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PHILADELPHIA BOARD OF TRADE
ELECTRONIC FORM OF SUBSCRIBER AGREEMENT
IMPORTANT NOTICE: THIS SUBSCRIBER AGREEMENT (THIS "AGREEMENT") IS AN AGREEMENT BETWEEN YOU, AND PERSHING LLC ("THE PARTIES") FOR YOU TO RECEIVE INFORMATION PUBLISHED BY THE PHILADELPHIA BOARD OF TRADE.
PLEASE READ THIS AGREEMENT CAREFULLY. AFTER YOU HAVE READ THIS AGREEMENT, PLEASE INDICATE YOUR AGREEMENT TO BE BOUND BY ITS TERMS AND CONDITIONS BY CLICKING ON THE "I AGREE" BUTTON AT THE END.
IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU WILL BE UNABLE TO RECEIVE THE INFORMATION.
By completing and submitting this Agreement, you are applying to receive from Pershing LLC ("Pershing") a market data service (the "Service") providing access to Philadelphia Stock Exchange Proprietary Sector Index Spot and Settlement Values ("Index Data") published by the Philadelphia Board of Trade.
In reviewing and approving this Agreement, Pershing is authorized to act on behalf of the "PBOT"
By completing and submitting this Agreement and clicking on the "I agree" button at the end of this Agreement, you are consenting to enter into this Agreement in electronic form.
You have the right to withdraw your consent by terminating this Agreement and your receipt of the PBOT data. Your right to terminate this Agreement and your receipt of the PBOT Data, and the procedure you must follow to do so, are described in paragraph 5 below. If any information needed to contact you electronically changes, the procedure for notifying Pershing is described in paragraph 8 below. If you wish to have a copy of this Agreement in paper form and you are unable to print a copy on your own computer system, Pershing will provide you with a paper copy at no charge upon its receipt of your request transmitted as described in paragraph 8. You may access a copy of this Agreement electronically at no charge, if your access to PBOT Data is from a device capable of receiving text, by following the steps below:
Go to the web page where the exchange agreements are found
Click on the underlined word "agreement"
Click on the Philadelphia Board of Trade link, this will bring up the text of the PBOT agreement
Print the agreement either by right-clicking directly in the window or going to File | Print in the top menu bar
1. You hereby represent and agree as follows:
Your full name and address are:
2. LICENSE
PERSHING LLC ("Pershing") has obtained the right to receive and retransmit Market Data of the Philadelphia Board of Trade, Inc. ("PBOT") as Market Data may be added or deleted from time to time by PBOT. The Parties agree that the term "Designated Market Data" shall be synonymous with "Market Data," as that term is defined in the PBOT Market Data Subvendor Agreement and includes, but is not limited to, bids, asks, and market prices of futures or options, opening and closing range prices, high-low prices, settlement prices, estimated and actual contract volume, and information regarding market activity. Pershing hereby grants Subscriber a non-exclusive and non-transferable License to receive Designated Market Data. Pershing shall furnish the Designated Market Data to Subscriber via the Internet or Pershing's private network. Subscriber agrees and acknowledges that PBOT reserves the right to disapprove any Subscriber and retains the right to direct Pershing to terminate any Subscriber's receipt of Market Data for any reason or no reason, in which event the PBOT shall so notify Pershing and Pershing shall cease providing Market Data to that Subscriber as soon as practicable. Subscriber represents and warrants that he or she is a non-professional, making this agreement in his or her own individual capacity and not on behalf of a firm, corporation, partnership, trust, or association, and that the receipt of the Designated Market Data shall be via the internet. The Parties acknowledge and agree that the Designated Market Data are and do constitute valuable confidential information, copyrighted materials and proprietary rights of PBOT, not within the public domain, and that, but for this Agreement, Subscriber would have no access or rights with respect thereto.
3. SUBSCRIBER'S RESTRICTIONS AND OBLIGATIONS
Subscriber agrees that the Designated Market Data are solely for Subscriber's private and individual receipt and use. In addition, Subscriber may, occasionally furnish a de minimis number of segments of Designated 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 ensure that such recipients abide by the provisions of this Agreement. Subscriber shall not, except as provided in Paragraph 2, redistribute, sell, license, retransmit or otherwise provide Market Data in any format by electronic or other means, including but not limited to the Internet, any Intranet or other networks except with the express written authorization of PBOT. Subscriber shall not reproduce, misappropriate, market or store the Designated Market Data in a retrieval system. Subscriber shall not use the Designated Market Data in any way so as to assist or allow a third party to compete with PBOT or Pershing. Subscriber shall safeguard the confidentiality of the Designated Market Data, and shall not communicate or otherwise furnish, or permit to be communicated or otherwise furnished, said Designated Market Data, in any format, to any news distributing company, or to any other location than that above designated, or allow any person, firm or corporation whatsoever to take, directly or indirectly, any of said Designated Market Data, from said offices or locations, and Subscriber will comply with any requirement respecting the location in its place of business of its blackboards, tickers, telephones and instrumentalities, and will adopt and enforce, with respect to persons entering its place of business, any regulation which PBOT or Subvendor may deem it advisable to prescribe in order to prevent the Designated Market Data from being improperly taken from Subscriber's place of business. Subscriber further agrees to protect the confidentiality of the Designated Market Data through the use of passwords, account numbers, access numbers, and any other security measures Pershing or PBOT shall require to prevent unlicensed or unauthorized parties from gaining access to the Designated Market Data, and Subscriber agrees that the passwords, account numbers, access numbers, and the other security measures are non-transferable. Subscriber shall not use, or allow any other person to use, the Designated Market Data for any illegal purpose or otherwise engage in, permit, or in any way assist in or promote the illegal use of the Designated Market Data. Subscriber shall promptly notify Pershing and PBOT if it knows of or learns of any person or persons having unauthorized or unlawful access to the Designated Market Data. Upon request, Subscriber agrees to provide to Pershing the information or reports requested by Pershing that is related to Subscriber's receipt of the Designated Market Data. Where Subscriber is a business, Subscriber agrees that during regular business hours and upon reasonable oral or written notice and to ensure compliance with this Agreement, any person or persons designated by PBOT or Pershing shall have access to the Subscriber's offices or places and shall have the right to observe the use made of the Designated Market Data and to examine and inspect any device, attachment, or apparatus within such office or place, as well as any books and records required to be maintained by Subscriber in connection with its receipt and use of Market Data.
4. PAYMENT
Not Applicable.
5. TERMINATION
Subscriber agrees that Pershing may, with or without notice, terminate the license of the Designated Market Data granted hereunder (and the furnishing of Designated Market Data) at any time for any reason whatsoever, including, but not limited to, whenever directed to do so by PBOT, or whenever in Pershing's judgment there shall have been any breach by Subscriber of the provisions of this Agreement.
6. DISCLAIMER OF WARRANTIES AND LIABILITY: INDEMNITY
SUBSCRIBER AGREES THAT NEITHER PBOT NOR PERSHING, OR THEIR RESPECTIVE MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, GUARANTEE THE TIMELINESS, SEQUENCE, ACCURACY OR COMPLETENESS OF THE DESIGNATED MARKET DATA, MARKET INFORMATION OR OTHER INFORMATION FURNISHED OR THAT THE DESIGNATED MARKET DATA HAVE BEEN VERIFIED. SUBSCRIBER AGREES THAT THE DESIGNATED MARKET DATA AND OTHER INFORMATION PROVIDED HEREUNDER IS FOR INFORMATION PURPOSES ONLY AND IS NOT INTENDED AS AN OFFER OF SOLICITATION WITH RESPECT TO THE PURCHASE OR SALE OF ANY SECURITY OR COMMODITY AND THAT THE DESIGNATED MARKET DATA AND OTHER INFORMATION SHOULD NOT SERVE AS THE BASIS FOR ANY INVESTMENT DECISION. SUBSCRIBER AGREES THAT NEITHER PBOT NOR PERSHING, OR THEIR RESPECTIVE MEMBERS, SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, SHALL BE LIABLE TO SUBSCRIBER OR TO ANY OTHER PERSON, FIRM OR CORPORATION WHATSOEVER FOR ANY LOSSES, DAMAGES, CLAIMS, PENALTIES, COSTS OR EXPENSES (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO THE DESIGNATED MARKET DATA IN ANY WAY, INCLUDING BUT NOT LIMITED TO ANY DELAY, INACCURACIES, ERRORS OR OMISSIONS IN THE DESIGNATED MARKET DATA OR IN THE TRANSMISSION THEREOF OR FOR NONPERFORMANCE, DISCONTINUANCE, TERMINATION OR INTERRUPTION OF SERVICE OR FOR ANY DAMAGES ARISING THEREFROM OR OCCASIONED THEREBY, DUE TO ANY CAUSE WHATSOEVER, WHETHER OR NOT RESULTING FROM NEGLIGENCE ON THEIR PART. IF THE FOREGOING DISCLAIMER AND WAIVER OF LIABILITY SHOULD BE DEEMED INVALID OR INEFFECTIVE, NEITHER PBOT NOR PERSHING, NOR THEIR RESPECTIVE SHAREHOLDERS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS SHALL BE LIABLE IN ANY EVENT, INCLUDING THEIR OWN NEGLIGENCE, BEYOND THE ACTUAL AMOUNT OF LOSS OR DAMAGE, OR THE AMOUNT OF THE MONTHLY FEE PAID BY SUBSCRIBER TO VENDOR OR SUBVENDOR, WHICHEVER IS LESS. SUBSCRIBER AGREES THAT NEITHER THE MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES OR AGENTS, SHALL BE LIABLE TO SUBSCRIBER OR TO ANY OTHER PERSON, FIRM OR CORPORATION WHATSOEVER FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, OR COSTS OF LOST OR DAMAGED DATA EVEN IF NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES.
- Indemnity. Subscriber shall indemnify and hold (and at PBOT's and Pershing's option, defend) PBOT and Pershing and their members, shareholders, directors, officers, employees and agents harmless and shall pay all losses, damages, expenses and costs (including reasonable attorneys' fees) incurred by them based upon any claim or action: (a) arising from Subscriber's breach of its obligations, representations, warranties or covenants hereunder; (b) relating to any delay, inaccuracies, errors, or omissions in the Designated Market Data or (c) any use of the Market Data. PBOT and Pershing shall have the right (but not the obligation) to participate in any defense or settlement, in which event each Party shall pay for its respective attorneys' fees.
7. GENERAL
This Agreement between Pershing and Subscriber embodies the entire agreement between the Parties with respect to the subject matter hereof. The failure or inability of Pershing to verify or check any information or activity required by Pershing, or the failure or inability of Pershing to perform any activity relating to the verification or checking of any information supplied by Subscriber or any activity relating to the verification or checking of any information supplied by Subscriber or any activity of Subscriber will not be deemed to constitute a waiver of any right on the part of Pershing or PBOT to enforce the provisions of this Agreement. No waiver, alteration, or modification of any of the provisions, except as provided in Paragraphs 2 through 4 shall be binding unless in writing and signed by a duly authorized representative of each Party and PBOT. Neither the course of conduct between the Parties nor trade usage shall act to modify or alter the provisions of this Agreement. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A., to the exclusion of the Courts of any other state or country , without regard to its conflict of law principles. Subscriber agrees that all disputes and matters whatsoever arising under, in connection with, or incident to this Agreement shall be litigated, if at all, in and before a Court located in the Commonwealth of Pennsylvania, U.S.A, to the exclusion of the Courts of any other state or country. Subscriber acknowledges that its breach of this Agreement would cause immediate and irreparable harm to Pershing and PBOT for which money damages would be inadequate. Pershing and PBOT shall have the right to enforce their rights against the Subscriber under this Agreement, not only by an action for damages, but also by an action for injunctive or other equitable relief in order to enforce this Agreement, without proof of actual damages or the posting of a bond or other security. Subscriber acknowledges that PBOT is an intended third-party beneficiary of the rights of Pershing under the Agreement. The illegality or unenforceability of any part of this Agreement shall not affect the remainder of this Agreement. If any part of this Agreement is found to be illegal or unenforceable, this Agreement shall be given the meaning as would give effect to the intent of the Parties.
8. All written notices to Pershing shall be sent to Pershing LLC, Attention Market Data Management Services, One Pershing Plaza, Jersey City, NJ 07399.
IF YOU AGREE TO THE TERMS AND CONDITIONS SET FORTH ABOVE, PLEASE CLICK ON THE "I AGREE" BUTTON BELOW. By clicking on the "I AGREE" button below and typing in your name as indicated above, you agree that:
i) you have read and you understand all of the terms and conditions set forth above; and
ii) you intend to form a legally binding and valid contract under which you will be bound by
all of the terms and conditions set forth above.
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