Supplemental Terms and Conditions to Community Membership Agreement
These Terms and Conditions constitute a component of that community membership agreement between FX HedgePool and each applicable member
1) ACCESS AND USE
a) Provision of Access. Subject to the terms and conditions of the Agreement, Provider hereby grants Member a non-exclusive, non-transferable right to access and use the Services and Documentation provided that such use is solely for Member’s internal use and by Authorized Users in accordance with the terms and conditions herein.
b) Use Restrictions. Member shall not use the Services for any purposes beyond the scope of the access granted in the Agreement. Member shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) use or refer to the Services or any Confidential Information (defined below) to build a competitive product or service, or make or have made a product with similar features or functions to the Services, (v) remove any proprietary notices from the Services or Documentation; or (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law. Member is responsible and liable for all uses by Member and its affiliates of the Services. Without limiting the generality of the foregoing, Member is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of the Agreement if taken by Member will be deemed a breach of the Agreement by Member. Member shall use reasonable efforts to make all Authorized Users aware of the Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions.
c) Taxes. All fees and other amounts payable by Member under the Agreement, howsoever they are applied and by whomsoever they are collected, are exclusive of any taxes and similar assessments. Member is solely responsible for all transaction taxes, usage taxes, sales taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts ultimately charged to Member hereunder, other than any taxes imposed on Provider's income.
2) CONFIDENTIAL INFORMATION.
a) General. From time to time during the Term, either party may disclose or make available to the other party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party's Confidential Information to any person or entity, except to the receiving party's employees (including consultants, auditors, attorneys, accountants, and financial advisors) who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; (ii) to establish a party's rights under the Agreement, including to make required court filings; or (iii) to facilitate the completion of a foreign exchange transaction in relation to the Services by disclosing information to the Counterparty of such transaction.
b) Expiration/Termination. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party's Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed if such certification is requested in writing by the other party.
c) Aggregated Statistics. Notwithstanding anything to the contrary in the Agreement, Provider may monitor Member's use of the Services and collect and compile Aggregate Statistics, which Provider may to improve the operation of its Services.
3) IP OWNERSHIP; FEEDBACK.
a) Provider IP. Member acknowledges that, as between Member and Provider, Provider owns all right, title, and interest, including all intellectual property (“IP”) rights, in and to the Provider IP.
b) Member Data. Provider acknowledges that, as between Provider and Member, Member owns all right, title, and interest, including all intellectual property rights, in and to the Member Data. Member hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Member Data and perform all acts with respect to the Member Data as may be necessary for Provider to provide the Services to Member.
c) Feedback. If Member or any of its employees or contractors sends or transmits any communications or materials to Provider suggesting or recommending changes to the Services or Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Member hereby assigns to Provider on Member's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
d) Use of Marks for Promotion of Commercial Activity. Both Member and Provider consent to the use by the other of their trademarks or service marks for the purpose of the other promoting its commercial services. If such consent is withdrawn by oral or written notice, the other party must as promptly as practical remove applicable trademarks or service marks from websites or subsequent publications. Either Member or Provider will not, at any time, during or after the term of the Agreement, do or cause to be done, any act or thing contesting or in any way impairing or intending to impair any part of the right, title and interest or attack the validity of the other’s trademarks or service marks, and will follow any reasonable instruction from the other as to the use of its trademarks and service marks.
4) ANTI-MONEY LAUNDERING AND SANCTIONS COMPLIANCE.
a) General. Member warrants that it has implemented, and complies with, policies, procedures, and controls designed to ensure adherence to all relevant anti-money laundering (“AML”), anti-terrorism, and sanctions compliance laws applicable to it and in all jurisdictions in which it operates.
b) Sanctions Screening Representations. Member confirms that, to the best of its knowledge and based upon reasonable due diligence and investigation: (i) none of the funds managed by Member or any related company that engages in transactions via Provider, or otherwise utilizes the Services, were directly or indirectly derived from, or otherwise related to, (a) activities that may contravene any laws applicable to it, including AML and sanctions compliance, or (b) a country, territory, individual, or entity that is a target of economic sanctions administered by the United States, the European Union, or the United Nations(collectively “Sanctions Regulations”) and (ii) neither Member nor any of its related companies is/are subject to Sanctions Regulations.
5) WARRANTY DISCLAIMER. The Provider IP is provided "as is" and Provider hereby disclaims all warranties, whether express, implied, statutory, or otherwise. Provider specifically disclaims all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and all warranties arising from course of dealing, usage, or trade practice. Provider makes no warranty of any kind that the Provider IP, or any products or results of the use thereof, will meet Member’s or any other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.
6) LIMITATIONS OF LIABILITY. In no event will either party be liable under or in connection with the Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise, for any: (a) consequential, incidental, indirect, exemplary, special, enhanced, or punitive damages; (b) increased costs, diminution in value or lost business, production, revenues, or profits; (c) loss of goodwill or reputation; (d) use, inability to use, loss, interruption, delay, or recovery of any data, or breach of data or system security; or (e) cost of replacement services, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. In no event will Provider's aggregate liability arising out of or related to the Agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amount paid to Provider under the Agreement in the 12-month period preceding the event giving rise to the claim or $100,000, whichever is less.
7) INDEMNITY. Member shall immediately on demand indemnify, defend, and hold harmless FX HedgePool against all and any costs, fees, break costs, expenses or any other losses resulting or in connection with directly or indirectly Member’s material breach of the Agreement, gross negligence or willful misconduct.
8) TERM AND TERMINATION. Either Member or Provider may terminate the Agreement immediately upon written notice of termination to the other. No expiration or termination will affect (i) Provider’s right to collect fees or entitle Member to a refund, or (ii) Member’s obligations (outstanding as of the time of termination) to enter into or settle a foreign exchange transaction. This section of the Agreement and sections entitled ‘Confidential Information,’ ‘IP Ownership; Feedback,’ ‘Warranty Disclaimer,’ ‘Limitations of Liability,’ ‘Indemnity,’ and ‘Miscellaneous’ shall survive any termination or expiration of the Agreement.
a) Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any inconsistency between the statements made in the body of the Agreement, the related Exhibits, and any other documents incorporated herein by reference, the following order of precedence governs: (i) first, the Agreement, excluding its Schedules; (ii) second, the Schedules to the Agreement as of the Effective Date; and (iii) third, the Order Form and any other documents incorporated herein by reference.
b) Notices. Unless specified otherwise in the Agreement, all notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of the Agreement (or to such other address that may be designated by the party giving Notice from time to time in accordance with this Section).
c) Force Majeure. In no event shall either party be liable to the other party, or be deemed to have breached the Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond such party's reasonable control, including but not limited to acts of God, flood, fire, earthquake, pandemic, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
d) Amendment and Modification; Waiver. No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
e) Severability. If any provision of the Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify the Agreement so as to effect their original intent as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
f) Governing Law; Submission to Jurisdiction. This Agreement is governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action, or proceeding arising out of or related to the Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of New York in each case located in New York County in the State of New York, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
g) Assignment. Member may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provider, which consent shall not be unreasonably withheld, conditioned, or delayed. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and the irrespective permitted successors and assigns.
h) Export Regulation. Member shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Member Data outside the US.
i) Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 6 or, in the case of Member, Section 2(c), would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that maybe available at law, in equity, or otherwise.
j) Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.
10) DEFINITIONS. Capitalized terms in this Terms and Conditions document not otherwise defined in the Agreement shall have the meanings set forth below:
Agreement: That community membership agreement between FX HedgePool and each applicable member, which included these supplemental terms and conditions.
Aggregated Statistics: Aggregated and anonymized data and information that in the aggregate do not contain a Member’s Confidential Information and cannot be manipulated in a manner to derive a Member’s Confidential Information therefrom.
Authorized User: Member's employees, consultants, contractors, and agents (i) who are authorized by Member to access and use the Services under the rights granted to Member pursuant to the Agreement and (ii) for whom access to the Services has been provisioned hereunder.
Counterparty: A bank or other financial entity with which Member has established a bilateral foreign exchange trading relationship, and with which Provider has a Credit Provision Agreement or similar agreement containing conventional provisions on the treatment of confidential information.
Documentation: Any user manual other instructional document relating to the Services issued by Provider to Member in any format.
Member Data: Other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Member or an Authorized User through the Services.
Provider IP: The Services, Documentation, and all intellectual property (“IP) provided to Member or any Authorized User in connection with the Agreement, including Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Member's access to or use of the Services, but not including Member Data.
Services: The FX HedgePool trade matching portal and other services FX HedgePool provides members of its trade matching community.