BEFORE GOING FURTHER WITH THE INSTALLATION AND USE OF CQG PRODUCTS, YOU MUST AGREE TO THE TERMS OF THIS END USER LICENSE AND, IF APPLICABLE, THE CQG SERVICES AGREEMENT, UNIFORM SUBSCRIBER AGREEMENT, AND OTHER EXCHANGE AGREEMENTS (COLLECTIVELY “AGREEMENTS”). BY ACCESSING OR OTHERWISE USING ANY PART OF ANY CQG SOFTWARE OR ANY CQG PROGRAM OR ANY CQG PRODUCT, YOU REPRESENT YOU UNDERSTAND THESE AGREEMENTS, YOU AGREE TO AND CONSENTS, YOU AGREE TO BE BOUND BY ALL TERMS OF THESE AGREEMENTS, AND TO THIS TRANSACTION BEING CONDUCTED BY ELECTRONIC MEANS. YOU ALSO REPRESENT YOU HAVE THE AUTHORITY TO ENTER INTO THESE AGREEMENTS AND ARE BOUND BY THE SAME. CQG ALLOWS USE OF THE SERVICES IN CONSIDERATION OF YOUR AGREEMENT TO THESE TERMS. IF YOU DO NOT AGREE TO ALL TERMS OF THESE AGREEMENTS, CQG MAY RESTRICT ACCESS OR USE OF THE SERVICES.
I. CQG END USER LICENSE AGREEMENT
This license agreement (“Agreement”) is made by and between CQG, Inc. and its subsidiaries (collectively, “CQG”) and you and the company you represent, if applicable (“Customer”).
1. Services. CQG will provide the Services to Customer pursuant to this Agreement. “Services” means providing information from exchanges and other information sources (“Market Data”) (such exchanges and other sources are collectively, “Exchanges”) specified on the order from Customer and accepted by CQG, during available transmission times, utilizing the Proprietary Information. “Services” may also include proving Customer with access to an electronic order/trade routing service (“ORS”), utilizing the Proprietary Information. “Proprietary Information” means software programs, protocols, displays, databases, manuals and supporting documentation, including the selection, arrangement and sequencing of the contents of the Services, which CQG provides to Customer or allows Customer to use, but excluding Market Data.
2. Term. This Agreement shall be effective as of the earlier of the date Customer first has access to the Market Data or Services or the date this Agreement is accepted by Customer. Unless terminated earlier in accordance with this Agreement, either party may terminate this Agreement by giving the other party at least 30 days’ advance written notice of the termination of this Agreement or such term agreed-upon between Customer (or on Customer’s behalf) and CQG in any separate agreement, whichever is longer.
3. Market Data Compliance.
a. Subscriber Addendum. Customer will execute all agreements (such as subscriber agreements) and other documents required by applicable Exchanges for receipt of Market Data. Customer will comply with subscriber agreements and Exchange rules, and assumes full financial and other responsibility for any violation of the same.
b. Restrictions. Customer and its employees may use the Market Data for its own internal business purposes only, and Customer will not transfer, transmit, display on any website, publish, redistribute or resell all or any part of the Services or Market Data, nor will Customer permit others to do the same or have access to the Services or Market Data. Customer is responsible for the payment of fees associated with the use of or subscription to any Market Data. If applicable, Customer is also responsible for the payment of any fees associated with any redistribution of Market Data, which must be approved and is also generally subject to Exchange approval. Subject to applicable limitations imposed by Exchanges, Customer may use limited and minor printed extracts of screen displays of Market Data in Customer’ business, if all proprietary notices including copyrights are properly included. Customer will be responsible for the persons having access to the Market Data by or through Customer and Customer will cause such persons to comply with this Agreement. Customer acknowledges and agrees that each of the Exchanges has exclusive and valuable property rights in and to its own Market Data, and that such Market Data constitutes confidential information, trade secrets and/or proprietary rights of each of the Exchanges. Exchanges retain all right, title and interest (except as otherwise licensed by the Exchanges) in and to the Market Data and any and all compilations thereof.
c. Inspection. Customer will allow CQG and Exchanges access to any Customer locations during normal business hours with reasonable advance notice to observe the use and status of the items provided by CQG and Customer’s compliance with this Agreement. CQG may monitor the number of terminals accessing the Services.
4. Charges. The terms in this Section apply only if CQG bills Customer directly for the Services.
a. Monthly Charges. Customer will pay CQG the charges due for the Services subscribed by Customer in advance each month, including any appropriate sales or value added taxes. CQG will invoice Customer, at least 25 days prior to the first of each calendar month, for the monthly service charges due for that month, and any other charges due (including any Exchange fees and ORS (defined below) fees if applicable), and Customer will pay such invoice by the first day of that month, without demand, counterclaim, deduction or setoff, and invoices which are not paid when due will incur interest at the rate equal to the lower of 1% per month, or the highest rate allowed by applicable law, from the due date until paid. CQG may suspend transmission of or access to Services if payment is not made when due, without prejudice to any other CQG rights. CQG will send invoices to the Billing Address. Unless otherwise indicated on the invoice, the quoted monthly service charges include fees to be collected by CQG and remitted to applicable Exchanges.
b. Price Increases. CQG may increase monthly service charges on 25 days’ advance written notice to Customer at the User Location or Billing Address; provided, however, Customer may terminate this Agreement as of the effective date of the price increase by giving written notice to CQG prior to the end of said 25-day period.
c. Service Changes. Confirmation of changes to Services requested by Customer and accepted by CQG will be reflected on the next invoice. Any reduction in Services requested by Customer requires at least 30 days’ advance written notice from Customer.
5. Proprietary Information.
a. Protection. Customer acknowledges the Proprietary Information is proprietary and unique to CQG, as to which trademark, copyright, patent, or other intellectual property or proprietary rights may be held by or granted to CQG. Customer will comply with all applicable laws necessary to protect all rights in the Proprietary Information, and will not remove or conceal any copyright, trademark, or other proprietary notice or marking included in the Services. Customer will report the location of all copies of the Proprietary Information in Customer’s possession or control upon request and return them to CQG upon termination of this Agreement, or certify that they have been rendered permanently unusable.
b. Right to Use. CQG grants Customer a nonexclusive, nontransferable, nonsublicensable right to use the Services for the term of this Agreement, only on the number of display terminals permitted under the Services subscribed to by Customer. Customer may not assign, copy, modify, merge, transfer, decompile or reverse engineer any of the Proprietary Information, or use the same in conjunction with any incompatible software or hardware. Customer acknowledges that the right to use the Proprietary Information is personal to the Customer, and Customer acknowledges that it will not permit their login or other credentials to be used by any other person to place orders on an Exchange. Customer may copy and maintain one set of the Proprietary Information for backup purposes. Customer’s rights to the Market Data and Proprietary Information cease upon termination of this Agreement.
6. Confidentiality. Subject to Section 3(d), neither party shall disclose to a third party any trade or proprietary secrets of the other party to this Agreement, or other information received from the other party to this Agreement that could reasonable be considered to be confidential, nor utilize such information of the other party other than in connection with the purposes of this Agreement, and both parties shall use all reasonable endeavors to ensure that their employees, agents and subcontractors shall observe these conditions. This Section will not apply to:
a. Any information in the public domain other than in breach of this Agreement;
b. Information already in the possession of the receiving party before its receipt from the disclosing party;
c. Information obtained from a third party who is free to divulge the same;
d. Disclosure of information which is required by law or other competent authorities; or
e. Information developed or created by one party independently of the other.
f. Information required by Exchanges related to Customer’s use of their Market Data.
7. Personal Information.
a. CQG collects personally identifiable information in order to effectively provide the Services and to identify or contact a particular person (“Personal Information”). This information includes name, address, email, and phone number. It may also include billing and credit card payment information.
b. CQG collects Personal Information to: (i) authenticate and verify authorized use of the Services, including the ORS; (ii) facilitate provision of the Services, including the ORS; (iii) enable CQG to meet its obligations to Exchanges and other execution partners to facilitate the Services, including the ORS; and (iv) comply with the rules and regulations of applicable regulatory entities governing the distribution of Market Data and order execution. Personal Information may also be used for internal analytic purposes.
c. CQG does not disseminate to or share Personal Information with brokers or other third parties for direct marketing activities. CQG may provide Personal Information to regulatory authorities and other third parties as required by applicable law or regulation, including name and address information required for documentation such as the Uniform Subscriber Addendum. Statistical or general outcomes analytics may be shared with third parties but they are shared in such a way that Personal Information is not disclosed, unless consent for the same is provided. If a Customer provides Personal Information, the Personal Information may be transferred to any CQG facility, including facilities in the United States.
d. Personal Information may be retained by CQG until this Agreement is terminated in accordance with Section 9, or until retention is no longer required by applicable Exchanges or regulatory authorities, whichever is later.
e. For questions about CQG’s policy, please contact firstname.lastname@example.org.
f. Customer acknowledges CQG’s policy regarding the collection, use, and transfer of Personal Information and accepts CQG’s collection and processing of Personal Information.
8. Warranties, Disclaimers and Limits of Liability.
a. Warranty. CQG will make commercially reasonable efforts to provide the Services in a prompt and accurate manner. If Customer notifies CQG of a defect in the Services, CQG will use reasonable efforts to try to correct it, giving due regard to the nature and extent of the defect. Customer acknowledges that: (i) it is not always possible to produce the Services or transmit Market Data which is free of error or defect; (ii) CQG is not the originator of Market Data and in a real-time information service environment, it is not possible to identify or remedy every error prior to transmission; (iii) the software programs provided by CQG are complex and may conflict with or be degraded or corrupted by other software applications operated by Customer on the same computer system; (iv) the Internet is subject to inherent limitations due to many factors including overloads, delays, disconnections, conflicts and interruptions; and (v) any use of the Services via web and/or mobile connections may be subject to additional overloads, delays, disconnections, conflicts and interruptions; (vi) mobile connections may be subject to disruption or reduced speed, and may result in reduced functionality. CQG is not responsible for errors in transmission resulting from issues resulting from or in connection with Customer’s internet or mobile connection. Customer acknowledges CQG has no knowledge of and Customer is solely responsible for the use that Customer makes of Market Data and the reliance that Customer places on Market Data and Services.
b. DISCLAIMER. THE RIGHT TO THE SERVICES IS GRANTED “AS IS” AND “WITH ALL FAULTS”. NEITHER CQG NOR ANY EXCHANGE MAKES ANY REPRESENTATIONS, GUARANTIES OR WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR, IN THE CASE OF EXCHANGES, IN CUSTOMER’S AGREEMENTS WITH EXCHANGES. CUSTOMER ACKNOWLEDGES IT HAS NOT RELIED UPON ANY REPRESENTATION, GUARANTY OR WARRANTY MADE BY CQG EXCEPT AS EXPRESSLY STATED HEREIN.
c. No Liability for Losses. Customer acknowledges CQG, its employees, agents, contractors, and Exchanges, will not be liable for any loss (including without limitation trading losses and lost profits), cost or damage, suffered or incurred by Customer or any third party arising out of any lost data, faults, interruptions or delays in the Services, or inaccuracies, errors or omissions in the information contained in the Services as supplied to or contributed by Customer, however such matters arise, unless due to CQG’s gross negligence or willful misconduct.
d. Limit of Liability. Notwithstanding any provision hereof, in no event will (i) CQG or Exchanges, or their affiliates, be liable for any lost profits or indirect, incidental, special, punitive, consequential or similar damages with respect to the Services even if advised of the possibility of such damages; (ii) the aggregate liability of CQG and Exchanges, their affiliates, employees or agents, direct or indirect, arising out of or in connection with this Agreement, exceed an amount equal to the monthly charges paid by Customer in the month in which the claim against them arose, regardless of the cause or form of action, whether claims are grounded in contract or tort; nor (iii) CQG and Exchanges, nor their affiliates, be liable to Customer on any claim that arose more than one (1) year before the institution of a suit thereon. The parties agree this Agreement reflects a reasonable allocation of risk and limitation of liability. If some jurisdictions do not allow the exclusion or limitation of liability for certain damages, in such jurisdictions, the liability limits in this paragraph shall be limited in accordance with this Agreement to the extent permitted by law.
a. By Customer. Customer will defend, indemnify and hold harmless CQG and the Exchanges, and their directors, employees, representatives, agents and contractors from and against any claim, loss, liability, cost or damage, including reasonable attorney’s fees, arising from (i) Customer’s breach of this Agreement; (ii) any third party accessing, or receiving advice based on, the Services or Market Data by or through Customer’s acts or omissions; or (iii) any information entered into the ORS by or through Customer’s acts or omissions.
b. By CQG. CQG will indemnify and hold Customer harmless from and against any claim of infringement of a patent, copyright or any other intellectual property right in effect on or before the effective date of this Agreement based upon use of the Proprietary Information which is not a Customer breach of this Agreement, provided Customer gives CQG prompt notice of and the opportunity to defend any such claim and Customer cooperates in the defense thereof. CQG will have the right to settle such claim, and, at CQG’s option, provide Customer (i) a paid up right to use; or (ii) substitute functionally equivalent Proprietary Information.
a. Defaults. The following events constitute “Defaults” under this Agreement:
i. a breach by either party of a provision of this Agreement which is not cured within 10 days after written notice of such breach, provided that for Customer’s default in payment of any sum due CQG, the cure period shall be 5 days from the date of notice of the default, and no notice or cure period is required for Customer’s breach of Sections 1(b) or 3; or
ii. a party’s making an assignment for the benefit of its creditors, or the filing by or against the party of a voluntary or involuntary petition under any bankruptcy or insolvency law, which petition is not dismissed within 60 days from the filing thereof.
b. Customer’s Remedies. Upon a Default by CQG, Customer may terminate this Agreement by notice to CQG. Customer shall also be entitled to injunctive and other equitable relief against CQG for breaches of this Agreement. Subject to other applicable terms of this Agreement, Customer’s rights and remedies are cumulative and not exclusive.
c. CQG’s Remedies. Upon a Default by Customer, CQG may terminate this Agreement on notice to Customer, and recover from Customer all charges due and possession of CQG’s property. CQG shall also be entitled to injunctive and other equitable relief against Customer for breaches of this Agreement. Subject to other applicable terms of this Agreement, CQG’s rights and remedies are cumulative and not exclusive.
11. Order Routing Service. The terms in this Section apply only if CQG provides Customer with access to an electronic order/trade routing service (“ORS”), and if so provided, the ORS shall be deemed to be part of the Services.
a. Access. Subject to Customer’s subscribing to the ORS, CQG will grant Customer non-exclusive and non-transferable access to use the ORS solely for purposes of routing orders, trades and related information among Customer, exchanges and brokers or dealers with whom Customer has an account and who have entered into an ORS agreement with CQG (“Broker”). Customer must notify CQG of the identity of the Broker(s), and Customer may access the ORS only after Broker has authorized Customer to use the ORS. Customer may access the ORS only through the terminals Customer is authorized to use for the receipt of the Services. CQG may be compensated by Broker for transactions made through the ORS.
b. Order Acceptance by Broker. Customer acknowledges and agrees: (i) use of the ORS, and all orders and information placed through the ORS, are at Customer’s sole risk and orders, trades and other information may not be received by Broker, Customer or the exchanges due to technical problems; (ii) all orders are subject to acceptance by Broker and the limitations and parameters established by the Broker and the applicable exchanges; and (iii) Broker may be responsible for routing orders/trades and confirmations between the ORS and the appropriate trading exchanges.
c. No Advice. Customer represents it is financially sophisticated and experienced in the type of trading to be routed through the ORS. Customer understands that CQG, in granting Customer access to the ORS, is offering order/trade routing services and an information conduit only, and CQG does not offer any advice regarding the nature, potential value or suitability of any particular transaction or investment strategy. NOTHING IN THIS AGREEMENT OR IN CQG’S PERFORMANCE SHALL BE CONSTRUED AS A SOLICITATION OR RECOMMENDATION TO USE ANY BROKER OR DEALER, BUY OR SELL ANY SECURITY OR INSTRUMENT OR ENGAGE IN ANY TRANSACTION.
d. Technical Problems. (i) Customer understands that technical problems or other conditions may delay or prevent persons from entering or canceling an order or receiving information through the ORS. Customer agrees CQG shall not be liable for, and Customer will not hold or seek to hold CQG liable for, any loss, cost or damage (including trading losses or data losses) suffered or incurred by Customer or any third party arising out of (1) any use or reliance on the ORS or its content; or (2) any interruptions, failures (including access and security failures and unauthorized use or access by third parties), faults or delays in or related to the ORS or out of any errors, omissions or inaccuracies in the information transmitted through the ORS to or by any person, however such interruptions, failures, faults, delays, errors, omissions or inaccuracies arise, unless due to CQG’s gross negligence or willful misconduct. (ii) ADDITIONALLY, CQG DOES NOT WARRANT, REPRESENT OR GUARANTY THAT (1) CUSTOMER OR BROKER WILL BE ABLE TO ACCESS OR USE THE ORS AT TIMES OR LOCATIONS OF THEIR CHOOSING, (2) CQG WILL HAVE ADEQUATE CAPACITY FOR THE ORS AS A WHOLE OR IN ANY GEOGRAPHIC LOCATION, OR (3) THE ORS OR ANY SOFTWARE RELATED THERETO IS VIRUS FREE OR WILL PROVIDE UNINTERRUPTED AND ERROR FREE SERVICE. (iii) CQG RESERVES THE RIGHT TO SUSPEND SERVICE AND DENY ACCESS TO THE ORS WITHOUT PRIOR NOTICE DURING SCHEDULED OR UNSCHEDULED SYSTEM MAINTENANCE OR UPGRADING. FOR THE AVOIDANCE OF DOUBT, THE DISCLAIMERS IN SECTION 7 ABOVE APPLY TO THE ORS.
e. Access Termination. CQG may terminate Customer’s access to the ORS without notice for any reason, including but not limited to pursuant to a request from Broker, or due to Customer’s breach of this Agreement, or a breach or termination of CQG’s agreement with Broker or the applicable exchange. Customer understands that Broker also may have the right and ability to disable Customer’s access to the ORS.
f. Property Rights. Any and all materials (including software) that CQG provides to Customer in connection with the ORS are the property of CQG and are intended only for Customer’s use in connection with accessing the ORS. Customer shall not copy, sell or distribute such materials to others, nor permit access to the ORS by others. Customer shall not delete any copyright notices or other indications of protected intellectual property rights from such materials, including those that Customer prints or downloads from the ORS.
a. Entire Agreement;. This Agreement (which includes any fee schedule provided to Customer) is the complete and exclusive agreement of the parties and supersedes all prior agreements, oral or written, regarding this Agreement’s subject matter; provided, however, that if Customer has already signed and delivered a CQG Services Agreement, then, to extent any terms are in conflict with the terms set forth herein, the provisions of this Agreement will control. Subject to provisions in Section 4 for price increases and Service changes, any amendment to this Agreement shall not be valid unless in writing and executed by parties. Execution of this Agreement, any amendments, or any changes to Customer’s subscription to Services may be evidenced by electronic records and electronic signatures.
b. Law and Venue. This Agreement is deemed to have been executed and delivered in, and shall be governed and construed in accordance with the laws of, the State of Colorado, without giving effect to principles of conflict of laws which might otherwise require application of the laws of another jurisdiction. Every controversy or claim arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts located in Colorado, and the parties waive any objection to jurisdiction or venue therein. The prevailing party in any legal action or proceeding with respect to a controversy or claim arising out of this Agreement shall be entitled to an award of its reasonable attorney’s fees and expenses.
c. Severability and Interpretation. If any provision of this Agreement is held to be invalid or unenforceable, the invalidity or unenforceability of the remaining provisions shall not be affected. The headings in this Agreement are for convenience only and shall not affect the Agreement’s interpretation. Time is of the essence of this Agreement.
d. Assignment. Customer may not assign or otherwise transfer or delegate any rights or obligations under this Agreement without CQG’s prior written consent, which may be withheld in CQG’s sole discretion. This Agreement shall be binding upon and inure to the benefit of the respective parties, their legal representatives, successors and permitted assigns. Exchanges are third party beneficiaries of Customer’s obligations under this Agreement, but there are no other third party beneficiaries of this Agreement.
e. Survival. Claims for payment and Sections 3, 5, 6, 7, 8, 9, 11(d), and 11(f) shall survive the termination of this Agreement.
f. Waivers. The failure of either party to exercise any right under this Agreement shall not be deemed a waiver of any future exercise of such right or a waiver of any other provision of this Agreement.
g. Force Majeure. CQG will have no liability for any loss, cost or damage resulting from any failure by CQG to perform any obligation hereunder or from any delay in the performance thereof, due to causes beyond CQG’s control, including without limitation, acts of God, public enemy, or government, failure of telecommunications, fire or other casualty.
h. Notices. Except as specifically provided otherwise herein, all notices required under this Agreement shall be in writing and shall be deemed to have been given upon receipt by the parties as follows: if to CQG, by U.S. mail, email (at the email address provided by CQG from time to time), hand delivery or courier, at the address specified at the beginning of this Agreement and to the attention of “Contracts Manager”; and if to Customer, by U.S. mail, email, hand delivery or courier at the Notice Address. A party may change the address for receipt of its notices by giving notice in accordance with this section.
II. EXCHANGE AGREEMENTS
a. UNIFORM SUBSCRIBER AGREEMENT
If Customer or Subscriber received Market Data from an Exchange identified in the Uniform Subscriber Agreement, Customer or Subscriber also acknowledges he/she is bound by the terms of the same, as set forth fully below:
THIS AGREEMENT is entered into by and between the Subscriber, CQG, Inc., and its subsidiaries (together “Vendor”) and each of the Exchanges below (together "Exchanges") whose data is made available to Subscriber by Vendor.
• CBOE FUTURES EXCHANGE (CFE)
• CME Europe
• COMEX (div of NYMEX)
• DME (Dubai Mercantile Exchange)
• ICE ENDEX
• ICE FUTURES CANADA
• ICE FUTURES EUROPE
• ICE FUTURES US
(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, terrorism, 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 or similar derivative instruments traded on the Exchanges as well as associated index data, 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 acknowledges and agrees that each of the Exchanges has exclusive and valuable property rights in and to its own Market Data, that such Market Data constitute valuable confidential information, trade secrets and/or proprietary rights of each of the Exchanges, not within the public domain, that such Market Data shall remain valuable confidential information, trade secrets and/or proprietary 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 Addendum, 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 Addendum (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. (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 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 specifically agrees, without limiting or varying its obligations under paragraph 7 herein or otherwise set forth in this Addendum, 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 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 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 Addendum. 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 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 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 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 1½% 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 CBOE, CBOT, CME, NYMEX, COMEX or ONE CHICAGO 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 ICE FUTURES US, ICE FUTURES EUROPE, or ICE FUTURES CANADA 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, 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 (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 Subscriber 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 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 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, defend 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 (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, 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 CFE, CBOT, CME, or ONE CHICAGO 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 the KCBOT and Subscriber shall be governed and construed in accordance with the internal laws (and not the law of conflicts) of the State of Missouri. Any action arising out of this Addendum between NYMEX, COMEX, ICE FUTURES US, ICE FUTURES EUROPE, or ICE FUTURES CANADA 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.
If Customer receives Market Data from the CBOE via Options Price Reporting Authority, LLC (“OPRA”), Customer agrees that his/her receipt and use of OPRA Market Data is subject to OPRA Subscriber Agreement terms and conditions and agrees to comply with these terms and conditions. Customer further acknowledge and agrees that Customer must complete and submit an affirmation of Subscriber Status as either Professional Subscriber Agreement (currently available at: https://www.opradata.com/agreements/professional_subscriber_agreement.pdf) or Nonprofessional Subscriber Agreement (currently available at: https://www.opradata.com/agreements/hardcopy_subscriber_agreement.pdf). Customer agrees that the status designation identified via such Subscriber Status Agreement, or other affirmation to CQG, is true and accurate and that Customer will update CQG and OPRA in the event of a change to such status. Customer understands that OPRA’s Subscriber Agreement can be obtained from CQG on the Customer’s request CQG. These terms and conditions of the Subscriber Agreement may be amended from time to time, the latest version will apply.
If Customer receives Market Data from Euronext, Customer agrees that his/her receipt and use of Euronext Market Data is subject to Euronext’s Subscriber Terms and Conditions and agrees to comply with these terms and conditions. The Euronext Subscriber Terms and Conditions can be found at: https://www.euronext.com/market-data/documentation/market-data-contracts and on the Customer’s request CQG will send them to the Customer. These terms and conditions may be amended from time to time, the latest version will apply.
If Customer receives Market Data from the New York Stock Exchange (“NYSE”), Customer agrees that his/her receipt and use of NYSE Market Data is subject to NYSE Subscriber Terms and Conditions and agrees to comply with these terms and conditions. Customer further acknowledge and agrees that Customer must complete and submit an affirmation of Subscriber Status as either Professional or Nonprofessional. Customer agrees that the status designation identified via such Subscriber Status Agreement, or other affirmation to CQG, is true and accurate and that Customer will update CQG and NYSE in the event of a change to such status. Customer understands that NYSE’s Subscriber Status Agreement can be obtained from CQG on the Customer’s request CQG. These terms and conditions of the Subscriber Status Agreement may be amended from time to time, the latest version will apply.
e. OTHER EXCHANGE AGREEMENTS.
If Customer receives Market Data from any other Exchange or data source, Customer also acknowledges he/she is bound by the terms of the said Exchange of data source contract. The terms of these agreements can be obtained from CQG on customer’s request, at any time. The terms and conditions associated with Market Data use from respective Exchanges or other data sources may change from time to time, and the latest versions of such terms and conditions will apply.
BY ACCESSING OR OTHERWISE USING ANY PART OF ANY CQG SOFTWARE OR ANY CQG PROGRAM OR ANY CQG PRODUCT, YOU AGREE THAT THE FOLLOWING IS TRUE: (1) YOU REPRESENT THAT YOU HAVE ACTUAL AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF CUSTOMER OR SUBSCRIBER; (2) THAT YOU HAVE READ THE TERMS STATED ABOVE; (3) YOU UNDERSTAND THE TERMS STATED ABOVE; (4) A PRINTOUT OF THE TERMS STATED ABOVE WILL CONSTITUTE A "WRITING" UNDER ANY APPLICABLE LAW OR REGULATION; AND (5) YOU AGREE TO ABIDE BY ALL THE TERMS OF THE AGREEMENTS STATED ABOVE. CQG/VENDOR IS ALLOWING USE OF THE SERVICES IN CONSIDERATION OF CUSTOMER’S/SUBSCRIBER’S AGREEMENT TO THESE TERMS. IF CUSTOMER OR SUBSCRIBER DOES NOT AGREE TO ALL TERMS OF THIS AGREEMENT, CUSTOMER OR SUBSCRIBER MAY NOT ACCESS, USE OR INSTALL ANY OF THE SERVICES.