Last Updated: 12 January 2016
CME SPOT MARKET TRADING AGREEMENT
This CME Spot Market Trading Agreement (this “Agreement”) sets out the terms on which Chicago Mercantile Exchange Inc., a Delaware corporation whose principal office is located at 20 South Wacker Drive, Chicago, Illinois 60606 (“CME”) will provide the user (“User”) with access to CME's electronic auction platform know as CME Direct Auction Platform (the “Auction Platform”). Each of User and CME is a “Party” and together, the “Parties.”
1. Definitions and Interpretation.
a. In this Agreement, unless the context requires otherwise, capitalized words and phrases shall have the same meaning as set out in the CME Spot Market Trading rules as they may be amended from time to time in the CME rulebook (the “Rules”).
b. In this Agreement, unless otherwise specified:
(i) the recitals and the headings are inserted for convenience only and do not affect the interpretation of this Agreement;
(ii) references to clauses are to clauses of this Agreement; and
(iii) references to this Agreement or any other document are to that document as from time to time amended, restated, novated or replaced, however fundamentally.
c. In the event of any conflict or inconsistency between this Agreement and the Rules, the Rules shall take precedence.
2. Obligations of the User.
a. With effect from the date on which this Agreement is entered into, the User agrees to:
(i) comply with and be bound by the Rules and all rights, obligations and liabilities pursuant to the Rules as if the Rules were set out in this Agreement;
(ii) be subject to and bound by all transactions that are created as a result of the process set out in the Rules;
(iii) be subject to any requirement imposed as a result of a request, decision, direction, sanction, requirement or discretion that the Auction Platform is entitled to make, exercise or impose pursuant to the Rules;
(iv) be responsible for the acts and omissions of its representatives; and
(v) submit to the jurisdiction and be bound by any decision, determination, direction, sanction, requirement or award of any arbitral tribunal, court or other body appointed or formed pursuant to the Rules or that has jurisdiction over any matter in accordance with the Rules.
b. User understands that each order submitted to the Auction Platform may result in it being required to enter into one or more binding transactions with one or more other participants of the Auction Platform. The User shall assume full financial and performance responsibility for all transactions created as a result of the process set out in the Rules.
3. Term and Termination.
a. This Agreement shall commence as of the Effective Date and shall continue in effect until terminated by either Party in accordance with this Agreement.
b. User may terminate this Agreement immediately upon Notice to CME.
c. CME may terminate this Agreement pursuant to the Rules.
4. Representations and Warranties.
a. The User represents and warrants that:
(i) it is duly incorporated and validly existing under the laws of its country or state of incorporation;
(ii) it has the capacity, and has taken all necessary corporate action to authorize it, to execute the Agreement and to perform the obligations it is expressed to assume under it, the Rules and each transaction to which it is required to become a party;
(iii) it has duly executed the Agreement and its execution does not, and its performance of its obligations under this Agreement, the Rules and each transaction to which it is required to become a party, will not contravene or violate its governing documents, any applicable law, or the rights of any third parties under agreements to which it is party;
(iv) subject to any general principles of law limiting obligations, the obligations assumed by it under this Agreement, the Rules and each transaction are legal, valid, binding and enforceable obligations.
b. The User undertakes to notify CME immediately in the event of its ceasing to be able to make any of the representations, warranties and undertakings set out in clause
c. Each representation and warranty set out in clause 4(a) shall be deemed to be repeated on each Business Day during the term of the Agreement.
a. Affiliates. Notwithstanding any other provision of this Agreement, CME may fulfill its obligations under this Agreement either itself or through any of its affiliates.
b. Compliance With Laws. Each Party will comply with all applicable laws, rules and regulations in performing under this Agreement.
c. Assignment. This Agreement may not be assigned in whole or in part by any Party without the prior written consent of the other Parties; provided, however, that CME may assign this Agreement and its rights and obligations hereunder, in their entirety, to an affiliate who agrees in writing to be bound by the terms and conditions of this Agreement or a successor-in-interest of CME in connection with a merger or sale of all or substantially all of CME’s assets without the prior written consent of User.
d. Benefits of Agreement. This Agreement shall be binding upon, and inure to the benefit of, the Parties and their respective successors and permitted assigns and their respective affiliates.
e. Notices. Except as otherwise provided in this Agreement, all notices (the “Notices”) delivered with respect to this Agreement shall be in writing and either: (i) hand delivered or forwarded by registered or certified mail; (ii) transmitted by facsimile; or (iii) sent via electronic mail, in either case to the relevant address, e-mail address or facsimile number provided via registration with CME, except that User may notify CME in writing in accordance with the provisions of this clause of additional persons and/or departments for receipt of Notice by electronic mail or facsimile transmission or such other address as otherwise required by the Rules. Service of any such Notice shall be deemed to have been made upon the earlier of actual receipt or in the case of first class mail on the third business day after mailing, in the case of facsimile or email transmission when confirmation has been generated that the Notice was delivered to the recipient.
f. Modification; Waiver. Neither this Agreement nor any terms or provisions of this Agreement may be changed, waived, discharged, or terminated orally, or in any manner other than by an instrument in writing signed by the Party against which the enforcement of the change, waiver, discharge, or termination is sought.
g. Severability. If any provision of this Agreement is deemed to be illegal or unenforceable by any court of competent jurisdiction, (i) such provision shall be deemed to be severable from the remainder of this Agreement, (ii) the effect of such determination shall be limited to such provision to the extent reasonably practicable, and (iii) the validity, legality and enforceability of such provision in any other jurisdiction shall not in any way be affected or impaired thereby.
h. Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original.
i. Governing Law. This Agreement shall be governed by and shall be construed in accordance with the laws of the State of Illinois, without giving effect to the conflict of laws principles thereof.
j. Entire Agreement. This Agreement, together with any ancillary agreements contemplated herein, contains the entire agreement of the Parties with respect to its subject matter, and supersedes all previous agreements and understandings among the Parties with respect to its subject matter.
User hereby acknowledges that it has read, agrees to and shall be bound by all of the terms and conditions contained in this Agreement and the Rules.