1. DEFINITIONS
(a) “Canadian Exchange Group” or “CEG” means
The Toronto Stock Exchange Inc. (TSX) and the Canadian Venture Exchange Inc., together
with such other Persons as may become CEG members from time to time. The CEG members have appointed TSX as agent
for the purposes of entering into this and other agreements necessary for
provision of Market Data to Subscriber on their behalf, and to establish the
terms and conditions under which Market Data is to be made available to
Subscriber. For the purposes of this
Agreement, “Canadian Exchange Group” or “CEG” shall refer to the members
comprising the Canadian Exchange Group jointly and severally.
(b) “Interrogation Device” means any device
or equipment, including, without limitation, any computer, data processing
equipment, communications equipment, terminal, Cathode Ray Tube (“CRT”) or
monitor, which is authorized by the CEG to receive the Market Data from a
Supplier or which does in fact receive Market Data from a Supplier, and which
at any time during any month either (i) displays, transmits or communicates the
Market Data to any individual in visible, audible, or other comprehensible form
or (ii) uses or processes the Market Data for any purpose or in any manner
other than solely to transmit Market Data to devices as described in the
preceding clause (i). The term “Interrogation Device” includes any device or
equipment which is capable of being used as an “Interrogation Device”.
(c) “Market Data” means any information
provided through the facilities of TSX and/or the CEG, directly or indirectly,
relating to (i) securities or other financial instruments, markets, products or
indices; (ii) information, data and services from Third Party Contributors; and
(iii) other information and data, and includes, without limitation, order data
provided from the CEG and Third Party Contributors.
(d) “Non-Professional” shall mean a natural
person who is not a securities professional and who is acting in his/her
personal capacity and not as a principal, officer, partner, employee nor agent
of any business nor on behalf of any individual. This definition excludes brokers, dealers, investment advisors or
persons otherwise employed by organizations conducting professional activities
involving the buying and selling of instruments, such as stocks, bonds,
options, futures contracts and other trading vehicles. Also excluded are persons engaged as
consultants, independent contractors, software developers and others that use
market information for any purpose for profit other than the trading of that
person’s personal account.
A
Non-Professional cannot be registered or qualified with:
·
A
provincial Securities Commission;
·
Securities
Exchange Commission;
·
Commodities
Futures Trading Commission;
·
Any
provincial, state or other government securities agency;
·
Any
securities exchange or association;
·
Any
commodities or futures contract market or association or other entity that performs
functions that are equivalent to those of such Persons.
(e) “Person” includes any natural person or
proprietorship of any corporation, partnership or other organization.
(f) “Receipt of Market Data” means the physical
capability whether used or not of successfully retrieving Market Data through
the means of an Interrogation Device.
(g) "Subscriber" means any Person
in Receipt of Market Data through facilities furnished by the Supplier and who
has accepted the terms and conditions of this Agreement.
(h) "Supplier" means any Person
delivering Market Data to Subscriber.
(i) “Third Party Contributor” means any
Person, other than the members of the CEG, who provides any information to the
CEG for dissemination by the CEG pursuant to the terms of this Agreement.
2. PROPRIETARY INTEREST OF CEG
Subscriber understands and acknowledges
that the CEG and/or Third Party Contributors have a proprietary interest in the
Market Data and that the same is not within the public domain. Any Market Data that is provided directly or
indirectly to Subscriber by the CEG pursuant to this Agreement has been derived
from databases owned by the CEG and/or Third Party Contributors, is copyrighted
by the CEG and/or Third Party Contributors, and as such Subscriber’s use of
such Market Data is subject to the limitations set out in this Agreement.
3. DATA SECURITY
(a)
RETRANSMISSION
PROHIBITED - Subscriber shall use Market Data only for its individual use. Subscriber shall not furnish Market Data to
any other person nor retransmit Market Data without prior written approval from
the CEG.
(b)
EQUIPMENT
SECURITY - Subscriber understands that this Section 3 requires Subscriber to
carefully locate and protect Interrogation Devices in Subscriber’s
possession. Subscriber shall abide by
any written requirements that the CEG specifies to regulate the location or
connection of Subscriber Interrogation Devices or to otherwise assure
compliance with this Section 3.
Subscriber guarantees that any Person installing or maintaining
Subscriber Interrogation Devices will comply with this Section 3.
4. DATA NOT GUARANTEED
(A) NO WARRANTIES - THE SUBSCRIBER AGREES
THAT THE CEG MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT
TO THE MARKET DATA, ITS TRANSMISSION, TIMELINESS, ACCURACY OR COMPLETENESS,
INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, QUALITY AND FITNESS FOR A PARTICULAR PURPOSE AND THOSE ARISING
BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE.
(B) NO GUARANTY - The CEG does not guarantee
the timeliness, sequence, accuracy or completeness of Market Data or other
market information or messages disseminated by the CEG. The CEG will not be liable in any way to
Subscriber or to any other Person for:
(a)
any
inaccuracy, error or delay in, or omission of, (i) any such data, information
or message or (ii) transmission or delivery of any such data, information or
message, or
(b)
any loss or
damage arising from or occasioned by (i) any such inaccuracy, error, delay or
omission (ii) non-performance, or (iii) interruption in any such data,
information or message, due either to any negligent act or omission by the CEG
or “force majeure” (i.e., flood, extraordinary weather conditions, earthquake
or other act of God, fire, war, insurrection, riot, labour dispute, accident,
action of government, communications or power failure, equipment or software
malfunction) or any other cause beyond reasonable control of the CEG.
5.
DISSEMINATION DISCONTINUANCE OR MODIFICATION
The
CEG may discontinue disseminating any type of Market Data, may change or
eliminate any transmission method and may change transmission speed or signal
characteristics. The CEG shall not be
liable for any resulting liability, loss or damages to Subscriber.
6. ENTIRE AGREEMENT;
MODIFICATIONS
This writing contains the entire
Agreement between the parties in respect of its subject matter. This Agreement supersedes each previous Agreement
between Subscriber and the CEG pursuant to which Subscriber has been receiving
Market Data. In the event that
Subscriber has previously submitted an executed agreement to the CEG in respect
of the Receipt of Market Data from a Supplier other than that indicated herein,
and Subscriber is continuing to receive Market Data from such Supplier, this
Agreement shall serve as a companion agreement to the agreement previously
submitted to the CEG. The parties may
only modify this Agreement in writing signed by or on behalf of each of them.
7. ASSIGNMENTS
Subscriber may not assign all or part of
this Agreement without the written consent of the CEG.
8. GOVERNING LAW; CONSTRUCTION
This Agreement shall be governed and
interpreted by the laws of the Province of Ontario, Canada. In prohibiting Subscribers in doing any act,
this Agreement also prohibits Subscriber from doing the act indirectly (e.g.,
by causing or permitting any other Person to do the act).
9. INDEMNIFICATION
The Subscriber shall indemnify and hold
harmless and defend the CEG, their members, governors, directors, managers,
officers, employees and agents from and against any and all suits, proceedings
at law or in equity, and any and all liability, loss or damage, including
reasonable legal fees, arising out of or in connection with the Subscriber’s
use of Market Data.
10.
NOTICES; NOTIFICATION OF CHANGES
Subscriber shall
send communications relating to this Agreement to:
The Toronto Stock Exchange Inc.
The Exchange Tower
130 King Street West
Toronto, ON M5X 1J2
Attention: Market Data Services
The
CEG may each change its address for notice by written notice to
Subscriber. Subscriber shall give the
CEG prompt written notice of any change in (a) its representations and warranties
hereunder, and (b) any other information provided to the CEG by Subscriber in
connection with the receipt of Market Data.
11.
Subscriber’s Representations and
Warranties
Subscriber
represents and warrants that (s)he is a Non-Professional, as defined herein.
12.
Failure to Qualify
(a)
Non-Qualification - Subscriber understands that if the CEG determines at any
time that Subscriber does not qualify as a Non-Professional subscriber,
Subscriber may continue to receive Market Data only after entering into one or
more appropriate agreements with the CEG.
The CEG may deny Subscriber the opportunity to enter into such
agreement(s) if Subscriber’s failure to qualify results from wilful
misrepresentations or omissions or from wilful breach of this Agreement.
(b) Retroactive Payment - In the event that a determination of
non-qualification is based upon a
misrepresentation made herein by Subscriber, or a failure by Subscriber
to update information provided to the CEG, the CEG may notify Subscriber in
writing (i) of such determination, (ii) of the period, as determined by the
CEG, during which Subscriber received Market Data but did not qualify as a
Non-Professional Subscriber and (iii) of the amount, calculated at the CEG’s
then-current Professional Subscriber rates, applicable to such period. Within thirty (30) days of receipt of such notice, Subscriber shall pay such amount
to the CEG.