The terms and conditions of this Historical Market Data Agreement are effective as of October 11, 2017. By clicking “Accept,” you confirm that you have read, understand, and agree to be bound by such terms and conditions.
This Historical Market Data Agreement ("Agreement") is a contract in electronic form between you (“User(s)”, “you”, “your” and “yourself”) and Miami International Securities Exchange, LLC and/or MIAX PEARL, LLC, as applicable, and any of their respective parents, successors, subsidiaries, and affiliates (either or both referred to herein collectively as the “Exchange”), whose principal place of business is located at 7 Roszel Road, Princeton, NJ 08540.
All disputes between you and the Exchange will be resolved by binding arbitration. You thus give up your right to litigate disputes with us in court (except for matters that may be taken to small claims court). Disputes will be decided by a neutral arbitrator and not a judge or jury.
You are entitled to a fair hearing, but arbitration procedures are simpler and more limited than court proceedings. Arbitrator decisions are as enforceable as any court order and are subject to very limited review by a court.
Historical Market Data includes all data that is captured and disseminated on the Exchange’s proprietary data feeds on a T+1 basis (“Data”). To access the Data, a User must: (i) complete the registration process by providing complete and accurate information, as prompted by the registration form, (ii) accept these terms and conditions, and (iii) complete payment via an Exchange-specified payment method. User shall access the Data via an Exchange-issued device. Only individuals associated with the User may access the Data. User may not transfer, assign or share the Data with any third-party, without the Exchange’s prior written approval. User shall take reasonable security precautions to prevent unauthorized individuals or entities from gaining access to the Data, and shall comply, at User’s expense, with all reasonable security specifications or instructions of the Exchange in order to prevent the Data from being improperly used or accessed. User is responsible for any activities or actions of User, whether or not the User has authorized such activities or actions, and the User must promptly notify the Exchange of any unauthorized use of User’s account or the Data.
Grant of License
The Exchange grants to User a non-exclusive, non-assignable, non-transferable license to use the Data and associated documentation and any content other information included therein, solely for User’s internal business purposes in accordance with the terms and conditions detailed herein. User may copy, store, process, commingle, and use the Data and create new original works therefrom. Any authorized reproduction of the Data shall include all titles, trademarks, copyright, proprietary and restricted rights notices.
Except as detailed above, User shall not market, sell or distribute the Data or otherwise provide the Data to any third parties. User shall not share, transfer, disclose, copy, or publish the Data without the Exchange’s prior written approval. User will not attempt to circumvent any mechanisms for preventing the unauthorized reproduction or distribution of the Data. User will not engage in the operation of any illegal business; use or permit anyone else to use the Data, or any part thereof for any illegal purpose.
Change in Data Offering
User acknowledges and agrees that nothing in this Agreement constitutes an undertaking by the Exchange to provide updates, modifications or enhancements to the Data or to continue providing the Data, or any aspect or portion of the Data, in the future. The Exchange may, in its sole discretion, change any aspect of the Data offering or discontinue the Data offering without notice.
User acknowledges that all intellectual property rights and trade secrets, in and to the Data belong to the Exchange, whether or not marked. No title to the Data is transferred to User for any purpose not inconsistent with the terms described herein and in accordance with all applicable laws, statutes and regulations. User shall not take any action to interfere with the Exchange’s rights in the Data.
User acknowledges that the Data is considered confidential and proprietary information belonging to the Exchange. User shall use the same standard of care that it uses to protect User’s own confidential or proprietary information, but no less than a reasonable standard of care, to prevent the unauthorized use, dissemination or publication of the confidential or proprietary information. The duties in this Section do not apply to information which when compiled and presented in this form is: (1) lawfully within User’s possession, prior to this Agreement; (2) voluntarily disclosed to User by a third-party so long as that party does not breach any obligation not to reveal such information; (3) voluntarily disclosed to the public by the Exchange; or (4) generally known to the public. The obligation of non-disclosure shall survive for as long as the Exchange treats the information disclosed to User as confidential.
THE EXCHANGE’S LIMITATION OF LIABILITY
THIS LIMITATION OF LIABILITY DOES NOT INCLUDE THE EXCHANGE’S WILLFUL TORTIOUS MISCONDUCT. EXCEPT WHERE THE EXCHANGE IS INDEMNIFYING THE USER AS SET FORTH HEREIN, IF THE EXCHANGE IS FOR ANY REASON HELD LIABLE TO USER, OR TO ANY OTHER INDIVIDUAL OR ENTITY, WHETHER IN CONTRACT OR IN TORT, THE LIABILITY OF THE EXCHANGE WITHIN A SINGLE YEAR OF THE AGREEMENT IS LIMITED TO $500.
THE EXCHANGE SHALL NOT BE LIABLE TO USER OR TO ANY OTHER ENTITY OR INDIVIDUAL, FOR ANY LOSS OF PROFITS, REVENUES, TRADES OR DATA OR FOR ANY DAMAGE TO USER'S EQUIPMENT, OR FOR ANY INDIRECT, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL LOSS OR DAMAGE OF ANY NATURE ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF THE EXCHANGE AND/OR ITS PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. SOME STATES DO NOT ALLOW US TO LIMIT OUR LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN THOSE STATES, THE EXCHANGE’S LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
THERE ARE NO STANDARDS OF PERFORMANCE FOR THIS DATA. THE EXCHANGE PROVIDES THE DATA "AS IS" AND MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND EXPRESS, IMPLIED OR STATUTORY REGARDING USE OF THE DATA OR THE ACCURACY, COMPLETENESS OR TIMELINESS OF THE DATA. THE EXCHANGE DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES DO NOT ALLOW US TO EXCLUDE CERTAIN WARRANTIES. IN THOSE STATES, THE EXCHANGE WARRANTIES ARE LIMITED TO THE EXTENT PERMITTED BY LAW.
Notwithstanding any other term or condition of this Agreement, the Exchange shall not be obligated to perform or observe its obligations undertaken in this Agreement if prevented or hindered from doing so by circumstances beyond its control.
User will indemnify and hold harmless the Exchange and its employees, officers, directors, and other agents from any and all claims and losses imposed on, incurred by or asserted as a result of or related to: (a) any non-compliance by User with the terms and conditions hereof; or (b) any third-party actions related to User's receipt and use of the Data, whether authorized or unauthorized under the Agreement. Any cooperation by the Exchange in such defense is without waiver of any attorney-client, work product, or other legal privileges. The Exchange shall indemnify and hold harmless the User against any claims and losses imposed on, incurred by or asserted as a result of any alleged infringement or misappropriation by the Data of any third parties’ U.S. or European Community intellectual property rights up to $500. The Exchange’s obligations to indemnify under this Section shall be conditioned on the following: (1) User shall promptly, but, in any event, in a time frame that does not prejudice the rights of User or the Exchange, notify the Exchange in writing of the claim, action or allegation; and (2) the Exchange shall have sole control of the defense and related settlement negotiations. The Exchange shall not have the obligation to indemnify and hold User harmless for any claims and losses imposed on, incurred by or asserted against User as a result of any allegation of infringement or misappropriation if the Data has not been used in accordance with this Agreement.
Term and Termination
This Agreement may be terminated by User upon notice to the Exchange. Upon notice to User, the Exchange may terminate this Agreement at any time for any reason including, but not limited to, User’s breach of any term of this Agreement, or the discovery of the untruth of any representation of User.
All notices and other communications required under this Agreement shall be in writing and shall be directed to: (a) Miami International Holdings, Inc. 7 Roszel Road, Princeton, NJ 08540, Attn: Office of the General Counsel or (b) to User at the address and addressed to the person that the device was sent. Notice shall be deemed to have been duly given upon actual receipt by a party, or upon constructive receipt if sent by certified mail, postage pre-paid, return receipt requested, at such address or any other address, as any party hereto shall hereafter specify by notice to the other party hereto.
Any claim, dispute, controversy or other matter in question with regard to this Agreement shall be submitted to the American Arbitration Association (“AAA”) and shall exclusively be subject to final binding arbitration in accordance with the Commercial Arbitration Rules and Regulations of the AAA. Claims or disputes must be filed within one year. To the extent permitted by law, any claim or dispute under this Agreement must be filed within one year in an arbitration proceeding or in court. The one-year period begins on the date when a notice of legal dispute is filed with us. You agree you are permanently barred to bring a claim for your dispute if you do not file your claim within one year.
Non-Use of Corporate Name and Marks
User shall not use the names “Miami International Holdings, Inc.”, “Miami International Securities Exchange, LLC”, “MIAX PEARL, LLC”, “Miami International Technologies, LLC”, “MIAX Global, LLC”, “MIAX”, “MIAX Options”, or any other of the Exchange’s names, trademarks or copyrights in any advertising or promotional media without the prior written consent of the Exchange.
Section headings are included for convenience only and are not to be used to construe or interpret this Agreement.
Waiver and Severability
No failure on the part of any of the Exchange or User to exercise, no delay in exercising, and no course of dealing with respect to any right, power, or privilege under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right, power, or privilege preclude any other or further exercise thereof or if the exercise of any person or circumstance, shall to any extent be held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to persons or circumstances other than those as to which they are held invalid or unenforceable, shall not be affected thereby and each such term and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
Survival of Provisions
The terms of this Agreement apply to those obligations that survive any cancellation, termination, or rescission, namely, obligations relating to, Ownership, Limitation of Liability, Consequential Damages, Indemnification, Warranties, Non-Use of Corporate Names and Marks, Confidentiality and Restrictions on use of the Data.
This Agreement shall be deemed to have been made in the United States in the State of New York and shall be construed and enforced in accordance with, and the validity and performance hereof shall be governed by, the laws of the State of New York, without reference to principles of conflicts of laws thereof. PLEASE NOTE THAT BY AGREEING TO THESE TERMS OF SERVICE, YOU ARE: (1) WAIVING CLAIMS THAT YOU MIGHT OTHERWISE HAVE AGAINST US BASED ON THE LAWS OF OTHER JURISDICTIONS, INCLUDING YOUR OWN; (2) IRREVOCABLY CONSENTING TO THE EXCLUSIVE JURISDICTION OF, AND VENUE IN, STATE OR FEDERAL COURTS IN THE STATE OF NEW YORK OVER ANY DISPUTES OR CLAIMS YOU HAVE WITH US; AND (3) SUBMITTING YOURSELF TO THE PERSONAL JURISDICTION OF COURTS LOCATED IN THE STATE OF NEW YORK FOR THE PURPOSE OF RESOLVING ANY SUCH DISPUTES OR CLAIMS.
This Agreement, constitutes the entire Agreement between the parties with respect to the subject matter hereof, and supersedes all prior negotiations, communications, writings, and understandings. The Exchange may modify this Agreement from time to time. If you do not agree to the changes, stop using the Data before the changes take effect. Your continued use of the Data after the effective date of any changes means that you agree to the changes. If a court of law finds that any provision of this Agreement is invalid or unenforceable, the remaining provisions will continue to be valid and enforceable.