1. Who You Are. For purposes of this Agreement, the term "you" and possessives thereof mean you, the individual who registers for access to Websim or accesses or uses Websim.
2. License to Websim and Output. In consideration of Your License, we hereby grant to you the following license: (a) a royalty-free, non-exclusive right and license to access and use Websim in those jurisdictions from which you initiate or we provide access to the Websim website for as long as you are a registered user of Websim, and (b) a royalty-free, worldwide, transferable, sublicenseable, irrevocable, non-exclusive, perpetual right and license to freely use, copy, distribute, exploit, and prepare derivative works based upon the output of the Websim application resulting from your use ("Output") and/or to incorporate any and all of Output into other works in any form, media, or technology now known or later developed (such license in clauses (a) and(b), collectively hereinafter referred to as "Our License").
3. License to Input. In consideration of Our License, you hereby grant to us a royalty-free, worldwide, fully transferable, sublicenseable, irrevocable, non-exclusive, perpetual right and license to freely use, copy, distribute, make available to the public by any means, modify, adapt, translate, exploit, perform, display, make, sell, offer for sale, import, export and prepare derivative works based upon any and all code, algorithms, ideas, comments, recommendations, methods, designs, plans, techniques, processes, calculations, analyses, or other feedback, data or information (other than personal data or information) that you input into or provide at Websim or otherwise provide to us or that is incorporated into or reflected or effectuated by any of the foregoing (in whole or part) (any of the foregoing, individually or collectively, "Input") and/or to incorporate any and all of Input into other works in any form, media, or technology now known or later developed (such right and license, collectively hereinafter referred to as "Your License"). Moreover, unless otherwise restricted by applicable law, you hereby waive and, to the extent not waiveable, agree not to exercise any "moral rights" or corresponding rights in other jurisdictions in having Input edited, removed, modified, published, transmitted or displayed in a manner not agreeable to you or having Input attributed to you.
4. No Financial Compensation or Obligation to Offer Employment Or Other Business Relationship. Notwithstanding anything else in this or any other agreement or document, you will have no obligation whatsoever to (a) provide any compensation to us (other than Your License and your agreement to this Agreement) relating to Our License or your use of Websim or any Output, (b) share with us any revenue, gain or profit from your use of Websim or use or exploitation of any Input or Output, or (c) accept any offer of employment or any other relationship with us under any circumstances except if you agree to a written employment or business relationship agreement and then only as expressly stated in such agreement; and the fact that you do not provide any monetary compensation to us or agree to any employment or business relationship agreement with us will not affect any of your rights hereunder. Notwithstanding anything else in this or any other agreement or document, we will have no obligation whatsoever to (x) provide any compensation to you (other than Our License) relating to Your License or any Input or Output or (y) share with you any revenue, gain or profit from our use or exploitation of Your License or any Input or Output; or (z) offer any employment to you or any other relationship with you under any circumstances except if we elect in our sole discretion to provide you with a written employment or business relationship offer letter and then only as expressly stated in such letter; and the fact that we do not provide any monetary compensation to you or offer employment or any other relationship to you will not affect any of our rights hereunder.
5. Ownership. Notwithstanding anything else in this Agreement or any other agreement, we (or in some cases, our licensors) have and will continue to have exclusive ownership of (a) Websim, (b) all the content (including audio, photographs, illustrations, graphics, other visuals and recordings, text, video, copy, software, trademarks, logos, etc.), code, data and materials thereon or therein (other than Input), the look and feel, design and organization of Websim, the compilation of the content, code and data thereon or therein, and the processes, inventions, materials and data used by Websim other than Input (the items in this clause (b) collectively, "Websim Elements"), (c) all Output, and (d) all worldwide copyrights, patent rights, trademarks, rights in designs, rights in confidential information, trade secret rights and other intellectual property rights and registrations and applications for registrations (collectively, "IP") in, to or related to any of Websim, Output or Websim Elements, and to the extent that you have or obtain any of such IP, you hereby transfer and assign and agree to transfer and assign (or shall procure the transfer and assignment of) such IP to us fully and unconditionally on a royalty-free and worldwide basis in perpetuity and agree to execute such documents as we may request to memorialize or perfect any of the foregoing. Moreover, to the extent permissible under applicable law, you hereby waive or, to the extent not waiveable, agree not to exercise any "moral rights" or corresponding or equivalent rights in other jurisdictions in having Output edited, removed, modified, published, transmitted or displayed in a manner not agreeable to you.
6. Maintenance of Input and Output. We cannot be responsible for maintaining any Input or Output, and we may delete or destroy any Input or Output (in any form provided to, or held by us) at any time.
7. Prohibited Use; Confidentiality. You will not and will not assist anyone else to (i) modify, adapt, enhance, copy, translate, create a derivative work from, disclose to a third party, publicly display by any means, reverse engineer, disassemble or decompile Websim; (ii) recompile or modify any source code that may be provided by us or use any results of use of Websim to reverse engineer Websim or discover any strategies, processes and techniques used by, or embodied in, such Websim; (iii) attempt to circumvent, decrypt, or otherwise alter or interfere with Websim; (iv) obtain or attempt to gain unauthorized access to other computer systems, materials, information or any services available on, with or through Websim through any means, including through means not intentionally made publicly available or provided for through Websim; (v) engage in spidering, "screen scraping", "database scraping", or any other automatic or unauthorized means of accessing, logging-in or registering on Websim, or obtaining lists of users or other information from or through Websim, including any information residing on any server or database connected to Websim; (vi) use Websim in any manner that could interrupt, damage, disable, overburden or impair Websim or interfere with any other party's use and enjoyment of Websim; (vii) use Websim or any Output in violation of Company's or any third party's IP or other proprietary or legal rights; (viii) use Websim or any Output in violation of any applicable law; or (ix) use or access Websim except as explicitly permitted by this Agreement. Any distribution, publishing or exploitation of Websim, or of any Websim Elements, is strictly prohibited unless you have received our express written prior permission.
9. Your Representations and Warranties. You represent and warrant to us as of the date of your registration to access and use Websim and each date that you access or use Websim as follows:
(a) You have the full legal right, power and authority to:
(1) execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby;
(2) grant Your License;
(3) post the Input you are posting to Websim as it is posted; and
(4) agree to our ownership of Websim, Output, Websim Elements and the IP in, to or related to the same.
(b) You are the sole owner of the Input and all IP thereto and therein, and you have full power and authority to enter into and perform this Agreement, grant Your License, post the Input you are posting to Websim as it is posted and agree to our ownership of Websim, Output, Websim Elements and the IP in, to or related to the same.
(c) The execution, delivery and performance of this Agreement do not conflict in any material respect with any of your organizational documents, any agreement to which you are a party or are bound, or any court order or judgment.
(d) This Agreement is a legal, valid and binding obligation enforceable against you in accordance with its terms, subject to (A) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or other similar laws of general application relating to or affecting the enforcement of creditors’ rights generally and (B) general principles of equity.
(e) We may use the Input as permitted herein without violating any applicable law, rule or regulation or the IP or other rights of any third party, or any license, sublicense, covenant or contract between you and any third party and there is currently no actual or threatened claim, demand, or suit by any third party based on alleged violation of any of the foregoing.
(f) The Input shall not contain any computer code intentionally designed to: (i) disrupt, disable, harm, modify or otherwise impede in any manner, including aesthetical disruptions or distortions, the operation of the Input or our or any Protected Person's (as defined below) software, firmware, hardware, systems, website, data or networks (collectively, "Our Network"), (ii) disable any Input or Output or impair in any way its operation based on the elapsing of a period of time, exceeding an authorized number of copies, advancement to a particular date or other numeral (such code sometimes referred to as “time bombs,” “time locks,” or “drop dead” devices), or (iii) permit you or any third party to access any part of Our Network. For the avoidance of doubt, any of the foregoing may include malware, e.g., trojan horses, bots, viruses, rootkits, adware, spyware, ransomware or worms. In addition, you shall not, for any reason or at any time (either during or after the term of this Agreement), invoke or otherwise use any disabling code that may be contained in the Input.
Our Representations and Warranties. We have the full legal right, power and authority to:
(aa) execute, deliver and perform this Agreement and to consummate the transactions contemplated hereby;
(bb) grant Our License; and
(cc) provide Websim hereunder.
10. Trademarks. WORLDQUANT is our registered trademark and WEBSIM is our trademark. You shall not use our trademarks unless specifically authorized in writing.
11. Impersonation or Misrepresenting. While registering for access to Websim or accessing or using Websim, you represent and warrant that you have not and shall not: (a) impersonate any person; (b) misrepresent your identity, age, identifying or contact information or non-affiliation with another person or entity; or (c) use any other person's User Codes (as defined below). You further represent that at the time you register for access to Websim, you are of sufficient legal age to create the binding legal obligations, grant the rights and make the assignments set out in this Agreement.
12. Limits On Input. You agree not to upload any Input on or through Websim or otherwise provide us with any other materials which (a) violate any applicable law, rule or regulation, (b) violate, plagiarize or infringe any IP of a third party, or (c) violate or breach any confidentiality, contract or other legal rights of any third party. You should therefore be careful and selective about the information that you disclose in your submissions to Websim and us, and in particular, you warrant that you have not disclosed and will not disclose any sensitive, proprietary or confidential information of a third party without proper authorization.
13. Right to Control Access. We reserve the right at any time and from time to time to make any changes to Websim and/or to limit or remove your access to Websim.
14. Linking to Websim. You will not link from any other web site to Websim in any manner such that Websim, or any page of Websim, is "framed", surrounded or obfuscated by any content, materials, advertising or branding or displayed on another website.
15. Indemnification. You agree to defend, indemnify (on demand) and hold Company, its affiliates, any fund, account or other client for which we provide services and the respective directors, officers, employees, agents and licensors of any of the foregoing (collectively, the "Protected Persons") harmless from and against any and all claims, actions, proceedings, liabilities, losses, costs and expenses, including reasonable attorneys' fees, relating to or arising from (i) your access to or use of Websim, (ii) your use of any Output, or (iii) your breach or violation of any applicable law relating to this Agreement or Websim, or any provision of this Agreement or any representation or warranty herein. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and you agree to cooperate with any such defense.
16. DISCLAIMER OF WARRANTIES AND RESULTS.
WEBSIM IS PROVIDED "AS IS", "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AND WE HEREBY DISCLAIM ANY AND ALL SUCH WARRANTIES. WE DO NOT WARRANT THAT WEBSIM OR ANY OUTPUT WILL BE TIMELY, SECURE, UNINTERRUPTED, COMPLETE, ERROR FREE OR WILL MEET ANYONE'S REQUIREMENTS, OR THAT DEFECTS WILL BE CORRECTED, AND WE MAKE NO GUARANTEES OF ANY KIND WITH RESPECT TO ANY EMPLOYMENT OR EMPLOYMENT RESULTS. NO ADVICE, RESULTS OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH WEBSIM SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FURTHERMORE, WEBSIM PRODUCES AN ESTIMATE OF THE PAST INVESTMENT RESULTS OF A SELECTED PORTFOLIO AND DOES NOT NECESSARILY ACCURATELY PREDICT FUTURE TRADING RESULTS OR PERFORMANCE OF ANY STRATEGY OR ALGORITHM, WHICH MAY VARY SIGNIFICANTLY FROM THE RESULTS INDICATED BY THE OUTPUT. ALL OUTPUT IS FOR INFORMATIONAL PURPOSES ONLY. NOTHING ON WEBSIM CONSTITUTES OR SHOULD BE CONSTRUED AS AN OFFER OR SOLICITATION TO BUY OR SELL ANY SECURITY. ALTHOUGH WEBSIM MAY INCLUDE INVESTMENT-RELATED INFORMATION, NOTHING ON WEBSIM IS OR SHOULD BE CONSTRUED AS A RECOMMENDATION TO PURCHASE, SELL OR HOLD ANY SECURITY OR OTHER INVESTMENT, OR TO PURSUE ANY INVESTMENT STYLE OR STRATEGY. WE DO NOT GIVE ANY ADVICE OR MAKE ANY REPRESENTATIONS THROUGH WEBSIM AS TO WHETHER ANY STRATEGY, ALGORITHM, SECURITY OR INVESTMENT IS SUITABLE TO YOU OR WILL BE PROFITABLE. NOTHING ON WEBSIM IS INTENDED TO BE, AND YOU SHOULD NOT CONSIDER ANYTHING ON WEBSIM TO BE, INVESTMENT, ACCOUNTING, TAX, FINANCIAL, LEGAL OR OTHER ADVICE. IF YOU WOULD LIKE INVESTMENT, ACCOUNTING, FINANCIAL, TAX LEGAL OR OTHER ADVICE, YOU SHOULD CONSULT WITH YOUR OWN FINANCIAL ADVISORS, ACCOUNTANTS OR ATTORNEYS REGARDING YOUR INDIVIDUAL CIRCUMSTANCES AND NEEDS.
17. LIMITATION OF LIABILITY.
IN NO EVENT WHATSOEVER SHALL WE OR ANY OF THE PROTECTED PERSONS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL LOSSES, EXEMPLARY OR PUNITIVE DAMAGES OR LOST BUSINESS, SALES, REVENUE, SAVINGS OR PROFIT (WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE OR OTHERWISE), IN EACH CASE, ARISING FROM, OR DIRECTLY OR INDIRECTLY RELATED TO, YOUR ACCESS TO OR USE OF, OR THE INABILITY TO ACCESS OR USE, WEBSIM OR ANY OUTPUT, YOUR PROVISION OF INPUT, EVEN IF SUCH PROTECTED PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES, OR SUCH LOSSES OR DAMAGES ARE REASONABLY FORESEEABLE. In addition, in no event shall the total aggregate liability of the Protected Persons to you for all damages, losses, costs and expenses and causes of action (whether in contract or tort, including negligence or otherwise) arising from or related to this Agreement or your access to or use of, or the inability to access or use, Websim or any Output, your provision of input or use of output exceed, in the aggregate, the lesser of (X) the amount, if any, paid by you to Company for your use of Websim or (Y) US$500. THE LIMITATION OF LIABILITY SET FORTH ABOVE SURVIVES ANY REMEDY’S FAILURE OF ESSENTIAL PURPOSE TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW. YOU AGREE THAT THE REMEDIES, DISCLAIMERS, LIMITATIONS AND INDEMNITY SET FORTH IN THIS AGREEMENT ALLOCATE THE RISKS OF WEBSIM, INPUT AND OUTPUT BETWEEN US AND YOU AS AUTHORIZED BY APPLICABLE LAWS. THE ABSENCE OF MONETARY FEES IN THIS AGREEMENT REFLECT AND ARE SET IN RELIANCE UPON THIS ALLOCATION OF RISK AND THE LIMITATIONS OF LIABILITY SET FORTH IN THIS AGREEMENT.
THE ABOVE EXCLUSIONS AND LIMITATIONS OF LIABILITY APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IF YOU ARE A CONSUMER FOR THE PURPOSES OF ANY APPLICABLE CONSUMER PROTECTION LEGISLATION, CERTAIN GUARANTEES, RIGHTS AND REMEDIES MAY BE CONFERRED ON YOU WHICH CANNOT BE EXCLUDED, RESTRICTED OR MODIFIED.
18. Websim is Accessed In the United States. We control and operate Websim from our offices in the United States of America and any access or use of Websim by you will be deemed to be at our offices in the United States. We do not represent that Websim is appropriate or available for use in other locations. Persons who choose to access Websim from other locations do so on their own initiative, and are responsible for compliance with local laws, if and to the extent local laws are applicable.
19. User Codes. We may provide you with and/or you may choose digital certificate(s), unique identifiers, user name(s) and/or password(s) which may be required to access or use Websim (collectively, “User Code(s)”). You agree that (a) any such User Codes are personal to the individual to whom they are issued or chosen; (b) you will not share or disclose any such User Codes with any other person; (c) you will take all necessary actions to preserve the confidentiality of such User Codes; (d) you are responsible for ensuring that all information contained in any request for a User Code or user registration is complete, correct and up to date; (e) you are responsible for all acts, omissions and agreements that occur under any User Code; and (f) you shall notify us in writing in the event that you learn that: (i) any such User Code is lost, stolen, or improperly disclosed to a third party; (ii) the confidentiality of any User Code has been compromised in any way; or (iii) you learn about a possible or actual unauthorized access to and/or use of Websim.
(a) Binding Effect. This Agreement shall be binding upon the parties hereto and inure to the benefit of you and us and your and our respective successors and permitted assigns, including any successor or assign to all or substantially all of the business and/or assets of a party whether direct or indirect, by purchase, merger, consolidation, acquisition of stock, or otherwise.
(b) Severability. If any term or other provision of this Agreement, or any application thereof to any circumstances, is invalid, illegal or incapable of being enforced by any rule of law, or public policy in whole or in part, such provision or application shall to that extent be severable and shall not effect the validity of the other provisions or applications of this Agreement.
(c) Entire Agreement; Survival. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes all prior and contemporaneous agreements and understandings, oral or written, between the parties with respect to such subject matter. This Agreement is irrevocable and shall survive the termination of any agreement or your use of Websim.
(d) Use of Certain Words. As used in this Agreement, unless the context otherwise requires, (i) words in the singular number or in the plural number shall each include the singular number and the plural number, (ii) the use of any gender shall include all genders, (iii) “including” (and any of its derivative forms, e.g. “includes”) means including but not limited to, and (iv) “will”, "should" and “shall” are expressions of command, not merely expressions of future intent or expectation. The headings in this Agreement are for reference purposes only and shall not limit or otherwise affect the meaning or interpretation of this Agreement.
(e) Relationship of the Parties. Nothing herein shall be construed as: (i) placing the parties hereto in the relationship of joint venturers or partners or in a fiduciary relationship; or (ii) permitting either party in any manner to act on behalf of the other party, make any representations regarding the other party or its business or bind the other party to any agreement or commitment.
(f) Amendment and Modification. This Agreement may not be amended or modified except by an instrument in writing duly signed by both parties hereto.
(g) Waiver. No provision of this Agreement may be waived or discharged unless such waiver or discharge is in writing and signed by the party to be charged. Our failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
(h) Rights Cumulative. Our and your respective representations, warranties, obligations, rights and remedies herein shall be deemed cumulative, and our and your exercise of any one of our and your rights or remedies shall not preclude our and your exercise of any other right or remedy then available to it (whether hereunder, or pursuant to another written, signed contract or at law or in equity).
(i) Governing Law and Jurisdiction. This Agreement will be governed by and construed and enforced in accordance with the laws of the State of New York applicable to contracts executed and to be performed entirely within such state. In respect of any claim, dispute, suit or action arising out of or relating to this Agreement, Websim, any Input or any Output, each party hereto irrevocably waives any rights it may have to a trial by jury. Alternatively, at the option of the Company, such dispute may be submitted to arbitration administered by the International Centre for Dispute Resolution (“ICDR”) in accordance with its International Arbitration Rules. The venue and seat of the arbitration shall be New York City, United States of America. The arbitration shall be conducted in the English language by one (1) arbitrator appointed in accordance with the ICDR International Arbitration Rules. The appointing authority shall be the ICDR.
(j) Third Party Beneficiaries. The Protected Persons are intended third party beneficiaries of this Agreement. Nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity other than the foregoing any rights, benefits or remedies of any nature whatsoever. Without limiting the generality of the foregoing, no provision herein shall be for the benefit of or enforceable by any creditor of any party hereto.
(k) Taxes. You will be solely responsible for and you shall timely pay any sales, use, personal income tax, VAT or other taxes arising from the provision of Websim, this Agreement, the licenses herein or the transactions contemplated hereby, excluding any taxes or other charges based on our net income.
(l) Electronic Communications & Signature. You consent to receive communications from us electronically and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. We may, in our sole discretion, seek your consent to this Agreement by means of an electronic signature by requesting you to affirmatively check the box indicating your acceptance of and agreement to be bound by the terms of this Agreement, affirmatively "click" on boxes containing the words "I Accept", "I Agree" or other similar phrases (collectively, "Acceptance Terms"). If you "click" on the Acceptance Terms, your "click" will be deemed a legally binding electronic signature. You acknowledge and agree that you will carefully review any document or web page before making such an electronic signature. By electronically indicating your agreement to this Agreement, you acknowledge and agree that: (i) you intend to form a legally binding contract between you and us; (ii) you have read and agree to the terms and conditions of this Agreement; (iii) you agree and intend that this Agreement to be the legal equivalent of signed, written contracts, and equally binding; (iv) YOU CONSENT TO US USING YOUR TELEPHONE AND CELL PHONE NUMBER THAT YOU PROVIDE TO US TO CONTACT YOU BY AUTOMATED OR MANUAL TELEPHONE CALLS AND/OR TEXT MESSAGES TO PROVIDE YOU WITH OR SOLICIT INFORMATION REGARDING WEBSIM, INPUT TO AND OUTPUT FROM WEBSIM, COMPETIONS WE MAY HOLD AND POSSIBLE EMPLOYMENT AND/OR BUSINESS OPPORTUNITIES, and (v) by electronically agreeing to this Agreement, you acknowledge that you have received a copy of this Agreement by your viewing a web page containing a hyperlink to the web page where this Agreement is displayed or otherwise.
(m) Language Clause. You hereby confirm the parties’ agreement that this Agreement, as well as all other documents related to it, including notices, be drawn up in the English language only and declare that you are satisfied with this. Les parties aux présentes confirment leur volonté expresse de voir la présente convention de même que tous les documents, y compris tous avis, s’y rattachant, rédigés en langue anglaise seulement et s’en déclarent satisfaits. 您特此确认双方协议（包括本协议及含通知在内的与之相关的任何其他文件）仅以英文起草，并且您没有任何异议。本协议的中文版本仅供参考（https://websim.worldquant.com/useragreement?agver=zh-cn）
WebSim User Agreement Version 9-30-2014