END USER AGREEMENT
read this End User Agreement (“Agreement”) carefully. This Agreement is a legal document that
details your rights and obligations as a user of the T4 software and system
(including the API for the T4 software and system) (collectively, the “System”)
provided to you by Cunningham Trading Systems, LLC (“CTS”) and your
participating financial institution (“PFI”). You cannot use the System until you
have accepted the terms of this Agreement.
CTS reserves the right to update or revise this Agreement from time to
time and any changes will be effective immediately upon posting on the System
or the CTS website (http://www.ctsfutures.com).
If you do not accept the terms of this Agreement or any changes proposed
by CTS, your only remedy is to discontinue using the System. You agree that CTS and PFI may rely on your
acceptance of this Agreement as if you had manually signed it.
<![if !supportLists]>1. <![endif]>License.
<![endif]>License. Subject to the
other terms and conditions set forth herein, CTS hereby grants to you a limited,
non-exclusive, non-transferable, world-wide license to access and use the
System and the Website (but not to access or use the source code relating to
the System). You shall not
(i) modify, translate, reverse engineer, decompile, disassemble, create derivative
works of, permit or otherwise attempt to derive any source code of the System;
(ii) alter or copy, or direct a third party to alter or copy, any part of
the System or Website; or (iii) sublicense, distribute, sell, assign,
transfer, lease, rent, disclose, or provide access to the System or Website to
any third party.
<![endif]>End User Compliance. Your
access to, and use of, the Website and the System are expressly subject to your
compliance with the terms of (i) this Agreement, and (ii) any written guidelines
for using the Website or System posted on the Website as amended from time to
“Operating Procedures”). In the event of
any inconsistency between this Agreement and the Operating Procedures, this
Agreement shall prevail. CTS shall have
the right, at any time to amend the provisions of the Operating Procedures by
posting on the Website. Upon receiving
written notification (including by CTS posting on the Website) of any
restrictions on the System imposed by CTS or any embedded third party software
vendors, you agree to comply with any such restrictions.
<![if !supportLists]>2. <![endif]>Use of the System
<![endif]>Your Access. You
will be instructed by your PFI on how to access the System and will be assigned
a separate user name and Password. You agree to keep confidential any Passwords
used to access the Website and System.
You acknowledge that CTS and the PFI may accept as valid any information
transmitted with a valid user name and Password and shall not have any duty to
verify the information. CTS will not be
responsible to determine whether any information transmitted was authorized by
you or a PFI; or whether there has been an alteration or corruption of the
information transmitted to, or from, the System. In the context of the preceding sentences,
“information” shall include all bids, offers, orders, commands and any other
data or information submitted to the System.
You agree to promptly notify CTS and your PFI as soon as you become
aware of any unauthorized use or misuse of the System or the Passwords.
<![endif]>Suspension or Limitation.
Notwithstanding any other provision of this Agreement, you acknowledge
that CTS or your PFI shall have the right to restrict your access to or to
impose limits or suspend your use of or access to the System or Website.
<![endif]>Conditions of Use. When using the System, you shall: (i) provide,
at your sole cost and expense, all services, hardware, software, and other
technology (including Internet access service) necessary to access the System (“Access
Systems”) and you shall be solely responsible for installing, maintaining,
securing and supporting all such technology; (ii) promptly report to CTS any
errors or irregularities in the performance of the System and, if the System
fails to function in accordance with corresponding specifications, you shall
provide: (a) copies of any and all programs, reports, data files, and other
materials reasonably requested by CTS; (b) support sufficient for CTS to
duplicate such failure; and (c) sufficient test time within which CTS shall use
its commercially reasonable efforts to correct such failure; (iii) perform your
obligations hereunder and ensure that your use of the System shall comply with
any and all applicable laws, rules, and regulations; and (iv) assume full
responsibility for all risk associated with your use of the System, including,
but not limited to, risk associated with your investment decisions as well as
any financial obligations arising with respect to third parties resulting from
your use of the System.
CTS’ objective is to make the System available on a 24x7 basis (except for
reasonable scheduled downtime during non-trading hours), CTS shall not be
responsible for any damages or costs incurred by you for any unavailability or downtime of the
System. CTS may make the System, or
portions thereof, unavailable from time to time for any reason including,
without limitation, routine maintenance.
<![endif]>Access to Data. If, in
providing the System, CTS or any of its subcontractors or other third-party
service providers (collectively “CTS Providers”) requires access to any of your data, you
hereby grant to such CTS Providers a limited, non-exclusive, world-wide,
royalty-free license to access, use, display, copy, store, translate, edit, and
distribute any or all of your data across multiple computer systems, solely for
the purposes of operating, maintaining, and delivering the System and providing
support services to you.
<![endif]>Risk of Transactions. CTS is
not responsible for transmission errors, corruption, or compromise of data
carried over local or interchange telecommunications carriers. You agree that (i) CTS shall not directly or
indirectly, be a principal to any transaction or be responsible for, or
otherwise guarantee, the performance of any transaction entered via the System,
(ii) no CTS Party shall have any liability to you or any other party for any
transaction executed via the System and you shall not proceed against any CTS
party to collect or recover any amounts owed to you or to enforce any of your
rights in connection with, or as a result of, such transaction; (iii) no
service provided by CTS in connection with the System the Website, or otherwise
shall give rise to any fiduciary or equitable duties on the part of a CTS Party;
(iv) the submitting or posting of any information to or on the System by CTS,
or any other party shall not be deemed to be a recommendation by any such
person that you should enter into any particular transaction or that any
particular transaction is suitable or appropriate for you.
<![endif]>Specifications for Access.
CTS shall provide specifications, which may be updated, modified or
amended from time to time (“Specifications”) for Access Systems that CTS
requires be used to access and use the System.
CTS shall not be responsible for the performance of the Website or
System if your Access Systems are not in conformance with the
<![endif]>Control of System. You
acknowledge that CTS shall have sole discretion and control over, and the right
to modify at any time, the Website’s and the System’s functionality,
configuration, appearance and content, including without limitation: (i) the
parameters and protocols by which orders are placed, routed, matched, or
otherwise processed by the System; and (ii) the availability of the Website and
the availability of the System at any particular places, times or locations.
<![if !supportLists]>3. <![endif]>Proprietary Rights
<![endif]>CTS Property. “CTS
Property” includes, but is not limited to, the System and the Website, all
materials associated therewith, and any other content, products, documentation,
software, materials, or other technology related to the System including, but
not limited to, any and all modifications, enhancements, updates, and
configurations, whether written, printed, electronic, or in source code or any
other format, and any patent, copyright, trade secret, trademark, service mark,
or other intellectual property rights in any of the foregoing.
retains all right, title, and interest in and to the CTS Property. CTS grants only those rights and licenses
expressly provided for herein and does not thereby transfer any title or
ownership interest to the CTS Property or any modifications, enhancements, or
derivative works thereof. You shall not
interfere with or otherwise challenge CTS’ rights in the CTS Property or remove
or alter, or cause or allow to be removed or altered, any notice, symbol, or
legend or any trademark, copyright notice, or other proprietary rights
appearing in or on any of the CTS Property.
You hereby assign to CTS all rights it may have in any and all
suggestions, concepts, improvements, or other enhancements communicated by you
to CTS with respect to the System.
<![if !supportLists]>4. <![endif]>CONFIDENTIALITY
party shall at all times, both during the term hereof and for a period of at
least three (3) years after termination, keep in confidence all Confidential
Information (as defined below) received by one party from the other using a
standard of care such party uses with its own information of this nature, but
in no event less than reasonable care.
The receiving party shall not use any Confidential Information other
than in the course of its permitted activities hereunder. If a party is legally compelled to disclose
any of the other party’s Confidential Information, then, prior to such
disclosure, the receiving party will (i) assert the privileged and
confidential nature of the Confidential Information and (ii) cooperate
fully with the disclosing party in protecting against any such disclosure
and/or obtaining a protective order narrowing the scope of such disclosure
and/or use of the Confidential Information.
In the event such protection is not obtained, the receiving party shall
disclose the Confidential Information only to the extent necessary to comply
with the applicable legal requirements.
Information” shall mean the terms of this Agreement, computer software systems
and programs, data, operation techniques and methodology, ideas, concepts and
documents and business plans, marketing plans, affiliated parties, potential
clients, client and supplier lists, trading strategies, pricing information,
financial data and all information a party discloses to the other during the
course of this Agreement which
(i) has been characterized in writing as confidential at the time
of its disclosure, (ii) has been orally characterized as confidential at
the time of disclosure, or (iii) ought reasonably be considered by the
receiving party to be confidential given the circumstances of the disclosure,
except for information which the receiving party can demonstrate: (a) is
previously rightfully known to the receiving party without restriction on
disclosure; (b) is or becomes, from no act or failure to act on the part
of the receiving party, generally known in the relevant industry or public
domain; (c) is disclosed to the receiving party by a third party as a
matter of right and without restriction on disclosure; or (d) is
independently developed by the receiving party without access to the
the above, you agree to maintain the confidentiality of all “trade secrets” of
CTS forever, unless written consent otherwise is received by you. “Trade Secret” information covered by this
restriction shall include, but shall not be limited to, any and all information
related to the System and documentation, the fact that you have entered into
this Agreement with CTS, and the existence of the System. All terms and conditions with respect to
Confidential Information shall pertain to “trade secrets” except that the
obligation of non-disclosure shall be perpetual with respect to “trade
<![if !supportLists]>5. <![endif]>Ownership and Use of
The parties acknowledge
and agree that, as between you and CTS, all information and data collected,
processed or generated as a result of your use of the System, including all
personally identifiable information related to an individual (collectively,
“User Data”), shall be owned by you. CTS
shall treat all User Data as your Confidential Information. CTS shall be entitled to maintain back up databases
of User Data, but shall only use such User Data as necessary to fulfill its
obligations under this Agreement, or as set forth in Exhibit A. Upon written request by you and payment of a
nominal fee to cover CTS’ administrative costs, CTS will provide to you a copy
of your raw User Data as it exists on CTS’ databases on a compact disk or other
mutually agreed to media format. CTS
makes no representation or covenant respecting your PFI’s access to or use of
User Data. Such access and use may be
governed by your agreement(s) with your PFI.
<![if !supportLists]>6. <![endif]>WARRANTY; DISCLAIMERS
<![endif]>You. If you are a natural person, you represent
and warrant that you are at least 18 years of age and competent to enter into
this Agreement. If you are not a natural
person, you represent and warrant that you are duly organized and competent to
do business under the applicable laws of the relevant jurisdiction, and you
(and each person using the System on your behalf) is duly authorized to enter
into this Agreement and take all actions contemplated hereby.
<![endif]>CTS. CTS warrants that the System shall perform in
all material respects in accordance with the then-current documentation
provided by CTS. CTS’s sole
responsibility, and your sole remedy, under this warranty with respect to any
material defects in the System shall be CTS’ use of commercially reasonable
efforts to correct the defect within a reasonable period of time. CTS shall have no responsibility for, and
this warranty shall be voided in the event of: (i) errors or defects
caused by your or PFI’s neglect, misuse, or damage to the System; (ii) use
of the System with any technology or data not in accordance with the CTS’s
specifications; (iii) use of data input forms not provided by or approved
by CTS; or (iv) any loss of data or use of the System as a result of any breach
of security of the technology used by you or PFI in connection with the
System. EXCEPT AS EXPRESSLY SET FORTH IN
THIS AGREEMENT, THE SYSTEM (INCLUDING THE WEBSITE) AND ANY CONTENT PROVIDED
THEREIN IS PROVIDED ON AN “AS IS” BASIS, WITHOUT WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND
NONINFRINGEMENT. CTS DOES NOT WARRANT
THAT: (A) THE SYSTEM SHALL SATISFY YOUR REQUIREMENTS; (B) IS WITHOUT
DEFECT OR ERROR; OR (C) SHALL OPERATE IN AN UNINTERRUPTED OR ERROR-FREE
MANNER. CTS does not and cannot control
the flow of data to or from CTS’ network, its service provider’s network, or
other portions of the Internet.
Accordingly, CTS cannot guarantee that your connection to the Internet
will not be impaired or disrupted, and CTS hereby disclaims any and all
liability resulting from or related to such events. Without limiting the generality of the
foregoing, CTS makes no warranty that the transactions communicated via the
System will be executed or completed or that information posted on the System
will be timely or accurate.
<![if !supportLists]>7. <![endif]>DatafeedS
<![endif]>Datafeeds. In conjunction with the System, CTS may
provide access to certain third party datafeeds (each, including the data and
content in same, a “Datafeed”). Except
as expressly set forth herein, the terms and conditions governing any such
Datafeeds shall be as required by the applicable third party provider’s (including
their affiliates or their licensors, as applicable) (each a “Third Party Data
Provider”) data policies and agreements, as may be updated from time to time by
the applicable Third Party Data Provider (the “Data Policies”) (for example, certain
of Chicago Mercantile Exchange Inc.’s data policies are described on www.cmegroup.com
and in Attachment 1 hereto). If there is a conflict between a provision of this
Agreement and any provision of the Data Policies, then solely with respect to
the Datafeed subject to such Data Policy, the applicable Data Policy will
control. With regard to the Datafeeds:
Content. Each Third Party Data Provider
has complete editorial freedom with regard to the form and content of its
respective Datafeed and may alter, add to or delete the same from time to
time. CTS will use commercially
reasonable efforts to pass through any advance notice of such changes to you.
Regarding Datafeeds. You shall comply
with the applicable rights and restrictions pertaining to each Datafeed and
shall be fully responsible and liable for your acts with respect to, and use
of, such Datafeed.
<![endif]>Ownership. The third party Datafeed provider, their
affiliates or any of their licensors, as applicable (each a “Third Party Data
Provider” and collectively, the “Third Party Data Providers”), shall retain all
right, title and interest in and to the Datafeeds, and no proprietary rights
shall be transferred to you regarding
same. You agree that misappropriation or
misuse of a Datafeed shall cause serious damage to the applicable Third Party
Data Provider, and in such event money damages may not constitute sufficient
compensation to the Third Party Data Provider; consequently, you agree that in
the event of any misappropriation or misuse, the applicable Third Party Data
Provider shall have the right to obtain injunctive relief in addition to any
other legal or financial remedies to which such Third Party Data Provider may
Compliance. You shall (i) not use or
permit anyone to use the Datafeed or any information or software provided
through the Datafeed for any unauthorized or unlawful purpose; and (ii) shall
comply with all applicable regulations, conditions or restrictions laid down
from time to time by any statute, court order, telecommunications provider
and/or regulatory authority in connection with access to, use, storage and
transmission of the Datafeed or any information or software provided
Reuse or Redistribution. You shall not,
and shall not authorize or permit anyone else to furnish any information or
software provided via a Datafeed (including any derivative works based on or
using such information or software) to any person or firm for reuse,
redistribution or retransmission or any kind without the prior written approval
of appropriate Third Party Data Provider.
You may not, and shall not permit any third party to, transfer, sell,
resell, lease, rent, sublicense, adapt, modify or store for subsequent use the
Datafeeds for any such purpose, in whole or in part, in any form or manner or
by any means whatsoever, without the applicable Third Party Data Provider’s
prior written approval. In addition, you
shall not use any Datafeed separately from the System.
<![endif]>Audit. CTS or a Third Party Data Provider may, on
reasonable advance written notice, inspect all equipment and records relating
to the use, distribution, and control of the Datafeed and all information or
software provided via the Datafeed, in order to verify compliance with your
obligations under this Agreement. Audits
may be carried out without advance notice if CTS or a Third Party Data Provider
has reason to suspect material breach of this Agreement by you. Visits to your location(s) may take place
within normal business hours during the term of this Agreement and for a period
of two (2) years thereafter. CTS and the
Third Party Data Provider shall treat all information obtained in the audit
confidentially and use it only for the purpose of verifying compliance with
FOR DATAFEEDS. NOTWITHSTANDING ANYTHING
IN THIS AGREEMENT TO THE CONTRARY, CTS AND THE THIRD PARTY DATA PROVIDERS
PROVIDE THE DATAFEEDS “AS IS”, WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY
KIND AND YOUR USE OF THE DATAFEEDS IS AT YOUR OWN RISK. WITHOUT LIMITING THE FOREGOING, CTS AND THE THIRD
PARTY DATA PROVIDERS DO NOT WARRANT THE ACCURACY, TIMELINESS, COMPLETENESS,
ADEQUACY, TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE OF THE DATAFEEDS. CTS AND THE THIRD
PARTY DATA PROVIDERS (EITHER INDIVIDUALLY OR COLLECTIVELY) SHALL NOT BE LIABLE
TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES SUFFERED OR INCURRED WITH RESPECT
TO ANY ACTUAL OR ALLEGED INACCURACY, UNTIMELINESS, INCOMPLETENESS, INADEQUACY,
LACK OF TITLE, INFRINGEMENT, UNFITNESS, UNMERCHANTABILITY OR UNAVAILABILITY OF
THE DATAFEEDS HOWEVER THEY MAY
ARISE. YOU ACCEPT FULL RESPONSIBILITY
FOR YOUR USE AND THE USEFULNESS OF THE INFORMATION AND SOFTWARE INCORPORATED
INTO THE DATAFEEDS.
OF LIABILITY FOR DATAFEEDS. IN NO EVENT
SHALL CTS OR ANY THIRD PARTY DATA PROVIDER BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOSS OF PROFITS, LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE. IN NO
EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF CTS OR A THIRD PARTY DATA
PROVIDER IN CONNECTION WITH THE DATAFEEDS UNDER THIS AGREEMENT, REGARDLESS OF
THE FORM OF ACTION, EXCEED THE FEES PAID BY YOU TO CTS FOR SUCH DATAFEED DURING
THE SIX (6) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION FIRST
<![endif]>Termination of Datafeeds. You acknowledge and agree that CTS’s rights
to distribute, and your rights to access, a particular Datafeed depend CTS’s
license with the applicable Third Party Data Provider. Access to a Datafeed is subject to suspension
or termination (as applicable) if: (i) CTS’s license to grant you access to
such Datafeed is suspended, terminates or expires, (ii) CTS has reason to
suspect your noncompliance with this Agreement or the applicable Datafeed’s
Data Policy, or (iii) a Third Party Data Provider provides direction to CTS to
suspend or cease distribution of a Datafeed for any reason. Any such termination shall be without
liability for any damage, loss, or expenses of any kind that you incur or
suffer arising from or incident to any such termination.
<![endif]>Additional Terms. Additional disclosures, obligations and
disclaimers pertaining to specific Third Party Data Providers are set forth in
Attachment 1 hereto.
<![if !supportLists]>8. <![endif]>TERMINATION
<![endif]>Termination. CTS may terminate this Agreement and your
access to the System at any time, for cause or for no cause, with or without
written (including electronic) notice.
You may terminate this Agreement at any time by discontinuing your use
of the System and deleting or destroying all copies of software or other
components of the System provided hereunder that are on your Access
Responsibilities Upon Termination. Upon
termination or expiration of this Agreement, you shall cease using the System
and promptly delete or destroy all copies of software or other components of
the System provided hereunder that are on your Access Systems. You shall also return all documentation and
all related materials to CTS (or destroy all copies thereof) within fourteen
(14) days following the date of termination.
<![if !supportLists]>9. <![endif]>Limitation of liability
FOR CTS’ INDEMNIFICATION OBLIGATIONS IN SECTION 9.2, IN NO EVENT WILL CTS OR
ANY CTS PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS,
WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS
OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE
CLAIM IS BASED. FURTHER, CTS AND EACH
CTS PARTY SHALL HAVE NO LIABILITY WHATSOEVER TO YOU FOR ANY AND ALL CLAIMS
REGARDING THIS AGREEMENT, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY
(CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED EXCEPT IN THE EVENT
OF CTS’ GROSS NEGLIGENCE, FRAUD OR WILLFUL MISCONDUCT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF
LIABILITY PROVISIONS, THE LIABILITY OF CTS AND THE CTS PARTIES WILL BE LIMITED
TO THE GREATEST EXTENT PERMITTED BY LAW.
LIMITING THE GENERALITY OF THE FOREGOING, CTS IS NOT RESPONSIBLE FOR ANY
LIABILITY ARISING OUT OF INFORMATION, DATA, CONTENT OR OTHER MATERIAL IMPORTED
INTO THE SYSTEM THAT HAS BEEN PROVIDED BY YOU OR A THIRD PARTY, NOR IS CTS
RESPONSIBLE FOR ANY LIABILTY ARISING OUT OF ANY INFORMATION, DATA, CONTENT OR
OTHER MATERIAL FOUND ON ANY THIRD PARTY WEB SITES TO WHICH THE SYSTEM MIGHT
<![if !supportLists]>10. <![endif]>Indemnification
<![endif]>You. You agree to
defend, hold harmless and indemnify CTS and CTS Parties from and against any
claim, suit, or proceeding brought by a third party against CTS or CTS Parties
to the extent that it is based on a claim arising, directly or indirectly, out
of your use of the System (a “Covered Proceeding”) except for claims for which
CTS has an indemnity obligation in Section 9.2 below, and you shall pay all
costs incurred by and damages (including reasonable attorneys fees and
disbursements) awarded against CTS or a CTS Party arising out of such Covered
Proceedings. CTS shall reasonably cooperate
with you with regard to the defense of any Covered Proceedings or threatened
Covered Proceedings. CTS reserves the
right to assume the exclusive defense and control of any matter otherwise
subject to indemnification by you. You
shall not defend, hold harmless or indemnify CTS or CTS Parties for any actions
brought against CTS that arise out of the gross negligence, fraud or willful
misconduct of CTS.
<![endif]>CTS. CTS agrees to
defend or settle (at CTS’ expense and in CTS’ sole discretion) any claim, suit
or proceeding brought by a third party against
you to the extent that it is based on a claim that the System infringes
any copyright, patent, registered trademark, or other intellectual property
right or constitutes a misappropriation of a trade secret. Such indemnity, however, is specifically
exclusive of any such claims which arise or result from (i) your misuse of the
System; (ii) alteration of the System by you; (iii) your use of the System in
combination with apparatus, hardware, software or services not provided,
authorized or furnished by CTS (including any use or combination of the System
via the API); and (iv) your use of the System in a manner that violates
applicable law or regulation of any governmental authority or self-regulatory
agency or authority, this Agreement, the Operating Procedures or in a manner
for which the System was neither designed or contemplated. You shall promptly notify CTS in writing of
any claim, suit or proceeding that CTS may have obligations with respect to
under this Section 9.2. You shall
cooperate with CTS at CTS’ expense with regard to the defense of any suit or
threatened suit. CTS shall have full
control of any such claim, proceeding or suit and the authority to settle or
otherwise dispose of any such suit or threatened suit, and to appeal any
adverse judgment which may be entered.
CTS shall not be responsible for any compromise or settlement made
without its consent. Upon written notice
of a claim that the System is infringing a third party’s intellectual property
rights, CTS may, but is not obligated to (i) modify or replace the System to
make it non-infringing; (ii) procure any rights from any third party necessary
to offer the System; or (iii) terminate providing the System, in each case in
full satisfaction of its obligations pursuant to this Section 9.2. The foregoing states CTS’ complete obligation
and your sole and exclusive remedy for infringement claims arising under or
related to this Agreement.
<![if !supportLists]>11. <![endif]>Definitions
Party” shall mean CTS and its affiliates, employees, officers, directors, contractors,
representatives, consultants and agents.
shall mean the access identification codes and passwords provided by CTS to
Participating Financial Institution for their use or for use by their clients,
including, without limitation, all security identification codes and passwords
provided by CTS to PFI for use by You.
shall mean the Internet website through which You access the System.
<![if !supportLists]>12. <![endif]>MISCELLANEOUS
Agreement constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior and contemporaneous agreements and
communications, whether oral or written, between the parties relating to the
subject matter hereof, and all past courses of dealing or industry custom.
Agreement shall be binding upon and shall inure to the benefit of the parties,
their successors, legal representatives and assigns. Notwithstanding the foregoing, you shall not
assign your rights or obligations hereunder without the prior written consent
PFI is a third-party beneficiary to the applicable sections of this Agreement.
Agreement and performance hereunder shall be governed in accordance with the
laws of the State of Illinois,
without regard to its principles or rules regarding choice of law. No action involving this Agreement may be
brought except in the Circuit Court of Cook County, Illinois or the United
States District Court for the Northern District of Illinois, Eastern Division.
any provision in this Agreement should be held illegal or unenforceable by a
court having jurisdiction, such provision shall be modified to the extent
necessary to render it enforceable without losing its intent, or severed from
this Agreement if no such modification is possible, and other provisions of this
Agreement shall remain in full force and effect.
waiver by either party of any term or condition of this Agreement or any breach
thereof, in any one instance, shall not waive such term or condition or any
subsequent breach thereof.
provisions of this Agreement that require or contemplate performance after the
expiration or termination of this Agreement shall be enforceable
notwithstanding said expiration or termination.
party shall be in default or be liable for any delay, failure in performance or
interruption of service resulting directly or indirectly from any cause beyond
its reasonable control.
relationship between CTS and you is that of independent contractors and neither
you nor your agents shall have any authority to bind CTS in any way.
notices required to be sent to CTS under this Agreement shall be in writing and
sent to CTS at the following address:
Jackson Blvd. Suite 211A
notices shall be deemed given when received in the case of personal delivery or
delivery by first-class registered or certified mail or overnight courier that
produces written evidence of delivery.
Data Protection Addendum (the “Addendum”) forms part of any written or
electronic agreement(s) between CTS, your PFI and you relating to your access
to certain technology, software and online services solely
where CTS processes Personal Data for which you qualify as a Controller (the
“Agreement(s)”). The Addendum sets out
obligations of CTS and you with respect to data protection in relation to the
parties hereto agree as follows:
“Authorized Recipients” means CTS and
its respective contractors and third-party providers which assist in providing
the Services as of the date of this Addendum;
“PFI” includes any entity that owns or
controls, is owned or controlled by or is or under common control or ownership
with PFI, where control is defined as the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
an entity, whether through ownership of voting securities, by contract or
otherwise; or any of PFI’s clients and or PFI’s end users of the Services;
“Data” means any information or data to
be processed by CTS pursuant to the Agreement(s), including any Personal Data,
“CTS” includes an entity: (a) that
Processes Personal Data for which PFI qualifies as a Controller; and (b) which
owns or controls, is owned or controlled by or is under common control or
ownership with Vendor where control is defined as the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of an entity, whether through ownership of voting securities, by contract
“GDPR” means the General Data Protection
Regulation 2016/679 (GDPR) or its equivalent data protection or privacy laws;
“Services” means a subscription for and/or
an end user access to certain technology, software and online services provided
by CTS to PFI pursuant to an Agreement(s) solely where CTS processes Personal
Data for which PFI qualifies as a Controller.
terms, “Controller”, “Data Subject”, “Personal Data”, “Processing”
and “CTS” shall have the same
meaning as in the GDPR, and their related terms shall be construed accordingly.
the course of CTS providing the Services under the Agreement(s), PFI may from
time-to-time provide or make available Data to CTS. The parties acknowledge and agree that, in
relation to any Personal Data provided or made available to CTS for Processing
by PFI under the Agreement(s), PFI will be the Controller and CTS will be a CTS
for the purposes of the GDPR.
Agreement(s) determines the subject matter and the duration of CTS’s Processing
of Personal Data, as well as the nature and purpose of any collection, use and
other Processing of Personal Data and the obligations of PFI.
represents and warrants it has obtained and will maintain all necessary authorizations
and consents required in accordance with the GDPR to enable CTS to provide the
Services and is entitled to transfer the relevant Personal Data to CTS so that CTS
may lawfully Process the Personal Data in accordance with the Agreement(s) on PFI’s
behalf, which may include CTS Processing the relevant Personal Data outside the
country where PFI and the Data Subjects are located in order for CTS to provide
the Services and perform its other obligations under the Agreement(s).
shall Process the Personal Data only in accordance with any lawful and
reasonable instructions given by PFI from time to time as documents in and in
accordance with the terms of the Agreement(s).
shall ensure that all persons it authorizes to access the Personal Data have
committed themselves to confidentiality or are under an appropriate statutory
obligation of confidentiality.
may engage the Authorized Recipients as CTSs under the Agreement(s) and CTS
shall (i) impose upon such CTSs the equivalent data protection obligations as
set out herein and (ii) be responsible for the acts and omissions of its
Authorized Recipients under the Agreement(s).
CTS shall inform PFI of any intended changes concerning the addition or
replacement of other CTSs not permitted hereunder, by making such information
available to PFI prior to the GDPR effective date. Unless PFI objects to such changes in writing
setting out its reasonable concerns in detail within four (4) weeks from such
notice, the change shall be deemed accepted by PFI. If PFI objects, CTS shall consult with PFI,
consider PFI’s concerns in good faith and inform PFI of any measures taken to
address PFI’s concerns. If PFI upholds
its objection and/or demands significant accommodation measures and either
would result in a material increase in cost to provide the Service, CTS shall
be entitled to increase the fees for the Service or, at its option, terminate
the relevant Agreement.
into account the state of the art, the costs of implementation and the nature, scope,
context and purposes of Processing as well as the risk of varying likelihood
and severity for the rights and freedoms of natural persons, PFI and CTS shall
implement appropriate technical and organizational measures to ensure a level
of security appropriate to the risk.
party shall take reasonable steps to ensure that any natural person acting
under its authority who has access to Personal Data does not Process them
except on instructions from it.
PFI’s written request, CTS shall (at PFI’s choice) delete or return all
Personal Data Processed on behalf of PFI to PFI after the end of the provision
of Services relating to Processing, subject to CTS retaining any copies
required by applicable law.
shall cooperate with PFI as reasonably requested by PFI in order to assist PFI
with its compliance with its legal obligations under Chapter III and pursuant
to Articles 32 to 36 of the GDPR, and PFI and shall reimburse CTS for any time
spent by CTS personnel as part of any such cooperation at CTS’s then standard
professional services rate, together with any out of pocket costs reasonably
CTS becomes aware of any breach of security leading to the accidental,
unauthorized or unlawful destruction, loss, alteration, or disclosure of, or
access to the Personal Data that CTS Processes for the PFI, CTS shall without
undue delay notify PFI thereof.
CTS is acting as a CTS under the Agreement(s), at PFI’s written request, no
more than once per year unless required under applicable law, CTS shall make
available to PFI all information reasonably necessary to demonstrate CTS’s
compliance with the obligations set out in this Addendum. To this end, CTS may allow a reputable
third-party auditor chosen by CTS to perform audits on PFI’s behalf and PFI
hereby authorizes CTS to issue such mandate to the third-party auditor.