BY CLICKING “I ACCEPT”, “I AGREE”, “PROCEED”, “CONTINUE”, OR SIMILAR WORDS AS APPLICABLE, OR BY USING ANY DIGITAL SIGNATURE, YOU AGREE YOUR COMPANY WILL BE BOUND BY AND FULLY COMPLY WITH THE PROVISIONS OF THIS AGREEMENT.
OANDA RATE SUBSCRIPTION AGREEMENT
This Rate Subscription Agreement (the “Agreement”) is entered into by and between OANDA Corporation (“OANDA”) and the undersigned Subscriber (the “Subscriber”) (collectively, the “Parties”), effective as the last or only date of the signature below (the "Effective Date").
1. Grant of License
Subject to the payment of all requisite Subscription Fees (as defined below), OANDA hereby grants to Subscriber, and Subscriber hereby accepts from OANDA, a limited, non-exclusive, non-transferable (subject to Section 15), limited right and license for the term of this Agreement to receive and use certain exchange rates that the Subscriber has subscribed to through OANDA’s website (“OANDA Exchange Rates”) for the limited purposes, and under the terms and conditions, set forth herein.
2. Scope of License
- Subscriber agrees that it will not communicate, resell or otherwise make available, or permit to be communicated or otherwise made available, OANDA Exchange Rates (or any part thereof) to any third party, without written permission from OANDA.
- In the event Subscriber becomes aware of any unauthorized use by a third party of OANDA Exchange Rates licensed to Subscriber, Subscriber will give OANDA prompt notice thereof. Subscriber will, thereafter, cooperate with OANDA in investigating the same.
3. Fees and Payment Terms
- Except for usage during a free trial period, Subscriber shall pay to OANDA the Subscription Fees in the amounts and for the period set forth on OANDA’s website at https://www.oanda.com/solutions-for-business/pricing.html for the particular license level selected by Subscriber on such website or as selected in Schedule A of this Agreement. Access to the OANDA Exchange Rates will commence upon OANDA’s receipt of the first payment from Subscriber of the Subscription Fee. Access may be granted earlier if a trial period is permitted by OANDA. In the event Subscriber’s actual usage of OANDA Exchange Rates at any time exceeds the authorization specified on OANDA’s website with respect to a particular license level, OANDA reserves the right to charge, and Subscriber hereby agrees to pay, OANDA’s Subscription Fees corresponding to Subscriber’s actual annual usage of OANDA Exchange Rates.
- OANDA reserves the right to increase Subscription Fees yearly at a rate of no more than 3% per annum over the previous year’s Subscription Fee. OANDA will notify the Subscriber of any change in Subscription Fees in advance by email or by posting such notice on its website; a change in Subscription Fees can occur at any time.
- If Subscriber signs up for additional OANDA Exchange Rates data services after entering into this Agreement, the prevailing Subscription Fees for such services as detailed on OANDA’s website will apply.
- If payment of the Subscription Fee is made by any mechanism other than credit card, the Subscription Fee shall be due and payable within 30 days of delivery of OANDA’s invoice. Fees paid by credit card are processed on the date of service initiation and monthly thereafter.
- In the event that any payment made by Subscriber to OANDA for any OANDA service is late, returned, or dishonored, Subscriber will be deemed to be in material breach of this Agreement, and Subscriber agrees to pay OANDA an additional administration fee of $50.00 for each dishonored or returned payment.
4. Changes to OANDA Exchange Rates
OANDA reserves the right, in its sole discretion, and from time to time, on sixty (60) days’ written notice to Subscriber, to change the format or content of OANDA Exchange Rates, whether or not such changes would require changes to be made by Subscriber to its mode of operation or would render any hardware or software which relies upon the OANDA Exchange Rates unsatisfactory or inoperative; provided, however, that Subscriber may, at its option, in the event of a change having such an effect, elect to terminate this Agreement, effective at the end of the aforementioned sixty (60) day period, by written notice to OANDA at least fifteen (15) days prior to such date. SUBSCRIBER AGREES THAT USE OF OANDA EXCHANGE RATES PROVIDED HEREUNDER AFTER EXPIRATION OF THE SIXTY (60) DAY NOTICE PERIOD MEANS THAT SUBSCRIBER ACCEPTS THE CHANGE.
5. Right of Inspection
Subscriber agrees to furnish to OANDA, upon OANDA’s written request, such information concerning its use of OANDA Exchange Rates as OANDA shall reasonably require for the purpose of monitoring compliance with this Agreement. Subscriber and OANDA agree that if OANDA believes, on reasonable grounds, that the Subscriber is, or
6. Proprietary Rights
Subscriber acknowledges that OANDA Exchange Rates consist of factual information gathered, selected and arranged by OANDA at considerable expense and by application of methods of selection and judgment unique to
7. Limitation of Access
Subscriber represents and warrants that it will limit its use of OANDA Exchange Rates solely for the Internal Use (as defined below) of Subscriber. For these purposes, the term “Subscriber” does not include any subsidiary or other entity controlled by, controlling or under common control with Subscriber. “Internal Use” shall mean access to and use of OANDA Exchange Rates for performance of research and analysis, preparation of research documents and reports (which may incorporate insubstantial amounts of data comprising OANDA Exchange Rates as an incidental part of such research documents) and for other data processing use, analysis and distribution within Subscriber’s own organization but not for redistribution of, or the provision of access to, OANDA Exchange Rates to the clients or customers of Subscriber or to any other non-Subscriber persons or entities. Subscriber shall advise each of its employees having access to OANDA Exchange Rates of the proprietary nature of OANDA Exchange Rates and shall direct such employees to treat such information pursuant to the terms of this Agreement.
8. EXCLUSION OF WARRANTIES
OANDA DOES NOT WARRANT OR GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE OANDA EXCHANGE RATES, AND SUBSCRIBER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, THE OANDA EXCHANGE RATES ARE BEING PROVIDED TO THE SUBSCRIBER “AS IS”, WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
9. EXCLUSION OF CONSEQUENTIAL DAMAGES
IN NO EVENT SHALL EITHER PARTY (OR ANY THIRD-PARTY AGENTS INVOLVED IN THE PROCUREMENT OR PROVISION OF OANDA EXCHANGE RATES, OR FACILITATION OF PAYMENTS RELATING THERETO) BE LIABLE TO THE OTHER FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM OR OCCASIONED BY A BREACH OF THIS AGREEMENT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LIMITATION OF LIABILITY
IN NO EVENT SHALL OANDA (OR ITS THIRD-PARTY AGENTS) BE LIABLE TO SUBSCRIBER OR TO ANY OTHER PERSON, REGARDLESS OF THE CAUSE, FOR THE ACCURACY OF THE OANDA EXCHANGE RATES, OR OF ANY OTHER INFORMATION SUPPLIED BY IT, OR FOR ANY DELAYS, INACCURACIES, ERRORS, INTERRUPTIONS OR OMISSIONS IN THE FURNISHING OF THE OANDA EXCHANGE RATES.
FACILITATION OF PAYMENTS RELATING THERETO) FOR ANY CLAIM ARISING HEREUNDER (WHETHER IN CONTRACT OR TORT INCLUDING NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE, BUT EXCLUDING AS A RESULT OF A BREACH OF SECTION 13 HEREOF OR A THIRD PARTY CLAIM PURSUANT TO SECTION 10 HEREOF) SHALL BE LIMITED TO THE AMOUNT OF SUBSCRIPTION FEES PAID OR PAYABLE BY THE SUBSCRIBER DURING THE IMMEDIATELY PRECEDING THREE (3) MONTHS.
- Subscriber agrees to indemnify and hold OANDA, its shareholders, directors, officers, employees, affiliates and agents harmless from and against any and all losses, claims, damages or liabilities (including reasonable attorneys’ fees) to which any of them may become subject and which are in any way related to or which have arisen under or in connection with the following, in each case whether arising under any statute, at common law or otherwise, and to reimburse them for all legal or other out-of-pocket expenses (including the reasonable costs of investigation and preparation) incurred in connection therewith: (i) any breach of this Agreement by Subscriber; and (ii) any third-party claims related to Subscriber's receipt and utilization of OANDA Exchange Rates, whether authorized or not authorized under this Agreement.
- OANDA agrees to indemnify and hold Subscriber, its shareholders, directors, officers, employees, affiliates and agents harmless from and against any and all losses, claims, damages or liabilities (including reasonable attorneys’ fees) to which any of them may become subject and which are in any way related to or which have arisen under or in connection with the following, in each case whether arising under any statute, at common law or otherwise, and to reimburse them for all legal or other out-of-pocket expenses (including the reasonable costs of investigation and preparation) incurred in connection therewith any third-party claims for breach of such third-party's intellectual property rights related to the OANDA Exchange Rates.
This Agreement shall be effective upon its execution by the parties, as of the Effective Date, and shall continue (unless sooner terminated by the provisions hereof) for a period of one (1) year from the Effective Date (the “Initial Term”). At the end of the Initial Term, this Agreement shall automatically renew for successive one year periods (“Renewal Terms”), unless either of OANDA or Subscriber elects to terminate the Agreement by providing the other with written notice of such termination at least thirty (30) days prior to the end of the Initial Period or current Renewal Term, as the case may be.
- Notwithstanding the provisions of Section 12, this Agreement may be terminated (i) at any time by Subscriber upon thirty (30) days written notice to OANDA; (ii) at any time by OANDA on sixty (60) days written notice to Subscriber; and (iii) by either party upon expiration of thirty (30) days following notice of a material breach of this Agreement by the other if the events giving rise to such material breach have not been cured within said thirty-day period.
- Immediately upon termination of this Agreement for any reason whatsoever:
- the license to use the OANDA Exchange Rates will be immediately revoked;
- Subscriber will forthwith destroy all copies of the OANDA Exchange Rates, and will provide OANDA with documentation certifying such destruction, however, if such data is required to be kept on file or in a backup for regulatory or governmental purposes the Subscriber is permitted to do so to the extent that the Subscriber deletes such data once the regulatory or governmental obligation lapses;
- Subscriber will pay to OANDA all unpaid amounts owing to OANDA, including but not limited to the Subscription Fees; and
- no refund will be payable in respect of any Subscription Fees or other amounts paid hereunder.
Subscriber agrees that it shall not disclose, directly or indirectly, in whole or in part, to any other person any Confidential Information received from OANDA. It is further understood and agreed that money damages would not be a sufficient remedy for any breach of this Section 14. Accordingly, in the event of a breach or threatened breach of any such obligation, Subscriber hereby consents to the granting of a temporary restraining order, preliminary injunction and/or permanent injunction against it by any court of competent jurisdiction, without requiring the posting of any bond or other security therefor, prohibiting it from committing or continuing any such breach or threatened breach. In any proceeding upon a motion for such a temporary restraining order, preliminary injunction or permanent injunction, its ability to answer in damages shall not be a bar, nor be interposed as a defense, to the granting of any such equitable relief against it. As used herein, “Confidential Information” shall mean all information or data received by Subscriber from OANDA pursuant to this Agreement (including, without limitation, the terms and conditions of this Agreement) which is not: (1) in the public domain (other than as a result of a disclosure directly or indirectly by Subscriber); (2) otherwise already known by Subscriber; or (3) independently developed by Subscriber during the term hereof without reliance upon any Confidential Information.
This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. This Agreement may not be assigned, in whole or in part, by either party without the prior written approval of the other party. Notwithstanding the foregoing, either party may assign or transfer this Agreement as part of a corporate reorganization, consolidation, merger or sale of all or substantially all of its equity or assets to another entity provided that entity assumes all of such party’s obligations under this Agreement.
Notwithstanding the termination of this Agreement for any reason, Sections 2, 6, 8, 9, 10, 13, 14, 16 and 18 hereof, and the obligations of Subscriber to make payments to OANDA pursuant hereto accrued prior to the date of such termination, shall survive such termination and shall remain in full force and effect.
17. Force Majeure
Neither party shall be liable for any delays or failures to perform any of its obligations hereunder to the extent that such delays or failures are due to circumstances beyond its reasonable control, including, without limitation, acts of God, strikes, riots, acts of war, telecommunications failure or governmental regulations imposed after the date of this Agreement.
18. Dispute Resolution
Except for the right of OANDA to apply to a court for injunctive relief or other such provisional remedy to prevent irreparable harm, OANDA and Subscriber agree that with respect to any controversy or claim arising out of or relating to this Agreement that OANDA and Subscriber will first work together in good faith to resolve the matter internally by escalating it to higher levels of management. If necessary, OANDA and Subscriber will next proceed to arbitration by a single arbitrator pursuant to the rules of the American Arbitration Association. The decision of the arbitrator will be binding and not subject to appeal.
19. Trial Period
OANDA may provide a free trial of the OANDA Exchange Rates service to the Subscriber for any duration that OANDA may set (a “Trial Period”). The restrictions of the Trial Period are determined solely at the discretion OANDA and may be modified at any time. The Trial Period is provided once and only upon the Subscriber’s first registration for the duration specified by OANDA. The Trial Period will not be provided upon subsequent registration by the Subscriber, their agents or affiliates. With respect to any Trial Period, the terms of this Agreement shall be effective from the date access is granted to the OANDA Exchange Rates. Notwithstanding anything else herein, a Trial Period may be terminated at any time by OANDA or the Subscriber which shall result in the termination of this Agreement immediately. Prior to or upon completion of the Trial
- The arrangements set forth herein between the parties are non-exclusive, including, by way of example and not limitation, the right of OANDA to distribute OANDA Exchange Rates or any part or component thereof to third parties.
- Each party agrees to execute, acknowledge, file and record such further documents, and do such further acts and things as may be required hereunder or as shall be reasonably necessary to carry out the intent and purposes of this Agreement.
- This Agreement constitutes a valid and binding obligation of each of the parties, enforceable in accordance with its terms, except as enforcement may be limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws affecting creditors’ rights generally and except as may be limited by the exercise of judicial discretion in applying principles of equity.
- This Agreement shall be construed in accordance with the laws of the State of New York, without reference to the conflict of laws provisions thereof.
- This Agreement constitutes the complete understanding and agreement of the parties with respect to the subject matter
hereof,and supersedes all prior communications with respect thereto.
- Except as otherwise expressly set forth herein, this Agreement may not be modified, amended or in any way altered or waived by either party, except in writing signed by both parties.
- Any consent by any party to, or waiver of, a breach by the other, whether express or implied, shall not constitute consent to, waiver of, or excuse for any other different or subsequent breach. This Agreement may be executed in counterparts, all of which together shall be deemed one and the same Agreement.
- Subscriber hereby agrees to permit OANDA or any of its affiliates or subsidiaries to contact Subscriber for marketing, promotional or other notifications.
- Any notice, request, demand or other communication required or permitted hereunder shall be sufficiently given only if in writing and only if delivered by hand or sent by registered mail (or its equivalent),
courier,or email addressed to the other party at the address set out herein or to such other person or address as the parties may from time-to-time designate in writing delivered pursuant to this notice provision. OANDA may give any notice, demand, request, or other communication required by this Agreement pursuant to the requirements of this Section or otherwise, including but not limited to notice given by placing such notice on the OANDA website, by email and by using any messaging feature available through OANDA's online site. Any such notices, requests, demands or other communications shall be deemed delivered and effective: (i) upon the date of receipt if delivered by hand, registered mail (or its equivalent) or courier; or (ii) on the date of confirmation of delivery, in the case of email:
185 Berry Street, Suite 4700
San Francisco, CA 94107
Phone: +1 212 390 8735
At the email address or physical address reflected in OANDA’s records. Subscriber shall immediately notify OANDA of any change in its email address or physical address.
- All monetary amounts referred to in this Agreement shall be in US Dollars.
- The parties to this Agreement are and shall remain independent and nothing herein shall be construed to create a partnership or joint venture between them.
- If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
- This Agreement supersedes and replaces all other prior agreements between Subscriber and OANDA in respect of OANDA Exchange Rates and any previous agreements are of no further force or effect.