General Participant Terms and Conditions
THIS PARTICIPANT AGREEMENT (“Terms and Conditions”) sets out the terms and conditions under which
CME Platforms Inc., a corporation organized and existing under the laws of the State of Delaware (“CME Platforms”) offers its auction platform (the “Auction Platform”) to Participants (as defined in the Auction Policy published by CME Platforms, as it may be amended from time to time, which will govern participation in the Auction Platform (the “Provisions”)).
Each of CME Platforms and the Participant are herein referred to as a Party, and together the Parties.
These Terms and Conditions, as they may be amended from time to time, are published on the CME Platforms website (https://www.cmegroup.com/trading/energy/auctions-us-crude-oil.html) or any other website identified by CME Platforms, and are to be read in conjunction with the Provisions, in the form published on the same CME Platforms website.
(A) CME Platforms is operating the Auction Platform in accordance with the Provisions.
(B) The Participant wishes to participate in the Auction Platform and agrees to be subject to these Terms and Conditions.
IT IS AGREED as follows:
1 Definitions and interpretation
1.1 In these Terms and Conditions, unless the context requires otherwise, capitalized words and phrases shall have the same meaning as set out in the Provisions, as they may be amended from time to time.
1.2 In these Terms and Conditions, unless otherwise specified:
1.2.1 the table of contents, the recitals and the headings are inserted for convenience only and do not affect the interpretation of these Terms and Conditions;
1.2.2 references to clauses are to clauses of these Terms and Conditions; and
1.2.3 references to these Terms and Conditions or any other document are to that document as from time to time amended, restated, novated or replaced, however fundamentally.
1.3 In the event of any conflict or inconsistency between these Terms and Conditions and the Provisions, the Provisions shall prevail.
2 Obligations of the Participant
2.1 With effect from the date on which the Participant is granted the right to participate in the Auction Platform, the Participant agrees to:
2.1.1 comply with and be bound by the Provisions and all rights, obligations and liabilities pursuant to the Provisions as if the Provisions were set out in these Terms and Conditions;
2.1.2 be subject to and bound by all Transactions that are created as a result of the process set out in the Provisions;
2.1.3 be subject to any requirement imposed as a result of a request, decision, direction, or requirement that CME Platforms is entitled to make, exercise or impose pursuant to the Provisions;
2.1.4 be responsible for the acts and omissions of its Representatives as set out in the Provisions; and
2.1.5 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 Provisions or that has jurisdiction over any matter in accordance with the Provisions.
2.2 The Participant understands that each Bid submitted to the Auction Platform during any of the Auction Runs 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 Participant further understands that Binding Transactions shall be settled pursuant to the contractual arrangements separately established between the Seller and Buyer, pursuant to Provision 3.2.1(j). The Participant shall assume full financial and performance responsibility for all Transactions created as a result of the process set out in the Provisions.
2.3 To the extent possible, Participant agrees to pay all sums due to CME Platforms in connection with the Auction Platform and these Terms and Conditions through direct debit from a United States based bank. If the Participant does not have a relationship with a United States based bank, the Participant agrees to pay CME Platforms within 30 days of billing all sums due to CME Platforms in connection with the Auction Platform and these Terms and Conditions.
2.4 The Participant understands that the Price determined as a result of an Auction and the Fees due to CME Platforms in connection with the Auction Platform and these Terms and Conditions are exclusive of any applicable taxes. The Participant further understands that CME Platforms is a service being provided via CME Platforms’ infrastructure in the state of Illinois. Participants agree to treat CME Platforms’ service accordingly for tax purposes. The Participant agrees that it is solely responsible for remitting any applicable taxes to the appropriate Regulatory Authority.
3.1 These Terms and Conditions shall terminate in accordance with the Provisions.
3.2 The obligations set out and referred to in Provision 2.7 (regarding severability) shall survive the termination of these Terms and Conditions.
4 Representations and warranties
4.1 The Participant represents and warrants that:
4.1.1 it is duly incorporated and validly existing under the laws of its country of incorporation;
4.1.2 it has the capacity, and has taken all necessary corporate action to authorize it, to comply with these Terms and Conditions, and to perform the obligations it is expressed to assume under it, the Provisions and each Transaction to which it is required to become a party;
4.1.3 it has duly executed any documents provided to it in connection with its being approved as a Participant, and its execution thereof does not, and its performance of its obligations under these Terms and Conditions, the Provisions and each Transaction to which it is required to become a party, will not contravene or violate its constitutional documents, any Applicable Law, or the rights of any third parties under agreements to which it is party;
4.1.4 the Provisions and each Transaction are legal, valid, binding and enforceable obligations;
4.1.5 each Bid and any resulting Transaction constitutes a bilateral commercial merchandizing transaction for a forward or spot contract, exempt from the jurisdiction of the Commodity Futures Trading Commission, where the Participant intends to either make or take delivery and any mutually offsetting obligations emanating from a Transaction are handled in accordance with applicable rules and regulations, provided that where a Participant is a Singapore Participant, each Bid and any resulting Transaction shall constitute a Spot Contract. In any event, Participant agrees that a cash settlement is unavailable as a method of final settlement in the case of the resale or repurchase being made by the same parties.
4.2 The Participant undertakes to notify CME Platforms immediately in the event of its ceasing to be able to make any of the representations, warranties and undertakings set out in clause 4.1.
4.3 Each representation and warranty set out in clause 4.1 shall be deemed to be repeated on each Business Day whilst it remains a Participant.
5.1.1 Unless otherwise specified in the Provisions, a Notice or other communication given to a Party under or in connection with these Terms and Conditions shall be in writing in English and sent by any of the methods set out below and shall be deemed to be given by the date set out below.
Date on which Notice deemed given
Email (with the Notice attached in PDF format)
If sent to the email address provided by the recipient before 5pm local time of the recipient, on that Business Day, and otherwise on the next Business Day
When left at the relevant address provided by the recipient
Recorded or special delivery, or the nearest local equivalent in the jurisdiction of the sender
Two (2) Business Days after posting
Recorded or special delivery airmail, or the nearest local equivalent in the jurisdiction of the sender
Six (6) Business Days after posting
5.1.2 Unless otherwise specified in the Provisions, a Notice or other communication given to a Party under or in connection with these Terms and Conditions shall be sent to the address provided by that Party at the time of the Participant being accepted by CME Platforms.
5.1.3 CME Platforms may also give a Notice or other communication to the Participant by posting it on the CME Platforms website, or any other a website which it has identified to the Participant.
5.1.4 Each Party shall promptly notify the other of any changes to its address or other contact details.
5.2.1 Subject to clause 5.2.2, no purported variation of these Terms and Conditions shall be effective until it is posted by CME Platforms on its website and is identified by CME Platforms as the then current version of these Terms and Conditions.
5.2.2 CME Platforms shall be entitled to amend the Provisions. CME Platforms shall be entitled to make such amendments to these Terms and Conditions as it considers necessary or desirable to reflect amendments made to the Provisions, by providing not less than five (5) Business Days’ notice of any such amendments. The Participant’s continued use of the Auction Platform following an amendment to the Provisions or these Terms and Conditions taking effect shall constitute its acceptance of such amendment.
5.3.1 CME Platforms may freely assign, without the need of obtaining consent of the Participant, this Agreement or delegate its obligations under this Agreement to any of its Affiliates or to any person or entity who succeeds to substantially all of CME Platform's assets and/or business.
5.4.1 Provision 2.8 (regarding waiver) shall apply to these Terms and Conditions, save that all references to the Provisions shall be interpreted as references to these Terms and Conditions.
5.5.1 Provision 2.7 (regarding severability) shall apply to these Terms and Conditions, save that all references to the Provisions shall be interpreted as references to these Terms and Conditions, or each part of it as the case may be.
5.6 Entire Agreement
5.6.1 These Terms and Conditions and the Provisions, together with any riders hereto between CME Platforms and a Seller, constitute the entire agreement between the Parties and supersede any prior agreement, understanding, undertaking or arrangement between the Parties relating to the Auction Platform.
5.6.2 The Participant acknowledges and agrees that, in seeking acceptance as a Participant, it does not rely on any statement, representation, assurance or warranty of any person (whether a Participant in the Auction Platform or not and whether made in writing or not) other than as expressly set out in these Terms and Conditions or the Provisions.
5.6.3 The Participant agrees that it shall have no right or remedy (other than for breach of contract) in respect of any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these Terms and Conditions or the Provisions.
5.6.4 Nothing in these Terms and Conditions shall exclude or limit the liability of either Party which cannot by law be excluded.
5.7 Relationship of Parties
5.7.1 Nothing in these Terms and Conditions is intended to create a partnership or legal relationship of any kind that would impose liability on one Party for the act or failure to act of the other Party, or to authorize either Party to act as agent for the other Party. Neither Party shall make representations, act in the name of or on behalf of, or otherwise bind, the other Party.
5.8 Contractual Agreement
5.8.1 These Terms and Conditions are binding upon CME Platforms and the Participant as they would be if set out in a written contract, executed on behalf of both parties.
5.9 Service of process
5.9.1 If the Participant does not have an office or place of business in the United States, it shall irrevocably authorize and appoint such other person having an office or place of business in the United States as the Participant may wish by giving notice in writing to CME Platforms (the Process Agent) to accept on its behalf service of all legal process arising out of or in connection with any arbitration proceedings or other related proceedings before the New York courts commenced in connection with these Terms and Conditions. Further, the Participant agrees that failure by the Process Agent to notify the Participant of the process will not invalidate the proceedings concerned.
6 Governing law and arbitration
6.1 As between a Seller and Buyer, Transactions shall be governed by the bilateral contractual arrangements in place between the Seller and Buyer that enable those Transactions, as required per Provision 3.2.1(j), including as to which governing law applies to any disputes arising between a Seller and Buyer regarding a Transaction.
6.2 Provision 2.9 (regarding governing law and arbitration) shall apply to these Terms and Conditions save that any reference to the Provisions shall be interpreted as a reference to these Terms and Conditions.
These Terms and Conditions have been entered into on the date on which the Participant is approved by CME Platforms to participate in the Auction Platform.