LedgerX is registered with the U.S. Commodity Futures Trading Commission (“CFTC”) as the operator of a designated contract market (“DCM”), a swap execution facility (“SEF”) and a derivatives clearing organization (“DCO”). Participant wishes to receive access to certain services pursuant to this Agreement (“Services”). LedgerX is willing to provide such Services to Participant pursuant to the terms of thisAgreement. Participant agrees to be bound by the terms of this Agreement, and the LedgerX Rulebook (defined below). LedgerX will provide Participant with access to a system or a platform for execution of Transactions as provided in the LedgerX Rulebook and as required by the U.S. Commodity Exchange Act, as amended (the “Act”).
Capitalized terms used but not defined herein have the respective meanings given to them in the LedgerX Rulebook.
By executing this application and whenever using the Services, the undersigned hereby represents and warrants that Participant meets the eligibility requirements as set forth in Rule 3.2 of the LedgerX Rulebook, as amended from time to time, and if trading through the SEF is an Eligible Contract Participant (“ECP”). Further, each time such Participant or any of its Authorized Representatives enters an order, effects a transaction or otherwise uses the Services, Participant represents, warrants and reaffirms that Participant meets the eligibility requirements as set forth in Rule 3.2 of the LedgerX Rulebook, and if trading through the SEF is an ECP.
Participant shall pay the fees and charges for the Services as specified and revised from time to time on the LedgerX website ("Website"), located at www.ledgerx.com. The fees and charges for the Services are enumerated on the Website. LedgerX will notify Participant of any change to such fees and charges by means of a Website post, and any such changes will be effective 10 days after LedgerX posts such amended fees on the Website. Following the expiration of such 10-day period, the fees schedule on the Website will be deemed amended accordingly. Participant’s continued use of Services after the expiration of the 10-day period will constitute Participant’s agreement to pay the amended fees and charges for the Services.
Participant hereby acknowledges and agrees that it has received and read the rules and regulations established by LedgerX applicable to the Services contained in the LedgerX rules (as supplemented or amended from time to time, the "LedgerX Rulebook"). Further, Participant agrees to be and will be bound by, and will comply with, the LedgerX Rulebook as amended from time to time. In the event of any conflict between this Agreement and the LedgerX Rulebook, the Rulebook will govern.
Participant hereby consents to the jurisdiction of LedgerX. Upon the prior written request of LedgerX, Participant will promptly (but in any event, within five Business Days) provide to LedgerX such information about itself and its Authorized Representatives as LedgerX requests.
Participant hereby agrees that it will only allow itself or its duly authorized employees and representatives, in each case previously identified to LedgerX, to access or use the Services. Participant agrees to accept full responsibility for any transactions effected on the Platform and for any use of the LedgerX DCM made by it or made pursuant to the login information of Participant or its Authorized Representatives. Participant will be financially responsible for such trades even if the orders received via the LedgerX DCM were (1) entered as a result of a failure in security controls and/or credit controls, other than due to the gross negligence of LedgerX, or (2) entered by an unknown or unauthorized user using the login credentials of Participant or its Authorized Representatives.
Participant hereby represents, warrants and covenants to LedgerX, and each time such Participant or any of its Authorized Representatives enters an order, effects a transaction or otherwise uses the Services, that Participant will be deemed by such act to represent, warrant and covenant to LedgerX the following:
Participant further acknowledges and agrees that:
Participants and their Authorized Representatives who trade through third-party exchanges and clear those trades through LedgerX (herein after collectively, “Third-Party Exchange Participants”), hereby agree to be bound, and to comply with, all provisions in this Agreement to the same extent as other Participants and Authorized Representatives. Third-Party Exchange Participants and their Authorized Representatives hereby affirm all representations, warranties, covenants and acknowledgments in this Agreement, including but not limited to the acknowledgment that this Agreement is enforceable by LedgerX against Third-Party Exchange Participants and their Authorized Representatives directly, through the dispute resolution procedures in this Agreement and the LedgerX Rulebook. Additionally, each Third-Party Exchange Participant and each of their Authorized Representatives agrees to be bound by and to comply with the LedgerX Rulebook.
LedgerX may seek any legal, regulatory or similar claims against a Third-Party Exchange Participant and each of its Authorized Representatives in the same manner it would pursue such an action against other Participants and their Authorized Representatives. For the avoidance of doubt, unless expressly stated herein, nothing in this Agreement shall prevent LedgerX or its agents from pursuing any claims, liabilities and expenses arising from the conduct of a Third-Party Exchange Participant or its Authorized Representatives (including attorneys’ fees, out of pocket expenses, costs and disbursements). For purposes of this Agreement, each Third-Party Exchange Participant shall be deemed to be a “Participant,” unless otherwise noted herein, and all terms of this Agreement pertaining to Participants also pertain equally to Third-Party Exchange Participants. All terms of this Agreement pertaining to Authorized Representatives also pertain equally to any agent or representative of a Third-Party Exchange Participant.
Participant hereby agrees to indemnify and hold harmless LedgerX and its directors, officers, employees, members, affiliates and agents( each, a “Related Party”) from and against all expenses and costs and damages (including any legal fees and customary expenses), directly and actually incurred by LedgerX (including consequential damages awarded to the third party) as a result of third-party claims resulting from, in connection with, or arising out of Participant’s use of the Services or activities of Participant or arising out of or relating to this Agreement, including any failure by Participant, for any reason, fraudulent, negligent, or otherwise, to comply with its obligations and requirements set forth in this Agreement, or any failure of Participant to comply with the agreements, representations or covenants contained in this Agreement.
Within 10 Business Days after LedgerX receives written notice of a claim that LedgerX reasonably believes falls within the scope of this paragraph, LedgerX will provide Participant with written notice of that claim, provided, however, that failure to provide such notice will not relieve Participant of its indemnity obligations hereunder except to the extent Participant is materially prejudiced thereby and Participant will not be responsible for those expenses, costs and damages that LedgerX incurs solely as a result of any such delay. Participant’s indemnity obligation will not apply to the extent there has been a final determination (including exhaustion of any appeals) by a court or arbitrator of competent jurisdiction that the expense, cost or damage arose from LedgerX’s gross negligence, fraud or willful misconduct.
The LedgerX rules concerning liability and warranties (including without limitation Rule 11.7 of the LedgerX Rulebook, and any successor Rules thereto) are incorporated herein by reference and apply with the same force and effect as if they were reproduced in their entirety in this Agreement. Those LedgerX rules set out the entire liability of LedgerX to Participant. All other liability of LedgerX under or in connection with this Agreement is excluded, except to the extent that it is not permitted to be excluded by Applicable Law.
Participant hereby grants LedgerX a worldwide, perpetual, irrevocable, royalty-free, full sublicensable and freely assignable license to store, use, copy, display, disseminate and create derivative works from: (1) the price and quantity data for each Transaction entered into by Participant that is executed via the Services and (2) each bid, offer and/or Order provided via the Services by Participant. Participant acknowledges and agrees that LedgerX may use such information for business, marketing and other purposes.
LedgerX may make available to Participant a broad range of financial information that LedgerX obtains from third-party service providers, including financial market data, spot market data, quotes, news, analyst opinions, links to other third-party sites and research reports (hereinafter, “Market Information”). LedgerX does not endorse or approve Market Information, and we make it available to Participant and its Authorized Representatives only as a service and convenience. LedgerX and its third-party service providers do not (1) guarantee the accuracy, timeliness, completeness or correct sequencing of Market Information, or (2) warrant any results from the use or reliance on Market Information. LedgerX expressly disclaims and makes no warranty of merchantability, fitness for a particular purpose or use, or non-infringement. There is no other warranty of any kind, express or implied, regarding the Market Information.
Market Information may quickly become unreliable for various reasons including, for example, changes in market conditions or economic circumstances. Neither LedgerX nor the third-party service providers are obligated to update any information or opinions contained in any Market Information, and LedgerX may discontinue offering Market Information at any time without notice. Participant and its Authorized Representatives agree that neither LedgerX nor the third-party service providers will be liable in any way for the termination, interruption, delay or inaccuracy of any Market Information. Participant and its Authorized Representatives agree not to redistribute or facilitate the redistribution of Market Information, and agree not to provide access to Market Information to anyone who is not authorized by LedgerX to receive Market Information.
Participant hereby acknowledges and agrees that LedgerX provides no legal, tax, investment, financial or other advice, and nothing contained in the Services constitutes a solicitation, recommendation, endorsement or offer by LedgerX to buy or sell any commodity derivative, future, option or swap. Participant assumes the sole responsibility of evaluating the merits and risks associated with the use of the Services before making any investment decisions, and Participant agrees not to hold LedgerX liable for any possible claim for damages arising from any decision made based on the Services, information or Market Information made available to Participant or its Authorized Representatives by or through LedgerX.
Participant hereby acknowledges that LedgerX provides a netting program (the “Netting Program”) as described on the Website, which is made a part of, and incorporated by reference into, this Agreement. Participant hereby chooses to opt in or opt out of such Netting Program as elected on the signature page hereto.
LedgerX may modify any of the terms and conditions that are set forth in this Agreement by providing not less than ten days prior written notice to Participant. Participant acknowledges and agrees that such notice is sufficient if posted to the LedgerX website as a regulatory notice under “Regulatory Notices” and that no other or additional form of notice, actual or constructive, is required. If Participant does not consent to the modification, Participant may terminate this Agreement by sending a written notice of termination of its Accounts to LedgerX at firstname.lastname@example.org within ten days of receiving notification of the modification from LedgerX. Any such termination will be effective as of the date on which the modification would have taken effect. In the event a Participant does not consent to the modification of this Agreement, and objects to the modification in a timely fashion as set forth above, then Participant (1) agrees to stop using the Services immediately, (2) agrees that neither it nor its Authorized Representatives will enter into any further trades of any kind on LedgerX, (3) grants LedgerX the authority to close any open positions immediately, and (4) agrees it will be responsible to LedgerX for payment of any deficiency remaining in Participant’s Accounts after the closing of such positions.
Subject to Applicable Law and the LedgerX Rulebook, LedgerX or Participant may terminate this Agreement by giving the other prior written notice. Termination of this Agreement will not affect liability accrued as of termination. Sections V through XII, XIV, XVIII, and XXI will survive termination of this Agreement and continue in full force and effect.
In the event Participant elects to terminate thisAgreement, then Participant (1) agrees to stop using the Services immediately,(2) agrees that neither it nor its Authorized Representatives will enter into any further trades of any kind on LedgerX, (3) grants LedgerX the authority to close any open positions immediately, and (4) agrees it will be responsible toLedgerX for payment of any deficiency remaining in Participant’s Account after the closing of such positions.
This Agreement constitutes the entire contract between the parties relative to the subject matter hereof. Any other previous agreement among the parties with respect to the subject matter hereof is superseded by this Agreement. Nothing in this Agreement, expressed or implied, is intended to confer upon any person (other than the parties hereto, their respective successors and assigns permitted hereunder) any rights, remedies, obligations or liabilities under or by reason of this Agreement.
In the event that any one or more of the provisions contained in this Agreement should be held invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein and therein shall not in any way be affected or impaired thereby (it being understood that the invalidity of a particular provision in a particular jurisdiction shall not in and of itself affect the validity of such provision in any other jurisdiction). The parties shall endeavor in good-faith negotiations to replace the invalid, illegal or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the invalid, illegal or unenforceable provisions.
This Agreement may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original but all of which when taken together shall constitute a single contract. Each party agrees that electronic signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Electronic signature means any electronic sound, symbol or process attached to or logically associated with a record and executed and adopted by a party with the intent to sign such record pursuant to the New York Electronic Signatures and Records Act (N.Y. State Tech. §§301-309) as amended from time to time. Delivery of an electronic signature to this Agreement shall be as effective as delivery of an original signed counterpart of this Agreement.
Participant may not assign this Agreement, in whole or in part, without the prior written consent of LedgerX.
LedgerX hereby notifies Participant that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies Participant, which information includes the name and address of Participant and other information that will allow LedgerX to identify Participant in accordance with the USA PATRIOT Act.
This Agreement will be governed by and construed in accordance with the laws of the State of New York. Any dispute between LedgerX and Participant or its Authorized Representatives arising from or in connection with this Agreement will be settled through arbitration or the State or Federal courts located within the City of New York in accordance with Rules10.1 - 10.5, 11.5 and 11.6 of the LedgerX Rulebook.
As noted above in Section XVIII, Participant will be signing this Agreement with a valid and binding electronic signature by clicking “I agree,” and Participant acknowledges that it has read and understood this Agreement’s terms and conditions.
WHEREAS, LedgerX is registered as a Swap Execution Facility pursuant to Section 5h of the Commodity Exchange Act and a Derivatives Clearing Organization pursuant to Section 5b of the Commodity Exchange Act and a Designated Contract Market pursuant to Section 5 of the Commodity Exchange Act;
WHEREAS, Participant desires to receive Platform services from LedgerX for the purpose of accessing the Exchange;
WHEREAS, LedgerX is willing to provide Platform services to Participant for the purpose of accessing the Exchange; and
WHEREAS, Participant and LedgerX desire to enter into this Agreement to govern the provision and receipt of Platform services.
NOW, THEREFORE, in consideration of the premises and the undertakings of the Parties hereinafter set forth, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:
“Affiliate” has the same meaning as set forth in the Rules.
“Agreement” means this User Agreement (including any items referenced or exhibits and attachments hereto), along with the Rules and the licenses for the API Client Library and LedgerX’s Specifications Document for APIs, as may be amended or modified from time to time in accordance with the terms hereof.
“API” means application programming interface.
“API Client Library” means LedgerX’s proprietary application programming interface.
“Authorized Representative” has the same meaning as set forth in the Rules.
“Authorized User” has the same meaning as set forth in the Rules.
“Confidential Information” is defined in Section 7.1.
“Effective Date” is defined in the preamble to this Agreement. “Exchange” has the same meaning as set forth in the Rules. “Force Majeure Event” is defined in Section 9.1.
“Governmental Authorities” means any legislative, executive or judicial unit of any governmental or quasi-governmental authority or instrumentality (multinational, national, federal, state, provincial, local or foreign, international or domestic), or any department, agency, board, bureau, commission, official or other regulatory, administrative or judicial authority thereof, including any administrative or regulatory agency or commission, and any court or arbitration tribunal, and any Regulatory Agency as defined in the Rules, in each instance having jurisdiction over the subject matter before it.
“Intellectual Property” means all discoveries, inventions, improvements, developments, procedures, processes, formulations, know-how, trade secrets, formulae, patents, continuations, divisions, reissues, reexaminations, trademarks, service marks, trade names, trade dress, designs, logos, packaging, domain names and universal resource locators, proprietary and confidential information, technical information, techniques, works of authorship and all other copyrightable works and copyright rights, software and underlying code, algorithms, data and databases, drawings, models, manuals and systems, whether or not patentable or copyrightable or otherwise registerable, all rights and applications, registrations, renewals, and extensions derived or derivable therefrom, and all intangible rights and privileges of a nature similar to any of the foregoing anywhere in the world.
“Law” means all supranational, international, national, state and local laws, statutes, regulations, rules, codes or ordinances enacted, adopted, issued or promulgated by any Governmental Authority or common law.
“LedgerX” is defined in the preamble to this Agreement.
“LedgerX Indemnitees” is defined in Section 6.2.
“LedgerX Trademarks” means the trade names, trademarks, service marks, logos, product names, domain names, or other designations of LedgerX and its Affiliates.
“Participant” is defined in the preamble to this Agreement.
“Participant Application and Agreement” means the agreement which Participant entered into with the Exchange to gain access to and Participant privileges of the Exchange.
“Participant Notice” has the same meaning as set forth in the Rules. “Party” and “Parties” are defined in the preamble to this Agreement. “Person” has the same meaning as set forth in the Rules.
“Platform” has the same meaning as set forth in the Rules.
“Platform Intellectual Property” is defined in Section 5.1.“Rules” means the rules of LedgerX, as may be amended or modified from time to time.
“Third Party” and “Third Parties” mean any Person other than LedgerX or Participant or an Affiliate of either Party.
“Trading Tools” means any applications, algorithms, software, interfaces, or code that LedgerX may provide Participant under this Agreement for accessing and using the Platform.
Capitalized terms used herein but not defined in Section 1.1 of or elsewhere in this Agreement shall have the meanings set forth in the Rules.
Section 2.1. General Warranties.
Each Party represents and warrants to the other Party that:
2.1.1. The individual executing and delivering this Agreement has full power and authority to do so on its behalf.
2.1.2. This Agreement has been duly and validly authorized, executed and delivered on its behalf and constitutes a valid, binding and enforceable agreement in accordance with its terms.
2.1.3. Such Party’s execution, delivery and performance of this Agreement shall not constitute a violation, breach or default under any contract, instrument, obligation or agreement to which it is a Party or by which it is bound, and will not conflict with or violate any applicable Law of any Governmental Authority having jurisdiction over it or its assets or property.
Section 2.2. Compliance with Laws.
Participant represents, warrants and covenants that it shall comply with: (a) all applicable Laws, (b) all terms and conditions of this Agreement, and (c) the Rules, in connection with its exercise of its rights and obligations under this Agreement, including any and all use and access to the Platform and any related services.
Section 2.3.Participant represents and warrants to LedgerX that, as of the date hereof and on an ongoing basis:
2.3.1. If Participant is an entity, it is duly organized, validly existing and in good standing under the laws of its jurisdiction of organization and each other jurisdiction in which the nature or conduct of its business requires such qualification, or in the case of an individual, is of the age of majority in the individual’s state of residence.
2.3.2. It has full power and authority (corporate and otherwise) to execute and deliver this Agreement and to perform its obligations under this Agreement.
2.3.3. It has received all necessary approvals and consents from all applicable Governmental Authorities to permit it to use the Platform and perform its obligations under this Agreement.
2.3.4. It is an Eligible Contract Participant, as such term is defined in section 1a(18) of the Commodity Exchange Act and CFTC Regulation 1.3(m).
2.3.5. There is not pending, or to the best of its knowledge threatened, any action, suit or proceeding before or by any Governmental Authority or self-regulatory body to which it is a party which seeks to affect the enforceability of this Agreement or Participant’s use of the Platform.
2.3.6. It will be subject to the Limitation of Liability and No Warranties provisions of the Rules, incorporated herein and made part hereof.Capitalized terms used herein but not defined in Section 1.1 of or elsewhere in this Agreement shall have the meanings set forth in the Rules.
Section 3.1. License Grant
3.1.1. Subject to the terms and conditions of this Agreement, LedgerX hereby grants to Participant a personal, limited, non-exclusive, non-transferable, non-sublicensable, revocable right and license to use: (a) the Trading Tools, and (b) the Platform, in each case through Participant’s Authorized User(s) to access and use the Exchange. Participant may access/use the Platform and utilize any services and all information and content (including, without limitation, bids and offers, price and other trade-related data, whether generated by the Exchange, a Participant or an Authorized User) therein or in any way related to the Platform, only for soliciting and entering orders for itself or, with respect to an Executing Participant, for Customers for whom such Executing Participant is authorized to act.
3.1.2. In connection with the access to and use of the Platform, Participant may: either use the API Client Library pursuant to the applicable license agreement for same, or use its own compatible API based on LedgerX’s API Specifications Document. Similarly, Participant may use the Trading Tools, or use its own compatible trading tools, in connection with access/use of the Platform. For the avoidance of doubt, to the extent Participant chooses to use the API Client Library, such use shall be governed by the applicable separate license agreement for the API Client Library. To the extent Participant chooses to use the Trading Tools, the term “Platform” shall hereinafter be deemed to include “Trading Tools” and shall be governed by this Agreement.
3.1.3. Participant may obtain access to the Platform via the Internet or by any other means deemed acceptable by LedgerX, and may provide such access to Authorized User(s) identified by the Participant on an Authorized User Form. Participant shall not provide, share, or loan user identification and password information to any person other than Authorized Users. If an Authorized User leaves Participant’s employ, Participant will be responsible for informing LedgerX in writing so that the user identification and password for the departing Authorized User can be deactivated. Participant is responsible for maintaining the confidentiality of user identifications and passwords, and is responsible for all user identifications and passwords, whether or not actually or expressly authorized by LedgerX. Participant is responsible for ensuring its Authorized Users fully comply with this Agreement and any failure by Authorized Users to comply will constitute a breach by Participant.
3.1.4. Participant assumes all risk and bears sole responsibility for establishing such access, including, but not limited to, bearing all risk associated with any malfunction thereof, paying all applicable costs for establishing such access, and selecting its service provider. As between the Parties, Participant shall be solely responsible, at its own risk and expense, for acquiring, installing and maintaining all equipment, hardware and software (other than the Platform), Internet access, telecommunications, and network systems, including without limitation establishing and maintaining adequate security systems, necessary and compatible for it to securely access and use the Platform. All rights not expressly granted above are reserved by LedgerX.Section 3.2. Certain Specific Restrictions.
3.2.1. Participant will not use the Platform, or any related software that LedgerX may provide to Participant under this Agreement, for the benefit of any Third Party or provide any Third Party with access to the Platform or any such software by any means, other than as is necessary in connection with an Authorized User.
3.2.2. Participant will not use or permit the use of the Platform for any illegal purpose or for any purpose deemed unacceptable by the Exchange in its sole discretion. It will not access the Platform in any jurisdiction in which to do so would be illegal or otherwise prohibited. It will not itself (and will not permit any Third Party to), in whole or in part, copy, reproduce, modify, decode, reverse engineer, reverse assemble or reverse compile the Platform or any related software that LedgerX may provide to Participant under this Agreement, or any of the content or information displayed thereon or issued by the Platform or such software. Participant will not communicate, distribute, rent, sell, retransmit, redistribute, post, circulate, display, license or relicense, broadcast, publicly perform, create derivative works from, commercially exploit, publish or release the Platform or any related software that LedgerX may provide to Participant under this Agreement or any of the content or information displayed thereon to any Third Party, except to an Authorized User as permitted by the Exchange. Participant will not attempt to gain unauthorized access to the Platform or any related software that LedgerX may provide to Participant under this Agreement, through hacking, password or data mining, or any other means of circumventing any access-limiting, Authorized User authentication, or security device of the Platform or any such software.
3.2.3. Participant will not, without the Exchange’s prior written consent, directly or indirectly, redistribute, or facilitate redistribution of, all or any portion of the data on the Platform or any related software that LedgerX may provide to Participant under this Agreement, including, but not limited to, the Exchange’s proprietary data, provided, however, that such consent shall not be required for (a) copying, reproducing or retransmitting information that is generally available to the public free of charge, (b) any part of the data on the Platform for the administration, regulatory and reporting purposes of Participant or its Authorized Users, (c) the solicitation and entry of orders for trades on the Platform, including, if applicable, orders transmitted via Participant’s internal automated order routing system, or (d) the provision of indicative valuations to Participant or its Authorized Users. Notwithstanding the foregoing, Participant represents, warrants and covenants that it and all of its Authorized Users shall only use such data for its and their own internal business purposes and processes, and not for any commercial purposes whatsoever.
3.2.4. Participant will not engage in any conduct that could damage, disable or overburden, or take any action that would impede or interfere with, the operation of the Platform or any related software that LedgerX may provide to Participant under this Agreement, or any systems, networks, software, servers, websites, or accounts of LedgerX or its Affiliates (including the Exchange), agents, or licensors.Capitalized terms used herein but not defined in Section 1.1 of or elsewhere in this Agreement shall have the meanings set forth in the Rules.
Participant shall pay such transaction fees as are established and notified by LedgerX in a Participant Notice from time to time and Participant authorizes LedgerX to debit such fees from Participant’s account maintained on the books and records of LedgerX.
Participant acknowledges and agrees that the Platform, any related software that LedgerX may provide to Participant under this Agreement, and any nonpublic data generated by such Platform or related software are protected or protectable by Intellectual Property laws. As between the Parties, the Platform, any related software that LedgerX (or its Affiliates) may provide to Participant under this Agreement (including the Trading Tools), and any nonpublic data generated by such Platform or software, including all Intellectual Property subsisting therein or related thereto, are the exclusive proprietary property of LedgerX (all of the foregoing collectively “Platform Intellectual Property”). For the avoidance of doubt, Platform Intellectual Property shall also include (a) any and all derivatives, versions, improvements, error corrections, bug fixes, patches, updates or other modifications, customizations, suggestions, feedback, enhancements or extensions to, and adaptations and translations of the Platform; and (b) the order, sequence, arrangement and formatting of the data, results and output generated by the Platform. Participant and its Authorized Users will have no rights with respect to such Platform Intellectual Property except as expressly set forth in this Agreement. Unless otherwise expressly specified in writing by LedgerX, LedgerX reserves complete ownership, title and rights in and to materials Participant downloads from the Platform. Participant may use such materials for its internal, noncommercial use, provided that it does not alter or modify the materials, or delete or modify any copyright, trademark, or other proprietary rights notices, or disclaimers.
Participant will be responsible for ensuring that its Authorized Users, partners, officers, directors, employees and agents maintain sole control and possession of, and sole access to, nonpublic data generated by the Platform obtained by Participant and/or its Authorized Users, all of which shall constitute Confidential Information of LedgerX pursuant to Article 7, below.
This Agreement does not grant permission to Participant to use LedgerX Trademarks. Without the prior written consent of LedgerX, Participant shall not use (and shall not permit any Third Party to use) any LedgerX Trademarks in any manner, except as required for reasonable and customary use to accurately and factually describe the origin of the Platform, and/or providing appropriate attribution, all of the foregoing in a form and format reasonably acceptable to LedgerX. Participant acknowledges and agrees that all right, title and interest in and to the LedgerX Trademarks and the goodwill associated with such trademarks shall be and remain the property of LedgerX, and that the use of the LedgerX Trademarks and the goodwill associated therewith as permitted under this Agreement shall inure to the benefit of LedgerX. Participant shall, in all its activities relating to this Agreement, conduct its obligations hereunder in a manner so as to preserve the goodwill of the LedgerX Trademarks by not bringing LedgerX, its Affiliates, or the LedgerX Trademarks into public disrepute, contempt, scandal or ridicule. Further, Participant shall not use any LedgerX Trademarks in a manner to suggest LedgerX’s endorsement or sponsorship of Participant, including any of Participant’s products or services. Participant shall not, and shall not permit any Third Party to, seek to register (including, as a trademark, domain name, company name or other source identifier), anywhere in the world, any of the Platform Intellectual Property, LedgerX Trademarks, and/or any designation confusingly similar therewith.
In addition to, and without limiting the generality of the “limitation of liability” and “no warranties” provisions of the rules as may be amended from time to time (as incorporated herein and made a part hereof pursuant to section 2.3.6 above, and available on the ledgerx website), participant specifically acknowledges and agrees that the platform (including any provided trading tools), the platform intellectual property, the ledgerx trademarks, and any and all related information, materials, and services provided by or on behalf of ledgerx or its affiliates in connection with this agreement, are provided on an “as-is,” “as available” basis without any representations or warranties of any kind. Ledgerx makes no representation or warranty, express or implied, and, to the extent permitted by applicable law, expressly disclaims any and all such representations and warranties, including any with respect to timeliness, completeness, merchantability, noninfringement, or fitness for any particular purpose, or that api client will be error- free, uninterrupted, secure, or virus-free. Participant assumes the sole risk of making use of any of the foregoing. None of ledgerx or any of its affiliates will be liable to participant or any other person or entity for any special, indirect, incidental or consequential damages of any kind arising from this agreement and/or access or use of the platform.
Participant agrees to defend, indemnify and hold harmless LedgerX, its Affiliates and its and their respective officers, directors, employees, agents, representatives, successors and assigns (collectively “LedgerX Indemnitees”), from and against any and all losses, liabilities, damages, actions, suits, demands or claims brought by any Third Party (including amounts paid in settlement, reasonable costs of investigation and reasonable attorneys’ fees and disbursements), arising out of or resulting from (a) the negligence, gross negligence, bad faith or intentional or willful misconduct of Participant or its Affiliates, Authorized Representatives or Authorized Users; (b) breach of any of Participant’s representations, warranties, covenants or agreements contained herein (including any use of the Platform Intellectual Property except as authorized herein); (c) any data, information, or content provided, used, uploaded, or transmitted by or on behalf of Participant in connection with its use of the Platform Intellectual Property; and/or (d) violation of Law by Participant or its Affiliates, Authorized Representatives or Authorized Users in connection with Participant’s performance under this Agreement.
Section 6.3.In connection with the foregoing indemnification obligation, Participant will not accept any settlement which does not provide the LedgerX Indemnitees with a complete release or imposes liability not covered by these indemnifications or places restrictions on the LedgerX Indemnitees without LedgerX’s prior written consent, which consent will not be unreasonably withheld or delayed. The LedgerX Indemnitees may participate in the defense of any claim through their own counsel, and at their own expense.
Each Party hereto acknowledges that it or its officers, directors, employees, agents, representatives, or Affiliates may, in the course of offering or using the Platform and any related services provided under this Agreement, be exposed to or acquire information regarding this Agreement, the terms of the arrangement reflected herein or other information that is proprietary to or confidential, including proprietary data or personal information collected or received for the purpose of fulfilling a regulatory obligation, to another Party, such Party’s Affiliates or Third Parties to whom such Party has a duty of confidentiality (“Confidential Information”). Each Party agrees to hold any Confidential Information in strict confidence and not to disclose such information to any Person, except as may be necessary in connection with the performance by such Party of its obligations to the other Party hereunder. Each Party will advise each of its officers, directors, employees, agents, representatives, or Affiliates who may be exposed to Confidential Information of their obligation to keep such information confidential.
The foregoing confidentiality obligations shall not apply to information that (a) is or becomes part of the public domain without breach of this Agreement by the Party disclosing such information; (b) was acquired by such party independently of the other Party and is not otherwise subject to an obligation of confidentiality; (c) is subsequently obtained by such Party from a Third Party not known by it to have an obligation to maintain the confidentiality of such information; (d) is developed independently by or on behalf of such Party, without reference to Confidential Information; (e) a Party has provided consent to the other Party whereby the latter Party is permitted to use the former Party’s Confidential Information without the restrictions set forth above; or (f) is disclosed pursuant to a requirement imposed on such Party by law, order, judgment, decree, or pursuant to any rule, regulation or request of or by any government, court, administrative or regulatory agency or commission, other governmental or regulatory authority or any self-regulatory organization. Notwithstanding anything to the contrary in this Agreement, nothing in this Agreement shall restrict a Party from disclosing Confidential Information to any governmental authority having jurisdiction over such party if (i) the Party is requested to do so thereby or (ii) the Party determines in its sole discretion that it is necessary or appropriate to provide such Confidential Information thereto, provided, in each case, that the Party providing the Confidential Information shall have, wherever applicable, taken reasonable steps to protect the confidentiality of such information as it would take with respect to the protection of its own comparable confidential information in such circumstances.
This Agreement will commence on the Effective Date, and will continue unless and until terminated by: (a) LedgerX or Participant upon thirty (30) calendar days’ prior written notice to the other Party; (b) immediately upon written notice by LedgerX to Participant upon a breach of this Agreement, including but not limited to a breach of any Rules; and (c) immediately upon written notice by LedgerX when there has been no activity in the Participant’s account(s) for a period of twelve (12) consecutive months.
Upon expiration or any termination of this Agreement: (a) all rights and licenses granted to Participant shall terminate automatically without further notice; (b) Participant shall immediately cease accessing and using the Platform Intellectual Property and the LedgerX Trademarks, and immediately return or destroy (at LedgerX’s direction) any materials in its possession or control, in whatever form, consisting of, containing, and/or bearing, Platform Intellectual Property, LedgerX Trademarks, and/or Confidential Information of LedgerX, and certify in writing to LedgerX that it has done so; (c) Participant shall not make any further reproductions (in electronic, hard copy, or any other format), of materials generated through the Platform prior to such expiration/termination; and (d) LedgerX shall return or destroy (at Participant’s direction) any materials in its possession, in whatever form, containing Confidential Information of Participant. Notwithstanding the foregoing, copies of Confidential Information that are required to be retained by law or regulation or audit requirements or that are created pursuant to any automated archiving or back-up procedures which cannot reasonably be deleted may be retained; provided, however, that such Confidential Information shall continue to be subject to the terms of this Agreement. The Participant shall be bound by the Rules after the expiration or termination of this Agreement to the extent mandated by the Rules. In addition, the provisions of Section 3.2 and Articles 5–9 shall survive any expiration or termination of this Agreement.
Section 9.1. Force Majeure.
Force Majeure. Except with respect to any obligations to make payments, no Party shall bear any responsibility or liability for any delay in or interruption of the performance of its obligations under this Agreement due to any act of God, fire, flood, earthquake or other natural disaster, severe or adverse weather conditions, equipment failure, communications line failure, act of governmental authority, judicial decree, act of the public enemy, war, terrorism, riot, civil commotion, insurrection, labor difficulty (including, without limitation, any straw or other work stoppage or slowdown), or other cause beyond the reasonable control of the Party so affected, provided that such nonperformance could not have been prevented by reasonable precautions (each, a “Force Majeure Event”). Upon any such Force Majeure Event, the obligations under this Agreement of the Party affected by such Force Majeure Event shall be postponed for such time as the performance of such Party is suspended or delayed on account thereof. The affected Party shall promptly notify the other Party upon learning of the occurrence of such Force Majeure Event. Upon the cessation of such Force Majeure Event, the affected Party will use its commercially reasonable efforts to resume its performance with the least delay practicable.
Amendments.LedgerX may amend this Agreement at any time by sending a Participant Notice to Participants and any such amendments will be binding on the Participant and its Authorized Users effective upon the sending of such Participant Notice. LedgerX will endeavor to provide thirty (30) calendar days’ prior notice of amendments that are likely to materially and/or adversely affect the Participant or its rights hereunder. The Participant’s or its Authorized User’s continued use of the Platform after such Participant Notice is sent and the effective date of any amendment shall constitute the Participant’s ratification of, and agreement to, any such amendment.
Waiver.No waiver by either party of any default by the other party in the performance of any provisions of this Agreement shall operate as a waiver of any continuing or future default, whether of a like or different character.
Assignment.Participant may not assign or otherwise transfer (whether by operation of law, merger, consolidation, sale of all or substantially all of its assets, stock, or otherwise) this Agreement or any of its rights or obligations hereunder without the express prior written consent of LedgerX (such consent not to be unreasonably withheld). Any act which is inconsistent with the terms of this Section shall ab initio be null and void and unenforceable. In contrast, LedgerX may freely transfer its rights and/or obligations under this Agreement without the advance consent from or notice to the Participant (including, without limitation, to an Affiliate of LedgerX, as part of the sale or exclusive license of all or substantially all of the business, assets, or stock of LedgerX and/or in connection with any merger, consolidation, combination, plan of arrangement or reorganization of LedgerX). Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the Parties and their permitted successors and assigns.
Severability.If, for any reason whatsoever, any one or more provisions of this Agreement shall be found to be inoperative, invalid, or unenforceable, that provision shall be reformed to the maximum extent permitted to preserve the Parties’ original intent; failing which, it shall be severed from this Agreement with the balance of this Agreement continuing in full force and effect.
Counterparts.This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, but all of which together shall constitute one agreement binding on the parties hereto.
Whole Agreement.This Agreement, as amended or modified from time to time, shall constitute the entire agreement between Participant and LedgerX respecting the Platform and related software and services described herein, and shall supersede all prior agreements, arrangements, representations or promises, whether oral or written, as to its subject matter. In the event that the terms of this Agreement are in conflict with any of the Rules or the Participant Application and Agreement, this Agreement shall prevail.
Governing Law.This Agreement shall be governed by, and construed in accordance with, the Laws of the State of New York without regard to any provisions of New York Law that would apply the substantive Law of a different jurisdiction. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in New York City before three arbitrator(s) who shall be appointed in accordance with the Commercial Arbitration Rules of the American Arbitration Association. All arbitrators must have experience in the financial services industry, and no less than one arbitrator must have experience in the commodity futures or swap industry. The arbitration shall be administered by the American Arbitration Association pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. In any arbitration arising out of or related to this Agreement, the arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrator(s) determine a Party to be the prevailing Party under circumstances where the prevailing Party won on some but not all of the claims and counterclaims, the arbitrator(s) may award the prevailing Party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing Party in connection with the arbitration.
Notices.Notices relating to this Agreement shall be sent to email@example.com.
Last updated: March 6, 2020
Ledger Holdings, Inc. ("us", "we", or "our") operates https://www.ledgerx.com (the "Site"). This page informs you of our policies regarding the collection, use and disclosure of Personal Information we receive from users of the Site.
We use your Personal Information only for providing and improving the Site. By using the Site, you agree to the collection and use of information in accordance with this policy.
We want you to understand the types of information we collect when you register for and use LedgerX platform and services.
Information you provide to us at registration
While using our Site, we may ask you to provide us with certain personally identifiable information that can be used to contact or identify you. Personally identifiable information may include, but is not limited to your name, last name and email.
When you create a LedgerX Account, you provide us with personal information that includes your contact information (Email Address, name, and a password), as well as the required documents to comply with the KYC process. You will also need to download an Authenticator app of your choice, such as Google Authenticator, to be used for 2FA verification for improved security of your account.
Information we collect when authenticating user identity
To comply with global industry regulatory standards including Anti-Money Laundering (AML), Know-Your-Customer (KYC), and Counter Terrorist Financing (CTF), LedgerX requires user accounts to undergo user identity authentication for both Personal & Enterprise-level accounts. This entails collecting formal identification.
Information we collect as you use our services
Service Usage Information Through your use of the LedgerX platform, we also monitor and collect tracking information related to usage such as access date & time, device identification, operating system, browser type, browser version, the pages of our Site that you visit, IP address, and other statistics. This information may be directly obtained by LedgerX or through third party services. This service usage data helps us our systems to ensure that our interface is accessible for users across all platforms and can aid during criminal investigations.
For all personal and enterprise user accounts, we collect transaction information including deposit snapshots, account balances, trade history, withdrawals, order activity and distribution history. This transaction data is monitored for suspicious trading activity for user fraud protection, and legal case resolution.
We may use your Personal Information to contact you with newsletters, marketing or promotional materials and other information that may be of interest to you. You may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.
Cookies are files with small amount of data, which may include an anonymous unique identifier. Cookies are sent to your browser from a web site and stored on your computer's hard drive.
Like many sites, we use "cookies" to collect information. You can instruct your browser to refuse all cookies or to indicate when a cookie is being sent. However, if you do not accept cookies, you may not be able to use some portions of our Site.
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