NINJATRADER ECOSYSTEM VENDOR LISTING AGREEMENT

Transcription

1 NINJATRADER ECOSYSTEM VENDOR LISTING AGREEMENT The NinjaTrader Ecosystem Vendor Listing Agreement (the Agreement ) is entered into by and between NinjaTrader, LLC ( NinjaTrader or we or us ) a Colorado Limited Liability Company and you, a vendor ( Vendor or you ) and sets forth the terms and conditions of your inclusion on the NinjaTrader Ecosystem. By applying for and accepting a listing on the NinjaTrader Ecosystem, you agree to be bound by all terms and conditions of this Agreement, as well as any additional terms or conditions that NinjaTrader may establish from time to time in its sole and absolute discretion. 1. DESCRIPTION OF NINJATRADER, ECOSYSTEM and ECOSYSTEM LISTING 1.1. NINJATRADER. NinjaTrader is a software development company which owns and supports the NinjaTrader trading platform. NinjaTrader is an affiliate company to NinjaTrader Brokerage, which is an NFA registered introducing broker (NFA # ). NinjaTrader owns and operates the website ( Ecosystem ) ECOSYSTEM. Ecosystem is an on-line directory of unaffiliated third-party Vendors of products and services ( Vendor Product ) that work with or relate to the NinjaTrader trading platform. NinjaTrader makes no promise or agreement to actively or passively promote, distribute, recommend, approve or endorse Vendor and/or Vendor Products. Ecosystem is offered solely as a resource to permit NinjaTrader customers to identify Vendors and Vendor Products and make decisions regarding Vendor and/or Vendor Products based solely on their own judgment and evaluation. NinjaTrader may change or terminate the URL associated with the Ecosystem without notice, and may cease operation of the Ecosystem without notice to Vendor. Nothing in this Agreement shall require NinjaTrader to obtain the approval or permission of any Vendor to change the URL associated with the Ecosystem, terminate or cease operation of Ecosystem, or to operate additional or competing websites, or to include Vendor or Vendor Products on any future version or other website. Page 1 of 9

2 1.3. ECOSYSTEM LISTING. An Ecosystem Listing is the inclusion of you and/or your Vendor Product on the Ecosystem website, and does not create any relationship between the parties beyond the scope set forth herein. Nothing in this agreement shall constitute any agreement by either NinjaTrader or any affiliated entity to act as your agent, legal representative, marketing agent, selling agent, partner or joint-venturer for any purpose. Nor does this agreement create any partnership, joint venture, principal-agent or any other legal relationship between NinjaTrader or any affiliated entity and Vendor. No Party is authorized and shall not represent that it is authorized to bind the other Party or any affiliated entity by any statements, agreements or otherwise, or to incur any expenses. Any statement or representation by Vendor that states, suggests or implies any relationship beyond an agreement to list you and/or Vendor Products in Ecosystem, or any statement or representation that states, implies or suggests that we have any interest in, responsibility for or endorsement of the quality, performance, design, marketing or sale of your Vendor Product would be inaccurate, misleading and a breach by you of this Agreement, for which NinjaTrader may at its option discontinue and remove Vendor from Ecosystem, terminate this Agreement NINJASCRIPT CONSULTANTS: If Vendor and/or Vendor Product includes NinjaScript programming services, Vendor represents and warrants that Vendor is proficient in C# Programming and NinjaScript, and all of its uses, in all material respects, as well as in the use of the NinjaTrader trading platform. To the extent Vendor complies with such representations and warranties, Vendor may use the logo NinjaScript Consultant available in the NinjaTrader Media Kit in connection with its Ecosystem listing, and in other promotional materials. Provided, however, that Vendor shall make no statement or representation that NinjaTrader or any of its affiliates endorses, approves, certifies or otherwise verifies Vendor and/or Vendor Product. Vendor is solely responsible for the design, development, supply, production and performance of NinjaScript services. NinjaTrader makes no warranties or representations of any kind related to the design, development, availability, performance, or property rights of any kind related to NinjaScript services provided by Vendor. Page 2 of 9

3 2. ECOSYSTEM VENDOR LISTING 2.1. APPLICATION FOR ECOSYSTEM LISTING. The procedures you need to follow to apply for acceptance as a Vendor who may participate, and have you or your Vendor Product listed in Ecosystem are set forth at The guidelines NinjaTrader uses to determine whether to accept a Vendor for participation in the Ecosystem are outlined in the NinjaTrader Vendor Professional and Compliance Guidelines document available here ninjatraderecosystem.com/download/vendorguidelines.pdf Upon acceptance of Vendor and/or Vendor Products for inclusion in the Ecosystem, NinjaTrader will list Vendor on at such location as NinjaTrader deems appropriate in its sole and absolute discretion, and subject to all terms and conditions of this Agreement TERM. There is no fixed term obligation regarding your participation, or the inclusion of you or any of your Vendor Product, in Ecosystem or any other programs we may from time to time offer. NinjaTrader may remove Vendor and/or Vendor Product from, or discontinue your participation in Ecosystem at any time for any reason or no stated reason, without any obligation to provide Vendor notice of such discontinuance or removal. Similarly, you have no obligation to continue your participation in Ecosystem for any fixed period of time and, you may discontinue your participation at any time, for any reason or no stated reason. 3. NO APPROVAL OR ENDORSEMENT; AUTHORIZATION TO INVESTIGATE. By accepting and including you and/or your Vendor Product on the Ecosystem, neither NinjaTrader, nor any of its affiliates, endorse, approve or recommend your Vendor Product, make any representations or warranties as to the quality or performance of you and/or your Vendor Products or the appropriateness of your promotional materials or other statements to your customers or prospects. Although NinjaTrader accepts no obligation to do so, NinjaTrader may, in its sole and absolute discretion, review and investigate your background and history, including without limitation, business, credit, criminal, regulatory history, as well as your website and any other promotional materials that may come to NinjaTrader s attention, to Page 3 of 9

4 satisfy NinjaTrader that your participation and inclusion in Ecosystem does not compromise the integrity and purpose of Ecosystem, NinjaTrader or any of its affiliated entities. NinjaTrader may also conduct tests to satisfy NinjaTrader that your Vendor Product is technically compatible with the NinjaTrader trading platform. You hereby knowingly acknowledge, authorize and consent to the performance by us of all such reviews and investigations of your background and history, and your website and promotional materials (if they become available to us), including the use of third-party search and investigatory services for such purpose. NinjaTrader assumes no affirmative obligation to find, discover or investigate all or any of your promotional materials or content. 4. VENDOR COVENANTS Vendor agrees to always portray NinjaTrader in a positive manner when making statements in public such as but not limited to trading rooms, trading forums, social media and magazines ( Public Forums ), and to refrain from making any statements disparaging NinjaTrader and any affiliated entities, and Ecosystem in Public Forums In the event Vendor has questions, concerns, constructive criticism, feedback or complaints related to NinjaTrader, any affiliated entity, or Ecosystem, Vendor agrees to communicate all such issues directly to NinjaTrader, and agrees to make no public statements of such issues Vendor agrees to inform NinjaTrader immediately if Vendor becomes aware of any regulatory, criminal or other investigation related to Vendor, Vendor Products, or Vendor s business Vendor agrees that during the term of this Agreement and for one (1) year following termination of this Agreement, Vendor will not directly or indirectly, solicit or attempt to solicit, divert or hire away any person employed by NinjaTrader or any of its affiliates NinjaTrader specifically limits certain functionality on various NinjaTrader versions. Vendor agrees not to circumvent NinjaTrader feature imposed limitations by duplicating functionality we specifically limit or have removed from any version of NinjaTrader. An example would be creating a feature that was equivalent in concept to an ATM Strategy for NinjaTrader Direct Edition where we have specifically removed this functionality. This Page 4 of 9

5 is one example but in no case can a Vendor create limited or removed functionality and if done Vendor agrees this action would be detrimental to NinjaTrader resulting in termination from program participation and injunctive relief can be sought by NinjaTrader Vendor agrees to allow NinjaTrader to conduct two (2) NinjaTrader trading platform educational presentations per calendar year, no less than six (6) months apart, to Vendor s customers and prospects. 5. INTELLECTUAL PROPERTY: 5.1. NON-INFRINGEMENT. Vendor represents and warrants that all Vendor Products do not infringe on any patents, copyrights, trade secrets, proprietary rights, trademarks, licenses or other rights of any third-party, and that such Vendor has all legal rights and authority to use, market, sell and distribute Vendor Products CONFIDENTIALITY. Vendor is solely and completely responsible to maintain the secrecy of any and all software code and protections related to Vendor Product against reverse engineering or other discovery or use of that code. NinjaTrader disclaims all responsibility, and you, fully and knowingly, assume the risk and responsibility relating to the protection or secrecy of your software code and all related notes and documentation related to Vendor Products. 6. INDEMNIFICATION: 6.1. Vendor shall indemnify, defend and hold harmless NinjaTrader, its affiliates, and their respective agents and employees, from and against, any and all claims, demands, damages, judgments, settlements, awards, losses, fines, penalties, costs and expenses, of any kind or nature, including, but not limited to, attorney fees, expert and consultant fees and costs incurred at and before any trial, arbitration, mediation, investigation, inquiry or other formal or informal proceeding of any nature, whether or not any such proceeding is brought or pursued, and including all fines, interest and/or penalties imposed by any governmental, quasi-governmental, regulatory or self-regulatory agency or body, that arise from, are caused by, or relate to: Any breach by you of this Agreement Page 5 of 9

6 Any act or omission by you or anyone acting on your behalf or on your instruction that is a violation of, contrary to, or inconsistent with, the guidelines or intent of this Agreement or Ecosystem Your obligations, agreements, representations, warranties and/or undertakings pursuant to this Agreement Any violation by you or any of your employees, agents or affiliates of any law, rule, regulation, notice or statement of any governmental, quasi- governmental, regulatory or self-regulatory agency or body, or any communication, transaction or dealings or sales or use taxes Any warranty or product liability claim with respect to any Vendor Product, Any error or misrepresentation made in any advertisement for any Vendor Product; Vendor s business or activities generally Any claim that Vendor and/or Vendor Products are inaccurate, non-functioning, not proficient, misleading, not suited for their intended purposes or lack appropriate knowledge or competence Any infringement, or any claim of infringement, of any patent, copyright, trade secret, proprietary right, trademark, license, or other right with respect to any Vendor Product All indemnification provisions of this Section shall survive any termination of this Agreement. 7. IN NO EVENT SHALL NINJATRADER OR ANY OF ITS AFFILIATES BE LIABLE TO VENDOR OR ANY OTHER PERSON CLAIMING BY OR THROUGH VENDOR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT OR SPECIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS), EVEN IF NINJATRADER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS PROVISION SHALL SURVIVE ANY TERMINATION OF THIS AGREEMENT. 8. VENDOR KIT. Page 6 of 9

7 8.1. For the term of this Agreement, Vendor will receive a Vendor Kit for the purpose of developing, servicing and supporting your Vendor Product. The Vendor Kit is comprised of the following: NinjaTrader Media Kit NinjaTrader Enterprise License. A live trading Multi Broker license for Vendor s use NinjaTrader Vendor License Management. A service allowing Vendor to control the distribution of Vendor Products built specifically to run inside the NinjaTrader trading platform Kinetick Market Data. A real-time and historical market data subscription for use with the NinjaTrader trading platform. Standard exchange fees may apply Upon termination of this Agreement for any reason, by either party, Vendor shall immediately terminate all use of the Vendor Kit, including without limitation, removing, deleting from all advertising, marketing, promotional, informational, operational, or other materials related to Vendor or Vendor Products, all NinjaTrader logos, images, or other materials, whether such materials are in the possession of Vendor or third-parties, including removal and deletion of all such materials from third-party websites. Additionally, upon termination of this Agreement, Vendor expressly agrees and acknowledges that NinjaTrader may, in its sole and absolute discretion, disconnect, discontinue, deactivate or otherwise terminate any NinjaTrader Enterprise License, NinjaTrader Vendor License Management or Kinetick Market Data services provided pursuant to this Agreement. 9. NON-WAIVER OF BREACH. The failure of either Party to pursue relief for any breach of any provision of this Agreement or to require strict compliance with any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach by the other Party. 10. DISPUTE RESOLUTION. The parties agree the sole and exclusive venue and jurisdiction for resolution of any dispute arising out of or relating to the performance or subject matter of this Agreement is the Colorado District Court in and for the City and County of Denver, Page 7 of 9

8 Colorado. To the extent permitted by law, the parties agree to waive any and all right to trial by jury in any action or proceeding arising out of or relating to this Agreement. The parties represent that this waiver is knowingly, willingly and voluntarily given. In any action arising out of or relating to this Agreement, the prevailing party in any such action shall be entitled to recover all reasonable attorneys' fees, court costs, and other related expenses incurred in connection therewith. 11. GOVERNING LAW. The validity, construction, and interpretation of the terms and conditions herein and all rights and duties of NinjaTrader and Vendor shall be governed by the substantive laws of the State of Colorado without regard to conflict of laws rules. The Parties agree the exclusive venue and jurisdiction for any dispute arising out of or related to this Agreement shall be the City and County of Denver, Colorado, and voluntarily agree to waive all objections to personal jurisdiction or venue for such action. 12. NOTICES. Any notice, demand or other communication required or permitted to be given under this Agreement must be in writing and shall be deemed delivered to a Party (a) when delivered by hand or courier, (b) when sent by confirmed facsimile with a copy sent by another means specified in this Section, or (c) seven (7) days after the date of mailing if mailed by pre-paid certified or registered mall, return receipt requested, postage prepaid, in each case to the address and addressee of such Party set forth below (or at such other address and/or addressee as the Party may from time-to-time specify by notice delivered in the foregoing manner): If to NinjaTrader: NinjaTrader, LLC Delgany Street, 4 th Floor Denver, CO If to VENDOR: To Vendor s address and/or physical address on file with NinjaTrader, or Vendor s registered agent. 13. FORCE MAJEURE. If either Party is prevented from performing any portion of this Agreement by causes beyond its control, including labor disputes, civil commotion, war, governmental Page 8 of 9

9 regulations or controls, casualty, or acts of God, such defaulting Party shall be excused from performance for a period equal to the time that such cause has lasted. 14. NON-ASSIGNMENT. Vendor may not assign this Agreement without the prior written consent of NinjaTrader. 15. WAIVER AND AMENDMENT. The waiver or failure of either Party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further right hereunder. Any changes, additions, or waivers to the terms and conditions of this Agreement must be agreed upon by both Parties in writing and will be attached as a written document signed by the Parties. 16. COUNTERPARTS. This Agreement may be executed in one or more counterparts, each of which is deemed an original but all of which taken together constitute one and the same instrument. 17. SECTIONS AND HEADINGS. The headings contained herein are for the convenience of reference only and are not intended to define, limit, expand or describe the scope or intent of any clause or provision of this Agreement. 18. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement and understanding of the Parties relating to the subject matter hereof and supersedes all prior negotiations and understandings between the parties, both oral and written, regarding such subject matter. 19. SEVERABILITY. In the event any portion of this Agreement is held to be unenforceable, the remaining portions of this Agreement shall be interpreted to give maximum effect to the intent of the Parties. The undersigned hereby agrees and accepts the foregoing terms and conditions and hereby repudiates any terms or conditions inconsistent with the foregoing. Page 9 of 9