INTERACTIVE BROKERS AGREEMENT ALLOWING THIRD-PARTY VENDORS
TO PARTICIPATE IN IB's INVESTORS' MARKETPLACE
This Agreement is entered into between Interactive Brokers ("IB") and the
undersigned Third-Party Vendor.
WHEREAS, IB has established a "Investors' Marketplace" through which
third-party providers of services such as software tools, programming
services, education and training and analyst research (collectively
"Third-Party Vendors") may post information that may be viewed by IB
customers and members of the public;
WHEREAS, Third-Party Vendor wishes to post information about itself on the
Investors' Marketplace;
NOW THEREFORE, for and in consideration of the promises and mutual
agreements set forth herein, IB and Third-Party Vendor agree as follows:
1. Information Provided by Third-Party Vendor: Third-Party Vendor
represents and warrants that all information provided to IB is true and
correct. Third-Party Vendor agrees to provide prompt written notice to IB of
any material change in any information provided by the Third-Party Vendor in
its application for participation in the Investors' Marketplace.
2. Accuracy of Information Provided by Third-Party Vendor for Review on
the Investors' Marketplace:
a. Third-Party Vendor represents and warrants that all information
that Third-Party Vendor asks IB to post to the Investors' Marketplace for
review by Participating Customers is true and correct. In the event that
such information materially changes, Third-Party Vendor agrees that it will
promptly update the information provided to IB for posting to the Investors'
Marketplace.
b. Third-Party Vendor likewise represents and warrants that all
information posted to the Investors' Marketplace for review by Participating
Customers is accurate and correct. Third-Party Vendor agrees that if any
information Third-Party Vendor posts to the Investors' Marketplace materially
changes, Third-Party Vendor will promptly submit the revised, current
information to IB to be posted to the Investors' Marketplace for review by
Participating Customers.
c. Third-Party Vendor agrees that IB will not, and is not obligated
to, verify the accuracy of any information posted to the Investors'
Marketplace by Third-Party Vendor. Third-Party Vendor bears all liability
for information posted or posted to the Investors' Marketplace by Third-Party
Vendor.
3. Relationship Between Third-Party Vendor and IB
a. Third-Party Vendor acknowledges that IB has no duty to
supervise or review Third-Party Vendor's actions concerning Third-Party
Vendor's Clients. Allowing Third-Party Vendor to post information on the
Investors' Marketplace does not in any way represent an endorsement or
recommendation of Third-Party Vendor, and Third-Party Vendor shall not make
any statements implying that IB has reviewed or approved Third-Party Vendor,
its services, or any of its recommendations or advice or actions.
b. Third-Party Vendor bears sole responsibility for resolving any
and all claims, questions or disputes of any kind by Third-Party Vendor's
Clients or others regarding Third-Party Vendor's provision of services or
Third-Party Vendor's activities under this Agreement.
c. Neither the Third-Party Vendor nor any officers, directors or
employees of Third-Party Vendor are employees or agents or associated
persons of IB, nor shall they hold themselves out as such. This Agreement
does not and shall not be deemed to constitute a partnership or joint
venture between the parties, and neither party nor any of their respective
directors, officers, employees or agents shall, by virtue of the performance
of their obligations under this Agreement, be deemed to be an agent or
employee of the other.
4. Compliance with Laws and Regulations:
a. Third-Party Vendor is solely responsible for complying with all
Laws and Regulations governing Third-Party Vendor (the "Laws and
Regulations"), and IB specifically disclaims any responsibility for such
compliance. Among other things, Third-Party Vendor is solely responsible
for: (i) satisfying any registration and/or licensing requirements and/or
determining whether Third-Party Vendor falls within a valid exemption from
registration and/or licensing; (ii) satisfying any contractual or fiduciary
obligations to Third-Party Vendor's clients; (iii) determining whether and
in what manner Third-Party Vendor may solicit customers; and (iv) providing
required disclosures, proper recordkeeping and reporting regarding the
Third-Party Vendor. Third-Party Vendor represents that Third-Party Vendor
and its officers, directors and employees are now, and shall remain, in
material compliance with the Laws and Regulations.
b. Third-Party Vendor represents that there are no civil or criminal
complaints, investigations, proceedings, actions or suits pending against or
involving Third-Party Vendor or any of its officers, directors, or
employees: (1) which allege any violation of any of the criminal,
securities, or commodities laws or regulations of any jurisdiction,
regulatory or self-regulatory organization, or exchange; or (2) which, if
decided, would have a material, adverse effect on the ability of Third-Party
Vendor to fulfill its obligations to Third-Party Vendor's Clients or to
perform Third-Party Vendor's obligations under this Agreement. If any such
civil or criminal complaints, investigations, proceedings, actions or suits
become pending against or involving Third-Party Vendor or any of its
officers, directors, or employees at any time, Third-Party Vendor shall
immediately notify IB in writing, and shall promptly provide to IB a copy of
any decision relating to such complaint, investigation, proceeding, action,
suit, disciplinary action, suspension, or restriction.
c. Third-Party Vendor also shall immediately notify IB of any other
restriction on Third-Party Vendor's activities with respect to Third-Party
Vendor's business or this Agreement. In either of these events, IB may take
any action it deems to be necessary to: (1) assure itself that Third-Party
Vendor will continue to comply with the Laws and Regulations notwithstanding
such action, suspension or restriction; and (2) comply with any requests,
directives, or demands made upon IB by any agency, regulatory or
self-regulatory organization, or exchange.
5. Liability and Indemnity: Third-Party Vendor hereby indemnifies and
agrees to hold IB and its affiliates, and its and their successors and
assigns, and its and their directors, officers and employees ("IB
Indemnitees") harmless against any and all penalties, damages, costs,
judgments, attorney's fees or any other expenses incurred in connection with
any and all claims of any kind against IB by current or prospective IB
customers, Third-Party Vendor's Clients who are not IB customers, civil or
regulatory authorities or any other third parties, which relate to
Third-Party Vendor's provision of services or Third-Party Vendor's
activities under this Agreement. Errors, misunderstandings or controversies
between Third-Party Vendor and Third-Party Vendor's Clients or others who
review Third-Party Vendor's information on the IB Investors' Marketplace shall
be Third-Party Vendor's sole responsibility and liability. These
indemnification provisions shall remain operative and in full force after
termination of this Agreement.
6. Intellectual Property: All right, title, copyright and other
interest in and to any part of or all of IB's systems including IB's
Investors' Marketplace and any other IB systems, software or technologies
shall at all times remain the sole and exclusive property of IB.
7. Statements Concerning Third-Party Vendors: Third-Party Vendor
agrees that nothing in this agreement shall prevent IB or its affiliates
from providing information to IB Customers or prospective customers
concerning Third-Party Vendor or to provide information concerning
Third-Party Vendor to government, regulatory or self-regulatory authorities.
Third-Party Vendor shall comply with all appropriate requests for
information from IB or any agency, regulatory or self-regulatory
organization, or exchange regarding any activities of Third-Party Vendor or
the actions effected under this Agreement.
8. Miscellaneous:
a. Third-Party Vendor agrees to the provision of this Agreement
in English and represents that Third-Party Vendor understands all of the
terms and conditions contained herein.
b. Either party may terminate this Agreement immediately upon
written notice to the other party.
c. This agreement is non-exclusive and nothing in this Agreement
shall prevent Third-Party Vendor from marketing its services through other
websites and nothing in this Agreement shall prevent IB from allowing other
Third-Party Vendors to participate in the Investors' Marketplace.
d. This Agreement constitutes the entire understanding of the
parties as to its subject matter. The parties acknowledge that they have
not relied upon any oral or written representation of the other or the
other's employees or agents and have made their own independent
investigations into all relevant matters. This Agreement may not be
modified except in writing signed by the party against whom such
modification shall be asserted.
e. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. All or part of the rights and
obligations of IB under this Agreement may be assigned by IB to any
affiliate of IB or of the Interactive Brokers Group, without the consent of
Third-Party Vendor, but no other assignment may be made by either party
without the written consent of the other, which shall not be unreasonably
withheld.
f. The failure of either party to enforce at any time, or for
any period, any one or more of the terms or conditions of this Agreement
shall not be a waiver of such terms or conditions or of the right at any
time subsequently to enforce all terms and conditions of this Agreement. If
any one or more of the provisions of this Agreement shall be held to be
invalid, illegal or unenforceable, the validity, legality or enforceability
of the remaining provisions of this Agreement shall not be affected thereby.
g. This Agreement is governed by the laws of the State of New
York, without giving effect to conflict of laws provisions. Courts of New
York have exclusive jurisdiction over disputes relating to this Agreement,
except when arbitration is provided. IN ALL JUDICIAL ACTIONS, ARBITRATIONS,
OR DISPUTE RESOLUTION METHODS, THE PARTIES WAIVE ANY RIGHT TO PUNITIVE
DAMAGES.
9. Mandatory Arbitration:
a. Third-Party Vendor and IB agree that any controversy, dispute,
claim, or grievance between IB, any IB affiliate or any of their
shareholders, officers, directors employees, associates, or agents, on the
one hand, and Third-Party Vendor or, if applicable, Third-Party Vendor's
shareholders, officers, directors employees, associates, or agents on the
other hand, arising out of, or relating to, this Agreement, or any
account(s) established hereunder; any transactions therein; any transactions
between and among IB, Third-Party Vendor and/or Third-Party Vendor's Clients
or IB Customers or others who review Third-Party Vendor's information on the
IB website; any provision of this Agreement or any other agreement between
IB and Third-Party Vendor; or any breach of such transactions or agreements,
shall be resolved by arbitration in accordance with the rules then
prevailing of any one of the following: (a) the Financial Industry
Regulatory Authority; (b) the National Futures Association, or (c) if
Third-Party Vendor resides in the U.K. or Europe, an appropriate arbitration
forum in the U.K. Neither IB nor Third-Party Vendor shall object to the
jurisdiction of any of the aforementioned venues for arbitration on the
grounds that Third-Party Vendor or IB is not registered with the particular
forum or organization sponsoring the forum, or that not all products traded
in the relevant account(s) (if applicable) are under the jurisdiction of the
particular forum or organization.
b. ALL PARTIES TO THIS AGREEMENT ARE GIVING UP THE RIGHT TO SUE EACH OTHER IN COURT, INCLUDING THE RIGHT TO A TRIAL BY JURY, EXCEPT AS
PROVIDED BY THE RULES OF THE ARBITRATION FORUM IN WHICH A CLAIM IS FILED.
c. ARBITRATION AWARDS ARE GENERALLY FINAL AND BINDING; A PARTY'S
ABILITY TO HAVE A COURT REVERSE OR MODIFY AN ARBITRATION AWARD IS VERY
LIMITED.
d. THE ABILITY OF THE PARTIES TO OBTAIN DOCUMENTS, WITNESS
STATEMENTS AND OTHER DISCOVERY IS GENERALLY MORE LIMITED IN ARBITRATION THAN
IN COURT PROCEEDINGS.
e. THE ARBITRATORS DO NOT HAVE TO EXPLAIN THE REASON(S) FOR THEIR
AWARD.
f. THE PANEL OF ARBITRATORS WILL TYPICALLY INCLUDE A MINORITY
OF ARBITRATORS WHO WERE OR ARE AFFILIATED WITH THE SECURITIES INDUSTRY.
g. THE RULES OF SOME ARBITRATION FORUMS MAY IMPOSE TIME LIMITS
FOR BRINGING A CLAIM IN ARBITRATION.
h. IN SOME CASES, A CLAIM THAT IS INELIGIBLE FOR ARBITRATION MAY
BE BROUGHT IN COURT.
i. THE RULES OF THE ARBITRATION FORUM IN WHICH THE CLAIM IS
FILED, AND ANY AMENDMENTS THERETO, SHALL BE INCORPORATED INTO THIS
AGREEMENT.
j. No person shall bring a putative or certified class action
to arbitration, nor seek to enforce any pre-dispute arbitration agreement
against any person who has initiated in court a putative class action; or
who is a member of a putative class who has not opted out of the class with
respect to any claims encompassed by the putative class action until:
i. the class certification is
denied; or
ii. the class is decertified; or
iii. the customer is excluded from
the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this agreement
except to the extent stated herein.
Executed Between:
Interactive Brokers LLC
One Pickwick Plaza
Greenwich, CT 06830
Interactive Brokers (U.K.) Ltd.
Level 20 Heron Tower
110 Bishopsgate
London EC2N 4AY, UK
Third-Party Vendor: