The following describes the terms on which Flett Exchange provides its Users access to its trading platform ("the Site").
Introduction
Welcome to Flett Exchange (the "Exchange"). Before you will have access to the Exchange, you must read and accept all terms and conditions contained in, and linked to, this User Agreement ("the Agreement"), Site Disclaimer and Privacy Policy listed herein.
Acceptance
By accessing all or any part of this Site, you accept and agree to comply with all terms and conditions set forth below. Please read these terms and conditions carefully.
If the Agreement is updated, users will be prompted and required to accept the amended terms of the Agreement prior to further access to the Exchange.
Use of the Exchange and Accessing the Website
Prior to access to the Site being granted, the User must (i) comply with any eligibility criteria required by the Exchange and (ii) submit in writing on an Exchange authorization form the names of its employees and officers that the User requests approval for authorized use of the Site ("Authorized Persons").
Transmission of Information
In connection with User’s use of the Site, the operation of the Site (including the matching of bids and offers received by the Site and the formation of final transactions with respect thereto) shall be based on, and the User shall be bound by all bids, offers, other orders or commands and/or other input information received from (i) the User; (ii) any Authorized Person accessing the Site or (iii) the Exchange on User’s behalf and request. In each case in the form and at the time in which such information is received by the Site and subject to the Site’s internal operational trading rules.
Transaction confirmations sent to the User or any Authorized Person, by the Site shall reflect the terms of the transaction entered into in accordance with this Agreement. The User or any Authorized Person shall notify the Exchange of any error or mistake in the transaction confirmation immediately upon receipt provided, however, that cancellation of any transaction shall be subject to approval of the Exchange.
The Exchange shall have no duty to verify whether any information submitted to the Site by any person using User’s valid access information was authorized by the User and the User will be bound by any and all such bids, offers and other orders and commands and resultant transactions.
Security Procedures
It is the User’s responsibility to comply with any security measures and procedures for authentication requested by the Exchange from time to time and to ensure that only Authorized Persons have access to the Site. The User will ensure that its access to the Site is not used for any improper purpose. It is the User's responsibility to maintain commercially available virus checking software to protect itself and the Site from viruses.
User Obligations/Restrictions
The User shall (i) comply with all reasonable instructions notified to the User by the Exchange from time to time in relation to the User’s access to and use of the Site; (ii) notify the Exchange immediately of any defect in the Site or any unauthorised access or change to the Site which the User becomes aware; and (iii) be responsible for any transaction formed on the Site.
While using the Exchange and Accessing the Website, you will not:
violate any laws, third party rights, or policies noted herein;
use the Exchange if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from the Exchange;
use the Exchange or information on the Site with the intention of avoiding payment of fees to the Exchange (for example, by using the Site to identify a potential counter-party with a view to trading directly with such counter-party outside the Site, or by entering into a low volume of transactions on the Site with the specific intention of subsequently entering into further identical transactions with the same counter-party outside the Site);
fail to deliver payment for items purchased by you unless authorized personnel of the Exchange cancels the completed transaction;
fail to deliver items sold by you, unless the buyer fails to make payment in accordance with the terms of the agreed upon transaction;
manipulate the price of any item or interfere with other Users' listings;
circumvent or manipulate contract prices noted, the billing process, or fees owed to the Exchange;
prearrange transactions;
open more than one account for or as an individual or entity;
trade with one's self, whether an individual or entity;
post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
contact any User outside of the Exchange Site for the purpose of intimidation or coercion with the intent to modify any portion of an order or transaction.
take any action that may undermine the business of the Exchange (such as displaying, importing or exporting information from the Site or for using such information for purposes unrelated to the Exchange);
transfer your Exchange account and User ID to another party (Non-Authorized Person(s)? without the consent of the Exchange;
distribute or post spam, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm the Exchange, or the interests or property of Exchange Users;
harvest or otherwise collect information about Users, including email addresses, without their consent;
sell, lease, license, transfer, provide or otherwise make available to any third party any form of access to or use of (i) the Site or (ii) to any of the information noted in the Site
copy, modify, or distribute content from the Site or
alter, enhance, make derivative works of, download to computer, decompile, disassemble or reverse engineer all or any part of the Site or information on the Site except solely to the extent (i) expressly required by applicable law or permitted by this Agreement.
Access and Interference
Information on the Exchange Site is updated on a real-time basis and is proprietary to the Exchange. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission.
In addition, you agree that you will not:
take action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for Your Information) from the Site without the prior expressed written permission of the Exchange and the appropriate third party, as applicable;
interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or
bypass exclusion headers or other measures we may use to prevent or restrict access to the Site.
No Solicitation in Relation to Securities or Commodities
Flett Exchange is not a regulated exchange subject to regulation by the Securities and Exchange Commission, or any other regulatory authority. Accordingly, offers of trade on the Exchange do not constitute solicitations for the purchase or sale of regulated securities or commodities. The Contracts provided are unregulated forward contracts that must result in actual delivery with full payment of the underlying contract product. Parties are not permitted to offset their payment or delivery obligations against other transactions conducted on the Exchange.
Abusing Flett Exchange
Without limitation of remedy, and where the Exchange deems, at its sole discretion necessary and appropriate, Flett Exchange may take any technical and legal steps necessary to limit, suspend, or terminate service to User accounts, prohibit access to its Site and, remove hosted content.
Control of Site
The Exchange shall have sole discretion and control over, and the right to modify at any time, the Site's functionality, configuration, appearance, content and the Products made available for trading via the Site. Users will be notified by the Exchange regarding modifications made as soon as practicable.
The Exchange shall have the right with or without notice (but giving as much notice as reasonably practicable) to suspend or limit a User, or any particular Authorized Person’s access to the Site or any part of the Site or to decline to grant Authorized Person status including, without limitation, in the event that (i) User, or any Authorized Person(s), is not eligible for such access; or (ii) The Exchange, in its reasonable opinion, considers such action to be necessary to protect and preserve the security or integrity of the Site, theExchange's rights in the Site or other Users of the Site; or (iii) the Exchange suspects market or Site abuse or misuse.
The Exchange shall have the right to cancel any transaction on reasonable grounds including, without limitation (i) party or technological error; (ii) trade pricing outside of price range;
(iii) trade details not consistent with product contract terms; or (iv) Site abuse or misuse.
Under no circumstance will Flett Exchange or a Counter-party be responsible for subsequent
deals or obligations that a User might make in response to the trade that was subsequently cancelled by Flett Exchange.
Fees to Flett Exchange
There is no fee to access the Exchange’s listings. Fees are assessed for completed transactions in accordance with the fee schedule posted. It is assumed that all Users have reviewed the Fee Schedule. Unless otherwise stated, all fees are quoted in U.S. Dollars.
Flett Exchange also collects Good faith Deposits from all Users (See below)
Flett Exchange shall keep all funds received in a “customer segregated account” (CSA) which keeps all funds separate from Flett Exchange LLC operating funds. The CSA is held in an account with Commerce Bank. Deposits are not fully insured and may be at risk due to bank insolvency. Flett Exchange retains the right to purchase US government bonds and securities with customer segregated funds. All interest and proceeds are for the benefit ofFlett Exchange LLC.
Flett Exchange reserves the right to pass along any charges to its Users including, but not limited to, bank charges, wire fees, transfer fees, credit card or any credit fees. All deposits will be in a federally insured bank account. Flett Exchange reserves the right to retain any interest received on deposited funds.
Fees to Seller Counter-party
It is the responsibility of the Purchaser to pay the negotiated and accepted contract price together with applicable taxes associated with the transaction to the Seller in a timely manner with a valid payment method as defined in this user Agreement.
The Exchange cannot and does not provide tax advice. Unless otherwise specifically required by the listed contract, it is advised that the Seller contact a tax professional to determine whether sales tax on Exchange sales should be assessed.
Delivery to Purchaser Counter-party
The Seller is responsible for making delivery to the Purchaser counter-party of the product underlying the forward contract negotiated and agreed to between the parties.
Valid Payment Method
Payment for commodities, commission, or margin/security deposit must be made to Flett Exchange, LLC via check mailed to 15 Exchange Place, Jersey City, NJ 07302, or via wire transfer to Flett Exchange, LLC through Commerce Bank (contact Flett Exchange Accounting Representative for wire instructions) or through credit card (VISA, MasterCard, American Express, Paypal) Users May agree to use the “Off Exchange Payment Option”. This allows a buyer to pay the seller outside of the Flett Exchange system. The Users Margin deposit will then be used to satisfy commissions to Flett Exchange.
Proceeds from commodity sales/ return of margin/security deposit
All proceeds from commodity sales or return of margin/security deposit will be in the form of check mailed to the customer. All funds will be released only after all contracts that the customer had made are completed to the satisfaction of both parties.
Proceeds due from commodity sales in contracts allowing credit cards will be distributed to seller less any fees incurred by Flett Exchange, LLC by processing those transactions. The return of any funds that were posted using credit card/Paypal will be refunded less any fees incurred by Flett Exchange, LLC by processing those transactions.
Intellectual Property
All Intellectual Property Rights (as defined below) in and relating to (i) the Site; and (ii) any data (including without limitation bids, offers, prices, volumes of Transactions, transaction details including "grey area details"™ and "gray are details"™, but excluding User Information as defined below), analytics, research or other information contained in, displayed on, generated by or derived from the Site (the Site information) are owned by, or licensed to, the Exchange and the User agrees such Intellectual Property Rights shall remain vested exclusively in the Exchange and/or itslicensors (other than User) and/or their respective successors both during and after the term of this Agreement. Any goodwill generated through the User’s access to, or use of, the Site shall inure solely for the benefit of the Exchange and/or itslicensors (other than User) and/or their respective successors.
For the purposes of this Agreement, Intellectual Property Rights shall mean all right, title and interest in and to (i) trade marks, service marks, brand names and other indications of origin and the goodwill associated with the foregoing; (ii) inventions, patents, trade secrets, know-how, processes and systems; (iii) copyright and database rights; and (iv) any other intellectual property or similar proprietary rights in any jurisdiction, in each case whether registered or not.
Materials copyrighted, trade marked, or in any way owned by the Exchange are presented here for personal use or for reference only. Documents, content or images contained in this Site
MAY NOT be copied, reproduced, distributed or resold in any form without prior written permission from the Exchange.
The User acknowledges that the Intellectual Property Rights in the Site and the Site information are a valuable asset of the Exchange and/or itslicensors (other than User) and/or their respective successors and the User shall protect and safeguard the Intellectual Property Rights in and to the Site and the Site, exercising no less than a reasonable degree of care.
The User shall promptly notify the Exchange upon becoming aware of any infringement or misappropriation of any Intellectual Property Rights of the Exchange or itslicensors. The User shall comply with all reasonable requests made by the Exchange (at the Exchange's reasonable expense) to protect and enforce the Intellectual Property Rights of the Exchange or its licensors in the Site and the Site information.
Licence of User Information
User acknowledges and agrees that the Exchange shall be permitted, a nonexclusive, perpetual, transferable, worldwide and royalty-free licence (without warranties of any kind, express or implied), to use, distribute, sub-licence, disclose and sell, for the benefit of the Exchange, any data submitted to the Site by the User and all price, volume and other information regarding User’s transactions. Furthermore, User agrees that the Exchange may disclose to any person the list of the Users of the Site (including the User) from time to time.
DISCLAIMER OF WARRANTIES
User acknowledges, understands and accepts that Neither Flett Exchange nor its directors, officers, affiliates, subsidiaries, shareholders, employees or agents has made any warranty whatsoever to User as to the Site information, express or implied, and that the transactions are being made available to User solely on an “as is” basis at User’s sole risk.Flett Exchange DOES NOT GUARANTEE COUNTER PARTY PERFORMANCE AND USER ACCEPTS THAT THERE IS UNLIMITED COUNTER-PARTY RISK. Flett Exchange expressly disclaims any implied warranties of merchantability or fitness for a particular purpose. Flett Exchange does not endorse any of the products traded or with respect to the correctness, accuracy, completeness, reliability, performance, timeliness, delays, omissions, AND INTERRUPTIONS therein or continued availability of the Site, any price displayed via the Site or any transaction offered via the Site. Without limitations of the foregoing, the bid and offer prices to be displayed on the Site are posted by third parties unaffiliated withFlett Exchange and, to the extent permitted by applicable law, Flett Exchange has no responsibility or liability for the prices or their publication, including but not limited to their correctness, accuracy, completeness, reliability, performance, timeliness or continued availability.Flett Exchange shall not have any duty or obligation to verify, update or correct any such price, transaction or Site information displayed. User acknowledges and agrees thatFlett Exchange is not an advisor or fiduciary to User. Without limitation of the foregoing, USER acknowledges, agrees and accepts thatFlett Exchange shall have no liability or responsibility whatsoever for any matters related to the prices displayed via the Site or the transactions, including but not limited to the execution of transactions in connection with the use of the Site, all of which shall be the sole responsibility of User. THE EXCHANGE DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, THAT THE SITE WILL MEET THE USER’S REQUIREMENTS, THAT THE OPERATION OF THE SITE WILL BE UNINTERRUPTED OR ERROR FREE, THAT THE SITE WILL BE AVAILABLE DURING ANY SPECIFIED BUSINESS HOURS (WHETHER ADVERTISED OR NOT), OR THAT IT WILL OPERATE IN CONJUNCTION WITH OTHER SOFTWARE.
Liability
You will not hold the Exchange responsible for other Users' actions or inactions, including things posted. You acknowledge that we provide a bilateral platform for the purchase and sale of various products. Flett Exchange is not involved in the actual transaction between buyers and sellers including the transfer of legal ownership from the seller to the buyer and does not take title to any of the listed products.Flett Exchange does not guarantee any bids or offers or deals executed on its system. All transactions are bilateral in nature. All users agree that the assumed counter-party risk when they execute on the system, which includes but are not limited to: nonpayment, inability to make or take delivery of a commodity, or inability to close on a deal or a complete a transaction. With the exception of specifically listed products, the Exchange has no control over and does not guarantee the quality or safety of products listed in the Site.
Further, the Exchange does not guarantee continuous or secure access to our services, and operation of the Site may be interrupted by numerous factors beyond its control. Accordingly, to the extent legally permitted and as more fullyset-forth above, we exclude all implied warranties, terms and conditions. The Exchange is not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of the use of the Site. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. Regardless of the previous paragraph, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $1,000.
Indemnity
You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party.
Good Faith Deposit/Margin
When making an offer to purchase, the potential Purchaser will be required to make a deposit with the Exchange. Likewise, a deposit is also made by the Seller upon posting an item. The amount of the required deposit is determinative of the item to be purchased and set forth in the contract proposal. In the event one does not exercise good faith in utilizingFlett Exchange's trading platform, the deposit may be forfeited at the sole discretion of authorized Flett Exchange personnel. (See Forfeiture Procedure section herein). Good faith deposit is also referred to as “margin” throughout the site.
Flett Exchange, at its sole discretion, reserves the right to hold User funds for as long as it deems necessary to guarantee or confirm User performance under the contract terms of the product traded. Flett Exchange reserves the right to increase or decrease good faith deposit/margin based on market volatility, perceived counter-party risk or any other reason deemed appropriate byFlett Exchange LLC. Flett Exchange reserves the right to charge a higher margin on a per customer basis.
Forfeiture Procedure
As set forth above, for all trades that you participate in, whether as seller or purchaser, you will be required to make a deposit with the Exchange, in an amount set forth in the proposal for the listed item, which evidences your good faith intention to consummate the transaction. In the event you do not exercise good faith in utilizing theExchange's trading platform, the deposit may be forfeited at the sole discretion of authorized Exchange personnel. The procedure for determining forfeiture under the following example is as follows:
If you fail to consummate the transaction (i.e., Buyer fails to pay, or Seller fails to deliver), your Counter-Party will notify the Exchange of such failure and request forfeiture of your deposit. The Exchange will notify you of Counter-Party’s request (“Notice of Forfeiture”). You must respond to the Notice of Forfeiture within 30 days. Failure to respond will result in forfeiture of your deposit.
Upon receipt of your response, the Exchange will make determination as to whether you acted in good faith in your failure to consummate the transaction. If it is determined by the Exchange that you did not act in good faith, then your deposit will be forfeited. If it is determined that you acted in good faith, your deposit will be returned to you.
Misuse or abuse of the Site will be automatic grounds for forfeiture and the Exchange need only give Notice of the automatic forfeiture setting forth the reasons therefore.
The Exchange is not the beneficiary of the forfeited deposit, but rather the Counter-Party.
This process through which a determination of forfeiture is made is not intended to limit an aggrieved party’s right to seek additional remedies at law through the Arbitration process set forth below. Nor will the forfeited amount be deemed to be recovery of any part of a loss sustained by an aggrieved party.
The decision will be final and binding on both parties. Parties to the decision will hold harmless Flett Exchange, its employees and Agents will be held harmless from damages arising from the decision made.
Resolution of Disputes
If a dispute arises between you and the Exchange or you and your counter-party, our goal is to provide you with a neutral and cost effective means of resolving the dispute efficiently and expeditiously. Accordingly, you and the Exchange and/or you and your counter-party agree that all claims and controversies will be resolved through an established alternative dispute resolution ("ADR") provider in an Arbitration forum. Your choice of ADR providers are the American Arbitration Association (AAA). National Arbitration Forum (NAF) or JAMS. Before resorting to Arbitration we strongly encourage you to first contact the Exchange.
Law and Forum for Disputes
This Agreement shall be governed in all respects by the laws of the State of Delaware without regard to conflict of law provisions. You agree that any claim or dispute you may have against the Exchange or any counter party to a transaction in which you are involved, may only be resolved through Arbitration. Your choice ofADR providers are the AAA, NAF or "JAMS.
The ADR provider and parties must comply with the following rules: a) the Arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the complaining party; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; c) any judgment on the award rendered by the arbitrator shall be final and binding and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Improperly Filed Claims
All claims you bring against the Exchange and/or a counter party to a transaction you were involved with (your counter-party), must be resolved in accordance with the Resolution of Disputes Section noted above. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, the Exchange and/or your counter-party may recover attorneys' fees and costs, provided that you have been notified and given the opportunity to withdraw the improperly filed claim.
Notices
Except as explicitly stated otherwise, all legal notices must be served on Flett Exchange, LLC at 15 Exchange Place Suite 710 Jersey City, NJ 07302, either by hand delivery or
mailing. The date of hand delivery or the second day after the post marked mailing date, shall be deemed to be the date of the giving of notice. All mailing related to taxi medallions will be sent to One North End Ave., Suite 1241 New York, NY 10282
No Agency
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
Release
If you have a dispute with one or more Users, you release the Exchange (and its officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
Changes to Agreement
The Exchange may amend this Agreement at any time by posting the amended terms on its Site. All amended terms shall automatically be effective when the Exchange posts
them on the Site. The user will be prompted to agree to new terms upon login to the site. Flett Exchange may suspend all orders if it changes the user agreement, privacy policy or site disclaimer.
Termination of Agreement
The Exchange shall have the right with or without notice (but giving as much notice as reasonably practicable) to terminate this Agreement in the event the Exchange, in its reasonable opinion, considers such action to be necessary to protect and preserve the security or integrity of the Site, theExchange's rights in the Site or other Users of the Site; or (iii) The Exchange suspects market or Site abuse or misuse.
The User shall have the right to terminate this Agreement but only after written Notice is received by the Exchange.
Immediately on any termination of this Agreement, the Exchange and the User shall as soon as practicable remove from the Site any outstanding prices submitted by the User, provided that the User shall be bound by any transaction resulting from any order entered into the Site whether such transaction is made before or after termination of this Agreement
Any termination of this Agreement whether in whole or in part shall not affect the accrued rights or liabilities of either party under this Agreement or the User's rights and obligations under any transaction.
The following Sections survive any termination of this Agreement: Fees and Services (with respect to fees owed for our services), Release, Liability, Indemnity, and Resolution of Disputes.
Miscellaneous
This Agreement sets forth the entire understanding and agreement between the User and the Exchange with respect to the subject matter hereof.
The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other terms of this Agreement which will remain in full force and effect.
Only the Exchange or the User may enforce any of the terms of this Agreement.
User acknowledges that any breach by it of its obligations herein may cause the Exchange irreparable harm and damage and therefore agrees that, in addition to any other rights or remedies that may be available to The Exchange at law or in equity, The Exchange shall be entitled to appropriateinjunctive relief, without the posting of any bond or security.
The Exchange's failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. The Exchange does not guarantee that it will take action against all breaches of this Agreement.
The User shall not assign or transfer or purport to assign or transfer this Agreement or any part of it or the benefit or burden thereof without the prior written consent of the Exchange. Any assignment in contravention of this provision shall be void. In its sole discretion, The Exchange may assign this Agreement in accordance with the Notices Section herein.
The User acknowledges that any telephone call made to the Exchange may be recorded and that any such recording is the Exchange's property and may be used by the Exchange in evidence.
Headings are for reference purposes only and do not limit the scope or extent of such section.
This Exempt Commercial Market User Agreement (ECM and "ECM Agreement") describes the terms on which Flett Exchange provides its ECM Users with access to its ECM trading platform ("ECM Site").
The ECM Agreement sets forth certain rights and obligations of ECM User with respect to ECM User's access and use of the ECM Site, a proprietary trading platform of Flett Exchange for certain ECM Transactions. As used herein, "ECM Transactions" means the transaction of certain financial products, including, but not limited to Natural Gas and Crude Oil options and Natural Gas Swaps; and such other markets as may in the future be developed by Flett Exchange. As used herein, "Site Information" means, as displayed through the ECM Site from time to time, certain data consisting of bids and offers in connection with the offer or sale of ECM products via the ECM Site.
Introduction
Welcome to Flett Exchange and to the Flett Exchange ECM trading platform ("the ECM Site"). Before you may have access to Flett Exchange or to the ECM Site, you must read and accept all terms and conditions contained in, and linked to, this ECM Agreement, Site Disclaimer, Privacy Policy and the Fee Schedule listed herein.
You may use the ECM Site solely to trade ECM products and solely in accordance with terms and conditions contained in this ECM Agreement. Flett Exchange is not affiliated with NYMEX, ICE or any other regulated market place.
Acceptance
By accessing all or any part of this ECM Site, you accept and agree to comply with all terms and conditions set forth below. Please read these terms and conditions carefully. If the ECM Agreement is updated, ECM Users will be prompted and required to accept the amended terms of the ECM Agreement prior to further access to Flett Exchange or to the ECM Site.
Scope
This ECM Agreement, together with all terms and conditions contained in, and linked to, this ECM Agreement, Site Disclaimer and Privacy Policy listed herein, will govern ECM User's access to and use of the ECM Site. ECM User shall comply with all applicable laws, regulations, rules, guidelines and agreements in its receipt and use of the ECM Site and Site Information and shall be solely responsible for obtaining and maintaining all required licenses, permits and consents to receive and use the ECM Site and Site Information.
This ECM Agreement entirely supersedes and replaces any and all other agreements between Flett Exchange and ECM User relating to the subject matter hereof.
Use of Flett Exchange and Access to the ECM Site
Prior to grant of access to Flett Exchange, the ECM Site and Site Information, ECM User must (i) comply with and acknowledge any eligibility criteria required by Flett Exchange and (ii) submit in writing using a Flett Exchange authorization form the names of its employees and officers for whom ECM User requests approval for authorized use of the ECM Site ("Authorized Persons").
Transmission of Information
In connection with ECM User's use of the ECM Site, the operation of the ECM Site (including the matching of bids and offers received by the ECM Site and the formation of final transactions with respect thereto) shall be based on, and ECM User shall be bound by, all bids, offers, other orders or commands and/or other input information received from (i) ECM User, (ii) any Authorized Person accessing the ECM Site or (iii) Flett Exchange on ECM User's behalf and request, in each case in the form and at the time in which such information is received by the ECM Site and subject to the ECM Site's internal operational trading rules.
ECM Transaction confirmations sent to ECM User, or to any Authorized Person, by the ECM Site shall reflect the terms of the transaction entered into in accordance with this ECM Agreement. ECM User or any Authorized Person shall notify Flett Exchange of any error or mistake in the transaction confirmation immediately upon receipt provided; however, cancellation of any transaction shall be subject to approval of Flett Exchange.
Flett Exchange shall have no duty to verify any Site Information, including whether any information submitted to the ECM Site by any person using ECM User's valid access information was authorized by ECM User and ECM User will be bound by any and all such bids, offers and other orders and commands and resultant transactions.
Security Procedures
It is ECM User's responsibility to comply with any security measures and procedures for authentication requested by Flett Exchange from time to time and to ensure that only Authorized Persons have access to the ECM Site. ECM User will ensure that its access to the ECM Site is not used for any improper purpose. It is ECM User's responsibility to maintain commercially available virus checking software to protect itself and the ECM Site from viruses.
ECM User Obligations and Restrictions
ECM User shall (i) comply with all reasonable instructions conveyed to ECM User by Flett Exchange from time to time in relation to ECM User's access to and use of the ECM Site; (ii) notify Flett Exchange immediately of any defect in the ECM Site or any unauthorized access or change to the ECM Site of which ECM User becomes aware or has notice; and (iii) be responsible for any ECM User's transaction formed on the ECM Site.
Access and Interference
Site Information and other information on Flett Exchange is updated on a real-time basis and is proprietary to Flett Exchange. ECM User agrees that it will not use any unauthorized means to access the ECM Site for any purpose without our express written permission.
In addition, ECM User agrees that it will not:
take action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for ECM User Information as defined below) from the ECM Site without the prior expressed written permission of Flett Exchange and the appropriate third party, as applicable;
interfere or attempt to interfere with the proper working of the ECM Site or any activities conducted on the ECM Site; or
bypass exclusion headers or other measures we may use to prevent or restrict access to the ECM Site.
ECM User Information is the identifying and/or personal data that ECM User provides to Flett Exchange.
No Solicitation in Relation to Regulated Futures
Flett Exchange is not a regulated exchange subject to regulation by the Commodity Futures Trading Commission or any other regulatory authority. Accordingly, offers to engage in ECM Transactions on Flett Exchange do not constitute solicitations for the purchase or sale of futures contracts of any kind.
Intellectual Property
All Intellectual Property Rights (as defined below) in and relating to (i) the ECM Site; and (ii) any data (including without limitation bids, offers, prices and volumes of Transactions, but excluding ECM User Information as defined above, analytics, research or other information contained in, displayed on, generated by or derived from the Site including Site Information are owned by, or licensed to, Flett Exchange. ECM User agrees such Intellectual Property Rights shall remain vested exclusively in Flett Exchange and/or its licensors (other than ECM User) and/or their respective successors both during and after the term of this ECM Agreement. Any goodwill generated through ECM User's access to, or use of, the ECM Site shall inure solely for the benefit of Flett Exchange and/or its licensors (other than ECM User) and/or their respective successors.
For the purposes of this ECM Agreement, Intellectual Property Rights shall mean all right, title and interest in and to (i) trade marks, service marks, brand names and other indications of origin and the goodwill associated with the foregoing; (ii) inventions, patents, trade secrets, know-how, processes and systems; (iii) copyright and database rights; and (iv) any other intellectual property or similar proprietary rights in any jurisdiction, in each case whether registered or not.
Materials copyrighted, trade marked, or in any way owned by Flett Exchange are presented here for personal use or for reference only. Documents, content or images contained in this ECM Site MAY NOT be copied, reproduced, distributed or resold in any form without prior written permission from Flett Exchange.
ECM User acknowledges that the Intellectual Property Rights in the ECM Site and Site Information are a valuable asset of Flett Exchange and/or its licensors (other than ECM User) and/or their respective successors and ECM User shall protect and safeguard the Intellectual Property Rights in and to the Site and Site Information, exercising no less than a reasonable degree of care.
ECM User shall promptly notify Flett Exchange upon becoming aware of any infringement or misappropriation of any Intellectual Property Rights of Flett Exchange or its licensors. ECM User shall comply with all reasonable requests made by Flett Exchange to protect and enforce the Intellectual Property Rights of Flett Exchange or its licensors in the ECM Site and Site Information.
License of ECM User Information
ECM User acknowledges and agrees that Flett Exchange shall be permitted a non-exclusive, perpetual, transferable, world-wide and royalty-free license (without warranties of any kind, express or implied), to use, distribute, sub-license, disclose and sell, for the benefit of Flett Exchange, any data submitted to the ECM Site by ECM User and all price, volume and other information regarding ECM User's transactions. Furthermore, ECM User agrees that Flett Exchange may disclose to any person the list of ECM Users of the ECM Site (including ECM User) from time to time.
Control of Site
Flett Exchange shall have sole discretion and control over, and the right to modify at any time, the ECM Site's functionality, configuration, appearance, content and the instruments made available on the ECM Site. Within the sole discretion of Flett Exchange, ECM Users will be notified by Flett Exchange regarding modifications made as soon as practicable. Without limitation of remedy, and where Flett Exchange deems in its sole discretion appropriate, Flett Exchange may take any technical and legal steps, including seeking equitable and injunctive relief, to limit, suspend or terminate service to ECM User's accounts, prohibit access to the ECM Site and remove hosted content.
Flett Exchange shall have the right with or without notice (but giving as much notice as reasonably practicable) to suspend or limit ECM User's or any Authorized Person's access to the ECM Site or any part of the ECM Site or to decline to grant Authorized-Person status, including, without limitation, in the event that (i) ECM User, or any Authorized Person(s), is not eligible for such access; (ii) Flett Exchange, in its reasonable opinion, considers such action to be necessary or appropriate to protect and preserve the security or integrity of the ECM Site, Flett Exchange's rights or other ECM Users; or (iii) Flett Exchange suspects market or ECM Site abuse or misuse.
In its sole commercially reasonable discretion, Flett Exchange shall have the right to cancel any ECM Transaction including, without limitation, for reasons based on manifest error or abuse or misuse of any kind, including abuse or misuse of Flett Exchange, ECM Site, ECM Information or applicable markets.
Fees to Flett Exchange
There is no fee to access Flett Exchange's listings. Fees are assessed for completed transactions in accordance with the fee schedule posted. It is assumed that all ECM Users have reviewed the Fee Schedule. Unless otherwise stated, all fees are quoted in U.S. Dollars.
Good Faith Deposit
When making an offer to engage in an ECM transaction, ECM User may be required to make a good faith deposit with Flett Exchange, depending upon the market being traded. Likewise, a good faith deposit may also be required by an ECM User's counterparty. Through out this site, good faith deposit is also referred to as "margin". The amount of margin that may be required will be noted under the specific contract terms and will be calculated as a percentage of the ECM transaction price. Flett Exchange reserves the right to increase or decrease good faith deposit/margin based on market volatility, perceived counter-party risk or any other reason deemed appropriate by Flett Exchange LLC. Flett Exchange reserves the right to charge a higher margin on a per customer basis.
For those contracts where a good faith deposit maybe required, if an ECM User does not exercise good faith in utilizing Flett Exchange, the ECM Site or Site Information, such deposit may be forfeited at the sole discretion of authorized Flett Exchange personnel. (See Forfeiture Procedure section below.) Flett Exchange, at its sole discretion, reserves the right to hold User funds for as long as it deems necessary to guarantee or confirm User performance under the contract terms of the product traded.
Forfeiture Procedure
As set forth herein, for all ECM Transactions in which ECM User participates, ECM User will be required to make a deposit with Flett Exchange, in an amount set forth in the proposal for the listed ECM , which evidences ECM User's good faith intention to consummate the ECM Transaction. In the event that ECM User does not exercise good faith in utilizing Flett Exchange, the ECM Site or Site Information, the deposit may be forfeited at the sole discretion of authorized Flett Exchange personnel. The procedure for determining forfeiture under the following example is as follows:
If ECM User fails to consummate an ECM Transaction, ECM User's counterparty will notify Flett Exchange of such failure and will request forfeiture of ECM User's deposit. Flett Exchange will notify ECM User of counterparty's request ("Notice of Forfeiture"). ECM User must respond to the Notice of Forfeiture within 30 days. Failure to respond will result in forfeiture of ECM User's deposit. ECM User's counterparty and not Flett Exchange is the beneficiary of the forfeited good faith deposit.
Upon receipt of the ECM User's response, Flett Exchange will make a determination as to whether ECM User acted in good faith in its failure to consummate the ECM Transaction. If it is determined by Flett Exchange that ECM User did not act in good faith, ECM User's deposit will be forfeited. If it is determined that ECM User did act in good faith, ECM User's deposit will be returned to ECM User.
Misuse or abuse of the ECM Site will constitute automatic grounds for forfeiture and Flett Exchange need only give notice of the automatic forfeiture setting forth the reasons therefore.
This forfeiture procedure is not intended to limit an aggrieved counterparty's right to seek additional remedies at law through the Arbitration process set forth herein. Nor will the forfeited amount be deemed to be recovery of any part of a loss sustained by an aggrieved party.
Payments and Taxes
It is the responsibility of the ECM User to make all necessary payments and to pay all applicable taxes and Exchange clearing and brokerage fees associated with the ECM Transaction in a timely manner with a valid payment method as defined in this ECM Agreement.
Flett Exchange cannot and does not provide tax advice. Unless otherwise specifically required by the listed contract, it is advised that ECM User contact a tax professional to determine whether sales tax on an ECM Transaction should be assessed. Flett Exchange does not charge or collect or in any other way assess tax payments. ECM User acknowledges and accepts that all taxes are the sole responsibility of ECM User.
Deliveries
Flett Exchange is not responsible for making any physical delivery pursuant to any ECM Transaction. All deliveries are the responsibilities of the ECM Users subject to rules and procedures adopted by relevant Clearing organizations such as NYMEX and the London Exchange.
Valid Payment Method
Users of Flett Exchange will be invoiced for brokerage fees. Invoices will be issued on a monthly basis and are due net 30 days. Maximum interest allowed by law will apply to unpaid balances after 30 days.
REPRESENTATIONS AND WARRANTIES OF ECM USER
Each ECM User hereby represents and warrants to Flett Exchange and other ECM Users as follows:
A) unless and until ECM User ECM User notifies Flett Exchange otherwise, ECM User is and will continue to be: an "eligible commercial entity" as defined in Section 1a(12) of the U.S. Commodity Exchange Act (as amended) (together with relevant Commodity Futures Trading Commission Notices or Regulations (the "CEA"), to the extent that ECM User engages in execution of Transactions.
ECM user expressly acknowledges that it currently understands and abides by the above cea laws, rules, regulations, or orders relating to this agreement (the "CEA laws"), and that it has had the opportunity to seek legal counsel or other knowledgeable representative to assist in such understanding. Accordingly, Flett Exchange has no duty to inform ECM user as to the CEA laws. The duty to keep informed as to CEA laws with respect to this agreement and the transactions contemplated hereunder shall at all times remain that of ECM user. Solely for ECM user's information, ECM user may locate the CEA laws at: http://www.cftc.gov
B) its representative accepting this ECM Agreement has full power and authority to accept this ECM Agreement on its behalf and to acknowledge and agree to the terms, covenants and conditions of this ECM Agreement;
upon its acceptance and delivery, this ECM Agreement will constitute a valid and binding obligation of such ECM User, enforceable in accordance with its terms;
it understands and acknowledges the risks inherent in and related to any ECM Transaction, and is willing and able to accept and assume such risks;
it understands and acknowledges the risks inherent in and related to the use of Flett Exchange, the ECM Site and Site Information, and is willing and able to accept and assume such risks;
it has relied upon advice from its own financial, tax, accounting, legal, risk-management and other advisors about using the ECM Site and entering into any ECM Transaction and agrees that it is not relying on Flett Exchange in respect of such advice;
it accepts all responsibility for tax and tax-related payments and understands that Flett Exchange is not responsible for assessing, paying or monitoring any tax or tax-related payments due on ECM Transactions in any way;
it is a sophisticated institutional party with experience in futures trading, swap transactions and ECM Transactions;
with respect to each ECM Transaction conducted by it on the ECM Site, it is an Eligible Commercial Entity as such term is defined under the U.S. Commodity Exchange Act, 7 U.S.C. 1a(11) (the "CEA"); and
it acknowledges that access to and use of the ECM Site may be monitored by Flett Exchange for its own purposes (including, without limitation, levels of activity) and not for the benefit of ECM User.
"Eligible Commercial Entity"
generally means an entity that: (a) in connection with its business, has an ability to make or take delivery of the commodity underlying the ECM Transaction, or incurs risk, in addition to price risk, related to such commodity, or is a dealer that regularly provides risk management or hedging services to the foregoing entities with respect to such commodity, and either (b) has assets exceeding US $10,000,000; or (c) its obligations are guaranteed by an entity that has assets exceeding $10,000,000; or (d) has a net worth exceeding US $1,000,000 and is entering into the ECM Transaction in connection with its business or to manage business-related risk.
ECM User hereby further represents to Flett Exchange that while using Flett Exchange, the ECM Site and Site Information, ECM User WILL NOT:
A. violate any laws, third party rights, this ECM Agreement or any other applicable Flett Exchange policies;
use Flett Exchange if ECM User is not able to form legally binding contracts, is under the age of 18, or is temporarily or indefinitely suspended from Flett Exchange;
use Flett Exchange, Site Information or other information on the ECM Site with the intention of avoiding payment of fees to Flett Exchange (for example, by using the ECM Site to identify a potential counterparty with a view to trading directly with such counterparty outside the ECM Site, or by entering into a low volume of transactions on the ECM Site with the specific intention of subsequently entering into further identical or similar transactions with the same counterparty outside the ECM Site);
fail to make any required payments, or physical or other deliveries;
manipulate the price of ECM Transactions or the underlying commodities or interfere with other ECM Users' listings;
post false, inaccurate or misleading content;
manipulate the price of any item or interfere with other ECM Users' listings;
circumvent or manipulate contract prices noted, the billing process or fees owed to Flett Exchange;
post false, inaccurate, misleading, defamatory or libelous content (including ECM User Information);
take any action that may undermine the business of Flett Exchange (such as displaying, importing or exporting information from the ECM Site or using such information for purposes unrelated to Flett Exchange);
transfer your Flett Exchange account and/or User ID to another party (i.e., non-Authorized Person(s)) without the consent of Flett Exchange;
distribute spam, viruses, technologies or any other data in any medium that may harm Flett Exchange, or the interests or property of Exchange ECM Users;
harvest or otherwise collect information about ECM Users, including email addresses, without their consent;
sell, lease, license, transfer, provide or otherwise make available to any third party any form of access to or use of (i) the ECM Site or (ii) any of the information noted in the ECM Site;
copy, modify, or distribute content from the ECM Site; or
alter, enhance, make derivative works of, download to computer, decompile, disassemble or reverse engineer all or any part of the ECM Site or information on the ECM Site except solely to the extent expressly required by applicable law or permitted by this ECM Agreement.
Broker
ECM User acknowledges and agrees that Flett Exchange is not and shall not be ECM User's counterparty to any ECM Transaction hereunder nor will Flett Exchange clear the ECM Transaction on NYMEX. Flett Exchange is acting solely as a broker on behalf of ECM Users. Flett Exchange is not acting as an advisor or fiduciary to ECM Users.
DISCLAIMER OF WARRANTIES
ECM User acknowledges, understands and accepts that Flett Exchange has not made or given any warranty whatsoever of any kind, express or implied, to ECM user as to Flett Exchange, ECM site or site information, and that the transactions are being made available to ECM user solely on an "as is" basis at ECM user's sole risk. Flett Exchange expressly disclaims any and all warranties, including without limitation implied warranties of merchantability or fitness for a particular purpose or fitness for any purpose, or with respect to the condition, correctness, accuracy, completeness, adequacy, reliability, performance, timeliness or continued availability of flett exchange, ECM site or site information, any price or other information displayed via the ECM site, any transaction offered via the ECM site or any result to be attained by ECM user or anyone else from access to or use of Flett Exchange, ECM site or site information. Without limitations of the foregoing, the bid and offer prices to be displayed on the ECM site are posted by third parties unaffiliated with flett exchange and, to the extent permitted by applicable law, flett exchange has no responsibility or liability for the prices or their publication, including but not limited to their correctness, accuracy, completeness, reliability, performance, timeliness or continued availability. Neither Flett Exchange nor its directors, officers, affiliates, subsidiaries, shareholders, employees, members, software providers, subcontractors or agents make any warranty or bear any risk with respect to, and no such party shall have any liability for, the accuracy, timeliness, completeness, reliability, performance or continued availability of the prices displayed via the ECM site, for any ECM transaction, for site information or delays, for omissions, interruptions or any other flaw therein. Flett Exchange shall not have any duty or obligation to verify, update, correct or otherwise accept any risk for any such price, ECM transaction, site information or other data displayed.
Flett Exchange does not make any representations or warranties, express or implied, that ECM site will meet ECM user's requirements, that the operation of the site will be uninterrupted or error free, that the site will be available during any specified business hours (whether advertised or not), or that it will operate in conjunction with other software.
ECM user acknowledges and agrees that flett exchange is not an advisor or fiduciary to ECM user. ECM user acknowledges that ECM transactions involve risk, agrees to accept all such risk and agrees that flett exchange does not bear any such risk. Without limitation of the foregoing, ECM user acknowledges, agrees and accepts that flett exchange shall have no liability or responsibility whatsoever for any matters related to the prices displayed via the ECM site or for any matters related to the transactions, including but not limited to the execution of transactions in connection with the use of the ECM site, all of which shall at all times be the sole responsibility of ECM user.
Rights and Remedies
Flett Exchange shall be entitled to exercise the rights set forth in this Section 20 upon the occurrence of any of the following events: (i) ECM User's breach, repudiation, misrepresentation, or default (however characterized) under this ECM Agreement or any other agreement with Flett Exchange, or under the terms of any transaction, including but not limited to the failure to make payment or delivery in connection with any ECM Transaction on demand, (ii) the commencement by or against ECM User of a proceeding under any bankruptcy, insolvency or similar law, or the appointment of a receiver, conservator or similar official in respect of ECM User, (iii) the levy of an attachment against any property or accounts of ECM User, or (iv) Flett Exchange reasonably deems such exercise to be necessary or appropriate for its protection or the proper operation of Flett Exchange, the ECM Site or its transactions. In any such event, Flett Exchange may, at its discretion, (A) cancel, terminate, suspend, accelerate, liquidate and/or close-out any ECM Transactions or any other orders, transactions or agreements with ECM User (including, without limitation, by fully or partially suspending ECM User's access to and use of the ECM Site), and (B) take such other actions as Flett Exchange deems appropriate for its own protection.
Following any exercise by Flett Exchange of such rights, ECM User shall remain liable for any deficiency and shall promptly reimburse Flett Exchange for any loss or reasonable expense incurred.
Flett Exchange shall have the right, at any time and from time to time, to set off, net and/or recoup any and all sums due and owing to Flett Exchange against any sums due and owing to ECM User.
ECM User acknowledges that any breach by it of its obligations herein may cause Flett Exchange irreparable harm and damage and therefore agrees that, in addition to any other rights or remedies that may be available to Flett Exchange at law or in equity, Flett Exchange shall be entitled to appropriate injunctive relief, without the posting of any bond or security.
Liability
ECM User will not hold Flett Exchange responsible for any other ECM User's or any other party's actions or inactions, including information posted. You acknowledge that we provide a bilateral platform [solely] for engaging in ECM Transactions. Flett Exchange is not involved in the actual ECM Transaction between ECM Users. Flett Exchange has no control over and does not guarantee the creditworthiness of ECM Users or the intent of other ECM Users to complete an ECM Transaction.
Further, Flett Exchange does not guarantee continuous or secure access to our services, and operation of the ECM Site may be interrupted by numerous factors beyond its control. Accordingly, to the extent legally permitted and as more fully set forth elsewhere in this ECM Agreement, we exclude all implied warranties, terms and conditions. Flett Exchange is not liable for any loss of money, goodwill or reputation, or for any special, indirect, punitive or consequential damages, arising out of access to or use of the ECM Site, and each ECM User irrevocably waives any rights thereto.
Regardless of the previous paragraph, if we are found to be liable by a competent body or tribunal, our liability to you or to any third party is limited to the greater of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $1,000; and each ECM User irrevocably agrees to such limitations.
Indemnity
ECM User will indemnify and hold Flett Exchange (and our officers, directors, agents, subsidiaries, joint ventures and employees) harmless from any claim or demand, including attorneys' fees, made by any third party due to or arising out of your breach of this ECM Agreement, or your violation of any law or the rights of a third party.
No Agency
No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this ECM Agreement.
Release
If ECM User has a dispute with one or more ECM Users or other Flett Exchange ECM Users, you will release Flett Exchange (and its officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
Notices
Except as explicitly stated otherwise, all legal notices must be served on Flett Exchange, LLC at 15 Exchange Place Suite 710, Jersey City, NJ 07302, either by hand delivery or certified mailing. The date of hand delivery or the tenth day after the postmarked mailing date, shall be deemed to be the date of the giving of notice.
Resolution of Disputes
If a dispute arises between you and Flett Exchange or between ECM Users, our goal is to provide you with a neutral and cost effective means of resolving the dispute efficiently and expeditiously. Accordingly, you and Flett Exchange and/or you and your counterparty agree that all claims and controversies will be resolved through an established alternative dispute resolution ("ADR") provider in an Arbitration forum using the services, if available, of [NYMEX,] the American Arbitration Association ("AAA"), National Arbitration Forum ("NAF") or Judicial Arbitration and Mediation Services ("JAMS"). Before resorting to Arbitration we strongly encourage you first to contact Flett Exchange.
Law and Forum for Disputes
This ECM Agreement shall be governed in all respects by the laws of the State of [Delaware] [New York] without regard to conflict of law provisions. You agree that any claim or dispute you may have against Flett Exchange or any counterparty to a transaction in which you are involved, may only be resolved through Arbitration. Your choice of ADR providers are, if available, NYMEX, the AAA, NAF or JAMS.
The ADR provider and parties must comply with the following rules: a) the Arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner to be chosen by the complaining party; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; c) any judgment on the award rendered by the arbitrator shall be final and binding and d) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Improperly Filed Claims
All claims you bring against Flett Exchange and/or a counterparty to a transaction you were involved with (your counterparty), must be resolved in accordance with the Resolution of Disputes Section noted above. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, Flett Exchange and/or your counterparty may recover attorneys' fees and costs, provided that you have been notified and given the opportunity to withdraw the improperly filed claim.
Changes to Agreement
Flett Exchange may amend this ECM Agreement at any time by posting the amended terms on its ECM Site. All amended terms shall automatically be effective when Flett Exchange posts them on the ECM Site. ECM User's continued access to or use of Flett Exchange, ECM Site or Site Information shall constitute acceptance of such amendment by ECM User.
Term and Termination
This ECM Agreement shall become effective upon the delivery of a confirmation notice by Flett Exchange to ECM User confirming the agreement of Flett Exchange to enter into this ECM Agreement on the terms and conditions set forth herein, and shall continue until terminated pursuant to the provisions hereof. Notwithstanding the foregoing, this ECM Agreement may be terminated, as further specified below: (a) at any time by mutual agreement of the parties or (b) at any time by Flett Exchange.
Flett Exchange shall have the right with or without notice (but giving as much notice as reasonably practicable) to terminate this ECM Agreement in the event Flett Exchange, in its reasonable opinion, considers such action to be necessary to protect and preserve the security or integrity of the ECM Site, Flett Exchange's rights in the ECM Site or other users of the ECM Site; or (iii) Flett Exchange suspects market or ECM Site abuse or misuse.
ECM User shall have the right to terminate this ECM Agreement but only after written Notice is received by Flett Exchange.
Immediately on any termination of this ECM Agreement, Flett Exchange and ECM User shall as soon as practicable remove from the ECM Site any outstanding prices submitted by the ECM User, provided that the ECM User shall be bound by any transaction resulting from any order entered into the ECM Site whether such transaction is made before or after termination of this ECM Agreement.
Any termination of this ECM Agreement whether in whole or in part shall not affect the accrued rights or liabilities of either party under this ECM Agreement or the ECM User's rights and obligations under any transaction.
The following Sections survive any termination of this ECM Agreement and shall remain in full force and effect: Fees and Services (with respect to fees owed for our services), Release, Liability, Indemnity and Resolution of Disputes, Disclaimer of Warranties, Warranties of ECM User, Representations of ECM User and Rights and Remedies.
Miscellaneous
This ECM Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns. Each party hereby waives any right to a jury trial in connection with any suit, action or proceeding brought by the other party arising out of, or relating to, this ECM Agreement. This ECM Agreement constitutes the entire understanding and agreement of the parties with respect to the subject matter hereof, and supersedes all other prior or contemporaneous communications between them. If any provision hereof is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
Only Flett Exchange or ECM User may enforce any of the terms of this ECM Agreement.
Flett Exchange's failure to act with respect to a breach by ECM User or others does not waive our right to act with respect to subsequent or similar breaches. Flett Exchange does not guarantee that it will take action with respect to any breaches of this ECM Agreement.
ECM User shall not assign or transfer or purport to assign or transfer this ECM Agreement or any part of it or the benefit or burden thereof without the prior written consent of Flett Exchange. Any assignment in contravention of this provision shall be void. In its sole discretion, Flett Exchange may assign this ECM Agreement in accordance with the Notices Section herein.
ECM User acknowledges that any telephone call made to Flett Exchange may be recorded and that any such recording is Flett Exchange's property and may be used by Flett Exchange in evidence, and ECM User consents thereto.
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