This Electronic Access Agreement ("Agreement") sets forth the terms and conditions under which we, Embed Clearing LLC, will provide you with access and use of the Embed Clearing LLC website services located at embed.com (the "Site"), which includes available dashboards, widgets, related tools, and other products or services on that Site (the "Site Services") and access and use of the Embed Clearing LLC application programming interface (the "API").
PLEASE READ THIS AGREEMENT CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION BELOW, WHICH REQUIRES THAT DISPUTES BE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL BASIS, NOT A CLASS-WIDE OR CONSOLIDATED BASIS. IF YOU DO NOT WISH TO BE SUBJECT TO ARBITRATION, YOU MAY OPT OUT OF THE ARBITRATION PROVISION BY FOLLOWING THE INSTRUCTIONS PROVIDED IN SECTION 5.
BY ACCESSING OR USING THE SITE SERVICES, YOU AGREE TO BE BOUND BY THESE TERMS AND ALL TERMS INCORPORATED BY REFERENCE. IF YOU DO NOT AGREE TO THESE TERMS IN THEIR ENTIRETY, DO NOT USE THE SITE SERVICES.
We may make changes to this Agreement from time to time. If we make changes, we will provide you with notice of such changes, such as by sending an email, providing a notice through the Site Services or updating the date at the top of this Agreement. Unless we say otherwise in our notice, the amended Agreement will be effective immediately, and your continued use of the Site Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended terms of this Agreement, you must stop using the Site Services.
1.1. Registration. Individuals may register for a profile ("User Profile") with us to access the Site Services or API. To register for a User Profile you will: (a) provide accurate, current and complete information when creating an User Profile; (b) maintain and promptly update all User Profile information; © not share passwords with others and restrict access to the User Profile and their computer or mobile device; (d) promptly notify us if you discover or otherwise suspect any security breaches related to your User Profile; and (e) accept responsibility for all unauthorized use and activities that occur under your User Profile. Each User Profile login password should be chosen carefully and not contain any personal or other information that may be easily guessed by anyone else.
1.2. Registrant Coordination. You may engage with other registrants that have a User Account with us through the Site Services to participate in Sandbox Access (as defined below) to test the Site Services or API. You are solely responsible for information that you share with any other user.
1.3. Correspondents. Entities ("Correspondents") may register one or more Correspondents and provide User Profiles to use the Site Services or API for access that enables certain securities clearing services ("Clearing Services") with live, full production access ("Full Production Access"). In order to establish a Correspondent with Full Production Access, you must enter into a separate clearing agreement ("Clearing Agreement") with us and fulfill all other prerequisites to engaging in the Clearing Services as required by us, including but not limited to, registering with the Securities and Exchange Commission (SEC), Financial Industry Regulatory Authority (FINRA), or other relevant regulatory agency. A Correspondent may permit access of its User Profile to other users by authorizing such users ("Authorized Users") through the Site Services. Correspondents may set permissions for each user that it permits to access its User Profile. Each Authorized User must establish a User Profile.
1.4. Eligibility. You represent and warrant that you are not: (a) a resident of any country subject to a United States embargo or other similar United States export restrictions; (b) on the United States Treasury Department's list of Specifically Designated Nationals; © on the United States Department of Commerce's Denied Persons List or Entity List; or (d) on any other United States export control list.
2.1. Full Production Access. The API is intended to provide you with the ability to integrate the Clearing Services with your systems and platforms. Certain portions of the Site Services may also provide you with the ability to access the Clearing Services. In addition, the Site Services or API may be used to transmit, receive and confirm execution of orders, subject to prevailing market conditions and applicable exchange rules and regulations as part of the Clearing Services. For clarity, this Agreement does not govern your receipt and use of the Clearing Services, including any information or data that you submit in connection with the Clearing Services (whether through the API or the Site Services). The Clearing Services are solely governed by the Clearing Agreement.
2.2. Sandbox Access. You may use the Site Services or API to test the Clearing Services for evaluation purposes ("Sandbox Access"). Your Sandbox Access provides you with access to the Site Services including functionality through the API that we make available to Sandbox Access users. Sandbox Access does not include Clearing Services that use any live Data as defined below or conduct live clearing of trades.
API License Grant and Access to Site Services
3.1. API License. Subject to your Clearing Agreement and compliance with this Agreement, we grant you a limited, non-exclusive, non-transferable, and non-sublicensable license to access the API to integrate your platform with the Clearing Services and to receive and transmit Data (defined below) to and from us related to your use of the Clearing Services. You may use the Site Services or API solely for your own internal business purposes.
3.2. Access to Site Services. Subject to your compliance with this Agreement, we will provide you with access to the Site Services solely for your own internal business purposes.
3.3. Reserved Rights. We and our licensors and suppliers own and retain all right, title, and interest in and to the documents, technology, and processes provided with the Site Services or API (and all modifications, enhancements, or derivative works thereof), including all intellectual property and other proprietary rights contained therein or related thereto.
3.4. Restrictions. You will not, and will not permit anyone else to, directly or indirectly do any of the following:
A. use the API or the Site Services for any purpose other than for the purposes described in this Agreement or the Clearing Agreement or in any manner that violates this Agreement or the Clearing Agreement;
B. engage in any live trading or clearing activity under Sandbox Access;
C. sell or rent Data to marketers or any other third party;
D. access or use the API, Site Services or Data for any unlawful, infringing, threatening, abusive, obscene, harassing, defamatory, deceptive, or fraudulent purpose, or in violation of the Clearing Agreement;
E. use, disclose, or retain any "nonpublic personal information" (as defined under the Gramm-Leach-Bliley Act) or "personal information" (as defined under the California Consumer Privacy Act) other than in strict compliance with applicable law;
F. access or use the Site Services or API to infringe any patent, trademark, trade secret, copyright, right of publicity, or other right of any person or entity;
G. access or use the Site Services or API for any purpose other than for which it is provided by us, including for competitive evaluation, spying, creating a substitute or similar service to any of the Site Services, or other nefarious purpose;
H. scan or test (manually or in an automated fashion) the vulnerability of any of our infrastructure without our express prior written permission;
I. breach, disable, interfere with, or otherwise circumvent any security or authentication measures or any other aspect of the Site Services;
J. overload, flood, or spam any part of the Site Services or API;
K. create developer accounts for the API by any means other than our publicly-supported interfaces (e.g., creating developer accounts in an automated fashion or otherwise in bulk);
L. transfer, syndicate, or otherwise distribute the Site Services or API or Data without our express prior written permission;
M. decipher, decompile, disassemble, copy, reverse engineer, or attempt to derive any source code or underlying ideas or algorithms of any part of the Site Services or API, except as permitted by applicable law;
N. modify, translate, or otherwise create derivative works of any part of the Site Services or API; or
O. access or use the API or the Site Services or access, transmit, process, or store Data in violation of any applicable privacy laws or in any manner that would be a breach of contract or agreement with the applicable end user.
3.5. Your Responsibilities. You acknowledge and agree that, in order for us to be able to render the Site Services or API, you will be required to integrate the API or be able to otherwise access the Site Services, and that you will customize and configure your software as necessary to interface with our services. You will cooperate with us to perform the integration in a manner that is consistent with our requirements and specifications, as modified by us from time to time. You will provide us with information necessary or convenient for our provision of the Site Services or API. The information to be provided by you will be accurate, timely, and complete, and will include such data that we and any of our service providers require to facilitate the onboarding and provision of the Site Services or API.
3.7. Changes to the Site Services or API. We may (i) change, suspend or cancel the API or any or all of the Site Services at any time, and/or (ii) at our discretion, elect to not provide the Site Services or API to you or certain of your customers. We will make reasonable efforts to provide you with prior notice of any change, but we may change the features, functionality or other aspects of the Site Services or API without notice to you, provided that such changes do not materially reduce the functionality of the Site Services or API. If you do not agree with the change, you are free to reject it. If you reject the changes, then you will no longer be able to use the Site Services or API.
3.8. Additional Services. From time to time, we may make additional services available to you through the Site Services or API. These additional services may be subject to separate terms and conditions, as applicable.
3.9. Payment. Payment terms and conditions shall be as separately agreed in writing by the parties.
3.10. API Keys; Security Breaches. You are responsible for securely maintaining the Site Services or API access and unique username, password, API keys, or other appropriate security code. You will be solely responsible for all authorized and unauthorized use of the API or the Site Services using such access credentials. You must immediately notify us if you discover or otherwise suspect any security breaches related to the API or the Site Services, including any unauthorized use or disclosure of API keys or any other access credentials of a third party.
Warranties and Limitation of Liability
4.1. You accept responsibility for selection and use of the API and Site Service and for any trading and other decisions made by you based on its use.
4.2. Disclaimers. THE API AND SITE SERVICE IS PROVIDED "AS IS" AND WE MAKE NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES TO YOU REGARDING THE USABILITY, CONDITION OR OPERATION THEREOF. WE MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING THE GOODS OR SERVICES PROVIDED BY ANY THIRD PARTIES WHO MAY PROVIDE CONTENT OR OFFER OTHER SERVICES. WE DO NOT WARRANT THAT ACCESS TO OR USE OF THE API OR SITE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT THE API OR SITE SERVICE WILL MEET ANY PARTICULAR CRITERIA OF PERFORMANCE OR QUALITY. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, COMPATIBILITY, SECURITY OR ACCURACY, OR ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT.
THIS AGREEMENT DEFINES YOUR SOLE AND EXCLUSIVE REMEDY REGARDING YOUR USE OF THE API OR SITE SERVICES.
WE WILL NOT BE LIABLE IN ANY WAY TO YOU OR TO ANY OTHER PERSON 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 OR TO ANY CONDITION OF "FORCE MAJEURE" (E.G., FLOOD, EXTRAORDINARY WEATHER CONDITION, 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 ANY OTHER CAUSE, WHETHER OR NOT WITHIN OUR CONTROL.
4.3. Limitation of Liability. EXCEPT WITH RESPECT TO THE INDEMNIFICATION OBLIGATIONS IN THIS AGREEMENT, NEITHER PARTY WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED AND UNDER WHATEVER THEORY OF LIABILITY, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES; AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR TOTAL LIABILITY UNDER THESE TERMS, FOR WHATEVER CAUSE, WHETHER IN AN ACTION IN CONTRACT OR IN TORT OR OTHERWISE, WILL BE LIMITED TO GENERAL MONEY DAMAGES AND SHALL NOT IN THE AGGREGATE EXCEED THE TOTAL AMOUNT PAID OR PAYABLE UNDER THIS AGREEMENT.
4.4. Indemnification. You will defend, indemnify and hold harmless Embed Clearing LLC and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, and our third-party service providers, from and against any and all third-party claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising out of, related to, or resulting from: (a) your use of and access to the Site Services or API, including any Data or content transmitted or received by you; (b) your violation of this Agreement, including without limitation your breach of any of the representations and warranties above; © your violation of any third-party right, including without limitation any right of privacy or intellectual property rights; (d) your violation of any applicable law, rule or regulation; (e) your intentional misconduct; or (f) any other party's access and use of the Site Services or API with your unique username, password or other appropriate security code.
Governing Law; Arbitration; and Waiver of Class Action/Jury Trial
5.1. Governing Law. You agree that: (i) the Site Services or API shall be deemed solely based in State of Washington, except as may be set forth in any of our third-party service provider agreements; and (ii) the use of the Site Services or API shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than the State of Washington. This Agreement shall be governed by the internal substantive laws of the State of Washington, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). You agree to submit to the personal jurisdiction of the federal and state courts located in Clark County, Washington for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. Subject to Section 5.2, you agree that the federal or state courts located in Clark County, Washington is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the Arbitration provision below is found to be unenforceable.
5.2. Arbitration. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EMBED CLEARING LLC. For any dispute with us, you agree to first contact us at firstname.lastname@example.org and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims arising from protection of intellectual property rights, which will be resolved through litigation in accordance with Section 5.1, or for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, "Claims"), by binding arbitration by JAMS. Claims with amounts claimed greater than $250,000 will apply the JAMS Comprehensive Arbitration Rules and Procedures; and Disputes with amounts claimed less than or equal to $250,000 will apply the JAMS Streamlined Arbitration Rules. The arbitration will be conducted in Clark County, Washington, unless you and we agree otherwise. If JAMS cannot administer the Claim, either party may petition the US District Court to appoint an arbitrator. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys' fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Either party may commence arbitration by providing a written demand for arbitration to JAMS and the other party detailing the subject of the Claim and the relief requested. Each party will continue to perform its obligations under this Agreement unless that obligation or the amount (to the extent in dispute) is itself the subject of the Claim. Nothing in this Section shall be deemed as preventing either party from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights. Proceedings and information related to them will be maintained as confidential, including the nature and details of the Claim, evidence produced, testimony given, and the outcome of the Claim, unless such information was already in the public domain or was independently obtained. You and Embed Clearing LLC, and all witnesses, advisors, and arbitrators will only share such information as necessary to prepare for or conduct arbitration or other legal proceeding, or enforcement of the outcome, unless additional disclosure is required by law.
Term, Termination and Suspension
6.1. Term. The term of the Agreement will commence at the time you accept the terms of this Agreement and will continue for as long as you choose to or are permitted to use the Site Services or API, subject to the terms of this Agreement or the Clearing Agreement.
6.2. Termination. You may terminate this Agreement by canceling your use of the Site Services through your User Profile. If your Clearing Agreement terminates for any reason, we may also terminate this Agreement at our discretion.
6.3. Termination for Material Breach. Either Party may terminate the Agreement, effective on written notice to the other Party, if the other Party materially breaches the Agreement, and such breach: (a) is incapable of cure; or (b) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach. Site Services or API.
6.4. Suspension. Notwithstanding Section 6.1 to the contrary or our ability to make changes to the Site Services or API as set forth in Section 3.7, we may, in our sole discretion, immediately suspend access to or use of the Site Services or API by you if you violate a material restriction or obligation in this Agreement, or if in our reasonable judgment, the Site Services or API or any components thereof are (a) being used in a manner that is harmful to others, or (b) about to suffer a significant threat to security or functionality. We may, but are not required to, provide advance notice to you of any such suspension based on the nature of the circumstances giving rise to the suspension. We will use reasonable efforts to re-establish the affected services through the Site Services or API promptly after we determine that the situation giving rise to the suspension has been cured. We may terminate access to the API or the Site Services if any of the foregoing causes of the suspension are not cured within 30 days after we provide you with initial notice thereof. Any suspension or termination by us under this Section 6.2 will not excuse you from your obligations to make payment(s) under any agreement you have with us. Any suspension under this Section will remain in effect until the applicable breach, if curable, is cured.
6.5. Notification of Termination or Suspension. We will use reasonable efforts to notify you via email or other method when deciding to withhold, refuse, suspend, or terminate access to the API or Site Service. We may immediately suspend or terminate access without notice if appropriate under the circumstances, such as when we become aware of activity that is a violation of any applicable law or when we determine, in our sole discretion, that harm is imminent.
6.6. Effect of Termination. Upon termination, any licenses and access rights granted to you herein will automatically terminate and you will return to us promptly any hardware, software, manuals or other items provided to you by us in connection with Site Service or API access. You will remain responsible for the payment of all charges incurred before termination becomes effective.
7.1. Assignment. This Agreement may not be assigned or transferred by you, whether in whole or in part, voluntarily or otherwise or by operation of law without our express prior written consent. If such consent is granted, the permitted third party will assume all obligations and liabilities herein. Any attempted assignment in violation of this Section will be null and void and of no force or effect. Subject to the foregoing, this Agreement shall be binding on and inure to the benefit of each party's successors and assigns.
7.2. Waiver and Severability. Failure to enforce any term or condition of this Agreement shall not be deemed a waiver of the right to later enforce such term or condition or any other term or condition of this Agreement. If any provision of this Agreement is found to be void or unenforceable, that provision will be enforced to the maximum extent possible, and the remaining provisions of this Agreement will remain in full force and effect.
7.3. Audit; Verification. You will permit us by any reasonable and appropriate means to verify that you have complied with the terms of this agreement and you agree to cooperate fully with any such verification process.
7.4. Entire Agreement. This Agreement is the entire agreement between the parties relating to the subject hereof, and, except with respect to the brokerage agreement between the parties, all prior negotiations and understandings between the parties, whether written or oral, are hereby merged into this Agreement. Nothing in this Agreement will be deemed to supersede or modify a party's rights and obligations under the Clearing Agreement.
7.5. Electronic Signature. Acceptance of this Agreement by electronic means will be deemed to have the same legal and binding effect as execution of an original signed hard copy of this Agreement.