Nachas Networks – Master Terms Agreement
Software End User License Agreement
THIS LICENSE AGREEMENT ("License Agreement") IS A LEGAL AGREEMENT BETWEEN YOU (The "Client") AND Nachas Services Limited ("Nachas") THAT GOVERNS YOUR USE OF THE NACHAS NETWORKS MOBILE APPLICATION SOFTWARE THAT WE PROVIDE FOR USE ON YOUR DEVICE (the "Application" or the “Software”). APPLE, INC. IS NOT A PARTY TO THIS LICENSE AGREEMENT, AND AS BETWEEN NACHAS AND APPLE, INC., NACHAS IS RESPONSIBLE FOR THE APPLICAITON AND THE CONTENT THEREOF. YOUR USE OF THE APPLICATION IS ALSO GOVERNED BY THE TERMS, CONDITIONS AND POLICIES AVAILABLE ON THE NACHASNETWORKS.COM WEBSITE, INCLUDING BUT NOT LIMITED TO THE PRIVACY AND SECURITY STATEMENT AND TERMS AND CONDITIONS OF USE (collectively, the "Website Terms"), AND ALL REFERENCES TO THE "NACHASNETWORKS.COM SITE" OR THE "SITE" IN SUCH WEBSITE TERMS ARE DEEMED TO ALSO REFER TO THE APPLICATION FOR PURPOSES OF YOUR USE OF THE APPLICATION. BY USING THE APPLICATION, YOU ACCEPT AND AGREE TO BE BOUND BY THIS LICENSE AGREEMENT AND THE WEBSITE TERMS. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS LICENSE AGREEMENT AND THE WEBSITE TERMS, YOU MAY NOT USE THE APPLICATION AND YOU MUST DELETE IT FROM YOUR DEVICE. YOU AGREE TO COMPLY WITH ALL APPLICABLE THIRD PARTY TERMS OF AGREEMENT WHEN USING THE APPLICATION.
Capitalized terms used but not otherwise defined are set forth in Section 1 (Definitions).
1. Definitions
2. Intellectual Property Rights and Reservation of Ownership
Access to the Software is licensed, not sold. Nachas retains title and ownership of the Software and all enhancements, modifications, customizations, updates and all copies therefrom, which are protected by applicable international laws, treaties, conventions regarding intellectual property and proprietary rights, including trade secrets. Client agrees to use reasonable means to protect Software from unauthorized use, reproduction, distribution, or publication. Nachas reserves all rights not specifically granted under this Agreement including the right to change and improve Software.
In the event of an intellectual property claim that the Application or your possession and use of the Application infringes on a third party's intellectual property rights, Nachas, not Apple, Inc., reserves the right to investigate, defend, settle and discharge of any such intellectual property infringement claim.
3. Grant of Rights
In consideration of this agreement, Nachas hereby grants the Client a limited, non-exclusive, non-transferable, non-sublicensable license to use the Application on your device, solely for the placement and management of electronic trading orders to counterparties connected via Nachas.
Client is permitted under this license to access and/or install and use, the Software on or from (i) any computer located at Client’s place of business, (ii) Client owned laptops used exclusively by employees of Client, or (iii) mobile device used exclusively by employees of Client, all such Use to be for the sole benefit of Client and not for personal or other business purposes. Client assumes full responsibility and liability for ensuring that employees use the Software in accordance with the terms of this Agreement including, but not limited to, the obligations of confidentiality.
4. Uses Not Permitted
Except to the extent that applicable law prohibits or overrides these restrictions, or as provided herein, Client shall not
5. Open Source Software
Any Open Source Software that may accompany the Software is provided to Client under the terms of the Open Source license agreement or copyright notice accompanying such Open Source Software, or in the open source licenses file accompanying the Software. As used in this Agreement “Open Source Software” means open source software components provided with the Software that are licensed to Client under the terms of the applicable license agreements included with such open source software components or other materials for the Software. This Agreement does not apply to any Open Source Software accompanying the Software and Nachas hereby disclaims any and all liability to Client or any third party related thereto.
6. License Term and Termination
If requested by Client in the termination notice, Nachas will extract and deliver a copy of the following Client data to Client in machine readable format (csv or Excel): FIX message history, aggregated trade history and all relevant client account data. Unless otherwise agreed in writing, upon termination of this Agreement and expiry of the relevant termination period (if any) all Client data on Nachas controlled or managed computers or storage will be permanently deleted.
7. Support; Obsolescence
Nachas will provide support via telephone and e-mail, consisting of advice on the use of the Software and identification of any defects in the Software. Nachas shall have no obligation to provide support or troubleshooting services in connection with the use of the Software or defects caused by (a) improper use of the Software, including use with unauthorized (i) hardware, (ii) third party software or (iii) third party services, (b) unauthorized use of Nachas’ hardware, or (c) unauthorized modifications to the operating system or third party software after the Software has been Installed.
The Client acknowledges and agrees that Apple, Inc. has no obligation whatsoever to furnish any maintenance and support with respect to the Application.
For clarification, authorized third party software and services includes only:
Nachas may obsolete:
The Agreement will continue to apply in the case of version obsolescence described in (a) but shall terminate in relation to a Software product obsolescence described in (b) above.
8. Third Party Products and Services
The Software allows for third party plug-ins, third party software integration, and third party data integration, importation, and interoperation (“Third Party Product and Services”). Client shall be solely responsible for obtaining any Third Party Products and Services it requires and shall enter into the appropriate agreements with the respective third parties. Client shall be solely responsible for compliance with any copyright, trade-mark and any other proprietary restrictions relating to such Third Party Products and Services. Client assumes all responsibility and risk of use of any Third Party Products and Services and Nachas hereby disclaims any and all liability to Client or any third party related thereto. Nachas is not responsible for any Third Party Products and Services, including but not limited to third party licensing fees, and will have no liability of any kind for Client’s use of such Third Party Products and Services and makes no warranty of any kind with respect thereto.
Pricing Data displayed within the Software is a Third Party product as defined above, and is provided “as-is” to users on a best-efforts basis. Nachas makes no warranty as to the accuracy and timeliness of such data. Provision of data is subject to the relevant terms and restrictions imposed by our third-party data providers, including limitations on redistribution, which may restrict our ability to provide Pricing Data on an ongoing, streaming and real-time basis. Client accepts that the provision of Pricing Data is a value-added service provided free-of-charge by Nachas, and indemnifies Nachas against any losses as a result of sole reliance on the Pricing Data provided, including but not limited to trading losses from delayed pricing.
9. Disclaimer of Warranties
In addition to the limitations of Nachas’ liability expressly contained in this agreement, Nachas further disclaims any warranty and the parties acknowledge and agree that client assumes all the responsibility and risk for client’s use of the software and the results and performance thereof. The software is provided to client on an “as is” and “as available” basis, without warranty of any kind.
Nachas disclaims for itself and on behalf of Apple, Inc., all warranties and conditions, express or implied, statutory or otherwise including but not limited to any implied warranties and conditions of merchantability, merchantable quality, fitness for a particular purpose and non-infringement, and any warranties and conditions arising out of course of dealing or usage of trade. No advice or information, whether oral or written, obtained from Nachas or elsewhere will create any warranty or condition not expressly stated in this agreement.
Nachas does not represent or warrant that: (i) the software will meet client’s requirements or will be error free or that any errors will be corrected; (ii) the operation of the software or any third party software will be uninterrupted; or (iii) the accuracy, timeliness, completeness, or adequacy of the software and any data accessed therefrom. Information provided through the software or any third-party products and services may be delayed, inaccurate, or contain errors or omissions, and Nachas will have no liability with respect thereto.
Some jurisdictions do not allow the exclusion or limitation of certain warranties, so some of the above exclusions may not apply to Client, but are intended to apply to the extent permitted by applicable law.
Nachas may change or discontinue any aspect or feature of the Software or the use of all or any features or technology in the Software at any time without prior notice to Client.
10. Limitation of Liability
In no event will Nachas, Apple, Inc., nor their respective affiliated entities or any of their respective officers, directors, employees or authorized agents be liable, even if informed of their possibility, for any special, indirect, incidental, consequential, exemplary or punitive damages, including but not limited to damages for lost or damaged data, lost profits, trading losses, loss of goodwill, lost revenue, service interruption, computer or device damage or system failure, wasted time, anticipated savings or costs of procurement of substitute goods or services, arising out of or in connection with this agreement or the installation or use of or inability to use the software under any theory of liability, including but not limited to contract or tort (including but not limited to products liability, strict liability and negligence), and whether or not Nachas was or should have been aware or advised of the possibility of such damage and notwithstanding the failure of essential purpose of any limited remedy stated in this agreement.
Except as set out in Section 13 hereof, if any act, omission or negligence (“Default”) on the part of Nachas in connection with this Agreement or in relation to the subject matter of this Agreement, whether in contract or tort, entitles Client to recover damages from Nachas, Nachas' aggregate liability for any and all Defaults shall not exceed the license fees paid within the preceding 12 months of the Default to Nachas by the Client pursuant to this Agreement.
Nachas, and not Apple, Inc., is responsible for addressing claims relating to the Application and the Client’s possession and/or use of the Application.
Some jurisdictions do not allow the limitation or exclusion of liability, such as for incidental or consequential damages, so the above limitation or exclusion may not apply to Client but are intended by the parties to apply to the fullest extent permitted by applicable law.
11. Confidentiality
Client will treat the Software as trade secrets and proprietary know-how belonging to Nachas that is being made available to Client in confidence. Client agrees to treat the Software with at least the same care as it treats its own confidential or proprietary information. Client will treat any amounts payable by it pursuant to this Agreement as confidential information of Nachas and shall not disclose this information without express written consent of Nachas except as may be required by law. Without limiting the foregoing, Client agrees that it will not disclose information about the Software and its features and functions without the prior permission of Nachas.
In the process of implementing and supporting the Software, Nachas and any consultants working for Nachas may receive information about certain matters which are confidential to Client (“Client Confidential Information”).
This confidential information consists of:
This confidential information shall not include information:
Client Confidential Information shall be held by Nachas and any consultants working for Nachas in confidence and shall not be disclosed or used without express written consent of Client at any time, except as may be required by law.
With respect to Client’s data, including any Client owned data stored by the Software or on Nachas controlled or managed computers or storage, Nachas will not disclose Client’s data outside of Nachas or its subcontractors, controlled subsidiaries and affiliates except as Client directs or as required by law. Nachas will not disclose Client data to law enforcement unless required by law. If a regulatory or legal authority contacts Nachas with a demand for Client data, Nachas will attempt to redirect them to request that data directly from Client. If, however, Nachas is compelled to disclose Client data, Nachas will promptly notify Client and provide a copy of the demand unless legally prohibited from doing so. Upon receipt of any other third-party request for Client data, Nachas will promptly notify Client unless prohibited by law. Nachas will reject the request unless required by law to comply. If it is required to comply with the other third-party request, Nachas will attempt to redirect the third party to request the data directly from Client.
12. Security
Where Software is provided to an individual user, concurrent usage or sharing of Software access between users is not permitted. Access to the Software may be subject to using passwords or other security devices ("Security Credentials") provided by Nachas. Such Security Credentials must not be shared. Nachas may change Security Credentials with notice to Client or Client's users for security reasons.
Each party will use reasonable efforts to :
Nachas has implemented, maintains and follows industry-appropriate technical and organizational measures intended to protect Client data against accidental, unauthorized or unlawful access, disclosure, alteration, loss, or destruction.
If Nachas becomes aware of any unlawful access to any Client data stored on equipment or in facilities controlled or managed by Nachas, or unauthorized access to such equipment or facilities resulting in loss, disclosure, or alteration of Client data (each a “Security Incident”), Nachas will promptly:
Client agrees to notify Nachas as soon as practicable about any possible misuse of the Software or Security Credentials or any security incident related to the Software or its use.
13. Indemnification
Nachas shall defend and hold Client harmless from any claim by a third party that the Software infringes any registered patent, copyright or trade secret of that third party, provided:
In the event such a claim is made or appears likely to be made, or the Software is held by a court of competent jurisdiction to constitute an infringement or use of the Software is enjoined, Client agrees that Nachas may at its sole option, do one of the following:
If Nachas determines that none of options (iv) through (vi) is commercially reasonably available to it, Client agrees to immediately discontinue use of the Software and return or destroy all copies.
Nachas has no obligation, including no obligation to indemnify Client, in respect of any claim arising from or related to any of the following:
This Section 13 states Nachas’ sole liability and Client’s exclusive remedies for intellectual property infringement claims.
14. Injunctive Relief
It is expressly agreed that a breach by Client of Sections 3 or 4 or a breach by either party of Section 11 could cause irreparable harm to the non-breaching party and that a remedy at law would be inadequate. Therefore, in addition to any and all remedies available at law, the parties agree in respect of a breach or threatened breach of the above mentioned sections of the Agreement, the non-breaching party shall be entitled to seek, without bond or other security, an injunction or other equitable relief or remedies (temporary, preliminary and/or permanent) as may be necessary or appropriate to prevent or mitigate such damage; and each party hereby waives the defence that the other party has an adequate remedy at law.
15. Data Privacy
Each party will at all times comply with Data Protection Legislation in respect of its processing of Personally Identifiable Information.
Client confirms that any Client Personal Data has been collected and disclosed in accordance with Data Protection Legislation. When using the Software, or accessing Nachas' systems or any other information held by Nachas, Client shall not input, upload, maintain or disclose any irrelevant or unnecessary information about individuals.
The parties shall use reasonable efforts to assist one another in relation to the investigation and remedy of any claim, allegation, action, suit, proceeding or litigation with respect to alleged unauthorized access, use, processing or disclosure of Personally Identifiable Information.
Each party will maintain, and will require all third party data processors each such party engages to maintain, appropriate physical, technical and organizational measures to protect Personally Identifiable Information against accidental, unauthorized or unlawful destruction, loss, alteration, disclosure or access.
If in respect of its processing of Personally Identifiable Information Client or Nachas is required by Data Protection Legislation to include privacy terms with the other party, additional data privacy terms shall be notified to Client by Nachas from time to time. The parties acknowledge and agree that these additional data privacy terms shall apply in addition to this Section 15 (Data Privacy) and form an Annex to this Agreement and/or are set out at https://www.nachasnetworks.com/privacy in relation to the General Data Protection Regulation (2016/679), In such circumstances, any reference to Section 15 (Data Privacy) in this Agreement shall be construed to include such additional data privacy terms.
16. Client Responsibilities and Authorized Persons
Client acknowledges and agrees that:
Client shall be responsible for:
Client shall cooperate with Nachas and any regulator in any investigation or other inquiry regarding Client's use of the Software.
17. Client Due Diligence
Before the start of and during the provision of the Software, Nachas may be required by law to conduct anti-money laundering checks. If requested by Nachas, Client agrees to provide information and or documentation which are necessary for compliance with anti-money laundering laws and regulations.
18. General Provisions
Notice is effective upon receipt. Any party may change its address appearing in the introductory paragraph to this Agreement by giving notice of the change in accordance with this paragraph.
19. Contact
Any communication regarding the Application or this License Agreement should be directed to Nachas Services Limited, 30 Churchill Place, London E14 5RE, United Kingdom.
Nachas, and not Apple, Inc., is responsible for addressing claims relating to the Application and the Client's possession and/or use of the Application.