Terms for Use and access to LME Real Time and Delayed, and CME Real Time data and information
Below are the Exchange Terms which are relevant to the Licensee’s use, access and receipt of the applicable Exchange Data that the Licensee is permitted to receive under the applicable Order Form (being CME Real Time and/or LME Real Time and/ or LME Delayed data and information). The Order Form will specify which type of access (“Real Time”, and/or “Delayed”) the Licensee has to the applicable Exchange Data.
Unless otherwise stated, all terms herein shall have the meaning ascribed to them in the applicable Order Form and corresponding “Terms and Conditions” made by Argus with the Licensee.
The Exchange Terms are effective from the Commencement Date set out on the applicable Order Form, and are made by and between Argus and the Licensee listed on the applicable Order Form. The Exchange Terms will terminate on the expiry or earlier termination of the applicable Order Form, save that Licensee’s access to Exchange Data on a “Real Time” basis may be terminated earlier pursuant to any express termination provision, specifically related to termination of “Real Time” access only, if specified in the applicable Exchange Terms. The Exchange Terms shall prevail in the event of any inconsistency between the terms of the applicable Order Form and the Exchange Terms solely to the extent such inconsistency directly relates to the receipt, access and/or use of Exchange Data.
Terms in respect of access, receipt and use of LME Information (as defined below), whether “Real Time” (being LME Information up to 30 minutes old) or “Delayed” (being LME Information that is more than 30 minutes old but not Next Day Information) (“LME Terms”)
1. By signing the applicable Order Form in respect of receipt, access and use of LME Information (as defined below), Licensee recognises, acknowledges and agrees that: (a) LME (as defined below) and its licensors own all Intellectual Property Rights in the LME Information; (b) the LME Information is provided by Argus to the Licensee subject to the terms of a separate agreement with LME; (c) it is not entitled whether directly or indirectly to redistribute the LME Information or distribute, redistribute or sell Derived Information to any party; (d) it is required to provide on request all information requested by Argus and/or the LME for auditing or compliance purposes, and to allow rights of audit by Argus and their appointed representatives; (e) it is only entitled to use the LME Information for its internal business use; (f) it is restricted from using the LME Information (or any part thereof) (i) as a basis for settlement of a contract on an exchange or other trading platform which is not operated by the LME or its Affiliates and (ii) in any other manner which is or may be directly or indirectly competitive with the operations of the LME or its Affiliates; and (g) Argus shall be entitled to cease disseminating LME Information to Licensee in the case of non-payment or non-compliance by it of these LME Terms and/or any other separate agreement with Licensee in respect of its access to and use of LME Information.
2. For the purposes of clause 1 of these LME Terms only:
“Affiliates” means any Subsidiary or Ultimate Holding Company of LME and any other Subsidiary of that Ultimate Holding Company. A company is a “Subsidiary” of another company, its “Holding Company”, if that other company holds directly or indirectly 50% or more of the voting rights in the company and/or exercises effective control over it.
“Derived Information” means data which is created as a result of receiving the LME Information and then processing the LME Information, changing the LME Information and /or combining the LME Information with other data
“Intellectual Property Rights” means all intellectual property, including patents, utility models, trade and service marks, trade or business names, domain names, rights in designs, copyrights, moral rights, topography rights, and rights in databases and rights in trade secrets and confidential information, in all cases whether or not registered or registrable in any country for the full term of such rights including any extension to or renewal of the terms of such rights and including registrations and applications for registration of any of these and rights to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world.
“LME Information” means data and information in any form that is proprietary to, and provided by, the London Metal Exchange Market (“LME”) to Argus under an agreement dated 23rd September 2015 (the “LME Distribution Agreement”) (including, without limitation, market data prices, volumes, quotations, indices, time stamps, news and other information relating to contracts and other instruments traded on any platform operated by the LME), together with any information in any form licensed or supplied by any third party to the LME for the purposes of its wider distribution and provided to Argus under the LME Distribution Agreement.
Terms in respect of access, receipt and use of CME Market Data displayed 10 minutes or less after initial transmission by CME (“Real Time”)
(the “CME Agreement”)
This Market Data Subscription Agreement is effective from the Commencement Date identified on the relevant Order Form and is made by and between Argus and the Licensee identified on the relevant Order Form (“you” or “Licensee”). This Market Data Subscription Agreement permits the Licensee to access, receive and use certain CME Market Data (defined below) in accordance with the following terms and conditions of this Market Data Subscription Agreement (the “CME Agreement”). The CME Agreement governs your access to receive and use the CME Market Data, and constitutes a binding legal agreement by and between Argus and Licensee (each of Argus and the Licensee, a “Party” and collectively, the “Parties”).
"Device" means any unit of equipment, fixed or portable, that receives, accesses or displays CME Market Data in visible, audible or other comprehensible form. "Force Majeure Event" means any flood, extraordinary weather conditions, earthquake or other act of God, fire, war, terrorism, insurrection, riot, labor dispute, accident, action of government, communications or power failures, or equipment or software malfunctions. "Person" means any natural person, proprietorship, corporation, partnership, limited liability company or other organization. "CME Market Data" means NYMEX data, COMEX data and all such other data and/or information proprietary to, and provided by, CME to Argus under the Information Distribution License Agreement dated 6 October 2008 made between MetalPrices.com (predecessor-in-title to Argus Media Inc) and Chicago Mercantile Exchange Inc (the “IDLA”) pertaining to listed and over the counter derivatives contracts (including without limitations swaps and futures) and options contracts or similar derivative instruments as well as index data and analytics data. CME Market Data may include, without limitation, opening and closing prices, high-low prices, settlement prices, current bid and ask prices, open interest information, last sale prices, price limits, requests for quotations, fixing prices, data curves, estimated and actual volume data, contract specifications and fast or late messages. With respect to Licensee’s obligations under the CME Agreement, CME Market Data also includes information, data and materials that convey information to Licensee substantially equivalent to CME Market Data that is proprietary to, and provided by, CME to Argus under the IDLA. “OTC CME Market Data” means CME Market Data relating to over the counter derivatives contracts.
2. Proprietary Rights In The CME Market Data
2.1 Licensee acknowledges and agrees that Chicago Mercantile Exchange Inc. and its affiliates (“CME” or “Exchange”) have exclusive and valuable property rights in and to the CME Market Data (or in the case of third party content providers who are licensing data through CME, such third party content provider has exclusive and valuable property rights), that such CME Market Data constitute valuable confidential information, trade secrets and/or proprietary rights of the Exchange, not within the public domain, that such CME Market Data shall remain valuable confidential information, trade secrets and/or proprietary rights of the Exchange and that, but for the CME Agreement, Licensee would have no rights or access to such CME Market Data.
2.2 Licensee acknowledges and agrees that disclosure of any CME Market Data, or any breach or threatened breach of any other covenants or agreements contained herein, would cause irreparable injury to the Exchange for which money damages would be an inadequate remedy. Accordingly, Licensee further acknowledges and agrees that the Exchange 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 the CME Agreement (including, without limitation, any disclosure or threatened disclosure of CME Market Data) in addition to and not in limitation of any other legal or equitable remedies which may be available.
3. Receipt Of CME Market Data By Licensee
3.1 The CME Agreement sets forth the terms and conditions under which Licensee may use the CME Market Data. Licensee acknowledges that, notwithstanding any agreement, CME or Argus may, in its discretion, discontinue disseminating CME Market Data or change or eliminate its own transmission method, speed or signal characteristics. In addition, Licensee acknowledges and agrees that Argus or Exchange reserve the right to disapprove any Licensee and to terminate any Licensee’s receipt of CME Market Data for any reason or no reason.
3.2(i) Except as provided in section 3.2 (iii) below, Licensee will use CME Market Data only for its own internal business activities (internal business activities shall exclude subsidiaries and affiliates) and only at the offices and locations, and on the Devices and by the Authorised Users designated by Licensee in writing to, and agreed to by Argus (as set out in the applicable Order Form).and CME from time-to-time. (The term “for its own internal business activities,” as used in the immediately preceding sentence herein, means for Licensee’s (a) trading, for its own account or for the account of its customers (b) evaluating, for its own internal business decisions or (c) provision of advice to its customers on movements or trends in markets for derivative instruments, subject to all of the limitations set forth below in this sub-section as to the telephonic disclosure to customers of a necessary and de minimis number of segments of CME Market Data.)
(ii) Licensee agrees that it will not communicate or otherwise furnish, or permit to be communicated or otherwise furnished, the CME Market Data, in any format, to any other party or any office or location other than that designated in the Order Form, nor allow any other party to take, directly or indirectly, any of the CME Market Data from such offices or locations, and will adopt and enforce any policy that is reasonable to prevent the CME Market Data from being taken therefrom. Licensee specifically agrees, without limiting or varying its obligations under section 7 herein or otherwise set forth in the CME Agreement, that Licensee shall not use or permit another person to use any CME Market Data for the purposes of (a) creating derived data products based upon or derived from the CME Market Data, (b) determining or arriving at any price, including any settlement prices, for derivatives contracts, options on derivatives contracts, or like derivatives instruments traded on any exchange other than the Exchange and (c) for any other derived works that will be disseminated, published or otherwise used externally. Licensee will abide by any other limitations on such use that any of the Exchange may specify from time to time. Licensee 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, CME Market Data received through Devices in Licensee's possession.
(iii) Notwithstanding sections 3.2 (i) and (ii) above, an Authorised User may, in the regular course of the Licensee’s business, occasionally furnish, to each of Licensee’s customers and branch offices, in a quantity restricted to that necessary to enable Licensee to conduct its business, a de minimis number of segments of CME Market Data, provided that such CME Market Data does not include any OTC CME 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 Licensee or any such recipients. Any such recipients must be advised by Licensee that such segments are proprietary and confidential information not to be disclosed or disseminated to other persons or entities. Licensee agrees to make all reasonable efforts to ensure that such recipients abide by the provisions of the Agreement.
(iv) Licensee will use its best efforts to ensure that no unauthorized dissemination of the CME Market Data is permitted.
Licensee agrees to furnish promptly to Argus, CME and their respective affiliates or agents, any information or reports that may be requested or required by Argus or CME from time to time, which are reasonably related to Licensee’s receipt of CME Market Data.
5. Right Of Inspection And Audit
5.1 During regular business hours, any Persons designated by Argus or Exchange may have access to Licensee's offices or locations in order to observe the use made of the CME Market Data and to examine and inspect any Devices, attachments or apparatuses, as well as any books and records required to be maintained by Licensee under Sections 3.2 and 4 in connection with its receipt and use of CME Market Data.
5.2 Licensee will make prompt adjustment (including interest thereon at the rate of 1½% per month), to compensate Argus and Exchange if the audit discovers an under-reported use of the CME Market Data by Licensee. In addition, at the election of any such Exchange, Licensee 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.
5.3 Licensee shall maintain the records and books upon which it bases its reporting for three (3) years following the period to which the records relate. In the event that Licensee fails to retain such records and books as required above, Licensee agrees to pay CME the reasonable estimate of any discrepancy discovered pursuant to any such audit.
6. CME Market Data Fees
Licensee will pay Argus for the right to receive CME Market Data in accordance with the then-current fee schedule. CME Market Data fees are subject to modification by Argus at any time, without prior notice to Licensee.
7. Covenants, Representations And Warranties Of Licensee
7.1 Licensee covenants, represents and warrants that it is not engaged in the business of distributing CME Market Data and that, to its knowledge after reasonable inquiry, it is receiving the CME Market Data as authorized hereunder.
7.2 Licensee agrees that it will not use or permit any other Person to use CME Market Data for any illegal purpose.
7.3 Licensee agrees that it will not use CME Market Data in any way to compete with Exchange, nor use the CME Market Data in any way so as to assist or allow a third party to compete with the Exchange.
7.4 Licensee agrees that the provision of CME Market Data hereunder is conditioned upon Licensee's strict compliance with the terms of the CME Agreement and that Argus or Exchange 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 Licensee of the provisions hereof.
7.5 Licensee further represents and warrants that (i) it has all necessary power and authority to execute and perform the Agreement; (ii) the Agreement is legal, valid, binding and enforceable against Licensee; (iii) neither the execution of, nor performance under, the Agreement by Licensee violates or will violate any law, rule, regulation or order, or any agreement, document or instrument, binding on or applicable to Licensee or the Exchange; and (iv) its access to and use of the CME Market Data will be in accordance with all applicable federal, state, and local laws, regulations, and treaties.
8. Disclaimer Of Warranties
CME MARKET DATA IS PROVIDED, AND LICENSEE AGREES THAT THE CME MARKET DATA IS PROVIDED, ON AN “AS IS,” “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND. LICENSEE AGREES THAT: ARGUS AND ITS AFFILIATES; EXCHANGE AND ITS AFFILIATES; AND ANY OF THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, AND ANY LICENSOR TO EXCHANGE, DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE CME 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 OR USE OR NON- INFRINGEMENT, 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
9.1 LICENSEE AGREES THAT: ARGUS AND ITS AFFILIATES; EXCHANGE AND ITS AFFILIATES; AND THEIR RESPECTIVE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS AND ANY LICENSOR TO EXCHANGE:
(i) DO NOT GUARANTEE THE SEQUENCE, ACCURACY OR COMPLETENESS OF THE CME MARKET DATA, NOR SHALL ANY OF THEM BE LIABLE TO LICENSEE OR ANY OTHER PERSON FOR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN CME MARKET DATA, OR IN THE TRANSMISSION THEREOF, OR FOR ANY OTHER DAMAGES ARISING IN CONNECTION WITH LICENSEE’S RECEIPT OR USE OF CME MARKET DATA, WHETHER OR NOT RESULTING FROM NEGLIGENCE ON THEIR PART, A FORCE MAJEURE EVENT OR ANY OTHER CAUSE.
(ii) SHALL NOT BE LIABLE TO LICENSEE OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS, LIABILITY OR OTHER DAMAGE, DIRECT, INDIRECT OR CONSEQUENTIAL, ARISING OUT OF OR RELATING TO THE AGREEMENT AND THE CME MARKET DATA THEREUNDER, INCLUDING BUT NOT LIMITED TO:
(a) ANY INACCURACY OR INCOMPLETENESS IN, OR DELAYS, INTERRUPTIONS, ERRORS OR OMISSIONS IN THE DELIVERY OF, THE SITE OR THE CME MARKET DATA; OR
(b) ANY DECISION MADE OR ACTION TAKEN OR NOT TAKEN BY LICENSEE, ITS CUSTOMERS OR ANY OTHER ENTITIES OR ANY OF THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS.
(c) LOSS OF BUSINESS REVENUES, LOST PROFITS OR ANY PUNITIVE, INDIRECT, CONSEQUENTIAL, SPECIAL OR SIMILAR DAMAGES WHATSOEVER, WHETHER IN CONTRACT, TORT OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.2 LICENSEE EXPRESSLY ACKNOWLEDGES THAT ARGUS, EXCHANGE AND ITS AFFILIATES DO NOT MAKE ANY WARRANTIES, EXPRESS OR IMPLIED, TO LICENSEE OR ANY THIRD PARTY WITH RESPECT TO THE AGREEMENT AND THE CME MARKET DATA, INCLUDING, WITHOUT LIMITATION: (i) ANY WARRANTIES WITH RESPECT TO THE TIMELINESS, SEQUENCE, ACCURACY, COMPLETENESS, CURRENTNESS, MERCHANTABILITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE CME MARKET DATA OR (ii) ANY WARRANTIES AS TO THE RESULTS TO BE OBTAINED BY LICENSEE OR ANY THIRD PARTY IN CONNECTION WITH THE USE OF THE CME MARKET DATA.
9.3 IF THE FOREGOING DISCLAIMER AND WAIVER OF LIABILITY, OR ANY PART THEREOF, SHOULD BE DEEMED INVALID OR INEFFECTIVE, THE CUMULATIVE LIABILITY OF ARGUS, EXCHANGE, AND THEIR RESPECTIVE AFFILIATES, DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES AND AGENTS SHALL NOT EXCEED THE ACTUAL AMOUNT OF LOSS OR DAMAGE, OR THE SUM OF FIFTY DOLLARS ($50.00), WHICHEVER IS LESS.
10. Term and Termination
10.1 The CME Agreement will commence on the Commencement Date. Subject to Licensee's strict compliance with the provisions of the CME Agreement, the provision of CME Market Data by Argus hereunder will continue in force for a period of one (1) month from the Commencement Date (the “Initial Term”), and shall automatically renew at the end of such Initial Term for one (1) month and automatically thereafter on a month-to-month basis (such ongoing renewals, the “Renewal Terms”), provided, however, that either Party may terminate this CME Agreement by providing at least ten (10) days’ prior electronic or written notice that it declines such automatic renewal.
10.2 Argus and Exchange may from time to time modify and amend the CME Agreement, and Licensee agrees to be bound by such terms. Licensee may terminate the CME Agreement upon ten (10) days’ electronic or written notice upon such modification or amendment. By continuing to access or use the CME Market Data after Argus or Exchange has provided you with notice of a modification, you are indicating that you agree to be bound by the modified CME Agreement.
10.3 Upon any termination of the CME Agreement, Licensee shall discontinue any use of the CME Market Data, and delete any and all CME Market Data received under the CME Agreement, including without limitation any stored historical CME Market Data.
The provisions of the Definitions Section 1, Proprietary Rights In The CME Market Data Section 2, and Sections that by their nature should reasonably survive, and any amendments to the provisions of the aforementioned, will survive any termination or expiration of the CME Agreement.
Licensee will indemnify, defend and hold Argus and Exchange, and their respective affiliates, directors, officers, employees and agents harmless from and against any and all claims arising out of or in connection with the CME Agreement , including, without limitation, any liability, loss or damages (including, without limitation, attorneys’ fees and other expenses) caused by any inaccuracy in or omission from, Licensee's failure to furnish or to keep, or Licensee's delay in furnishing or keeping, any report or record required to be kept by Licensee hereunder.
13.1 Any action arising out of the CME Agreement shall be governed and construed in accordance with the internal laws (and not the law of conflicts) of the State of Illinois. The Parties submit to the exclusive jurisdiction of the state and federal courts situated in Cook County, State of Illinois in respect of any action arising out of this CME Agreement.
13.2 Licensee may not assign all or any part of the CME Agreement without the prior written consent of Argus.
13.3 Licensee may not modify or amend the terms of the CME Agreement.
13.4 In the event of any conflict between the terms and conditions of the CME Agreement and any other agreement relating to Licensee's receipt and use of CME Market Data, the terms and conditions of the CME Agreement will prevail.
13.5 If, for any reason, one or more provisions of the Agreement or part thereof is held invalid, the other provisions of the CME Agreement, or parts thereof, shall remain in full force and effect.
13.6 Licensee hereby consents to use by CME and its affiliates of proprietary data or other personal information regarding Licensee received by CME and its affiliates from time to time through the conduct of their businesses, including any data submitted to them to fulfill regulatory obligations, for commercial, business and marketing purposes. Except as may be otherwise set forth herein (for reporting purposes or otherwise), CME and its affiliates will not reveal the following information obtained from Licensee to fulfill regulatory obligations to non-affiliated third-parties on a non-aggregated, non-anonymized basis, except (x) as permitted by law, (y) as required or requested by regulatory authority or (z) pursuant to a valid court order, subpoena or equivalent legal instrument: (i) personally identifiable information, (ii) detailed transaction data, (iii) position data, (iv) investigative materials, or (v) financial source documents.
13.7 Argus and Licensee acknowledge and agree that CME is an intended third party beneficiary to the CME Agreement, and that CME may enforce all of the terms hereunder.