API License Agreement: Definition & Sample (2024)

APIUSAGE AGREEMENT

THIS API USAGE AGREEMENT (the“Agreement”) is dated as of November 6, 2007 (the “Effective Date”) between T2API Technologies, LLC, a Delaware limited liability company, (“Company”) andMedia Sentiment, Inc. a Nevada corporation (“Vendor”).

A.WHEREAS, Company is an affiliate of TD AMERITRADE, Inc. (“TD AMERITRADE”), aregistered broker-dealer under applicable law;

B.WHEREAS, TD AMERITRADE is a securities brokerage firm that offers a tradingplatform (the “TD AMERITRADE System”) that provides its clients the ability toenter securities orders, to verify and determine the status of open orders, tocancel and modify open orders, and to request basic securities accountinformation and to receive other securities brokerage products andservices;

C.WHEREAS, Vendor offers investors and traders [software applications and/ormarket data](“Vendor Application”) that interfaces with third partytrading platforms (“Third Party Platforms”) as a means of providing users ofsuch system with access to, among other things, the trading and relatedfunctionality of such Third Party Platformsand a market data feedcomprised of real time and delayed stock and/or futures and commodities quotesof major markets and feeds from major news organizations (together with VendorApplication, “Vendor System”); and

D.WHEREAS, Company and Vendor desire to set forth herein their agreement regardingthe development of an interface between their respective systems (referred to asthe “Vendor Interface” and defined in Section 1(a) below) through access to theCompany’s application programming interface (“API”).

NOWTHEREFORE, in consideration of the foregoing recitals, the mutual promises,agreements and covenants set forth herein, and other good and valuableconsideration, the receipt and sufficiency of which are hereby acknowledged, theparties agree as follows:

(a)Companyand Vendor will work with each other in good faith to configure (i) the API withrespect to TD AMERITRADE System’s trading and account functionality, and (ii)the Vendor Interface with respect to theVendor System’s functionality, tooperate in conjunction with each other for the use by subscribers who are bothclients of TD AMERITRADE and subscribers of Vendor (collectively, the“Subscribers”).The software permitting the above-referencedinterconnectivity is referred to herein as the “Vendor Interface.” Vendoracknowledges that all code for the API was written exclusively by Company andits affiliates and that the API constitutes Company Intellectual Property (asdefined in Section 4(e)). Company acknowledges that all code for the VendorInterface was written exclusively by or for Vendor and its affiliates and thatthe Vendor Interface constitutes Vendor Intellectual Property (as defined inSection 4(f)).

(b)Followingcompletion of the Vendor Interface, both Company and Vendor shall subject theVendor Interface to such operational and other tests (collectively, “AcceptanceTests”) as Company and Vendor may deem reasonably necessary to determine whetherthe Vendor Interface meets the parties’ respective operationalcriteria.The Vendor Interface shall not be put into commercial useuntil each party has accepted the Vendor Interface.For purposeshereof, “accepted” shall mean each party’s written notification to the otherparty that the Vendor Interface has passed all Acceptance Tests.

(c)Companyand Vendor each retains the right at all times to make any changes in theirrespective systems that they may deem necessary or desirable.

(d)If anychange to either the Vendor System or the TD AMERITRADE System, results inrequired modifications to the other party’s system to avoid interruption in theVendor Interface, the parties agree to work in good faith, each at its ownexpense, to modify their respective systems to avoid or minimize any suchinterruption; provided, however,

thatneither party shall be obligated to make any material capital expenditure tomodify or upgrade its system to be compatible with modifications to the otherparty’s system and, in lieu of making any such capital expenditure, may elect toterminate this Agreement.

(e)TheVendor Interface will not be co-branded and the underlying technology of theVendor System and the TD AMERITRADE System are, and shall remain, independent ofeach other.

(f)Theparties will clearly indicate, in appropriate places within their respectivesystems, that all securities transactions will be processed by TDAMERITRADE.For example, “Brokerageservices provided exclusively by TD AMERITRADE, Inc.”

(a)OnlySubscribers may utilize the Vendor Interface.In connectiontherewith, Vendor will execute its own agreement with Subscribers governing theVendor Interface and the Vendor System.

(b)Any andall trading and other brokerage activities made available to Subscribers via theVendor Interface shall be conducted solely by TD AMERITRADE.

(c)Unless licensed as a registeredbroker-dealer, Vendor agrees not to engage in the following activities(“Brokerage Activities”):(i) except as expressly permitted by thisAgreement, describeTD AMERITRADE’s or any of its affiliates’ brokerageservices, products orbenefits; (ii) recommend or endorse specificsecurities or investmentstrategies except asspecifically related to Vendor’s business; or (iii) become involved in the financialservices offered by TDAMERITRADE or any of itsaffiliates, including, without limitation, by:(1) opening,approving, maintaining, administering, or closing third party customer brokerageaccounts withTD AMERITRADE or any of its affiliates; (2)soliciting, processing, or facilitating securities transactions relating tocustomer brokerage accounts with TD AMERITRADE or any of its affiliates; (3)extending credit to any customer for the purpose of purchasing securitiesthrough, or carrying securities with TD AMERITRADE or any of its affiliates; (4)answering TDAMERITRADE or any of itsaffiliates’ customer inquiries with respect to their accounts andtransactions; (5)acceptingcustomersecurities orders, selecting among broker-dealers or routing orders to marketsfor, TDAMERITRADE or any of itsaffiliates execution; (6) handling funds or securities of TD AMERITRADE or any of its affiliates’ customers,or effecting clearance or settlement of customer securities trades or other securitiestransaction; (7) resolvingor attempting to resolve any problems,discrepancies or disputesinvolving TD AMERITRADE or any of its affiliates’ customeraccounts orrelatedtransactions; or (8) receiving compensation basedon securities transactions or provision or investment advice.Vendor acknowledges that TD AMERITRADEshall be solely responsible for all Brokerage Activities.

(a)Except asprovided in AddendumA, neither party shall be obligated to perform any advertising ormarketing of the Vendor Interface, provided that, subject to the right of theother party to review and approve in advance all written statements made aboutsuch party, its system or the Vendor Interface (including the right to declineinclusion in any advertising), either party may, in its sole discretion,advertise the Vendor Interface and/or refer its prospects and clients to theVendor Interface.

(b)Inaddition, subject to the right of TD AMERITRADE to review and approve inadvance, all advertising or other promotion of the Vendor Interface by Vendorshall include the following disclaimers, as applicable, prominently displayed,in addition to any other disclaimers that may be required by applicable law,rule or regulation:

(i)“TDAMERITRADE, Inc. and [vendor Name] are separate, unaffiliated companies and arenot responsible for each other’s services and products.”

(ii)“Brokerageservices providedexclusively by TD AMERITRADE, Inc., memberSIPC”

(c)Eachparty is responsible for the accuracy of all sales and marketing materialsrelative to its products and the other party shall have no liability in respectthereof.

(d)Except asrequired by any applicable law or regulation or the rules of any recognizednational stock or other exchange or any other self regulatory organization orassociation (each a “Governmental Entity”), neither party shall issue or causeany public announcement (a “Press Release”) to be made regarding this Agreementwithout obtaining the prior written consent of the other party and providing theother party with a reasonable opportunity to review and comment upon the PressRelease.If a Governmental Entity shall require either party to issuea Press Release, such party shall, to the extent reasonably practicable, providethe other party at least twenty four (24) hours prior written notice and theopportunity to review and make

reasonablecomments upon the Press Release prior to its release.

(a)Licenseto Use API.Subject to the terms and conditions of this Agreement,Company hereby grants to Vendor a non-exclusive, non-transferable license to usethe API during the term of this Agreement for the sole purpose of enabling theVendor System to interact with the TD AMERITRADE System through the VendorInterface and the API (“License to Use API”).The License to Use APIshall automatically terminate upon any termination of thisAgreement.

(b)Licenseto Use Vendor Interface.Subject to the terms and conditions of thisAgreement, Vendor hereby grants to Company and its affiliates a non-exclusive,non-transferable license to use the Vendor Interface during the term of thisAgreement for the sole purpose of enabling the Vendor System to interact withthe TD AMERITRADE System through the Vendor Interface and API (“License to UseVendor Interface”).The License to Use Vendor Interface shallautomatically terminate upon any termination of this Agreement.

(c)Licenseto Use API: Restrictions.

(A)in any way other than as expressly permitted or granted underthis Agreement;and

(B)aloneor in conjunction with the Vendor System in any way that results in or couldresult in any security breach with respect to the Company or any of itsaffiliates or a violation of any applicable law or regulation or Company’sinformational technology security policies, as published by Company from time totime.

(ii)The License to Use API shall not include the right of Vendor tosublicense the API to any third party.

(d)(d)License to Use Vendor Interface: Restrictions.

(A)inany way other than as expressly permitted or granted under this Agreement;and

(B)alone or in conjunction with the Company System in any way thatresults inany security breach with respect to the Vendor or any ofits affiliates or a violation of any applicable law or regulation or Vendor’sinformational technology security policies, as published by Vendor from time totime and provided to Company;

(ii)The License to Use Vendor Interface shall not include the rightof Company to sublicense the Vendor Interface to any third party.

(e)Exceptfor the License to Use API, Vendor acknowledges and agrees that it acquires nolicense to the TD AMERITRADE System and that Company and its affiliates own allright, title and interest in and to the TD AMERITRADE System, its data and anymodifications, alterations, translations or derivative works relating to the TDAMERITRADE System, including, but not limited to, the API and any code writtenby Company in connection with the Vendor Interface (collectively, the “CompanyIntellectual Property”).

(f)Exceptfor the License to Use Vendor Interface, Company acknowledges and agrees that itacquires no license to the Vendor System and that Vendor owns all right, titleand interest in and to the Vendor System, its data and any modifications,alterations, translations or derivative works relating to the Vendor System,including, but not limited to, any code written by Vendor in connection with theVendor Interface (collectively, the “Vendor IntellectualProperty”).

(a)Companyand its affiliates hereby grant to Vendor a non-exclusive, non-transferable,limited license to use Company’s trade names, trademarks, service marks and/orlogos set forth on Addendum A attached to this Agreement (“Company Trademarks”)(as the same may be amended from time to time to add or delete marks) during theterm of this Agreement (and any renewal terms) for the purpose of promoting theVendor Interface. Vendor shall comply with the requirements of the Company andall guidelines from time to time provided by Company to Vendor concerning theuse of Company Trademarks and, before any use of Company Trademarks, shallsubmit a sample or proof of such use for approval by Company. Without limitingthe foregoing, the Company Trademarks may not be used as part of any co-brandedor composite mark that also includes any of the Vendor Trademarks.

(b)Vendorhereby grants to Company and its affiliates a non-exclusive, non-transferable,limited license to use Vendor’s trade names, trademarks, service marks and/orlogos set forth on Addendum A attached to this Agreement (“Vendor Trademarks”)(as the same may be amended from time to time to add or delete marks) during theterm of this Agreement (and any renewal terms) for the purpose of promoting theVendor Interface.Company shall comply with the requirements ofVendor and any other guidelines from time to time provided by Vendor concerningthe use of the Vendor Trademarks and, before any use of Vendor Trademarks, shallsubmit a sample or proof of such use for approval by Vendor.Withoutlimiting the foregoing, the Vendor Trademarks may not be used as part of anyco-branded or composite mark that also includes any of the CompanyTrademarks.

(c)Thetrademark licenses granted by each party to the other hereunder shallautomatically terminate upon any termination of this Agreement.

(d)Allgoodwill arising from the use by either party of the other party’s trademarksshall inure solely to the benefit of the trademark owner.

(e)Except asexpressly set forth herein, nothing in this Agreement grants to either party anyownership of or any rights in or to the other party’s intellectual property ortrademarks.

6)CUSTOMERSUPPORT.Neither party shall have any customer supportobligations in connection with the Vendor Interface, provided, however, theparties shall provide customary and usual support of their respective systemsand their other products and services that may be delivered in connection withthe Vendor Interface.

7)FEES ANDCOSTS.Except as set forth on Addendum A, neither party shallbe obligated to pay the other any fees, commissions or royalties whatsoever inconnection with this Agreement or the Vendor Interface and each party shall beresponsible for its own costs in performing its obligationshereunder.Without limiting the foregoing, upon any termination orexpiration of this Agreement neither of the parties to this Agreement will beentitled to compensation for its efforts in promoting the Vendor Interface orgenerating goodwill inuring to the benefit of the other party.

(a)Unlessterminated as provided herein, the term of this Agreement will commence on theEffective Date, will continue for a period of one (1) year and willautomatically renew for successive one (1) year periods.

(b)Eitherparty may terminate this Agreement if

(i)Itprovides the other party with 60 days prior written notice of suchtermination;

(ii)the otherparty materially breaches any provision of this Agreement and fails to cure suchbreach within fifteen (15) days after receipt of notice of suchbreach;

(iii)the otherparty ceases to do business as a going concern without an assignment of itsrights and obligations to a successor-in-interest; applies for or consents tothe appointment of a trustee, receiver or other custodian, or makes anassignment for the benefit of creditors; becomes insolvent or generally fails topay, or admits in writing its inability to pay, its debts as they become due;or, subject to applicable law, commences or has commenced against it anybankruptcy, reorganization, debt arrangement, or other case or proceeding underany bankruptcy or insolvency law, or any dissolution or liquidation proceedingsand, if such case or proceeding is commenced against it, such case or proceedingis not dismissed within sixty (60) days thereafter; or

(iv)anysubstantial part of the other party’s property is or becomes subject to anylevy, seizure, assignment or sale for or by any creditor or governmental agencywithout being released or satisfied within ten (10) daysthereafter.

(a) Uponany termination of this Agreement, the parties will promptly:

(i)reconfigureand/or reprogram their respective systems and products to disable the VendorInterface;

(ii)ceaseall advertising and promotion of the Vendor Interface and, to the extentpossible, cancel pending advertising that has not yet been published orotherwise distributed;

(iii)ceaseall use of the other’s trade names, trademarks, service marks and/or logos anddiscontinue use of all materials which reference the other party, its productsor services;

(iv)removeall links to the other party’s web site(s);

(v)workin good faith to wind down their relationship in an expeditious and equitablemanner, minimizing disruption in services to Subscribers to the extentreasonably practicable.

(b) Uponany termination of this Agreement, the Receiving Party (defined in paragraph 11)will promptly return to the Disclosing Party, (defined in paragraph 11) at itsrequest, or destroy, all copies of the Disclosing Party’s ConfidentialInformation (defined in paragraph 11) in its possession or control, and uponwritten request, an officer or other member of senior management of theReceiving Party will certify to the Disclosing Party as to the return ordestruction of all Confidential Information. In addition, the Receiving Partywill expunge, to the extent practicable, all such Confidential Information fromany computer, word processor or other device containing suchinformation.

10)NON-EXCLUSIVERELATIONSHIP.Unless provided otherwise in Addendum A, eachparty shall be free to market its existing products and services and to developand market additional products and services (in every case, including toSubscribers), and to otherwise conduct its business, whether or not suchbusiness is now or in the future directly or indirectly competitive with theother party’s business or with the Vendor Interface.Without limitingthe generality of the foregoing, (a) both parties acknowledge that each partyoffers an Vendor Interface (that is substantially the same as the VendorInterface hereunder) with other Third Party Platforms and systems similar to theVendor System, which may be competitors of each respective party, and (b) bothparties acknowledge and agree that Subscribers are not the exclusive customersof either party, each party having an independent contractual relationship withthe Subscribers, and that either party may at any time, both during the term ofthis Agreement (including renewal terms) and following the termination of thisAgreement, market their products to Subscribers and solicit Subscribers for anypurpose, subject to applicable law.Neither party will be liable tothe other if a Subscriber elects to terminate receipt of or access to the VendorInterface to obtain a service from either of the parties that is competitivewith the Vendor Interface.

(a)Forpurposes of the Agreement:

“Representatives”includes a party’s directors, officers, employees, agents or advisors(including, without limitation, attorneys, accountants, consultants, bankers andfinancial advisors) and those of the party’s affiliates.

“DisclosingParty” refers to the party disclosing Confidential Information.

“ReceivingParty” refers to the party receiving Confidential Information.”

“ConfidentialInformation” includes the following:(i) any business or technicalinformation of Company or its affiliates or Vendor, including, but not limitedto, any information relating to the Company, its affiliates, the TD AMERITRADESystem, the clients of the Company or its affiliates or Company IntellectualProperty, the Vendor, the Vendor System, the Vendor’s customers, or VendorIntellectual Property, or Company’s or its affiliates’ or Vendor’s otherintellectual property or product plans, designs, costs, product prices andnames, customer information and lists, lists of prospects, finances, marketingplans, business opportunities, personnel, research, development or know-how; and(ii) the terms and conditions of the Agreement. Confidential Information alsoincludes all notes, analyses, compilations, studies, interpretations or otherdocuments prepared by the Receiving Party or its Representatives that contain,reflect or are based upon, in whole or in part, the information furnished by oron behalf of the Disclosing Party to the Receiving Party or its Representativessubject to this Agreement..

ConfidentialInformation does not include information that:(i) is or becomesgenerally known to the public through no fault of or breach of the Agreement bythe Receiving Party or is Representatives; (ii) was within the possession of theReceiving Party or any of its Representatives before its being furnished to theReceiving Party by or on behalf of the Disclosing Party pursuant to thisAgreement provided,that the source of such information was not known by the Receiving Party to bebound by a confidentiality agreement with, or other contractual or legalobligation of confidentiality to, the Disclosing Party with respect to suchinformation,; (iii) is independently developed by the Receiving Party withoutuse of the Disclosing Party’s Confidential Information; or (iv) is or becomesavailable to the Receiving Party or its Representatives on a non-confidentialbasis from a source other than the Disclosing Party or any of itsRepresentatives: provided, that such sourcewas not known to the Receiving Party to be bound by a confidentiality agreementwith, or other contractual or legal obligation of confidentiality to, theDisclosing Party with respect to such information.

“CustomerInformation” includes all data and information provided to Vendor by, andpertaining to or identifiable to, a customer or client of TD AMERITRADE or anyof its affiliates, prospects or users of the TD AMERITRADE System.

(b)(i)CustomerInformation is and shall remain the sole and exclusive property of the Companyand its affiliates, and shall be treated by Vendor as Confidential Informationof Company and its affiliates. Without limiting the confidentiality provisionsof this Agreement, during the term of this Agreement and thereafter inperpetuity, Vendor will not gather, store, or use any such Customer Informationin any manner except as necessary for the performance of the Agreement and willnot disclose, distribute, sell, share, rent or otherwise transfer or communicateany such Customer Information to any third party.

(b)(ii)Vendoragrees to comply with all applicable laws and regulations relating to theprivacy and security of customer data, identifying information of a customer,and any processed data incorporating any such data and information, to ensurethat any and all contractors and other third parties to which it providesinformation in compliance with this Agreement similarly comply with thoserequirements.Vendor also agrees to cooperate with Company and itsaffiliates in enabling TD AMERITRADE to satisfy its anti-money laundering andsimilar regulatory requirements.Upon notice from Company or itsaffiliates, Vendor shall provide such auditors and inspectors as Company maydesignate in such notice with reasonable access during normal business days andhours to Vendor premises, systems and business records reflecting Vendorcompliance with the provisions of this paragraph.Vendor shallprovide such auditors and inspectors with any assistance that they mayreasonably require. Company may notify Vendor of any failure to comply with theterms and conditions of this paragraph, and Vendor agrees to correct suchfailure to comply withinthe time period specified by the auditors/inspectors.

(c)Eachparty agrees that it will not use the other party’s Confidential Informationexcept as necessary for the performance of the Agreement and will not, withoutthe other party’s prior written approval, disclose such Confidential Informationto any person or third party except to those of its Representatives that need toknow such Confidential Information for the purpose of performing under theAgreement and who are also bound by the nondisclosure and use restrictions setforth herein.Each party will maintain the confidentiality of allConfidential Information in its possession or control using no less than theefforts that such party ordinarily uses with respect to its own proprietaryinformation of similar nature and importance, but in no event less than areasonable degree of care.All copies of a party’s ConfidentialInformation shall bear any legend as to confidentiality that may appear on theoriginal.

(d)Theconfidentiality obligations of the Receiving Party under the Agreement will notrestrict it or its Representatives from disclosing Confidential Information ofthe Disclosing Party pursuant to the order, requirement or request of a court,administrative or regulatory agency, or other governmental body orself-regulatory organization, if in the opinion of the Receiving Party’s counsel(which may be its internal counsel) such disclosure is required under applicablelaw, legal process or the rules and regulations of any securities exchange,securities market or self-regulatory agency having jurisdiction over theReceiving Party or its affiliates; provided that the party required to make sucha disclosure gives reasonable notice to the other party (unless prohibited byapplicable law from giving such notice) to afford such party the opportunity tocontest such order or requirementorto obtain anappropriate protective order or other reliable assurancethat confidentialtreatment will be accorded the Confidential Information.

(e) Except with respect to disclosures madepursuant to subsection (d) of this paragraph 11, (i) the Receiving Party shall beresponsible for any breach of this Agreement by any of its Representatives andthe Receiving Party agrees, at its sole expense, to take all reasonable measures(including but not limited to court proceedings) to prohibit and restrain itsRepresentatives from prohibited or unauthorized disclosure or use of theConfidential Information, and (ii) prior to furnishing all or any portion of theConfidential Information to any Representative, the Receiving Party shall advisesuch Representative of the confidentiality restrictions under thisAgreement.

(f)Noright in or license to the Disclosing Party’s Confidential Information isoffered or granted herein, nor shall any right or license be implied by thedisclosure of Confidential Information.IN FURNISHING CONFIDENTIALINFORMATION HEREUNDER, THE DISCLOSING PARTY MAKES NO WARRANTY, REPRESENTATION ORGUARANTEE WHATSOEVER REGARDING THE COMPLETENESS OR ACCURACY OF SUCH CONFIDENTIALINFORMATION.

(g)Eachparty recognizes that the other party would be irreparably harmed by violationof the confidentiality obligations set forth herein and shall be entitled to aninjunction or other decree of specific

performancewith respect to any such violation (without any bond or other security beingrequired), in addition to all other available remedies.

EXCEPTFOR ANY EXPRESS WARRANTIES SET FORTH IN THE AGREEMENT, EACH PARTY HEREBYDISCLAIMS ALL WARRANTIES REGARDING THE TD AMERITRADE SYSTEM AND THE COMPANYINTELLECTUAL PROPERTY, THE VENDOR SYSTEM AND THE VENDOR INTELLECTUAL PROPERTY,THE API, THE VENDOR INTERFACE, THEIR RESPECTIVE CONFIDENTIAL INFORMATION ANDTHEIR RESPECTIVE BUSINESSES, AND ANY THIRD PARTY SOFTWARE OR HARDWARE,INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR APARTICULAR PURPOSE, NON-INFRINGEMENT, AS WELL AS ANY WARRANTIES ARISING OUT OFCOURSE OF DEALING, USAGE OR TRADE.

13)LIMITATION OFLIABILITY.EXCEPT FOR CLAIMS PERTAINING TO SECTIONS 11 ORSECTION 14 OF THE AGREEMENT, OR DAMAGES RESULTING FROM A PARTY’S GROSSNEGLIGENCE OR WILLFUL MISCONDUCT,NEITHER PARTY WILL BE LIABLE TO THEOTHER FOR ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES,OR INCIDENTAL LOSSES OR DAMAGES OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, LOSTPROFITS, LOST SAVINGS OR LOSS OF USE OF FACILITIES OR EQUIPMENT, REGARDLESS OFWHETHER ARISING FROM BREACH OF CONTRACT, WARRANTY, TORT, STRICT LIABILITY OROTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR IF SUCHLOSS OR DAMAGE COULD HAVE BEEN REASONABLY FORESEEN.

NEITHERPARTY SHALL BE LIABLE FOR ANY FAILURE OR DELAY IN ITS PERFORMANCE DUE TOCIRc*msTANCES BEYOND ITS CONTROL, INCLUDING, BUT NOT LIMITED TO, ACTS OF CIVILOR MILITARY AUTHORITY, NATIONAL EMERGENCIES, TERRORISM, LABOR DIFFICULTIES,FIRE, FLOOD OR CATASTROPHE, ACTS OF GOD, INSURRECTION, WAR, RIOTS OR FAILUREBEYOND ITS REASONABLE CONTROL OF TRANSPORTATION, POWER SUPPLY, TELEPHONE OROTHER COMMUNICATIONS LINES.

14)INDEMNIFICATION.

(a)Companyhereby agrees to defend, indemnify and hold Vendor harmless from and against anyand all claims, damages, liabilities, costs, losses and expenses of any kind ornature whatsoever (including any legal or other expenses incurred in connectionwith investigating any claim, and any amounts paid in settlement or compromise)(collectively, “Losses”) to which Vendor may become subject, insofar as suchLosses arise out of or are based upon (i) Company’s unauthorized use of theVendor Trademarks or Vendor Confidential Information, (ii) any claim bySubscribers for Losses directly caused by Company or the TD AMERITRADE System orthe API, or (iii) any claim that the TD AMERITRADE System, Company IntellectualProperty or Company Trademarks infringe any U.S. patents, copyrights, tradesecrets, licenses or other property rights of any third party, providedthat:(A) Vendor promptly notifies Company in writing of any suchaction and gives Company sole authority and all information and assistance (atCompany’s expense) reasonably requested by Company to defend or settle suchclaim, provided that failure to give prompt notice shall not relieve Company ofits indemnification obligations unless Company is materially prejudiced thereby,(B) in the case of (iii) above, such claim does not arise out of anyunauthorized use of or modification to the TD AMERITRADE System by Vendor, and(C) any such costs and expenses (other than judgments or settlements negotiatedby Company) were incurred by Vendor with Company’s written authorization, whichshall not be unreasonably withheld or delayed.

(b)Vendorhereby agrees to defend, indemnify and hold Company and its affiliates harmlessfrom and against any and all Losses to which Company may become subject, insofaras such Losses arise out of or are based upon (i) any breach or violation byVendor of the terms of any of the licenses granted to Vendor under thisAgreement; (ii) any breach or violation by Vendor of any applicable laws andregulations; (iii) any unauthorized use of the Company Trademarks, the Company’sConfidential Information, or Customer Information (iv) any claim by Subscribersfor Losses directly caused by Vendor, the Vendor System or the Vendor Interface;or (v) any claim that the Vendor System, Vendor Intellectual Property or VendorTrademarks infringe any patents, copyrights, trade secrets, licenses or otherproperty rights of any third party, provided that:(A) Companypromptly notifies Vendor in writing of any such action and gives Vendor soleauthority and all information and assistance, provided that failure to giveprompt notice shall not relieve Company of its indemnification obligationsunless Company is materially prejudiced thereby,(at Vendor’sexpense) reasonably requested by Vendor to defend or settle such claim, (B) inthe case of (v) above, such claim does not arise out of any unauthorized use ofor

modificationto the Vendor System by Company, and (C) any such costs and expenses (other thanjudgments or settlements negotiated by Vendor) were incurred by Company withVendor’s written authorization, which shall not be unreasonably withheld ordelayed.

15)SURVIVAL. The provisionsof Sections 4, 9, 11, 12, 13, 14, 15 and 17 of the Agreement shall survive anytermination, cancellation, or completion of performance of theAgreement.

16)WAIVER.Thefailure by either party to enforce any provision of the Agreement will notconstitute a waiver of future enforcement of that or any otherprovision.

17) GOVERNING LAW ANDJURISDICTION; JURY TRIAL WAIVER.The Agreement will begoverned by and construed in accordance with the laws of the State of Delawarewithout application of the principles of conflicts of law.Any legalaction or proceeding arising under the Agreement will be brought exclusively inthe Federal or states courts located in the State of Delaware and the partieshereby consent to the personal jurisdiction and venue therein. Each party herebyirrevocably and unconditionally waives any objection to the laying of venue ofany action, suit or proceeding arising out of this Agreement in the in the Federal or states courts locatedin the State of Delaware and hereby further irrevocably andunconditionally waives and agrees not to plead or claim in any such court thatany such action, suit or proceeding brought in any such court has been brought in aninconvenient forum.

THEPARTIES HEREBY WAIVE ALL RIGHTS TO A TRIAL BY JURY IN ANY LITIGATION RELATING TOTHIS AGREEMENT.

18)NOTICES.Allnotices permitted or required under this Agreement shall be in writing and shallbe considered given:(a) when delivered personally; (b) five (5) daysafter mailing, when sent certified mail, postage prepaid, return receiptrequested; (c) one (1) business day after mailing when sent via a nationallyrecognized commercial overnight carrier, fees prepaid; or (d) upon delivery whensent by facsimile transmission confirmed by first class mail.Allnotices will be sent to the parties at the addresses set forth on the signaturepage, or such addresses as the parties may specify from time to time by likenotice.

19)SEVERABILITY.Iffor any reason a court of competent jurisdiction finds any provision of theAgreement invalid or unenforceable, that provision will be enforced to themaximum extent permissible and the other provisions of the Agreement will remainin full force and effect.

20)RELATIONSHIP OF THEPARTIES.The parties to the Agreement are independentcontractors and the Agreement will not establish any relationship ofpartnership, joint venture, employment, franchise, or agency between theparties.Neither party will have the power or authority to bind theother or to incur obligations on the other’s behalf without the other party’sprior written consent.

21)ASSIGNMENT.Vendorshall not assign its rights or delegate its duties hereunder without the priorwritten consent of the Company, such consent not to be unreasonably withheld ordelayed.

22)NO RULE OF STRICTCONSTRUCTION.The parties, by executing below, acknowledgethat the provisions and language of the Agreement have been negotiated by bothparties and specifically agree that no provision of the Agreement shall beconstrued against a party by reason of such party having drafted such provisionor the Agreement.

23)HEADINGS.Theheadings appearing herein are inserted only as a matter of convenience and as areference, and in no way define, limit or describe the scope or intent of theapplicable clause or the Agreement.

24)COUNTERPARTS.ThisAgreement may be signed in one or more counterparts, with the same effect as ifthe signature on each counterpart were upon the same instrument.Acopy or facsimile of a party’s signature shall be binding upon the signatorywith the same force and effect as an original signature.

25)ENTIREAGREEMENT.This Agreement, including Addendum A, constitutesthe complete and exclusive understanding and agreement between the partiesregarding its subject matter and supersedes all prior or contemporaneousagreements or understandings, written or oral, relating to its subjectmatter.Any waiver, modification or amendment of any provision ofthis Agreement will be effective only if in writing and signed by dulyauthorized representatives of both parties.

26)DEFINITIONS.Thefollowing are defined in the sections of this Agreement referred tobelow:

“AcceptanceTests”: Section 1(b).

“API”:Recital D.

“BrokerageActivities”: Section 2(c).

“Company”:Introductory paragraph.

“CompanyIntellectual Property”: Section 4(e).

“CompanyTrademarks”: Section 5(a).

“ConfidentialInformation”: Section 11(a).

“CustomerInformation”: Section 11(c).

“DisclosingParty”: Section 11(a).

“GovernmentalEntity”: Section 3(d).

“Licenseto Use API”: Section 4(a).

“Losses”:Section 14(a).

“PressRelease”: Section 3(d).

“ReceivingParty”: Section 11(a).

“Representatives”:Section 11(a).

“Subscribers”:Section 1(a).

“TDAMERITRADE”: Recital A.

“TDAMERITRADE System”: Recital B.

“ThirdParty Platforms”: Recital C.

“Vendor”:Introductory paragraph.

“Vendor Application” shall have the meaning as set forth in therecitals.

“VendorIntellectual Property”: Section 4(f).

“Vendor Interface”: Recital D and Section 1(a).

“VendorSystem”: Recital C.

“VendorTrademarks”: Section 5(b).

IN WITNESS WHEREOF, theparties have duly executed this Agreement as of the Effective Date.

Reference:
Security Exchange Commission - Edgar Database, EX-10.11 3 ex10_11.htm EXHIBIT 10.11, ViewedOctober 25, 2021, View Source on SEC.