Exchange terms
It is a requirement of certain Exchanges (for example, the Chicago Mercantile Exchange (“CME”) and the London Metal Exchange (“LME”)) that Argus may only make Exchange data provided to it by the Exchange available to the Licensee under an Agreement with the Licensee, under which the Licensee agrees to, and remains in compliance with, the Exchange Terms.
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.
Unless otherwise stated, all terms herein shall have the meaning ascribed to them in the Agreement between Argus and the Licensee.
The Exchange Terms are effective from the Commencement Date set out on the applicable Order Form and are incorporated into the Agreement. The Exchange Terms will terminate on the expiry or earlier termination of the applicable Order Form, save that Licensee’s access to the applicable Exchange data may be terminated earlier pursuant to any express termination provision specified in the applicable Exchange Terms. The Exchange Terms shall prevail in the event of any inconsistency between any other terms of the Agreement and the Exchange Terms solely to the extent such inconsistency directly relates to the receipt, access and/or use of Exchange data.
London Metals Exchange Terms
Terms in respect of access, receipt and use of LME Licensed Data (as defined below) (“LME Terms”)
1. For the purposes of the LME Terms only:
“Affiliates” means in relation to an entity, an undertaking which is a subsidiary undertaking or parent undertaking of it, or any undertaking which is a subsidiary undertaking of any such parent undertaking, “undertaking”, “parent undertaking” and “subsidiary undertaking” having the meanings ascribed to them in sections 1161 and 1162 of the Companies Act 2006.
“Benchmark” means any price or index falling within the definition of 'Benchmark' under the Benchmark Regulation, MAR II or MiFIR.
“Benchmark Regulation” means Regulation (EU) 2016/1011 on indices that are used: (i) as benchmarks in financial instruments and financial contracts; or (ii) to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) 596/2014.
“Derived Data” means data of any kind derived as a result (directly or indirectly) of the LME Licensed Data being Manipulated.
“LME Licensed Data” means any and all data and third party data disseminated directly or indirectly by the LME, which is provided to Argus under the LME Market Data Licence - Distribution Agreement.
“LME Product Specifications” means the specifications, features and/or terms of any “Contract” (as defined in the LME Rules) listed for trading on the LME, as described in the LME Rules.
“LME Rules” means the LME rulebook and any administrative procedures (as defined in the LME rulebook).
“LME Trade Mark” means any trade mark (i) belonging to or used by the LME from time to time; or (ii) that the LME may register or apply to register from time to time, along with any registered trademarks used in connection with third party data that is part of the LME Licensed Data.
“Manipulated” means the acts of amending, adapting, modifying, altering or changing the LME Licensed Data in any way, or to combine, aggregate or incorporate the LME Licensed Data (wholly or in part) with other data of any kind (including by way of calculation) as deemed by the LME in its absolute discretion.
“MAR II” means Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (Market Abuse Regulation).
“MiFIR” means Regulation (EU) No 600/2014 on markets in financial instruments and amending Regulation (EU) No 648/2012.
2. Licensee recognises, acknowledges and agrees that:
(a) LME and its licensors own all Intellectual Property Rights in the LME Licensed Data;
(b) the LME Licensed Data 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 Licensed Data or distribute, redistribute or sell Derived Data 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 LME and Argus or their appointed representatives;
(e) it is restricted from using the LME Licensed Data and LME Trade Marks (or any part thereof): (i) to Manipulate the LME Licensed Data or to create Derived Data, (ii) or any other Intellectual Property Rights of LME or LME Product Specifications, or any part of them as a reference for the formation, trading, pricing, clearance, and/or settlement of contracts other than LME contracts and (iii) use the LME Licensed Data as a Benchmark or in connection with the determination of a Benchmark or pass the LME Licensed Data to an Administrator (as defined under the Benchmark Regulation) in connection with the determination of a Benchmark; and
(f) Argus shall be entitled to immediately cease disseminating LME Licensed Data to Licensee in the case of non-payment or non-compliance by it with these LME Terms and/or any other separate agreement with Licensee in respect of its access to and use of LME Licensed Data.
3. The Licensee is permitted only to:
a. use the LME Licensed Data for internal business use;
b. disseminate tables, spreadsheets or hypothetical scenarios containing limited and insubstantial amounts of the LME Licensed Data in a non-continuous and ad hoc basis for the purposes of interacting with their customers as far as is necessary to carry out Licensee’s internal business use;
c. back up, store and process the LME Licensed Data only in so far as it is necessary to:
a. carry out use and facilitate internal financial record keeping in relation to use as permitted by (a) and (b) above;
b. comply with the LME Terms; and
c. comply with the all laws and regulations applicable to Licensee.
4. The Licensee:
a. will be responsible for its Authorised Users, and shall assume all risk associated with, any opinions, recommendations, forecasts or other comments made or actions taken by Authorised Users, based in whole or in part on the LME Licensed Data;
b. shall be responsible for controlling access to the LME Licensed Data by Authorised Users, and may be required to provide details of this internal usage to Argus to include in its reports to the LME;
c. shall ensure that it has appropriate systems, rules, procedures and policies in place to allow access to Authorised Users and to ensure Authorised Users’ compliance with all relevant terms of the Agreement (including these Exchange Terms);
d. shall install and maintain suitable control and security systems in order to prevent any unlawful use of the LME Licensed Data or use in violation of this Agreement; and
e. shall install its own physical and software security systems to protect its information technology equipment, in particular a firewall securing all information and telecommunications systems from the intrusion of third parties not authorised under this Agreement.
5. The Licensee shall not:
a. remove the LME Trade Marks from the LME Licensed Data or alter them
b. use the LME Trade Marks in conjunction with any other mark, name, logo, symbol or device;
c. use the LME Trade Marks other than in conjunction with the LME Licensed Data to which they relate;
d. use the LME Trade Marks in such a way as to damage the goodwill or reputation attaching to such LME Trade Marks or the name of the LME or a third party licensor (as applicable), or to otherwise prejudice the validity or enforceability of any such LME Trade Marks;
e. permit access to, distribute, sub-licence or publish the LME Licensed Data or LME Trade Marks to any third party; and
f. use the LME Licensed Data or LME Trade Marks, or any part of them:
a. in breach of any applicable laws or regulations;
b. for any unlawful purpose; or
c. in any way that may in the LME's absolute opinion be considered to bring the LME, its Affiliates, the Data and/or the LME Trade Marks into disrepute.
Chicago Mercantile Exchange Terms
Terms in respect of access, receipt and use of CME Information (as defined below) (“CME Terms”)
1. For the purposes of the CME Terms only:
“Affiliate” means an entity that controls, is controlled by or is under common control with a party. Control means the ownership or control, directly or indirectly, of at least fifty percent (50%) or more of all of the voting shares (or other securities or rights) entitled to vote for the election of directors or other governing authority.
“CME Information” means the CME market prices, volumes and other CME information delivered to Licensee through Argus. By way of example and not limitation, CME Information may include opening and closing range prices, high-low prices, settlement prices, current bid and ask prices, last sale prices, price limits, market depth, time and sales, requests for quotations, estimated and actual contract volume data, other market activity information, index values, index constituents, and information respecting exchange-for related product (EFRP) and against actual (AA) transactions.
2. The Licensee shall not:
(a) redistribute Information outside of its Authorized Users, provided that Licensee may distribute limited extracts of CME Information on an occasional basis to its customers subject to policies applicable to CME Information as set out on the CME website (currently located at www.cmegroup.com/informationpolicies) as they may be amended from time to time, provided that such information: (i) consists of one value per tenor per instrument with no other depth of book; (ii) is provided manually; and (iii) is provided on a push basis only. CME may determine in its sole discretion whether any distribution meets the requirements of this provision;
(b) misrepresent CME Information or deface or remove any trademarks transmitted with CME Information;
(c) use CME Information for any illegal purpose;
(d) use CME Information in any system, process, program, machine or calculation (including, but not limited to, calculation of P&L, portfolio valuation, order processing, use within automated trading systems and automated order routing);
(e) use the CME Information or any portion thereof in the creation, distribution, settlement or maintenance of any derivative work (including but not limited to financial products, indexes, quotes, spot prices, curves, surfaces, contracts for difference (CFDs) and other leveraged products, indicative optimized portfolio values (IOPV), net asset value (NAV), or analytical reference figures or values calculated from CME Information for purposes of fund administration and portfolio management services, risk management services or valuation services based on the CME Information) unless Licensee is licensed to do so by CME;
(f) distribute or permit distribution of CME Information to any entity located in any country subject to comprehensive sanctions by the OFAC and/or identified as a Restricted Entity;
3. Licensee recognises, acknowledges and agrees that:
(a) CME owns all Intellectual Property Rights in the CME Information;
(b) it shall maintain complete and accurate books and records, relating to all access to and use of, CME Information under the Agreement for the most recent five (5) year period;
(c) it must allow CME or any auditors acting on behalf of CME to audit its records and use of the CME Information;
(d) it shall obtain and provide any consent that may be required under all applicable laws, including the Data Protection Laws, as may be needed for CME or any auditors acting on behalf of CME to review and receive Personal Data, including but not limited to Personal Data pertaining to Authorized Users;
(e) Argus may immediately suspend or terminate distribution of CME Information if Argus has reason to suspect non-compliance with any of the Agreement terms or if Argus is required by CME to do so for any reason;
(f) to the maximum extent permitted by law, neither CME or CME’s Affiliates nor any of their respective officer, directors, member, employees, agents, consultants or licensors shall have any liability to Licensee arising from use of the CME Information; and
(g) CME is a third-party beneficiary of the Agreement, is entitled to the rights and benefits thereunder, and may enforce the provisions of the Agreement directly against Licensee as if it were a party thereto.
XE.Com Terms
Terms in respect of access, receipt and use of XE Data (as defined below) (“XE Terms”)
For purposes of the XE Terms only:
“XE Data” means the XE.COM Inc. currency exchange rates and information delivered to Licensee through Argus.
When using the XE Data, the Licensee shall comply with the XE End User Terms of Use, as may be amended from time to time, and which is available at http://www.xe.com/legal/dfs.php.
ICE SUBSCRIBER AGREEMENT
Terms in respect of access, receipt and use of ICE “Pricing Data” (as defined below)
References to “Subscriber” below are to the “Licensee” under the applicable Argus Media Germany GmbH Licence Agreement and references to “Vendor” below are to Argus Media Germany GmbH located at Neuer Wall 59, 20354 Hamburg, Germany and references to “ICE Data” below are to ICE Data LLP located at Milton Gate, 60 Chiswell Street, London, EC1Y 3SA, United Kingdom.
This ICE Subscriber Agreement (“Agreement”) permits the Subscriber to receive and utilise ICE pricing data as per the terms below:
1. DEFINITIONS
(a) "Derived Data" means i) Subscriber Permitted Uses Data, and ii) data which has been created by the Subscriber based upon a methodology applied to Pricing Data and approved in writing by ICE.
(b) "Device" means any unit of equipment, fixed or portable, that receives, accesses or displays Market Data in visible, audible or other comprehensible form.
(c) "Exchanges" means ICE Futures Europe, ICE Futures Singapore, ICE Futures U.S. and ICE Endex.
(d) "Force Majeure Event" means any act, event, omission or accident beyond the reasonable control of ICE Data including but not limited to any natural disaster, war, terrorist attack, act of god, fire, weather event, earthquake, labor dispute or strike or power failure.
(e) "Market Data" means Pricing Data and Derived Data.
(f) "Person" means any natural person, proprietorship, corporation, partnership, limited liability company or other organization.
(g) "Pricing Data" means real time data specifying the prices and quantities at which the Traded Contracts have traded or are available to trade, including Exchange-implied prices and quantities.
(h) “Subscriber Permitted Uses Data" means charts and statistics (e.g., moving averages, implied prices between expiries and products, option Greeks) that are derived from the Pricing Data by the Subscriber or Vendor, but Subscriber Permitted Uses does not include use of the Pricing Data in connection with the creation, compilation or preparation of an index, basket or other similar financial product.
(i) “Traded Contracts" means contracts as traded on the Exchanges listed above and any corresponding indices published by the Exchanges.
2. PROPRIETARY RIGHTS IN THE MARKET DATA
(a) Subscriber acknowledges and agrees that the Exchange has exclusive and valuable property rights in the Market Data, that such Market Data constitute valuable confidential information and proprietary rights of each of the Exchanges, not within the public domain, that such Market Data shall remain valuable confidential information, and proprietary rights of each of the Exchanges at least until the Exchanges authorize placement of their respective Market Data in the public domain, and that, but for this Agreement, 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 the placement of its Market Data in the public domain shall 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 Agreement (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) The Agreement sets forth the terms and conditions upon which Subscriber may receive and use the Exchanges 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 on the Devices designated by Subscriber in writing to Vendor from time-to-time. (The term “for its own internal business activities”, as used in the immediately preceding sentence herein, means for Subscriber’s (a) trading, for its own account or for the account of its customers, of commodity futures contracts, options on commodity futures contracts or similar derivative instruments, or (b) evaluating, for its own internal business decisions or advice to its customers, the movements or trends in markets for commodity futures contracts, options on commodity future contracts, or like derivative instruments, subject to all of the limitations set forth below in this sub-paragraph as to the telephonic disclosure to customers of a necessary and de minimis number of segments of Market Data.) 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, nor allow any other party to take, directly or indirectly, any of the Market Data from any office or location as designated above, and will adopt and enforce any policy that is reasonable to prevent the Market Data from being taken therefrom. Subscriber specifically agrees, without limiting or varying its obligations under paragraph 7 herein or otherwise set forth in this Agreement, that Subscriber shall not use or permit another person to use any Market Data for the purposes of determining or arriving at any price, including any settlement prices, for commodity futures contracts, options on commodity futures contracts, or like derivatives instruments traded on any exchange other than the Exchanges. Subscriber will abide by any other limitations on such use that 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 Subscriber 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 Agreement. Notwithstanding the foregoing, in the event that a Subscriber is a newspaper which reports on, among other things, exchanges on which commodity futures contracts or options on commodity futures are traded, such Subscriber shall be permitted to publish, in its newspaper published for the day following the receipt by such Subscriber of the Market Data, the Market Data received by Subscriber from Exchanges on the day prior to such publication.
(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 an uncontrolled datafeed, 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 Subscriber's reporting obligations under Section 3(b) above to access the Market Data.
4. REPORTING
Subscriber agrees to furnish promptly to Vendor any information or reports that may be required by 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, following a minimum of 10 business days’ notice, any Persons designated by ICE Data on behalf of an Exchange may have access to Subscriber's offices or locations, under the Subscribers corporate security policies, 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 1.5% per month), through Vendor, to compensate an 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 any Exchange. Subscriber shall maintain the records and books upon which it bases the reporting for the Exchanges 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, Subscriber agrees to pay each Exchange's reasonable estimate of any discrepancy discovered pursuant to any such audit.
6. EXCHANGE FEES
Subscriber will pay Vendor 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.
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 other 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 Agreement 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
THE PRICING DATA IS PROVIDED “AS-IS”, “WHERE IS” AND MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE PRICING DATA. WITHOUT LIMITING ANY OTHER DISCLAIMERS, ICE DATA MAKES NO REPRESENTATION OR WARRANTY THAT THE PRICING DATA IS ACCURATE OR COMPLETE, THAT THE PRICING DATA WILL BE FREE FROM ERRORS OR DEFECTS OR THAT IT WILL BE UNINTERRUPTED, OR WITH RESPECT TO NON-INFRINGEMENT OR VALIDITY OF ANY INTELLECTUAL PROPERTY RIGHTS. EXCEPT TO THE EXTENT EXPRESSLY OTHERWISE STATED IN THIS AGREEMENT, ALL CONDITIONS, WARRANTIES, UNDERTAKINGS, TERMS AND REPRESENTATIONS OF ICE DATA AND ITS AFFILIATES, IMPLIED BY STATUTE, COMMON LAW OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES RELATING TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE) IN RELATION TO THIS AGREEMENT ARE HEREBY EXCLUDED. EXCEPT IN THE CASE OF ICE DATA’S FRAUD OR WILLFUL MISCONDUCT, ICE DATA SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL LOSS OR DAMAGE OF WHATSOEVER NATURE AND HOWSOEVER ARISING (WHETHER FOR NEGLIGENCE, BREACH OF CONTRACT, MISREPRESENTATION OR OTHERWISE), INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS OR LOSS OF GOODWILL.
9. LIMITATIONS OF LIABILITY AND DAMAGES
Subscriber acknowledges and agrees that the Pricing Data is provided “AS-IS” and that neither ICE Data, the Exchanges or any of their Affiliates make any representation or warranty, express or implied, with respect to the Market Data. Without limiting any other disclaimers, neither ICE Data, The Exchanges or any of their Affiliates make any representation or warranty that the Pricing Data is accurate or complete, that the Pricing Data will be free from errors or will be uninterrupted.
To the fullest extent permitted by applicable law, under no circumstances, including gross negligence, willful misconduct, or intentional breach of this Agreement, none of ICE Data, any of its Affiliates or any of their respective directors, officers, managers, employees, agents or representatives shall be liable to the Subscriber or any third party for any damages, including, without limitation, incidental, indirect, special, consequential and punitive damages, arising from the use, misuse or inability to use the Market Data or any related documentation, know-how, inventions, discoveries, techniques, improvements or intellectual property rights or a breach of this Agreement by ICE Data or any of its Affiliates.
10. TERM AND TERMINATION
Subject to Subscriber's strict compliance with the provisions of this Agreement, 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 Agreement shall survive the termination of this Agreement.
11. INDEMNIFICATION
Subscriber will indemnify, defend and hold ICE Data 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 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, 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, any action arising out of this Agreement between the Exchanges 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 Agreement without the prior written consent of the Exchanges (as applicable). Neither Vendor nor Subscriber may modify or amend the terms of this Agreement. In the event of any conflict between the terms and conditions of this Agreement 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 Agreement will prevail. If, for any reason, one or more provisions of this Agreement is held invalid, the other provisions of the Agreement shall remain in full force and effect.