UNIFORM SUBSCRIBER ADDENDUM
THIS ADDENDUM is entered into this ____ day of_____________ , 19___ , by and between the below-listed subscriber ("Subscriber"), the below-listed vendor ("Vendor") and each of the Exchanges designated below ("Exchanges").
VENDOR: (Party Delivering Market Data to Subscriber) ________________________________
SUBSCRIBER: (Party Receiving Market Data from Vendor)__________________________________
Street, City, State/Province, Country: ___________________________________________
EXCHANGES (check all that apply) |
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_____ | CBOT | _____ | COMEX | |
_____ | CME | _____ | NYMEX | |
_____ | MID-AM | _____ | CEC (CSCE, NYCE, NYFE, FINEX) |
1. DEFINITIONS.
(a) "Device" means any unit of equipment, fixed or portable,
that receives, accesses or displays Market Data in visible, audible or other
comprehensible form.
(b) "Force Majeure Event" means any flood, extraordinary
weather conditions, earthquake or other act of God, fire, war, insurrection, riot, labor
dispute, accident, action of government, communications or power failures, or equipment or
software malfunctions.
(c) "Person" means any natural person, proprietorship,
corporation, partnership, limited liability company or other organization.
(d) "Market Data" means information and data pertaining to
futures contracts and options contracts traded on the Exchanges, that includes, without
limitation, opening and closing range prices, high-low prices, settlement prices, current
bid and ask prices, last sale prices, price limits, requests for quotations, estimated and
actual contract volume data, text messages pertaining to market activity, contract
specifications, fast or late messages and, as determined by each of the Exchanges, may
include information respecting exchange-for-physical (EFP) or against actuals (AA)
transactions. With respect to Subscriber's obligations under this Addendum, Market Data
includes information, data and materials that are derived from the foregoing and that
convey information to Subscriber that is substantially equivalent to Market Data.
2. PROPRIETARY RIGHTS IN THE MARKET DATA.
(a) Subscriber ac-knowledges and agrees that each of the Exchanges has
exclusive and valuable propcr/y rights in and to its own Market Data, that such Market
Data constitute valuable confidential information, trade secrets and/ur proprietary rights
of each of the Exchanges, not within the public domain, that such Market Data shall remain
valuable confidential infonnation, trade secrets and/or proprieta~J rights of each of the
Exchanges at least until the Exchanges place their respective Market Data in the public
domain or authorize placement of their respective Market Data in the public domain, and
that, but for this Addendure, Subscriber would have no rights or access to such Market
Data. Whether or not a particular Exchange has placed its Market Data in the public domain
or has authorized tlie placement of its Market Data in tile public domain shah be
determined according to the terms of such Exchange's agreement with Vendor, which
agreement is described in Section 3(a).
(b) Subscriber acknowledges and agrees that disclosure of any Market
Data, or any breach or threatened breach of any other covenants or agreements contained
herein, would cause irreparable injury to each of the Exchanges for which money damages
would be an inadequate remedy. Accordingly, Subscriber further acknowledges and agrees
that each of the Exchanges shall be entitled to specific performance and injunctive and
other equitable relief from the breach or threatened breach of any provision, requirement
or covenant of this Addendure (including, without limitation, any disclosure or threatened
disclosure of Market Data) in addition to and not in limitation of any other legal or
equitable remedies which may be available.
3. RECEIPT OF MARKET DATA BY SUBSCRIBER.
(a) Vendor and Subscriber have entered into an agreement by which Vendor will,
among other things, provide Subscriber with Market Data. Vendor has entered into
agreements with each of the Exchanges whereby Vendor has been granted the right to receive
Market Data and to retransmit the same to Subscriber. This Addendum to the agreement
between Vendor and Subscriber sets forth the terms and conditions upon which Subscriber
may receive and use Market Data. Subscriber acknowledges that, notwithstanding such
agreement, each of the Exchanges may, in its discretion, discontinue disseminating its own
Market Data or change or eliminate its own transmission method, speed or signal
characteristics. In addition, Subscriber acknowledges and agrees that the Exchanges
reserve the right to disapprove any Subscriber and retain the right to direct Vendor to
terminate any Subscriber's receipt of Market Data for any reason or no reason, in which
event the Exchanges shall so notify Vendor and Vendor shall cease providing Market Data to
Subscriber as soon as practicable.
(b)(1) Except as provided in (2) below, Subscriber will use Market Data
only for its own internal business activities and only at the offices and locations and on
the Devices designated by Subscriber in writing to Vendor from time-to-time. Subscriber
agrees that it will not communicate or otherwise furnish, or permit to be communicated or
otherwise furnished, the Market Data, in any format, to any other party or any office or
location other than that designated above, nor allow any other party to take, directly or
indirectly, any of the Market Data from such offices or locations, and will adopt and
enforce any policy that is reasonable to prevent the Market Data from being taken
therefrom. Subscriber will abide by any other limitations on such use that any of the
Exchanges may specify. Subscriber will use its best efforts to ensure that its partners,
officers, directors, employees and agents maintain sole control and physical possession
of, and sole access to, Market Data received through Devices in Subscriber's possession.
(2) Notwithstanding (1) above, Subscriber may, in the regular course of its business,
occasionally furnish, to each of its customers, branch offices, and guaranteed introducing
brokers, in a quantity restricted to that necessary to enable Subscriber to conduct its
business, a de minimis number of segments of Market Data. Such redissemination must be
strictly limited to telephonic communications not entailing the use of computerized voice
synthesization or any other technology and must be strictly related to the trading
activity of Subscnber or any such recipients. Any such recipients must be advised by
Subscriber that such segments are proprietary and confidential information not to be
disclosed or disseminated to other persons or entities. Subscriber agrees to make all
reasonable efforts to ensure that such recipients abide by the provisions of this
Addendum.
(c) In the event that Vendor has agreed to permit Subscriber to receive, access
or display Market Data through means other than a Vendor-provided Device, such as by means
of: (i) the Internet, any Intranet or any other type of network; (ii) portable Devices
(e.g., pocket pagers, personal digital assistants, laptop computers, etc.); and (iii)
synthesized voice responses over telephones, Subscriber will use its best efforts to
ensure that no other device, attachment or apparatus is used which may allow third parties
not subject to Subscribers reporting obligations under Section 3(b) above to access
the Market Data.
4. REPORTING.
Upon request, Subscnber agrees to furnish promptly to Vendor any information or reports
that may be required by any of the Exchanges as applicable and that is reasonably related
to Subscriber's receipt of Market Data. Subscriber further agrees to furnish promptly to
Vendor any additional information or reports that may be required by the agreement between
Vendor and Subscriber referred to in Section 3(a) as it relates to Subscriber's receipt of
Market Data.
5. RIGHT OF INSPECTION AND AUDIT.
During regular business hours, any Persons designated by any Exchange may have access to
Subscriber's offices or locations in order to observe the use made of the Market Data and
to examine and inspect any Devices, attachments or apparatuses, as well as any books and
records required to be maintained by Subscriber under Sections 3(b) and 4 in connection
with its receipt and use of Market Data. Subscriber will make prompt adjustment (including
interest thereon at the rate of 1 1/2% per month), through Vendor, to compensate any
Exchange that discovers an under-reported use of the Market Data by Subscriber. In
addition, at the election of any such Exchange, Subscriber will be liable for the
reasonable costs of any audit that reveals a discrepancy in such Exchange's favor of five
percent (5%) or more of the amount of fees actually due such Exchange. Subscriber shall
maintain the records and books upon which it bases its reporting for CME, CBOT or MID-AM
Market Data for three (3) years following the period to which the records relate.
Subscriber shall maintain the records and books upon which it bases the reporting for
NYMEX, COMEX, or CEC Market Data for six (6) years following the period to which the
records and books relate. In the event that Subscriber fails to retain such records and
books as required above, Subscnber agrees to pay each Exchange's reasonable estimate of
any discrepancy discovered pursuant to any such audit.
6. EXCHANGE FEES.
Subscriber will pay Vendor (unless Vendor has assumed Subscriber's payment
obligations hereunder), for and on behalf of each of the Exchanges (as applicable), for
the right to receive Market Data in accordance with the then-current fee schedule
published by each of the Exchanges from time-to-time (including any and all applicable
federal, state or local taxes). Each Exchange's fees are subject to modification by each
of them at any time, without prior notice to Subscriber. In addition, Subscriber agrees to
pay Vendor any penalties assessed against Subscnber by Vendor on behalf of any Exchange.
Nothing herein shall limit a Vendor's obligation pursuant to separate agreement between
Vendor and any of the Exchanges (as applicable) to pay Exchange fees.
7. COVENANTS, REPRESENTATIONS AND WARRANTIES OF
SUBSCRIBER.
Subscriber covenants, represents and warrants that it is not engaged in the business of
distributing Market Data and that, to its knowledge after reasonable inquiry, it is
receiving the Market Data from a Vendor that is authorized by the Exchanges to distribute
the Market Data. Subscriber agrees that it will not use or permit any oother Person to use
Market Data for any illegal purpose. Subscriber agrees that it will not use Market Data in
any way to compete with the Exchanges or Vendor, nor use the Market Data in any way so as
to assist or allow a third party to compete with the Exchanges or Vendor. Subscriber
agrees that the provision of Market Data by the Exchanges hereunder is conditioned upon
Subscriber's strict compliance with the terms of this Addendum and that Vendor may, with
or without notice and with or without cause, forthwith discontinue said service whenever
in its judgment there has been any default or breach by Subscriber of the provisions
hereof, or whenever directed to do so by any of the Exchanges.
8. DISCLAIMER OF WARRANTIES.
SUBSCRIBER AGREES THAT NEITHER VENDOR NOR THE EXCHANGES MAKE ANY REPRESENTATIONS OR
WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE MARKET DATA, OR THE TRANSMISSION,
TIMELINESS, ACCURACY OR COMPLETENESS THEREOF, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED
WARRANTIES OR ANY WARRANTIES OF MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR
PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM ANY COURSE OF DEALING OR
USAGE OF TRADE.
9. LIMITATIONS OF LIABILITY AND DAMAGES.
Subscriber agrees that: (i) the provision of Market Data is made with equipment,
communications devices, and/or leased lines not owned or operated solely by Vendor or the
Exchanges; (ii) neither Vendor nor the Exchanges, nor their respective members, directors,
officers, employees or agents, guarantees the sequence, accuracy or completeness of the
Market Data nor shall any of them be liable to Subscriber or any other Person for any
delays, inaccuracies, errors or omissions in Market Data, or in the transmission thereof,
or for any other damages arising in connection with Subscriber's receipt or use of Market
Data, whether or not resulting from negligence on their part, a Force Majeure Event or any
other cause beyond their reasonable control; and (iii) if the foregoing disclaimer and
limitation of liability should be deemed invalid or ineffective by a court of competent
jurisdiction, neither Vendor nor the Exchanges, nor their respective members, directors,
officers, employees or agents shall be liable for any of the foregoing beyond the actual
amount of loss or damage, or the sum of fifty dollars ($50.00), whichever is less.
10. TERM AND TERMINATION.
Subject to Subscriber's strict compliance with the provisions of this Addendum, the
provision of Market Data by any of the Exchanges hereunder will continue in force during
the term of the agreement between Subscriber and Vendor and any renewal term thereof. In
addition, it is understood that the provisions set forth in paragraphs 2(a) and 2(b) of
this Addendum shall survive the termination of this Addendum.
11. INDEMNIFICATION.
Subscriber will indemnify and hold Vendor and the Exchanges, and their respective members,
directors, officers, employees and agents harmless from and against any and all claims
arising out of or in connection with this Addendum, including, without limitation, any
liability, loss or damages caused by any inaccuracy in or omission from, Subscriber's
failure to furnish or to keep, or Subscriber's delay in furnishing or keeping, any report
or record required to be kept by Subscriber hereunder.
12. MISCELLANEOUS.
In case of any breach by Subscriber of its obligations hereunder, each of the Exchanges
will be considered to be a third-party beneficiary of this Addendum and may bring an
action to enforce its terms directly against Subscriber. Any action arising out of this
Addendum between the CME, CBOT or MID-AM and Subscriber shall be governed and construed in
accordance with the internal laws (and not the law of conflicts) of the State of Illinois.
Any action arising out of this Addendum between NYMEX, COMEX, or CEC and Subscriber shall
be governed and construed in accordance with the internal laws (and not the law of
conflicts) of the State of New York. Subscriber may not assign all or any part of this
Addendum without the prior written consent of the Exchanges (as applicable). Neither
Vendor nor Subscriber may modify or amend the terms of this Addendum. In the event of any
conflict between the terms and conditions of this Addendum and any other agreement
relating to Subscriber's receipt and use of Market Data, including, without limitation,
the agreement between Vendor and Subscriber referred to in Section 3(a), the terms and
conditions of this Addendum will prevail. If, for any reason, one or more provisions of
this Addendum is held invalid, the other provisions of the Agreement shall remain in full
force and effect.