Network Platform Access and Connectivity Agreement
Network Platform Access and Connectivity Agreement
NETWORK PLATFORM ACCESS AND CONNECTIVITY AGREEMENT
IMPORTANT: IF YOU HAVE EXECUTED AN ORDER FORM (AS DEFINED BELOW) TO PURCHASE ACCESS TO, AND USE THE PLATFORM (AS DEFINED BELOW), AND HAVE NOT OTHERWISE EXECUTED A NETWORK PLATFORM ACCESS AND CONNECTIVITY AGREEMENT WITH US, THEN PLEASE READ THIS NETWORK PLATFORM ACCESS AND CONNECTIVITY AGREEMENT CAREFULLY BECAUSE, TOGETHER WITH YOUR ASSOCIATED ORDER FORM (JOINTLY, “AGREEMENT”), IT SETS FORTH THE TERMS AND CONDITIONS FOR THE USE OF THE MOMENT IP.
BY AGREEING TO THE TERMS OF THE ORDER FORM YOU ARE AGREEING TO THE FOLLOWING TERMS AND CONDITIONS.
The Agreement” is effective as of the date on which you accept and execute the Order Form (the “Effective Date”). To make the Agreement easier to read, the terms “Moment”, “us”, and “our” refer to Moment Markets LLC, and “Liquidity Provider” or “you” refer to you and any organization that you are acting on behalf of as set forth in the applicable Order Form. Moment and Liquidity Provider may each be referred to individually as a “Party” and collectively as the “Parties”.
OVERVIEW
Moment has received a license from its Affiliate, Moment Technology Inc., to deploy the Platform in connection with the communication of messages that relate to the trading of certain Fixed Income Investments. Moment is operating and maintaining the markets related operation of such Platform which includes, in particular, an engine to message Clients’ RFQs and Orders in Fixed Income Investments. Liquidity Provider is in the business of, among other things, providing indicative prices for specified volume on such Fixed Income Investments (“Rates”), and owns a System, that facilitates the ability of Clients to access and interact commercially with the Rates.
DEFINITIONS
“Affiliate” means, with respect to any entity, any other entity that, directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such entity. For the purposes of this definition, the term “Control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of an entity, whether through the ownership of voting securities, by contract, or otherwise.
“Applicable Law” means, with respect to any Party, any federal, state, or local statute, law, ordinance, rule, administrative interpretation, regulation, order, writ, injunction, directive, judgment, decree, or other requirement of any international, federal, state, or local court, administrative agency, or commission or other governmental or regulatory authority or instrumentality, domestic or foreign, each to the extent applicable to such Party or any of its properties, assets, or business operations.
“API” means an application programming interface and any accompanying software code or documentation provided therewith.
“Authorized User” means Liquidity Provider’s employees, contractors, or agents authorized by you to access and use the Platform pursuant to the Agreement.
“Confidential Information” means:
The Agreement and any non-public, confidential or proprietary information relating to a Disclosing Party (as defined below), including any information that by its nature should be deemed confidential regardless of whether it is designated by the Disclosing Party as Confidential Information at the time of disclosure.
With respect to Moment, all technical information related to the Platform (as defined below) including without limitation, source code, object code or underlying structure, methods, algorithms, designs, processes, formulae, compositions, systems, techniques, inventions, machines, computer systems and programs, technology architecture, research projects and Deliverables (as defined below), and
Business or operational information such as lists of Moment personnel information, information or other data from or relating to Moment customers, product pricing data and intellectual property.
With respect to Liquidity Provider, technical information related to the System.
Notwithstanding the foregoing, “Confidential Information” does not include information, technical data, or know-how that the Receiving Party can prove, through tangible evidence:
Is generally available to the public at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the Receiving Party;
Is rightfully obtained by the Receiving Party from a third party without restriction as to disclosure;
Is lawfully in the possession of the Receiving Party at the time of disclosure by the Disclosing Party and not otherwise subject to restriction on disclosure;
Is approved for disclosure by prior written authorization of the Disclosing Party; or
Is developed independently and separately by the Receiving Party (or a third party from which the Receiving Party received such information, technical data, or know-how) without use of the Disclosing Party’s Confidential Information.
“Deliverables” means all documents, work product, and other materials that are delivered to Liquidity Provider hereunder or prepared by or on behalf of Moment and Moment Technology Inc. in the course of facilitating the availability of and performance of the Platform.
“Documentation” means the manuals, specifications, and other materials describing the functionality, features, operating characteristics, and use of the Platform, as provided to Liquidity Provider or made available to Liquidity Provider by Moment or Moment Technology Inc., whether in a written or electronic form.
“Client” means any person, including broker-dealers, investment advisers, family offices, insurance companies, financial services firms, trading firms, custodians, or clearing firms that has entered into a written agreement with Moment for services that include or contemplate access to and use of any portion of the Platform and that has been authorized by Liquidity Provider to receive the Rates and submit RFQs.
“Fixed Income Investments” are securities and other debt-based investment instruments for which Moment, in its sole discretion, has made a determination to enable transmission of attendant instruction-messages for purchase, sale or post-transaction activity.
“Harmful Code” means computer code, programs, or programming devices that are intentionally designed to disrupt, modify, access, delete, damage, deactivate, disable, harm, or otherwise impede in any manner, including aesthetic disruptions or distortions, the operation of the Platform, or any other associated software, firmware, hardware, computer system, or network (including, without limitation, “Trojan horses,” “viruses,” “worms,” “time bombs,” “time locks,” “devices,” “traps,” “access codes,” or “drop dead” or “trap door” devices) or any other harmful, malicious, or hidden procedures, routines or mechanisms that would cause the Platform to cease functioning or to damage or corrupt data, storage media, programs, equipment, or communications, or otherwise interfere with the operations of the Platform.
“Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property or similar rights (however designated) recognized in any country or jurisdiction in the world.
“Platform Data” means any data, information, or content that you, Clients or Authorized Users submit to the Platform.
“Moment API” means the API provided by Moment or Moment Technology Inc. as further described at https://docs.withmoment.com/
“Moment IP” means, collectively, Moment API, Aggregate Data, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and any and all Intellectual Property Rights in the foregoing.
“Order” means an instruction to purchase or sell a Fixed Income Investment which is communicated through the Platform.
“Order Form” means an order form or other ordering document mutually agreed to in writing or electronically by Liquidity Provider and Moment and accepted by you, which incorporates the Network Platform Access and Connectivity Agreement and sets forth the applicable services to be provided by Moment.
“Platform” means any code, database, API, method, technology architecture, design, protocol, or technique developed by Moment Technology Inc. and provided by Moment to Liquidity Provider pursuant to the Agreement, along with any content, support, maintenance, consulting or Documentation provided by Moment or Moment Technology Inc. to Liquidity Provider in connection therewith.
“RFQ” means a request made by a Client for a firm quote on a particular Fixed Income Investment.
“System” means a technology solution that Liquidity Provider uses internally or provides to Clients in connection with custody, clearing and execution services, including the display of Rates.
ACCESS TO AND USE OF THE PLATFORM
Subject to the terms and conditions of the Agreement, Moment hereby grants Liquidity Provider during the Term (as defined below) a limited, revocable, non-exclusive, non-transferable (except as provided in Section XVII(E) below), non-sublicensable right and license to:
Access and use the Platform for the purpose of:
displaying Rates,
receiving RFQs from Clients and responding to such RFQs, and
communicating with Clients, through interactive messaging, for the purpose of facilitating transactions in Fixed Income Investments as well as the corresponding clearance and settlement of such transactions.
Integrate the Platform with the System using the Moment IP.
Moment will use commercially reasonable efforts to make the Platform available.
Access to and use of the Platform is subject at all times to the terms and conditions of the Agreement.
PLATFORM
For the purposes of the Agreement, the Platform may only be used in a manner consistent with the license provided in Section II.A.
Liquidity Provider shall be solely responsible for the following:
accuracy of any Platform Data;
all aspects of the System; and
setting forth the parameters regarding Client access to Platform Data.
Liquidity Provider understands and acknowledges that for purposes of the Agreement, Moment will not:
Act in the capacity of an order taker;
Exercise any discretion with respect to Liquidity Provider’s and Clients’ interest to purchase or sell Fixed Income Investments;
Be a party to any transaction between Liquidity Provider and any Eligible Customer;
Guarantee settlement of any Order executed, or otherwise have a direct participation in the clearance and settlement of any transaction between Liquidity Provider and Clients, or
Be responsible for any losses, whether realized or unrealized, resulting from inaccurate data, incorrect or inaccurate transmission of RFQs or incorrect execution of Orders resulting from, or associated with, any messages communicated through the Platform.
As deemed appropriate by Moment, access to the Platform or its use may be limited to comply with Applicable Law.
The Parties agree that they shall operate independently with no obligations to supervise the activities or personnel of the other Party.
Each Party shall be responsible for its own actions, conduct and business operations and actions and inactions and for compliance with any Applicable Laws to which it is subject.
The Parties agree that the Deliverables are not deemed a “work made for hire” under U.S. copyright laws but are instead owned solely by Moment and its Affiliates consistent with Section IV below.
The Parties agree that the Platform may only be used in the United States and all activity involving the Platform is deemed to be performed in the United States.
OWNERSHIP
As between the Parties, Moment (or its licensor or Affiliates), reserves, solely owns and shall continue to own the Platform, Documentation and Moment IP, and all right, title and interest, including all Intellectual Property Rights, in and to the foregoing, including without limitation any copy, translation, modification, enhancement, upgrade, adaptation, or derivation thereof.
Liquidity Provider does not obtain any rights to any of the foregoing, except for the limited license rights expressly set forth in Section II.A.
Moment and its Affiliates are, and shall be, the exclusive owners of all rights, titles, and interests in and to the Deliverables, including all Intellectual Property Rights therein.
RELATIONSHIP WITH AUTHORIZED USERS AND OTHER THIRD-PARTIES
Liquidity Provider acknowledges and agrees that:
the access to and use of the Platform by any Authorized User shall be limited to such Authorized User’s provision of services to Liquidity Provider; and
Liquidity Provider is responsible for the acts and omissions of Authorized Users and any other person who accesses and uses the Platform using any Authorized User’s Credentials (as defined below).
The Agreement is non-exclusive and nothing in the Agreement shall prevent Moment or any of its Affiliates from providing similar services to other Liquidity Providers.
During the Term, neither Party shall:
disparage the other Party or the other Party’s products and services, or
encourage any person that such Party knows to be an existing client of the other Party to terminate or breach its agreement with such other Party.
The foregoing shall not preclude or restrict either Party from:
doing business with any person that contacts such Party, or
responding truthfully or accurately to inquiries from regulators.
Liquidity Provider will not, and will not authorize, permit, or encourage any third party or its Authorized Users to do any of the following:
Allow anyone other than Authorized Users to access and use the Platform.
Allow an Authorized User to share with any third party any Credentials (as defined below).
Reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Platform or of Moment IP.
Modify, adapt, or translate the Platform or make any copies of the Platform or of Moment IP.
Resell, distribute, or sublicense the Platform.
Use the Platform in violation of any Applicable Law.
Use the Platform to build a competitive product or service, or for any purpose not specifically permitted in the Agreement, or
Introduce, post, or upload to the Platform any Harmful Code.
When accessing the Services, each Authorized User’s access to and use of the Platform will require a set of discrete identifiers that authenticates sign-on to the Platform and record, in an auditable fashion, the time and purpose for which the Platform was accessed, including any data, entered, altered or deleted therein (collectively, “Credentials”).
Liquidity Provider is solely responsible for:
the confidentiality and use of all Credentials, as well as for any use or misuse by any Authorized User of the Platform using such Credentials.
verifying that any Authorized User accessing the Platform is intended by Liquidity Provider to have such access;
ensuring that use of the Platform by an Authorized User does not give rise to any direct or indirect or implied legal or contractual relationship between such party and Moment or any of its Affiliates;
ensuring that its agreements and relationships with Authorized Users do not imply or create any direct legal or contractual obligation or formal relationship between Moment or its Affiliates and such Authorized Users;
informing Moment in the event that Liquidity Provider suspects, obtains knowledge of, or has reason to believe that Credentials may need to be blocked, deactivated or changed.
Moment’s obligations regarding the Platform, arise only under the Agreement and remain solely to Liquidity Provider and not to any Authorized User or any Client.
Third Party Services. Certain features and functionalities within the Platform may allow Liquidity Provider or its Authorized Users to interface or interact with, access and/or use compatible third-party services, products, technology or data (collectively, “Third-Party Services”).
Moment is not responsible for any compatibility issues, errors or bugs in the Platform caused in whole or in part by the Third-Party Services or any update or upgrade thereto.
Liquidity Provider is solely responsible for maintaining the Third-Party Services and obtaining any associated licenses and consents necessary for Liquidity Provider to use the Third-Party Services in connection with the Platform.
LICENSE GRANT BY LIQUIDITY PROVIDER Subject to the terms and conditions of the Agreement, Liquidity Provider hereby grants to Moment a limited, non-exclusive, non-transferable, non-sublicensable right and license to access, use and reproduce Liquidity Provider’s name and logo.
COMPENSATION AND PAYMENT
As consideration for the access to and use of the Platform as set forth herein, Liquidity Provider will pay Moment the amounts set forth in Order Form (“Compensation”).
Any Compensation owed and outstanding as of the date of termination under Section X. below shall remain payable until fully satisfied.
Unless otherwise agreed in writing by the Parties, the Compensation shall be locked for the Initial Term (as defined below).
Moment will notify Customer of any changes to the Compensation that will apply for a Renewal Term (as defined below), at least sixty (60) days before such Renewal Term begins. If Moment does not notify Customer of any such changes, all components of the Compensation shall remain unchanged.
All Compensation owed to Moment is due and payable in US Dollars no later than thirty (30) calendar days following Liquidity Provider’s receipt of an invoice from Moment.
BOOKS AND RECORDS During the Term and for three (3) years thereafter, Liquidity Provider shall maintain books and records in connection with the use of the Platform.
RIGHT TO AUDIT
During the Term (as defined below) and for one (1) year thereafter, Moment and its agents shall have the right, not more than once per calendar year, to audit, inspect and make copies of Liquidity Provider’s books and records that relate to the terms, conditions and obligations of the Agreement, upon forty-five (45) days advanced written notice to Liquidity Provider.
Moment and its agents shall have the right to conduct additional audits during a particular calendar year and subsequent calendar years if a particular audit indicates a lack of compliance with the terms of conditions of the Agreement.
The books and records reviewed during an audit shall be considered Confidential Information.
Moment will bear the cost and expense of any audit except that in the event any such audit reveals that Liquidity Provider has breached the terms and conditions of the Agreement in any material aspect, then Liquidity Provider shall promptly pay and reimburse Moment for all out-of-pocket costs and expenses reasonably and actually incurred by Moment and its agents in conducting the audit. Any such audit shall be conducted during Liquidity Provider’s normal business hours, in accordance with Liquidity Provider’s policies and procedures, and in a manner designed to limit disruption to Liquidity Provider’s operations.
TERMINATION AND SUSPENSION
The Agreement is effective as of the Effective Date and shall continue in full force and effect for three (3) years (“Initial Term”), unless earlier terminated as set forth herein.
After the Initial Term, the Agreement shall automatically renew each time for consecutive one (1) year terms (each, a “Renewal Term”), unless terminated by a Party on written notice to the other Party at least thirty (30) days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable.
The Initial Term and all Renewal Terms shall be collectively referred to as the “Term”.
Termination for Material Breach.
Other than with respect to the representation set forth in Section XIV.A.3. below, either Party, by written notice to the other Party, may terminate the Agreement with immediate effect if the other Party is in material breach of any provision of the Agreement, and such breach is not cured within thirty (30) days after the impacted Party gives the other Party written notice of such breach.
If at any time, the representation set forth in Section XIV.A.3. below ceases to be true with respect to Liquidity Provider:
Liquidity Provider will immediately notify Moment, and
Moment may terminate the Agreement with immediate effect upon such notification by Liquidity Provider.
Effect of Termination. Upon termination of the Agreement, Liquidity Provider will immediately cease, and cause its Authorized Users to cease, all access to and use of the Platform.
Survival The following provisions will survive termination of the Agreement: Section I (“Definitions”), Section IV (“Ownership”), Section V (“Relationship With Authorized Users and Other Third-Parties”), Section VII (“Compensation and Payment”), Section VIII (“Books and Records”), Section IX (“Right to Audit”), Section X (“Termination and Suspension”), Section XI (“Confidentiality”), Section XII (“Feedback”), Section XIII (“Platform Data”), Section XIV (“Representations and Warranties”), Section XV (“Limitation of Liability”), Section XVI (“Indemnities”), and Section XVII (“Miscellaneous”).
Suspension, Limitation or Termination. Moment is entitled, without liability to Liquidity Provider, to immediately suspend, terminate or limit Liquidity Provider’s access to any or all parts of the Platform at any time in the event: (a) that Moment reasonably suspects that the Platform is being used in violation of any Applicable Law in a manner inconsistent with the Agreement or the Documentation; (b) that Moment determines that the Platform is being used in an unauthorized or fraudulent manner; (c) that Moment determines that the use of the Platform adversely affects Moment’s equipment or service to other Liquidity Providers; (d) Moment is prohibited by Applicable Law from providing the Platform; or (e) any other event which Moment determines, in its sole discretion, may create a risk to the Platform or to any other users of the Platform. Without limitation, Moment will have no liability for any damages, liabilities or losses as a result of any suspension, limitation or termination of Liquidity Provider’s right to use the Platform in accordance with the Agreement.
CONFIDENTIALITY
Each party receiving Confidential Information in connection with the Agreement, the “Receiving Party”, will retain the Confidential Information disclosed by the other Party (the “Disclosing Party”) in the strictest confidence and will not disclose such Confidential Information to any person without the Disclosing Party’s express written consent, other than, on a need-to-know basis, to its employees or to professional advisors of the Receiving Party or of an Affiliate (“Representatives”).
Notwithstanding anything to the contrary herein, the obligation to maintain the confidentiality of Confidential Information will not apply to the extent that the Receiving Party is required to disclose such Confidential Information pursuant to Applicable Law, provided that, to the extent reasonably permitted under the circumstances, the Receiving Party first provides notice to the Disclosing Party to enable the Disclosing Party to seek a protective order or an injunction. In the event that such protective order or other remedy is not obtained, or that the Disclosing Party waives compliance with the provisions hereof, the Receiving Party shall furnish only that portion of the Confidential Information which it is advised by counsel is legally required to be disclosed, and shall use commercially reasonable efforts to ensure that confidential treatment shall be afforded such disclosed portion of the Confidential Information.
Notwithstanding anything to the contrary herein, with respect to either Party, the obligation to maintain the confidentiality of the Agreement will not apply to the extent that such Party discloses the Agreement to a potential buyer in connection with a financing round or the sale of substantially all of its assets; provided however, that prior to such disclosure, such potential buyer has entered into a non-disclosure agreement with such party on terms similar to those contained herein.
Each Party acknowledges that in the event of a breach or threatened breach of this Section, substantial injury could result to the Disclosing Party and money damages may not be a sufficient remedy for such breach. Therefore, in the event that the Receiving Party engages in, or threatens to engage in any act which violates any provision of this Section, the Disclosing Party shall be entitled, in addition to all other remedies which may be available to it under law, to seek injunctive relief (including, without limitation, temporary restraining orders or preliminary or permanent injunctions) and specific enforcement of this Section. The Disclosing Party shall not be required to post a bond or other security in connection with the granting of any such relief.
FEEDBACK During the Term, Liquidity Provider or Authorized Users may elect to provide Moment with feedback, comments or suggestions (collectively, “Feedback”) relating to the Platform.
Moment may elect not to act on any Feedback.
Liquidity Provider hereby grants Moment a perpetual, irrevocable, royalty-free, fully paid-up license, with the unlimited right to sublicense, to use, reproduce, disclose, and otherwise exploit any and all Feedback in any matter or medium known or later developed, including, without limitation, to test, develop, maintain or improve the Platform, without compensation or attribution to Liquidity Provider or any Authorized User or third party.
PLATFORM DATA
Subject to the terms and conditions of the Agreement, Liquidity Provider hereby grants Moment an exclusive, limited, worldwide, fully paid-up, royalty-free right and license, with the right to grant sublicenses through multiple tiers to Affiliates providing services to Moment (such as hosting providers), to reproduce, use, store, archive, modify perform, display, and distribute Platform Data.
Liquidity Provider represents and warrants to Moment that it has obtained all Client or third party consents and authorizations required under Applicable Law or otherwise to provide Liquidity Provider with the Platform Data and to make such Platform Data available to Moment for use as set forth herein.
Liquidity Provider acknowledges and agrees that it is solely responsible for accuracy and quality of the Platform Data that it provides in connection with the Deliverables or that it makes available through the Platform.
Moment monitors the performance and use of the Platform by Liquidity Provider, Authorized Users, and Clients, and Moment collects data in connection therewith, including, without limitation, the content of the Platform Data, the date and time when Platform Data was provided to the Platform, when the Platform was accessed, the portions of the Platform used, the frequency and number of times of such access and use, and other usage data (the “Usage Data”). Moment may combine Usage Data and Platform Data with other data, including, without limitation data relating to other Moment customers, provided that the resultant data is anonymized to avoid the identification of individual Clients and Liquidity Providers (“Aggregate Data”). Liquidity Provider hereby agrees that Moment will be free to use, transfer and otherwise exploit the Aggregate Data for its business purposes and that the obligations under Section XIII.B. above shall not apply to any Platform Data embedded in Aggregate Data.
REPRESENTATIONS AND WARRANTIES
Each Party represents and warrants to the other Party that:
it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into the Agreement;
the execution, delivery, and performance of the Agreement, and the consummation of the transactions contemplated hereby, are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party;
it is a broker or dealer registered with the Securities and Exchange Commission pursuant to the Securities Exchange Act of 1934, 15 U.S.C. §78a et seq., and a member of the Financial Industry Regulatory Authority (“FINRA”).
its performance under the Agreement shall comply with Applicable Law.
Disclaimers
THE PLATFORM AND ANY MATERIALS OR SERVICES PROVIDED BY MOMENT OR ITS LICENSORS HEREUNDER ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND MOMENT DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE SAME OR OTHERWISE IN CONNECTION WITH THE AGREEMENT, AND HEREBY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES OF NON-INFRINGEMENT, LIQUIDITY PROVIDER’S ABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AVAILABILITY, ERROR-FREE OR UNINTERRUPTED OPERATION, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE. TO THE EXTENT THAT MOMENT MAY NOT AS A MATTER OF APPLICABLE LAW DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH LAW.
ANY OBLIGATION OF MOMENT UNDER THE AGREEMENT IS TO THE LIQUIDITY PROVIDER ONLY AND NOT TO ANY CLIENT, ANY END-CUSTOMER OF ANY CLIENT, OR ANY OTHER THIRD PARTY. THE AGREEMENT DOES NOT GIVE RISE TO ANY DIRECT, INDIRECT, OR IMPLIED LEGAL OR CONTRACTUAL RELATIONSHIP BETWEEN MOMENT AND ANY CLIENT, END-CUSTOMER OF ANY CLIENT, OR ANY OTHER THIRD PARTY.
NEITHER PARTY SHALL BE LIABLE FOR ANY LOSS OF ANY KIND OR FAILURE TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT CAUSED DIRECTLY OR INDIRECTLY BY FIRE, FLOOD, WAR, TERRORISM, EARTHQUAKE, ELEMENTS OF NATURE OR ACTS OF GOD OR THE PUBLIC ENEMY; RIOTS, CIVIL DISORDERS, REBELLIONS OR REVOLUTIONS; STRIKES, EPIDEMICS, PANDEMICS, LOCKOUTS, OR LABOR DIFFICULTIES; GOVERNMENT IMPOSED QUARANTINES OR DENIAL OF ACCESS OR OPERATION, ACTS OR OMISSIONS OF REGULATORY OR GOVERNMENTAL AUTHORITIES, SELF-REGULATORY ORGANIZATIONS OR SECURITIES EXCHANGES, CLEARING FIRMS, CUSTODIANS, MARKET DATA PROVIDERS, ALTERNATIVE TRADING SYSTEMS, THE INTERNET OR COMMUNICATION LINK PROVIDERS, TECHNOLOGY FAILURE, CHANGES IN LAW, RULE OR REGULATION; OR ANY OTHER CAUSE BEYOND ITS REASONABLE CONTROL, WHETHER OR NOT SIMILAR TO THE FOREGOING, EXCEPT THAT THE FOREGOING DISCLAIMER DOES NOT APPLY TO AN OBLIGATION TO PAY COMPENSATION.
FOR PURPOSES OF THE AGREEMENT, MOMENT IS NOT RESPONSIBLE FOR OR REQUIRED TO UNDERSTAND APPLICABLE LAWS OR REGULATION APPLICABLE TO LIQUIDITY PROVIDER OR TO ANY CLIENT OR THEIR RESPECTIVE BUSINESSES, AND MOMENT IS NOT RESPONSIBLE FOR ENSURING THAT THE PLATFORM COMPLIES WITH SUCH APPLICABLE LAWS EXCEPT INSOFAR AS APPLICABLE TO MOMENT OR ITS BUSINESS.
LIQUIDITY PROVIDER IS SOLELY RESPONSIBLE FOR ANY REPORTING REQUIRED BY APPLICABLE LAWS OR REGULATION RELATING TO LIQUIDITY PROVIDER’S BUSINESS, AND MOMENT SHALL NOT HAVE ANY RESPONSIBILITY OR LIABILITY IN CONNECTION THEREWITH, EVEN IF SUCH REPORTING IS PRODUCED BY OR DERIVED FROM THE PLATFORM.
LIMITATION OF LIABILITY
EXCEPT IN CONNECTION WITH LIQUIDITY PROVIDER’S FAILURE TO PAY ANY AMOUNTS DUE AND OWING HEREUNDER, USE OF THE PLATFORM EXCEPT AS EXPRESSLY PERMITTED BY THE AGREEMENT OR A PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT: (I) IN NO EVENT WILL EITHER PARTY OR THEIR RESPECTIVE AFFILIATES BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY (WHETHER DIRECTLY OR INDIRECTLY) FOR ANY INCIDENTAL, INDIRECT, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO, LOST REVENUES OR PROFITS OR OPPORTUNITY COST) ARISING FROM OR RELATING TO THE AGREEMENT, REGARDLESS OF WHETHER SUCH PARTY WAS ADVISED, HAD OTHER REASON TO KNOW, OR IN FACT KNEW OF THE POSSIBILITY THEREOF, AND (II) THE AGGREGATE LIABILITY FOR DIRECT DAMAGES UNDER THE AGREEMENT WILL NOT EXCEED $25,000 FOR EITHER PARTY OR THEIR RESPECTIVE AFFILIATES.
INDEMNITIES
Indemnification by Liquidity Provider
Liquidity Provider will indemnify, defend, and hold Moment and its Representatives harmless from and against any and all losses, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees) (collectively, “Losses”) incurred by any of such parties in connection with any third-party action, claim, or proceeding (each, a “Claim”) (including, without limitation, any Claim made by a Client), arising from:
the System infringing or misappropriating or otherwise violating the Intellectual Property Rights of any third-party;
use of the Platform by Liquidity Provider or its Authorized Users in a manner that is not in accordance with the Agreement or the Documentation, including, without limitation, violations of law or any breach of the license restrictions in Section II.A.; or
Liquidity Provider’s or its Authorized Users’ gross negligence, willful misconduct or alleged violation of Applicable Law or industry regulation, including Claims to that effect by a self-regulatory organization, a recognized securities or commodities exchange or a similar authority.
Indemnification by Moment
Moment will indemnify, defend, and hold Liquidity Provider and its Representatives harmless from and against any and all Losses incurred by any such parties in connection with any third-party Claim, other than Claims threatened, raised or alleged by a government, a self-regulatory organization, a recognized securities or commodities exchange or a similar authority:
arising from Moment’s gross negligence or willful misconduct, or
alleging that Liquidity Provider’s and its Authorized Users’ access to and use of the Platform in accordance with the Agreement infringes or misappropriates any third-party Intellectual Property Rights.
In the event that Moment reasonably determines that the Platform is likely to be the subject of a third-party Claim, Moment, in its sole discretion, may:
procure for Liquidity Provider the right to continue to use the Platform as provided in the Agreement;
collaborate with its Affiliate, Moment Technology Inc. to suitably modify the Platform or any component thereof, so that it is non-infringing, or
if none of the foregoing options are available to Moment on commercially reasonable terms, Moment may terminate the Agreement and refund all funds pre-paid by Liquidity Provider for services not rendered.
Notwithstanding the foregoing, neither Moment nor any of its Affiliates is obligated to indemnify, defend, or hold Liquidity Provider or its Representatives harmless with respect to any third-party Claim to the extent the third-party Claim arises from or is based upon:
use of the Platform by Liquidity Provider or any Authorized user other than in accordance with the Documentation or the Agreement;
any unauthorized modifications, alterations, or implementations of the Platform that have not been made by or authorized in writing by Moment;
use of the Platform in combination with unauthorized modules, apparatus, hardware, software, or services not supplied, specified or authorized in writing by Moment;
use of the Platform in a manner or for a purpose for it was not designed; or
any Platform Data.
This Section XVI.B.2. states Liquidity Provider’s sole and exclusive remedy, and Moment or its Affiliates’ sole and exclusive liability, regarding any third-party Claim.
Procedure The indemnification obligations set forth in XVI.A., XVI.B.1., and XVI.B.2. are subject to the indemnified Party:
promptly notifying the indemnifying Party of the Claim, provided that failure to provide such notice will not relieve the indemnifying Party of its indemnity obligations unless it is materially prejudiced by such failure;
providing the indemnifying Party, at its sole cost and expense, with reasonable cooperation in the defense of the Claim; and
providing the indemnifying Party with sole control over the defense and negotiations for a settlement or compromise of the Claim, provided that the indemnifying Party may not make any admission of liability on behalf of the indemnified Party without the indemnified Party’s approval.
MISCELLANEOUS
The relationship of the Parties is one of independent contractors. Nothing in the Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties. Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.
The Agreement sets forth the entire agreement of the Parties as to its subject matter and supersedes all prior agreements, negotiations, representations, and promises between the Parties with respect to the subject matter hereof.
The Network Platform Access and Connectivity Agreement may be updated, amended and/or supplemented periodically by Moment by publication on its website (www.withmoment.com/terms-of-service/software-and-data-license-terms). All such updates, amendments and/supplements shall apply to the Agreement and be binding upon the Parties.
Any notices or other communications required to be delivered under the Agreement shall be made in writing and delivered electronically.
Neither Party may assign or otherwise transfer any of its rights or obligations under the Agreement without the prior, written consent of the other Party, which consent will not be unreasonably withheld, conditioned or delayed. Notwithstanding the foregoing, either Party may assign or transfer the Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of the Agreement, whether by sale, merger, operation of law or otherwise.
Any assignment or other transfer in violation of this provision will be null and void.
Subject to the foregoing, the Agreement will be binding upon and inure to the benefit of the Parties hereto and their permitted successors and assigns.
A waiver of rights under the Agreement will not be effective unless it is in writing and signed by an authorized representative of the Party that is waiving the rights.
In the event that any provision of the Agreement conflicts with any Applicable Laws, such provision shall be deemed null and void and the Agreement shall be read as if such provision were no longer a part of the Agreement.
If any term, condition, or provision of the Agreement is held by a court or arbitral tribunal of competent jurisdiction to be invalid, void or unenforceable, the remainder of the provisions of the Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
U.S. Government End Users. The Platform and Documentation were developed solely at private expense and are “commercial products”, “commercial items”, or “commercial computer software” as defined in the Federal Acquisition Regulation 2.101 and other relevant government procurement regulations including agency supplements. Any use, duplication, or disclosure of the Subscription Services, software and Documentation by or on behalf of the U.S. government is subject to restrictions as set forth in the Agreement as consistent with federal law and regulations. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, Liquidity Provider will immediately discontinue its use of the Platform and Documentation.
Export Regulation. Liquidity Provider affirms that it is not named on, owned by, or acting on behalf of any U.S. government denied-party list, and it agrees to comply fully with all relevant export control and sanctions laws and regulations of the United States (“Export Laws”) to ensure that neither the Platform, software, the System, nor any technical data related thereto is: (i) used, exported or re-exported directly or indirectly in violation of Export Laws; or (ii) used for any purposes prohibited by the Export Laws, including, but not limited to, nuclear, chemical, or biological weapons proliferation, missile systems or technology, or restricted unmanned aerial vehicle applications. Liquidity Provider will complete all undertakings required by Export Laws, including obtaining any necessary export license or other governmental approval.
Third-Party Beneficiary. Moment’s Affiliate and licensor, Moment Technology Inc., is an intended third-party beneficiary of the Agreement. Except for the foregoing, the Agreement is solely for the benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under, or by reason of, the Agreement.
THE PARTIES HEREBY WAIVE ANY RIGHTS TO A JURY TRIAL IN ANY JURISDICTION.
Arbitration & Dispute Resolution. In the event of a dispute between the Parties, such dispute shall be settled by arbitration before arbitrators sitting in New York, New York in the borough of Manhattan on the following terms:
ARBITRATION DISCLOSURE - ARBITRATION IS FINAL AND BINDING ON THE PARTIES. THE PARTIES ARE WAIVING THEIR RIGHT TO SEEK REMEDIES IN COURT, INCLUDING THE RIGHT TO JURY TRIAL. PRE-ARBITRATION DISCOVERY IS GENERALLY MORE LIMITED THAN AND DIFFERENT FROM COURT PROCEEDINGS. THE ARBITRATORS’ AWARD IS NOT REQUIRED TO INCLUDE FACTUAL FINDINGS OR LEGAL REASONING AND ANY PARTY’S RIGHT TO APPEAL OR TO SEEK MODIFICATION OF RULINGS BY THE ARBITRATORS IS STRICTLY LIMITED.
ARBITRATION AGREEMENT - ANY CONTROVERSY BETWEEN THE PARTIES ARISING OUT OF THE PARTIES’ BUSINESS OR THE AGREEMENT SHALL BE SUBMITTED TO ARBITRATION CONDUCTED BEFORE THE FINANCIAL INDUSTRY REGULATORY AUTHORITY (“FINRA”) OR ITS SUCCESSOR FIRM(S), AND IN ACCORDANCE WITH THE ARBITRATION RULES AND PROCEDURES THEN EXISTING OF FINRA OR ITS SUCCESSOR FIRM AT THE TIME OF THE DISPUTE. ANY ARBITRATION SHALL BE CONDUCTED AS A “BROKER TO BROKER” OR “MEMBER VS MEMBER” DISPUTE. ARBITRATION MUST BE COMMENCED BY SERVICE UPON THE OTHER PARTY OF A WRITTEN DEMAND FOR ARBITRATION OR A WRITTEN NOTICE OF INTENTION TO ARBITRATE. NO PERSON SHALL BRING A PUTATIVE OR CERTIFIED CLASS ACTION TO ARBITRATION, NOR SEEK TO ENFORCE ANY PRE-DISPUTE ARBITRATION AGREEMENT AGAINST ANY PERSON WHO HAS INITIATED IN COURT A PUTATIVE CLASS ACTION AND WHO IS A MEMBER OF A PUTATIVE CLASS AND WHO HAS NOT OPTED OUT OF THE CLASS WITH RESPECT TO ANY CLAIMS ENCOMPASSED BY THE PUTATIVE CLASS ACTION UNTIL: (i) THE CLASS CERTIFICATION IS DENIED; (ii) THE CLASS IS DECERTIFIED; OR (iii) THE PERSON IS EXCLUDED FROM THE CLASS BY THE COURT. SUCH FORBEARANCE TO ENFORCE AN AGREEMENT TO ARBITRATE SHALL NOT CONSTITUTE A WAIVER OF ANY RIGHTS UNDER THE AGREEMENT EXCEPT TO THE EXTENT STATED HEREIN.
Date of last review: January 7, 2025