Effective October 2, 2013, the terms and conditions set forth in the following User License Agreement shall be applicable to any person or entity accessing or using the systems operated by GFI Swaps Exchange LLC
USER LICENSE AGREEMENT
GFI SWAPS EXCHANGE LLC
BY CLICKING ON THE “I ACCEPT” BUTTON BELOW, YOU (“USER”) WILL BE AGREEING TO COMPLY WITH AND BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THIS USER LICENSE AGREEMENT (THIS “AGREEMENT”) AND THE RULEBOOK (THE “RULES”) OF GFI SWAPS EXCHANGE LLC (“SEF”). IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU ARE NOT PERMITTED TO ACCESS OR USE THE SERVICES (AS DEFINED BELOW). CAPITALIZED TERMS USED IN THIS AGREEMENT WITHOUT DEFINITION HAVE THE MEANING ASCRIBED TO SUCH TERMS IN THE RULES.
1. Access and Services.
(a) SEF provides User access to its Trading Platform and related services (the “Services”). SEF hereby agrees, subject to the terms and conditions set forth in this Agreement (as it may be amended, modified or supplemented from time to time), the Rules and Applicable Law (collectively, the “Requirements”), to make the Services available to User either directly or through a third-party service provider. User agrees to use the SEF only in strict compliance with the Requirements. In the event of any conflict between the Rules and this Agreement, the Rules shall supersede any conflicting terms contained in this Agreement. To the extent that User is permitted to access and use the Trading Platform for the purposes of executing transactions in Swaps and a Swap must be or is voluntarily submitted for clearing to a Derivatives Clearing Organization or a clearing agency registered with the Securities and Exchange Commission (a “Securities Clearing Agency”), the Requirements with respect to that Transaction will also include all the terms and conditions in the rules of the relevant Derivatives Clearing Organization or Securities Clearing Agency.
(b) User shall use and access the SEF on behalf of a Participant (the “Sponsoring Participant”), a Sponsored Access Firm designated by the Sponsoring Participant (a “Sponsoring Sponsored Access Firm”), or a Clearing Firm (the “Sponsoring Clearing Firm”). User may not use or access the SEF unless User has been designated as a Registered Trader by either the Sponsoring Participant or by a Sponsoring Sponsored Access Firm or as an Authorized Representative (as such term is used in SEF’s Clearing Firm Authorization) by a Sponsoring Clearing Firm. The term “Sponsor” shall be used herein to refer to User’s Sponsoring Participant or, if applicable, the Sponsoring Sponsored Access Firm or Sponsoring Clearing Firm.
(c) Either SEF or User’s Sponsor will provide User with one or more user identifications, initial passwords, digital certificates and/or other devices (collectively, “Authenticators”) necessary to enable User to access the SEF. User will change such initial password immediately. User may access and use the SEF only by using such Authenticators and User will take appropriate steps to maintain the confidentiality of all Authenticators and secure the Authenticators from unauthorized use. User shall not permit any other Person to use the SEF using User’s Authenticators and User shall immediately notify SEF of any unauthorized use or misuse of the SEF, and any loss, theft, unauthorized use or misuse of any Authenticators known to User.
2. Availability of the SEF.
(a) SEF may, in its sole discretion at any time and for any reason without notice to User, modify any aspect of the SEF or limit or eliminate the availability of the SEF, provided, however, that without limiting the foregoing right, SEF will use commercially reasonable efforts to notify User, as soon as reasonably practicable of any such modification or limitation that SEF reasonably believes will affect User’s use of the SEF.
(b) User acknowledges that User will be using the SEF via the Internet or through other means mutually acceptable to User’s Sponsor and SEF and that access to the Internet and the SEF is dependent on numerous factors, technologies and systems, all of which are beyond the authority and control of SEF. User acknowledges and agrees that SEF shall not be liable or responsible for any inability of User to access the SEF, whether as a result of any error, malfunction or breakdown of the SEF or of any third party resources used by User to access the SEF.
(c) User (or User’s Sponsor) shall obtain and maintain, at his, her or its own expense, computers, computer systems (including, but not limited to, servers and peripheral equipment), operating systems, applications, communications software, Internet browser, telecommunications equipment, third-party application services and other equipment and software (the “Equipment”) required for User to access and use the SEF, which Equipment requirements may be changed from time to time by SEF upon reasonable advance notice to the User. User accordingly acknowledges and agrees that SEF shall not be liable or responsible for any problem, error or malfunction relating to the SEF resulting from data entry errors by the User or any other user of the SEF or the performance or failure of Equipment or any telecommunications service, Internet connection, Internet service provider or any other third-party software or communication provider or any other failure or problem not solely attributable to SEF.
3. Certain Restrictions on Use.
User is responsible for all information and content that User transmits on the SEF or otherwise makes available via the SEF and that is transmitted or made available via User’s Authenticators (whether or not authorized by User). User agrees that he or she shall not, directly or indirectly, use the SEF (i) in a manner that interferes with or disrupts the SEF or that could otherwise bring the SEF into disrepute, (ii) in any manner that violates any applicable law, rule or regulation, or (iii) to collect or store personal data about other users, creators, sponsors or operators of the SEF. In addition, User shall not, directly or indirectly, (A) remove, deface or obscure any notice of confidentiality or any trademark or other indicia of ownership that may be contained on or displayed via the SEF; (B) upload or transmit via the SEF any information, data or material that contains or embodies a virus, worm, Trojan horse, time bomb, or other feature designed to disable, damage, or disrupt the operations of, permit unauthorized access to, or erase, destroy or modify any software, hardware, network or other technology; or (C) take any action that imposes an unreasonable burden on the SEF’s systems. SEF shall have the right to remove any information or content that violates any term or condition governing the use of the SEF generally or that, in its sole discretion, is otherwise objectionable.
4. Term and Termination.
(a) Term.
(i) If User is a Registered Trader designated by a Participant or Sponsored Access Firm, User’s permission to access and use the SEF shall continue until the earliest to occur of the following events: (w) User ceases to be a Registered Trader pursuant to the Rules, (x) User’s Sponsoring Participant or Sponsoring Sponsored Access Firm ceases to be a Participant or Sponsored Access Firm, as applicable, pursuant to the Rules or (y) User’s rights under this Agreement are terminated as provided in this Section 4.
(ii) If User is an Authorized Representative designated by a Clearing Firm, User’s permission to access and use the SEF shall continue until the earliest to occur of the following events: (x) the Sponsoring Clearing Firm or the SEF, at the request of the Sponsoring Clearing Firm, terminates User’s access to the SEF, (y) the Sponsoring Clearing Firm ceases to be a Clearing Firm for Participant(s), or (z) User’s rights under this Agreement are terminated as provided in this section 4.
(b) Summary Suspension. SEF may, in accordance with the Rules, suspend, revoke, limit, condition, restrict or qualify User’s use of and access to the SEF in accordance with the Rules.
(c) Effect of Termination. Upon termination, for any reason, User shall cease use of the SEF and destroy all Authenticators then in possession or control of User. A User whose Trading Privileges and/or ability to otherwise access the SEF are suspended, revoked or terminated shall remain bound by the Rules and Requirements, in each case to the extent applicable to User, and subject to the jurisdiction of the SEF with respect to all matters arising prior to such revocation or termination and prior to and during such suspension, as applicable. Further, all representations, warranties, and covenants made by User (including those set forth in Section 6) in or pursuant to this Agreement and the provisions of this Section 4(c) (Effect of Termination), Section 5 (Proprietary Information), Section 7 (Limitation of Liability), Section 8 (Equitable Remedies), Section 9 (Cooperation, Information and Consents), Section 10 (Notices), Section 11 (Governing Law), Section 15 (Third-Party Beneficiaries), Section 16 (Severability) and Section 18 (Remedies Not Exclusive) will survive the termination of this Agreement.
5. Proprietary Information.
(a) SEF will treat information obtained from User in accordance with the Rules.
(b) User agrees that it has read and understood, and that it will keep Proprietary Information confidential as required by, the Rules.
6. Representations and Warranties.
User hereby makes the following representations and warranties to SEF, which shall be deemed repeated each time that User accesses and uses the SEF:
(a) User has full power and authority to execute (by clicking “I accept” button below) and perform this Agreement;
(b) this Agreement is legal, valid, binding and enforceable against User in accordance with its terms;
(c) neither the execution of, nor performance under, this Agreement by User nor the User’s use of the SEF in accordance with this Agreement will violate any law, rule, regulation or order applicable to User;
(d) User has and will maintain all registrations, licenses and consents required for User to access and use the SEF;
(e) User has reviewed and understands all Rules applicable to User and User’s access to and use of the SEF;
(f) User will abide by, and be bound by, the Requirements; and
(g) User is not a person subject to trade or other sanctions imposed by the United States of America, including countries or persons appearing on lists maintained by the Office of Foreign Assets Control of the United States Department of the Treasury
7. Limitation of Liability.
User acknowledges and agrees that access to the SEF is provided on an “as is” and “as available” basis with all faults and without warranty of any kind. USER ACKNOWLEDGES THAT HIS OR HER USE OF THE SEF IS SUBJECT TO THE LIMITATIONS ON LIABILITY SET FORTH IN THE RULES.
8. Equitable Remedies.
User acknowledges and agrees that the violation of User’s obligations under Sections 1, 3 and 5 would cause irreparable harm to SEF or its third party service providers or licensors, which harm may not be compensable solely by monetary damages, and that, therefore, in the event of an actual or threatened breach by User of Sections 1, 3 and 5, SEF or its third party service providers or licensors from which SEF obtains any portion of the Services or the System, as applicable, shall be entitled to injunctive and other equitable relief, without the necessity of proving monetary damages or posting a bond or other security. Any such equitable relief granted shall be without prejudice to any other rights and remedies as SEF or its third party service providers or licensors may have under this Agreement.
9. Cooperation, Information and Consents.
While User is using the SEF and for a period of five years following termination of such use, User shall provide SEF or the Regulatory Services Provider all such cooperation, information and consents required under the Rules.
10. Notices.
Any notice required or permitted to be given in connection with this Agreement will be deemed to be delivered and received (a) upon personal delivery to the party to be notified; (b) one Business Day after deposit with a nationally recognized overnight carrier, specifying next Business Day delivery, with written verification of receipt; (c) five days after being sent by certified or registered mail, postage prepaid with return receipt requested, or (d) if sent by email during normal business hours of recipient or not sent via confirmed email, on the next Business Day, and, if to User addressed to User at the address or email address registered by User with the SEF in accordance with the Rules, or if to SEF at:
GFI Swaps Exchange LLC
55 Water Street
New York, NY 10041
Attention: General Counsel or such other address as SEF may specify in writing to User from time to time. In the event SEF provides notice to a Sponsor, such notice shall be deemed to have been made to the User.
11. Governing Law.
This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of New York, without giving effect to its conflict of laws principles. Any disputes arising hereunder shall be brought in accordance with and shall be subject to the terms, including with respect to timing of the claim and payment of expenses, set forth in the Rules. User shall be subject to SEF’s jurisdiction with respect to User’s access to and use of the SEF.
12. Amendments.
SEF may, in its sole discretion, amend, modify or supplement this Agreement and the Requirements at any time and from time to time upon written notice to User.
13. Assignment.
User shall not assign or transfer or purport to assign or transfer this Agreement or any part of it or the benefit or burden thereof. Any purported assignment in contravention of this section shall be void. SEF may, without prior written consent of User, assign or transfer this Agreement or its rights and obligations hereunder to any of its Affiliates or in connection with the merger or acquisition of SEF or the sale of all or substantially all of its assets. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their respective successors and permitted assigns.
14. Interpretation.
The section headings are inserted for convenience of reference only and in no way define or delimit any of the provisions set forth herein or otherwise affect construction of this Agreement. The masculine gender shall include the feminine and the singular number shall include the plural, and vice versa. Unless the context otherwise requires, (i) words in the singular include the plural and words in the plural include the singular; (ii) references to the Rules are to such rules as in effect from time to time; (iii) any reference to a time means the time in New York, New York; and (iv) any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated.
15. Third-Party Beneficiaries.
No provision of this Agreement is intended, expressly or by implication, to purport to confer a benefit or right of action upon a third party.
16. Severability.
If any provision of this Agreement shall be held or made invalid by a court decision, statute, rule of law or otherwise, the remainder of this Agreement will not be affected and to that extent the provisions of this Agreement will be deemed to be severable.
17. No Waiver.
No failure on the part of SEF to exercise, and no delay on its part in exercising, any right or remedy under this Agreement will operate as a waiver thereof or of any Requirement, nor will any single or partial exercise of any right or remedy preclude any other or further or future exercise thereof or the exercise of any other right or remedy.
18. Remedies Not Exclusive.
No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, except as expressly provided in this Agreement, and each and every remedy shall be cumulative and shall be in addition to every other remedy given hereunder or now or hereafter existing in law or in equity or by statute or otherwise.
19. Force Majeure.
Any delay in or failure of performance by SEF under this Agreement will not be considered a breach and will be excused to the extent such delay in or failure is caused by any event beyond the reasonable control of SEF, including, but not limited to, acts of God, acts of civil or military authorities, strikes or other labor disputes, fires, interruptions in telecommunications or Internet or network provider services, acts or omissions of a third party hardware or software supplier or a third party communications provider, power outages and governmental restrictions.
20. Use of Electronic Mail.
All e-mail sent to or from SEF may be received or otherwise recorded by its corporate e-mail systems and is subject to archival, monitoring or review by, and disclosure to, someone other than the recipient. User agrees not to transmit Orders or RFQs to SEF using e-mail or any other electronic communications except as expressly permitted by an authorized representative of SEF.
21. Entire Agreement.
This Agreement contains the entire agreement of the parties hereto with respect to the subject matter hereof and supersedes all prior agreements, understandings, representations, warranties, requests for proposal and negotiations between SEF and the User or User’s Sponsor, if any, with respect to the subject matter hereof.
GFI DIRECT USER LICENCE
BY INSTALLING, ACCESSING OR USING GFI’s APIS, PLUG-INS, SOFTWARE, INTERACTIVE TRADING SYSTEM, OR BACK OFFICE SYSTEMS (TOGETHER OR INDIVIDUALLY THE “SYSTEM”) OR ANY PART THEREOF, YOU ACKNOWLEDGE, REPRESENT AND CONFIRM THAT YOU HAVE THE AUTHORITY TO ENTER INTO AND BIND YOU AND YOUR EMPLOYER TO THIS AGREEMENT (TOGETHER YOU AND YOUR EMPLOYER SHALL BE HEREINAFTER REFERRED TO AS THE “USER”) AND AGREE TO BE BOUND BY THE FOLLOWING TERMS OF USE (THE “AGREEMENT”) WITH GFI (AS DEFINED BELOW) AND ITS AFFILIATES (“GFI”). GFI RESERVES THE RIGHT TO MODIFY THESE TERMS OF USE AT ANY TIME, SO USER SHOULD REVIEW THESE TERMS OF USE WHENEVER ACCESSING OR USING THE SYSTEM. USER MAY ALSO BE REQUIRED, FROM TIME TO TIME, TO ACCEPT AN ELECTRONIC LICENSE AGREEMENT WITH A THIRD PARTY PROVIDING THE SOFTWARE OR ANY ELEMENT OF THE SOFTWARE CONTAINED IN THE SYSTEM. IF USER DOES NOT AGREE TO THESE TERMS, DO NOT INSTALL, ACCESS OR USE THE SYSTEM OR THE SOFTWARE CONTAINED HEREIN (THE “SOFTWARE”).
For the purposes of this Agreement, “Affiliates” shall mean a company that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with GFI.
1. Grant of License
1.1. GFI grants to the User (and individuals within/working for the User and permissioned by GFI) on the terms below a revocable, non-exclusive, non-transferable, non-sublicensable license to install and use the System and System Data only in order to request quotes from and trade with other authorized users of the System.
1.2. The User will not and will ensure that its employees, officers and agents will not, tamper with, adapt, reverse engineer, decompile, disassemble, translate, modify, assign, sell, transfer, lease, charge, copy, alter, reproduce, distribute, sublicense, disseminate or otherwise dispose of, the Software, the System or System Data in whole or in part or otherwise change in form, format, sequence, context or substance the Software, System or System Data or create any derivative works based thereon.
2. Intellectual Property Rights
2.1. All intellectual property rights in and to (i) the System and/or (ii) System Data are owned by, or licensed to, GFI, and User agrees that all of GFI’s intellectual property rights shall remain vested exclusively in GFI and/or its licensors and/or their respective successors both during and after the term of this Agreement. This Agreement shall not constitute a sale of the original or any back up copy of the System/System Data and no title or proprietary rights to the System/System Data are transferred to the User other than the limited license granted hereby. Any goodwill generated through User’s access to, or use of, the System shall inure solely for the benefit of GFI (and/or its licensors) and/or their respective successors.
3. The System
3.1. GFI shall, during the term of this Agreement, provide the System to Customer on such days and hours as it may establish and notify to Customer from time to time.
3.2. GFI may, from time to time, notify the User of additional rules applicable to the use of the System. When the User uses the System to facilitate the arrangement of Trades (“Trades” in the scope of this Agreement means the sale or purchase of certain securities or financial instruments to which a User has confirmed its intention to trade on by clicking the ‘buy or sell’ option displayed in the System and which is then registered within the System), User will only act as principal and in accordance with applicable law, regulation and market convention and GFI shall not be party to any Trades. The User will be responsible for completing and documenting Trades arranged via the System with any counterparties. For information purposes only, GFI will provide the User electronically with a notice for any Trades arranged via the System, or where applicable, deliver such notice over customary back-office communication modes established between GFI’ and User’s back-office.
3.3. GFI does not guarantee that the System/System Data will always be accessible and the User acknowledges that access to and operation of the System/System Data may be prevented by circumstances beyond GFI’ control, in which case, neither party to the Trade shall be bound unless an electronic affirmation has been issued by the System to both counterparties.
3.4. GFI has the right at any time to withdraw, suspend or modify the availability of all or part of the System in its absolute discretion with or without notice to the User. GFI shall have not liability for any loss, expense or damage suffered by User as a result of any system or communications failures or any interruptions or delays in the availability of the System or System Data.
3.5. System trading involves special risks of which counterparties should not unfairly take advantage. Accordingly, GFI will not be liable or responsible for manifest or obvious input, or other errors which may result in Trades at manifestly unusual or off-market prices, or sizes. If User discovers what it believes to be an error, discrepancy or omission in relation to any instructions submitted or Trades executed via the System, it shall immediately notify GFI by contacting their designated GFI representative. In the event of such notice or in the event of a dispute between the parties to a Trade, GFI shall, in its sole discretion and where legally permitted, use reasonable efforts to provide to the Users concerned electronic records relating to such Trades that may be retained by the System.
3.6. GFI shall have the right to cancel any Trades on reasonable grounds including, without limitation and in GFI’ sole reasonable opinion, on grounds of manifest error or market or system abuse or misuse.
3.7. User accepts and agrees that it is entirely responsible for all mapping with any third party system that has not been installed by GFI.
3.8. User acknowledges and agrees that it is responsible, at its own expense, for procuring, installing, operating and/or maintaining any internet bandwidth and access, communications, other information technology items that are required to access the System. The operating instructions and description of the minimum required configuration to access and use the System are available from GFI at any time upon reasonable request.
3.9. The System/System Data may contain third party elements which GFI has permission to distribute. User may be required to enter into a separate agreement with certain third party providers in order to make use of the System/System Data. By entering into this Agreement, User confirms that where reasonably required the User will enter into separate agreements with such third party providers.
4. System Data
4.1. For the purposes of this Agreement ‘System Data’ shall mean any: (i) FX volatility, spot, swap, forward and deposit data supplied or used in connection with the operation of the System and (ii) price/trade data generated through the use of the System.
4.2. User acknowledges that the System Data is a valuable asset of GFI and/or its licensors and/or their respective successors and User shall protect and safeguard any intellectual property right in and to the System Data by using the same degree of care that User uses to protect its own intellectual property rights, business assets and confidential information but in any event no less than a reasonable degree of care.
5. Use of the System
5.1. User, not GFI, is solely and exclusively responsible for its Trades and for any and all damages, expenses, or liabilities incurred or suffered as a result of User’s fault or negligence, as well as the fault or negligence of any individuals that it authorises to access and use the System on its behalf or any individual gaining access to the System using the passwords or identifications (“ID”) provided to the User by GFI. GFI shall not be liable or responsible in the event of any misappropriation, misuse or theft of any IDs.
5.2. Recognising the global nature of the Internet and the System, User agrees to ensure that its employees will only be granted access to the System if they are eligible to offer, arrange and/or enter into Trades pursuant to all applicable law, including the laws and regulations of the jurisdiction or jurisdictions where it is located, where its company is organised, or from where such employees trade.
6. Fees
6.1. GFI reserves the right to charge a fee for the use of the System, which User will be notified of in writing from time to time. User agrees that any fees shall be invoiced and shall be due and payable with in thirty (30) days of receipt of the applicable invoice. User agrees to pay interest at the rate of two percent (2%) per month or, if lower, the maximum rate allowed by law, on outstanding and unpaid fees for the purpose of covering GFI’ collection costs as well as interest.
7. Representations and Warranties
7.1. GFI represents and warrants that GFI is either the owner, or has obtained and currently holds all rights necessary to grant the licenses and rights granted hereby, for the use of the System as set out in this Agreement.
7.2. User warrants that it has full power and authority to enter into Trades with other Users arranged via the System.
7.3. User represents and warrants that it is and will remain, in compliance with all applicable laws and regulations of any relevant jurisdiction within which it operates.
7.4. Each party represents and warrants to the other that (i) it has the power and authority to enter into and perform this Agreement; (ii) this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms; and (iii) the entering into and performance of this Agreement will not violate any applicable laws or regulations, or any agreement by which it is bound.
7.5. Except for the express warranties stated herein and in relation to liability for death or personal injury, GFI makes, and User receives, no warranties express, implied, statutory or allegedly extended in any communication with GFI. GFI specifically disclaims any implied warranties of merchantability, satisfactory quality or fitness for a particular purpose.
8. Indemnity
8.1. GFI shall defend and indemnify User against a claim that the System licensed and used within the scope of this Agreement infringes any copyright, patent or other intellectual property right within the European Union or United States of a third party, provided that: (a) User notifies GFI in writing as soon as practicable and within 30 (Thirty) days of the claim; (b) GFI has sole control of the defence and all related settlement negotiations while taking into account User’s reasonable interests; and (c) User provides GFI with reasonable assistance, information, and authority necessary to perform the above (at GFI’s’ expense for reasonable out of pocket expenses). If the System becomes, or in GFI’s opinion is likely to become, the subject of any such claim or action, then GFI may either: (i) procure for User the right to continue using same as contemplated hereunder; (ii) modify same to render same non-infringing; or (iii) replace same with equally suitable, functionally equivalent, compatible, non-infringing copy of the System; or (iv) if none of the foregoing are reasonably commercially available, terminate this Agreement.
8.2. The provisions of the preceding Section 8.1 shall be the full extent of GFI’s liability for the infringement of the intellectual or industrial property rights of any third party. GFI shall have no liability for any claim of infringement based on: (a) the combination or use of the System furnished under this Agreement with programs or data not furnished by GFI, if such infringement would have been avoided by the use of the System without such programs or data; or (b) use of the System contrary to the terms of this Agreement.
9. Confidential Information
9.1. Each party agrees to regard and preserve as confidential all information (including all Trades/orders entered onto the System) related, but not limited to, the business and activities of the other party (“Confidential Information”). Except as provided herein each party agrees to hold Confidential Information in strict confidence and will not disclose such Confidential Information to any person, firm or enterprise, or use (directly or indirectly) any such Confidential Information for its own benefit or the benefit of any other party, unless authorised by the other party in writing. Confidential Information shall not be considered confidential to the extent such information is: (i) already known free of restriction at the time it is obtained; (ii) subsequently learned from an independent third party free of restriction and without breach of this Agreement; (iii) is or becomes publicly available through no wrongful act of the receiving party; or (iv) is independently developed without reference to any Confidential Information of the other party.
9.2. Furthermore, either party shall be entitled to disclose such Confidential Information as it may be required to disclose by law or under the rules of any applicable regulatory authority. User acknowledges that GFI compiles and disseminates (on its own behalf or through its Affiliates) for sale or otherwise, trade and pricing data on a ‘no-names basis’ in various forms including data arising from use of the System. Copyright and all intellectual property in such data belongs solely to GFI and its Affiliates.
9.3. Each party acknowledges and agrees that, monetary damages would be difficult to calculate and may not adequately compensate the other party in connection with an actual or threatened breach of any of the foregoing provisions of this Section 9 by such party. Accordingly, each party hereby expressly waives all rights to raise the adequacy of the other party’s remedies at law as a defense if the other party seeks to enforce by injunction or other equitable relief the due and proper performance and observance of any of the foregoing provisions of this Section 9. Notwithstanding the foregoing, each party shall be entitled to pursue any other available remedies at law or equity, including the recovery of monetary damages, with respect to the actual or threatened breach of the foregoing provisions of this Section 9.
10. Limitation of Liability
10.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER GFI, NOR ANY OTHER GFI ENTITY OR AFFILIATE, NOR ITS SOFTWARE SUPPLIERS, SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, ANY INSTRUCTIONS, TRADES OR USE OF THE SYSTEM, REGARDLESS OF THE FORM OF ACTION OR THE BASIS OF THE CLAIM AND WHETHER OR NOT GFI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. SAVE IN RESPECT OF SECTION 8.1 (INDEMNITY), IN NO EVENT SHALL GFI’ TOTAL LIABILITY TO USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTIONS (WHETHER IN CONTRACT OR TORT, INCLUDING BUT NOT LIMITED TO, NEGLIGENCE) EXCEED THE AMOUNT PAID BY USER (BY WAY OF FEES) TO GFI, IF ANY, FOR ACCESSING THE SYSTEM.
10.3. NEITHER GFI NOR ANY OTHER GFI ENTITY OR AFFILIATE, NOR GFI’S SOFTWARE SUPPLIERS, SHALL BE LIABLE FOR (I) THE CAPACITY, RELIABILITY, AVAILABILITY, ACCURACY OR PERFORMANCE OF THE SYSTEM OR THE ACTS OR OMISSIONS OF OTHER USERS; (II) THE COMMERCIAL ADVISABILITY OF ANY TRADE; (III) THE RELIABILITY OR ACCURACY OF ANY INFORMATION SUPPLIED BY OR TO USER IN RELATION TO ANY ACTION TAKEN BY USER ON THE SYSTEM, INCLUDING, WITHOUT LIMIATION, ANY REQUEST FOR QUOTE OR OFFER; (IV) ANY OBLIGATION OR LIABILITY OF USER ARISING IN RELATION TO ANY AGREED TRADES OR THE REVOCATION THEREOF; (V) FOR THE CAPACITY, RELIABILITY OR PERFORMANCE OF THE USER OR ANY OTHER USER OF THE SYSTEM WITH REGARD TO ANY TRADE; OR (VI) THE CANCELATION OF A TRADE BY GFI PURSUANT TO SECTION 3.6.
10.4. CUSTOMER REPRESENTS AND WARRANTS TO GFI THAT IT ACCEPTS THAT THE RESTRICTIONS ON THE LIABILITY OF GFI, AFFILIATES OF GFI, GFI’S SOFTWARE PROVIDERS, AGENTS AND SUB-CONTRACTORS AS SET OUT IN THIS AGREEMENT ARE REASONABLE IN ALL CIRCUMSTANCES.
11. Term & Termination
11.1. This Agreement shall remain in full force and effect from execution unless and until terminated in accordance with the provisions outlined hereunder.
11.2. Either party may terminate this Agreement forthwith on written notice to the other. Immediately on termination, the User shall cease to use the System, shall withdraw its outstanding requests or offers to Trade and shall deliver to GFI or destroy all copies of the Software in its possession or control.
11.3. Any termination of this Agreement whether in whole or in part shall not affect the accrued rights or liabilities of either party under this Agreement or User’s rights and obligations under any executed Trade.
12. Miscellaneous
12.1. Any provision in this Agreement which must survive the termination or expiration of this Agreement including all obligations to pay any fees due and not yet paid at the time of termination shall survive and continue after any expiration or termination of this Agreement and shall bind the parties and their legal representatives, successors and assigns.
12.2. The parties to this Agreement are and shall remain independent contractors, and nothing herein shall be construed to create a partnership or joint venture between them.
12.3. At no time shall a failure or delay in enforcing any provisions, exercising any option or requiring performance, be construed to be a waiver.
12.4. Unless otherwise specified, all notices to be provided under this Agreement shall be in writing and delivered personally, posted, first class post, postage prepaid, or delivered by confirmed electronic mail, fax or digital means, to the addresses notified at registration or to the electronic mail or fax address to which confirmations agreed trades are sent. All notices shall be deemed given, on the date personally delivered, when placed in the mail as specified, or when electronic or digital confirmations are received.
12.5. No liability or loss of rights under this Agreement shall arise from any delay or failure in performance (other than payment) caused by “Force Majeure Event” which is circumstances beyond the reasonable control of the party affected thereby, including, without limitation, acts of God, fire, flood, war, government action or compliance with laws or regulations.
12.6. This Agreement is to be read in conjunction with, but shall not supersede, any other agreements or licenses that the User may have executed with an Affiliate of GFI.
12.7. This Agreement may not be assigned or transferred by either party without the prior written consent of the other party.
12.8. Headings are solely for reference and shall not affect the meaning of any terms. If any part of this Agreement is held invalid, illegal or unenforceable, the remaining provisions will be unimpaired.
12.9. This Agreement, together with any applicable rules of use or third party terms and conditions, if applicable, constitutes the entire agreement between you and GFI relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements.
12.10. For the avoidance of doubt and unless specifically stated otherwise herein, no person who is not a party to this Agreement shall have the right to enforce the provisions of this Agreement.
13. Jurisdiction
13.1. If either counterparty to the Trade is a ‘US Person’ the GFI contracting entity shall be GFI Securities LLC and this Agreement shall be governed by the laws of the State of New York, including its Uniform Commercial Code, as applicable to contracts wholly negotiated and executed therein and without reference to the conflicts of laws principles thereof. If the matter is not eligible for arbitration before any mandatory exclusive forum, the parties agree to submit any all claims, disputes or controversies arising under this Agreement or otherwise concerning in any way the use of the System to the exclusive jurisdiction of the Federal or State Courts located in Manhattan in the State of New York.
13.2. If both counterparties to the Trade are ‘non US Persons’ the GFI contracting entity shall be GFI Brokers Limited and this Agreement shall be governed under the laws of England and Wales without regard to the conflicts of law provisions and shall be subject to the exclusive jurisdiction of the courts of England.
13.3. The User should note that; GFI Brokers Limited is regulated by the FSA in the United Kingdom and GFI Securities LLC is regulated by the Securities and Exchange Commission and FINRA in the United States.
