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Date: January 2017 | Document Revision: 2.0 | Date of Issue: January 10, 2017
This TMX Webstore Vendor Distribution Agreement (the “Agreement”) forms a legally binding contract between you (the “Vendor”) and TSX Inc. (“TSX”) governing your use of the TMX Webstore to market and distribute Vendor Products. You agree to be legally bound by this Agreement effective on the date you click the “I Agree” button below (the “Effective Date”) If you do not agree to be legally bound by this Agreement, then you are prohibited from using the TMX Webstore to market and distribute Vendor Products.
1.1 “Applicable Laws” means any laws, statutes, statutory instruments, directives, regulations, guidelines, or codes of conduct of a regulatory authority applicable to a party or the subject matter of this Agreement, and shall include, without limitation all applicable federal, provincial or state privacy legislation.
1.2 “End User” means any Person who purchases Vendor Product via the TMX Webstore.
1.3 “Force Majeure” has the meaning attributed to that term in subsection 10.9.
1.4 “Person” means any individual, corporation, or partnership.
1.5 “Personal Information” means information about an identifiable individual or information which relates to a natural person and allows that person to be identified.
1.6 “TMX Webstore” means the online marketplace owned and operated by TSX, which allows Vendors to market and distribute Vendor Products directly to End Users
1.7 “Vendor” means a Person who is authorized by TSX hereunder to market and distribute Vendor Products via the TMX Webstore in accordance with the terms of this Agreement.
1.8 “Vendor EULA” has the meaning attributed to that term in subsection 2.3.
1.9 “Vendor Marks” has the meaning attributed to that term in subsection 4.5.
1.10 “Vendor Products” means the Vendor’s software applications, market data, analytics, or other content marketed and distributed to End Users via the TMX Webstore.
2.1 Vendor agrees to use the TMX Webstore only for the purposes permitted by this Agreement and by Applicable Law.
2.2 Vendor agrees not to engage in any activity that interferes with, disrupts, damages, or accesses in an unauthorized manner, the devices servers, networks, or other properties or services of TSX, its affiliates, or of any third party including, but not limited to any End User.
2.3 Vendor may require End Users to accept a separate end user license agreement to govern the End Users’ rights and obligations with respect to the use of the Vendor Products (the “Vendor EULA”). Vendor agrees that the terms and conditions of the Vendor EULA shall not conflict with any of the terms and conditions of this Agreement.
2.4 Vendor will deliver, or make accessible, the Vendor Product directly to End Users in accordance with: (i) the terms of this Agreement; (ii) any product description, service levels or technical specifications provided by Vendor to TSX; and (iii) the terms of the Vendor EULA. For certainty, Vendor acknowledges and agrees that TSX will not host, store, deliver, publish, or distribute the Vendor Product.
2.5 Vendor will discontinue delivery or accessibility of Vendor Products to any given End User upon receipt of notice from TSX that such End User is no longer entitled to receive the Vendor Products.
2.6 Vendor is solely responsible (and TSX has no responsibility to Vendor or any End User for) providing all support and maintenance of Vendor Products and for handling all End User complaints about the Vendor Products. Vendor shall provide End Users with valid and accurate contact information for support, maintenance and complaint handling purposes.
2.7 Vendor is solely responsible for (and TSX has no responsibility to Vendor, to any End User, or to any third party for) the Vendor Products. Without limiting the foregoing, the Vendor shall be solely responsible for product liability, consumer protection and/or intellectual property infringement claims related to the Vendor Products.
2.8 Vendor is solely responsible for (and TSX has no responsibility to Vendor, to any End User, or to any third party for) any breach of Vendor’s obligations under this Agreement, any Vendor EULA, any third party contract, or any Applicable Law, and for the consequences, including any loss or damage which TSX, any End User or any third party may suffer, related to any such breach.
2.9 Vendor will provide TSX with at least thirty (30) days written notice before making any change to the content or technical specifications of any Vendor Product. With respect to any Vendor Product that is a data product, TSX will promptly post notification of the changes to End Users’ account on the TMX Webstore. With respect to any Vendor Product that is a software application, the Vendor will promptly notify End Users of any upcoming changes within the software application.
2.10 Vendor acknowledges and agrees that TSX, in its sole discretion, may: (a) change the content, appearance, design, functionality and all other aspects of the TMX Webstore; (b) revise, or require Vendor to revise, any description or other information provided by Vendor for display in the TMX Webstore; or (c) refuse to list, de-list, or suspend listing of, any or all Vendor Products in the TMX Webstore.
3.1 Each party will be responsible for its own costs and expenses incurred in connection with the performance of its respective obligations under this Agreement.
3.2 Vendor Products will be displayed on the TMX Webstore on Vendor’s behalf, at the price(s) established by the Vendor in Vendor’s sole discretion.
3.3 All prices will be displayed in Canadian currency, unless otherwise stated.
3.4 TSX, or its third party payment processor, will process payments for transactions occurring via the TMX Webstore.
3.5 On a monthly basis, TSX will pay the Vendor seventy percent (70%) of the revenue, less sales tax, collected from End Users in connection with the sale of Vendor Products in the TMX Webstore in the previous month. TSX shall make such payments by bank transfer to the Vendor’s designated bank account, For certainty, TSX’s obligation to the Vendor hereunder shall in all circumstances be limited to money that TSX has actually received from End Users in connection with the sale of Vendor Products.
3.6 Vendor will deliver, or make accessible, the Vendor Product, to each End User immediately upon purchase of Vendor Product by such End User(s).
3.7 TSX will be responsible for collecting sales taxes from End Users in respect of transactions in the TMX Webstore and for remitting same to the applicable taxing authorities. Each party will be responsible for reporting and remitting any sales tax in connection with the 70% revenue share portion paid by TSX to Vendor, as applicable. Each party will be responsible for reporting its own income derived from this Agreement and for payment of its own income taxes.
3.8 TSX shall have the right, from time to time, to set off or deduct against any monies owing to Vendor by TSX, any monies that may be then due and owing by Vendor to TSX, for example, and without limitation, where TSX has provided a refund or other adjustment to an End User after TSX has paid Vendor’s related revenue share portion.
4.1 All intellectual property rights in and to the TMX Webstore will, as between TSX and Vendor, be and remain the sole and exclusive property of TSX.
4.2 All Intellectual Property Rights in and to the Vendor Products will, as between TSX and Vendor, be and remain the sole and exclusive property of Vendor.
4.3 To the extent that Vendor is required to use or to include any third party Intellectual Property in the Vendor Product, Vendor will be solely responsible for obtaining all necessary licenses and authorizations for such use or incorporation.
4.4 Nothing in this Agreement will limit TSX’s right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with, any Vendor Products, or any other products, software, or technologies that Vendor may develop, produce, market or distribute.
4.5 Vendor grants TSX a royalty-free, worldwide, non-exclusive, revocable, license to: (i) use, reproduce and display Vendor’s logos, trademarks, trade name, service marks and images (“Vendor Marks”) in connection with the marketing and offering for sale of the Vendor Products in the TMX Webstore as contemplated hereunder. TSX agrees that any and all use of the Vendor Marks by TSX shall inure to the Vendor. For certainty, none of the payments from TSX to Vendor described in this Agreement are attributable to the trade-mark license granted to TSX herein.
4.6 Vendor may only use the logos, trademarks, trade name, service marks and images of TSX with TSX’s prior written consent.
5.1 This Agreement will commence on the Effective Date and will continue until terminated by TSX or Vendor as set out herein.
5.2 TSX may terminate this Agreement:
5.3 Vendor may terminate this Agreement:
5.4 Upon termination of this Agreement, the following shall occur:
5.5 Regardless of the circumstances of termination or expiration of this Agreement, any provision which by its nature extends beyond the termination or expiration will survive according to their terms, including, but not limited to, the provisions of Section 4, subsection 6.3, Section 7, Section 8, Section 9 and Section 10.
6.1 Each party represents, warrants and covenants to the other party as follows:
6.2 Vendor represents, warrants and covenants to TSX the following:
6.3 EXCEPT AS PROVIDED IN SECTION 6.1 HEREIN, TSX EXPRESSLY DISCLAIMS ALL EXPRESS, IMPLIED OR STATUTORY REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, INCLUDING, BUT NOT LIMITED TO: (A) IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT; (B) THAT THE TMX WEBSTORE WILL MEET VENDOR’S REQUIREMENTS, WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, OR OPERATE WITHOUT ERROR; AND (C) ANY OBLIGATION, LIABILITY, RIGHT, CLAIM, OR REMEDY IN TORT WHETHER OR NOT ARISING FROM THE NEGLIGENCE OF TSX. VENDOR ACKNOWLEDGES AND AGREES THAT USE OF THE TMX WEBSTORE TO MARKET AND DISTRBUTE VENDOR PRODUCTS IS AT VENDOR’S SOLE RISK AND THAT THE TMX WEBSTORE IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND.
7. Vendor Indemnity
Vendor will indemnify, defend and hold harmless TSX, its affiliates, and their respective officers, directors, and employees, against all third party actions, claims, proceedings, losses, damages, costs and expenses, including without limitation, reasonable lawyers’ fees, arising out of or in connection with:
EXCEPT FOR VENDOR’S OBLIGATIONS UNDER SECTION 7 AND SECTION 9 HEREIN, NEITHER PARTY WILL BE LIABLE TO THE OTHER FOR ANY LOST PROFITS, LOST SALES, LOSS OF REVENUE OR OPPORTUNITY, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH PERFORMANCE OR FAILURE TO PERFORM UNDER THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF WARRANTY, CONTRACT, TORT, NEGLIGENCE, OR OTHERWISE, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 Vendor represents and warrants that it: (i) has in place the appropriate technical and organizational security measures to protect Personal Information against accidental or unlawful destruction or unauthorized disclosure or access; (b) has maintained and will continue to maintain suitable records in commercially reasonable detail with respect to Personal Information; (c) will not use Personal Information for any purpose other than as set out in this Agreement or as otherwise expressly consented to by the End User.
9.3 Vendor shall immediately inform TSX of any accidental or unauthorized use of disclosure of Personal Information.
9.4 Notwithstanding anything else in this Agreement, Vendor shall indemnify and hold TSX harmless from and against all losses, damages, liabilities, expenses (including reasonable legal fees) and claims resulting from or connected with Vendor’s failure to comply with the obligations of this Section 9.
10.1 Entire Agreement. This Agreement constitutes the entire agreement between TSX and the Vendor with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements, understandings, proposals, negotiations, representations or warranties of any kind.
10.2 Assignment. Vendor may not assign this Agreement, in whole or in part, without the prior written consent of TSX. The rights and obligations of TSX hereunder may be assigned by it at any time without the prior written consent of the Vendor.
10.3 Amendment. TSX may modify the terms of this Agreement from time to time. Vendor will be prompted to review and accept all modifications to this Agreement and such modifications will apply immediately upon acceptance.
10.4 Waiver. The waiver by TSX of strict compliance with, or performance of any of, the terms and conditions hereof or of any breach hereof on the part of Vendor, shall not be deemed to be a waiver of any subsequent failure to comply strictly with, or perform, the same or any other term or condition of the Agreement or of any breach thereof.
10.5 Severability. Whenever possible, each provision of this Agreement will be interpreted in such a manner as to be effective and valid under Applicable Law, but if any provision of this Agreement is found to violate Applicable Law, such provision will be severed from the rest of this Agreement and a new provision deemed added to this Agreement to accomplish to the extent possible, the intent of the parties as evidenced by the provision so severed. All other provisions of this Agreement shall remain in full force and effect.
10.6 Relationship of the Parties. The parties are independent contractors. Nothing in this Agreement constitutes or should be construed as creating a partnership, joint venture, principal-agent, principal-servant, or an employer-employee relationship between the parties, and no such representations shall be made by either party. Neither party shall have the authority to assume or create any obligation of liability of any kind on behalf of the other party, and neither party shall have the authority to enter into, incur, make, change, enlarge or modify any contract, liability, obligation, representation, guarantee, warranty or commitment of any kind on behalf of the other party.
10.7 Subcontracting. TSX shall be entitled to subcontract its obligations set out in this Agreement.
10.8 Publicity. Any media release, public announcement or public disclosure relating to this Agreement or its subject matter must be approved by both parties in writing prior to its release.
10.9 Force Majeure. Neither party will be liable for any delay or failure in performance, resulting from acts of God, acts of war, terrorism, revolutions, fire, flood, or other natural disaster, act of government or any other similar event beyond the reasonable control of the party (each, a “Force Majeure”) provided that it gives to the other party prompt detailed written notice of such inability to perform. In the event of a Force Majeure, the frustrated party will forthwith establish and implement a workaround plan that minimizes the destruction to the other party and will use commercially reasonable efforts to remedy the situation and remove the cause of its inability to perform as soon as possible. Notwithstanding the foregoing, either party will have the right to terminate this Agreement forthwith upon notice to the other party, if the other party has failed to perform its obligations for a total of thirty (30) calendar days as a result of one or more events of a Force Majeure.
10.10 Notices. All notices or other documents required to be given under this Agreement shall be given in writing and sent by electronic transmission and shall be deemed to have been received on the date following transmission thereof. Notices to TSX shall be sent to Dawid.Suski@tmx.com with a copy to email@example.com. Notices to the Vendor shall be sent to the Vendor’s email address provided during registration. Vendor shall promptly notify TSX of any change to its email address.
10.11 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The parties consent and attorn to the non-exclusive jurisdiction of the courts of Ontario for the purpose of any suit or other proceeding arising under this Agreement.
CONTACT TMX WEBSTORE
Senior Product Manager, Web and Mobile
T 1 416 947-4559