This Subscription Agreement (“Agreement”) is agreed to by FINTRX, Inc. (“FINTRX”), and the entity executing the FINTRX Order form (“Subscriber”).
1.1. Services Identified in Order Form
FINTRX will make available, and Subscriber may access and use, FINTRX services (the “Services”) identified in one or more FINTRX order forms (each, an “Order”) executed by FINTRX and Subscriber. Each Order is incorporated into this Agreement by reference. If the terms of an Order conflict with the terms of this Agreement, the terms in the Order will control.
1.2. Platform & Applications
The Services will be made available by FINTRX at its web based platform located at http://platform.fintrx.com (the “platform”). Except for providing access to the platform and the data (“Content”) within, FINTRX provides no other services pursuant to this Agreement.
FINTRX may modify the Services, platform, Applications, or Content at any time, provided that no such modifications materially degrade the Services.
1.4. Effective Date
This Agreement is effective as of the date identified in the Order (“Effective Date”). If the Order does not contain an effective date, the Effective Date is the date Subscriber signed the Order.
2.1. Requirements for Use
2.2. Quantity of Authorized Users
The Order identifies the number of Authorized Users who may be granted access under this Agreement. Upon payment of the fees specified in the Order, Subscriber may, during the term specified in an Order, increase the quantity of Authorized Users.
2.3. Subscriber Is Responsible for Authorized Users
Subscriber is responsible for all use of the platform by anyone accessing the platform or Services using a username or password issued to its Authorized Users. Subscriber must promptly notify FINTRX in writing at firstname.lastname@example.org if Subscriber becomes aware of any unauthorized access or use of the Services.
2.4. Usage Limitation
FINTRX may limit usage on an individual user basis. Subscriber acknowledges that while FINTRX's primary intent with such usage restrictions is to maintain the technical security of its platform and to limit scraping, extraordinary but legitimate usage may also be prevented by such usage restrictions. If Subscriber’s extraordinary but legitimate usage is limited by such restrictions, FINTRX will attempt to find a mutually acceptable solution for the usage restrictions.
3. Allowed Usage
3.1. Use for Internal Business Operations
The Services and Content may only be used for the purposes of Subscriber’s internal business operations. An Authorized User may view, download, and manipulate the Content for Subscriber’s internal business operations as defined in the Order.
3.2. Use of Content in Presentations and Reports
Authorized Users may incorporate data from the Content into presentations and reports (Subscriber’s “Work Product”) so long as (A) the quantity of data incorporated from the Content into the Work Product has no independent commercial value and is not separately marketable by FINTRX; (B) the Work Product is not issued on behalf of a third party; (C) the Work Product is not published to more than 500 individuals without the prior written consent of FINTRX, which consent will not be unreasonably withheld; and (D) the incorporated Content contains the following source attribution: Source: FINTRX, Inc. FINTRX retains sole ownership over any Content incorporated into the Work Product.
3.3. Printing & Downloading
An Authorized User may print or download and store the amount of Content authorized in the Order only. However, Subscriber may not use such printing and downloading to compile more than an insubstantial portion of the FINTRX database.
4. Prohibited Usage
4.1. No Uses Competitive with FINTRX
Subscriber agrees not to use the Content in furtherance of a Competitive Product. A “Competitive Product” is a product or service that provides customers with data that is substantially similar to data marketed and licensed by FINTRX as of the Effective Date. The Content may not be used for any competitive analysis of how FINTRX's products and services compare to a Competitive Product being offered or developed by Subscriber.
4.2. Limitation on Distribution
Except as explicitly allowed under Section 3 or the terms of an Order, Subscriber may not transfer, sell, rent, distribute, display, or otherwise disclose any portion of the Services, platform, Content, or Applications to anyone.
4.3. No Technological Attacks or Scraping
Subscriber may not use or attempt to use any deep-link, scraper, robot, bot, spider, data mining, computer code or any other device, program, tool, algorithm, process or methodology to systematically access, acquire, copy, or monitor any portion of the Content or platform. Additionally, Subscriber may not modify, decompile, decrypt, disassemble or reverse engineer any portion of the Services, platform, or Applications. Further, Subscriber will not use the Content in conjunction with any machine learning, neural network, deep learning, predictive analytics or other artificial intelligence computer or software program. If Subscriber collects data from the platform in violation of this Section 4.3, Subscriber agrees to promptly, upon receipt of invoice, delete such data and pay 150% of the then-current direct data pricing for such data.
4.4. Unauthorized Access
Subscriber may not—through hacking, password mining, or any other means—violate the security of the platform or any Application or attempt to gain unauthorized access to the platform, Content, or FINTRX's computer systems. Authorized Users may not share their password or other login credentials to the platform.
4.5. No Violations of Third-Party Intellectual Property
Subscriber may not use the platform, Services, or any Content in a manner that infringes or violates the intellectual property or proprietary rights of FINTRX or any third party, including, without limitation, the rights of privacy and publicity.
4.6. No Use in Third-Party Databases
Subscriber may not input any Content into any other third-party databases, unless outlined on the Order.
4.7. No Use in Violation of Laws
Subscriber may not use the platform or Content in any manner that is unlawful or that harms FINTRX. Additionally, Subscriber may not use the platform or Content in any way that is fraudulent, false, or deceptive.
4.8. No Use for Credit or Employment Eligibility
Subscriber may not use the Content as a factor in establishing an individual’s eligibility for employment, or for credit or insurance to be used primarily for personal, family, or household purposes.
4.9. FINTRX Intellectual Property Marks
Subscriber must not remove or obscure the copyright, trademark, service mark, or other notices contained in the platform, Services, Applications, or Content, regardless of whether such notices relate to rights possessed by FINTRX, Inc. Subscriber may not use the trademarks, service marks, logos, or other proprietary identifiers of FINTRX, Inc. or its affiliates.
4.10. Professional Conduct
Subscriber must treat FINTRX employees with a reasonable level of cordiality and professionalism.
5. Payment Terms
Subscriber will pay all fees listed in the relevant Order (“Fees”). The Fees only apply with respect to the term provided in the Order. At renewal of this agreement, the Subscriber will pay the then current subscription price for the required Services, or such price as is mutually agreed. In the absence of an agreement or revision to the price based on a change to the Service, the subscription price at renewal will be the previous term's price plus a 7% price increase.
5.2. Timing of Payment
Subscriber will pay all Fees contained on an Order within 15 days following the Effective Date. If the Agreement is automatically renewed, Subscriber will pay all Fees for renewal terms on each anniversary of the Effective Date during the Term. If such payment is not timely made, FINTRX may suspend Subscriber’s access to the platform, Applications and Services. Unpaid Fee balances will accrue interest at the rate of 1.5% per month.
Subscriber is solely responsible for all applicable sales, use, and other taxes or similar charges or duties incurred in connection with this Agreement (collectively, “Taxes”). Subscriber will promptly reimburse FINTRX if FINTRX is required to pay any Taxes for which Subscriber is legally responsible. Despite the previous two sentences, FINTRX remains solely liable for any taxes assessed on its net income.
6. Reservation of Rights
Except as detailed below in this Section 6, all rights—including all copyrights and other intellectual property rights—in the Services, platform, Content, and Applications, belong to FINTRX. Unless expressly provided otherwise, nothing in this Agreement is to be construed to grant Subscriber any license or right to the platform, Services, Applications, or Content.
6.1. Derivations of Content
FINTRX does not claim an ownership interest in derivations of Content that an Authorized User creates through authorized use of the Services if such derived work is sufficiently transformed so that any Content on which it is based or that forms one or more inputs into it cannot be readily understood, reverse engineered, disassembled or decompiled by someone reasonably knowledgeable of financial services or reasonably skilled in financial services software applications.
6.2. Subscriber Data
FINTRX does not claim an ownership interest in any data or content not originally sourced from FINTRX, its affiliates, or any of their suppliers, that is separately uploaded by Subscriber or its Authorized Users onto the platform (“Subscriber Data”).
7. Notes and Files Functionality
If activated, the platform’s Notes and Files functionality provides individual Authorized Users with the ability to upload Subscriber Data for use by Subscriber’s Authorized Users. FINTRX has no control over the content of any Subscriber Data and accepts no responsibility for its accuracy, completeness, or timeliness. Subscriber grants FINTRX a limited license to display the information to Subscriber’s Authorized Users. Additionally, Subscriber remains solely responsible for any use it makes of the Subscriber Data, and for ensuring that the Subscriber Data complies with all applicable laws and regulations and does not violate the rights of any third party.
8.1. Renewal Terms of this Agreement
This Agreement will commence on the Effective Date. At the conclusion of the term provided in an Order, the most recently executed Order will automatically renew for successive renewal terms of one year unless either party provides the other with written notice of non-renewal at least 60 days prior to the expiration of the then-current term. The term provided in the initial Order and any renewal terms are collectively referred to in this Agreement as the “Term”.
8.2. Term of Each Order
Unless it is terminated, each Order will remain in effect until the expiration of the subscription term provided in that Order.
9.1. Termination for Breach
Either party may terminate this Agreement and any Orders if the other party materially breaches this Agreement and fails to cure such breach within 30 days following written notice of the breach from the non-breaching party. Additionally, FINTRX may immediately, upon sending written notice, suspend access or terminate this Agreement and any Orders if Subscriber is in breach.
9.2. Effect of Termination
Upon termination of this Agreement:
(A) Subscriber must promptly expunge any Content it has in its possession and immediately discontinue use of the Services, platform, Applications, and Content;
Despite Section 9.2(A), Subscriber may retain, solely for records retention or regulatory purposes, any limited extracts of Content that had, prior to termination, been incorporated into Work Product created by Subscriber during the Term in accordance with this Agreement;
Despite Section 9.2(A), Subscriber may retain electronic records related to the Content as needed for archival purposes so long as no continued use is made of the Content.
10. Confidential Information
10.1. Confidential Information Defined
“Confidential Information” means commercially sensitive or valuable information that is disclosed by FINTRX to Subscriber or disclosed by Subscriber to FINTRX in the course of entering into or performing this Agreement.
10.2. Exclusions from Confidential Information
Information is excluded from the definition of “Confidential Information” if it is: (A) already in the public domain; (B) lawfully obtained from a third party; (C) lawfully known to the receiving party prior to the disclosure by the other party; or (D) independently developed by the receiving party without reference to the other party’s disclosed information.
10.3. Use of Confidential Information
FINTRX and Subscriber will not use or disclose the Confidential Information disclosed by the other party except (A) as expressly permitted by this Agreement, (B) as reasonably needed by FINTRX to perform its obligations under this Agreement or improve its services, (C) either party may disclose Confidential Information as reasonably needed to enforce its rights under this Agreement, and (D) either party may disclose Confidential Information if required to do so by a subpoena or court order. If a party is obligated to disclose Confidential Information by a subpoena or court order, such party will promptly notify the other party of such pending disclosure in sufficient detail so that the disclosure may be objected to or that remedial actions may be taken.
10.4. Care of Confidential Information
FINTRX and Subscriber will each protect Confidential Information disclosed by the other party from unauthorized disclosure with the same degree of care as it uses with respect to its own Confidential Information, but in no event less than a reasonable degree of care.
Neither party may assign its rights or obligations under this Agreement without the other party’s written consent. Neither party may unreasonably withhold consent. Despite the previous two sentences, FINTRX may assign its rights to collect payment owed under this agreement.
12. Representations and Warranties
12.1. Subscriber’s Representations and Warranties
Subscriber represents and warrants to FINTRX that Subscriber has the necessary authority to enter into and perform its obligations under this Agreement and that this Agreement has been duly authorized and executed by Subscriber.
12.2. General Disclaimer of Warranties
The platform, Services, Applications, and Content are provided to Subscriber on an “As-Is” and “As Available” basis. Except as expressly stated in this Agreement, there are no representations or warranties about the nature or quality of the platform, Services, Applications, or Content.
12.3. Subscriber’s Assumption of Risk
Any decisions Subscriber makes on the basis of the platform, Services, Applications, or any Content are made solely at its own risk. FINTRX has no responsibility or liability arising from such decisions.
12.4. Disclaimer of Specific Warranties
FINTRX makes no warranty, express or implied, as to the accuracy of the Content, the results that may be obtained as a result of using the platform, Services, Application, or Content, and FINTRX expressly disclaims any condition of quality and implied warranties of title, non-infringement, accuracy, merchantability, or fitness for a particular purpose. FINTRX also disclaims any warranties arising through the course of dealing or usage of trade. Subscriber represents that it has not relied upon any warranty or representation made by FINTRX except as specifically stated in this Agreement. No part of this Section 12.4 is intended to limit the general nature of Section 12.2.
13.1. Subscriber’s Promise to Indemnify
Subscriber will defend and indemnify FINTRX from any third-party claims, costs, reasonable attorneys’ fees, damages, or other liabilities that arise out of Subscriber’s unauthorized use or disclosure of the platform, Services, Applications, or Content. For the purposes of this Section 13.1, “FINTRX” includes any directors, officers, employees, or agents of FINTRX.
FINTRX will (A) promptly notify Subscriber of any claim that would trigger the indemnification obligation in Section 13.1, (B) assist Subscriber, at Subscriber’s expense, in the defense and settlement of the claim, and (C) refrain from settling the claim without Subscriber’s prior written consent so long as Subscriber doesn’t unreasonably withhold or delay such consent. FINTRX can select its legal representation for defense of the claim.
14. Limitation of Liability
14.1. No Liability for Fault with Content
Except as expressly agreed otherwise in this Agreement, (A) the Content is provided “as-is” and “as available,” and (B) FINTRX will not be liable for any damages incurred by Subscriber that result from Subscriber’s use of the Content.
14.2. Categorical Limitation on Damages
Except for (A) Subscriber’s indemnification obligations under this Agreement, (B) Subscriber’s obligations to pay Fees under this Agreement, (C) Subscriber’s liability if it breaches the promises contained in Section 10, and (D) Subscriber’s willful misconduct or gross negligence, under no circumstances will either party be liable for any indirect, incidental, special punitive, exemplary, or consequential damages with respect to this Agreement. This categorical limitation on damages applies even if such damages could have been foreseen or prevented.
14.3. Limitation on Liability
Except for (A) Subscriber’s indemnification obligations under this Agreement, (B) Subscriber’s obligations to pay Fees under this Agreement, (C) Subscriber’s liability if it breaches the promises contained in Section 10, and (D) Subscriber’s willful misconduct or gross negligence, under no circumstances will either party be liable to the other party in excess of the amount of Fees actually paid by Subscriber to FINTRX under this Agreement within the 12 months preceding the liability-causing events.
15. Securities Matters
15.1. No Offer of Securities
The platform, Services, Application, and Content are for informational purposes only. Nothing in the Content constitutes, and nothing in the Content should be construed as: (A) a solicitation or offering of any investment or securities or a recommendation to acquire or dispose of any investment or security; or (B) the provision of any financial, tax, legal, or other advice.
16. Entire Agreement
This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and this Agreement supersedes any prior agreement between the parties with respect to the subject matter of this Agreement.
For a party to waive its rights under this Agreement, such waiver must be in writing. Any waiver will be construed as narrowly as reasonably possible.
18. Choice of Law
This Agreement will be construed and enforced in accordance with the laws of the State of Delaware, without reference to its choice of law principles.
19. Jurisdiction & Venue
The parties will resolve any disputes related to this Agreement in the state or federal courts located in the State of Delaware. Each party consents to the jurisdiction of these courts and irrevocably waives any objection to resolving a dispute related to this Agreement in these courts.
20. Waiver of Class Action
Except as otherwise specifically prohibited by applicable law, all disputes arising from or related to this Agreement will be adjudicated on an individual basis and not in a class or representative action or as a member of a class, mass, consolidated or representative action, irrespective of the forum in which such disputes are heard. Subscriber will not join any of its claims related to this Agreement with the claim or claims of any other person or entity.
21. Excuses for Failure to Perform
Neither party will be liable for any failure or delay in the performance of its obligations under this Agreement if such failure or delay is directly caused by unforeseen events beyond the party’s control.
22. Links to Third-Party platforms
The platform may contain links to other web platforms (“Linked platforms”). The Linked platforms are not under the control of FINTRX and FINTRX is not responsible for the contents or operation of any Linked platform. FINTRX provides these links only as a convenience, and the inclusion of any link does not imply endorsement by FINTRX of the Linked platforms or any association with its operators.
Notices required under this Agreement may be sent to the addresses included on the most recent Order. All notices will be deemed received two days after the day on which they are physically sent, the day on which they are emailed, or the day on which the courier service estimates delivery, whichever is later. A party may update its contact information for notifications by sending a notice of the updated contact information to the other party in accordance with this Section 23.
24. Relationship of the Parties
Nothing in this Agreement will be construed to create a partnership or joint venture between the parties.
This Agreement may be amended only in a writing signed by an authorized representative of both parties.
26. Export Control Compliance
Subscriber will comply with all relevant export and trade control laws, regulations, or requirements of the United States and other relevant jurisdictions, including, without limitation, the U.S. Export Administration Regulations (15 C.F.R Part 730 et seq.) and U.S. economic sanctions and embargoes (codified in 31 C.F.R Chapter V). Without limiting the general nature of the previous sentence, Subscriber will comply with all relevant laws governing Subscriber’s purchase, receipt, use, disclosure, or re-export of any goods (including any hardware, software or technology) provided to it under this Agreement.