These Market Data Terms of Service (these "Market Data Terms") supplement the Massive for Individuals Terms of Service (the "Terms") and form part of the Agreement. They govern your receipt and use of Information through the Services, including Information that is not Market Data. Capitalized terms not defined here have the meanings given in the Terms. Source-specific definitions in a subscriber agreement apply within that agreement. These Market Data Terms apply to subscriptions, free access and individual per-request purchases, regardless of access method, and may be changed only as provided in Section 10.
1. Permission to Use Information.
Subject to the Agreement, Massive grants you a limited, nonexclusive, nontransferable, non-sublicensable license to access, download, store and use the Information included in your plan, add-ons and purchases, solely for your own personal, non-business and non-commercial use. Personal use includes your own research, analysis and investment activities, using any software, tools or methods you choose. This license does not permit you to share Information with anyone else, develop or provide a service or application to other users, use Information for an employer or any other organization, or use it in professional or commercial work. Section 4 sets out additional terms that apply to, and control for, Information from particular Third Party Providers, and Section 8 explains what happens to Information you have downloaded when your plan changes or ends.
2. Information.
Information includes both Massive Data and Third-Party Data. The applicable plan, add-on or request determines the Information available to you, including whether it is real-time, delayed, historical or indicative. An indicative value is not an exchange quote, executable price, or guarantee of execution. To the maximum extent permitted by applicable law, Information is provided or made available to you on an "as is" and an "as available" basis and should not be considered as any form of financial advice or recommendation for you. Massive hereby disclaims all warranties, express, statutory, or implied (including, without limitation, implied warranties of title, non-infringement, merchantability, fitness for a particular purpose, and all warranties arising from course of dealing, usage, or trade practice). Neither Massive nor any Third Party Provider warrants or guarantees the accuracy, timeliness, completeness, or correctness of any Information or warrants any results or interpretations from any use or reliance upon Information for any purpose. Massive is not a registered broker-dealer, financial institution, exchange, or investment advisor, nor does it make any recommendations regarding the appropriateness of particular opportunities for any investor. Your use of any Information is at your own risk, and Massive will not be responsible for any actions you take based on the Information.
Except as expressly permitted by the Agreement, you may not use or make Information available for any purpose or in any manner outside the scope of your applicable license. These restrictions apply regardless of the technology, method of access or third-party service you use. The availability of a feature or access method does not expand your rights in the Information or waive any applicable Third Party Provider requirement. Massive may report unauthorized use and related subscriber information to the applicable Third Party Provider as required by its terms and applicable law.
3. Subscriber Classification.
Where Information is offered at a Non-Professional rate or requires Non-Professional eligibility, you represent and warrant that you qualify under the applicable provider's definition. Personal use under the Terms and Non-Professional status under an exchange's rules are separate requirements. In addition, Market Data is made available to you on the basis that you represent and warrant to us that you will use the Market Data solely for your personal, non-business use. If you think you are or might be a Professional or if you think that you do not or might not qualify as a Non-Professional, you must contact us immediately at support@massive.com. For the purposes of the Agreement, "Non-Professional" means any natural person who receives market data solely for their own personal, non-business use and who is not a Professional. A "Professional" for these purposes includes an individual who, if working in the United States, is:
(a) Registered or qualified in any capacity with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association, or self-regulatory body;
(b) Engaged as an "investment advisor" as that term is defined in Section 202(a)(11) of the Investment Advisor's Act of 1940 (whether or not registered or qualified under that Act), or
(c) Employed by a bank or other organization exempt from registration under Federal and/or state securities laws to perform functions that would require that individual to be so registered or qualified if they were to perform such functions for an organization not so exempt.
A person who works outside of the United States will be considered a Professional if they perform the same function(s) as a person who would be considered a Professional in the United States. Any use of Market Data for business, professional, or other commercial purposes is incompatible with Non-Professional status, even if the business or commercial use is on behalf of an organization not in the securities industry.
You undertake to continually assess your status as to whether you are a Non-Professional or whether you are a Professional and undertake to promptly notify us if your classification as a Non-Professional or a Professional changes at any time while you receive or have access to Information requiring that classification. You acknowledge that we have provided you with an account and with Market Data in reliance on your representations and warranties to us as to your status.
Should we or our Third Party Providers determine, during or after your subscription, that you received a Non-Professional rate for a period in which you did not qualify, you are responsible for the difference between the applicable Non-Professional and Professional rates for the affected Massive subscription and Information for that period. We may base that determination on information you provide, public records, employment or business information, your payment method or other relevant information. The difference may be assessed retroactively, including from the start of your subscription if you did not qualify at that time. We may invoice you for amounts due and charge your payment method on file to the extent authorized and permitted by applicable law.
4. Third Party Providers.
Depending on the Services you select, Massive may provide or make available to you certain Market Data from the following Third Party Providers. For the purposes of this Section, any references to "Vendor" or "Distributor" means Massive.com, Inc., and any references to "Subscriber" means you.
4.1 OPRA.
Massive may provide or make available to you through the Services certain Market Data related to options that is provided directly or indirectly by Options Price Reporting Authority, LLC ("OPRA"). To the extent you are a recipient of real-time options Market Data provided by OPRA, you hereby enter into the "OPRA Non-Professional Subscriber Agreement" in the form attached as Schedule 1 to these Market Data Terms.
4.2 Nasdaq/UTP.
Massive may provide or make available to you through the Services consolidated quotation and transaction information for Nasdaq-listed securities collected from participating markets under the Nasdaq Unlisted Trading Privileges Plan (the "UTP Plan"), which is administered by The Nasdaq Stock Market LLC ("Nasdaq"). As a condition of receiving real-time Information distributed under the UTP Plan, you agree to be bound by the UTP Plan Subscriber Agreement (the "UTP Subscriber Agreement"), which governs your receipt and use of that Information and establishes rights and obligations between you and Nasdaq. Massive acts as the Vendor providing the Information to you. The full, unmodified UTP Subscriber Agreement is attached as Schedule 3 and forms part of this Agreement. Its published source is https://www.utpplan.com/DOC/SubAgreement.pdf.
By executing this Agreement, you (known as "Subscriber" in the UTP Subscriber Agreement) agree: (a) that you have read and agree to be bound by the UTP Subscriber Agreement, a copy of which is attached hereto; (b) that the Vendor/Vendor is not an agent of and is not authorized to add to or delete from the UTP Subscriber Agreement and is not authorized to modify any provision of the Subscriber Agreement; and (c) that no provision has been added to or deleted from the Subscriber Agreement and that no modifications have been made to it. Both the Subscriber and the person executing on behalf of the Subscriber warrant that the Subscriber is legally able to undertake the obligations set forth in and the signatory is duly authorized to bind the Subscriber to the UTP Subscriber Agreement.
4.3 CME.
This Section 4.3 applies only to Market Data licensed by Chicago Mercantile Exchange Inc. or its affiliates ("CME"), referred to below as "CME Information". By accepting these Market Data Terms, you also agree to the CME Group Subscriber Addendum, available at https://www.cmegroup.com/market-data/files/ILA-Subscriber-Addendum-june-2026.pdf (the "CME Subscriber Addendum"), which is incorporated into the Agreement. Under the CME Subscriber Addendum, Massive is the Distributor, you are the Subscriber, and the Agreement is the Distribution Agreement.
For CME Non-Professional Subscriber Fees, a Non-Professional Subscriber must meet the following criteria: (a) has an active futures trading account; (b) is an individual, natural person or a small business entity; (c) is not a member, or holder or lessee of any type of membership of any exchange; (d) is not registered or qualified as a professional trader or investment adviser with any stock, commodities or futures exchange or contract market, or with any financial regulatory authority; (e) is not acting on behalf of an institution that engages in brokerage, banking, investment, or financial activities; and (f) accesses CME Information on no more than two devices through software capable of receiving real-time CME Information from Massive and routing orders to the CME Globex platform. In addition, the ability to access and the use of CME Information by a Non-Professional must: (a) be solely for the Subscriber's personal or private use; (b) be limited to managing the Subscriber's own assets; and (c) not be used in connection with the management of any assets of any third party in any capacity. Any Subscriber who does not meet the qualifications of a Non-Professional will be considered a Professional. CME may determine whether you qualify under its applicable requirements. You must promptly notify Massive if your circumstances or permitted access change. A small business entity's eligibility under CME's definition does not permit business use under the Terms.
4.4 NYSE.
Massive may make NYSE Information available through the Services. Information offered under the Agreement for Market Data Display Services attached as Schedule 2 (the "NYSE Market Data Agreement") is available only after we determine that you qualify as a Nonprofessional Subscriber under that Schedule and you complete and accept its required information and certifications. If you are a Professional seeking Information for personal use, contact support@massive.com. We may provide it only where the applicable source terms permit that use and after you complete the appropriate subscriber agreement, eligibility review and fees. Professional classification does not authorize business use under the Terms.
The NYSE Market Data Agreement will be deemed to have been executed and entered into by you by your agreement to the Terms and these Market Data Terms, and in addition to being incorporated into the Terms by virtue of these Market Data Terms, constitutes a separate agreement between you and Massive. You acknowledge and agree that the NYSE Market Data Agreement is a legal, valid, and binding contract between you and Massive.
4.5 Other sources.
Information from other sources may be subject to an additional subscriber agreement or service supplement presented with the relevant product. Where the source requires a separate agreement or direct approval, access is conditional on completing it. These Market Data Terms do not replace that requirement.
5. Restrictions and Responsibilities.
Except to the extent expressly permitted for the affected Information by the Agreement and the applicable Third Party Provider, you may not:
(a) Misrepresent Information, present Information in a false or misleading light, or remove any trademarks transmitted with the Information;
(b) Use Information for any illegal purposes;
(c) Share, redistribute, publish, sell, sublicense or rebrand Information, make it available to anyone else, or use it for a business or commercial purpose. Subject to Sections 4.3 and 5(g), a tool or service that processes Information only on your behalf, as described in Section 7 of the Terms, is not anyone else for this purpose, but it may not use the Information for its own purposes or make it available to others. This restriction does not prevent you from keeping and using, for your own personal purposes, your own analyses and other results that do not contain Information and cannot reasonably be used to recreate it or as a substitute for it;
(d) Use Information to create, calculate or publish an index, benchmark, or settlement or reference price, or to create, issue, price or settle a financial product or instrument, unless you have a separate written license from Massive and each applicable Third Party Provider;
(e) Distribute or permit the distribution of Information to any entity located in any country subject to comprehensive sanctions by the Office of Foreign Assets Control; and/or identified on the U.S. Department of the Treasury's Specially Designated Nationals and Blocked Persons List;
(f) Violate an applicable third-party subscriber agreement or source requirement; or
(g) Use Information to train, fine-tune or distill an artificial-intelligence or machine-learning model unless expressly permitted and all applicable Third Party Provider requirements are satisfied, or permit an AI tool or other third-party service to use Information for its own purposes. Any otherwise permitted use of Information with AI tools remains subject to applicable source-specific licensing, access-control, retention and redistribution requirements.
6. Ownership and Proprietary Rights.
You acknowledge that as between Massive and you, the Information and all rights in the Information (including all Intellectual Property Rights) are exclusively the property of Massive and its licensors. In addition and independent of the foregoing, you acknowledge that the Information is the product of substantial expenditure by Massive and any Third Party Providers of labor, skill, and money, and your use of Information in contravention of these Market Data Terms would misappropriate the benefits of those expenditures. Massive reserves, for itself and its licensors, all rights in the Information not expressly granted in these Market Data Terms. You agree that you will take all reasonable steps, such as the execution of written documents, that may be necessary to protect, perfect, and enforce Massive's and its licensors' rights in the Information. You agree that you have no right to any Massive trademark or service mark and may not use any such mark in any way unless expressly authorized by Massive. You must protect Information against unauthorized access or disclosure and preserve applicable proprietary notices. This does not make information lawfully available to the public confidential, waive source restrictions on the copy supplied through the Services, or transfer ownership of your independently created work to Massive.
You acknowledge that unauthorized use or disclosure of Information may cause irreparable harm for which monetary damages alone may be inadequate. Massive reserves the right to take legal or other action to protect its rights and those of its Third Party Providers, including restricting or terminating access, seeking injunctive or other equitable relief, and recovering damages. To the extent permitted by applicable law, you waive any requirement that Massive post a bond or other security in seeking such relief. These remedies are in addition to any other remedies available under the Agreement or applicable law, and remain subject to the Agreement's dispute-resolution provisions.
7. Changes to Information and Suspension of Access.
Massive may, in its sole discretion, withdraw, suspend, restrict or change any Information or access to it at any time, with or without notice. We do not guarantee the continued availability of any particular Information or backward compatibility of any feature or method of access. Except as expressly provided in the Agreement or required by applicable law, Massive will not be liable for any resulting unavailability, interruption or change.
8. Effect of Termination.
Your license to Information ends when the plan, add-on or purchase that includes it ends, when the Agreement or your account is terminated, or when a Third Party Provider requires us to end it. Canceling a subscription does not end your license before the end of the period you have paid for. When that period ends, including because a renewal is not paid, this paragraph applies as though you had changed to the free plan for that product. Changing to a lower-tier or free plan does not close your account or terminate the Agreement, but once the change takes effect your license covers only the Information your new plan includes. That means the Information you could obtain through the Services on your new plan on the date the change takes effect, based on its datasets and historical range as described in the Documentation on that date, however you originally downloaded it, together with Information you obtained while previously on that plan.
When your license to any Information ends, you must stop using it and delete it promptly, and in any event within thirty (30) days, including downloaded files, stored copies and caches. You must also have any tool or service that holds it on your behalf do the same. If we ask, you will confirm in writing that you have done so. You may keep and use, for your own personal purposes, your own analyses, code and other results that do not contain the Information and cannot reasonably be used to recreate it or as a substitute for it. An automatic backup that you do not actively use may retain a copy until it is overwritten in your normal backup cycle, and in any event for no more than ninety (90) days after your license ends, as long as you do not restore or use that copy. You may also keep a copy that the law requires you to keep, solely for that purpose.
Information you buy through a per-request purchase remains licensed after a separate subscription ends, until the Agreement ends, a Third Party Provider requires us to end that license, or we post notice of its end in the Documentation or the request interface. A purchase covers only the Information delivered for that request, not later requests or updates, and its license is not perpetual or irrevocable.
If we suspend your access, you must stop using the affected Information during the suspension, but you do not have to delete it unless your license ends.
Some Third Party Providers have stricter rules, and those rules also apply. For example, when your license to CME Information ends, the CME Subscriber Addendum requires you to purge it immediately. If a Third Party Provider stops licensing its Information to us or requires its deletion, you must delete that Information as soon as we tell you, including by a notice posted in the Documentation.
9. Conflicts.
The applicable third-party subscriber agreement controls any conflict concerning that provider's Information. Subject to that rule, these Market Data Terms control conflicts concerning the license to Information, and the Terms govern the Services and commercial relationship. Neither these Market Data Terms nor an Order Form modifies or waives a provider's rights.
10. Amendments and Modifications.
Massive may amend these Market Data Terms from time to time by posting a revised version on its website. Changes take effect on the date stated in the revised version or accompanying notice. We will provide any additional notice or obtain any consent required by the Terms or applicable law. Your continued access to or use of the affected Services or Information after that date constitutes acceptance of the revised Market Data Terms, and you will be bound by its terms, except where affirmative consent is required.
11. Governing Law and Jurisdiction.
Section 15.1 (Governing Law; Arbitration) of the Terms applies to disputes between you and Massive under these Market Data Terms, subject to the governing-law and dispute provisions of an applicable third-party subscriber agreement and mandatory consumer law.
SCHEDULE 1
OPRA NON-PROFESSIONAL SUBSCRIBER AGREEMENT
IMPORTANT NOTICE: THIS SUBSCRIBER AGREEMENT (THIS "AGREEMENT") IS AN AGREEMENT BETWEEN YOU AND MASSIVE.COM, INC. FOR YOU TO RECEIVE INFORMATION PUBLISHED BY THE OPTIONS PRICE REPORTING AUTHORITY, LLC ("OPRA"). PLEASE READ THIS AGREEMENT CAREFULLY. AFTER YOU HAVE READ THIS AGREEMENT, PLEASE INDICATE YOUR AGREEMENT TO BE BOUND BY ITS TERMS AND CONDITIONS BY CLICKING ON THE "CONFIRM AND CONTINUE" BUTTON AT THE END. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU WILL BE UNABLE TO RECEIVE THE INFORMATION.
By selecting the checkbox where this Agreement is presented to you, you are applying to receive from Massive.com, Inc., with its principal place of business at 331 Elizabeth Street, Suite A, Atlanta, GA 30328 ("Vendor") a market data service (the "Service") providing access to current options last sale and quotation information and related information ("OPRA Data") published by OPRA pursuant to a Plan declared effective by the Securities and Exchange Commission. The parties to this Plan (each, an "OPRA Participant") are those national securities exchanges that are from time to time approved by the Securities and Exchange Commission for the trading of securities options. In reviewing and approving this Agreement, Vendor is authorized to act on behalf of OPRA. The person who acts from time to time as data processor on behalf of OPRA is referred to herein as "OPRA's Processor."
By selecting the checkbox where this Agreement is presented to you, you are consenting to enter into this Agreement in electronic form. You have the right to withdraw your consent by terminating this Agreement and your receipt of the OPRA Data. Your right to terminate this Agreement and your receipt of the OPRA Data, and the procedure you must follow to do so, are described in paragraph 6 below. If any information needed to contact you electronically changes, the procedure for notifying Vendor is described in paragraph 11 below. If you wish to have a copy of this Agreement in paper form and you are unable to print a copy on your own computer system, Vendor will provide you with a paper copy at no charge upon its receipt of your request transmitted as described in paragraph 11. You may access a copy of this Agreement electronically at no charge, if your access to OPRA Data is from a device capable of receiving text, by accessing Vendor's Market Data Terms available on its website massive.com.
This Agreement includes an "Addendum for Nonprofessionals." The term "Nonprofessional" is defined in the Addendum. The purpose of the Addendum is to determine whether you are a Nonprofessional under this definition. If you are a Nonprofessional under this definition, OPRA's charges to Vendor for your use of the OPRA Data are subject to a cap, and you may be entitled to pay lower fees to Vendor. You do not need to complete the Addendum, but if you do not do so, or if you cannot agree with all of the statements in the Addendum, OPRA will not consider you to be a Nonprofessional.
You hereby represent and agree as follows:
1. Your full name and address are as provided to Massive upon your initial account setup and as updated from time to time through your account dashboard or by notice to support@massive.com.
2. You shall receive the Service and the OPRA Data included therein solely for your own business or personal use, and you shall not retransmit or otherwise furnish the OPRA Data to any person, other than your own employees on devices that are subject to the control of Vendor. If you are a Nonprofessional and have completed the Addendum for Nonprofessionals, you are only permitted under this Agreement to use the OPRA Data for the investment activities described in the Addendum for Nonprofessionals.
3. You acknowledge that OPRA Data is and shall remain the property of the OPRA Participant on which a reported transaction took place or a reported quotation was entered.
4. DISCLAIMER OF LIABILITY -- NEITHER VENDOR, OPRA, OPRA'S PROCESSOR NOR ANY OPRA PARTICIPANT GUARANTEES THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF ANY OF THE OPRA DATA SUPPLIED TO YOU HEREUNDER AND NEITHER VENDOR, OPRA, OPRA'S PROCESSOR NOR ANY OPRA PARTICIPANT SHALL BE LIABLE IN ANY WAY, TO YOU OR TO ANY OTHER PERSON, FOR ANY LOSS, DAMAGES, COST OR EXPENSE WHICH MAY ARISE FROM ANY FAILURE OF PERFORMANCE BY VENDOR, OPRA, OPRA'S PROCESSOR OR ANY OPRA PARTICIPANT, OR FROM ANY DELAYS, INACCURACIES, ERRORS IN OR OMISSIONS OF, ANY OF THE OPRA DATA OR IN THE TRANSMISSION OR DELIVERY THEREOF, WHETHER OR NOT DUE TO ANY NEGLIGENT ACT OR OMISSION ON THE PART OF VENDOR, OPRA, OPRA'S PROCESSOR OR ANY OPRA PARTICIPANT. IN NO EVENT SHALL VENDOR, OPRA, OPRA'S PROCESSOR OR ANY PARTICIPANT BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, TRADING LOSSES, OR DAMAGES RESULTING FROM INCONVENIENCE OR LOSS OF USE OF THE SERVICE.
5. The terms of this Agreement may be modified at any time upon notice to you. If you do not assent to this Agreement as modified at or prior to the time you next attempt to access the Service, this Agreement shall automatically be terminated. This Agreement as modified shall apply to your use of the Service from and after the date of the modification.
6. Your receipt of the OPRA Data hereunder may be terminated at any time by you or by Vendor upon 30 days notice from the terminating party to the other party, and may be terminated immediately upon a determination by Vendor or OPRA that you are not in compliance with this Agreement.
7. Nothing herein shall be deemed to prevent or restrict OPRA, OPRA's Processor or any OPRA Participant from discontinuing to furnish OPRA Data for dissemination or from making such changes in the speed of transmission, the characteristics of the electrical signals representing the OPRA Data or the manner of disseminating the same, as OPRA shall from time to time determine to be appropriate, with or without notice to you. You shall not hold OPRA, OPRA's Processor, or any OPRA Participant liable for any resulting liability, loss or damage that may arise therefrom.
8. You agree to notify Vendor promptly of any changes in the information provided herein and to furnish Vendor any additional information requested by it in connection with your receipt of the OPRA Data.
9. The parties acknowledge and agree that this Agreement is for the express benefit of OPRA, OPRA's Processor and each OPRA Participant.
10. The provisions of Sections 3, 4, and 9 will survive any termination of this Agreement and will remain in full force and effect.
11. All notices under this Agreement may be provided either in writing or electronically. All written notices to Vendor shall be sent to the Vendor's street address set forth above and all such notices to you shall be sent to the street address that you provide in paragraph 1. All electronic notices to Vendor shall be sent to support@massive.com and all such notices to you shall be provided to you where you access the OPRA Data electronically.
ADDENDUM FOR NONPROFESSIONALS
The purpose of this Addendum is to determine whether you are a "Nonprofessional" for OPRA's purposes. OPRA defines a "Nonprofessional" as a legal person for whom the statements set out in Section 1 of this Addendum are true.
1. You represent and agree that the following statements are and will continue to be true for so long as you receive OPRA Data as a Nonprofessional:
(a) You are either a "natural person" (an individual human being) or a "qualifying trust."[1] You are not a corporation, partnership, limited liability company, or other form of entity (including any form of trust that does not qualify as a qualifying trust).
(b) If you are a natural person, you shall use the OPRA Data solely in connection with your personal investment activities and the personal investment activities of your immediate family members[2] and qualifying trusts of which you are the trustee or custodian. If you are a qualifying trust, you shall use the OPRA Data solely in connection with your personal investment activities. In any case, you shall not use the OPRA Data in connection with any trade, business, professional or other commercial activities.
(c) You are not a "Professional." For a natural person who works in the United States, a "Professional" is a natural person who is: (i) registered or qualified with the Securities and Exchange Commission, the Commodities Futures Trading Commission, any state securities agency, any securities exchange/association, or any commodities/futures contract market/association, (ii) engaged as an "investment adviser," as that term is defined in the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); or (iii) employed by a bank or other organization exempt from registration under Federal and/or state securities laws to perform functions that would require you to be so registered or qualified if you were to perform such functions for an organization not so exempt. For a natural person who works outside of the United States, a "Professional" is a natural person who performs the same functions as someone who would be considered a "Professional" in the United States.
2. You agree to notify Vendor promptly if your circumstances change such that any of the statements in Section 1 of this Addendum would no longer be true for you.
[1]: The term "qualifying trust" means (a) any irrevocable or revocable trust (1) which has only one trustee, who is a natural person and is not receiving any compensation for acting as trustee and (2) of which the only current beneficiaries are any one or more of the trustee and the immediate family members of the trustee, and (b) any custodial account established under a Uniform Transfers to Minors Act or similar state statute (1) which has only one custodian, who is a natural person and is not receiving any compensation for acting as custodian, and (2) of which the beneficiary is a lineal descendant (a child, grandchild, etc.) of the custodian. A "current beneficiary" is a beneficiary to whom the current income or principal of the trust may or must then be distributed, ignoring the possible exercise of any then unexercised power of appointment. The term "immediate family members" is defined in the footnote to paragraph 1(b) of this Addendum.
[2]: The term "immediate family members" means, with reference to a particular natural person, the spouse of that person, that person's lineal ancestors (that is, parents, grandparents, etc.) and lineal descendants (that is, children, grandchildren, etc.), and the spouses (including surviving spouses) of that person's lineal ancestors and lineal descendants. The term includes step and adoptive relationships.
SCHEDULE 2
NYSE MARKET DATA AGREEMENT
AGREEMENT FOR MARKET DATA DISPLAY SERVICES
(Nonprofessional Subscriber Status)
Massive.com, Inc. ("Massive") agrees to make certain data (referred to in this agreement as "Market Data") available to you pursuant to the terms and conditions set forth in this agreement. By agreeing to the Terms and the Market Data Terms, you agree to comply with the terms and conditions of this agreement. References to "Subscriber" or "you" in this agreement means you under the Terms, and references to "this agreement" means the agreement between you and Massive constituted by these terms.
1. Market Data Definition – For all purposes of this agreement, "Market Data" means (a) last sale information and quotation information relating to securities that are admitted to dealings on the New York Stock Exchange ("NYSE"), (b) such bond and other equity last sale and quotation information, and such index and other market information, as United States-registered national securities exchanges and national securities associations (each, an "Authorizing SRO") may make available and as the NYSE may from time to time designate as "Market Data"; and (c) all information that derives from any such information.
2. Proprietary Nature of Data – Subscriber understands and acknowledges that each Authorizing SRO and Other Data Disseminator has a proprietary interest in the Market Data that originates on or derives from it or its market(s).
3. Enforcement – Subscriber understands and acknowledges that (a) the Authorizing SROs are third-party beneficiaries under this Agreement and (b) the Authorizing SROs or their authorized representative(s) may enforce this Agreement, by legal proceedings or otherwise, against Subscriber or any person that obtains Market Data that is made available pursuant to this Agreement other than as this Agreement contemplates. Subscriber shall pay the reasonable attorney's fees that any Authorizing SRO incurs in enforcing this Agreement against Subscriber.
4. Data Not Guaranteed – Subscriber understands that no Authorizing SRO, no other entity whose information is made available over the Authorizing SROs' facilities (an "Other Data Disseminator") and no information processor that assists any Authorizing SRO or Other Data Disseminator in making Market Data available (collectively, the "Disseminating Parties") guarantees the timeliness, sequence, accuracy or completeness of Market Data or of other market information or messages disseminated by any Disseminating Party. Neither Subscriber nor any other person shall hold any Disseminating Party liable in any way for (a) any inaccuracy, error or delay in, or omission of, (i) any such data, information or message or (ii) the transmission or delivery of any such data, information or message, or (b) any loss or damage arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) non- performance or (iii) interruption in any such data, information or message, due either to any negligent act or omission by any Disseminating Party, to any "force majeure" (e.g., flood, extraordinary weather conditions, earthquake or other act of God, fire, war, insurrection, riot, labor dispute, accident, action of government, communications or power failure, equipment or software malfunction) or to any other cause beyond the reasonable control of any Disseminating Party.
5. Permitted Use – Subscriber shall not furnish Market Data to any other person or entity. If Subscriber is a Nonprofessional Subscriber, he or she shall receive Market Data solely for his or her personal, non-business use. If Subscriber receives Market Data other than as a Nonprofessional Subscriber, it shall use Market Data only for its individual use in its business.
6. Dissemination Discontinuance or Modification – Subscriber understands and acknowledges that, at any time, the Authorizing SROs may discontinue disseminating any category of Market Data, may change or eliminate any transmission method and may change transmission speeds or other signal characteristics. The Authorizing SROs shall not be liable for any resulting liability, loss or damages that may arise therefrom.
7. Duration; Survival – This Agreement remains in effect for so long as Subscriber has the ability to receive Market Data as contemplated by this Agreement. In addition, Massive may terminate this Agreement at any time, whether at the direction of the Authorizing SROs or otherwise. Paragraphs 2, 3, and 4, and the first two sentences of Paragraph 8, survive any termination of this Agreement.
8. Miscellaneous – The laws of the State of New York shall govern this Agreement and it shall be interpreted in accordance with those laws. This Agreement is subject to the Securities Exchange Act of 1934, the rules promulgated under that act, and the joint-industry plans entered into pursuant to that act. This writing contains the entire agreement between the parties in respect of its subject matter. Subscriber may not assign all or any part of this Agreement to any other person. The person executing this Agreement below represents and warrants that he or she has legal capacity to contract and, if that person is executing this Agreement on behalf of a proprietorship or a business, partnership or other organization, represents and warrants that he or she has actual authority to bind the organization.
By agreeing to this agreement, you acknowledge that you have read the preceding terms and conditions of this agreement, that you understand them and that you manifest your assent to, and your agreement to comply with, those terms and conditions by agreeing to this agreement.
9. Nonprofessional Subscriber definition – "Nonprofessional Subscriber" means any natural person who receives market data solely for his/her personal, non-business use and who is not a "Securities Professional." A "Securities Professional" includes an individual who, if working in the United States, is:
(a) registered or qualified with the Securities and Exchange Commission (the "SEC"), the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association, or any commodities or futures contract market or association.
(b) engaged as an "investment advisor" as that term is defined in Section 202 (a) (11) of the Investment Advisor's Act of 1940 (whether or not registered or qualified under that Act), or
(c) employed by a bank or other organization exempt from registration under Federal and/or state securities laws to perform functions that would require him or her to be so registered or qualified if he or she were to perform such functions for an organization not so exempt. A person who works outside of the United States will be considered a "Securities Professional" if he or she performs the same functions as someone who would be considered a "Securities Professional" in the United States. Subscriber may not receive Market Data as a "Nonprofessional Subscriber" unless they fall within Paragraph 9's definition of "Nonprofessional Subscriber."
10. Permitted Receipt – Subscriber may not receive Market Data from Massive, and Massive may not provide Market Data to Subscriber, on a "Nonprofessional Subscriber" basis unless Massive first properly determines that Subscriber qualifies as a "Nonprofessional Subscriber" as defined in Paragraph 9 and Subscriber in fact qualifies as a "Nonprofessional Subscriber."
11. Permitted Use – If Subscriber is a Nonprofessional Subscriber, he or she shall receive Market Data solely for his or her personal, non-business use.
12. About you – In connection with your account, you have provided to Massive the following information, and you represent and warrant that such information continues to be true, complete, and accurate in all respects:
(a) Your name
(b) Your address
(c) Your employer
(d) Your occupation and job description
In connection with your account, you have confirmed to Massive that you are not a Securities Professional, and in particular, you confirm and warrant as follows:
(a) You use Market Data solely for your personal, non-business use
(b) You do not receive Market Data for your business or any other entity
(c) You are not currently registered or qualified with the SEC or the CFTC
(d) You are not currently registered or qualified with any securities agency, any securities exchange, association or regulatory body, or any commodities or futures contract market, association or regulatory body, in the United States or elsewhere
(e) Whether you are located within or outside the United States, you do not perform any functions that are similar to those that require an individual to register or qualify with the SEC, the CFTC, any other securities agency or regulatory body, any securities exchange or association, or any commodities or futures contract market, association or regulatory body
(f) You are not engaged to provide investment advice to any individual or entity
(g) You are not engaged as an asset manager
(h) You do not use the capital of any other individual or entity in the conduct of your trading
(i) You do not conduct trading for the benefit of a corporation, partnership, or other entity
(j) You have not entered into any agreement to share the profit of your trading or receive compensation for your trading activities
(k) You are not receiving office space, and equipment or other benefits in exchange for your trading or work as a financial consultant to any person, firm, or business entity.
(l) You will notify and update Massive promptly in writing of any change in your circumstances that may cause you to cease to qualify as a Nonprofessional Subscriber or that may change your responses to any of the following statements or may cause any of them to be untrue in respect of you.
13. Certification – By executing this agreement, Subscriber hereby certifies that he or she falls within Paragraph 9's definition of "Nonprofessional Subscriber" and that the personal and employment information that he or she has provided to Massive in connection with their Account and confirmed in Paragraph 12 is truthful and accurate
SCHEDULE 3
UTP PLAN SUBSCRIBER AGREEMENT
The Nasdaq Stock Market LLC ("Nasdaq"), as Administrator of the UTP Plan ("UTP Plan Administrator"), requires all Subscribers to the information described herein ("Information") to sign the UTP Plan Subscriber Agreement ("Agreement"), or its equivalent, in order to receive the Information. By completing the below section, the Subscriber agrees to the terms and conditions set forth in this UTP Plan Subscriber Agreement.
SUBSCRIBER INSTRUCTIONS: Please sign and complete one of the two signature blocks below:
☐ SUBSCRIBER FIRM with Professional Subscribers
Subscriber Firm Name: __________________________
(Print Name of Subscriber Firm)
By: _________________________________________
(Signature)
Name of Signatory: _____________________________
(Print Name of Person Signing)
Title: ________________________________________
Authorized Officer at Subscriber Firm
Date: ______________________, 20_______
INDIVIDUAL SUBSCRIBER
☐ PROFESSIONAL Subscriber or
☐ NON-PROFESSIONAL Subscriber
(Only select if you qualify per the definition in Section 16).
Subscriber Address: _______________________
Subscriber Occupation: ____________________
By: _________________________________________
(Individual Subscriber Signature)
Name of Signatory: _____________________________
(Print Name of Person Signing)
Date: ______________________, 20_______
VENDOR INSTRUCTIONS: Please sign and complete the signature block below:
VENDOR USE ONLY (for Vendor/Data Provider Use Only)
Vendor: __________________________________________________
(Print Name of Vendor Firm)
By: ______________________________________________________
(Signature)
Name of Signatory: _________________________________________
(Print Name of the Person Signing on Behalf of the Vendor)
Title: ___________________________________
Authorized Officer
Date: ______________________, 20_______
TERMS AND CONDITIONS
The Vendor and its agents may not modify or waive any term of this Agreement. Any attempt to modify this Agreement, except by Nasdaq, is void.
1. USE OF DATA. Subscriber may not sell, lease, furnish or otherwise permit or provide access to the Information to any other Person or to any other office or place. Subscriber will not engage in the operation of any illegal business use or permit anyone else to use the Information, or any part thereof, for any illegal purpose or violate any Nasdaq or Securities and Exchange Commission ("SEC") Rule or other applicable law, rule or regulation. Subscriber may not present the Information rendered in any unfair, misleading or discriminatory format. Subscriber shall take reasonable security precautions to prevent unauthorized Persons from gaining access to the Information.
a. NON-PROFESSIONAL SUBSCRIBER — For Non-Professional Subscribers, the Information is licensed only for personal use. By representing to Vendor that Subscriber is a Non-Professional Subscriber, or by continuing to receive the Information at a Non-Professional Subscriber rate, Subscriber is affirming to Vendor and to Nasdaq that Subscriber meets the definition of Non-Professional Subscriber as set forth in Section 16 of this Agreement. A Non-Professional Subscriber shall comply promptly with any reasonable request from Nasdaq for information regarding the Non-Professional Subscriber's receipt, processing, display and redistribution of the Information.
b. PROFESSIONAL SUBSCRIBER — For Professional Subscribers, the Information is licensed for the internal business use and/or personal use of the Professional Subscriber. Professional Subscribers may, on a non-continuous basis, furnish limited amounts of the Information to customers in written advertisements, correspondence or other literature or during voice telephonic conversations not entailing computerized voice, automated information inquiry systems or similar technologies. Upon request, Professional Subscribers shall make its premises available to Nasdaq for physical inspection of Vendor's Service and of Professional Subscriber's use of the Information (including review of any records regarding use of or access to the Information and the number and locations of all devices that receive Information), all at reasonable times, upon reasonable notice, to ensure compliance with this Agreement.
2. PROPRIETARY DATA. Nasdaq grants to Subscriber a nonexclusive, non-transferable license during the term of the Agreement to receive and use the Information transmitted to it by Vendor and thereafter to use such Information as permitted under the terms of this Agreement and/or the UTP Plan Requirements. Subscriber acknowledges and agrees that Nasdaq has proprietary rights to the Information that originates on or derives from markets regulated or operated by Nasdaq, and compilation or other rights to Information gathered from other sources. Subscriber further acknowledges and agrees that Nasdaq's third-party information providers have exclusive proprietary rights to their respective Information. In the event of any misappropriation or misuse by Subscriber or anyone who accesses the Information through Subscriber, Nasdaq or its third-party information providers shall have the right to obtain injunctive relief for its respective materials. Subscriber will attribute source as appropriate under all the circumstances.
3. PAYMENT. Subscriber shall assume full and complete responsibility for the payment of any taxes, charges or assessments imposed on Subscriber or Nasdaq (except for federal, state or local income taxes, if any, imposed on Nasdaq) by any foreign or domestic national, state, provincial or local governmental bodies, or subdivisions thereof, and any penalties or interest relating to the provision of the Information to Subscriber. Interest shall be due from the date of the invoice to the time that the amount(s) that are due have been paid. To the extent permitted by applicable law, Subscriber acknowledges and agrees that the termination of the Vendor's Service for failure to make payments shall not be considered an improper limitation of access by Nasdaq. For Professional Subscribers, if any payment is due directly to Nasdaq under this Agreement, payment in full is due Nasdaq in immediately available funds, in US Dollars by a check to Nasdaq, by electronic funds transfer to an institution of Nasdaq's choosing, within fifteen (15) days of the date of an invoice, whether or not use is made of, or access is made to, the Information.
4. SYSTEM. Subscriber acknowledges that Nasdaq, in its sole discretion, may from time-to-time make modifications to its system or the Information. Such modifications may require corresponding changes to be made in Vendor's Service. Changes or the failure to make timely changes by Vendor or Subscriber may sever or affect Subscriber's access to or use of the Information. Nasdaq shall not be responsible for such effects. Nasdaq does not endorse or approve any equipment, Vendor or Vendor's Service.
5. EXCLUSIVE REMEDY. Nasdaq shall endeavor to offer the Information as promptly and accurately as is reasonably practicable. In the event that the Information is not available as a result of failure by Nasdaq to perform its obligations under this Agreement, Nasdaq will endeavor to correct any such failure. If the Information is not available, is delayed, is interrupted, is incomplete, is not accurate or is otherwise materially affected for a continuous period of four (4) hours or more during the time that Nasdaq regularly transmits the Information due to the fault of Nasdaq (except for a reason permitted in this Agreement or in Nasdaq's agreement with the Vendor), Subscriber's or any other Person's exclusive remedy against Nasdaq shall be:
a. If Subscriber or any other Person continues to receive the Information or any other data and/or information offered by Nasdaq, a prorated month's credit of any monies due for the affected Information directly to Nasdaq from Subscriber or, if applicable, from said other Person, for the period at issue; or
b. If Subscriber or any other Person no longer receives either the Information or any other data and/or information offered by Nasdaq, a prorated month's refund of any monies due for the affected Information directly to Nasdaq from Subscriber or, if applicable, from said other Person, for the period at issue. Such credit or refund shall, if applicable, be requested in writing to Nasdaq with all pertinent details. Beyond the warranties stated in this section, there are no other warranties of any kind — express, implied, statutory (including without limitation, timeliness, truthfulness, sequence, completeness, accuracy, freedom from interruption), implied warranties arising from trade usage, course of dealing, course of performance or the implied warranties of merchantability or fitness for a particular use or purpose.
6. LIMITATION OF LIABILITY.
a. Except as may otherwise be set forth herein, Nasdaq shall not be liable to Subscriber, its Vendor or any other Person for indirect, special, punitive, consequential or incidental loss or damage (including, but not limited to, trading losses, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation, cost of cover or other indirect loss or damage) of any nature arising from any cause whatsoever, even if Nasdaq has been advised of the possibility of such damages.
b. Nasdaq shall not be liable to Subscriber or any other Person for any unavailability, interruption, delay, incompleteness or inaccuracy of the Information that lasts less than four (4) continuous hours during the time that Nasdaq regularly transmits the Information or if the Information is materially affected for less than four (4) continuous hours during the time that Nasdaq regularly transmits the Information.
c. If Nasdaq is, for any reason, held liable to Subscriber or to any other Person, whether in tort or in contract, the liability of Nasdaq within a single year of the Agreement (one year from the effective data of the Agreement) is limited to an amount of Subscriber's damages that are actually incurred by Subscriber in reasonable reliance (combined with the total of all claims or losses of Subscriber's Vendor and any other Person claiming through, on behalf of or as harmed by Subscriber) and which amount does not exceed the lesser of:
i. For Subscriber or any other person that continues to receive the Information or any other data and/or Information offered by Nasdaq, a prorated month's credit of any monies due directly to Nasdaq from Subscriber or, if applicable, from any other Person, for the Information at issue during the period at issue, or if Subscriber or any other Person no longer receives either the Information or any other data and/or information offered by Nasdaq, a refund of any monies due directly to Nasdaq from Subscriber or, if applicable, from any other Person, for the Information at issue during the period at issue; or
ii. $500.
d. This section shall not relieve Nasdaq, Subscriber or any other Person from liability for damages that result from their own gross negligence or willful tortious misconduct or from personal injury or wrongful death claims.
e. Subscriber and Nasdaq understand and agree that the terms of this section reflect a reasonable allocation of risk and limitation of liability.
7. DISCLAIMERS OF WARRANTIES. Nasdaq and its third-party information providers make no warranties of any kind — express, implied or statutory (including without limitation, timeliness, truthfulness, sequence, completeness, accuracy, freedom from interruption), any implied warranties arising from trade usage, course of dealing, course of performance or the implied warranties of merchantability or fitness for a particular use or purpose or noninfringement.
8. THIRD-PARTY INFORMATION PROVIDERS' LIMITATION OF LIABILITY. Nasdaq's third-party information providers shall have no liability for any damages for the accuracy of or for delays or omissions in any of the Information provided by them, whether direct or indirect, lost profits, special or consequential damages of the Subscriber or any other Person seeking relief through Subscriber, even if the third-party information providers have been advised of the possibility of such damages. In no event will the liability of the third-party information providers or their affiliates to Subscriber or any other Person seeking relief through Subscriber pursuant to any cause of action, whether in contract, tort or otherwise, exceed the fee paid by Subscriber or any other Person seeking relief through Subscriber, as applicable.
9. CLAIMS AND LOSSES. Subscriber will indemnify Nasdaq and hold Nasdaq and its employees, officers, directors and other agents harmless from any and all Claims or Losses imposed on, incurred by or asserted as a result of or relating to: (a) any noncompliance by Subscriber with the terms and conditions hereof; (b) any third-party actions related to Subscriber's receipt and use of the Information, whether authorized or unauthorized under the Agreement. Each party warrants and represents and will indemnify and hold harmless (and in every case, Nasdaq shall be permitted to solely defend and settle) another party (including Nasdaq) and their officers, directors, employees and other agents, against any Claims or Losses arising from, involving or relating to a claim of infringement or other violation of an intellectual property right by the indemnifying party, its actions or omissions, equipment or other property. This right is conditioned on the indemnified party giving prompt written notice to the indemnifying party (as does not prejudice the defense) of the Claims or Losses and providing cooperation in the defense of the Claims or Losses (without waiver of attorney-client, work-product or other legal privilege, or disclosure of information legally required to be kept confidential).
10. PERSONAL DATA. Subscriber acknowledges that Nasdaq, in the course of providing services to Subscriber, may process Personal Data (as defined in the The Nasdaq Stock Market LLC Vendor Agreement for UTP Plan Services ("Vendor Agreement")) in the performance of services or in support of its rights (including, but not limited to, its audit and usage review rights) under the Vendor Agreement. Subscriber shall provide to Vendor or its designee such Personal Data (including, but not limited to, information regarding Subscriber or, for Subscribers that are firms, information regarding individual users of the Information) as reasonably requested by Nasdaq to make Information available to Subscriber, perform Nasdaq's services under the Vendor Agreement, and/or enforce Nasdaq's rights (including, but not limited to, its audit and usage review rights) under the Vendor Agreement, and Vendor shall provide such information to Nasdaq or its designee. Provisions for the processing of such data are set forth in the Vendor Agreement. With respect to individuals whose Personal Data is processed by Nasdaq and/or its service providers, the current publicly-posted Privacy Policy identified on the UTP Plan website located at www.utpplan.com, or its successor website, shall apply to such processing. To the extent that the Subscriber is a legal entity established in the European Economic Area ("EEA"), transfers of Personal Data to a Vendor (or its designee) outside of the EEA in connection with this Agreement shall be governed by the Data Processing Addendum of the Vendor Agreement, which is incorporated herein by reference mutatis mutandis, with the personal data exporter being the Subscriber and the personal data importer being the Vendor. Transfers of personal data from Vendor to Nasdaq shall be governed by the relevant provisions of the Vendor Agreement.
11. TERMINATION. Subscriber acknowledges that Nasdaq, when required to do so in fulfillment of statutory obligations, may by notice to Vendor unilaterally limit or terminate the right of any or all Persons to receive or use the Information and that Vendor will immediately comply with any such notice and will terminate or limit the furnishing of the Information and confirm such compliance by notice to Nasdaq. Any affected Person will have available to it such procedural protections as are provided by the Act and applicable rules thereunder. In addition to terminations permitted under the Vendor's agreement, this Agreement may be terminated by Subscriber with thirty (30) days written notice to Vendor and by Nasdaq with thirty (30) days written notice either to Vendor or Subscriber. Nasdaq may also alter any term of this Agreement with ninety (90) days written notice either to Vendor or Subscriber, and any use after such date is deemed acceptance of the new terms. In the event of Subscriber breach, discovery of the untruth of any representation of Subscriber, or where directed by the SEC in its regulatory authority, Nasdaq may terminate this Agreement with not less than three (3) days written notice to Subscriber provided either by Nasdaq or Vendor.
12. AMENDMENTS/AGREEMENT. Except as otherwise provided herein, no provision of this Agreement may be amended, modified or waived. No failure on the part of Nasdaq or Subscriber 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 the exercise of any other right, power or privilege under this Agreement. If any of the provisions of this Agreement or application thereof to any individual, entity or circumstance is held invalid or unenforceable, the remainder of this Agreement, or the application of such terms or provisions to individuals, entities 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. In the event of any conflict between the terms of this Agreement and of the Vendor's agreement, the terms of this Agreement shall prevail as between Nasdaq and Subscriber.
13. REQUIREMENTS OF SELF-REGULATORY ORGANIZATION; ACTIONS TO BE TAKEN IN FULFILLMENT OF STATUTORY OBLIGATIONS.
(a) Subscriber acknowledges that in the United States: (i) Nasdaq is registered with the SEC as national securities exchanges pursuant to Section 6 of the Act, and FINRA is registered with the SEC as a national securities association pursuant to 15A of the Act; (ii) FINRA and Nasdaq have a statutory obligation to protect investors and the public interest, and to ensure that quotation information supplied to investors and the public is fair and informative, and not discriminatory, fictitious or misleading; (iii) Section 19(g)(1) of the Act mandates that FINRA and Nasdaq comply with the UTP Plan Requirements; (iv) Nasdaq has jurisdiction to enforce compliance with certain of the UTP Plan Requirements; (v) FINRA has jurisdiction to enforce compliance with certain of the UTP Plan Requirements; and (vi) Nasdaq is obligated to offer terms that are not unreasonably discriminatory between Subscribers, subject to applicable UTP Plan Requirements. Accordingly, Subscriber agrees that Nasdaq, when required to do so in fulfillment of its statutory obligations, may, temporarily or permanently, unilaterally condition, modify or terminate the right of any or all individuals or entities to receive or use the Information. Nasdaq shall undertake reasonable efforts to notify Subscriber of any such condition, modification or termination, and Subscriber shall promptly comply with any such notice within such period of time as may be determined in good faith by Nasdaq to be necessary, consistent with its statutory obligations. Any Person that receives such a notice shall have available to it such procedural protections as are provided to it by the Act and the applicable rules thereunder.
(b) If Subscriber is a member of a Nasdaq market, then Subscriber expressly acknowledges and agrees that (i) this Agreement does not limit or reduce in any way Subscriber's obligations and responsibilities as a member of any applicable Nasdaq market; (ii) this Agreement does not in any way alter the procedures or standards generally applicable to disciplinary or other actions taken by Nasdaq to enforce compliance with, or impose sanctions for violations of, the UTP Plan Requirements; and (iii) the nonpayment of amounts due under this Agreement could result in the suspension or cancellation of Subscriber's membership in a Nasdaq market in accordance with the UTP Plan Requirements.
14. GOVERNING LAWS; CONSTRUCTION. This Agreement 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. Any dispute that cannot be amicably settled that arises out of this Agreement shall be referred to arbitration and shall be conducted in accordance with the rules of the American Arbitration Association. All such proceedings shall be held in New York City, NY, and shall be conducted in the English language, which shall also be the language of the documents.
15. NOTICES; NOTIFICATION OF CHANGES. All notices and other communications (except for invoices) required to be given in writing under this Agreement shall be directed to the signatories or, in the alternative, to the individuals identified in subsections (a) and (b) below. Notices shall be deemed to have been duly given: (i) upon actual receipt (or date of first refusal) by the parties, or (ii) upon constructive receipt (or date of first refusal) if sent by certified mail, return receipt requested, or any other delivery method that actually obtains a signed delivery receipt, to the following addresses or to such other address as any party hereto shall hereafter specify by prior written notice to the other party or parties below, or (iii) upon posting the notice or other communication on the www.utpplan.com website or a successor site. If an email address is provided, Nasdaq may, in lieu of the above, give notice to or communicate with Subscriber by email addressed to the persons identified in subsection (a) or to such other email address or persons as Subscriber shall hereafter specify by prior written notice. By providing an email address, Subscriber agrees that any receipt received by Nasdaq from Subscriber's service provider or internet computer server indicating that the email was received shall be deemed proof that Subscriber received the message. If Subscriber cannot see or printout all or any portion of the message, Subscriber agrees that it is Subscriber's responsibility to contact Nasdaq at (301) 978–8080.
(a) If to Subscriber:
Name:
Title:
Address:
Telephone #:
Fax #:
Email:
With, in the event of notices of dispute or default,
a required copy to:
(b) If to UTP Plan Administrator:
UTP Plan Administrator
805 King Farm Boulevard
Rockville, MD 20850
Phone: +1 301 978 8080
admin@utpplan.com
With, in the event of notices of default or dispute,
a required copy to:
The Nasdaq Stock Market, LLC
Office of General Counsel
805 King Farm Boulevard
Rockville, MD 20850
16. DEFINITIONS.
Act shall mean the Securities Exchange Act of 1934.
Affiliate shall mean any individual, corporation, company, partnership, limited partnership, limited liability company, trust, association or other entity that, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with such party.
Claims or Losses — Any and all liabilities, obligations, losses, damages, penalties, claims, actions, suits, costs, judgments, settlements and expenses of whatever nature, whether incurred by or issued against an indemnified party or a third party, including, without limitation, (a) indirect, special, punitive, consequential or incidental loss or damage, (including, but not limited to, trading losses, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation or other indirect loss or damage), and (b) administrative costs, investigatory costs, litigation costs and auditors' and attorneys' fees and disbursements (including in-house personnel).
Information shall mean certain market data and other data disseminated that has been collected, validated, processed, and recorded by the System or other sources made available for transmission to and receipt from either a Vendor or from Nasdaq relating to: a) eligible securities or other financial instruments, markets, products, vehicles, indicators, or devices; b) activities of a Nasdaq Company; c) other information and data from a Nasdaq Company. Information also includes any element of Information as used or processed in such a way that the Information can be identified, recalculated or re-engineered from the processed Information or that the processed Information can be used as a substitute for Information.
Nasdaq shall collectively mean The Nasdaq Stock Market LLC, a Delaware limited liability company and its subsidiaries and Affiliates (collectively "Nasdaq").
UTP Plan Requirements — All (i) rules, regulations, interpretations, decisions, opinions, orders and other requirements of the SEC; (ii) the rules and regulations, disciplinary decision and rule interpretations applicable to UTP (iii) the decisions, policies, interpretations, operating procedures, specifications, requirements, and other documentation by Nasdaq, as Administrator of the UTP Plan, that is regulatory or technical in nature (including, but not limited to, user guides) published on the UTP Plan website located at www.utpplan.com or another website accessible by and made known to Vendor; and (iv) all other applicable laws, statutes, rules, regulations, orders, decisions, interpretations, opinions, and other requirements, whether promulgated by the United States or any other applicable jurisdiction (including in the area of intellectual property); and (v) the successors, as they may exist at the time, of the components of the UTP Plan Requirements.
Or — Includes the word "and."
Person — Any natural person, proprietorship, corporation, partnership or other entity whatsoever.
Subscriber — When it appears alone, the word "Subscriber" encompasses all Non-Professional and Professional Subscribers. All Subscribers are deemed Professional unless they are qualified as Non-Professional.
• Non-Professional Subscriber — Any natural person who is NOT: a) registered or qualified in any capacity with the SEC, the Commodities Futures Trading Commission, any state securities agency, any securities exchange or association or any commodities or futures contract market or association; b) engaged as an "investment adviser" as that term is defined in Section 202(a)(11) of the Investment Advisers Act of 1940 (whether or not registered or qualified under that Act); or c) employed by a bank or other organization exempt from registration under federal or state securities laws to perform functions that would require registration or qualification if such functions were performed for an organization not so exempt.
• Professional Subscriber — All other persons who do not meet the definition of Non-Professional Subscriber.
System shall mean any system Nasdaq has developed for the creation and/or dissemination of Information.
Vendor shall mean Vendor and its Affiliates as identified in writing to Nasdaq.
Vendor's Service — The service from a Vendor, including the data processing equipment, software and communications facilities related thereto, for receiving, processing, transmitting, using and disseminating the Information to or by Subscriber.