ELECTRONIC TRANSACTIONS AGREEMENT
Exhibit 10.2
Xxxxxx Xxxxxxx
This ELECTRONIC TRANSACTIONS AGREEMENT (this “Agreement”) sets forth the terms and conditions under
which the undersigned entity, Xxxxxx Xxxxxxx & Co. Incorporated and/or one or more of its
affiliates (collectively, all such parties, “Xxxxxx Xxxxxxx”), agrees to provide You (as defined
below) with the use of one or more systems for the purpose of electronically transmitting trading
instructions to it, including certain electronic services that may enable You to route orders and
otherwise engage in electronic transactions (“Transactions”), receive investment research,
portfolio information, and any software related thereto (collectively, the “Services”) either
directly or through third parties (“Vendors”).
1. Parties. As used herein, the term “You” and “Your” shall mean you, individually, and each other
party on whose behalf you may use the Services at any time. All references to “We”, “Us” or “Our”
shall refer to Xxxxxx Xxxxxxx & Co. Incorporated (“MS&Co.”) or the affiliated entity signing below.
MS&Co. is a U.S. registered broker-dealer and futures commission merchant. The Services are
provided by MS&Co. or an affiliate of MS&Co. located or authorized to do business in the country
(including state, province or other jurisdiction) where Xxxxxx Xxxxxxx xxxxx the Services to be
accessed by You. Services are not intended to be provided to and may not be used by any party in
any jurisdiction where the provision or use thereof would be contrary to applicable law, rules or
regulations (“Applicable Law”).
2. Binding Terms. (a) You agree to be bound by any rules, conventions, regulations, user
agreements, user guides or instructions related to the Services or of any regulatory authorities,
exchanges or trading systems through which Your trades are executed, as well as any terms of use,
including disclosures and disclaimers that are displayed by the Services or which You may click
through (the “Rules”), all of which shall be in addition to, and not in lieu of, Your obligations
under this Agreement; and (b) You shall continue to be bound by any account agreement or other
documentation between You and Us governing the provision to You of products and services other than
the Services (each, an “Account Agreement”), and nothing herein shall be deemed to supersede or
modify any such Account Agreement.
3. Security. You may be provided with user identifications, passwords, authentication codes or
other security devices or procedures (collectively, “Passwords”) for access to the Services. You
may not share Your Passwords with any third party without Our and/or the Vendors’ written approval,
as applicable. Upon request, You shall provide Us with a list of persons authorized to use Your
Passwords, and You shall promptly advise Us of any changes in such authorized persons. You agree
not to alter, delete, disable or otherwise circumvent any Password or permit or assist any other
party to do so in a manner not authorized by Us and/or the Vendors, as applicable. We and/or the
Vendors reserve the right to suspend Your access to the Services and change (or require You to
change) Your Passwords at any time. You are responsible for any transmissions, instructions,
information, processes, click stream data or other communications (“Communications”) attributable
to Your Passwords, whether entered by Your authorized personnel or by any other person, and any
agreement or consent communicated from such access shall be deemed to be a duly signed writing of
Yours sufficient to bind You. You shall notify Us immediately upon learning or suspecting that any
unauthorized party has obtained any Password used in connection with any Service. You shall
maintain adequate internal procedures and controls over Your use of the Services.
4. Placement of Orders; Objections.
(a) We or one of Our affiliates shall process requests to execute Transactions We receive through
the Services (the “Orders”), and shall only be deemed to have received an Order if such Order has
been received and processed, even if You have not received an acknowledgment of the Order. We will
use reasonable efforts to execute Orders on the terms received. The applicable Service may provide
You with a notice (each a “Notice of Execution”), which may be in addition to any confirmation or
other notice required under Applicable Law, for each Order executed through the Services.
(b) You agree that We have no obligation to enter into any Transaction with You or to provide a
quote with respect to any Transaction with You. Unless a quotation is specifically identified as
actionable, it is indicative and for informational purposes only. We may cancel or reject an Order
in whole or in part at any time and for any reason in Our sole discretion.
(c) You shall be responsible for all executions (partial or otherwise) of Orders identified by the
Services as sent by You, even if You did not receive a Notice of Execution. Execution terms as
reflected in any Notice of Execution are subject to adjustment by Us for errors, whether on Our
part, the part of Our agent, any Vendor, the Services or any market to which Your Order was routed.
(d) You shall not be responsible for executions completed after Your Order has been cancelled in
the applicable market and for which an acknowledgment was sent to that effect. An Order shall not
be deemed to have been cancelled if We receive executions of Your Order from such market prior to
or subsequent to Our receipt of confirmation from such market that the Order was cancelled. System
response times may vary due to market conditions, system performance, Internet traffic or other
factors. During times of heavy trading volume, Orders or cancellation requests received through
the Services may take longer to execute or cancel, and Orders that are executed may be at prices
that diverge significantly from the market price quoted or displayed at the time the Order was
entered. In the event of system delay or failure, or otherwise in relation to any concerns You may
have about Your Transactions, You are responsible for contacting Us by alternative means, such as
telephone.
(e) Unless otherwise provided for in any applicable Account Agreement or Rules, if You have any
objections to any report of the execution of Your Orders and/or any statement of Your account(s),
You must raise them with Us within three business days of the date on which Your report or
statement was sent.
(f) You are solely responsible for Your compliance with the Rules and Applicable Law, including
suitability requirements, the preparation and/or filing of any of Your reports to any relevant
exchange and/or any other regulatory authority or the maintenance of records required to be
maintained by You. You further agree and acknowledge that, to the extent that You require training
in the rules relating to the entry and trading of orders and other applicable requirements of any
relevant exchange, You have communicated that requirement to Us and We have agreed to provide such
training to You; provided that if, under the rules of any relevant exchange, We are required to
ensure that revisions and updates to the rules relating to the entry and trading of orders on such
exchange are promptly communicated to You, we hereby agree to provide You notice of such revisions
and updates by email to an email address that You agree to provide to us for such purpose.
(g) We or, where applicable, the Vendor may impose and/or change limits on the amount, size and
type of trades and securities, commodities, futures, currencies, derivatives thereon or any other
instruments You may trade through the Services and modify any aspect of or limit or terminate use
of the Services.
(h) You shall cooperate fully with Xxxxxx Xxxxxxx in any inquiries made by any of Our third party
market data suppliers, any relevant exchange, any Vendor or any other regulatory authority in
relation to the provision of the Services.
(i) Unless You specifically instruct Us to route Your Orders directly to one or more specified
markets, We may, in Our discretion, select any market, including one or more internal matchings
systems or third party trading systems.
5. Usage and Proprietary Rights. Xxxxxx Xxxxxxx grants You, for the term of this Agreement, a
personal, limited, non-exclusive, revocable, non-transferable and non-sublicenseable license to use
the Services subject to the terms hereof, and the following: You have no ownership rights in the
Services, which are owned by Xxxxxx Xxxxxxx, the Vendors or their respective licensors, and are
protected under copyright, trademark and other intellectual property laws and other Applicable Law.
You receive no copyright or any other intellectual property right in or to the Services, except as
provided above. You may use the Services only for Your internal business purposes. You agree that
Xxxxxx Xxxxxxx may provide certain portions of the Services under license from third parties, and
You agree to comply with any additional restrictions on Your usage that Xxxxxx Xxxxxxx may
communicate to You from time to time, or that are otherwise the subject of an agreement between You
and such licensors. You agree that Xxxxxx Xxxxxxx may monitor Your use of the Services. Each party
will treat the existence and terms of this Agreement as confidential, and You further agree that
any information relating to the content or operation of the Services is confidential and
proprietary to Us, and that You will refrain from disclosing such information to any third party.
6. Change to Terms and Conditions. Upon notice to You, We may add, delete or otherwise modify any
portion of this Agreement in whole or in part at any time, including without limitation to impose
charges for use of the Services or any portion thereof. Your continued use of the Services 10 days
after receipt of such notice shall represent Your acceptance of such terms.
7. Use of the Internet. You agree that the Internet is not a secure network and that any
Communications transmitted over the Internet may be intercepted or accessed by unauthorized or
unintended parties, may not arrive at the intended destination or may not arrive in the form
transmitted. You agree that neither Xxxxxx Xxxxxxx nor the relevant Vendor take any responsibility
for any Communications transmitted over the Internet and that there can be no assurance that such
Communications shall remain confidential or intact. Any Communications transmitted to or from You
through the Services shall be at Your sole risk. If You access or view the Services by means or in
formats other than as originally intended or provided by Us, You remain responsible for reviewing
all pertinent portions of the Services, including any relevant disclosures and disclaimers.
8. E-mail, Chat and Instant Messaging. E-mail, chat and instant messaging features may be provided
to You as a convenience to enhance Your Communications with Us. Unless otherwise agreed to by Us,
You shall not use these features to request, authorize or effect any Transaction, to send fund
transfer instructions or account information, or for any other Communication that requires
non-electronic written authorization. Xxxxxx Xxxxxxx shall not be responsible for any loss or
damage that results if any request for those purposes is not accepted or processed. You agree that
You shall use these features in compliance with the Rules and Applicable Law, and You shall not use
them to transmit inappropriate information, including information that may be deemed obscene,
libelous, harassing, fraudulent or slanderous.
9. Representations and Warranties. Each time You use the Services and with respect to each
Transaction, You hereby represent and warrant that:
(a) You have the power and authority
(including under any applicable investment restrictions or guidelines and on behalf of any party
for whom You are using the Services) to enter into and perform Your obligations under this
Agreement, and this Agreement is Your legal, valid, binding and enforceable obligation.
(b) Any Orders submitted by You are and shall comply with this Agreement, any applicable Account
Agreement, Applicable Law and the Rules.
(c) All securities, commodities, futures, currencies, derivatives thereon and any other instruments
that You offer and sell using the Services shall be free and clear of any liens, mortgages,
encumbrances or restrictions of any kind (including legends or restrictions on transfer), both when
they are offered or sold and upon their delivery at settlement.
(d) You are not and shall not be, at any time when You offer, buy or sell any security using the
Services, an “affiliate” of the issuer thereof or, in the case of convertible or exchangeable
securities, the issuer of the underlying security.
(e) Each representation and warranty made by You under any Rules shall be deemed to have been made
for the benefit of Xxxxxx Xxxxxxx.
(f) You shall not introduce, nor permit any person to introduce into the Services, any code,
malicious or hidden mechanisms that would impair the operation of the Services or of Xxxxxx
Xxxxxxx’x computers or other devices or software, or would permit other users access to the
Services, nor shall You use the Services to gain any unauthorized access to any computer system.
10. DISCLAIMER OF WARRANTIES. THE SERVICES ARE PROVIDED “AS IS”, AND NONE OF XXXXXX XXXXXXX, THE
VENDORS, OR ANY THIRD PARTY THAT CONTRIBUTES IN ANY MANNER TO THE SERVICES MAKE ANY REPRESENTATION
OR WARRANTY WHATSOEVER, INCLUDING WARRANTIES (I) WITH RESPECT TO THE ACCURACY, COMPLETENESS OR
TIMELINESS OF THE SERVICES; OR (II) THAT THE SERVICES SHALL BE UNINTERRUPTED OR ERROR FREE.
FURTHER, XXXXXX XXXXXXX, THE VENDORS AND ANY THIRD PARTY THAT CONTRIBUTES IN ANY MANNER TO THE
SERVICES DISCLAIM ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF TITLE,
NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE RELATING TO THE SERVICES.
ANY HYPERLINK TO ANOTHER SITE IS NOT AND DOES NOT IMPLY AN ENDORSEMENT, INVESTIGATION, VERIFICATION
OR MONITORING BY XXXXXX XXXXXXX OF ANY INFORMATION ON THAT SITE.
11. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL XXXXXX
XXXXXXX, THE VENDORS, CONTRACTORS OR TECHNOLOGY OR CONTENT PROVIDERS OR THEIR RESPECTIVE OFFICERS,
DIRECTORS, OWNERS, AGENTS AND EMPLOYEES (THE “XXXXXX XXXXXXX PARTIES”) HAVE ANY LIABILITY TO YOU OR
ANY OTHER PERSON FOR ANY COSTS, LIABILITIES OR DAMAGES OF ANY KIND, WHETHER DIRECT, INDIRECT,
CONSEQUENTIAL OR PUNITIVE (TOGETHER, “COSTS”), ARISING OUT OF, OR IN CONNECTION WITH, THIS
AGREEMENT OR THE PERFORMANCE OR BREACH OF THIS AGREEMENT, OR YOUR OR ANY OTHER PERSON’S USE OF, OR
INABILITY TO USE, THE SERVICES. THESE LIMITATIONS SHALL APPLY REGARDLESS OF THE FORM OF ACTION,
WHETHER BASED ON STATUTE OR ARISING IN CONTRACT, INDEMNITY, WARRANTY, STRICT LIABILITY OR TORT
(INCLUDING NEGLIGENCE), AND REGARDLESS OF WHETHER ANY XXXXXX XXXXXXX PARTY KNOWS OR HAS REASON TO
KNOW OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANY OTHER PROVISIONS OF THIS AGREEMENT AND
WITHOUT LIMITING THE FOREGOING, THE MAXIMUM AGGREGATE LIABILITY OF THE XXXXXX XXXXXXX PARTIES UNDER
THIS AGREEMENT AND WITH RESPECT TO THE SERVICES SHALL NOT EXCEED THE AMOUNT EARNED (INCLUDING ANY
XXXX-UP), IF ANY, BY XXXXXX XXXXXXX FROM YOU IN CONNECTION WITH THE SPECIFIC EVENT GIVING RISE TO
YOUR LOSS OR DAMAGES, UNLESS CAUSED DIRECTLY BY THE XXXXXX XXXXXXX PARTIES’ GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT. THIS LIMITATION OF LIABILITY IS IN ADDITION TO ANY OTHER LIMITATION PROVIDED IN
ANY APPLICABLE ACCOUNT AGREEMENT OR RULES.
12. Your Indemnification Obligations. You agree to indemnify, defend and hold the Xxxxxx Xxxxxxx
Parties harmless from and against any and all losses, liabilities, judgments, arbitration awards,
settlements, expenses, damages and costs, including attorneys’ fees and disbursements, as incurred
by any of them arising in any manner out of or relating to Your use of, or inability to use, the
Services or any breach or alleged breach by You of this Agreement. You shall cooperate with Xxxxxx
Xxxxxxx as fully as reasonably required in the defense of any third party claim subject to these
indemnity provisions.
Xxxxxx Xxxxxxx reserves the right to assume the exclusive defense and control of any matter
otherwise subject to indemnification by You. You shall not in any event settle any matter without
the prior written consent of Xxxxxx Xxxxxxx. This indemnity is in addition to any other indemnity
provided in any applicable Account Agreement or Rules.
13. Governing Law; Injunctive Relief. To the maximum extent permitted by Applicable Law, (a) this
Agreement shall be governed by and construed in accordance with the law of the State of New York
applicable to contracts signed and performed within the State; and (b) the exclusive jurisdiction
for any action or proceeding arising out of or related to this Agreement shall be a state or
federal court located in the County and State of New York. You hereby irrevocably waive any right
You may have under any Rules or Applicable Law to a jury trial. You acknowledge that any breach or
threatened breach by You of any provision of this Agreement may cause Xxxxxx Xxxxxxx or the Vendors
irreparable injury and damage and, therefore, that any such breach or threatened breach may be
enjoined through injunctive proceedings in addition to any other rights and remedies that may be
available to Xxxxxx Xxxxxxx or the Vendors at law or in equity.
14. Notice. Any notices or other communications required or permitted to be given or delivered
under this Agreement by Us to You shall be provided through the Services, by e-mail, by facsimile
(with confirmation of receipt) or in writing to the address provided by You, which You are solely
responsible for updating as necessary. Any notices or other communications under this Agreement by
You to Us shall be provided in writing to Xxxxxx Xxxxxxx & Co. Incorporated, 0000 Xxxxxx xx xxx
Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: General Counsel — Technology, with a copy to the
address set forth on the signature page hereto or as otherwise specified in writing, and, if the
name of an affiliated entity appears on the signature line below, to that entity at the address
provided below as well. Notices transmitted electronically (e-mail or fax or phone) shall be
effective upon transmission, provided that such notice is properly addressed; all other notices
shall be effective upon receipt.
15. Assignment; Waiver. You may not assign, sublicense, delegate, subcontract or otherwise transfer
Your rights, duties and obligations under this Agreement to a third party without Our express
written consent. Any instrument purporting to make an assignment or other transfer in violation of
this provision shall be null and void. Any forbearance or delay on the part of either party hereto
in enforcing any provision of this Agreement or any of its rights hereunder shall not be construed
as a waiver of such provision or of a right to enforce same for such occurrence or any future
occurrence.
16. Termination. We may terminate or suspend this Agreement with respect to any Service
immediately, with or without cause, upon notice to You. You may terminate this Agreement, with or
without cause, upon at least one day’s written notice in non-electronic form to Us. Notwithstanding
any such termination, this Agreement shall remain in effect in respect of any other Service to
which You continue to have access. This Agreement shall remain in effect with respect to any Orders
placed or Transactions initiated prior to effectiveness of any termination, and neither party shall
be relieved of any payment or other obligation that accrued prior to termination. Sections 2, 4, 5
and 9-17 shall survive the termination of this Agreement.
17. Miscellaneous. This Agreement, together with any and all annexes to this Agreement and any
applicable Account Agreements, constitutes the entire agreement between You and Us with respect to
the Services. Solely in connection with a Transaction, in the event of any conflict between this
Agreement and any Account Agreement, the terms of this Agreement shall prevail. Any cause of action
with respect to the Services must be commenced within one year after the claim or cause of action
arises. If for any reason a court of competent jurisdiction finds any provision of this Agreement,
or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent
permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall
continue in full force and effect. The rights and remedies of the parties hereunder are cumulative
and are in addition to, and not in lieu of, all rights and remedies available at law and in equity.
18. Foreign Exchange Trading.. To the extent that You use the Services for the purposes of FX
Trading, the following shall apply:
A. Services. The Services contemplated by this Section 18 include (i) services currently known as
FX Trading and the foreign exchange functionality provided on Passport (formerly TradeXL) both
accessible through Xxxxxx Xxxxxxx’x Client Link (“Xxxxxx Xxxxxxx Client Link”) and (ii) any other
foreign exchange service as may be offered to You by Us directly or through third parties, each of
which shall be deemed a Vendor for purposes of the Agreement.
(a) Xxxxxx Xxxxxxx Client Link. In connection with Your use of Xxxxxx Xxxxxxx Client Link, Section
4, entitled “Placement of Orders; Objections”, and Section 8, entitled “E-mail, Chat and Instant
Messaging”, of the Agreement are qualified by the following terms:
(i) For purposes of Section 4(a), FX Trading will only accept market orders as “Orders”; the
foreign exchange functionality on Passport will accept market orders, requests for quotes, and
dealable quotes as “Orders”. We reserve the right to change the parameters established for foreign
exchange dealable quotes provided on Passport at any time and without notice to You.
(ii) In the event of any inconsistency with respect to the terms of a Transaction between either a
Notice of Execution or daily reports of Transactions accessible through Xxxxxx Xxxxxxx Client Link
and a confirmation, the terms of the confirmation for the relevant Transaction shall prevail.
(iii) Notwithstanding the provisions set forth in Section 4(d), You may not cancel any Orders that
You submit through Xxxxxx Xxxxxxx Client Link. Xxxxxx Xxxxxxx Client Link does not accept on-line
cancellation requests.
(iv) For purposes of Section 4(e), You will be able to access through Xxxxxx Xxxxxxx Client Link
daily reports of all Transactions executed prior to the close of business on each business day on
which You execute Transactions through such Service. You shall be deemed to have accepted the terms
of all such Transactions unless You object to them by contacting Us by telephone by the close of
trading on such business day.
(v) Notwithstanding the terms of Section 8, We may agree in advance to accept Orders from You that
are sent to Us by e-mail or instant messaging. With respect to any Orders submitted to Us by
e-mail or instant messaging , You agree to accept all risk related to the possibility that Your
Order may be delayed, corrupted, or otherwise fail to reach Us in a timely manner in the form in
which it was transmitted by You. In addition, You acknowledge that We will act upon Orders that We
receive from You by e-mail or instant messaging only after such Orders have been reviewed and
approved by an authorized person of Ours, who shall then, subject to the instructions contained in
Your message, submit the trade for execution. You further acknowledge that Orders received by
e-mail or instant messaging are subject to the rules contained in Section 4 of the Agreement,
including Our ability to cancel such Orders in whole or in part for any reason.
(b) Third Party Foreign Exchange Services. Section 4, entitled “Placement of Orders; Objections”,
shall be qualified in its entirety by the terms of any user guide and/or product information
governing the use of a third party foreign exchange service, which terms shall govern Your use of
such third party service to transact with Us to the extent that such terms may conflict with the
provisions set forth in the Agreement or this Annex. In the event that the terms of the Agreement
and this Annex that govern what rights We may assert in connection with Your use of any third party
foreign exchange service are inconsistent with any third party beneficiary terms contained in the
customer or user agreement that You have executed directly with a Vendor governing Your use of such
third party service, the terms of this Agreement and Annex shall prevail.
B. Scope of Use. You shall be permitted to use the Services to enter into foreign exchange
transactions with Us, and to access any information and content that We and/or any Vendor may
provide on, through or in connection with the relevant Services (“Service Data”).
C. Service Fees. There are currently no service fees payable by You to Us for use of the Services.
D. Additional Software Provided. We are not providing You with any additional software in order to
use the Services.
19. Futures Trading. To the extent that You choose to use the Services for the purposes of trading
futures, You do so at Your own risk. We disclaim any responsibility or liability to You hereunder
in connection with the performance or non-performance of the Services, and of Our obligations
hereunder directly or indirectly caused by the occurrence of any contingency beyond Our control
including, but not limited to, the unscheduled closure of an exchange or market or delays in the
transmission of orders due to breakdowns or failures of transmission or communication facilities,
execution and/or trading facilities or other systems, it being understood that We shall be excused
from performance of Our obligations hereunder for such period of time as is reasonably necessary
after such occurrence to remedy the effects therefrom.
Xxxxxx Xxxxxxx
IN WITNESS WHEREOF, each of the parties has caused this Agreement to be duly executed and delivered
by its duly authorized representative as of the
24th day
of March, 2009.
XXXXXX
XXXXXXX & CO. INCORPORATED
|
GREENHAVEN CONTINUOUS COMMODITY INDEX MASTER FUND | |||||||||
By: |
By: | /s/ Xxxxxxx Xxxxxxx | ||||||||
| Title: | Title: President | |||||||||
| Date: | Date: 3/24/2009 | |||||||||
| Address: | ||||||||||
