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Cboe Global MarketsData and Analytics Services Subscription Agreement

This Cboe Global Markets Data and Analytics Services Subscription Agreement, made effective as of the last date executed on the signature page hereof (the “Effective Date”), is made by and between Cboe LiveVol, LLC and the undersigned (“Subscriber”). This Agreement is supplemented by the Cboe Global Markets Data and Analytics Subscription Policies (“Policies”), applicable Order Forms, attachments hereto, and other documents incorporated by reference, available on Cboe Global Markets’ website or successor website (the “Website”), and any additional agreements executed by the Parties, as may be amended, modified, or supplemented from time to time, that together form the entire agreement between the Parties and are incorporated into the definition of Agreement. Capitalized terms used but not defined in this Agreement are defined in the Policies or Order Forms.  Each of Cboe and Subscriber may be referred to herein as a “Party” or collectively as the “Parties.”      

Definitions. For the purposes of this Agreement:

Agreement: means the terms of this Cboe Global Markets Data and Analytics Services Subscription Agreement together with the above referenced attachments and documents; provided, however, that for each particular Order Form, reference to “Agreement” shall be construed solely as a reference to the agreement that arises as a result of the issuance of the Order Form, which agreement shall be a two-party agreement between the entities entering into such Order Form, and shall be deemed to incorporate the terms and conditions of this Agreement.

Affiliate: means with respect to a Party, another entity that, from time to time, directly or indirectly Controls, is Controlled by, or is under common Control with it. As used herein, “Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of another entity, whether through the ownership of voting securities, by contract, or otherwise. Affiliates of each Party may execute Order Forms which shall be governed by the terms of this Agreement. 

Cboe: means Cboe LiveVol, LLC, or, for the purposes of an Order Form entered into by an Affiliate of Cboe LiveVol, LLC, “Cboe” shall mean the Cboe Affiliate executing such Order Form. The Cboe entity executing a particular Order Form shall be solely liable for the obligations on its part to be performed pursuant to such Order Form and this Agreement with respect to such Order Form. All references in this Agreement to Cboe will be deemed references to the Cboe entity executing the applicable Order Form.

Cboe Data: means (i) the Cboe proprietary data, reports, analytics, text, charts, calculations and statistics; and (ii) such other data and/or information provided directly or indirectly by Cboe, now or in the future. 

Cboe Subscription Fees: means the fees paid to Cboe for access to and use of the Services ordered pursuant to an Order Form.

Confidential Information: means this Agreement and all data, trade secrets, business information, and other information of any kind and in any form whatsoever of Discloser and/or its Affiliates, received or accessed by Recipient in connection with entering into or operating under this Agreement, which: (i) is marked as “confidential” at the time of its disclosure; (ii) is identified within thirty (30) days of its disclosure as containing confidential information of Discloser; or (iii) should be reasonably understood by Recipient to contain confidential or proprietary information of Discloser as of the date of its disclosure.

Data: means the Cboe Data and the Supplier Data.

Data Supplier Fees: means the fees paid to Cboe or each Data Supplier for access to and use of Supplier Data. 

Data Suppliers: means the Securities Information Processors including, but not limited to, New York Stock Exchange, Inc. (“NYSE”), Nasdaq, Inc. (“NASDAQ”), Options Price Reporting Authority, LLC (“OPRA”) and any other third-party suppliers of Supplier Data to Cboe.

Derived Data: means any new original works created by Subscriber using the Data and/or Software or otherwise, with or without other input data, for the purpose of creating or calculating such original works, provided that the works do not display, represent or recreate any Data, and from which Data cannot be readily recalculated.

Fees: means Cboe Subscription Fees and Data Supplier Fees. 

Force Majeure: means causes beyond a Party’s reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargoes, strikes or other industrial disputes, acts of civil or military authorities, fires, floods, earthquakes, accidents, pandemics, epidemics, or failures or malfunctions of telecommunications facilities or electric power.

Intellectual Property: means all ideas, inventions, discoveries, processes, designs, methods, computer programs, improvements, patents and/or patent applications, copyrights, trademarks, trade names, service marks, logos, industrial designs, any registrations thereof and pending applications therefor (to the extent applicable), any other intellectual property rights (including, without limitation, any know-how, trade secret, formula, software, database or data rights).

License: means the limited, personal, non-exclusive, non-sublicensable, non-transferable right to access, operate, and internally use the applicable Services, subject at all times to the terms of this Agreement and the applicable Order Form.

Order Form: means an ordering document specifying the Services to be provided pursuant to the terms of this Agreement that is entered into between a Subscriber entity and the Cboe entity executing the applicable Order Form. Each Order Form shall be considered a two-party agreement between the Subscriber entity and the Cboe entity executing such Order Form, incorporating the terms of this Agreement.

Services: means the Software, Data, and professional services including implementation, development, support and maintenance, and/or any other services described in the applicable Order Form.

Software: means the installable or web-based versions of Cboe’s software product(s) including any related support utilities, run-time support programs and libraries, and security programs, together with the software user documentation, if any, and any updates and upgrades to such software products and user documentation as may be made available in the ordinary course of Cboe’s business.

Subscriber Data: means all data and information provided or submitted by Subscriber to Cboe under this Agreement.

Supplier Data: means the third-party data, text, charts, calculations, reports and statistics consisting of: (i) last sale, quotation and other information relating to securities or other financial products traded on national securities exchanges, designated contract markets, multilateral trading facilities, or other organized trading venues that is provided by Data Suppliers; (ii) fundamental data, news, and other financial and business information that are provided by third-party financial information aggregators; and (iii) such other data and/or information provided directly or indirectly by any other third-party source, now or in the future.

Term: means the period set forth in Section 4.  

User Account: means a logon identifier and a password delivered by Cboe to Subscriber’s account administrator identified in Exhibit A.

Users: means Subscriber’s employees and other authorized individuals conducting activities on behalf of Subscriber; provided, however, that employees of a company providing services to Subscriber may be authorized as Users at Cboe’s discretion and subject to such service provider company entering into a limited use and confidentiality agreement with Cboe. For the avoidance of doubt, employees of Subscriber’s Affiliates may not be Users unless otherwise expressly agreed to by the Parties. Where required by an Order Form, Users shall be specified in the applicable Order Form or otherwise approved in writing.

1.	Services and Access.

(a)	License Grant. In consideration of Subscriber’s payment of applicable Fees, Cboe hereby grants to Subscriber a License to access and use the Services as set forth in the applicable Order Form. Unless otherwise set forth in the applicable Order Form, Subscriber may use the Services for internal purposes in the ordinary course of its business, and may disclose nominal elements or extracts of the applicable Data and/or new original works based on Data, relating to particular transactions or situations occurring in the normal conduct of Subscriber’s business, in written materials and to transmit such materials to Subscriber’s customers and prospective customers. Subscriber agrees that Cboe’s grant of the License is subject to the following, unless otherwise set forth in the applicable Order Form: (i) all installable Software shall only be installed on computers that can only be accessed by the Users; (ii) all web-based Software shall only be accessed by the Users; (iii) each User shall only access the Services using a User Account; and (iv) each User Account shall be used only by one specified User and not shared with or used by any other person or entity. 

(b)	Supplier Data. Cboe’s ability to make Supplier Data available to Subscriber is expressly conditioned on, among other things, the effectiveness of Cboe’s agreement with the applicable Data Supplier(s). Subscriber acknowledges and agrees that the Data Suppliers may change without prior notice to Subscriber. Subscriber is solely responsible for complying with all Data Suppliers’ requirements governing Subscriber’s access to and use of Supplier Data, including, but not limited to: (i) entering into any necessary licenses; and (ii) reporting and complying with Data Supplier restrictions relating to the creation of Derived Data. Subscriber agrees that Cboe shall bear no responsibility for any fees or other requirements that may be imposed on Subscriber by any Data Supplier, except as otherwise expressly specified herein.  In order to meet its own obligations to Data Suppliers, Cboe may report Subscriber’s name, contact information, and usage of Supplier Data to relevant Data Suppliers.

(c)	Changes to Data. Subscriber acknowledges that Cboe and the Data Suppliers may: (i) make changes in the speed of transmission of Data, the specifications governing the format of Data, and any other characteristics of the Data as the Data Suppliers and/or Cboe may from time to time determine; and (ii) discontinue, terminate, amend, or restrict furnishing all or any portion of the Data to Subscriber hereunder. Cboe will inform Subscriber of any such changes in the Data as soon as commercially practicable and either Cboe or Subscriber may terminate the applicable portion of the Services, subject to the provisions of Section 10(b). In no event shall any such changes be regarded as a breach of the terms of this Agreement by Cboe.

(d)	New Original Works. Solely as expressly permitted in an Order Form, Subscriber may be granted the right to process Data to create Derived Data, subject to the terms therein. Unless Cboe grants to Subscriber the express right to create Derived Data in an Order Form with respect to the applicable Data purchased pursuant to such Order Form, Subscriber shall be prohibited from creating Derived Data. 

(e)	License Limitations. Subscriber agrees that the License granted to Subscriber pursuant to this Section 1 is subject to the following additional restrictions: (i) Subscriber shall not, directly or indirectly, reverse engineer, disassemble or  decompile  any component of the Software, create a source code version of the Software or any component thereof, or attempt to gain unauthorized access to the Services (including any component thereof) or the related systems or networks; (ii) Subscriber shall not make the Services or any component thereof (including any data, software, or other component) available to anyone other than Users; (iii) Subscriber shall not disseminate, transmit or otherwise distribute Data from the Services to any entity or person who is not an employee of Subscriber unless expressly authorized by this Agreement and/or a Data Supplier agreement (as applicable); (iv) Subscriber shall not transfer, distribute, sell, resell, lease, sublease, license, sub-license or assign the right to use the Services; (v) Subscriber shall not use or permit anyone else to use the Services or any component thereof in any illegal business or for any illegal purpose or in violation of the documentation, specifications and/or training provided to Subscriber, this Agreement, or applicable laws and government regulations; (vi) Subscriber shall not use the Services or any component thereof to store or transmit malicious code; (vii) Subscriber shall not interfere with or disrupt the integrity or performance of the Services or Data contained therein; and (viii) copies of the Software may be made for backup or statutory or regulatory purposes only. Subscriber shall immediately contact Cboe if it discovers unreported or unauthorized access, use, and/or distribution of the Services or Data, or any other violation of the License grant and promptly cease or terminate any such violation that is contrary to the terms of this Agreement or requirements of an applicable Data Supplier. Subscriber further agrees to take all action as necessary to prevent further violation.

(f)	User Accounts and Security. The Services will be accessed solely by Users. For security reasons, Cboe reserves the right, upon reasonable notice to Subscriber, to periodically change (or require a change of) User Account identifiers and/or passwords. Subscriber further acknowledges and agrees that: (i) in addition to all other remedies available to Cboe, Subscriber shall be liable for additional Fees if any User Account is shared among multiple individuals; (ii) each User Account will be allowed access to the Services only for so long as Fees are paid timely and in the manner hereinafter provided, and Subscriber is not otherwise in breach of this Agreement; and (iii) Subscriber shall be responsible for all Users’ compliance with the terms of this Section 1 and shall be liable for each User’s failure to adhere to the terms of this Agreement.

(g)	 Subscriber Obligations. Subscriber shall act in good faith and reasonably cooperate with Cboe in the performance of any requirements under this Agreement, including, without limitation, providing Cboe with timely access to data, information, personnel and other resources necessary for Cboe to fulfill its obligations hereunder. Subscriber acknowledges and agrees that Cboe’s performance is dependent in part upon the timely and effective satisfaction by Subscriber of its responsibilities hereunder and timely decisions and approvals by Subscriber.  

(h)	 Additional Services. In consideration of Subscriber’s payment of applicable Fees, Subscriber may purchase the development, implementation, support and maintenance and/or other services as set forth on an Order Form.  

2.	Intellectual Property.

(a)	Ownership of Software and Data. Subscriber acknowledges that the Software and Cboe Data, and all Intellectual Property and any and all rights, title and interest therein, howsoever designated, are the sole property of Cboe and its Affiliates. The Supplier Data, and all copyrights, patents, trade secrets and other rights, title and interest therein, howsoever designated, are the sole property of the Data Suppliers and/or their licensors. Subscriber shall acquire no right, title or interest in the Services by virtue of this Agreement other than the License as granted herein. Without limiting the foregoing and subject to Subscriber’s rights in Derived Data, if any, Subscriber specifically acknowledges Cboe’s and/or its Affiliates’ exclusive rights to ownership in all copies, derivative works, translations, and adaptations of the Services, including, but not limited to, the Software and Cboe Data.

(b)	Ownership of Confidential Information. Subscriber further acknowledges and agrees that: (i) Cboe, its Affiliates, and/or its licensors own all right, title and interest in and to Cboe’s Confidential Information and (ii) no Data Supplier shall be deemed to have waived any of its proprietary interest in any Supplier Data as a result of furnishing the same to Subscriber.

(c)	Marks. Subscriber acknowledges and agrees that Cboe, its Affiliates and the Data Suppliers are the sole owners of all right, title and interest in and to, their respective trademarks, trade names, logos, and service marks (“Marks”) used in connection with the Services, and that nothing contained in this Agreement grants Subscriber the right to use any Marks except in conjunction with Subscriber’s permitted use of its License. Subscriber will not make any other use of the Marks without first securing the prior written permission from the owner of such Marks, except that Subscriber may use Cboe’s name solely for the purpose of source attribution. Subscriber will not, under any circumstance, remove any Marks from the Services. In the event that Subscriber obtains written consent from Cboe or a Data Supplier authorizing Subscriber to use such Marks, such use shall comply with the Mark owner’s quality control procedures, specifications and other requirements as communicated to Subscriber from time to time. Without limiting the foregoing, all goodwill from the use of the Marks shall inure to the benefit of the respective owner.

(d)	Subscriber Data.  As between Cboe and Subscriber and solely to the extent applicable, Subscriber shall own all right, title and interest in and to the Subscriber Data and shall be solely responsible for all use thereof. To the extent applicable, Subscriber will use the Services only to access, process and/or manipulate Subscriber Data that Subscriber is authorized to receive and use and only in a manner that would not cause or result in a violation or breach of any agreement with any of its third-party suppliers and/or licensors for such Subscriber Data. Subscriber grants to Cboe a non-exclusive, non-sublicensable license to use, copy, store, modify and display Subscriber Data solely to the extent necessary for Cboe to provide the Services.    

(e)	Feedback. Subscriber may from time to time provide suggestions and/or comments regarding modifications to the functionality of the Services (“Subscriber Feedback”). Subscriber hereby grants Cboe and its Affiliates a perpetual royalty-free, fully paid up, worldwide, transferable, sublicenseable, irrevocable right and license to use, develop, copy, modify, create derivative works, distribute, transmit, display or otherwise make available to others the Subscriber Feedback or other materials that embody all or any portion of the Subscriber Feedback. Subscriber acknowledges and agrees that Cboe and/or its Affiliates may from time to time in their sole discretion make modifications to the Services based on Subscriber Feedback, that any and all modified Services shall be the sole property of Cboe and/or its Affiliates, and that Subscriber shall have no rights whatsoever in any such modified Services, or to any payment of money or other commercial benefit derived therefrom.

3.	Protection of Data and Inspection Rights.

Subscriber shall, at all times during the Term, maintain accurate records with respect to access to and use of the Services. Solely for the purpose of verifying that access to and the use of the Services complies with this Agreement, Subscriber shall at all reasonable times permit Cboe and the Data Suppliers, upon five (5) business days’ notice to Subscriber and during ordinary business hours, to have access to Subscriber’s systems and records with respect to access to and use of the Services by User Accounts associated with Subscriber; provided, however, that each such inspection shall: (a) extend only so far as may be necessary to verify compliance with the terms of this Agreement and the Data Supplier agreements, and (b) be completed in accordance with Subscriber’s written reasonable policies and procedures regarding security and confidentiality to the extent made known by Subscriber to Cboe and the Data Suppliers. In the event that any such inspection reveals a discrepancy in the number of Users or other breach of this Agreement, Subscriber shall promptly correct the deficiency and, if applicable, remit to Cboe and/or the Data Suppliers, such additional Fees as are applicable.

4.	Term.

The Term of this Agreement shall commence on the Effective Date and shall continue as long as Cboe is providing Services hereunder. The term of each License shall be set forth in the applicable Order Form.

5.	Fees and Taxes.

(a)	Fees. In consideration for the License grant and/or Cboe’s performance of Services pursuant to an Order Form, Subscriber agrees to pay, as applicable: (i) Cboe Subscription Fees; and (ii) Data Supplier Fees. All Fees payable to Cboe will be described in an Order Form. Subscriber is solely responsible for payment of any Data Supplier Fees invoiced by a Data Supplier and Cboe will not provide reminders or notices regarding amounts due to Data Suppliers. In the event Subscriber fails to pay any Data Supplier Fees to Data Suppliers when due, Subscriber agrees to pay any penalties assessed against Cboe or Subscriber.

(b) Taxes. In addition to Fees payable under this Agreement, Subscriber is responsible for and shall pay any and all  applicable taxes or duties based on access to and use of the Services, however designated, including without limitation, withholding taxes, royalties, know how payments, customs, privilege, excise, sales, use, value added and property taxes, except for those taxes based on the income of Cboe (collectively “Taxes”), and shall promptly reimburse any such Taxes paid by Cboe upon request. Subscriber shall pay the full amount of Fees without any reduction for Taxes.

(c)	Terms of Payment. Cboe will prepare and transmit invoices to Subscriber for Cboe Subscription Fees and Data Supplier Fees that are not invoiced directly by a Data Supplier, and Subscriber shall pay the stated amounts within thirty (30) days of the invoice date unless Subscriber disputes the charges in writing before payment is overdue. Fees not paid within thirty (30) days after the invoice date are subject to interest at the lesser of one and a half percent (1.5%), compounded monthly, or the maximum allowed by law. If any Fees are not paid within forty-five (45) days after the invoice date, Cboe may, without limiting its other rights and remedies, suspend Subscriber’s access to the Services until such amounts are paid in full.

(d)	Proration and Adjustment. Subject to the requirements of the applicable Data Suppliers, Cboe will calculate Fees in accordance with the terms of this Agreement and applicable Order Form. Where an Order Form includes per-User Fees, such Fees shall apply for each User that had access to the Services during the subject monthly billing period, regardless of whether access was actually made. Fees apply to each separate User of the Services, and if (contrary to the terms of this Agreement) multiple Users access the Services via a single User Account, Subscriber is responsible for alerting Cboe and paying the Fees that would be due based on the actual number of Users that accessed the Services during the subject monthly billing period. 

(e)	Fee Modifications. Cboe Subscription Fees are subject to an annual increase of up to four percent (4%) or the percentage by which the Consumer Price Index for all Urban Consumers, U.S. City Average (as published by the U.S. Department of Labor, Bureau of Labor Statistics) increased during the twelve (12) month period prior to the date of the notice of such increase, whichever is less. Cboe shall provide at least thirty (30) days’ prior written notice to Subscriber of each Cboe Subscription Fee increase. Data Supplier Fees are subject to modification by Data Suppliers at any time without prior notice to Subscriber.

6.	Limitation of Liability.

(a)	Force Majeure. With the exception of Subscriber’s payment obligations, neither Party will be liable to the other or be deemed to be in breach of this Agreement for any failure or delay in performing any obligation hereunder due to a Force Majeure, provided that the Party experiencing the Force Majeure uses reasonable efforts to eliminate or alleviate the effect of the Force Majeure.  

(b)	Limitation of Liability. IN NO EVENT SHALL CBOE OR ANY DATA SUPPLIER, THEIR RESPECTIVE AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, REPRESENTATIVES, CONTRACTORS OR SUPPLIERS BE LIABLE FOR ANY INCIDENTAL, SPECIAL, PUNITIVE, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS OF OR DAMAGE TO DATA, LOSS OF BUSINESS, LOST PROFITS, TRADING LOSSES, OR DAMAGES RESULTING FROM INCONVENIENCE, UNAVAILABILITY, OR LOSS OF USE OF SERVICES ARISING FROM ANY CAUSE WHATSOEVER, EVEN IF CBOE, ANY DATA SUPPLIER OR THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING EXCLUSIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE CAUSE OR FORM OF ACTION OR THEORY OF LIABILITY, EVEN IF CBOE, ANY DATA SUPPLIER OR THEIR RESPECTIVE AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUBSCRIBER’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.

(c)	Aggregate Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ALL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EXCEED (AT THE TIME OF THE SUBJECT CLAIM) THE TOTAL VALUE OF THE CBOE SUBSCRIBER FEES PAID OR PAYABLE TO CBOE FOR THE MOST RECENT TWELVE (12) MONTH PERIOD. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE CAUSE OR FORM OF ACTION OR THEORY OF LIABILITY, BUT WILL NOT LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS HEREUNDER. THE FOREGOING LIMITATION SHALL NOT APPLY TO: (i) A PARTY’S WILLFUL MISCONDUCT OR FRAUD; (ii) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 8; (iii) SUBSCRIBER’S VIOLATION OF SECTIONS 1, 2 OR 5 OF THIS AGREEMENT; OR (iv) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 11.

7.	Representations and Warranties.

(a)	Mutual Warranties. Each Party hereto represents and warrants that: (i) it has the full right and power to enter into and fully perform this Agreement in accordance with its terms; and (ii) the execution, delivery, and performance of this Agreement will not violate (1) any rights granted by such Party to any third party, (2) the provisions of any agreement to which it is a party, or (3) any applicable law or regulation, including but not limited to those regarding export control, anti-bribery, and data privacy.

(b)	Subscriber Warranties. Subscriber represents and warrants that: (i) the information it has provided to Cboe (including Subscriber’s representation on an Order Form that a User is either a professional or non-professional) is accurate and complete; (ii) it will promptly furnish Cboe with new information if the information previously provided becomes materially inaccurate or incomplete; and (iii) it is not knowingly conducting any illegal business activities.

(c)	Cboe Warranties. Cboe represents and warrants that: (i) it is authorized to grant Subscriber the License to the applicable Software and Data pursuant to the terms of this Agreement; (ii) it has used commercially reasonable efforts to detect and prevent the introduction of viruses, worms, trojans and similar malign computer code into the Services; and (iii) the Software shall perform in a manner consistent with the terms of the applicable user documentation. Subscriber shall notify Cboe in writing no later than ten (10) business days after identifying any alleged breach of Subsection (iii) and Cboe shall use commercially reasonable efforts to provide support and maintenance services in order to remedy any deficiency that Cboe is able to replicate in a timely manner. This Section provides Subscriber’s sole and exclusive remedy, and Cboe’s sole and exclusive liability, with respect to the warranty set forth in Subsection (iii) above.

(d)	EXCLUSION OF WARRANTIES. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SECTION 7, THE SERVICES ARE PROVIDED TO SUBSCRIBER “AS IS.” CBOE MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES CONCERNING THE SERVICES, AND CBOE, ON BEHALF OF ITSELF, ITS AFFILIATES, AND EACH DATA SUPPLIER, HEREBY EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES. CBOE MAKES NO WARRANTY THAT THE SERVICES WILL MEET SUBSCRIBER’S REQUIREMENTS, BE ERROR FREE, OR OPERATE WITHOUT INTERRUPTION.

NEITHER CBOE NOR ANY DATA SUPPLIER MAKES ANY REPRESENTATIONS OR WARRANTIES WHATSOEVER THAT ANY DATA, DERIVED DATA, OR OTHER INFORMATION ACCESSIBLE VIA THE SERVICES (i) WILL BE ACCURATE, COMPLETE, TIMELY OR SEQUENCED IN A PARTICULAR MANNER, OR (ii) WILL BE RELIABLE FOR TRADING PURPOSES. SUBSCRIBER AGREES TO INDEPENDENTLY DETERMINE THAT THE DATA, DERIVED DATA, AND OTHER INFORMATION RECEIVED THROUGH THE SERVICES IS SUFFICIENT FOR SUBSCRIBER’S PURPOSES.

SUBSCRIBER ASSUMES SOLE RESPONSIBILITY AND RISK OF USING THE DATA, DERIVED DATA AND OTHER INFORMATION ACCESSIBLE VIA THE SERVICES. THE SERVICES ARE PROVIDED SOLELY FOR USE AS A TOOL AND ARE NOT MEANT AS A GUIDE TO ACTION. SUBSCRIBER ACKNOWLEDGES AND AGREES THAT ANY DATA, DERIVED DATA, OR OTHER INFORMATION ACCESSIBLE THROUGH THE SERVICES IS NOT INTENDED TO BE, AND SHOULD NOT BE CONSTRUED OR USED AS, INVESTMENT ADVICE. SUBSCRIBER HEREBY CONFIRMS ITS UNDERSTANDING OF THE FOREGOING DISCLOSURES AND AGREES THAT THESE LIMITATIONS ARE REASONABLE ALLOCATIONS OF RISK.

8.	Indemnification.

(a)	Indemnification by Subscriber. Subscriber shall indemnify, defend and hold harmless, Cboe, the Data Suppliers and their respective Affiliates, and their respective officers, directors, employees, and agents (collectively, the “Cboe Indemnitees”) from and against any suit or other proceeding, at law or in equity, claim, liability, loss, cost, damage, or expense (including reasonable attorneys’ fees) threatened against or incurred by the Cboe Indemnitees, that arises out of or relates to: (i) Subscriber’s failure to comply with this Agreement or Subscriber’s breach of any representation or warranty contained in this Agreement; (ii) Subscriber Data; or (iii) Derived Data and/or other new original works created by Subscriber. 

(b)	Indemnification by Cboe. Cboe shall indemnify, defend and hold harmless, Subscriber and its officers, directors, employees, and agents (collectively, the “Subscriber Indemnitees”) from and against any suit or other proceeding, at law or in equity, claim, liability, loss, cost, damage, or expense (including reasonable attorneys’ fees) threatened against or incurred by the Subscriber Indemnitees, that arises out of or relates to any claim that the Services, as used by Subscriber in accordance with this Agreement, infringes or misappropriates any United States patent, copyright, trademark, or trade secret (“IP Claim”). Cboe shall have no liability or obligation under this Section 8(b) if such claim is caused in whole or in part by (i) the combination, operation, or use of the Services with any other applications, products, or services, if the Services would not, by themselves, be infringing; (ii) Subscriber’s instructions or directions to Cboe; (iii) use of the Services after Cboe notifies Subscriber of a potential or actual infringement claim; or (iv) use of a superseded version of the Services if such infringement or misappropriation would have been avoided by use of the current version of the Services. If an IP Claim  is made, or appears likely to be made, Cboe, in its sole discretion, may elect: (1) to procure for Subscriber the right to continue to use the Services; (2) to replace, at Cboe’s cost, the Services or any portion thereof, with a substitute that functions substantially in accordance with such Services’ specifications; (3) to modify the Services so that they do not infringe or misappropriate, provided that the Services, as modified, continue to perform substantially in accordance with the applicable specifications; or (4) to terminate the applicable Order Form and to pay to Subscriber a refund of any prepaid but unaccrued fees through the remainder of the applicable term. This Section 8(b) sets forth Cboe’s entire obligation to Subscriber with respect to any IP Claim.

(c)	Notice and Participation. If a Cboe Indemnitee or Subscriber Indemnitee (each, an “Indemnified Person”) believes that it is entitled to be indemnified pursuant to this Section 8, it shall promptly notify the responsible indemnifying Party in writing; provided however, failure or delay in giving notice shall only excuse the indemnifying Party to the extent it materially prejudices its ability to defend or otherwise resolve any such claim, non-compliance or breach. The indemnifying Party shall be entitled to make all decisions with respect to the defense of any claim, including any decisions to compromise or settle, provided, that, except with the written consent of the Indemnified Person, the indemnifying Party shall not consent to entry of any judgment or enter into any settlement which either (i) does not include, as an unconditional term, the grant by the claimant to the Indemnified Person of a release of all liabilities in respect of the claim; or (ii) otherwise adversely affects the rights of the Indemnified Person. Upon request, each Indemnified Person shall provide reasonable cooperation and assistance, including providing the indemnifying Party with any and all available information under its control necessary for the indemnifying Party to conduct a defense or resolve any non-compliance with or breach of this Agreement.

9.	Data Suppliers as Third-Party Beneficiaries.

Each of the Data Suppliers is an intended third-party beneficiary of this Agreement and may enforce all rights and obligations in its favor contained in this Agreement, provided that the right to such enforcement is assigned to it by Cboe. Cboe may make any such assignment in its sole and  absolute discretion, and no such assignment, if and when made, shall create any liability for Cboe to Subscriber or to any other person or entity.

10.	Termination.

(a)	Termination of Agreement. Either Party may terminate this Agreement or an Order Form without cause on no less than forty-five (45) days’ written notice, provided that, in the event that at the time of such notice there is one or more outstanding Order Forms, such termination shall be effective upon the end of the term of the applicable Order Form. Either Party may terminate this Agreement or an Order Form (i) upon three (3) days’ written notice if a material breach by the other Party is not cured within seven (7) days after written notice of such breach or (ii) immediately upon written notice in the event of the other Party’s making of an assignment for the benefit of its creditors, the filing by the other Party or its creditors of a voluntary or involuntary petition under any bankruptcy or insolvency law, under the reorganization or arrangement provisions of the United States Bankruptcy Code, under the provisions of any law of like import, or the appointment of a trustee or receiver for the other Party or its property. 

(b)	Termination for Changes. In the event that Cboe makes changes to the Data subject to Section 1(c) or as otherwise set forth in an Order Form, either Party may terminate the applicable Services or a portion of the applicable Services. Subscriber’s right to terminate hereunder is applicable solely to that portion of the applicable Services that is materially adversely affected by the change and must be exercised by providing written notice to Cboe no more than thirty (30) days after Cboe provides notice of such change.

(c)	Subscriber’s Right to Terminate. In addition to Subscriber’s termination rights otherwise set forth in this Section 10, Subscriber may terminate this Agreement or a Service or portion of a Service pursuant to the terms of Section 12(f). 

(d) Cboe’s Right to Terminate. Cboe may terminate this Agreement or a Service or a portion of a Service immediately upon written notice if: (i) Cboe determines that the provision of the Services, Software, and/or Data has become unlawful; (ii) the Services, Software, and/or Data become(s) subject to a claim that it infringes on or otherwise violates the rights of a third party; (iii) Cboe’s rights, titles, licenses, permissions, or approvals pertaining to Supplier Data or other third-party services on which the Service depends are cancelled, terminated, rescinded or not renewed; (iv) Cboe has reason to believe that Subscriber is violating, or intends to violate, its confidentiality obligations; or (iv) Subscriber fails to acquire or loses its right to receive Supplier Data.  

(e)	Termination of Data Supplier Agreements. Subscriber is responsible for termination of any agreements directly between Subscriber and any Data Supplier as appropriate, in accordance with the applicable requirements.

(f)	Obligations Upon Termination. Upon the effective date of termination, all applicable outstanding Fees and other charges owed and/or accrued through the date of termination shall become due and Subscriber’s License shall cease. Except as required by compliance or legal requirements, Subscriber will immediately delete or return to Cboe all installable Software and Data (unless an Order Form expressly provides otherwise). If Cboe terminates all or part of any Service pursuant to Sections 10(b) or 10(d)(i) – (iii), Cboe’s only obligation to Subscriber to the extent arising from such termination will be to refund any Fees paid in advance for the cancelled portion of the Services. 

11.	Confidentiality.

The Party receiving or accessing (“Recipient”) Confidential Information from the other Party (“Discloser”) acknowledges and agrees that it will neither use nor disclose Discloser’s Confidential Information to any third party, except as contemplated by this Agreement. Recipient may disclose Discloser’s Confidential Information to its Affiliates to the extent necessary to perform its obligations hereunder and Recipient shall be liable for all acts of its Affiliates with respect to the confidentiality obligations herein. Recipient further acknowledges that a breach of the provisions of this Section 11 may cause Discloser irreparable injury for which Discloser may not have an adequate remedy available at law. Accordingly, Discloser shall be entitled to seek injunctive or other equitable relief to prevent or stop any such breach, threatened or actual, without posting a bond or security and without prejudice to such other rights as may be available under this Agreement or under applicable law.

Notwithstanding the foregoing, Confidential Information shall not be deemed to include, and Recipient shall have no obligation to keep confidential, information which: (a) was rightfully known to Recipient prior to its receipt from Discloser; (b) is or becomes public knowledge through no fault of Recipient; (c) is disclosed to Recipient by a third party with the right to disclose the information without restriction; (d) is independently developed by Recipient without the use of any Confidential Information of Discloser; or (e) is disclosed with the approval of Discloser. The obligations of the Parties under this Section 11 shall commence on the Effective Date and shall continue for two (2) years from the date of termination of this Agreement, provided that, with respect to Confidential Information that qualifies as proprietary technological information, or otherwise as a “trade secret” under applicable law, Discloser’s rights and Recipient’s obligations under this Agreement shall survive indefinitely, or in the case of trade secrets, for so long as applicable law affords trade secret protection. For the avoidance of doubt, the Parties agree that the Services shall be regarded as “trade secret” information of Cboe.

Recipient may disclose Discloser’s Confidential Information as required by applicable law or regulation, including as required or requested by subpoena or other order of court to furnish Confidential Information of Discloser, in which case Recipient shall provide (i) Discloser with prompt notice thereof so that Discloser may seek an appropriate protective order or other relief, at the sole expense of Discloser, and (ii) such assistance to Discloser in seeking a protective order or other relief as Discloser may reasonably request.  In the absence of a protective order, if Recipient is nonetheless, in the opinion of its legal counsel, compelled to furnish Confidential Information of Discloser or potentially stand liable for contempt or other legal censure or penalty, Recipient may furnish such information to the extent necessary to comply with the request without liability under this Agreement or otherwise.

If Recipient is required or requested by any government or regulatory authority having jurisdiction over Recipient, or an Affiliate of Recipient, to furnish Confidential Information of Discloser to that authority, Recipient may furnish such information so long as Recipient requests confidential treatment of the information provided to that authority.

12.	General.

(a)	Controlling Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois, without regard to conflict of law principles. Each Party hereby irrevocably consents to, and waives any right to contest, the jurisdiction or venue of the Federal or state courts located in Chicago, Illinois, as the exclusive forum in connection with any action or proceeding instituted to resolve a matter arising out of or relating to this Agreement. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

(b)	Export Compliance. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Services. Specifically, Subscriber acknowledges that the Services may be subject to export restrictions imposed by the U.S. Government at any time and from time to time. Subscriber agrees not to export or reexport, directly or indirectly, any of the Services to any country for which the U.S. Government or any agency thereof prohibits or restricts the undertaking of business or requires an export license or other government approval, without first notifying Cboe in writing and obtaining such license or approval. This includes the provision or redistribution of Services to any person, entity, country or region with respect to which the United Nations, United States, European Union and/or United Kingdom maintains sanctions prohibiting such activity.

(c)	Attorneys’ Fees and Costs. Each Party shall bear its own costs and expenses in the completion or enforcement of this Agreement.

(d)	Notices. Notices to Cboe shall be effective upon receipt (as evidenced by delivery receipt), if sent by nationally recognized courier to the attention of its General Counsel, at 433 West Van Buren Street, 700S, Chicago, Illinois, 60607, with a copy to legalnotices@cboe.com. Notices to Subscriber shall be effective upon receipt (as evidenced by delivery receipt), if sent by nationally recognized courier or by e-mail to the physical address or e-mail address specified by Subscriber under Subscriber Legal Notice Information on Exhibit A. All notices shall be in writing.

(e)	Assignment. This Agreement is personal to Subscriber and shall not be assigned in whole or in part without the prior written consent of Cboe. Notwithstanding the foregoing, Subscriber may assign this Agreement upon written notice only (without Cboe’s consent) to any entity that controls, is controlled by, or under common control with Subscriber or that acquires all or substantially all of the assets and business of Subscriber, provided that such person or entity includes in its notice and acknowledgement that it is subject to all of the terms and conditions of this Agreement. Any other attempt by Subscriber to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be void.

(f)	Amendments and Waivers. Cboe may amend the terms of: (i) this Agreement, including any Order Form or other attachment hereto, effective upon not less than ninety (90) days’ notice to Subscriber; (ii) Fees in any applicable fee schedule, effective upon not less than thirty (30) days’ notice to Subscriber; or (iii) the Policies or any other document attached to or referenced in this Agreement, effective upon not less than thirty (30) days after posting on the Website, provided that separate written (including e-mail) notice has also been given to Subscriber. Notwithstanding anything to the contrary, Subscriber may terminate this Agreement or the affected Service or portion of a Service before any amendment becomes effective by giving written notice of such termination to Cboe within fourteen (14) days of Cboe’s notice of amendment. The failure or delay of either Party at any time or times to require full performance of any provision hereof will in no manner affect the right of such Party in the future.

(g)	Other Services Excluded. This Agreement covers only the right to gain access to and use the Services. To the extent Subscriber purchases licenses to other services or products, including Cboe’s execution products or separate data subscription products, such purchases shall be pursuant to separate contract(s) between Cboe and Subscriber.

(h)	Counterparts. This Agreement may be signed in counterparts, each of which will be an original, but all of which, together, will constitute one and the same instrument.

(i)	Severability. If a court of competent jurisdiction declares any provision of this Agreement to be invalid, unlawful or unenforceable as drafted, the Parties intend that this Agreement continue to be valid and enforceable and that such provision be amended and construed in a manner designed to effectuate the purposes of the provision. If such provision cannot be so amended and construed, it shall be severed, and the remaining provisions shall remain unimpaired and in full force and effect to the fullest extent permitted by law.

(j)	Entire Agreement. This Agreement (including the applicable Order Forms, Policies, attachments, and any other documents expressly incorporated by reference) constitutes the complete understanding of the Parties, and supersedes all prior agreements, discussions, negotiations, promises, proposals, representations, and understandings (whether written or oral) between the Parties, with regard to the subject matter hereof. 

(k)	Relationship Between the Parties. There is no joint venture, partnership, agency, or fiduciary relationship existing between Subscriber and Cboe or any Cboe Affiliate, and the Parties do not intend to create any such relationship by this Agreement. This Agreement is non-exclusive.  

(l)	Order of Precedence. In the event of any conflicting terms or provisions between this Agreement and documents incorporated herein, the order of priority shall be (1) the applicable Order Form, (2) this Agreement, (3) the Policies, (4) any other document incorporated by reference.  

(m)	Definitions. As used in this Agreement, the terms “include(s)” and “including” mean “including without limitation.” 

(n)	Survival. Sections 2, 3, 5, 6, 7, 8, 9, 10(f), 11, and 12 of this Agreement will survive the termination of this Agreement.
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