CQG Quotes Direct Service Agreement

Services.
1. Services and Definitions. CQG will provide the Services to Customer pursuant to this Agreement. “Services” means providing information from exchanges and other information sources (“Market Data”) (such exchanges and other sources are collectively, “Exchanges”) specified on the attached Service Agreement Addendum and accompanying schedule(s) (collectively, “Schedule”) during available transmission times, utilizing the Proprietary Information. “Proprietary Information” means software programs, protocols, displays, databases, manuals and supporting documentation, including the selection, arrangement and sequencing of the contents of the Services, which CQG provides to Customer or allows Customer to use, but excluding Market Data. Customer’s “User Location”, “Billing Address” and “Notice Address” are as specified on the signature page hereof.
2. Terminals. Customer will access the Services only through the number of terminals or logins reported by Customer to CQG or Exchanges.
Term. This Agreement shall be effective as of the earlier of the date Customer first has access to the Market Data or Services or the date this Agreement is signed by the last Party to execute this Agreement. Unless terminated earlier in accordance with this Agreement, either party may terminate this Agreement by giving the other party at least 30 days advance written notice of the termination of this Agreement.
Market Data Compliance.
1. Subscriber Addendum. Customer will sign and deliver all agreements (such as subscriber agreements) and other documents required by applicable Exchanges for receipt of Market Data. Customer will comply with such subscriber agreements and Exchange rules.
2. Partial Termination by Exchange. Customer acknowledges certain Exchanges have reserved the right to stop providing Market Data prior to the end of this Agreement’s term. In the event of such a termination, CQG’s obligation to provide the affected Market Data shall cease and Customer’s payment obligation shall be adjusted accordingly; provided, however, the balance of this Agreement shall not be affected.
3. Restrictions. Except as provided in Section 10 of this Agreement, Customer and its employees may use the Market Data for its own internal business purposes only, and Customer will not transfer, transmit, display on any website, publish, redistribute or resell all or any part of the Services or Market Data, nor will Customer permit others to do the same or have access to the Services or Market Data. Subject to applicable limitations imposed by Exchanges, Customer may use limited and minor printed extracts of screen displays of Market Data in Customer’ business, if all proprietary notices, including copyrights, are properly included. Customer will be responsible for the persons having access to the Market Data by or through Customer and Customer will cause such persons to comply with this Agreement. Customer acknowledges and agrees that each of the Exchanges has exclusive and valuable property rights in and to its own Market Data, and that such Market Data constitutes confidential information, trade secrets and/or proprietary rights of each of the Exchanges. Exchanges retain all right, title and interest (except as otherwise licensed by the Exchanges) in and to the Market Data and any and all compilations thereof.
4. Inspection. Customer will allow CQG and Exchanges access to any Customer locations during normal business hours with reasonable advance written notice to observe the use and status of the items provided by CQG and Customer’s compliance with this Agreement. CQG may monitor the number of terminals accessing the Services.
5. Disclosure of Customer Information. CQG will not disclose Customer's non-public, personal information to non-affiliated third parties except as otherwise provided in this section. CQG is contractually required to report certain non-public information to Exchanges, so Customer consents to CQG providing Customer’s name, addresses, telephone numbers, email addresses, account number, number of user terminals, employee names and other required information to Exchanges. Customer may revoke its consent to such disclosure by CQG at any time, but if the consent is revoked, CQG may terminate this Agreement on notice to Customer.
Charges.
1. Monthly Charges. Customer will pay CQG the charges due for the Services subscribed by Customer in advance each month, including any appropriate sales or value added taxes. CQG will invoice Customer, at least 25 days prior to the first of each calendar month, for the monthly service charges due for that month, and any other charges due (including Exchange fees and ORS (defined below) fees if applicable), and Customer will pay such invoice by the first day of that month, without demand, counterclaim, deduction or setoff, and invoices which are not paid when due will incur interest at the rate equal to the lower of 1% per month, , or the highest rate allowed by applicable law, from the due date until paid. CQG may suspend transmission of or access to Services if payment is not made when due, without prejudice to any other CQG rights. CQG will send invoices to the Billing Address. Unless otherwise indicated on the invoice, the quoted monthly service charges include fees to be collected by CQG and remitted to applicable Exchanges.
2. Price Increases. CQG may increase monthly service charges on 25 days’ advance written notice to Customer at the User Location or Billing Address; provided, however, Customer may terminate this Agreement as of the effective date of the price increase by giving written notice to CQG prior to the end of said 25 day period.
3. Service Changes. Confirmation of changes to Services requested by Customer and accepted by CQG will be reflected on the next invoice. Any reduction in Services requested by Customer requires at least 30 days advance written notice from Customer.
Proprietary Information.
1. Protection. Customer acknowledges the Proprietary Information is proprietary and unique to CQG or its affiliates, as to which copyright, patent or other proprietary rights may be held by or granted to CQG or its affiliates. Customer will not disclose, and will take or cause to be taken all necessary precautions to maintain the confidentiality of, the Proprietary Information (except that which is generally available to the public or previously known by Customer if not due to a breach of confidentiality obligations), will comply with all copyright, trademark, trade secrets, patent and other laws necessary to protect all rights in the Proprietary Information, and will not remove or conceal any copyright or other proprietary notice included in the Services. Customer will report the location of all copies of the Proprietary Information in Customer’s possession or control upon request and return them to CQG upon termination of this Agreement.
2. Right to Use. CQG grants Customer a nonexclusive, nontransferable, nonsublicensable right to use the Proprietary Information, including the software contained therein, and the Market Data, for the term of this Agreement, only at the User Location and Customer’s employees’ mobile and home computers and only on the number of display terminals permitted under the Services subscribed to by Customer. Customer may not assign, copy, modify, merge, transfer, decompile or reverse engineer any of the Proprietary Information, or use the same in conjunction with any non-approved software or hardware. Customer may copy and maintain one set of the Proprietary Information for backup purposes. Customer’s rights to the Services, Market Data and Proprietary Information cease upon termination of this Agreement.
Confidentiality. Subject to Section 3(e), neither party shall disclose to a third party any information concerning the terms of this Agreement, any trade or proprietary secrets of the other party to this Agreement, or other information received from the other party to this Agreement and designated as confidential, nor utilize such information of the other party other than in connection with the purposes of this Agreement, and both parties shall use all reasonable endeavors to ensure that their employees, agents and subcontractors shall observe these conditions. This Section will not apply to:
1. Any information in the public domain other than in breach of this Agreement;
2. Information already in the possession of the receiving party before its receipt from the disclosing party;
3. Information obtained from a third party who is free to divulge the same;
4. Disclosure of information which is required by law or other competent authorities; or
5. Information developed or created by one party independently of the other.
Warranties, Disclaimers and Limits of Liability.
1. Warranty. CQG will make commercially reasonable efforts to provide Market Data in a prompt and accurate manner. If Customer notifies CQG of a defect in Market Data or Proprietary Information, CQG will use reasonable efforts to try to correct it, giving due regard to the nature and extent of the defect. Customer acknowledges that: (i) it is not always possible to produce software or transmit Market Data which is free of error or defect; (ii) CQG is not the originator of Market Data and in a real-time information service environment, it is not possible to identify or remedy every error prior to transmission; (iii) the software programs provided by CQG are complex and may conflict with or be degraded or corrupted by other software applications operated by Customer on the same computer system; and (iv) the Internet is subject to inherent limitations due to many factors including overloads, delays, disconnections, conflicts and interruptions. Customer acknowledges CQG has no knowledge of and Customer is solely responsible for the use that Customer makes of Market Data and the reliance that Customer places on Market Data and Services.
2. DISCLAIMER. THE RIGHT TO THE SERVICES AND TO USE THE PROPRIETARY INFORMATION AND MARKET DATA IS GRANTED “AS IS” AND “WITH ALL FAULTS”. NEITHER CQG NOR ANY EXCHANGE MAKES ANY REPRESENTATIONS, GUARANTIES OR WARRANTIES, INCLUDING WITHOUT LIMITATION WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WHETHER EXPRESS OR IMPLIED, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT OR, IN THE CASE OF EXCHANGES, IN CUSTOMER’S AGREEMENTS WITH THEM. CUSTOMER ACKNOWLEDGES IT HAS NOT RELIED UPON ANY REPRESENTATION, GUARANTY OR WARRANTY MADE BY CQG EXCEPT AS EXPRESSLY STATED HEREIN.
3. No Liability for Losses. Customer acknowledges CQG, its affiliates, employees, agents, contractors, and Exchanges, will not be liable for any loss (including without limitation trading losses and lost profits), cost or damage, suffered or incurred by Customer or any third party arising out of any lost data, faults, interruptions or delays in the Services, or inaccuracies, errors or omissions in the information contained in the Services as supplied to or contributed by Customer, however such matters arise, unless due to CQG’s gross negligence or willful misconduct.
4. Limit of Liability. Notwithstanding any provision hereof, in no event, unless due to CQG’s gross negligence or willful misconduct, will (i) CQG or Exchanges, or their affiliates, be liable for any lost profits or indirect, incidental, special, punitive, consequential or similar damages with respect to the Services or the Proprietary Information even if advised of the possibility of such damages; (ii) the aggregate liability of CQG and Exchanges, their affiliates, employees or agents, direct or indirect, arising out of or in connection with this Agreement, exceed an amount equal to the monthly charges paid by Customer in the month in which the claim against them arose, regardless of the cause or form of action, whether claims are grounded in contract or tort; nor (iii) CQG and Exchanges, nor their affiliates, be liable to Customer on any claim that arose more than one (1) year before the institution of a suit thereon. The parties agree this Agreement reflects a reasonable allocation of risk and limitation of liability. If some jurisdictions do not allow the exclusion or limitation of liability for certain damages, in such jurisdictions, the liability limits in this paragraph shall be limited in accordance with this Agreement to the extent permitted by law.
Indemnification.
1. By Customer. Customer will defend, indemnify and hold harmless CQG, its affiliates, and the Exchanges, and their directors, employees, representatives, agents and contractors from and against any claim, loss, liability, cost or damage, including reasonable attorneys fees, arising from (i) Customer’s breach of this Agreement; (ii) any third party accessing, or receiving advice based on, the Services or Market Data by or through Customer’s acts or omissions; or (iii) any information entered into the ORS by or through Customer’s acts or omissions.
2. By CQG. CQG will defend, indemnify and hold Customer harmless from and against any claim of infringement of a patent, copyright or any other intellectual property right based upon use of the Proprietary Information which is not a Customer breach of this Agreement, provided Customer gives CQG prompt notice of and the opportunity to defend any such claim and Customer cooperates in the defense thereof. CQG will have the right to settle such claim, and, at CQG’s option, provide Customer (i) a paid up right to use; or (ii) substitute functionally equivalent Proprietary Information. This section shall not be subject to the limitations of section 7.d. above.
Termination.
1. Defaults. The following events constitute “Defaults” under this Agreement:
  1. a breach by either party of a provision of this Agreement which is not cured within 10 days after written notice of such breach, provided that for Customer’s default in payment of any sum due CQG, the cure period shall be 5 days from the date of notice of the default, and no notice or cure period is required for Customer’s breach of Sections 1(b) or 3; or
  2. a party’s making an assignment for the benefit of its creditors, or the filing by or against the party of a voluntary or involuntary petition under any bankruptcy or insolvency law, which petition is not dismissed within 60 days from the filing thereof.
2. Customer’s Remedies. Upon a Default by CQG, Customer may terminate this Agreement by notice to CQG. Customer shall also be entitled to seek injunctive and other equitable relief against CQG for breaches of this Agreement. Subject to other applicable terms of this Agreement, Customer’s rights and remedies are cumulative and not exclusive.
3. CQG’s Remedies. Upon a Default by Customer, CQG may terminate this Agreement on notice to Customer, and recover from Customer all charges due and possession of CQG’s property. CQG shall also be entitled to seek injunctive and other equitable relief against Customer for breaches of this Agreement. Subject to other applicable terms of this Agreement, CQG’s rights and remedies are cumulative and not exclusive.
API. CQG will provide Customer with access to the application program interface (“API”) which allows downloading of Market Data into applications other than CQG’s proprietary applications. “Services” includes the API.
1. EXCHANGE APPROVAL. CUSTOMER MAY ACCESS MARKET DATA FROM THE API ONLY AFTER HAVING EXECUTED ANY AND ALL RELATED DOCUMENTS REQUIRED BY THE EXCHANGES, AND ONLY AFTER THE EXCHANGES HAVE ALL NOTIFIED CQG DIRECTLY OF THEIR APPROVAL OF CUSTOMER’S USE OF THEIR RESPECTIVE MARKET DATA. CUSTOMER WILL COMPLY WITH ALL APPLICABLE EXCHANGE RULES AND TERMS.
2. Changes to API. CQG may change the API specifications from time to time, but will give Customer at least two months notice of any material changes that are within CQG’s control. If the changes are not within CQG’s control, CQG will give reasonable notice under the circumstances.
3. Implementation. Customer will be responsible for implementation of the API unless the parties agree on terms for CQG’s assistance with the implementation in an addendum to this Agreement.
General.
1. Entire Agreement; Signatures. This Agreement (which includes the Schedule) is the complete and exclusive agreement of the parties and supersedes all prior agreements, oral or written, regarding this Agreement’s subject matter. Subject to provisions in Section 4 for price increases and Service changes, any amendment to this Agreement shall not be valid unless in writing and signed by the parties. This Agreement may be signed in two or more counterparts, all of which will be deemed to be one agreement. Signing and delivery of this Agreement, any amendments, or any changes to Customer’s subscription to Services may be evidenced by electronic records and electronic signatures.
2. Law and Venue. This Agreement is deemed to have been executed and delivered in, and shall be governed and construed in accordance with the laws of, the State of Colorado, without giving effect to principles of conflict of laws which might otherwise require application of the laws of another jurisdiction. Every controversy or claim arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the state or federal courts located in Denver, Colorado, and the parties waive any objection to jurisdiction or venue therein. The prevailing party in any legal action or proceeding with respect to a controversy or claim arising out of this Agreement shall be entitled to an award of its reasonable attorney’s fees and expenses.
3. Severability and Interpretation. If any provision of this Agreement is held to be invalid or unenforceable, the invalidity or unenforceability of the remaining provisions shall not be affected. The headings in this Agreement are for convenience only and shall not affect the Agreement’s interpretation. Time is of the essence of this Agreement.
4. Assignment. Neither party may assign or otherwise transfer or delegate any rights or obligations under this Agreement without the other party’s prior written consent, which shall not be unreasonably withheld; provided, however, that CQG may assign and delegate its rights and obligations hereunder to an affiliate without the requirement of Customer’s consent, and provided further that Customer may enable affiliates to receive Services by delivering to CQG an executed affiliate agreement mutually acceptable to the parties and applicable information about such affiliate as reasonably requested by CQG. This Agreement shall be binding upon and inure to the benefit of the respective parties, their legal representatives, successors and permitted assigns. Exchanges are third party beneficiaries of Customer’s obligations under this Agreement, but there are no other third party beneficiaries of this Agreement.
5. Survival. Claims for payment and Sections 3, 5, 6, 7, 8, and 11 shall survive the termination of this Agreement.
6. Waivers. The failure of either party to exercise any right under this Agreement shall not be deemed a waiver of any future exercise of such right or a waiver of any other provision of this Agreement.
7. Force Majeure. CQG will have no liability for any loss, cost or damage resulting from any failure by CQG to perform any obligation hereunder or from any delay in the performance thereof, due to causes beyond CQG’s control, including without limitation, acts of God, public enemy, or government, failure of telecommunications, fire or other casualty.
8. Notices. Except as specifically provided otherwise herein, all notices required under this Agreement shall be in writing and shall be deemed to have been given upon receipt by the parties as follows: if to CQG, by first class or registered mail, email (at the email address provided by CQG from time to time), hand delivery or courier, at the address specified at the beginning of this Agreement and to the attention of “Contracts Manager”; and if to Customer, by first class or registered mail, email, hand delivery or courier at the Notice Address. A party may change the address for receipt of its notices by giving notice in accordance with this section.
Certification of Professional Status. Customer certifies that its certification of Professional Status below (or as shown on the electronic record if signed electronically) is correct.
[CHECK THE BOX WHICH APPLIES]
1. ☐ Customer is a market non-professional, which means Customer meets ALL of the following qualifications:
  1. Customer will receive market data through CQG in an entirely personal capacity for Customer’s own investment purpose and not on behalf of any company or other person.
  2. Customer is not a market professional in ANY financial market.
  3. Customer is not registered in any capacity with any exchange, market or regulatory agency having jurisdiction over exchanges, dealer networks or other markets.
  4. Customer is not an investment advisor.
  5. Customer is not a consultant, contractor or software developer who uses market data for any purpose other than personal investing.
2. As a non-professional Customer also agrees and acknowledge as follows:
  1. This Agreement is and will be maintained in Customer’s personal name and not in any company name.
  2. Customer will notify CQG promptly if there is a change in Customer’s status as a non-professional.
  3. If any exchange determines that Customer is professional, such determination must be relied on by CQG.
  4. This certification may be relied on by CQG in providing market data to Customer at the reduced rates available from some exchanges.
  5. This certification may be furnished by CQG to any exchange, market or regulatory agency having jurisdiction over exchanges, dealer networks or other markets having a reasonable basis to inquire about Customer’s status including any exchange, which provides a discount price to nonprofessionals.
  6. Customer will reimburse CQG if any additional fees, fines or other charges are imposed on CQG based on any false or untruthful statement contained in this certification.
3. ☐ Customer is a market professional and may not meet all of the qualifications set forth above.