This Agreement is between Telvent DTN, LLC. ("DTN"), whose address is 9110 West Dodge Road, Omaha, Nebraska 68114 and _____________________ ("Developer"), an individual/corporation/partnership or other legal entity whose address is _______________________________________________________________, effective this ____ day of ______________, 20______.ACKNOWLEDGMENT AND ACCEPTANCE
DTN is the owner and operator of an electronic information system (the "System") which transmits proprietary and third party information from various sources (the "Sources") to DTN's subscribers (the "Subscribers") who receive electronic information provided by DTN. Developer is the designer, creator and producer of software for self-use or commercial distribution (the "Developer's Software"). DTN will provide to Developer a DTN IQfeed Specification (the "Specification") to help Developer's Software communicate with the DTN server. The Specification lists the formats to login to the DTN server, send commands to the DTN server and the formats of data passed from the DTN server. By reading, signing and returning this Agreement, submitting registration information and clicking "Submit", Developer is agreeing to be bound by all of the provisions of this Agreement. If Developer does not wish to agree to following provisions, this Specification may not be used.RECITALS
WHEREAS, DTN provides real time, streaming market data, news and other time sensitive market data via the Internet ("the Service").
WHEREAS, DTN provides the IQfeed Developer Specification, which gives developers access to the IQfeed collection of information and resources that developers may use to design, develop and test streaming market data applications, as further described in Exhibit A.
WHEREAS, DTN is willing to provide the Developer with access to the Specification, subject to the terms and conditions of this Agreement.
AND WHEREAS, the Developer wishes to access and implement the Specification subject to the terms and conditions of this Agreement.
WHEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
I. LICENSE GRANT.
III. TERMS AND CONDITIONS.
The Specification is part of the IQfeed Service. Accordingly, the Developer must subscribe to and pay for the IQfeed Service, and agrees to be bound to the terms and conditions set forth in the Terms and Conditions and the Subscriber Agreement for the IQfeed Service. The IQfeed Service fees, Terms and Conditions and Subscriber Agreements are separate of any agreements, fees or terms of this agreement.
As consideration for the rights granted by this agreement, Developer agrees to make payment to DTN in the amount of four hundred forty four dollars ($468) each year that Developer's Software is in production. The annual fee may change upon each annual renewal and is payable prior to receiving access to any items listed in Exhibit A and is exclusive of any fees for the IQfeed Service.
V. OWNERSHIP/INTELLECTUAL PROPERTY.
Developer shall retain the entire right, title and interest in and to those portions of Developer's Software directly and originally authored by the Developer, but not to any portions of Developer's Software that consist of or are based upon the Specification or other pre-existing intellectual property of DTN. Developer agrees that, as between the parties, DTN is and shall be the sole owner of the Service and that Developer will provide reasonable assistance to DTN in perfecting its right, title, and interest in and to the Service.
If Developer chooses to use the Specification in Developer's Software, Developer is solely responsible for Developer's Software, any conduct resulting from use of Developer's Software, and any other content Developer makes available for transmission through the Service or otherwise in connection with Developer's Software. Developer may not use, or enable or permit others to use the Developer's Software or the Information for any purpose that is prohibited by this Agreement. Developer also agrees to comply with any and all requirements, technical and otherwise, set forth in the Specification, or that DTN otherwise communicates to Developer. Without limiting the foregoing, Developer agrees not to use the Specification, the Developer's Software, or any other part of the Service to:
VII. NO WARRANTY.
THE SPECIFICATION, AND ANY INFORMATION, FUNCTIONALITY, SOFTWARE TOOLS, CODE AND CODE FRAGMENTS AVAILABLE THEREIN ARE PROVIDED "AS IS," AND DEVELOPER'S USE THEREOF ARE AT DEVELOPERS OWN, SOLE RISK. DTN EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DEVELOPER ACKNOWLEDGES THAT THE SPECIFICATION FUNCTIONALITY AND ITS USE MAY NOT BE UNINTERRUPTED OR ERROR-FREE.
VIII. LIMITATIONS OF REMEDIES.
REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE OR OTHERWISE, IN NO EVENT WILL DTN BE LIABLE TO DEVELOPER OR TO ANY THIRD PARTY FOR ANY LOST DATA, LOST PROFITS, INTERRUPTION OF BUSINESS, OR SPECIAL, INDIRECT, DIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE SPECIFICATION FUNCTIONALITY OR ANY CODE OR DATA SUPPLIED THEREWITH OR OTHERWISE OUT OF THIS AGREEMENT, WHETHER ARISING IN TORT (INCLUDING NEGLIGENCE), CONTRACT, OR ANY OTHER CAUSE OF ACTION, AND EVEN IF DTN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.
This Agreement may be terminated by either party at any time by giving thirty (30) days prior written notice to the other party. Notwithstanding the foregoing, DTN may terminate this Agreement immediately and without notice if DTN determines in its reasonable judgment that Developer has breached any provision of this Agreement. In the event this Agreement is terminated, (i) the license granted to the Developer pursuant to this Agreement shall immediately terminate; and (ii) the terms and provisions of Sections 2, 3 and 4 of Article I and all of Article III shall survive the termination of this Agreement. Further, Developer agrees that DTN shall not be liable to Developer or any third-party for any termination of Developer's access to or use of the Specification.
X. CONFIDENTIAL INFORMATION.
The parties may disclose to one another certain information ("Information"), as defined herein, which is considered by the disclosing party to be proprietary or confidential information. Information is defined as any information, communication or data in any form, including, but not limited to oral, written, graphic or electromagnetic forms, models or samples, which the disclosing party desires to protect against in restricted disclosure or use, including without limitation, the Specifications and Developer's Software. The receiving party shall maintain and protect the confidentiality of the Information with the same degree of care as the receiving party uses for its own confidential and proprietary information and the receiving party shall not disclose such Information to any third party, other than its employees or agents who have a need to know such Information in connection with the performance of the party's obligations under this Agreement. Each party acknowledges that if it breaches its obligations under this section, the other party will be irreparably harmed and the non-breaching party will be entitled to obtain injunctive relief without the necessity of proving actual damages, in addition to any other remedy which it may have
XI. USE OF DEVELOPER'S NAME.
DTN may reference Developer's name, Developer's Software and business relationship with DTN in marketing materials used by DTN.
DTN may modify and restate the terms and conditions of the Agreement from time to time by posting a new version of this document to the IQfeed developer website currently located at http://www.iqfeed.net/dev, or any successor site thereto. When DTN makes changes to the Agreement, Developer will receive notices from DTN via Developer's e-mail address and will be given 30 days to comply with the change. Accordingly, Developer should consult this document regularly to ensure that Developer's activities conform to the most recent version. Developer's continued use of the Specification shall be deemed to be conclusive acceptance of all modifications to the Agreement.
This Agreement will be governed by the laws of the State of Nebraska, without regard to or application of conflicts of law rules or principles, and Developer hereby consents to the exclusive jurisdiction of the federal and state courts located in the County of Douglas, Nebraska with regard to any dispute arising under this Agreement. If any provision of this Agreement is held to be unenforceable, that provision will be removed and the remaining provisions will remain in full force. The waiver by either party of any default or breach of this Agreement shall not constitute a waiver of any other or subsequent default or breach. Any waiver, amendment or other modifications or any provision of this Agreement will be effective only if in writing and signed by the parties. Developer may not assign, transfer or encumber this Agreement, by contract or by law, in any way without DTN's prior written consent. Any new features or changes to the Specification shall be subject to this Agreement unless explicitly stated otherwise.
Developer's Name Telvent DTN, LLC. _____________________________________ Signature: __________________________ Signature: __________________________ Title: ______________________________ Title: ______________________________ Date: __________________ Date: __________________