LME MARKET DATA TERMS & CONDITIONS
These Terms govern the Customer’s use of the Service. Capitalized terms used in these Terms have the meanings specified in Clause 1.1 below unless otherwise defined.
1.1. In this Agreement the following terms shall have the following definitions:
|Affiliate||In relation to a Party, any Subsidiary or Ultimate Holding Company of that Party and any other Subsidiary of that Ultimate Holding Company.|
||The Application Form (provided that the LME has approved the application in writing), these Terms and the Fee Schedule, as amended from time to time in accordance with the terms of this Agreement.|
|Application Form||The online registration form available on LME Live to be used in an application to access and use the Information according to these Terms, in which the Customer makes such an application, which includes all completed details required by the LME.|
|Authorised User||means the employees and/or agents of the Customer or its Affiliates who have been identified as Authorised Users in the Application Form.|
|Authorised User’s Addresses||The office addresses of the Authorised Users as specified in the Application Form.|
|Commencement Date||The date on which the LME makes the Service available to the Customer.|
|Customer or the Customer||The person (whether individual, partnership or incorporated body) listed in the Application Form who is the counterparty to the LME under this Agreement, provided that the LME has approved in writing the Customer’s application.|
|Derived Information||Data which is created as a result of the Customer receiving the Information and then processing the Information, changing the Information and/or combining the Information with other data, for example (without limitation) in constructing or calculating the value of any new price reference or data, index or indexed products.|
|Device||Any unit of equipment, fixed or portable, that receives, accesses or displays the Information in visible, audible or other comprehensible form.|
|Fees||The fees payable by the Customer to the LME in accordance with Clause 4.1 and the Fee Schedule, as amended from time-to-time in accordance with this Agreement.|
|Fee Schedule||The schedule to this Agreement listing the Fees and the conditions for payment of the Fees as notified by the LME and as amended by the LME from time to time in accordance with the terms of this Agreement.|
|First Payment Date||As defined in the Fee Schedule.|
|Holding Company||As defined in Clause 1.2.3.|
|Information||Any information in any form relating to the LME market, including, without limitation, market data prices, volumes, quotations, indices, time stamps, news, and other information relating to contracts and other instruments traded on any platform operated by the LME.|
|Intellectual Property Rights||All intellectual property, including patents, utility models, trade and service marks, trade or business names, domain names, rights in designs, copyrights, moral rights, topography rights, and rights in databases and rights in trade secrets and confidential information, in all cases whether or not registered or registrable in any country for the full term of such rights including any extension to or renewal of the terms of such rights and including registrations and applications for registration of any of these and rights to apply for the same and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these anywhere in the world.|
|LME or the LME||The London Metal Exchange.|
|LME Holidays||Such days the LME is not open for business as specified on the LME’s website from time to time.|
|LMElive||A website operated by the LME for the provision of the Information to the Customer|
|LME Group||The LME and its Affiliates|
|Losses||In respect of any matter, event or circumstance includes all losses, claims, demands, actions, proceedings, damages and other payments, costs, expenses or other liabilities of any kind.|
|Parties||The LME and the Customer.|
|Payment Date||As defined in the Fee Schedule.|
|Service||The provision of the Information to the Customer via LMElive using the method(s) of delivery specified in the Fee Schedule.|
|Service Hours||From 12 midnight to 8.00pm UK time on each day (excluding LME Holidays, Saturdays and Sundays) on which banks in London are open for general business.|
|Software||Any software supplied by the LME or any third party acting on behalf of the LME to the Customer in connection with the access or use of the Information.|
|Subsidiary||As defined in Clause 1.2.3.|
|Term||As defined in Clause 5.1.|
|Terms||These general terms and conditions regarding the supply and use of Information, as amended from time to time in accordance with the terms of this Agreement.|
|Trial Period||The period of days beginning on the Commencement Date and ending 30 days thereafter, provided the Customer elects to enter into a Trial Period on the Application Form.|
|Ultimate Holding Company||A Holding Company which is not also a Subsidiary.|
1.2. In these Terms (except where the context otherwise requires):
1.2.1. References to the words “includes” or “including” will be construed without limitation to the generality of preceding words;
1.2.2. Words or phrases importing the singular include the plural and vice versa; and
1.2.3. A company is a “Subsidiary” of another company, its “Holding Company”, if that other company holds directly or indirectly 50% or more of the voting rights in the company and/or exercises effective control over it.
2. RIGHTS GRANTED TO THE CUSTOMER
2.1. Subject to the other provisions of the Agreement, the LME (i) agrees to provide the Service to the Customer on a non-exclusive basis; and (ii) grants to the Customer by way of licence the rights to access and use the Information as permitted by the Agreement.
2.2. By submitting an applicati on to the LME in the Application Form, the Customer agrees to be bound by these Terms in relation to the Service.
2.3. The Customer acknowledges and agrees that:
2.3.1. the LME Group has exclusive and valuable property rights in and to their own Information;
2.3.2. whilst it is not in the public domain, such Information constitutes valuable confidential information, trade secrets and/or proprietary rights of the LME Group; and
2.3.3. until it is in the public domain, Customer would have no rights or access to such Information in the absence of the agreement of the LME to offer Customer access to the Information in accordance with these Terms.
3. RESTRICTIONS ON USE BY THE CUSTOMER
3.1. Unless specifically agreed with the LME in writing, the Customer shall not, and shall not permit any of its employees to:
3.1.1. copy, modify, reverse engineer, reverse assemble or reverse compile the Information or the Service;
3.1.2. archive the Information or create Derived Information from the Information;
3.1.3. distribute, rent, sell, retransmit, redistribute, release, license, communicate (orally, in writing, electronically or otherwise) or otherwise furnish, or permit to be communicated, redistributed or otherwise furnished, in any format, the Information or Derived Information to any third party except the Authorised Users;
3.1.4. allow any third party to take, directly or indirectly, any of the Information from the Authorised User’s Addresses;
3.1.5. allow any third party to access the Information through the use of the user IDs and passwords allocated to Customer and the Authorized Users in connection with this Agreement;
3.1.6. whilst the Information is confidential information, use (or permit to be used) the Information, 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 the LME or its Affiliates;
3.1.7. whilst the Information is confidential information, use (or permit to be used) the Information, or any part of it, in any other manner which is or may be directly or indirectly competitive with the operations of the LME or its Affiliates;
3.1.8. permit any of its employees other than Authorized Users to access the Information or use the Service without the express written consent of the LME; and
3.1.9. use the Information for any illegal purpose.
3.2. The Customer shall adopt and enforce any policy that is reasonably necessary to prevent any of the events specified in clause 3.1 from occurring.
3.3. The Authorized Users shall access and use the Information exclusively for Customer’s own internal business activities (including the activities of Customer’s Affiliates).
3.4. The Customer shall use best efforts to ensure that the Authorised Users maintain sole control and possession of, and sole access to, the Information, and abide by any other limitations on use of the Information or the Service that the LME may specify.
3.5. The Customer’s access to and use of the Information may be monitored by the LME for its own purposes (including, without limitation, for purposes of monitoring levels of activity and for purposes of maintaining the functional and operational integrity of the Exchange and for purposes of complying with applicable laws and regulations) and not for the benefit of Customer.
4.1. Subject to Clause 4.2 below, in consideration of the supply of the Information and the right to use it in accordance with the terms of this Agreement, the Customer shall pay to the LME the Fees during the Term in accordance with the provisions of the Fee Schedule.
4.2. During the Trial Period, the LME agrees to waive the Fees that would normally be payable by the Customer for the Service. A Customer and its Affiliates shall be entitled to only one Trial Period between them in any twelve month period.
4.3. The Customer has no right under this Agreement to set off or to make any reduction or adjustment of Fees due to the LME under the Agreement by reason of any claim for overpayment in respect of previous payments other than for overpayment in respect of a maximum of three (3) months. Any claim for overpayment must be made to the LME within twelve (12) months of the alleged overpayment and the LME reserves the right to refuse any claims made after the twelve month period.
4.4. In the event that any amounts to be paid to the LME are subject to withholding tax in the country in which the payments are made, the LME agrees that the Customer may withhold the minimum necessary amount, provided that the Customer at the end of each year promptly provides the LME with all necessary receipts and other documents to enable the LME to claim and receive a credit equivalent to the amount withheld.
4.5. The LME shall not unfairly discriminate between its Customers with respect to the Fees payable for the Information. The LME may change the Fees upon thirty (30) days’ written notice, with changes to be effective on the first day of the month immediately following the end of the written notice period or on a later date specified in the written notice.
4.6. If the Customer objects to the proposed change of Fees specified in Clause 4.5, the Customer has the right to terminate the Agreement by written notice, the termination to take effect on the date of the proposed change or ten days following the date the notice of termination is sent, whichever is the later.
4.7. Other than following material breach by the LME, if the Customer terminates the Agreement any pre-paid Fees or charges will be retained by the LME.
5. Term and Termination
5.1. This Agreement shall take effect on the Commencement Date and continues automatically on a monthly basis until terminated by either Party in accordance with this Agreement (the period from and including the Commencement Date to and including the date of Termination being the “Term”).
5.2. Subject to Clause 5.1 above, this Agreement is ongoing on a monthly basis and continues until terminated by:
5.2.1. the LME by giving the Customer at least thirty (30) days’ notice in writing; or
5.2.2. the Customer in accordance with the provisions of the Fee Schedule.
5.3. Notwithstanding anything else contained in this Agreement, the LME may suspend the performance of or terminate this Agreement and the Customer’s licence to use the Information immediately on giving written notice to the Customer if the Customer:
5.3.1. (a) where the Customer agrees to pay sums due to the LME under this Agreement by credit or debit card, fails to pay any amount due to the LME under the terms of this Agreement and that sum remains unpaid for five (5) days from the date of receipt by the Customer of written notice from the LME demanding payment of the unpaid sum; or
(b) where the Customer agrees to pay any sums due to the LME under this Agreement by any other method, fails to pay any amount due to the LME under the terms of this Agreement and that sum remains unpaid for thirty (30) days from the date of receipt by the Customer of written notice from the LME demanding payment of the unpaid sum;
5.3.2. commits any other material breach of any term of this Agreement, or, in the case of a breach which is not material and which is capable of being remedied, has failed, within thirty (30) days after the LME has requested the Customer in writing to do so, to remedy the breach; or
5.3.3. has a receiver or administrative receiver appointed over the Customer or over any part of its undertaking or assets or a resolution is passed for winding-up (except for the purpose of a bona fide scheme of solvent amalgamation or reconstruction), or if a court of competent jurisdiction makes an order to that effect, or if the Customer becomes subject to an administration order, or if it enters into any voluntary arrangement with its creditors, or if any similar process to any of the above is begun in any jurisdiction, or if the Customer ceases or threatens to cease to carry on business.
5.4. The LME shall have the right to terminate the Agreement under Clause 5.3 in the event of any act or omission of, or the occurrence of an event in connection with, any of the Customer's Group or Authorised User, which if committed by the Customer or occurring in connection with the Customer would give rise to a right to terminate under Clause 5.3.
5.5. Following the termination of the Agreement, the Customer shall, if requested to do so by the LME:
5.5.1. Either: (i) return to the LME, or (ii) destroy, all copies (whether in hard copy or electronic form) of the Information, the Software and other materials related thereto then in Customer’s possession or under Customer’s control, without keeping any copy or transcript thereof;
5.5.2. Permanently remove the Software, the Information and any other materials related thereto from any and all Devices upon which such materials are installed; and
5.5.3. Certify to the LME in writing that Customer has fully complied with the two requirements specified in Clauses 5.5.1 and 5.5.2 above.
5.6. Termination of this Agreement shall not affect the accrued rights and/or liabilities of the Parties arising out of this Agreement as at the date of termination and all clauses which are expressed to survive this Agreement or which by implication, shall remain in full force and effect.
6.1. Upon request in writing from the LME, Customer agrees to furnish promptly to the LME any information or report that it reasonably requests and that is reasonably related to access to the Information and use of the Information by the Customer and the Authorised Users.
7. Right of Inspection and Audit
7.1. During regular business hours, and upon reasonable notice to the Customer, any persons designated by the LME may have access to the offices or locations of the Customer and/or the Authorised Users, in order to observe access to the Information and use made of the Information and to examine and inspect any Devices, attachments or apparatuses used as well as any books and records maintained by the Customer in connection with access to or use of the Information.
8. Changes to the Information, Service and/or the Agreement
8.1. The LME may, in its sole discretion, with or without cause or prior notice to Customer, alter, vary or replace the Information or the Service or temporarily or permanently cease to make the Information available or suspend, terminate or restrict Customer’s access to the Information. This includes a right to undertake maintenance and software reliability works (and therefore suspend the Service) outside of the Service Hours without prior notice to the Customer. During such periods customers will not be able to, amongst other things, process subscription changes including cancellations and amendments to product and user requirements.
8.2. The LME reserves the right to update or amend this Agreement or any part of it as a consequence of new policies or the introduction of new services. Save as in respect of the Fees (to which the provisions of Clauses 4.5 and 4.6 shall apply), if such a change occurs, the LME shall give the Customer not less than sixty (60) days’ prior written notice. The Customer will be deemed to have accepted the proposed changes unless the Customer notifies the LME of its objection in writing by no later than thirty (30) days before the date the changes are due to take effect. If the Customer does not accept the new Terms & Conditions, it shall be entitled to terminate this Agreement by written notice to the LME to take effect from the date such new Terms & Conditions take effect.
9. Customer’s Representations and Warranties
9.1. The Customer warrants and represents that:
9.1.1. all information relating to it and the Authorised Users stated in the Application Form and any information submitted to the LME together with the Application Form as part of the Customer’s application is true, accurate and complete; and
9.1.2. Customer does not and does not intend to engage in the business of distributing the Information.
10. Limitations on Liability
10.1. The Customer acknowledges and agrees that:
10.1.1. the Information is provided on an “as is” basis and that all statements and representations (other than fraudulent misrepresentation) warranties, terms, limitations, including any implied by statute, consumer law or otherwise, are hereby excluded to the maximum extent permissible by law;
10.1.2. the provision of Information is made with equipment, communications, devices, and/or leased lines not owned or operated solely by the LME;
10.1.3. the LME will not be liable to the Customer or any other person for any delay, inaccuracy, error or omission of any kind in the Information or for any resulting Losses, unless it is shown the act or omission by the LME was in bad faith;
10.1.4. the LME will not be liable to the Customer or any other person for any Losses suffered or incurred by the Customer or any other person arising from any unauthorised access to the Information or any other misuse of the Information, unless such access or misuse was the result of an act of bad faith by the LME;
10.1.5. save as a result of bad faith or as expressly provided in these Terms, the LME will not be liable in contract, tort (including negligence and breach of a statutory duty) or otherwise to the Customer, or to other persons directly or indirectly making use of the Information, 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 Information;
10.1.6. The LME’s aggregate liability for any Losses suffered or incurred by the Customer under this Agreement will be limited in respect of each claim or series of connected claims to the direct Losses suffered by the Customer (excluding any indirect or consequential Losses) and will not exceed the amount of Fees paid by the Customer over the preceding 12 months prior to the circumstances giving rise to the claim or series of claims; and
10.1.7. The LME shall not be responsible or liable for the operation, performance or reliability of any hardware, software, telephone lines or other equipment required to run LMElive which is owned or operated by the Customer.
10.2. The Customer indemnifies the LME and their respective directors, officers, employees and agents against all Losses suffered or incurred by the LME, its Affiliates or their licensors in connection with:
10.2.1. any breach of this Agreement by the Customer or its Authorised Users or any act or omission on the part of the Customer or its Authorised Users in contravention of this Agreement;
10.2.2. the infringement (or alleged infringement) of the LME’s Intellectual Property Rights in the Information arising from the access or use of the Information by the Customer or its Authorised Users other than as permitted by this Agreement.
10.3. This clause 10 shall survive termination of the Agreement for whatever reason.
11. Intellectual Property Rights
11.1. The Intellectual Property Rights in the Information shall be and remain vested in the LME or its licensors. The Customer acknowledges the LME’s and its licensor's ownership of the Information and agrees that neither receipt of the Information by the Customer nor use of the Information by the Customer has any effect on the Intellectual Property Rights of the LME and its licensors.
11.2. This Agreement does not involve the transfer of any Intellectual Property Rights owned by or licensed to the LME.
11.3. Unless specifically authorised by the LME in writing, the Customer shall not use or register any trade mark which is identical or similar to any trade mark, whether registered or unregistered, of the LME or Affiliates.
11.4. This Clause 11 shall survive termination of the Agreement for whatever reason.
12.1. The LME will not be liable for any delay or failure to meet its obligations under this Agreement due to any cause outside its reasonable control and which is neither an intentional act nor an act of gross negligence by the LME; such causes shall include governmental order, war, electronic malfunction, act of God or government, flood, fire, act of terrorism, emergency, legal or regulatory requirement
12.2. If any part, term or provision of this Agreement is held illegal, invalid or unenforceable, the validity or enforceability of the remainder of the Agreement is not affected.
12.3. Headings are for convenience only and do not affect the interpretation of the Agreement.
12.4. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof and supersede all proposals, representations or prior agreements, whether oral or in writing, relating to the receipt and use of the Information. Each Party acknowledges that it has not, in agreeing to enter into this Agreement, relied on any representation, warranty or undertaking not expressly incorporated in it. Each Party waives all rights and remedies which, but for this Clause 12.4, might otherwise be available to it in respect of any such representation, warranty or undertaking, provided that nothing in this clause shall exclude any liability for fraud
12.5. The Customer may not assign any right or obligation of this Agreement without the prior written consent of the LME.
12.6. All notices relating to this Agreement (other than service of legal process) will be sent by registered post, fax, e-mail or delivered in person to the addresses specified in the Application Form or to such other addresses as may be notified by either Party in writing to the other (or alternatively the LME may notify the Customer of a change in its address by posting such address on LMElive). Notices will be deemed to be received on proof of delivery.
12.7. All service of legal process relating to this Agreement will be effected by registered post, fax or delivered in person to the addresses specified in the Application Form or to such other addresses as may be notified by either Party in writing to the other (or alternatively the LME may notify the Customer of a change in its address by posting such address on LMElive). Notices will be deemed to be received on proof of delivery.
12.8. Nothing in this Agreement shall be deemed to constitute a partnership between the Parties nor constitute either Party the agent or employee of the other for any purpose.
12.9. A person who is not a party to this Agreement may not enforce any of its terms under the Contracts (Rights of Third Parties) Act 1999.
13. Governing Law and Jurisdiction
13.1. This Agreement shall be governed by the laws of England and Wales and the parties shall submit to the non-exclusive jurisdiction of the courts of England and Wales.
1. The Fees payable are dependent on the service package subscribed to by the Customer (for more information see Service Packages below). The Fees payable are shown in the table in Clause 2 below. All prices are given in US Dollars.
The Customer may subscribe to the following methods of delivery:
LMElive Real Time: including real time data (up to 30 minutes old) from the Ring, LME member quotes and LME Select plus full market report coverage with charting functionality.
LMElive Anywhere: Wireless service for real time data only. Please note: Wireless service provides LME data to mobile devices: Blackberrys, PDAs, and Smart Phones.
LMElive Real Time + LMElive Anywhere: combined package.
LMElive Delayed: data that is more than 30 minutes old.
2. The Fees are as follows:
|Subscription option||Price per month|
|LMElive Real Time||$260|
|LMElive Real Time + LMElive Anywhere||$300|
3. The Customer shall pay the Fees by credit or debit card or by any other method permitted by the LME.
4. Unless otherwise permitted by the LME, the Customer shall pay the Fees monthly in advance.
5. Where the Customer elects in the Application Form to have a Trial Period, the first payment shall be made 28 days after the Commencement Date. Where the Customer elects in the Application Form not to have a Trial Period, the first payment shall be made on the Commencement Date. The date of the first payment shall be referred to as the “First Payment Date”. Subsequent payments shall be made on the same date (or next following business day) of each calendar month as the First Payment Date (each being a “Payment Date”). For example (assuming the Customer elects to have a Trial Period):
Commencement Date: November 12
Trial Period: November 12 - December 10
First Payment Date: December 11
Next Payment Date: January 11
Next Payment Date: February 11
Subsequent Payment Dates: 11th day of each calendar month until the Agreement is terminated in accordance with its terms.
Commencement Date: January 1
Trial Period: January 1 - 28
First Payment Date: January 29
Next Payment Date: February 28
Next Payment Date: March 29
Subsequent Payment Dates: 29th day of each calendar month until the Agreement is terminated in accordance with its terms.
6. The Customer shall pay the Fees due to the LME within fourteen days from the date of receipt of an invoice. The LME reserves the right to charge interest at the rate of 2% per annum above the standard base rate of Lloyds TSB Bank plc calculated on a daily basis from the day following the date on which the Fees were due.
Termination by Customer
7. The Customer may terminate the Agreement immediately by notice in writing to the LME at any time during the Trial Period.
8. Following the expiration of the Trial Period, the Customer may terminate the Agreement by notice in writing to the LME at any time, subject to payment of any Fees due in accordance with Clause 9 below.
9. In any given calendar month in which notice of termination is given in accordance with Clause 8 above, the following Fees shall be payable:
(a) If the Customer gives notice at least five (5) days before a Payment Date, no further Fees shall be payable; or
(b) If the Customer gives notice less than five (5) days before a Payment Date, the Fees shall be payable on that Payment Date, but no Fees shall be payable during the next calendar month or any calendar month thereafter;
10. The above Clause 9 shall not apply in the event of termination by the Customer as a result of material breach by the LME.
11. Notwithstanding anything contained elsewhere in this Schedule, the parties may agree alternative terms for payment provided such terms are recorded in writing and signed by both parties.