LedgerX is registered with the U.S. Commodity Futures Trading Commission (“CFTC”) as the operator of 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 this Agreement. Capitalized terms used but not defined herein have the respective meanings given to them in the LedgerX Rulebook (as defined below). LedgerX will provide the 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”).
II. Participant Obligations and Consent to Jurisdiction of LedgerX.
Participant shall pay the fees and charges for the Services as specified from time to time on the www.ledgerx.com website ("Website"). The current fees and charges for the Services are enumerated on the Website. LedgerX will notify the 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.
The Participant will be bound by, and comply with, 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”). In the event of any conflict between this Agreement and the LedgerX Rulebook, the Rulebook will govern.
The Participant hereby consents to the jurisdiction of LedgerX. Upon the prior written request of LedgerX, the Participant will promptly (but in any event, within five Business Days) provide to LedgerX such information about its Authorized Representatives as LedgerX requests. The Participant hereby acknowledges and agrees that it has received and read the LedgerX Rulebook.
The Participant hereby agrees that it will only allow its duly authorized employees and representatives, in each case previously identified to LedgerX, to access or use the Services.
III. Participant’s Representations and Warranties.
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, Participant will be deemed by such act to represent, warrant and covenant to LedgerX, that:
- if such Participant is not a natural person, 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;
- if such Participant is an individual, it is of the age of majority in the individual’s state of residence;
- such Participant has all requisite legal authority and capacity to enter into this Agreement and to use the Services on its own behalf and to perform its obligations as a Participant;
- such Participant and its Authorized Representatives are and will be in compliance with all material respects of the Act, CFTC Regulations and all other applicable laws, rules, regulations, judgments, orders and rulings of any governmental authority or self-regulatory organization, authority, agency, court or body, including the laws of any jurisdiction applicable to an Order or Transaction (collectively, “Applicable Law”) (including data protection and privacy laws and laws with respect to recording messages of Participant employees, including providing and obtaining required notices or consents);
- and such Participant is not statutorily disqualified from acting as a Participant and there is not pending, or to the best of its knowledge threatened, any action, suit or proceeding before or by any court or other governmental, regulatory or self-regulatory body to which it is a party that seeks to affect the enforceability of this Agreement or its ability to act as a Participant.
IV. Eligible Contract Participant Status.
The Participant hereby represents, warrants and covenants to LedgerX, and each time the Participant or any of its Authorized Users enters an Order, effects a Transaction or otherwise uses the Services, such Participant will be deemed by such act to represent, warrant and covenant to LedgerX, that such Participant is an eligible contract participant (“ECP”) because such Participant falls within the category specified.
V. Participant Acknowledgements.
The Participant further acknowledges and agrees that:
- it will abide by and be subject to the LedgerX Rulebook, as now existing and as hereafter duly amended from time to time, including the obligation to submit to arbitration;
- its status as a Participant may be limited, conditioned, restricted or terminated by the Board in accordance with the LedgerX Rulebook;
- this Agreement binds it and each of its Authorized Users, and is enforceable against it and each of its Authorized Users;
- it will provide such other information as may be reasonably requested by LedgerX from time to time as may be necessary or desirable to verify its qualifications as a Participant;
- it authorizes LedgerX to verify, on an initial and a periodic basis, by investigation, the statements in the application materials provided to LedgerX, which may include a criminal background check, a review of the applicant’s credit report, and such other action reasonably deemed necessary by LedgerX;
- it authorizes any governmental, regulatory or self-regulatory body, futures exchange, swap execution facility, securities exchange, national securities association, national futures association or other entity to furnish to LedgerX, upon its request, any information such entity may have concerning the applicant, and the applicant hereby releases such entity from any and all liability of whatsoever nature by reason of furnishing such information to LedgerX;
- it authorizes LedgerX to make available to any governmental, regulatory or self- regulatory body, futures exchange, swap execution facility, securities exchange, national securities association, national futures association, bank or other entity (upon such entity’s showing of proper authority and need) any information LedgerX may have concerning the applicant, and it hereby releases LedgerX from any and all liability of whatsoever nature by reason of furnishing any such information;
- it hereby authorizes LedgerX to deduct from its account maintained on the books and records of LedgerX all fees or other charges accruing to the Participant;
- it will keep confidential all information related to the Settlement Bank, including but not limited to the name of such Settlement Bank, account numbers, and bank personnel, except as necessary to perform LedgerX-related transfers;
- upon each transfer of Underlying to LedgerX, it will pledge to LedgerX a first-priority security interest in such Underlying, and it authorizes LedgerX to make transfers of such Underlying in accordance with the LedgerX Rulebook;
- it hereby declares that the statements in this Agreement and in any application materials provided to LedgerX are true, complete and accurate, and that it will promptly notify LedgerX in writing if any representation, warranty or covenant made herein changes or ceases to be true; and
- it will be solely responsible, at its own risk and expense, for (i) acquiring, installing and maintaining all equipment, hardware and software (other than (x) any applications, algorithms, software, interfaces or code that LedgerX may provide to such Participant pursuant to the terms of this Agreement for purposes of accessing and utilizing the Platform (collectively, “Trading Tools” and (y) the Platform), internet access, telecommunications, and network systems necessary and compatible for it to access and use the Platform and Trading Tools and (ii) ensuring that any systems, facilities, servers, routers, and other equipment and software it uses to access and use the Platform and Trading Tools are at all times protected by, and at all times comply with, all applicable information security and firewall precautions, but at all times at a level of security not less than that prevailing in the industry; and it will comply with the Participant Security Policy (as may be amended, supplemented or otherwise modified from time to time by LedgerX in its sole discretion) set forth on the Website, which is made a part of, and incorporated by reference into, this Agreement.
The 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 the Participant or arising out of or relating to this Agreement, including any failure by the Participant, for any reason, fraudulent, negligent, or otherwise, to comply with its obligations and requirements set forth in this Agreement, or any failure of the 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 the Participant with written notice of that claim; provided, however, that failure to provide such notice will not relieve the Participant of its indemnity obligations hereunder except to the extent the Participant is materially prejudiced thereby and the Participant will not be responsible for those expenses, costs and damages that LedgerX incurs solely as a result of any such delay. The 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.
VII. Data Use Consent.
The 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: (i) the price and quantity data for each Transaction entered into by Participant that is executed via the Services and (ii) each bid, offer and/or Order provided via the Services by Participant. The Participant acknowledges and agrees that LedgerX may use such information for business, marketing and other purposes.
VIII. Netting Program.
The 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. The Participant hereby chooses to opt in or opt out of such Netting Program as elected on the signature page hereto.
Subject to Applicable Law and the LedgerX Rulebook, LedgerX or the Participant may terminate this Agreement by giving the other prior written notice. Termination of this Agreement will not affect liability accrued as of termination. Paragraphs VII and VIII will survive termination of this Agreement and continue in full force and effect.
X. Complete Agreement.
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 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. Delivery of an executed signature page to this Agreement by facsimile or other customary means of electronic transmission, including by PDF file, shall be as effective as delivery of an original signed counterpart of this Agreement.
XIII . Assignment.
The Participant may not assign this Agreement, in whole or in part, without the prior written consent of LedgerX.
XIV. USA PATRIOT Act Notice.
LedgerX hereby notifies the Participant that pursuant to the requirements of the USA PATRIOT Act, it is required to obtain, verify and record information that identifies the Participant, which information includes the name and address of the Participant and other information that will allow LedgerX to identify the Participant in accordance with the USA PATRIOT Act.
XV. Governing Law.
This Agreement will be governed by the law of the State of New York. Any dispute between LedgerX and the Participant arising from or in connection with this Agreement will be settled in accordance with the procedures set forth in the LedgerX Rulebook. Representations
The undersigned represents that the information and statements contained herein, including the all items or exhibits referenced or attached hereto, may be verified by investigation, and hereby declares that they are true, complete and accurate.
By executing and delivering this application, the undersigned agrees, for itself and on behalf of its Authorized Users, Designated Operation Contact, Authorized Representatives and any other person interacting on or with the Platform as follows:
- the Applicant hereby agrees to abide by the LedgerX Rulebook;
- the Applicant authorizes any governmental, regulatory or self-regulatory body, futures exchange, swap execution facility, securities exchange, national securities association, national futures association or other entity to furnish to LedgerX, upon its request, any information such entity may have concerning the Applicant, and the Applicant hereby releases such entity from any and all liability of whatsoever nature by reason of furnishing such information to LedgerX;
- the Applicant authorizes LedgerX to make available to any governmental, regulatory or self-regulatory body, futures exchange, swap execution facility, securities exchange, national securities association, national futures association, Settlement Bank or other entity (upon such entity’s showing of proper authority and need) any information LedgerX may have concerning the Applicant, and the Applicant hereby releases LedgerX from any and all liability of whatsoever nature by reason of furnishing such information; and
- the Applicant acknowledges its obligation to update any and all information contained in any part of this application for so long as the Applicant is a Participant
By executing this application, the undersigned hereby represents and warrants on behalf of the applicant that (i) the Applicant is an “eligible contract participant” as such term is defined in Section 1a(18) of the Commodity Exchange Act, as amended and (b) the Applicant meets the eligibility requirements as set forth in Rule 3.2 of the LedgerX Rulebook.