Last Updated Date: January 3^rd, 2020

I. Introduction and Eligibility

Please read these Terms of Use (“Terms”) carefully before using the Service.

Binding Agreement. These Terms constitute a binding agreement between you and Clearpool, Inc. and its affiliates and subsidiaries (collectively, “Clearpool,” “we,” “us”). “You” and “users” means all visitors to the Clearpool website (the “Site”), including the client portal and investment dashboard (collectively, the “Dashboard”) and the venue analytics portal (the “Portal”) on the Site. The Terms include a provision for Arbitration, Class Waiver, and Waiver of Jury Trial. You accept these Terms each time you access the Portal and/or the Dashboard and other services and materials that we provide to you from the Site (collectively, the “Service”). If you do not accept these Terms, you must not use the Service. We recommend that you store or print-off a copy of these Terms for your records. You have access to the Service because you are an employee or contractor of a broker-dealer (a “Broker-Dealer”), an employee or contractor of a Clearpool client that authorizes you to use the Service (“Employer”), or a client of one or more Broker-Dealers who are clients of Clearpool (each such Broker-Dealer or Employer, an “Organization”). You represent and warrant that you have been authorized by your Organization to use the Service.

All access to and use of the Service is subject to these Terms, our Privacy Policy, and the separate agreements between Clearpool and the Organization through which you have access to the Service (the “Master Agreement”). By accessing, viewing or using any page, part or component of the Service, you agree to be contractually bound by the Terms, the Privacy Policy, and the Master Agreement. These Terms do not amend the Master Agreement, but rather govern your use as an end user of the Service. If there is a conflict between any provision of this Agreement and any provision of the Master Agreement, the latter controls to the extent of the conflict.

Revisions to Terms. We may revise these Terms at any time by posting an updated version. You should visit this page periodically to review the most current Terms, because you are bound by them. Your continued use of the Service after a change to these Terms constitutes your binding acceptance of these Terms.

II. The Service

The Service includes the online Dashboard and Portal that allow users to view and conduct analyses of historical trading and investment data processed by Clearpool. The Dashboard may also allow you to configure certain services provided by Clearpool to which your Broker-Dealer or Employer subscribes. If you have any questions or concerns about your right to access the Dashboard and/or the Portal, please contact your Broker-Dealer, Employer, or Clearpool at helpdesk@clearpoolgroup.com. As part of your access to the Dashboard and/or the Portal, Clearpool may provide support in understanding, using, and configuring the Dashboard and/or Portal.

WITH RESPECT TO ANY REPORT OR OTHER ANALYSES PROVIDED ON THE SERVICE (OR OTHERWISE PROVIDED TO YOU) CONCERNING THE PERFORMANCE OF ANY MARKET VENUE, THE PERFORMANCE INFORMATION, INCLUDING THE SPEED OF EXECUTION, OF TRANSACTIONS ROUTED TO THAT MARKET VENUE IS CLEARPOOL’S ANALYSIS OF THE PERFORMANCE OF TRANSACTIONS THAT CLEARPOOL HAS ROUTED TO THAT VENUE AND IS NOT AN ANALYSIS OF THE PERFORMANCE OF THAT MARKET VENUE WITH RESPECT TO ANY TRADE OTHER THAN THOSE ROUTED BY CLEARPOOL OR THE OVERALL PERFORMANCE OF THE TRANSACTIONS EXECUTED AT THAT VENUE. MANY VARIABLES MAY IMPACT THE OVERALL PERFORMANCE OF A MARKET VENUE, SUCH AS LATENCY, PHYSICAL DISTANCE, TIMING OF THE ORDER, THE LEVEL OF MARKET DEMAND FOR A SECURITY, THE SIZE OF AN ORDER, THE LIQUIDITY OF THE MARKET FOR A SECURITY, THE COUNTERPARTY TO A TRANSACTION AND OTHER EXTERNAL MARKET FORCES BEYOND CLEARPOOL’S CONTROL AND, AS A RESULT, THERE IS NO GUARANTEE THAT YOU CAN EXPECT TO RECEIVE THE SAME OR SIMILAR RESULTS AS THE PERFORMANCE INFORMATION CONTAINED IN ANY REPORT OR ANALYSES. 

III. Eligibility to Use the Service

Children. THE SERVICE IS NOT DIRECTED AT PERSONS UNDER THE AGE OF 13 OR FOR ANY USERS PREVIOUSLY SUSPENDED OR REMOVED FROM THE SERVICE BY CLEARPOOL. IF YOU ARE UNDER 13 YEARS OF AGE, THEN YOU MUST NOT USE OR ACCESS THE SERVICE AT ANY TIME OR IN ANY MANNER. Furthermore, by accessing or using the Service, you affirm that either you are at least 18 years of age or have been authorized to use the Service by your parent or guardian who is at least 18 years of age.

IV. Your Account

You represent and warrant that any information you provide to Clearpool in connection with your access and use of the Service and at all other times will be true, accurate, current, and complete.

Your Log-In Credentials. To use the Service, you will have log-in information, including a username and password. Your account is personal to you, and you may not share your account information with, or allow access to your account by, any third party. As you will be responsible for all activity that occurs under your access credentials, you agree to use reasonable efforts to prevent unauthorized access to or use of the Service and to preserve the confidentiality of your username and password, and any device that you use to access the Service.

You agree to notify us, your Employer, and/or your Broker-Dealer(s) (as applicable) immediately of any breach in the security of your log-in information. If you have any reason to believe that your account information has been compromised or that your account has been accessed by a third party, you agree to immediately notify Clearpool by e-mail at helpdesk@clearpoolgroup.com. You will be solely responsible for the losses incurred by Clearpool and others due to any unauthorized use of your account.

V. Communications

You agree to receive email from us at the email address you provided to us for customer service-related purposes. We may also use your email address to contact you for advertising or promotional purposes, subject to applicable law.

Electronic Notices. By using the Service or providing contact information to us, you agree that we may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Service. If we learn of a security system’s breach, we may attempt to notify you electronically by posting a notice on the Service or sending an email to you. You may have a legal right to receive this notice in writing. To receive free written notice of a security breach (or to withdraw your consent from receiving electronic notice), please write to us at helpdesk@clearpoolgroup.com.

VI. Clearpool’s Content Ownership and Use

The contents of the Service may include: designs, text, graphics, images, video, information, logos, button icons, software, audio files, computer code, and other Clearpool content (collectively, “Clearpool Content”). All Clearpool Content and the compilation (meaning the collection, arrangement, and assembly) thereof are the property of Clearpool or its licensors and are protected under copyright, trademark, and other laws.

License to You. We authorize you, subject to these Terms, to access and use the Service and the Clearpool Content solely in connection with your use of other services provided by Clearpool to your Employer or one or more Broker-Dealers of whom you are a client. This license is revocable at any time without notice and with or without cause. Unauthorized use of the Service or Clearpool Content may violate copyright, trademark, and applicable communications regulations and statutes and is strictly prohibited. You must preserve all copyright, trademark, and other proprietary notices contained in the original Clearpool Content on any copy you make of the Clearpool Content. You may reproduce the analysis included on the Portal and visual representations thereof (the “Analysis”) for your internal business purposes, and if you are accessing on behalf of an Employer, for the Employer’s internal business purposes. Any permitted reproduction or distribution of the Analysis must attribute the Analysis to Clearpool.

Clearpool Marks. “CLEARPOOL,” “AUTONOMY,” “IRIS,” “CLARITY,” “FUSION,” and related logos, designs, and product and service names are or may be trademarks of Clearpool (the “Clearpool Marks”). Without our prior written permission, and except as solely enabled by any link as provided by us, you agree not to display or use in any manner the Clearpool Marks.

You Acquire No Ownership of Our Content or any Service. You understand and agree that you will not obtain, as a result of your use of the Service, any right, title, or interest in or to any Service or any Clearpool Content delivered via the Service or in any intellectual property rights (including, without limitation, any copyrights, patents, trademarks, trade secrets, or other rights) therein or thereto. Except as provided within these Terms or expressly allowed by the Service, you may not copy, modify, translate, publish, broadcast, transmit, distribute, perform, display, or sell any content appearing on or through the Service.

VII. Data Collection and Use

By using the Service, you consent to the collection and use of certain of your personally identifiable information in accordance with Clearpool’s Privacy Policy.

VIII. Suggestions and Submissions

We appreciate hearing from our users and welcome your comments regarding the Service. Please be advised, however, that if you disclose to us creative ideas, suggestions, inventions, or materials (“creative ideas”), we will:

• (a) have a non-exclusive, perpetual, irrevocable, worldwide license to use and exploit the creative ideas;
• (b) not be subject to any obligation of confidentiality and will not be liable for any use or disclosure of any creative ideas; and
• (c) be entitled to unrestricted use of the creative ideas for any purpose whatsoever, commercial or otherwise, without compensation to you or any other person.

IX. User Limitations and Prohibitions

You agree to use the Service only for its intended purpose. You must use the Service in compliance with all privacy, data protection, intellectual property, and other applicable laws. The following uses of the Service are prohibited. You may not nor attempt to:

• (a) interfere with, harm, reverse engineer, steal from, or gain unauthorized access to the Service, user accounts, or the technology and equipment supporting the Service;
• (b) frame or link to the Service without permission;
• (c) use data mining, robots, or other data gathering devices on or through the Service;
• (d) post incomplete, false, or misleading information, impersonate another person, or misrepresent your affiliation with a person or entity;
• (e) attempt to gain unauthorized access to the Service, the server on which the Service is stored or any server, computer, or database connected to the Service;
• (f) sell, transfer, or assign any of your rights to use the Service to a third party without our express written consent;
• (g) knowingly introduce viruses, Trojans, worms, logic bombs or other material which is malicious or technologically harmful;
• (h) use the Service in an illegal way or to commit an illegal act in relation to the Service or that otherwise results in fines, penalties, and other liability to Clearpool or others; or
• (i) access the Service from a jurisdiction where it is illegal or unauthorized.

X. Consequences of Violating These Terms

We reserve the right to suspend or terminate your account and prevent access to the Service for any reason, at our discretion. We reserve the right to refuse to provide the Service to you in the future.

You are responsible for any claims, fees, fines, penalties, and other liability incurred by us or others caused by or arising out of your breach of these Terms and your use of the Service.

XI. Clearpool’s Liability

Changes to the Service. We may change, suspend, or discontinue any aspect of the Service at any time, including hours of operation or availability of the Service or any feature, without notice or liability.

Content Accuracy. We make no representations or warranties about accuracy, reliability, completeness, or timeliness of any contents of the Service. Similarly, we make no representations or warranties about accuracy, reliability, completeness, or timeliness of any data available to you on the Service from Clearpool or any third party. Use the Service at your own risk.

We make no promises and disclaim all liability of specific results from the use of the Service.

Released Parties Defined. “Released Parties” include Clearpool and its affiliates and subsidiaries and its and their officers, employees, agents, partners, and licensors.

A. DISCLAIMER OF WARRANTIES

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE THAT: (A) YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK, AND THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, AND THE RELEASED PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT; (B) THE RELEASED PARTIES MAKE NO WARRANTY THAT (i) THE SERVICE WILL MEET YOUR REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE SERVICE WILL MEET YOUR EXPECTATIONS, (v) THE SERVICE WILL OPERATE ERROR FREE, OR THAT THE SERVICE AND ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES, AND (vi) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; OR (C) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.

YOU ACKNOWLEDGE THAT, TO THE EXTENT ANY LIABILITY ARISES OUT OF OR IN CONNECTION WITH ANY MATTER RELATED TO YOUR USE OF THE SERVICE (INCLUDING THE DASHBOARD OR PORTAL), YOUR SOLE RIGHT TO CLAIM REMEDIES WILL BE AGAINST YOUR EMPLOYER OR YOUR RELEVANT BROKER-DEALER, AND NOT CLEARPOOL OR ANY OF ITS AFFILIATES.

B. LIMITATION OF LIABILITY AND INDEMNIFICATION

TO THE FULLEST EXTENT PERMITTED BY LAW, YOU EXPRESSLY ACKNOWLEDGE THAT THE RELEASED PARTIES SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CLEARPOOL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH, FROM, OR AS A RESULT OF THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; OR (iv) YOUR RELIANCE ON CONTENT MADE AVAILABLE BY US; OR (vi) ANY OTHER MATTER RELATING TO THE SERVICE.

TO THE FULLEST EXTENT PERMITTED BY LAW, THE RELEASED PARTIES’ MAXIMUM LIABILITY ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR YOUR USE OF CLEARPOOL CONTENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED $100.

To the fullest extent permitted by law, you agree to defend, indemnify, and hold harmless the Released Parties from and against any claims, suits, proceedings, actions, and demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your unauthorized or improper use of the Service. We shall provide notice to you promptly of any such claim, suit, or proceeding.

XII. General Terms

These Terms constitute the entire agreement between you and Clearpool concerning your use of the Service. Our failure to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. If any provision of these Terms is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms remain in full force and effect. The section titles and annotations in these Terms are for convenience only and have no legal or contractual effect.

XIII. Arbitration, Class Waiver, and Waiver of Jury Trial

No Class Actions and Severability. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. You and we agree as follows: (A) neither you nor we will seek to have a Dispute heard as a class action, private attorney general action, or in any other proceeding in which either party acts or proposes to act in a representative capacity; (B) no arbitration or proceeding can be combined with another without the prior written consent of all parties to the arbitration or proceeding; and (C) if the class action waiver or any part of this Section XIII is found to be illegal or unenforceable as to all or some parts of a Dispute, those parts will be severed and proceed in a court of law, with the remaining parts proceeding in arbitration.

Governing Law. These Terms are governed by the laws of the State of New York without regard to conflict of law principles. If a lawsuit or court proceeding is permitted under these Terms, you and we agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within the Southern District of New York for the purpose of litigating any Dispute.

Survival. This section XIII expressly survives the termination of the Master Agreement or any other agreement between us.

Arbitration of Disputes

• (a) Agreement to Arbitrate. You and we agree to arbitrate all claims or disputes (“Disputes”) (except those exceptions specifically set out in the next subsection) between you and us or our affiliates, except Disputes related to our intellectual property rights. You and we empower the arbitrator with the exclusive authority to resolve any Dispute, including without limitation any part of these Terms are void or voidable.
• (b) Disputes Excluded from Arbitration. You and we agree that nothing in these Terms will be deemed to waive, preclude, or otherwise limit your or our right to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law; or (iv) file suit in a court of law to address an intellectual property infringement claim or to compel or uphold any arbitration decision hereunder. In such cases, neither you nor we shall need to follow the informal negotiations procedure and timeline set out in the next subsection.
• (c) Informal Negotiations. To help get you and us to a resolution and to control costs for you and us regarding any Dispute, you and we agree to first attempt to informally discuss and try to negotiate a resolution to any Dispute (except the Disputes specifically set out below) for at least 60 days from when notice of the Dispute is sent. Those informal negotiations will commence upon written notice from you to us or us to you. We will send our notice to your registered email address and any billing address that you provided to us. You will send your notice to Clearpool, Inc., 17 State Street, 38^th Floor, New York, NY 10004. After 60 days, you or we may commence arbitration. If the Dispute cannot be resolved within that time period, and if either you or we desire to continue the Dispute, the party desiring to continue the Dispute shall commence arbitration.
• (d) Commencing Arbitration. If you and we do not resolve a Dispute by informal negotiation, the Dispute shall be settled by binding arbitration before a neutral arbitrator whose decision will be final except for a limited right of appeal under the U.S. Federal Arbitration Act. YOU AGREE THAT YOU ARE GIVING UP THE RIGHT TO LITIGATE A DISPUTE IN COURT BEFORE A JUDGE OR JURY AND GIVING UP YOUR RIGHT TO A CLASS ACTION. Arbitration will be administered by the American Arbitration Association (the “AAA”) under its Consumer Arbitration Rules (the “AAA Rules”). You can find more information at www.adr.org or by calling 800-778-7879. Arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator may award damages to you individually as a court could, including declaratory or injunctive relief, but only to the extent required to satisfy your individual claim.
• (e) Fees and Location. If you commence arbitration in accordance with these Terms, we will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in New York County, New York, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (ii) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse us for all monies previously disbursed by us that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve Disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
• (f) Confidentiality of Settlement Offers. During the arbitration, the amount of any settlement offer made by you or us may not be disclosed to the arbitrator until after the arbitrator makes a final decision and award (if any).
• (g) Minimum Award. If you win in the arbitration, and are awarded an amount that exceeds the last written settlement amount offered by us, we will pay you the highest of the following: (i) the amount awarded by the arbitrator or (ii) $10,000.
• (h) Choice of Forum for Disputes That Are Not Subject to Arbitration. You and we agree that any action at law or in equity arising out of or relating to these Terms that is not subject to arbitration shall be filed, and that venue properly lies, only in the state or federal courts located in the Southern District of New York, United States of America and you consent and submit to the personal jurisdiction of such courts for the purposes of litigating such action.

Contact Information

Clearpool, Inc.

17 State Street, 38^th Floor

New York, NY 10004

helpdesk@clearpoolgroup.com