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LBMA-i Subscriber Terms and Conditions

 
  1. INTRODUCTION
    1. Access, extraction and use of the Licensed Data (the “Service”) is granted to Customer (as defined below) subject to the terms and conditions (these “Terms”) described herein.
    2. The Service is provided by Simplitium or by Simplitium through a Vendor (as defined below). These Terms shall apply to Customer’s use of the Service.
  2. DEFINITIONS
    1. The following words and expressions shall have the meaning set forth below.
    2. ”Affiliate” shall mean a company or other legal entity that is (a) directly or indirectly controlled by a Party, (b) directly or indirectly controlling a Party, or (c) under joint control with a Party, where the terms “controlled”, “controlling” and “under joint control with” shall mean control over more than fifty (50) % of the votes for all stocks or shares by ownership.
    3. “Business Days” shall mean any day other than a Saturday or Sunday or a day which is a public holiday in the United Kingdom.
    4. “Confidential Information” shall mean any confidential trade secret, technology, technical information, business information (including but not limited to clearing, data dissemination, security reference data, future development plans, market trading, customer and member information, business plans), or other proprietary information or information related thereto that is disclosed (whether in written, oral or electronic form) by one Party to the other under these Terms or any information which, by its nature, is or ought to be considered confidential or that the disclosing Party identifies in writing as confidential before disclosure to the receiving Party.
    5. “Customer” shall mean the legal entity that has signed up to receive the Service on Simplitium’s or Vendor’s website. For the avoidance of doubt, any reference to Customer shall also be considered a reference to any personnel, consultant, agent or other engaged by Customer that is provided access to the Service and Licensed Data.
    6. “Effective Date” means the date on which the Customer is provided access to the Service.
    7. “End Users” shall mean the individual users who will be given access to the Licensed Data by the Customer.
    8. “Fee Schedule” shall mean the price list made available on the order form on the LBMA-i website or the Vendor’s order form
    9. “Intellectual Property Rights” means all patents, rights to inventions, utility models, copyright and related rights, trademarks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database rights, semi-conductor topography rights, moral rights, rights in Confidential Information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.
    10. “Licensed Data” means the daily (T+2) reports generated and published by the LBMA-i.
    11. “LBMA” means the London Bullion Market Association.
    12. “LBMA-i” means the LBMA-branded platform supplied by Simplitium incorporating the interface that is made available to Customers and contains Licensed Data.
    13. “Order Form” means the form on the LBMA-i website for a Customer to request access to the Licensed Data which forms part of the license agreement.
    14. ”Party” or “Parties” shall mean each or both of Simplitium and Customer, as the case may be.
    15. “Service” shall have the meaning given in Section 1.1.
    16. “Simplitium” shall mean Simplitium Ltd.
    17. “Terms” shall have the meaning given in Section 1.1.
    18. “Vendor” shall mean any distributor, information vendor or other entity that is mandated by Simplitium or LBMA to provide the Service to Customer.
  3. LICENSE AND RESTRICTIONS
    1. Customer and its End Users are granted a personal, non-exclusive, non-transferable, non-sub-licensable, revocable, and limited License to receive the Licensed Data directly from LBMA-i or via Vendor for internal business use only.
    2. Customer understands that the Service may be provided by a Vendor, an Affiliate of Simplitium or a subcontractor engaged by Simplitium.
    3. Subject to purchasing the appropriate license Customers and End Users are permitted to: -
      1. Access and view the Licensed Data via a Vendor or proprietary display terminal for internal use in the ordinary course of it’s business
      2. Receive the raw data file via datafeed or download for the purposes of incorporating the data within an internal database to facilitate internal record keeping and for permitted use described in 3.2 (a)
      3. Provide limited amounts of the Licensed data on a non-continuous and ad-hoc basis in order to interact with it’s customers and in order to carry out the permitted use described in 3.2(a)
    4. Any License provided under Section 3 means the Customer is prohibited from the following:
      1. distributing, transferring, sub-licensing, renting, lending, transmitting, selling, re-circulating, repackaging, assigning, leasing, reselling, publishing or making available all or any portion of the Licensed Data save for 3.2 (c);
      2. creation or redistribution of any derived data;
      3. using the data as a Benchmark or in connection with determination of a Benchmark or to pass the Licensed data to a Benchmark administrator and in particular shall not create any financial instrument ot contract by reference to the Licensed data:
      4. using the Service in any unfair, misleading or discriminatory format; and
      5. using the Service for any illegal purpose or contrary to the laws applicable in the jurisdictions where Customer operates or applicable to supply and use of the Service.
      6. Customer may not use the Licensed Data for providing services which, in the sole judgement of Simplitium, is or becomes competitive with Simplitium.
    5. For the avoidance of doubt, Affiliates of Customer are considered third parties. If the Customer wishes to have any of its Affiliates access the Licensed Data they must apply for their own license.
    6. Customer acknowledges that Simplitium, in its sole discretion, may from time to time make modifications to the Service. Such modifications may require corresponding changes in Vendor's services. Changes or failure to make timely changes by Vendor or Customer may affect Customer's access to or use of the Service. Simplitium shall not be responsible for such effects.
  4. CUSTOMER OBLIGATIONS
    1. Customer is responsible for:
      1. at all times, ensuring that it’s use of the Service and Licensed Data is compliant with any applicable law;
      2. not using the Service or Licensed Data for any purpose except as expressly permitted under these Terms;
      3. controlling access to the Licensed Data by End Users who use the Licensed Data under the terms of this agreement;
      4. ensuring it has appropriate rules, policies, procedures and controls to ensure End Users compliance with the terms of this agreement;
      5. informing End Users of the content of these Terms; and
      6. promptly informing Simplitium of any unauthorised use of, or access to, the data.
  5. INTELLECTUAL PROPERTY
    1. Customer acknowledges that title to the Licensed Data including any Intellectual Property Rights relating thereto shall remain with LBMA or its licensors, as the case may be, any third party who has otherwise provided Licensed Data and that Simplitium has the exclusive right to protect by copyright or otherwise and to reproduce, publish and distribute the Licensed Data to any third parties.
    2. Nothing in this Agreement has the effect of assigning or transferring any title to Intellectual Property Rights to Customer and Customer acknowledges it shall have no rights in or to the Licensed Data except as expressly set forth under these Terms.
  6. RECEIPT OF DATA FROM DATA VENDORS
    1. Where the Customer receives the Licensed Data from an authorised data Vendor:
      1. the Customer must request access via an authorised Vendor or via the LBMA-I website;
      2. the Customer is responsible for the installation, operation and maintenance of telecommunication lines, equipment, software and other arrangements necessary to receive the Licensed Data from such Vendor;
      3. the Customer acknowledges that Simplitium may at any time terminate the supply of data to the vendor and the customer agrees Simplitium owes no duty to the Customer under the agreement;
      4. Simplitium does not endorse or approve any equipment, Vendor or Vendor's service.
  7. FEES
    1. Where the Customer has a license agreement directly with Simplitium they agree to pay the fees as set out by the Order Form and current Fee Schedule.
    2. Where the Customer has a license agreement directly with a Vendor they agree to pay the fees as set out by the Vendor.
    3. Simplitium may change the fees specified in the Fee Schedule with sixty (60) days’ notice
    4. All payments should be made in full and shall be exclusive of VAT or local taxes for which the Customer shall remain liable.
    5. The amount of any invoice which has not been paid within thirty (30) days from the invoice date shall automatically be subject to late payment interest equal to 1.5% per month or the maximum permitted by applicable law, which interest shall be compounded daily as of the due date until receipt of full payment by the company.
  8. AUDIT AND REPORTING
    1. The Customer shall keep complete and accurate records related to use of the Licensed Data for a minimum of three years from the date of creation, sufficient to demonstrate compliance with the License and to identify all fees payable under the Fee Schedule to Simplitium.
    2. Customer agrees to provide promptly to Simplitium or Vendor any information or reports that may be requested from time to time, which are reasonably related to the Customers receipt and use of the Licensed Data.
    3. Customer shall make its premises available to Simplitium for inspection of Customer's use of the Services (including review of any records regarding use of, or access to, the Services and the number and locations of all devices that receive the Services), all at reasonable times, upon reasonable notice, to ensure compliance with the terms herein subject to Customer's compliance with reasonable confidentiality, security and health and safety instructions of Customer.
  9. DISCLAIMER
    1. The Service is provided “as is” and “as available” and without responsibility on the part of LBMA, its affiliates, directors, officers, employees, agents, Members (including affiliates of Members) or licensed Vendors (collectively the "Disclaiming Parties") including as to the correction of any defects in the Data.
    2. To the extent permitted by law, the Disclaiming Parties expressly disclaim all liability in relation to the accuracy or completeness of the Data. No Disclaiming Party shall have any liability for any errors, omissions, delays or interruptions in the provision of the Data.
    3. No party should take or fail to take action in reliance upon the Data. The Disclaiming Parties bear no responsibility or liability for any such action or omission or the consequences thereof.  Any reliance placed by a party on any Data shall be at such party's sole risk.
    4. No Disclaiming Party guarantees or makes any representation in relation to the Data’s accuracy, reliability, timeliness, completeness, performance or fitness for a particular purpose.
    5. There are no express or implied: (a) warranties; (b) conditions; (c) guarantees; or (d) representations attached to the Data.
    6. No Disclaiming Party shall have any responsibility or liability for any:
      1. lost profit, revenue or anticipated revenue;
      2. business interruption;
      3. lost contract or business opportunity; or
      4. loss of goodwill arising from any publication or use of the Data. 
    7. No Disclaiming Party shall be responsible or liable for any indirect, special, punitive, incidental or consequential losses or damages howsoever arising. This applies even if the Disclaiming Party was advised in advance of the possibility of such loss, or if such loss would otherwise be considered foreseeable.
    8. The limitations of liability set out in this Disclaimer shall not exclude or restrict the liability of the Disclaiming Parties in respect of:
      1. the fraud, wilful default or gross negligence of the applicable Disclaiming Party;
      2. personal injury or death resulting from negligence; or
      3. any liability which cannot be excluded or restricted in accordance with applicable law.
    9. The exclusions and limitations of liability contained herein shall apply whether:
      1. a claim arises in contract, tort, negligence, strict liability, breach of statutory duty, contribution or otherwise;
      2. a party brings a claim directly; or
      3. a third party brings a claim.
    10. The Data is not offered as professional, legal, financial or investment advice to any third party, whether or not a Member of LBMA. It is provided for general information purposes only.
    11. Any party accessing the Data does so at their own risk.
  10. LIABILITY
    1. To the maximum extent permitted by compulsory applicable law, Simplitium’s liability under any cause of action arising under these Terms shall, except in cases of wilful misconduct or gross negligence, in no event exceed an amount corresponding to GBP 100.
    2. In no event, except in cases of wilful misconduct or gross negligence, shall Simplitium have any liability to Customer or any other third party for any loss of profits, loss of or damaged data or costs of procurement of substitute goods or service, or for any indirect, incidental, special, punitive or consequential damages, however caused and whether arising under contract, tort or other theory of liability.
  11. FORCE MAJEURE
    1. Neither Party shall be liable for default or delay under these Terms caused by any occurrence beyond its reasonable control or beyond the reasonable control of any subcontractor, including but not limited to fires, strikes, accidents, lockouts, riots, acts of civil or military authority, epidemic, flood, earthquake, war, acts of terrorism, sabotage, governmental actions, acts of God and subcontractor defaults.
  12. TERM AND TERMINATION
    1. These Terms shall remain in effect until either Party terminates Customer’s access to the Service.
    2. The Agreement may be terminated by either Party by giving the other Party thirty (30) days’ notice.
    3. Each Party shall have the right to terminate these Terms with immediate effect if the other Party,
      1. breaches a material term or condition under these Terms and fails to remedy the breach within thirty (30) days after having received written notice thereof, or
      2. is declared bankrupt, commences composition proceedings or otherwise is insolvent.
    4. Termination of these Terms shall be made in writing.
    5. Upon termination, all rights and the license granted to Customer pursuant to these Terms shall automatically cease and Customer shall cease all use of the Service and Licensed Data.
  13. CONFIDENTIALITY
    1. The Parties covenant, represent and warrant to each other that they will:
      1. not directly or indirectly disclose or make available the other Party’s Confidential Information to any third party without the consent of the other Party;
      2. not use the other Party’s Confidential Information in any manner or for any purposes whatsoever except as permitted under these Terms; or
      3. apply no lesser security measures and degree of care (but in no event exercise less than reasonable care) than those the receiving Party applies to its own Confidential Information.
    2. Confidential Information shall not include information, data and other material that:
      1. was already known to the receiving Party without restriction prior to receipt of information from the disclosing Party, as evidenced by prior existing records of the receiving Party;
      2. is or becomes generally known to the public through no wrongful act of the receiving Party, as evidenced by documents generally published;
      3. is received from a third party without restriction and without breach of this or other confidentiality undertakings; or
      4. is shown by written or electronic records of the receiving Party to have been independently developed by the receiving Party without the use of the Confidential Information.
    3. The disclosure restrictions set forth in this Section 12 shall not apply to Confidential Information that is required to be disclosed by legislation or as evidence by law or a court of competent jurisdiction or governmental authorities or the rules of a regulated market or other recognised organised market place, provided however, that prior to making any such disclosure, the disclosing Party promptly notifies the other Party of such requirement or request (where allowed by law or applicable rules to do so), and allows the other Party the reasonable opportunity to exhaust all reasonable legal and equitable channels for maintaining such information in confidence.
  14. CHANGES TO THESE TERMS
    1. Simplitium has, at any time, a right to change these Terms. Changes to the Terms come into force 30 days after Simplitium has notified Customer of such change.
    2. If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of all or part of a provision shall not affect the validity of the remaining parts and provisions of these Terms, which shall remain in full force and effect.
  15. MISCELLANEOUS
    1. Neither Party may in whole or part assign or in other ways transfer its rights or obligations under these Terms without the other Party’s prior written consent. Notwithstanding the foregoing, Simplitium may in whole or part assign its rights or obligations under these terms to an Affiliate.
    2. The Terms set forth herein:
      1. shall supersede any other terms between Customer and Vendor or Customer and Simplitium that are inconsistent with the terms and conditions herein as it relates to the Service; and
      2. shall be governed by and construed under the laws of England and Wales and each Party submits to the exclusive jurisdiction of the courts of England and Wales.