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.|
|Agreement||These terms and conditions.|
|Benchmark||Any price or index falling within the definition of ‘benchmark’ under the Benchmark Regulation, MAR II or MiFIR.|
|Benchmark Regulation||Regulation (EU) 2016/1011 on indices that are used: (i) as benchmarks in financial instruments and financial contracts; or (ii) to measure the performance of investment funds and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) 596/2014.|
|Commencement Date||The date on which the LME makes the Service available to the Customer.|
|Customer or the Customer||The person listed in the Registration Form who is the counterparty to the LME under this Agreement.|
|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.|
|Holding Company||As defined in Clause 1.2.3.|
|Information||Any information in any form relating to the LME or its members, vendors or other stakeholders including, without limitation, market data prices, volumes, quotations, indices, time stamps, news and other information related to the 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 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.|
|MAR II||Regulation (EU) No 596/2014 of the European Parliament and of the Council of 16 April 2014 on market abuse (Market Abuse Regulation).|
|Member||An Undertaking or individual admitted to membership of the Exchange in accordance to the rules.|
|MiFIR||Regulation (EU) No 600/2014 on markets in financial instruments and amending regulation (EU) No 648/2012.|
|Parties||The LME and the Customer.|
|Registration Form||The online registration form available on this website 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.|
|Service||The provision of the Information to the Customer via this website including, but not limited to, web pages, images and other media, RSS feeds and other downloads.|
|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.|
|Ultimate Holding Company||A Holding Company which is not also a Subsidiary.|
|Undertaking||The same meaning as set out in Section 259 of the Companies Act 1985.|
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, in consideration of the Customer abiding by the terms of this 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. On submission of an application to the LME using the Registration Form and/or on each occasion a Customer accesses the LME website for the purpose of receiving the Service, the Customer agrees to be bound by these Terms in relation to the Service.
2.3. The Customer acknowledges and agrees that the LME Group has exclusive and valuable property rights in and to their own Information, and such Information constitutes valuable confidential information, trade secrets and/or proprietary rights of the LME Group.
3. RESTRICTIONS ON USE BY THE CUSTOMER
3.1. Unless specifically agreed with the LME in writing, the Customer shall not, and (if the Customer is an undertaking) 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 for the employees or agents of the Company included on the Registration form;
3.1.4. allow any third party to take, directly or indirectly, any of the Information from the Customer;
3.1.5. allow any third party to access the Information through the use of the user IDs and passwords allocated to Customer 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;
3.1.9. use any aspect of the Information as a Benchmark, as an input into a Benchmark, or in connection with the determination of a Benchmark, or pass the Information to an Administrator in connection with the determination of a Benchmark; 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 Customer shall access and use the Information exclusively for own internal business activities of the Company detailed in the Registration Form (including the activities of Customer’s Affiliates).
3.4. The Customer shall use best efforts to ensure that it maintains 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.
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 or
5.2.2. the Customer.
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 at the LME’s discretion.
5.4. Following the termination of the Agreement, the Customer shall, if requested to do so by the LME:
5.4.1. 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, except for any automated back-ups;
5.4.2. Permanently remove the Software, the Information and any other materials related thereto from any and all Devices upon which such materials are installed, except for any automated back-ups; and
5.4.3. Certify to the LME in writing that Customer has fully complied with the two requirements specified in Clauses 5.4.1 and 5.4.2 above.
5.5. 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.
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) 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 or for any other reason. The Customer will be deemed to have accepted the proposed changes unless the Customer notifies the LME. 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 Covenants, Representations and Warranties
9.1. The Customer warrants and represents that:
9.1.1. all information provided by it to the LME as required by the Registration Form is true, accurate and complete information and agrees to notify the LME within 10 business days should any such information change.
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 shall not be responsible or liable for the operation, performance or reliability of any hardware, software, telephone lines or other equipment required to access the Service 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 any act or omission on the part of the Customer 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 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 on this website 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 this website). 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 Registration 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.