Click-Wrap License Agreement Terms & Conditions: Site Use

PLEASE READ THE FOLLOWING TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING The FpML Validator. Access and use of FpML Validator (“FpML VALIDATOR”) is subject to your understanding of and compliance with the terms and conditions set forth herein. This document should be examined carefully before accessing or using FpML VALIDATOR. By clicking the “I agree” button below and by accessing or using FpML VALIDATOR, you represent to us that you are lawfully able to enter into contracts and that if you are entering into this Agreement on behalf of a legal entity that you have the legal authority to do on its behalf.

You may not access or use FpML VALIDATOR if you do not agree to be bound by this Agreement’s terms and conditions.

1. Definitions

(a) “Licensor” means International Swaps and Derivatives Association, Inc. (“ISDA”).

(b) “License” means this document.

(c) “FpML Validator” means the FpML Validator, a tool to validate FpML representations in accordance to the business validation rules published by FpML. The tool is located at http://www.fpml.org/tools/fpml-validator/(the “Site”).

(d) “You” means an individual or a legal entity exercising rights under and complying with the terms of this or a future version of this license agreement. For legal entities, “You” includes any entity which controls, is controlled by, or is under common control with You. For purposes of this definition, “control” means (a) the power, direct or indirect, to cause the direction or management of such entity, whether by contract or otherwise, or (b) ownership of fifty percent (50%) or more of the outstanding shares or beneficial ownership of such entity.

 

2. Important Notice regarding modifications of this Agreement and the terms of use

The terms and conditions set forth in this Click-Wrap License Agreement may be modified at the discretion of the International Swaps and Derivatives Association, Inc. (“ISDA”) at any time. Any such modification shall be effective immediately upon the posting of the modified terms and conditions. We will, however, seek to allow a commercially reasonable notice of any modifications.

As of June 1, 2019, the FpML Validator is released as a Beta version. It may be accessed and used without charge. Licensor reserves the right to release future iterations of the FpML Validator software on a paid-for basis, meaning that use of the open-source version would be discontinued no earlier than thirty (30) days after posting of notice, and that a charge thereafter would be imposed for using a future iteration or iterations of the FpML VALIDATOR.

Through your continued access and use of FpML VALIDATOR you agree to periodically review these terms and conditions and to be bound by such future modification(s). Continued use of the FpML VALIDATOR following any such change means you have accepted the modification(s) and will abide by the change(s).

3. No legal or financial advice

The FpML VALIDATOR does not provide legal or financial advice as to whether to engage in any specific commercial transaction. The Site and the FpML VALIDATOR tool are not meant to be a substitute for legal advice from an attorney, with whom you should consult with for any specific legal concern; nor intended to offer guidance as to the feasibility or non-feasibility of entering any specific commercial transaction.

4. Notice regarding the use of the beta version of the FpML Validator software and source materials

Please refer to the “GENERAL DISCLAIMER AND LIMITATION OF LIABILITY” provisions reflected in Section 9, below, of this Click-Wrap License Agreement, which states that except as may be required by law, access and use of the FpML VALIDATOR is “as-is” with no warranties or representations made by ISDA.

While ISDA seeks to enable the timely and accurate delivery of information to those who access the tool, Licensor cannot assure the timeliness and accuracy of the information presented in the Site or in the tool. The primary source materials included in our database are included only for the reference of the user. ISDA also does not warrant that any information on the Site is up-to-date or accurate or that any financial information or transactional materials referenced in the Site is the “best practice” at the current moment or represents the present status of the interest rates and credit derivatives marketplaces.

5. Information may not be stored on the FpML VALIDATOR

 

You should understand that the FpML VALIDATOR does not store information entered in it, including information provided by the clients. Because the FpML VALIDATOR does not store any of the trade details, you should save and retain in a secure environment any information that you input into the FpML VALIDATOR and any information generated by using it to perform calculation(s) or transaction(s). Any information that you submit in using the FpML VALIDATOR must be resubmitted if you use the tool again for queries, analysis, trading or any other purpose.

 

6. Notice Concerning Use of the Content

NO CONTENT FROM THIS SITE MAY BE COPIED, REPUBLISHED, UPLOADED, OR OTHERWISE DISTRIBUTED. NOTWITHSTANDING, YOU MAY DOWNLOAD ONE COPY OF THE MATERIALS ON ANY SINGLE COMPUTER FOR YOUR PERSONAL, NON-COMMERCIAL USE, SO LONG AS ALL COPYRIGHT, TRADEMARK AND OTHER PROPRIETARY NOTICES REMAIN INTACT AND ARE PROMINENTLY DISPLAYED. HOWEV ER, YOU MAY NOT SUBLICENSE, TRANSFER OR OTHERWISE MAKE AVAILABLE ANY CONTENT TO ANY THIRD PARTY FOR COMMERCIAL PURPOSES OR FINANCIAL GAIN OR USE THE CONTENT IN ANY OTHER MEDIA OR IN ANY LOCATION. YOU MAY NOT ALTER OR MODIFY THE CONTENT IN ANY WAY.

7. User Privacy
             ISDA respects the privacy of its users. Therefore, we will not monitor, edit, or disclose the contents of any e-mail or other communication with ISDA concerning the program unless required in the course of normal maintenance of the FpML VALIDATOR and ISDA and their electronic systems or unless required to do so by law or in the good faith belief that such action is necessary to (a) comply with the law or comply with legal process served on FpML VALIDATOR or ISDA; or (b) protect or defend the rights or property of or ISDA. Users shall remain solely responsible for the content of their messages, regardless of what the content is. All personal information collected through FpML VALIDATOR is provided on a voluntary basis by its users and visitors through a visible means of data entry or by collecting information using a registration form.

Upon request, ISDA will remove you and your personal information from our database.

ISDA may also gather anonymous information that may be used or shared with third parties. This information does not personally identify you but may be helpful in improving the services offered. Generally, this information is collected through “traffic data” and may entail the use of “cookies,” “IP addresses,” or other numeric codes used to identify a computer.

 

       Cookies                                                                                                                                    

“Cookies” give users a special, random ID in the form of small text files, which are stored on the hard drive of a user’s computer. The use of cookies is an industry standard. FpML VALIDATOR employs cookies to track site usage. You can set your browser to refuse all cookies or to indicate when a cookie is being sent. Members or visitors who do not accept cookies from FpML VALIDATOR cannot access some areas of FpML VALIDATOR.

ISDA may, in its sole discretion, perform statistical analysis of the collective characteristics and behavior of the FpML VALIDATOR users to measure interests in its operations (for product development and other business development purposes).

Users should be aware that when they are on FpML VALIDATOR, they could be directed to other sites that are beyond our control. There may be links to other sites from FpML VALIDATOR pages that take you outside our services. These may include links from sponsors and partners that may use the Site as part of a co-branding agreement with FpML VALIDATOR or ISDA. These other sites may send their own cookies to users, collect and track data, or solicit personal information. FpML VALIDATOR does not endorse the content found on such third-party sites. You assume sole responsibility for your use of third-party links and pointers.

8. Conduct in using FpML VALIDATOR

If you participate in any discussions on FpML VALIDATOR, you agree not to use any language or engage in any conduct that is threatening, profane, abusive, vulgar, discourteous or criminal. You also agree not to post or transmit information or materials that would violate the rights of a third party or which would contain a virus or other harmful component.

Please keep in mind that whenever you give out information online – including, for example, posting a message to a discussion group – that information can be collected and used by people you do not know. ISDA cannot guarantee the security of any information you disclose online, and you do so at your own risk. ISDA cannot control the acts of users of the FpML VALIDATOR interactive features.

Unless otherwise noted, all materials, including images, illustrations, designs, icons, photographs, video clips, and written and other materials that are part of this Site, are copyrights, trademarks, trade dress and/or other intellectual properties owned, controlled or licensed by ISDA.

By publishing, uploading or submitting any materials to us, including messages posted in any of our discussion groups or chat rooms, you automatically grant (or warrant that the owner of such rights has expressly granted) ISDA a perpetual, royalty-free, irrevocable, nonexclusive right and license (with the right to grant sublicenses) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute such materials, incorporate such material and otherwise exploit all content or information you publish on the Site into any form, medium or technology, now known or later developed. You further agree that all such communications you make to the Web Site shall not be deemed confidential. By your acceptance of these terms and conditions you agree to waive all recourse against ISDA for any alleged or actual infringement or misappropriation of any proprietary or confidential publications or communications to ISDA.

9. GENERAL DISCLAIMER AND LIMITATION OF LIABILITY

           ISDA makes no representation that the materials contained in the Site are appropriate or authorized for use in all countries, states, provinces, counties, or any other jurisdiction. If you choose to access the Site, you do so on your own initiative and risk and you are responsible for compliance with all applicable laws.

 

YOU UNDERSTAND AND AGREE THAT ISDA CANNOT AND DOES NOT REPRESENT, WARRANT OR GUARANTEE THAT FILES, SOFTWARE OR INFORMATION OF ANY KIND OR FROM ANY SOURCE AVAILABLE FOR DOWNLOADING THROUGH FpML VALIDATOR, THE SITE OR THE DATABASE WILL BE FREE OF INFECTION, VIRUSES, WORMS, TROJAN HORSES OR OTHER CODE OR DEFECTS THAT MAY MANIFEST HARMFUL AND DESTRUCTIVE PROPERTIES.

BECAUSE OF THE POSSIBILITY OF HUMAN, TECHNICAL AND MECHANICAL ERROR, AS WELL AS OTHER FACTORS, ISDA ARE NOT RESPONSIBLE FOR ANY ERRORS IN OR OMISSIONS FROM THE INFORMATION CONTAINED IN OR ACCESSED THROUGH THIS SITE. THE MATERIALS IN FpML VALIDATOR ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, FpML VALIDATOR AND ISDA DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND OF FITNESS FOR A PARTICULAR PURPOSE.

FURTHERMORE, ISDA DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE OUTPUT OF THE FpML VALIDATOR WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED OR THAT THE SITE OR THE SERVER(S) THAT MAKES THE FpML VALIDATOR SITE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS AND ISDA ALSO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS OR WARANTIES REGARDING THE USE OR ACCURACY OR RELIABILITY OF THE MATERIALS ON FpML VALIDATOR. YOU (AND NOT ISDA) SHALL BEAR THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION. APPLICABLE LAW MAY NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.  .

ISDA ALSO SPECIFICALLY DISCLAIMS THE CREATION OF ANY WARRANTIES FOR THE BENEFIT OF THIRD PARTIES.

UNDER NO CIRCUMSTANCES SHALL ISDA BE LIABLE TO THE USER AND/OR ANY THIRD PARTY, REGARDLESS OF THE FORM OF ACTION, ARISING FROM THE USE OF THIS SITE OR TOOL FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES THAT RESULT FROM THE USE OF, OR THE INABILITY TO USE, THE MATERIALS ON THIS WEB SITE, EVEN IF ISDA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN NO EVENT, HOWEVER, SHALL ISDA’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT, INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, OR OTHERWISE) EXCEED THE AMOUNT PAID BY YOU, IF ANY, FOR ACCESSING THE FpML VALIDATOR.

10. Choice of Law

Access to and use of the FpML VALIDATOR, and the terms of this Agreement are governed by the laws of the State of New York, without reference to conflicts of laws and without regard to its location of execution or performance.

11. Dispute resolution

With respect to disputes in which at least one party is a citizen of, or an entity chartered or registered to do business in, the United States of America: (a) unless otherwise agreed in writing, all disputes arising under or relating to this License (excepting any dispute relating to copyright, trademark, patent or trade secret rights, which issues must be resolved through judicial action) shall be subject to final and binding arbitration, with the losing party paying all costs of arbitration; (b) any arbitration relating to this Agreement shall be held in New York City, under the auspices of JAMS/End Dispute; and (c) any judicial litigation arising under or relating to this agreement, including the enforcement of any arbitration award, shall be subject to the exclusive  jurisdiction of the United States District Court for the Southern District of New York, or in the absence of that court having subject matter jurisdiction, to the jurisdiction of courts of the State of New York, with venue lying in New York County. The losing party shall be responsible for costs, including without limitation, court costs and reasonable attorney’s fees and expenses. By using FpML VALIDATOR under this License you consent to the exclusive personal jurisdiction of the foregoing federal and/or New York state courts. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. Any law or regulation which provides that the language of a contract shall be construed against the drafter shall not apply to this License.

12. Termination

These terms and conditions are effective until terminated by either party. You may terminate these terms and conditions at any time upon notice, after which the FpML VALIDATOR SERVICE WILL NOT BE AVAILABLE TO YOU. These terms and conditions will terminate immediately without notice from ISDA if, in the sole discretion of it or ISDA, you fail to comply with any term or condition or provision of a term or condition of this Agreement.

13. Questions or inquiries

If you have questions concerning this Agreement’s terms and conditions or about FpML VALIDATOR you are encouraged to contact ISDA at: tools@fpml.org

 

BY CLICKING THE “I AGREE” BUTTON BELOW, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THE FOREGOING TERMS AND CONDITIONS AND ACCEPT THEM.