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The
following terms when used in this Agreement shall have the meanings set
out below:
“Agreement”
means this agreement together with any Schedule executed by the
Subscriber made in connection with this agreement, such Schedule forming
an integral part of this agreement.
“CEG”
means the Canadian Exchange Group, an agency operated by TSX Inc. (TSX)
on behalf of itself, and TSX Venture Exchange Inc. together with such
other Persons as may become members of the Canadian Exchange Group from
time to time, for whom TSX acts as agent. For the purposes of this
Agreement, CEG shall refer to the members comprising the Canadian
Exchange Group jointly and severally.
“Interrogation Device” means any device or equipment
(i.e., computer, data processing equipment, communications equipment,
monitor, terminal) that CEG has authorized to be in Receipt of Market
Data from a Supplier and which, at any time, either (i) displays,
transmits or communicates Market Data to any Person in visible, audible,
or other comprehensible form or (ii) uses or processes Market Data for
any purpose or in any manner which is different than described herein.
“Market Data” means any information provided through the
facilities of TSX and/or CEG, directly or indirectly, relating to (i)
securities or other financial instruments, markets, products or indices;
(ii) information, data and services from Third Party Contributors; or
(iii) other information and data; including without limitation, order
data provided from TSX, CEG and Third Party Contributors.
“Person”
means a natural person, proprietorship, or any corporation,
partnership or organization.
“Receipt of Market Data” means the physical capability,
whether used or not, of receiving Market Data through an Interrogation
Device.
“Schedule”
means a schedule executed by the Subscriber pursuant to this
Agreement.
“Subscriber”
means the Person who has executed this Agreement.
“Supplier”
means a Person who has executed a distribution agreement with TSX
and from whom the Subscriber is in Receipt of Market Data.
“Third Party Contributor” means any Person, other than the
members of CEG, who provides any information to TSX for dissemination by
TSX pursuant to the terms of this Agreement.
“TSX”
means TSX Inc., a corporation continued pursuant to the laws of the
Province of Ontario, Canada.
2.
Non-Professional Definition
For the purposes of this Agreement, “Non-Professional” means any
natural Person who is not a “securities professional”, in their
personal capacity and not as a principal, officer, director, partner,
employee or agent of any business or on behalf of any other Persons. A
“securities professional” means any broker, dealer, investment
advisor or Person, otherwise employed by an organization conducting
professional activities involving the buying and selling of financial
instruments, such as stocks, bonds, options, futures contracts or other
trading vehicles. In addition, a Person shall not be considered
Non-Professional if they are consultants, independent contractors,
software developers or others that use Market Data for any purpose for
profit other than the trading of a personal account. For greater
certainty, a Non-Professional cannot be registered or qualified with:
(a)
a provincial securities commission;
(b)
the Securities Exchange Commission;
(c)
the Commodities Futures Trading Commission;
(d)
any provincial, state or other government securities agency;
(e)
any securities exchange or association; or
(f)
any commodities or futures contract market or association or perform
functions that are the equivalent to those of such
Persons.
3. Subscriber’s Representations And Warranties
The
Subscriber represents and warrants that it is a Non-Professional.
4. Failure To Qualify
(a)
Determination. The Subscriber understands that TSX may determine
at any time that, for any of the following reasons,
the
Subscriber does not qualify as a Non-Professional subscriber:
(i) Supplier made an erroneous initial determination regarding the
Subscriber’s qualification;
(ii)
Supplier discovered a misrepresentation herein;
(iii)
the Subscriber failed to furnish all material information; or
(iv)
the Subscriber failed to update information contained herein.
The
Subscriber understands that following such a determination he/she may
continue to receive Market Data only after
entering
into one or more appropriate agreements with TSX. TSX may deny the
Subscriber the opportunity to enter into
such
agreement(s) if his/her failure to qualify results from wilful
misrepresentations or omissions or from wilful breach of
this
Agreement.
(b)
Retroactive Payment. In the event that such a determination is
based upon any of clauses (ii) through (iv) of section
4(a),
TSX may notify the Subscriber in writing (i) of such determination,
(ii) of the period, as determined by TSX, during
which
the Subscriber received Market Data but did not qualify as a
Non-Professional Subscriber and (iii) of the amount,
calculated
at in accordance with the fees for professional Subscribers, applicable
to such period. Within thirty (30) days of
receipt
of such notice, the Subscriber shall pay such amount to TSX.
5.
License for Use of and Proprietary Interest in Market Data
(a)
During the term of this Agreement. TSX grants to the Subscriber a
non-exclusive, non-transferable license to receive and
use
the Market Data transmitted to it and thereafter to use such Market Data
in accordance with the terms of this
Agreement.
(b) The Subscriber acknowledges and agrees that TSX and/or CEG: (i)
have copyright, sui generis and other proprietary rights in the
Market Data that originates on or derives from markets regulated or
operated by TSX and/or CEG and that such Market Data has been derived
from databases owned by TSX and/or CEG; and (ii) compilation or other
rights in Market Data gathered from other sources. As such the
Subscriber’s use of such Market Data is subject to the limitations set
out herein. The Subscriber further acknowledges and agrees that the
Third Party Contributors have proprietary rights in their respective
Market Data. In the event of any misappropriation or misuse, TSX, CEG or
the Third Party Contributors shall have the right to obtain injunctive
relief for its respective materials.
6.
Data Security
(a)
Transmission Prohibited. The Subscriber shall use the Market Data
only for its individual use. The Subscriber shall not
sell,
lease, furnish, distribute or otherwise permit or provide access to the
Market Data to any other Person without prior
written
approval from TSX. The Subscriber shall not present the Market Data in
any unfair, misleading or discriminatory
format.
(b)
Equipment Security. The Subscriber shall take reasonable security
precautions to prevent unauthorized Persons from gaining access to the
Market Data and the Interrogation Devices, including without limitation
carefully locating and protecting all Interrogation Devices to ensure
compliance with this Agreement. The Subscriber must ensure that any
Person installing or maintaining the Subscriber ‘s Interrogation
Devices complies with all such security requirements.
7.
Data Not Guaranteed
(a)
Warranties/Disclaimer of Warranties. TSX shall endeavour to offer
the Market Data provided as promptly and
accurately
as reasonably practicable. In the event that the Market Data is not
available as a result of a failure by TSX to
perform
its obligations under the Agreement, TSX will endeavour, giving due
regard for the cost, time and effect on other
users,
to correct such failure. TSX expressly disclaims, and the Subscriber
hereby expressly waives, all warranties,
representations,
conditions, covenants or undertakings, express or implied, including
without limitation warranties or
conditions
of merchantability and fitness for a particular purpose, timeliness,
truthfulness, sequence, completeness,
accuracy
and freedom from interruption.
(b)
Limitation of Liability.
(i) TSX shall not be liable to the Subscriber or any other Person for
any loss, damage, cost, expense or other liability or claim (including
without limitation, loss of business profits, trading losses, loss of
anticipated profits, business interruption, loss of business information
or for indirect, special, punitive, consequential or incidental loss or
damage or other pecuniary loss) of any nature arising from any use or
inability to use the Market Data, howsoever caused, including by TSX’s
negligence or reckless or wilful acts or omissions, even if TSX is
advised of such possibilities.
(ii)
TSX shall not be liable to the Subscriber or any other Person for the
unavailability, interruption, delay,
incompleteness or inaccuracy of the Market Data.
(iii)
If TSX is for any reason held liable to the Subscriber or to any other
Person, whether in tort or contract, the
cumulative
liability of TSX to the Subscriber and any other Person claiming through
or on behalf of the
Subscriber
is limited to the greater of:
(A)
one (1) month fees paid by the Subscriber under this Agreement; and
(B)
$500.
8.
CEG and Third Party Contributors Limitations of Liability
(a)
Disclaimer of Warranties. CEG and the Third Party Contributors
make no representations, conditions, warranties,
covenants
or undertakings, express or implied, including without limitation,
warranties or conditions of merchantability and
fitness
for a particular purpose, timeliness, truthfulness, sequence,
completeness, accuracy and freedom from
interruption.
(b)
Limitation of Liability. CEG and the Third Party Contributors
shall not be liable to the Subscriber or any Person for any loss,
damage, cost, expense or other liability or claim, (including without
limitation, loss of business profits, trading losses, loss of
anticipated profits, business interruption, loss of business information
or for indirect, special, punitive, consequential or incidental loss or
damage or other pecuniary loss) of any nature arising from any use or
inability to use the Market Data, howsoever caused, including by CEG’s
or the Third Party Contributors’ negligence or reckless or wilful acts
or omissions, even if CEG or the Third Party Contributor advised of such
possibilities.
9.
Dissemination, Discontinuance or Modification
TSX
is not obligated to continue to provide any type of Market Data in the
present form or configuration or under the current
specifications
or requirements or to continue to use existing communications
facilities. TSX, in its sole discretion, may from time to
time
make additions to, deletions from or modifications to the Market Data or
manner of disseminating such Market Data.
10.
Indemnification
The Subscriber shall indemnify and hold harmless and defend TSX, CEG
and/or Third Party Contributors, their directors, officers, employees
and agents from and against any and all suits, claims, proceedings at
law or in equity, and any and all liability, loss or damage, including
reasonable solicitor’s fees, arising out of or in connection with (i)
any claim made by any Person in respect of or as a result of any
non-compliance by the Subscriber with the terms and conditions of this
Agreement; or (ii) any claim made by any Person arising out of or
related to the Subscriber’s receipt and use of the Market Data,
whether authorized or unauthorized under this Agreement, including
without limitation any claim in respect of delays in providing, any
errors in or omissions from the Market Data, or the transmission and
delivery thereof, or the termination of, or the failure to supply any of
the Market Data to a Supplier.
11.
Term, Termination and Use of Market Data Following Termination
(a)
Either party may terminate this Agreement on thirty (30) days prior
written notice.
(i)
If any member of CEG or any Third Party Contributor ceases to provide
trading information to TSX, this
Agreement
will immediately terminate in respect of such CEG Member or Third Party
Contributor.
(b)
Upon termination of this Agreement the Subscriber shall cease using all
Market Data.
12.
Entire Agreement; Modifications
This
Agreement constitutes the entire agreement between the parties regarding
this subject matter and supersedes each previous
Agreement
between the Subscriber and TSX. The Subscriber needs to submit only one
Agreement in respect of Market Data even
if
the Subscriber is receiving Market Data from multiple Suppliers. Either
party may only modify this Agreement by a document in
writing
signed by both parties, other than a Schedule which may be executed by
the Subscriber.
13.
Assignments
The Subscriber shall not assign all or part of this Agreement without
TSX’s prior written consent.
14.
Governing Law; Construction
This
Agreement shall be governed and interpreted by the laws of the Province
of Ontario, Canada. In prohibiting the Subscriber in
doing
any act, this Agreement also prohibits the Subscriber from doing the act
indirectly (e.g., by causing or permitting any other
Person
to do the act). Headings are provided for convenience of reference only
and shall not affect the construction or
interpretation
of this Agreement.
15.
Notices; Notification of Changes
TSX
Inc.
The
Exchange Tower
130
King Street West
Toronto
ON M5X 1J2
Attention:
TSX Markets
Each
party shall notify one another in writing of any address change. The
Subscriber shall promptly send TSX a written notice of
any
change in the information it provided pursuant to this Agreement and
other information relating to the Receipt of Market Data.
16.
TSX Authority
TSX
represents that it has the authority to furnish the Market Data on the
terms and conditions set out in this Agreement.
17.
Provisions to survive termination
The
Terms and sections 5(b), 7, 8, 10, 11, 14, 17 and 18 will survive the
termination of this Agreement for any reason.
18.
Third Party
The
Subscriber acknowledges and agrees that the Third Party Contributors are
an express third party beneficiary of this Agreement
and
the such Third Party Contributor may enforce any rights granted to it by
this Agreement in its own name against the Subscriber.
19.
Contract in English language
The
parties agree that this Agreement be drawn up in English only but
without prejudice to any such documents or instruments
which
may from time to time be drawn up in French only, or in both French and
English. Les parties aux présent conf irment leur
volonté
avec le présent contrat de même que tous autres documents s'y
rapportant soient rédigés en anglais seulement, mais sans
préjudice
cependant à tous tels documents que pourrant à l'occasion être rédigés
en français ou à la fois en français et en anglais.
The parties have signed this Agreement effective as of: as of
,
[Subscriber] TSX By _______________ By
_______________
Name
Name _________________________
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