1. SUBSCRIBER AGREEMENT. By registering for or using the information provided on www.metalprices.com (“Market Data” as defined below), the individual or entity accessing the Market Data (“Subscriber”) is consenting to be bound by and is becoming a party to this Argus Media, Inc., d/b/a Metalprices.com. Subscriber Agreement (“Agreement”). If Subscriber does not agree to all of the terms of this Agreement, the Subscriber must not register, access, or use the Market Data.
(a) “Device” means any units 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) “Exchange(s)” refers to each and every applicable trading exchange for which Subscriber is subscribing to, including, but not limited to, Vendor, LME, CME, SGX, Steel Index, SBB, SMM, DJ,Reuters or any of their licensors, or from which Subscriber receives through Vendor, Market Data.
(d) “Person(s)” means any natural person, proprietorship, corporation, partnership, limited liability company or other for-profit, nonprofit or educational organization.
(e) “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. “Market Data” also means Free Market or Open Market pricing that is proprietary to and copyrighted by Vendor. With respect to Subscriber’s obligations under this Agreement, 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.
(f) “Vendor” refers to Argus Media, Inc., d/b/a Metalprices.com (g) “Wallboard” means a large fixed unit of display equipment that receives and displays information and is viewable by an audience enclosed within a location.
(h) “Information Board” means any physical device displayed in a public or office setting which incorporates diverse information from various sources. Licensed information is limited in length of time displayed, as well as the level of market data details provided. This includes, but is not limited to, lobby displays, elevator displays and marquees. An Information Board may have other functions beyond display of Market Data but is accessed via a public setting.
3. 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 Agreement, Subscriber would have no rights or access to such Market Data. Whether or not a particular Exchange has placed its Market Data in the public domain or has authorized the placement of its Market Data in the public domain shall be determined according to the terms of such Exchange’s agreement with Vendor, which agreement is described in Section 4(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, vendors who provide data and content to the Vendor, and Vendor for which money damages would be an inadequate remedy. Accordingly, Subscriber further acknowledges and agrees that each of the Exchanges, vendors who provide data and content to the Vendor, and Vendor shall be entitled to specific performance and injunctive and other equitable relief from the breach or threatened breach of any provision, requirement or covenant of this Agreement (including, without limitation, any disclosure or threatened disclosure of Market Data) in addition to and not in limitation of any other legal or equitable remedies which may be available.
4. PROHIBITION OF WALLBOARD DISPLAYS
(a) Wallboard distribution by a Subscriber of Market Data obtained through this Agreement is strictly prohibited unless such Wallboard or Information Board distribution is through a separate written agreement between Subscriber and Metalprices.com, Inc., the LME, or the CME pursuant to 4(b) or 4(c) below.
(b) The LME has formulated a policy on distribution of LME data by a Wallboard or Information Board. Such distribution is permitted provided that the operator of the Wallboard(s) or Information Board has entered into a separate written agreement with the LME. The operator of the
Wallboard(s) or Information Board(s) shall report to the LME each month the number of Wallboards or Information Boards it operates. The fees for Wallboard or Information Board distribution are an annual license fee of Nine Thousand United Kingdom Pounds (£9,000) and monthly fees per Wallboard or Information Board of One Hundred Fifty United Kingdom Pounds (£150). The Wallboard or Information Board distribution license relates solely to LME data and not LBMA data. LME data may not be published in real-time: it must be subject to a fifteen (15) minute delay. In addition, Wallboards or Information Boards may only be located in venues where admission is controlled by a security pass or subject to other restrictions on access; a Wallboard or Information Board displaying LME data may not be located in areas where it is viewable by the general public.
(c) Wallboards or Information Boards that are used for the distribution of CME data (COMEX and NYMEX) are subject to a separate licensing agreement and fees through Metalprices.com, Inc. Wallboards or Information Board are for internal use only and may not display data to non-employees or the general public.
5. RECEIPT OF MARKET DATA BY SUBSCRIBER
(a) Vendor and Subscriber have entered into this 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 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 possible.
(b)(1) Except as provided in (b)(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 and suppliers, 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 and suppliers, the movements or trends in markets for commodity futures contracts, options on commodity futures contracts, or like derivative instruments, subject to all of the limitations set forth below in this subparagraph as to the telephonic disclosure, email or facsimile to customers and suppliers 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 limitation or varying its obligations under Section 9 herein or otherwise set forth in this Agreement, that Subscriber shall not use or permit another Person to use any Market Data for the purposes of determining or arriving at any price, including any settlement prices, for commodity futures contracts, options on commodity futures contracts, or like derivatives instruments traded on any exchange other than the Exchanges. Subscriber will abide by any other limitations on such use that any of the Exchanges, vendors who provide data and content to the Vendor, and Vendor 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.
(b)(2) Notwithstanding (b)(1) above, Subscriber may, in the regular course of its business, occasionally furnish, to each of its customers and suppliers, 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, email or facsimile not entailing the use of computerized voice synthesization or any other technology and must be strictly related to the trading activity of Subscriber or any such recipients. Any such recipients must be advised by Subscriber that such segments are proprietary and confidential information not to be disclosed or disseminated to other persons or entities. Subscriber agrees to make all reasonable efforts to ensure that such recipients abide by the provisions of this Agreement. Notwithstanding the foregoing, in the event that a Subscriber has an internal (electronic) newsletter 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 internal (electronic) newsletter 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 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 5(b) above to access the Market Data.
6. DELIVERY OF MARKET DATA. After payment of the subscription fee by Subscriber, Vendor will make Market Data available through a unique access code. Vendor will use reasonable efforts to make Market Data available on a twenty-four (24) hours per day and seven (7) days per week basis, with the exception of down times for routine maintenance, or by events beyond Vendor’s reasonable control.
7. 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 5(a) as it relates to Subscriber’s receipt of Market Data. Subscriber shall maintain the records and books upon which it bases its reporting for CME 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 London Metal Exchange, NYMEX or COMEX or other Exchanges 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 audit. Records and books for the purposes of this Section 7 means the information or Market Data derived from Vendor.
8. TERM AND TERMINATION. The term of this Agreement shall commence upon subscription by Subscriber, and terminate upon Notice, pursuant to Section 14, by either party to the other. Upon termination of this Agreement Subscriber agrees to and shall destroy all materials obtained from vendor. Subject to Subscriber’s strict compliance with the provisions of this Agreement, the provision of Market Data by any of the Exchanges hereunder will continue in force during the term of the agreement between Subscriber and Vendor and any renewal term thereof. In addition, it is understood that the provisions set forth in Sections 3(a), 3(b), 4, 9, 10, 11, 12 and 15(a) of this Agreement shall survive the termination of this Agreement.
9. 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 covenants, represents and warrants that it will not share or redistribute the Market Data with other organizations or members of a consortium that Subscriber belongs to or is a member of without ensuring that the other organizations or members have directly entered into an agreement with Vendor allowing for their separate and independent access and use of the Market Data. It is the intent of the parties that access and use of the Market Data is limited to the Subscriber under this Agreement and that if Subscriber is in a consortium with others that the other members of such consortium obtain the right to access and use the Market Data through their own agreement with Vendor. 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, vendors who provide data and content to the Vendor, and Vendor hereunder is conditioned upon Subscriber’s strict compliance with the terms of this Agreement and that Vendor may, with or without notice and with or without cause, forthwith discontinue said service whenever in its judgment there has been any default or breach by Subscriber of the provisions hereof, or whenever directed to do so by any of the Exchanges.
10. 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.
11. 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, error 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.
12. 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 Agreement, including, without limitation, any liability, loss or damages (including, without limitation, attorneys’ fees and other expenses) caused by any inaccuracy in or omission from, Subscriber’s failure to furnish or to keep, or Subscriber’s delay in furnishing or keeping, any report or record required to be kept by Subscriber hereunder.
13. FEE INCREASES. In the event that one or more of the Exchanges decides to increase its exchange fees, this increase will be passed to the Subscriber. The Subscriber is responsible for this cost which may require additional or increased payment(s).
Agreement, except if Subscriber is subscribing to the Metal Research Gateway or XML Service in which case notice is as provided in the Additional Terms and Conditions of Subscriber Agreement for Metal Research Gateway and XML Service.
Notice is as provided in the Additional Terms and Conditions of Subscriber Agreement, except if Subscriber is subscribing to the Metal Research Gateway or XML Service in which case notice is as provided in the Additional Terms and Conditions of Subscriber Agreement for Metal Research Gateway and XML Service.
15. ADDITIONAL TERMS AND CONDITIONS
(a) Vendor expressly excludes any warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise, relating to anything supplied or services provided under or in connection with this Agreement, including (without limitation) as to the condition, satisfactory quality, performance, merchantability or fitness for purpose of the Market Data or any information or data included in or referable to such Market Data at any time and from time to time. Vendor makes no guarantee, warranty, representation or undertaking, express or implied, as to the originality, accuracy, correctness, timeliness or completeness of any of the values or information stated in or underlying the Market Data or any information or data included in or referable to such Market Data. Vendor does not guarantee the uninterrupted or un-delayed calculation or dissemination of the Market Data. Vendor makes no guarantee or warranty, express or implied, as to results obtained or to be obtained by any person or entity from the use of the Market Data or any information or data included in or referable to such Market Data. Vendor makes no guarantee or warranty, express or implied, that the Market Data accurately reflects past, present, or future market performance.
(c) Additionally, Subscriber shall:
(1) Use reasonable efforts to ensure that all Users, defined as patrons or members of a public or private library if a library is the Subscriber, or defined as the members, partners, directors, officers, employees, agents or students of any other Person requesting services if the Person is the Subscriber, are appropriately notified of the importance of respecting the intellectual property rights in Market Data and of the sanctions which Vendor imposes for failing to do so;
restrictions placed on User’s use of Market Data under this Agreement and take all reasonable steps to protect Market Data from unauthorized use or other breach of this Agreement;
(3) Use reasonable efforts to monitor compliance and immediately, upon becoming aware of any unauthorized use of Market Data or other breach of this Agreement, inform Vendor and take all reasonable and appropriate steps, including disciplinary action, both to ensure that such activity ceases and to prevent any recurrence;
(4) For Persons or public or private libraries with enterprise licensing, issue passwords and other access information only to Subscribers and to use best efforts to ensure that the Subscribers do not divulge their passwords to any third party;
(5) Provide Vendor with all information requested by Vendor necessary to enable the Vendor to provide access to Market Data in accordance with its obligation under this Agreement, and should Subscriber make any significant change to such information, it will notify Vendor not less than ten (10) days before the change takes effect; and
(6) Use best efforts to ensure that only Subscribers are permitted access to the
(a) In case of any breach by Subscriber of its obligations hereunder, each of the Exchanges, vendors who provide data and content to the Vendor, and Vendor will be considered to be a third-party beneficiary of this Agreement and may bring an action to enforce its terms directly against Subscriber.
(b) Any action arising out of this Agreement between the Exchanges, vendors who provide data and content to the Vendor, Vendor and Subscriber shall be governed by and construed in accordance with the laws of the state of Colorado unless the jurisdiction is determined by agreement between such Exchange or other licensed data and content provider and Vendor in which case such jurisdiction applies.
(c) This Agreement is not assignable without the prior written consent of Vendor, Exchanges (as applicable) and Subscriber. Such consent shall not be unreasonably withheld, conditioned or delayed and if given, shall require the assignee to consent in writing to all covenants, terms and conditions of this Agreement. If such consent is refused, the assignment shall be ineffective and the non-assigning party shall be allowed to terminate this Agreement on thirty (30) days’ prior Notice.
(d) Vendor reserves the right to update or amend any part of or the entire Agreement as a consequence of new policies or the introduction of new services. If such a change occurs, Vendor shall give Subscriber not less than ninety (90) days prior Notice. If Subscriber does not accept the new conditions related to the new policies or the introduction of new services, it may terminate this Agreement by Notice to Vendor within thirty (30) days from the date of notification of the proposed change.
(e) In the event of any conflict between the terms and conditions of this Agreement and any other agreement relating to Subscriber’s receipt and use of Market Data, including, without limitation, the agreement between Vendor and Subscriber referred to in Section 5(a), the terms and conditions of this Agreement will prevail.
(f) If any term or provision of this Agreement shall be invalid or unenforceable, the remainder of this Agreement shall not be affected thereby and shall be valid and enforceable to the full extent permitted by law.
(g) The failure of Vendor or Exchanges at any time to enforce any provision of the Agreement is not a waiver of and does not affect its subsequent right to require complete performance by the other party.
(h) The captions in this Agreement are used for convenience only, and in no way define, limit or prescribe the scope or intent of this Agreement or any provisions thereof.
(i) Unless otherwise provided in this Agreement, this Agreement shall only be modified by a written amendment signed by Vendor and Subscriber.
(j) Nothing in this Agreement shall be deemed to either constitute a partnership between any of the parties or make any party the agent of any other party for any purpose.
(k) Vendor may suspend or terminate receipt or display of the Market Data if Vendor has reason to believe information is being misused or misrepresented.
(l) Vendor is not associated with any financial institution.
(m) Vendor will respect and will not distribute or sell personal information.
17. DISPUTE RESOLUTION. All disputes and controversies of every kind and nature between Vendor and Subscriber arising out of or in connection with this Agreement, including but not limited to disputes as to the existence, construction, validity, interpretation, meaning, performance, nonperformance, enforcement, operation, breach, continuance or termination of this Agreement shall be submitted to arbitration pursuant to the following procedure:
(a) A party wishing to demand arbitration must do so in writing within thirty (30) days after the controversy arises. The demand shall include the name of the arbitrator appointed by the party demanding arbitration, together with a statement of the matter in controversy.
(b) Within fifteen (15) days after such demand, the other party shall name an arbitrator and the two arbitrators so selected shall name a third arbitrator within fifteen (15) days.
(c) An award rendered by a majority of the arbitrators appointed pursuant to this Agreement shall be final and binding on all parties to the proceeding during the period of this Subscriber Agreement, and judgment on such award may be entered by either party in the highest court, state or federal, having jurisdiction.
(d) The parties stipulate that the provisions of this Section 17 shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute arising during the period of this Agreement, and which is arbitrable as set forth above. The arbitration provisions shall, with respect to such controversy or dispute, survive the termination or expiration of this Agreement.
(e) The party requesting arbitration shall pay the arbitration filing fee. Each party shall pay one-half of the cost of the arbitrators. Except as specified in this clause, each party shall bear its own arbitration costs and expenses.
ADDITIONAL TERMS AND CONDITIONS OF SUBSCRIBER AGREEMENT
1. WARRANTY. Argus Media Inc., d/b/a MetalPrices.com (“Vendor”) expressly excludes any warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise, relating to anything supplied or services provided under or in connection with these Additional Terms and Conditions of Subscriber Agreement (“Terms and Conditions”) or the related MetalPrices.com Subscriber Agreement (“Subscriber Agreement”) (collectively “Agreement”), including (without limitation) as to the condition, satisfactory quality, performance, merchantability or fitness for purpose of the Market Data (as defined in the Subscriber Agreement) or any information or data included in or relating to such Market Data at any time and from time to time. Vendor makes no guarantee, warranty, representation or undertaking, express or implied, as to the originality, accuracy, correctness, timeliness or completeness of any of the values or information stated in or underlying the Market Data or any information or data included in or relating to such Market Data. Vendor does not guarantee the uninterrupted or un-delayed calculation or dissemination of the Market Data. Vendor makes no guarantee or warranty, express or implied, as to results obtained or to be obtained by any person or entity from the use of the Market Data or any information or data included in or relating to such Market Data. Vendor makes no guarantee or warranty, express or implied, that the Market Data accurately reflects past, present, or future market performance.
2. USE OF MARKET DATA
2.1 Vendor grants to Subscriber the following non-exclusive, nontransferable, revocable and limited right to use (including the right to extract, store, verify, arrange, manipulate, package, reproduce, make available, distribute, process) the Market Data for personal use and limited internal purposes, including but not limited to: (i) development, marketing, sales, demonstrations and editorial purposes; and (ii) personal use, including but not limited to, personal investing, research and academic endeavors; provided that, in the opinion of the Exchanges (as defined in the Subscriber Agreement), the Market Data is not used for or does not amount to a separate profit-making commercial initiative without the written consent of Vendor or Exchanges. The right to use the Market Data is a license and not a sale of the Market Data. Archiving of Market Data is not permitted under any circumstances.
2.2 Subscriber must not misrepresent the Market Data or display or distribute the Market Data in any way that may, as determined by Vendor or Exchanges, create a false or misleading impression as to the origin or value of any item of the Market Data or the operation of financial markets to which the Market Data relates.
2.3 Any use of the Market Data by Subscriber not specified in these Terms and Conditions is not authorized. Vendor, upon written request by any Subscriber, may, at its sole discretion, approve alternative use of the Market Data by such Subscriber and such Subscriber acknowledges that any such approval requires prior separate written agreement from Vendor.
2.4 Subject to the Terms and Conditions, Subscriber may create, use and distribute Derived Information, which is defined as data created as a result of Subscriber receiving and processing the Market Data, changing the Market Data or combining it with other data. Where (i) the Market Data can be recognized or determined from the Derived Information, or (ii) the Derived Information is created solely from the Market Data and forms an index, Subscriber shall not use or distribute the Derived Information without the prior written consent of Vendor and Exchanges, and if consent is provided, any such use or distribution shall be subject to the terms and conditions of any agreement that Vendor and Exchanges may require Subscriber to enter into with respect to the use or distribution of the Derived Information. Vendor and Exchanges may, at their sole discretion, refuse consent or apply additional license fees for the rights to create, use and distribute Derived Information.
3. RESTRICTION ON USE OF THE INFORMATION
3.1 Subscriber shall make reasonable efforts to ensure that Subscriber’s use of the Market Data complies with this Agreement.
3.2 Except as specified in Clause 3.3, Subscriber shall not:
3.2.1 redistribute the Market Data or distribute, redistribute or sell Derived Information;
3.2.2 while the Market Data is confidential information, use of the Market Data, or any part of it, as the basis for settlement of a contract on an exchange or other trading platform which is not operated by Vendor or Exchanges or their Affiliates; and
3.2.3 while the Market Data is confidential information, use the Market Data, or any part of it, in any other manner which is or may be directly or indirectly competitive with the operations of Vendor or Exchanges.
3.3 All graphics, templates, and most of the information on www.metalprices.com are copyrighted by Vendor. Subscriber agrees that it will not reproduce, republish, upload, post, transmit, distribute or publicly display any materials from this website, whether or not copyrighted, trademarked or service marked, without the prior written permission of Vendor. Subscriber may redistribute limited (i.e. purely ad hoc and insubstantial) amounts of Market Data and Derived Information without specific authorization by Vendor, provided any such redistribution:
3.3.1 is not continuous;
3.3.2 does not update in real time;
3.3.3 is on an infrequent and irregular basis;
3.3.4 cannot be used as a substitute for any Service or substantial part of it;
3.3.5 has no independent commercial value;
3.3.6 is not separately charged for by Subscriber;
3.3.7 is incidental to the purpose of Subscriber’s principal business or use; and
3.3.8 is not to be used for any commercial information brokering, information vending, publishing or credit rating, nor for reproduction through the press or media, nor for transmission via any private or public network, cable or satellite system.
4. PROTECTION OF THE MARKET DATA.
4.1 Subscriber shall be responsible for ensuring compliance with the Agreement by its employees and any third party engaged by Subscriber and given access to the Market Data, including but not limited to third parties that process the Market Data on behalf of Subscriber or make particular (technical) facilities available or perform particular services for the purposes of receipt and distribution of the Market Data by Subscriber.
4.2 Subscriber shall install suitable control and security systems in line with technological advances in order to prevent any unlawful use of the Market Data or use in violation of this Agreement.
4.3 Subscriber shall:
4.3.1 install its own physical and software security systems to protect its information technology equipment, in particular a firewall securing all information and telecommunications systems from the intrusion of third parties not authorized under this Agreement; and
4.3.2 secure access to its premises.
5. VENDOR’S LIMITATION OF LIABILITY AND INDEMNITY
5.1 Vendor shall not be responsible or liable for any indirect, direct, special, market, trading, economic or consequential loss, damage, cost or expense of any kind whatsoever and
or otherwise, including (without limitation) market losses, trading losses, direct or indirect or consequential losses incurred by or in connection with (a) loss or corruption of data; (b) loss of contracts; (c) loss of goodwill; (d) loss of operation time; and/or (e) losses of profits in relation to or in connection with or arising from (i) the use by any Person of the Market Data or any information or data included in or relating to such Market Data, (ii) any inaccuracies, errors, omissions or mistakes in, or any delays or interruptions in calculating or disseminating, the Market Data or any information or data included in or relating to such Market Data, (iii) any transaction in any financial instrument, securities or contract based on, linked to or relating to the Market Data or any information or data included in or relating to such Market Data; (f) the trading of any such financial instrument, securities or contract; and/or (g) any other indirect or consequential losses caused, even if Vendor has been advised of the possibility.
5.2 To the fullest extent permitted by law, under no circumstances whatsoever shall Vendor be liable to Subscriber for any liability, damages, losses, costs or expense incurred by Subscriber arising from and/or in connection with any failure or inability of Vendor to perform, or any delay in providing the Market Data as a result of or arising from or in connection with, any electronic, electrical, mechanical or other failure, error, breakdown, malfunction, omission, interruption or delay, whether of any computer system, personal digital assistant (“PDA”) or other devices, equipment or otherwise, however caused, notwithstanding that Vendor is advised of the possibility of such liability, damages, losses, costs and/or expenses.
5.3 Subscriber acknowledges and agrees that the allocations of risk, indemnities and the exclusions and limitations of liability in favor of Vendor are reflected in the fees and the fees would be substantially higher in the absence of such allocation, indemnities and exclusions and limitations. Such allocations, indemnities and exclusions and limitations are also a recognition of the fact that, among other things, the manner and purpose of use of the Market Data, and any information or data included in or related to such Market Data, is beyond its control, and Vendor does not warrant that the Market Data, and any information or data included in or related to such Market Data, will be error free or fit for any particular purpose. The Market Data is from various sources and varies from one source to another.
5.4 Subscriber shall indemnify, hold harmless and defend Vendor at Subscriber’s expense, including Subscriber’s reasonable attorneys’ fees, from and against any loss, claim, action, demand or expense (“Loss”) arising in connection with Subscriber’s use of the Market Data.
6. SUBSCRIBER’S LIMITATION OF LIABILITY AND INDEMNITY
in the Subscriber’s Service. Subscriber expressly acknowledges that Vendor and Exchanges do not give any representations, warranties or undertakings, express or implied, with respect to the merchantability, quality, commercial viability or fitness for purpose of the Market Data.
6.2 Save as a result of bad faith or as expressly provided in this Agreement, Vendor and Exchanges will not be liable in contract, tort (including negligence and breach of a statutory duty) or otherwise, to Subscriber or to others directly or indirectly making use of the Market Data, for any direct, indirect or consequential loss, damage, loss of profit, business revenue, goodwill or other injury, cost or expense, arising in any way out of access to, provision or use of the Market Data.
7. INTELLECTUAL PROPERTY
7.1 Intellectual Property Rights in the Market Data shall be and remain vested in Exchanges.
Subscriber acknowledges Exchanges’ ownership of the Market Data and agree that neither receipt of the Market Data by Subscriber nor distribution of the Market Data by Subscriber has any effect on the Intellectual Property Rights of Exchanges, vendors who provide data and content to the Vendor, and Vendor.
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