END USER AGREEMENT
Please
read this End User Agreement ("Agreement") carefully. This Agreement is a legal
document that details your rights and obligations as a user of the T4 software
and system (including the API for the T4 software and system) (collectively,
the "System") provided to you by Cunningham Trading Systems, LLC ("CTS") and
your participating financial institution ("PFI"). You cannot use the System
until you have accepted the terms of this Agreement. CTS reserves the right to
update or revise this Agreement from time to time and any changes will be
effective immediately upon posting on the System or the CTS website
(http://www.ctsfutures.com). If you do not accept the terms of this Agreement
or any changes proposed by CTS, your only remedy is to discontinue using the
System. You agree that CTS and PFI may rely on your acceptance of this
Agreement as if you had manually signed it.
1.License.
1.1License. Subject to the other terms
and conditions set forth herein, CTS hereby grants to you a limited,
non-exclusive, non-transferable, world-wide license to access and use the
System and the Website (but not to access or use the source code relating to
the System). You shall not (i) modify,
translate, reverse engineer, decompile, disassemble, create derivative works
of, permit or otherwise attempt to derive any source code of the System;
(ii) alter or copy, or direct a third party to alter or copy, any part of
the System or Website; or (iii) sublicense, distribute, sell, assign,
transfer, lease, rent, disclose, or provide access to the System or Website to
any third party.
1.2End User Compliance. Your access to, and use of,
the Website and the System are expressly subject to your compliance with the
terms of (i) this Agreement, and (ii) any written
guidelines for using the Website or System posted on the Website as amended
from time to time (including the Website's privacy policy, if any, collectively
the "Operating Procedures"). In the event of any inconsistency between this
Agreement and the Operating Procedures, this Agreement shall prevail. CTS shall
have the right, at any time to amend the provisions of the Operating Procedures
by posting on the Website. Upon receiving written notification (including by
CTS posting on the Website) of any restrictions on the System imposed by CTS or
any embedded third party software vendors, you agree to comply with any such
restrictions.
2.Use of the System
2.1Your Access. You will be instructed by
your PFI on how to access the System and will be assigned a separate user name
and Password. You agree to keep confidential any Passwords used to access the
Website and System. You acknowledge that CTS and the PFI may accept as valid
any information transmitted with a valid user name and Password and shall not
have any duty to verify the information. CTS will not be responsible to
determine whether any information transmitted was authorized by you or a PFI;
or whether there has been an alteration or corruption of the information
transmitted to, or from, the System. In the context of the preceding sentences,
"information" shall include all bids, offers, orders, commands and any other
data or information submitted to the System. You agree to promptly notify CTS
and your PFI as soon as you become aware of any unauthorized use or misuse of
the System or the Passwords.
2.2Suspension or Limitation. Notwithstanding any other
provision of this Agreement, you acknowledge that CTS or your PFI shall have
the right to restrict your access to or to impose limits or suspend your use of
or access to the System or Website.
2.3Conditions of Use. When using the
System, you shall: (i) provide, at your sole cost and
expense, all services, hardware, software, and other technology (including
Internet access service) necessary to access the System ("Access Systems") and
you shall be solely responsible for installing, maintaining, securing and
supporting all such technology; (ii) promptly report to CTS any errors or
irregularities in the performance of the System and, if the System fails to
function in accordance with corresponding specifications, you shall provide:
(a) copies of any and all programs, reports, data files, and other materials
reasonably requested by CTS; (b) support sufficient for CTS to duplicate such
failure; and (c) sufficient test time within which CTS shall use its
commercially reasonable efforts to correct such failure; (iii) perform your
obligations hereunder and ensure that your use of the System shall comply with
any and all applicable laws, rules, and regulations; and (iv) assume full
responsibility for all risk associated with your use of the System, including,
but not limited to, risk associated with your investment decisions as well as
any financial obligations arising with respect to third parties resulting from
your use of the System.
2.4Availability. While CTS' objective is to
make the System available on a 24x7 basis (except for reasonable scheduled
downtime during non-trading hours), CTS shall not be responsible for any
damages or costs incurred by you for any unavailability or downtime of the
System. CTS may make the System, or portions thereof, unavailable from time to
time for any reason including, without limitation, routine maintenance.
2.5 Access to Data. If, in providing the
System, CTS or any of its subcontractors or other third-party service providers
(collectively "CTS Providers") requires access to any of your data, you hereby
grant to such CTS Providers a limited, non-exclusive, world-wide, royalty-free
license to access, use, display, copy, store, translate, edit, and distribute
any or all of your data across multiple computer systems, solely for the
purposes of operating, maintaining, and delivering the System and providing
support services to you.
2.6 Risk of Transactions. CTS is not responsible for
transmission errors, corruption, or compromise of data carried over local or
interchange telecommunications carriers. You agree that (i)
CTS shall not directly or indirectly, be a principal to any transaction or be
responsible for, or otherwise guarantee, the performance of any transaction
entered via the System, (ii) no CTS Party shall have any liability to you or
any other party for any transaction executed via the System and you shall not
proceed against any CTS party to collect or recover any amounts owed to you or
to enforce any of your rights in connection with, or as a result of, such
transaction; (iii) no service provided by CTS in connection with the System the
Website, or otherwise shall give rise to any fiduciary or equitable duties on
the part of a CTS Party; (iv) the submitting or posting of any information to
or on the System by CTS, or any other party shall not be deemed to be a
recommendation by any such person that you should enter into any particular
transaction or that any particular transaction is suitable or appropriate for
you.
2.7 Specifications for Access. CTS shall provide
specifications, which may be updated, modified or amended from time to time ("Specifications")
for Access Systems that CTS requires be used to access and use the System. CTS
shall not be responsible for the performance of the Website or System if your
Access Systems are not in conformance with the Specifications.
2.8 Control of System. You acknowledge that CTS
shall have sole discretion and control over, and the right to modify at any
time, the Website's and the System's functionality, configuration, appearance
and content, including without limitation: (i) the
parameters and protocols by which orders are placed, routed, matched, or
otherwise processed by the System; and (ii) the availability
of the Website and the availability of the System at any particular places,
times or locations.
3.Proprietary Rights
3.1 CTS Property. "CTS Property" includes,
but is not limited to, the System and the Website, all materials associated
therewith, and any other content, products, documentation, software, materials,
or other technology related to the System including, but not limited to, any
and all modifications, enhancements, updates, and configurations, whether
written, printed, electronic, or in source code or any other format, and any
patent, copyright, trade secret, trademark, service mark, or other intellectual
property rights in any of the foregoing. For the avoidance of doubt, the CTS
Property does not include Datafeeds (as defined in
Section 7 below).
3.2 Ownership. CTS retains
all right, title, and interest in and to the CTS Property. CTS grants only
those rights and licenses expressly provided for herein and does
not thereby transfer any title or ownership interest to the CTS Property or any
modifications, enhancements, or derivative works thereof. You shall not
interfere with or otherwise challenge CTS' rights in the CTS Property or remove
or alter, or cause or allow to be removed or altered,
any notice, symbol, or legend or any trademark, copyright notice, or other
proprietary rights appearing in or on any of the CTS Property. You hereby
assign to CTS all rights it may have in any and all suggestions, concepts,
improvements, or other enhancements communicated by you to CTS with respect to
the System.
4.CONFIDENTIALITY
4.1 Each party shall at all times,
both during the term hereof and for a period of at least three (3) years after
termination, keep in confidence all Confidential Information (as defined below)
received by one party from the other using a standard of care such party uses
with its own information of this nature, but in no event less than reasonable
care. The receiving party shall not use any Confidential Information other than
in the course of its permitted activities hereunder. If a party is legally
compelled to disclose any of the other party's Confidential Information, then,
prior to such disclosure, the receiving party will (i) assert
the privileged and confidential nature of the Confidential Information and
(ii) cooperate fully with the disclosing party in protecting against any
such disclosure and/or obtaining a protective order narrowing the scope of such
disclosure and/or use of the Confidential Information. In the event such
protection is not obtained, the receiving party shall disclose the Confidential
Information only to the extent necessary to comply with the applicable legal
requirements.
4.2 "Confidential Information"
shall mean the terms of this Agreement, computer software systems and programs,
data, operation techniques and methodology, ideas, concepts and documents and
business plans, marketing plans, affiliated parties, potential clients, client
and supplier lists, trading strategies, pricing information, financial data and
all information a party discloses to the other during the course of this
Agreement which (i) has been characterized in
writing as confidential at the time of its disclosure, (ii) has been
orally characterized as confidential at the time of disclosure, or (iii) ought
reasonably be considered by the receiving party to be confidential given the
circumstances of the disclosure, except for information which the receiving
party can demonstrate: (a) is previously rightfully known to the receiving
party without restriction on disclosure; (b) is or becomes, from no act or
failure to act on the part of the receiving party, generally known in the
relevant industry or public domain; (c) is disclosed to the receiving
party by a third party as a matter of right and without restriction on
disclosure; or (d) is independently developed by the receiving party
without access to the Confidential Information.
4.3 Notwithstanding the above, you agree to
maintain the confidentiality of all "trade secrets" of CTS forever, unless
written consent otherwise is received by you. "Trade Secret" information
covered by this restriction shall include, but shall not be limited to, any and
all information related to the System and documentation, the fact that you have
entered into this Agreement with CTS, and the existence of the System. All
terms and conditions with respect to Confidential Information shall pertain to "trade
secrets" except that the obligation of non-disclosure shall be perpetual with
respect to "trade secrets."
5.Ownership and Use of Data
The parties acknowledge and agree that, as between you and
CTS, all information and data collected, processed or generated as a result of
your use of the System, including all personally identifiable information
related to an individual (collectively, "User Data"), shall be owned by you. CTS
shall treat all User Data as your Confidential Information. CTS shall be
entitled to maintain back up databases of User Data, but shall only use such
User Data as necessary to fulfill its obligations under this Agreement. Upon
written request by you and payment of a nominal fee to cover CTS' administrative
costs, CTS will provide to you a copy of your raw User Data as it exists on
CTS' databases on a compact disk or other mutually agreed to media format. CTS makes no representation or covenant respecting your PFI's
access to or use of User Data. Such access and use may be governed by your
agreement(s) with your PFI.
6.WARRANTY; DISCLAIMERS
6.1 You. If you are a natural
person, you represent and warrant that you are at least 18 years of age and
competent to enter into this Agreement. If you are not a natural person, you
represent and warrant that you are duly organized and competent to do business
under the applicable laws of the relevant jurisdiction, and you (and each
person using the System on your behalf) is duly
authorized to enter into this Agreement and take all actions contemplated
hereby.
6.2 CTS. CTS warrants
that the System shall perform in all material respects in accordance with the
then-current documentation provided by CTS. CTS's sole responsibility, and your
sole remedy, under this warranty with respect to any material defects in the
System shall be CTS' use of commercially reasonable efforts to correct the
defect within a reasonable period of time. CTS shall have no responsibility
for, and this warranty shall be voided in the event of: (i) errors
or defects caused by your or PFI's neglect, misuse, or damage to the System;
(ii) use of the System with any technology or data not in accordance with
the CTS's specifications; (iii) use of data input forms not provided by or
approved by CTS; or (iv) any loss of data or use of the System as a result
of any breach of security of the technology used by you or PFI in connection
with the System. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SYSTEM
(INCLUDING THE WEBSITE) AND ANY CONTENT PROVIDED THEREIN IS PROVIDED ON AN "AS
IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT
NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE, TITLE, AND NONINFRINGEMENT. CTS DOES NOT
WARRANT THAT: (A) THE SYSTEM SHALL SATISFY YOUR REQUIREMENTS; (B) IS
WITHOUT DEFECT OR ERROR; OR (C) SHALL OPERATE IN AN UNINTERRUPTED OR
ERROR-FREE MANNER. CTS does not and cannot control the
flow of data to or from CTS' network, its service provider's network, or other
portions of the Internet. Accordingly, CTS cannot guarantee that your
connection to the Internet will not be impaired or disrupted, and CTS hereby
disclaims any and all liability resulting from or related to such events. Without
limiting the generality of the foregoing, CTS makes no warranty that the
transactions communicated via the System will be executed or completed or that
information posted on the System will be timely or accurate.
7.DatafeedS
7.1Datafeeds. In conjunction with the
System, CTS may provide access to certain third party datafeeds
(each, including the data and content in same, a "Datafeed").
Except as expressly set forth herein, the terms and conditions governing any
such Datafeeds shall be as required by the applicable
third party provider's (including their affiliates or their licensors, as
applicable) (each a "Third Party Data Provider") data policies and agreements,
as may be updated from time to time by the applicable Third Party Data Provider
(the "Data Policies") (for example, certain of Chicago Mercantile Exchange
Inc.'s data policies are described on www.cmegroup.com
and in Attachment 1 hereto). If there is a conflict between a provision of this
Agreement and any provision of the Data Policies, then solely with respect to
the Datafeed subject to such Data Policy, the
applicable Data Policy will control. With regard to the Datafeeds:
7.1.1Editorial Content. Each Third Party Data Provider has
complete editorial freedom with regard to the form and content of its
respective Datafeed and may alter, add to or delete
the same from time to time. CTS will use commercially reasonable efforts to pass
through any advance notice of such changes to you.
7.1.2Obligations Regarding Datafeeds. You
shall comply with the applicable rights and restrictions pertaining to each Datafeed and shall be fully responsible and liable for your
acts with respect to, and use of, such Datafeed.
7.1.3Ownership. The third party Datafeed
provider, their affiliates or any of their licensors, as applicable (each a "Third
Party Data Provider" and collectively, the "Third Party Data Providers"), shall
retain all right, title and interest in and to the Datafeeds,
and no proprietary rights shall be transferred to you regarding same. You agree
that misappropriation or misuse of a Datafeed shall
cause serious damage to the applicable Third Party Data Provider, and in such
event money damages may not constitute sufficient compensation to the Third
Party Data Provider; consequently, you agree that in the event of any
misappropriation or misuse, the applicable Third Party Data Provider shall have
the right to obtain injunctive relief in addition to any other legal or
financial remedies to which such Third Party Data Provider may be entitled.
7.1.4Legal Compliance. You shall (i)
not use or permit anyone to use the Datafeed or any
information or software provided through the Datafeed
for any unauthorized or unlawful purpose; and (ii) shall comply with all
applicable regulations, conditions or restrictions laid down from time to time
by any statute, court order, telecommunications provider and/or regulatory
authority in connection with access to, use, storage and transmission of the Datafeed or any information or software provided therein.
7.1.5No Reuse or Redistribution. You shall not, and shall not
authorize or permit anyone else to furnish any information or software provided
via a Datafeed (including any derivative works based
on or using such information or software) to any person or firm for reuse,
redistribution or retransmission or any kind without the prior written approval
of appropriate Third Party Data Provider. You may not, and shall not permit any
third party to, transfer, sell, resell, lease, rent, sublicense, adapt, modify
or store for subsequent use the Datafeeds for any
such purpose, in whole or in part, in any form or manner or by any means
whatsoever, without the applicable Third Party Data Provider's prior written
approval. In addition, you shall not use any Datafeed
separately from the System.
7.1.6Audit. CTS or a Third Party Data Provider may, on reasonable
advance written notice, inspect all equipment and records relating to the use,
distribution, and control of the Datafeed and all
information or software provided via the Datafeed, in
order to verify compliance with your obligations under this Agreement. Audits
may be carried out without advance notice if CTS or a Third Party Data Provider
has reason to suspect material breach of this Agreement by you. Visits to your
location(s) may take place within normal business hours during the term of this
Agreement and for a period of two (2) years thereafter. CTS and the Third Party
Data Provider shall treat all information obtained in the audit confidentially
and use it only for the purpose of verifying compliance with this Agreement.
7.1.7DISCLAIMER FOR DATAFEEDS. NOTWITHSTANDING ANYTHING IN THIS
AGREEMENT TO THE CONTRARY, CTS AND THE THIRD PARTY DATA PROVIDERS PROVIDE THE
DATAFEEDS "AS IS", WITHOUT ANY EXPRESS OR IMPLIED WARRANTIES OF ANY KIND AND YOUR USE OF THE DATAFEEDS IS AT YOUR OWN RISK. WITHOUT
LIMITING THE FOREGOING, CTS AND THE THIRD PARTY DATA PROVIDERS DO NOT WARRANT
THE ACCURACY, TIMELINESS, COMPLETENESS, ADEQUACY, TITLE, NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE DATAFEEDS. CTS AND
THE THIRD PARTY DATA PROVIDERS (EITHER INDIVIDUALLY OR COLLECTIVELY) SHALL NOT
BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DAMAGES SUFFERED OR INCURRED
WITH RESPECT TO ANY ACTUAL OR ALLEGED INACCURACY, UNTIMELINESS, INCOMPLETENESS,
INADEQUACY, LACK OF TITLE, INFRINGEMENT, UNFITNESS, UNMERCHANTABILITY OR
UNAVAILABILITY OF THE DATAFEEDS HOWEVER THEY MAY ARISE. YOU ACCEPT FULL
RESPONSIBILITY FOR YOUR USE AND THE USEFULNESS OF THE INFORMATION AND SOFTWARE
INCORPORATED INTO THE DATAFEEDS.
7.1.8LIMITATION OF LIABILITY FOR DATAFEEDS. IN NO EVENT SHALL CTS
OR ANY THIRD PARTY DATA PROVIDER BE LIABLE FOR ANY INDIRECT, SPECIAL,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO,
LOSS OF PROFITS, LOST TIME OR GOODWILL, EVEN IF THEY HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE
LIABILITY OF CTS OR A THIRD PARTY DATA PROVIDER IN CONNECTION WITH THE
DATAFEEDS UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE
FEES PAID BY YOU TO CTS FOR SUCH DATAFEED DURING THE SIX (6) MONTH PERIOD
IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION FIRST OCCURRED.
7.2 Termination of Datafeeds. You acknowledge and agree
that CTS's rights to distribute, and your rights to access, a particular Datafeed depend CTS's license with the applicable Third
Party Data Provider. Access to a Datafeed is subject
to suspension or termination (as applicable) if: (i)
CTS's license to grant you access to such Datafeed is
suspended, terminates or expires, (ii) CTS has reason to suspect your
noncompliance with this Agreement or the applicable Datafeed's
Data Policy, or (iii) a Third Party Data Provider provides direction to CTS to
suspend or cease distribution of a Datafeed for any
reason. Any such termination shall be without liability for any damage, loss,
or expenses of any kind that you incur or suffer arising from or incident to
any such termination.
7.3 Additional Terms. Additional disclosures,
obligations and disclaimers pertaining to specific Third Party Data Providers
are set forth in Attachment 1 hereto.
8.TERMINATION
8.1 Termination. CTS may terminate this
Agreement and your access to the System at any time, for cause or for no cause,
with or without written (including electronic) notice. You may terminate this
Agreement at any time by discontinuing your use of the System and deleting or
destroying all copies of software or other components of the System provided
hereunder that are on your Access Systems.
8.2 Your Responsibilities Upon
Termination.
Upon termination or expiration of this Agreement, you shall cease using the
System and promptly delete or destroy all copies of software or other
components of the System provided hereunder that are on your Access Systems. You
shall also return all documentation and all related materials to CTS (or
destroy all copies thereof) within fourteen (14) days following the date of
termination.
9.Limitation of liability
9.1 EXCEPT FOR CTS'
INDEMNIFICATION OBLIGATIONS IN SECTION 9.2, IN NO EVENT WILL CTS OR ANY CTS
PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR
CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OF OR INABILITY TO USE THE SYSTEM,
INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, LOSS OF PROFITS,
WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, OR ANY AND ALL OTHER COMMERCIAL
DAMAGES OR LOSSES, EVEN IF ADVISED OF THE POSSIBILITY THEREOF, AND REGARDLESS
OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE
CLAIM IS BASED. FURTHER, CTS AND EACH CTS PARTY SHALL HAVE NO LIABILITY
WHATSOEVER TO YOU FOR ANY AND ALL CLAIMS REGARDING THIS AGREEMENT, REGARDLESS
OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE
CLAIM IS BASED EXCEPT IN THE EVENT OF CTS' GROSS NEGLIGENCE, FRAUD OR WILLFUL
MISCONDUCT. IN JURISDICTIONS WHICH RESTRICT LIMITATION OF LIABILITY PROVISIONS,
THE LIABILITY OF CTS AND THE CTS PARTIES WILL BE LIMITED TO THE GREATEST EXTENT
PERMITTED BY LAW.
9.2 WITHOUT LIMITING THE GENERALITY OF
THE FOREGOING, CTS IS NOT RESPONSIBLE FOR ANY LIABILITY ARISING OUT OF
INFORMATION, DATA, CONTENT OR OTHER MATERIAL IMPORTED INTO THE SYSTEM THAT HAS
BEEN PROVIDED BY YOU OR A THIRD PARTY, NOR IS CTS RESPONSIBLE FOR ANY LIABILTY
ARISING OUT OF ANY INFORMATION, DATA, CONTENT OR OTHER MATERIAL FOUND ON ANY
THIRD PARTY WEB SITES TO WHICH THE SYSTEM MIGHT LINK.
10. Indemnification
10.1You. You
agree to defend, hold harmless and indemnify CTS and CTS Parties from and
against any claim, suit, or proceeding brought by a third party against CTS or
CTS Parties to the extent that it is based on a claim arising, directly or
indirectly, out of your use of the System or a Datafeed
(each, a "Covered Proceeding") except for claims for which CTS has an indemnity
obligation in Section 9.2 below, and you shall pay all costs incurred by and
damages (including reasonable attorneys fees and disbursements) awarded against
CTS or a CTS Party arising out of such Covered Proceedings. CTS shall
reasonably cooperate with you with regard to the defense of any Covered
Proceedings or threatened Covered Proceedings. CTS reserves
the right to assume the exclusive defense and control of any matter otherwise
subject to indemnification by you. Customer shall not defend, hold harmless or
indemnify CTS or CTS Parties for any actions brought against CTS that arise out
of the gross negligence, fraud or willful misconduct of CTS.
10.2CTS. CTS
agrees to defend or settle (at CTS' expense and in CTS' sole discretion) any
claim, suit or proceeding brought by a third party against you to the extent
that it is based on a claim that the System infringes any copyright, patent,
registered trademark, or other intellectual property right or constitutes a
misappropriation of a trade secret. Such indemnity, however, is specifically
exclusive of any such claims which arise or result from (i)
your misuse of the System; (ii) alteration of the System by you; (iii) your use
of the System in combination with apparatus, hardware, software or services not
provided, authorized or furnished by CTS (including any use or combination of
the System via the API); and (iv) your use of the System in a manner that violates
applicable law or regulation of any governmental authority or self-regulatory
agency or authority, this Agreement, the Operating Procedures or in a manner
for which the System was neither designed or contemplated. You shall promptly
notify CTS in writing of any claim, suit or proceeding
that CTS may have obligations with respect to under this Section 9.2. You shall
cooperate with CTS at CTS' expense with regard to the defense of any suit or
threatened suit. CTS shall have full control of any such claim, proceeding or
suit and the authority to settle or otherwise dispose of any such suit or
threatened suit, and to appeal any adverse judgment which may be entered. CTS
shall not be responsible for any compromise or settlement made without its
consent. Upon written notice of a claim that the System is infringing a third
party's intellectual property rights, CTS may, but is not obligated to (i) modify or replace the System to make it non-infringing;
(ii) procure any rights from any third party necessary to offer the System; or
(iii) terminate providing the System, in each case in full satisfaction of its
obligations pursuant to this Section 9.2. The foregoing states CTS' complete
obligation and your sole and exclusive remedy for infringement claims arising
under or related to this Agreement.
11. Definitions
11.1"CTS Party"
shall mean CTS and its affiliates, employees, officers, directors, contractors,
representatives, consultants and agents.
11.2"Passwords"
shall mean the access identification codes and passwords provided by CTS to
Participating Financial Institution for their use or for use by their clients,
including, without limitation, all security identification codes and passwords
provided by CTS to PFI for use by You.
11.3"Website" shall
mean the Internet website through which You access the
System.
12. MISCELLANEOUS
12.1This Agreement
constitutes the entire agreement between the parties concerning the subject
matter hereof and supersedes all prior and contemporaneous agreements and
communications, whether oral or written, between the parties relating to the
subject matter hereof, and all past courses of dealing or industry custom.
12.2This Agreement
shall be binding upon and shall inure to the benefit of the parties, their
successors, legal representatives and assigns. Notwithstanding the foregoing,
you shall not assign your rights or obligations hereunder without the prior
written consent of CTS.
12.3Your PFI,
including PFI's affiliates, employees, officers, directors, contractors,
representatives, consultants and agents (collectively, "PFI Parties"), are
third party beneficiaries to the protections set forth in the applicable
sections of this Agreement, including but not limited to Sections 2.2, 2.6
(excluding 2.6(i) and 2.6(ii)), 6.2, 8.1, 8.2 and
9.1, and shall have the right to directly enforce such protections against you.
Except as may otherwise be expressly provided in this
Agreement, PFI Parties shall not have any obligations to you under this
Agreement.
12.4This Agreement
and performance hereunder shall be governed in accordance with the laws of the
State of Illinois, without regard to its principles or rules regarding choice
of law. No action involving this Agreement may be brought except in the Circuit
Court of Cook County, Illinois or the United States District Court for the
Northern District of Illinois, Eastern Division.
12.5If any
provision in this Agreement should be held illegal or unenforceable by a court
having jurisdiction, such provision shall be modified to the extent necessary
to render it enforceable without losing its intent, or severed from this
Agreement if no such modification is possible, and other provisions of this
Agreement shall remain in full force and effect.
12.6A waiver by
either party of any term or condition of this Agreement or any breach thereof,
in any one instance, shall not waive such term or condition or any subsequent
breach thereof.
12.7The provisions
of this Agreement that require or contemplate performance after the expiration
or termination of this Agreement shall be enforceable notwithstanding said
expiration or termination.
12.8Neither party
shall be in default or be liable for any delay, failure in performance or
interruption of service resulting directly or indirectly from any cause beyond
its reasonable control.
12.9The
relationship between CTS and you is that of independent contractors and neither
you nor your agents shall have any authority to bind CTS in any way.
12.10Any notices required to be
sent to CTS under this Agreement shall be in writing and sent to CTS at the
following address:
111 W. Jackson Blvd, Suite 1408
Chicago, IL 60604
All notices shall be deemed given when
received in the case of personal delivery or delivery by first-class registered
or certified mail or overnight courier that produces written evidence of
delivery.
Attachment 1
Certain Additional
Terms from Third Party Data Providers
I.CME Market Data
If
you access CME Market Data in any form through CTS technologies then the CME allows your
agreement to this CTS End User Agreement to serve as confirmation that you agree to all
CME market data licensing terms that may apply to you the end user. CTS will report
exchange access for all users accessing CME market data directly to the CME on a monthly
basis. Links to CME agreements below are for end user convenience only. If any links
are no longer valid then it is the responsibility of the end user to report invalid links
to CTS. Any questions specific to CME agreements including whether or not they apply to
you must be answered directly by the CME.
http://www.cmegroup.com/market-data/distributor/files/Uniform_Subscriber_Addendum.pdf
http://www.cmegroup.com/globex/resources/cme-customer-connection-agreement.html
II.Terms and Conditions Applicable to
the Chicago Mercantile Exchange's Market Profile® Graphic Format
If
you use the Chicago Mercantile Exchange's Market Profile® Graphic Format, the
following terms and conditions apply. These terms and conditions shall be
treated as a Data Policy (as defined in the Agreement) applicable to Market Profile®.
For the avoidance of doubt, any references to "Customer" below shall be deemed
to refer to you.
End-User Agreement
The Chicago Mercantile
Exchange ("CME"), in consideration of the terms and conditions herein set forth
hereby grants to Customer, and Customer accepts, a personal, nontransferable
and nonexclusive license to use the Market Profile® or Market ProfileTM (as
applicable) Graphic format (It shall be referred to herein as the "Licensed
Product"). Market Profile® or Market ProfileTM is a graphic reflecting
price/time relationships. The Licensed Product is
supplied by means of an electronic transmission by Cunningham Trading Systems, LLC ("Vendor"), subject
to the following terms and conditions:
1. LICENSE.
The Licensed Product is supplied by CME and is intended solely for Customer's
internal business purposes. No right, title or interest in or to the Licensed
Product is conveyed to the Customer by this Agreement, and Customer
acknowledges that CME holds a copyright and other proprietary rights and
interests to and in the Licensed Product and that the Licensed Product is and
shall at all times remain the sole and exclusive property of CME. The license
granted hereunder shall not be assigned, sublicensed or otherwise transferred
by Customer. Customer shall not alter or modify the Licensed Product, including
creating a derivative work from the Licensed Product.
2. LICENSE FEES.
The license fee for the license of Market Profile® is $ 7 per month per terminal.
Theses license fees are paid by Vendor on Customer's behalf from fees otherwise
paid to Vendor by Customer. For the avoidance of doubt, until further notice by
Vendor, no additional fees are due and payable by Customer to Vendor or to CME
for use of the Licensed Products by Customer. Either the Vendor or CME may
terminate this license upon notice to Customer. CME reserves the right to
adjust the licenses fees with a 90 notice to Vendor, and Vendor reserves the
right to charge Customer directly for license fees for the Licensed Products
upon at least thirty (30) days prior written notice.
3. RESTRICTIONS ON
COPYING AND TERMINATION. The Customer acknowledges that CME or its designated
agent shall be entitled to disable the Licensed Product. Customer agrees that neither Vendor, CME nor its designated agent shall be liable
to Customer for any damages whatsoever caused by disabling the Licensed
Product. Customer shall not remove or alter any copyright notice on the
Licensed Product and shall include same on any copies of the Licensed Product
made by it. The provisions of this Section 3 shall survive termination of this
Agreement for any reason.
4. DISCLAIMER
AND INDEMNIFICATION. CME MAKES NO REPRESENTATIONS CONCERNING THE
LIKELIHOOD OF PROFITABLE TRADING USING THE LICENSED PRODUCT. CME EXPRESSLY
DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, WITH RESPECT TO THE LICENSED
PRODUCT AND RELATED MATERIALS, OR THEIR QUALITY OF PERFORMANCE, INCLUDING
WARRANTIES OF MERCHANTABILITY, AND FITNESS FOR PARTICULAR PURPOSE. THE LICENSED
PRODUCT IS LICENSED AND TRANSMITTED "AS IS" AND"WITH ALL FAULTS". IN NO EVENT
WILL CME BE LIABLE FOR DIRECT, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES
RESULTING FROM ANY DEFECT IN THE LICENSED PRODUCT EVEN IF CME HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES. THE SALES PERSONNEL, EMPLOYEES VENDORS AND
DEALERS OF CME ARE NOT AUTHORIZED TO MAKE WARRANTIES BINDING ON CME ABOUT THE
LICENSED PRODUCTS. ACCORDINGLY, ADDITIONAL ORAL OR WRITTEN STATEMENTS DO NOT
CONSTITUTE WARRANTIES, AND SHOULD NOT BE RELIED UPON AND ARE NOT PART OF THIS
LICENSE AGREEMENT. ALTHOUGH EVERY EFFORT WILL BE MADE TO ENSURE ACCURACY,
NEITHER CME NOR ANY OTHER PARTY (INCLUDING VENDOR) FURNISHING INFORMATION OR
TRANSMISSION SERVICE TO ANY CUSTOMER OR TO ANY OTHER PARTY INVOLVED IN
INFORMATION DISTRIBUTION PERTINENT TO THIS AGREEMENT, SHALL HAVE ANY
OBLIGATIONS OR LIABILITY TO OR THROUGH THE CUSTOMER WITH RESPECT TO FURNISHING
SUCH SERVICE, NOR FOR ANY INTERRUPTIONS, DELAYS, INACCURACIES, ERRORS OR
OMISSIONS IN THE INFORMATION INCLUDED IN THE SERVICE OR IN THE TRANSMISSION OF
SUCH INFORMATION, NOR ANY DIRECT, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES
(OF WHATEVER NATURE) ARISING FROM THE ABOVE; NEITHER SHALL CME, OR ANY OTHER
PARTY (INCLUDING VENDOR) INVOLVED IN INFORMATION DISTRIBUTION PERTINENT TO THIS
AGREEMENT BE LIABLE FOR ANY LOSSES, CLAIMS OR DAMAGES ARISING FROM CUSTOMER'S
USE OF THE LICENSED PRODUCT. CUSTOMER SHALL DEFEND, INDEMNIFY AND HOLD CME, AND
ANY OTHER PARTY (INCLUDING VENDOR) INVOLVED IN INFORMATION DISTRIBUTION
PERTINENT TO THIS AGREEMENT, FREE FROM ANY ACTIONS, CLAIMS, PROCEEDINGS, OR
LIABILITIES WITH RESPECT TO THIS DISCLAIMER. IF THE FOREGOING DISCLAIMER AND
WAIVER OF LIABILITY SHOULD BE DEEMED INVALID OR INEFFECTIVE, CME ITS DIRECTORS,
OFFICERS OR EMPLOYEES SHALL NOT BE LIABLE IN ANY EVENT BEYOND THE SUM EQUAL TO
ONE YEAR'S FEES PAID WITH RESPECT TO THE LICENSED PRODUCTS TO CME. SUCH
DISCLAIMER AND INDEMNITY SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
5. CUSTOMER
SUPPORT. CME shall not be responsible to the Customer for any technical
support, maintenance or updates of the Licensed Product. The Customer must
obtain such technical support directly from Vendor pursuant to a separate
maintenance agreement.
6. GENERAL.
The failure of any party to insist, in any one or more instances, upon the
performance of any term of this Agreement shall not be construed as a waiver or
relinquishment of such party's right to such performance or to future
performance of such term. If any of the provisions or portions thereof of this
Agreement are found to be invalid by any court of competent jurisdiction, same
shall not affect the remaining provisions of this Agreement, which shall remain
in full force and effect. This Agreement shall be governed by the laws of the
state of Illinois and Customer expressly submits to jurisdiction therein.
CUSTOMER
ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT AND AGREES TO BE
BOUND BY ITS TERMS AND CONDITIONS. FURTHER, CUSTOMER AGREES THAT THIS AGREEMENT
CONSTITUTES THE ENTIRE AGREEMENT BETWEEN THE PARTIES WITH RESPECT TO THE
SUBJECT MATTER; ALL PROPOSALS, REPRESENTATIONS, STATEMENTS, NEGOTIATIONS AND
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE
PARTIES RELATING TO THE SUBJECT MATTER OF THIS AGREEMENT ARE SUPERSEDED HEREBY.