Merlin Financial Services Market Data Addendum
This agreement (the "Market Data Addendum" or the "Addendum") supplements and forms part of the Merlin Financial Services Customer Agreement (as supplemented, updated and amended from time to time, the "Customer Agreement"). This is the "Market Data Addendum" referred to in the Customer Agreement and incorporated by reference therein. Capitalized terms used in this Market Data Addendum and not otherwise defined have the meanings given to them in the Customer Agreement. This Market Data Addendum may be amended or supplemented from time to time by notice, as set out below.
AS SET OUT BELOW AND WITHOUT LIMITATION, TO RECEIVE NYSE MARKET DATA YOU AGREE TO THE AGREEMENT FOR MARKET DATA DISPLAY SERVICES OF THIS MARKET DATA ADDENDUM, TO RECEIVE NASDAQ MARKET DATA YOU AGREE TO THE NASDAQ MARKET DATA AGREEMENT OF THIS MARKET DATA ADDENDUM, AND TO RECEIVE OTC MARKETS DATA YOU AGREE TO THE OTC MARKETS SUBSCRIBER AGREEMENT REFERENCED IN THIS MARKET DATA ADDENDUM.
1. No warranty; limitation of liability
Merlin and/or its affiliates receive Market Data from industry sources and Third Party Providers. Market Data is provided or made available to you on an "as is" and on an "as available" basis and should not be considered as any form of advice or recommendation for you or your Account. Merlin does not endorse, approve, or provide any view or opinion on any Market Data. Neither Merlin nor any Third Party Provider (i) warrants or guarantees the accuracy, timeliness, completeness or correctness of any Market Data, or (ii) warrants any results or interpretations from any use or reliance upon Market Data for any purpose. Your use of any Market Data is at your own risk. Past performance is no guarantee of future results.
NEITHER THE MERLIN PARTIES NOR ANY THIRD PARTY PROVIDER SHALL BE LIABLE IN ANY WAY FOR (A) ANY INACCURACY, ERROR, OR DELAY IN, INTERRUPTION OR OMISSION OF, ANY MARKET DATA, INFORMATION OR MESSAGE, OR THE TRANSMISSION OR DELIVERY THEREOF; OR (B) ANY LOSSES (AS DEFINED IN THE CUSTOMER AGREEMENT) OR DAMAGE ARISING FROM OR IN CONNECTION WITH MARKET DATA OR ANY SUCH INACCURACY, ERROR, DELAY, INTERRUPTION OR OMISSION, WHETHER DUE TO ANY ACT OR OMISSION BY MERLIN OR A THIRD PARTY PROVIDER, OR OTHERWISE. MERLIN AND THE THIRD PARTY PROVIDER(S) ARE NOT RESPONSIBLE FOR, AND YOU AGREE NOT TO HOLD ANY OF THEM LIABLE FOR, ANY LOSSES, LOST PROFITS, TRADING LOSSES, OR OTHER DAMAGES RESULTING FROM OR IN CONNECTION WITH YOUR USE OF ANY MARKET DATA, OR FROM OR IN CONNECTION WITH ANY INACCURATE, DEFECTIVE OR UNAVAILABLE MARKET DATA. THE LIMITATIONS OF LIABILITY IN THIS MARKET DATA ADDENDUM ARE IN ADDITION TO AND WITHOUT PREJUDICE TO ANY OTHER LIMITATIONS OF LIABILITY IN THE CUSTOMER AGREEMENT OR OTHER AGREEMENTS YOU MAY HAVE FROM TIME TO TIME WITH ANY OTHER MERLIN ENTITY OR WITH ANY THIRD PARTY PROVIDER.
We may remove, restrict, or terminate access to or provision of any Market Data at any time, or change any relevant Third Party Provider or any Market Data (and thereby the precise Market Data provided or made available, or the manner in which any Market Data is provided or made available) at any time.
2. Non-Professional; Restrictions on Use
You may not use (and represent to us that you will only use) Market Data provided to you in connection with the Platform for your own personal, non-business use, and subject to the terms of the Customer Agreement including this Market Data Addendum and the agreements constituted hereby. You must not use Market Data for any purpose not directly related to the Platform or your Account, and you must not provide, retransmit, redistribute or publish any Market Data to any other person or entity.
Unless and until you have expressly notified us in writing to the contrary, you represent and warrant to us on a continuing basis that you qualify as a "Non-Professional". If you think you are or might be a "Securities Professional" or if you think that you do not or might not qualify as a "Non-professional", you must contact us immediately at merlinfinance100@gmail.com
If you have told us in writing that you are a "Securities Professional" then you represent and warrant to us that you are a Securities Professional, until you notify us in writing to the contrary.
For these purposes:
"Non-professional" means any natural person who receives market data solely for their own personal, non-business use and who is not a "Securities Professional".
A "Securities Professional" for these purposes includes an individual who, if working in the United States, is:
(a) registered or qualified in any capacity with the Securities and Exchange Commission (the "SEC"), the Commodities Futures Trading Commission, any state securities agency, any securities exchange association, or any commodities or futures contract market or association, or self-regulatory body;
(b) engaged as an "investment advisor" as the term is defined in Section 202(a)(11) of the Investment Advisor's Act of 1940 (whether or not registered or qualified under that Act), or
(c) employed by a bank or other organization exempt from registration under Federal and/or state securities laws to perform functions that would require that individual to be so registered or qualified if they were to perform such functions for an organization not so exempt.
A person who works outside of the United States will be considered a "Securities Professional" if they perform the same function(s) as a person who would be considered a "Securities Professional" in the United States. Any use of Market Data for business, professional or other commercial purposes is not compatible with Non-Professional status, even if the commercial use is on behalf of an organization that is not in the securities industry.
You undertake to continually assess your status as to whether you are a Non-Professional or whether you ar ea Securities Professional, and undertake to promptly notify us if your classification as a "Non-professional" or a "Securities Professional" changes at any time whilst you have an Account. You acknowledge that we have provided you with an Account and with Market Data in reliance on your representations and warranties to us as to your status. You indemnify Merlin for any fees, costs, losses, liabilities or expenses that Merlin may incur or suffer, directly or indirectly, in connection with any representation or warranty being incorrect or inaccurate in any respect when given or repeated.
3. Specific Terms required by certain Third Party Data Providers
A. NYSE Market Data
Merlin may provide or make available to you through Platform certain Market Data being (a) last sale information and quotation information relating to securities that are admitted to dealings on the New York Stock Exchange, (b) such bond and other equity last sale and quotation information, and such index and other market information, as United States-registered national securities exchanges and national securities associations may make available and as the New York Stock Exchange may from time to time designate as "Market Data''; and (c) all information that derives from any such information (such data or information from time to time being "NYSE Market Data"). To receive or have made available to you any NYSE Market Data, you enter into the "Agreement for Market Data Display Services" in the form of attached Appendix 1 to this Market Data Addendum (the "NYSE Market Data Agreement") with Merlin Financial Services.
The NYSE Market Data Agreement will be deemed to have been executed and entered into by you by your agreement to the Customer Agreement and this Market Data Addendum, and in addition to being incorporated into the Customer Agreement by virtue of this Market Data Addendum, constitutes a separate agreement between you and Merlin. YOu acknowledge and agree that the NYSE Market Data Agreement is a legal, valid and binding contract between you (as Subscriber) and Merlin Financial Services (as Vendor).
B. NASDAQ Market Data
Merlin Finance may provide or may make available to you through the Platform certain Market Data that consists of or includes information owned or provided by NASDAQ (each as defined below). You agree to the terms set out below ("the Nasdaq Market Data Agreement"), which constitute a legally binding agreement between you and Merlin Finance. Certain defined terms are set out below.
1. Use of Data. You are only permitted to access, view, or use any information for your personal, non-business, use. You undertake to only use information for your personal, non-business, purposes. You agree not to sell, lease, furnish, or otherwise permit or provide access to the information to any other Person or to any other office or place. You agree not to engage in the operation of any illegal business use or permit any else to use the information, or any part thereof, for any illegal purpose or violate any NASDAQ or SEC Rule or other applicable law, rule or regulation. You agree not to present the information rendered in any unfair, misleading or discriminatory format to take reasonable security precautions to prevent unauthorized Persons from gaining access to the Information.
2. Proprietary Data. You acknowledge and agree that (i) NASDAQ has proprietary rights to the information that originates on or derives from markets regulated to operated by NASDAQ, and compilation or other rights to information gathered from other sources; and (ii) NASDAQ's third party information providers have exclusive proprietary rights to their respective Information. In the event of any misappropriation or misuse by you of any Information, NASDAQ or its third-party information providers shall have the right to obtain injunctive relief for their respective materials.
3. Modifications. NASDAQ may from time to time, in its sole discretion, make modifications to its system or the Information. Such modifications may require corresponding changes to be made in Merlin's service or in the way Information is provided or presented to you, and may affect your access to or use of some or all of the Information. Neither NASDAQ nor Merlin shall be responsible for such effects.
4. Reporting and Audit. If requested by Merlin Finance or NASDAQ, you undertake to provide reasonable cooperation including: (i) promptly providing information or materials in response to any reasonable request; and (ii) making available for examination all records, reports, payments, and supporting documentation, in each case relating to the Information, necessary to reach a conclusion as to your compliance with these terms.
5. System. You acknowledge that NASDAQ, in its sole discretion, may from time-to-time make modifications to its system or the Information. Such modifications may require corresponding changes to be made in the way Information may be displayed or provided to you. NASDAQ shall not be responsible for such effects.
6. No endorsement. NASDAQ does not endorse or approve any equipment, Merlin, or Merlin's service. Merlin makes no representations or warranties in connection with NASDAQ or Information.
7. Limitations of Liability.
a. Except as may otherwise be set forth herein, NASDAQ shall not be liable to you or any other Person for indirect, special, punitive, consequential or incidental loss or damage (including, but not limited to, trading losses, loss of anticipated profits, loss by reason of shutdown in operation or increased expenses of operation, cost of cover or other indirect loss or damage) of any nature arising from any cause whatsoever, even if NASDAQ has been advised of the possibility of such damages.
b. NASDAQ shall not be liable to you or any other Person for any unavailability, interruption, delay, incompleteness or inaccuracy of the Information. This section shall not relieve NASDAQ, you, or any other Person from liability or damages that result from their own gross negligence or willful tortious misconduct or from personal injury or wrongful death claims. You understand and agree that the terms of this section reflect a reasonable allocation of risk and limitation of liability.
8. Disclaimers of Warranties. NASDAQ and its third-party information providers make no warranties of any kind-- express, implied or statutory (including without limitation, timeliness, truthfulness, sequence, completeness, accuracy, freedom from interruption), any implied warranties arising from trade usage, course of dealing, course of performance or the implied warranties of merchantability or fitness for a particular use or purpose or noninfringement.
9. Third-party Information Providers' limitation of liability. NASDAQ's third-party information providers shall have no liability for any damages for the accuracy of or for delays or omissions in any of the information provided by them, whether direct or indirect, lost profits, special or consequential damages of you or any other Person seeking relief through you, even if the third-party information providers have been advised of the possibility of such damages. In no event will the liability of the third-party information providers or their affiliates to you or any other Person seeking relief through you pursuant to any cause of action, whether in contract, tort or otherwise, exceed the fee paid by you or any other Person seeking relief through you, as applicable.
10. Claims and Losses. You will indemnify NASDAQ and hold NASDAQ and its employees, officers, directors and other agents harmless from any and all Claims or Losses imposed on, incurred by or asserted as a result of or relating to: (a) any noncompliance by you with the terms and conditions hereof; (b) any third-party actions related to your receipt and use of the Information, whether authorized or unauthorized; (c) a claim of infringement or other violation of an intellectual property right by you or your actions or omissions, equipment or other property.
11. Termination. You acknowledge that NASDAQ, when required to do so in fulfillment of statutory obligations, may by notice to Distributor unilaterally limit or terminate the right of any or all Persons to receive or use the information and that Distributor will immediately comply with any such notice and will terminate or limit the furnishing of the Information and confirm such compliance by notice to NASDAQ. Any affected Person will have available to it such procedural protections as are provided by the Act and applicable rules thereunder. In the event of your breach, discovery of the untruth of any of your representations, or where directed by the SEC in its regulatory authority, NASDAQ may terminate this Nasdaq Market Data Agreement with not less than three (3) days written notice to you provided either by NASDAQ or Merlin.
12. Definitions. The following terms have the following meanings:
a. "Act" shall mean the Securities and Exchange Act of 1934, applicable only to Information disseminated from a NASDAQ Market in the United States.
b. "Information" means certain market data and other data disseminated that has been collected, validated, processed, and recorded by the System or other sources made available for transmission to and receipt from either a Vendor or from NASDAQ relating to: (a) eligible securities or other financial instruments, markets, products, vehicles, indicators, or devices; (b) activities of NASDAQ; (c) other information and data from NASDAQ. Information also includes any element of information as used or processed in such a way that the Information can be identified, recalculated or re-engineered from the processed Information or that the processed Information can be used as a substitute for Information.
c. "NASDAQ" means collectively NASDAQ, Inc. a Delaware limited liability company and its subsidiaries and Affiliates.
d. "NASDAQ Markets" shall mean the regulated securities and options exchange subsidiaries of NASDAQ, including, but not limited to, the NASDAQ Stock Market.
e. "Person" means any natural person, proprietorship, corporation, partnership or other entity whatsoever.
f. "SEC" means the U.S. Securities and Exchange Commission.
g. "System" means any system NASDAQ has developed for the creation and/or dissemination of Information.
13. Amendments. This Nasdaq Market Data Agreement may be amended or modified as set out in this Market Data Addendum.
C. OTC Markets Data
Merlin may provide or make available to you through the Platform certain Market Data that is provided directly or indirectly by OTC Market Group, Inc. and its affiliates ("OTC Markets Data"). As a condition of receiving any OTC Markets Data, you are deemed to enter into an agreement with Merlin Finance in the form of the OTC Markets Subscriber Agreement, as defined below, as amended from time to time.
The OTC Markets Group Market Data Subscriber Agreement in the form attached to the OTC Markets Group Market Data Distribution Agreement (the "OTC Markets Subscriber Agreement")(which may be described as the 'Market Data Distribution Agreement Subscriber Addendum') is incorporated by reference into this Market Data Addendum. For the purposes of the OTC Markets Subscriber Agreement Merlin Finance is the "Vendor", and you are the "Subscriber". The current version of the OTC Markets Subscriber Agreement is available on the OTC Markets Group website (https://www.otcmarkets.com/market-data/agreemetns-and-forms) or on request from Merlin Finance.
By opening and Account or accessing the Platform you expressly acknowledge that (i) you have read and understood the OTC Markets Subscriber Agreement, and (ii) that OTC Markets Group and its affiliates are a third party beneficiary of the agreement between you and Merlin in the form of the OTC Markets Subscriber Agreement. The OTC Markets Subscriber Agreement (and therefore the agreement in the form of the OTC Markets Subscriber Agreement between you and Merlin Finance constituted by this Market Data Addendum) may be amended by OTC Markets Group from time to time.
D. FactSet Market Data
Merlin may provide or make available to you through the Platform certain Market Data that is provided directly or indirectly by FactSet Research Systems, Inc. or its affiliates ("FactSet")(such Market Data, "FactSet Market Data"). In respect of any FactSet Market Data that is provided or made available to you, you will receive only a limited right to use that FactSet Market Data that is provided or made available to you, you will receive only a limited right to use that FactSet market Data for your own non-commercial use. FactSet Market Data is copyrighted works of FactSet and must not be reproduced, republished, retransmitted, or redistributed in any form. Neither Merlin nor FactSet makes any warranty, express or implied, as to the accuracy of the FactSet Market Data or results obtained from any use of the FactSet Market Data. FactSet does not make any express or implied warranties of any kind regarding the FactSet market Data, including, without limitation, any warranty of merchantability or fitness for a particular purpose or use. FactSet will not be liable for any lost profits or other incidental or consequential damages in connection with Your use of the FactSet Market Data. Copyright 2020 FactSet Research Systems Inc. All rights reserved.
E. Morningstar Market Data
Merlin may provide or make available to you through the Platform certain Market Data that is provided directly or indirectly by Morningstar, Inc or its affiliates ("Morningstar")(such Market Data, "Morningstar Market Data") copyright 2020 Morningstar. All rights reserved. The Morningstar Market Data: (1) is proprietary to Morningstar Research Services, LLC, Morningstar, Inc. and/or their content providers; (2) may not be copied or distributed; and (3) is not warranted to be accurate, complete or timely. Neither Morningstar Research Services, Morningstar nor their content providers are responsible for any damages or losses arising from any use of this information. Morningstar does not make any express or implied warranties of any kind regarding the Morningstar Market Data, including, without limitation, any warranty of merchantability or fitness for a particular purpose or use. Access to or use of any Morningstar Market Data does not establish an advisory or fiduciary relationship with Morningstar Research Services, Morningstar, Inc. or their content providers. Past performance is no guarantee of future results.
4. Amendments and Modification
THIS MARKET DATA ADDENDUM AND ITS TERMS AND ANY AND ALL AGREEMENTS CONSTITUTED BY IT MAY BE SUPPLEMENTED OR AMENDED FROM TIME TO TIME BY MERLIN BY NOTICE TO YOU, AND SUCH NOTICE REQUIREMENT MAY BE SATISFIED BY THE REVISED MARKET DATA ADDENDUM BEING POSTED ON THE MERLIN WEBSITE. BY CONTINUING TO MAINTAIN ANY ACCOUNT OR ACCESS THE PLATFORM OR ANY MARKET DATA, YOU ARE DEEMED TO ACCEPT THE TERMS OF THE REVISED MARKET DATA ADDENDUM AND WILL BE LEGALLY BOUND BY ITS TERMS.
5. Governing Law and Jurisdiction
Section Governing Law and Arbitration of the Customer Agreement apply to and are incorporated into this Addendum as if set out in full.