD AMERITRADE System, Company Intellectual
Property or Company Trademarks infringe any U.S. patents, copyrights, trade
secrets, licenses or other property rights of any third party, provided
that: (A) Vendor promptly notifies Company in writing of any such
action and gives Company sole authority and all information and assistance (at
Company’s expense) reasonably requested by Company to defend or settle such
claim, provided that failure to give prompt notice shall not relieve Company of
its indemnification obligations unless Company is materially prejudiced thereby,
(B) in the case of (iii) above, such claim does not arise out of any
unauthorized use of or modification to the TD AMERITRADE System by Vendor, and
(C) any such costs and expenses (other than judgments or settlements negotiated
by Company) were incurred by Vendor with Company’s written authorization, which
shall not be unreasonably withheld or delayed.
(b) Vendor
hereby agrees to defend, indemnify and hold Company and its affiliates harmless
from and against any and all Losses to which Company may become subject, insofar
as such Losses arise out of or are based upon (i) any breach or violation by
Vendor of the terms of any of the licenses granted to Vendor under this
Agreement; (ii) any breach or violation by Vendor of any applicable laws and
regulations; (iii) any unauthorized use of the Company Trademarks, the Company’s
Confidential Information, or Customer Information (iv) any claim by Subscribers
for Losses directly caused by Vendor, the Vendor System or the Vendor Interface;
or (v) any claim that the Vendor System, Vendor Intellectual Property or Vendor
Trademarks infringe any patents, copyrights, trade secrets, licenses or other
property rights of any third party, provided that: (A) Company
promptly notifies Vendor in writing of any such action and gives Vendor sole
authority and all information and assistance, provided that failure to give
prompt notice shall not relieve Company of its indemnification obligations
unless Company is materially prejudiced thereby, (at Vendor’s
expense) reasonably requested by Vendor to defend or settle such claim, (B) in
the case of (v) above, such claim does not arise out of any unauthorized use of
or
modification
to the Vendor System by Company, and (C) any such costs and expenses (other than
judgments or settlements negotiated by Vendor) were incurred by Company with
Vendor’s written authorization, which shall not be unreasonably withheld or
delayed.
15)
SURVIVAL. The provisions
of Sections 4, 9, 11, 12, 13, 14, 15 and 17 of the Agreement shall survive any
termination, cancellation, or completion of performance of the
Agreement.
16)
WAIVER. The
failure by either party to enforce any provision of the Agreement will not
constitute a waiver of future enforcement of that or any other
provision.
17) GOVERNING LAW AND
JURISDICTION; JURY TRIAL WAIVER. The Agreement will be
governed by and construed in accordance with the laws of the State of Delaware
without application of the principles of conflicts of law. Any legal
action or proceeding arising under the Agreement will be brought exclusively in
the Federal or states courts located in the State of Delaware and the parties
hereby consent to the personal jurisdiction and venue therein. Each party hereby
irrevocably and unconditionally waives any objection to the laying of venue of
any action, suit or proceeding arising out of this Agreement in the in the Federal or states courts located
in the State of Delaware and hereby further irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that
any such action, suit or proceeding brought in any such court has been brought in an
inconvenient forum.
THE
PARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATING TO
THIS AGREEMENT.
18)
NOTICES. All
notices permitted or required under this Agreement shall be in writing and shall
be considered given: (a) when delivered personally; (b) five (5) days
after mailing, when sent certified mail, postage prepaid, return receipt
requested; (c) one (1) business day after mailing when sent via a nationally
recognized commercial overnight carrier, fees prepaid; or (d) upon delivery when
sent by facsimile transmission confirmed by first class mail. All
notices will be sent to the parties at the addresses set forth on the signature
page, or such addresses as the parties may specify from time to time by like
notice.
19)
SEVERABILITY. If
for any reason a court of competent jurisdiction finds any provision of the
Agreement invalid or unenforceable, that provision will be enforced to the
maximum extent permissible and the other provisions of the Agreement will remain
in full force and effect.
20)
RELATIONSHIP OF THE
PARTIES. The parties to the Agreement are independent
contractors and the Agreement will not establish any relationship of
partnership, joint venture, employment, franchise, or agency between the
parties. Neither party will have the power or authority to bind the
other or to incur obligations on the other’s behalf without the other party’s
prior written consent.
21)
ASSIGNMENT. Vendor
shall not assign its rights or delegate its duties hereunder without the prior
written consent of the Company, such consent not to be unreasonably withheld or
delayed.
22)
NO RULE OF STRICT
CONSTRUCTION. The parties, by executing below, acknowledge
that the provisions and language of the Agreement have been negotiated by both
parties and specifically agree that no provision of the Agreement shall be
construed against a party by reason of such party having drafted such provision
or the Agreement.
23)
HEADINGS. The
headings appearing herein are inserted only as a matter of convenience and as a
reference, and in no way define, limit or describe the scope or intent of the
applicable clause or the Agreement.
24)
COUNTERPARTS. This
Agreement may be signed in one or more counterparts, with the same effect as if
the signature on each counterpart were upon the same instrument. A
copy or facsimile of a party’s signature shall be binding upon the signatory
with the same force and effect as an original signature.
25)
ENTIRE
AGREEMENT. This Agreement, including Addendum A, constitutes
the complete and exclusive understanding and agreement between the parties
regarding its subject matter and supersedes all prior or contemporaneous
agreements or understandings, written or oral, relating to its subject
matter. Any waiver, modification or amendment of any provision of
this Agreement will be effective only if in writing and signed by duly
authorized representatives of both parties.
26)
DEFINITIONS. The
following are defined in the sections of this Agreement referred to
below:
“Acceptance
Tests”: Section 1(b).
“API”:
Recital D.
“Brokerage
Activities”: Section 2(c).
“Company”:
Introductory paragraph.
“Company
Intellectual Property”: Section 4(e).
“Company
Trademarks”: Section 5(a).
“Confidential
Information”: Section 11(a).
“Customer
Information”: Section 11(c).
“Disclosing
Party”: Section 11(a).
“Governmental
Entity”: Section 3(d).
“License
to Use API”: Section 4(a).
“Losses”:
Section 14(a).
“Press
Release”: Section 3(d).
“Receiving
Party”: Section 11(a).
“Representatives”:
Section 11(a).
“Subscribers”:
Section 1(a).
“TD
AMERITRADE”: Recital A.
“TD
AMERITRADE System”: Recital B.
“Third
Party Platforms”: Recital C.
“Vendor”:
Introductory paragraph.
“Vendor Application” shall have the meaning as set forth in the
recitals.
“Vendor
Intellectual Property”: Section 4(f).
“Vendor Interface”: Recital D and Section 1(a).
“Vendor
System”: Recital C.
“Vendor
Trademarks”: Section 5(b).
IN WITNESS WHEREOF, the
parties have duly executed this Agreement as of the Effective Date.
| T2 API TECHNOLOGIES, LLC | VENDOR |
| By: /s/Xxxxx Xxxxx | By: /s/Xxxxxx Xxxx |
| Name: Xxxxx Xxxxx | Name: Xxxxxx Xxxx |
| Title: Director, API Business | Title: President & CEO |
| Notice Address(es): | Notice Address: |
| T2 API TECHNOLOGIES, LLC | Media Sentiment, Inc. |
| Attn: | 000 Xxx Xxxx Xxxxxx, 0xx Xx. |
| 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000 | Xxx Xxxxxxxxx, Xx 00000 |
| Xxxxxxxx, XX 00000 | |
|
With
a copy to:
|
|
| TD AMERITRADE Holding Corporation | |
| Attention: General Counsel | |
| 0000 Xxxxxxxx Xxxxxxx Xxxxx, Xxxxx 000 | |
|
Xxxxxxxx,
XX 00000
|
