Chapter 12. Miscellaneous
The law of the State Illinois shall govern any dispute arising between Seed SEF and a Participant without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws.
Seed SEF may establish Contract Specifications for each Contract listed for trading on Seed SEF or subject to the Rules.
Upon execution of a Transaction in a Swap, solely as between the parties thereto, such Transaction shall be deemed a legally binding obligation of the Participant at the time Seed SEF provides notice of acceptance or execution of such Transaction and shall be subject to the applicable master agreement or other documentation agreed between such parties. For the avoidance of doubt, no further action, other than that described in the preceding sentence, need be taken or is otherwise required to be done, in order for such Transaction in a Swap to be deemed a legally binding Transaction as between the parties thereto, and such Transaction will be deemed "confirmed" for all purposes upon delivery of the written record of the Transaction pursuant to Rule 604.
Except as otherwise set forth in this rule, neither Seed SEF nor any of its representatives, affiliates or affiliates' representatives shall be liable to a participant, authorized trader or any other person, or any partner, director, officer, agent, employee thereof, for any loss, damage, injury, delay, cost, expense, or other liability (including, but not limited to, loss of profits, loss of use and direct, indirect, incidental, consequential or punitive damages) or claim whether in contract, tort or restitution, or under any other cause of action, suffered by or made against them as a result of their use of some or all of the platform, by making use of the platform, such persons expressly agree to accept all liability arising from their use of same.
Except as otherwise set forth in this rule, neither Seed SEF nor any of its representatives, affiliates or affiliates' representatives shall be liable to a participant, authorized trader or any other person, or any partner, director, officer, agent, employee thereof, for any loss, damage, injury, delay, cost, expense, or other liability (including, but not limited to, loss of profits, loss of use and direct, indirect, incidental, consequential or punitive damages) or claim whether in contract, tort or restitution, or under any other cause of action, suffered by or made against them arising from: (a) any failure or non-availability of the platform; (b) any act or omission on the part of SEF, its representatives, affiliates or affiliates' representatives including without limitation a decision of Seed SEF to suspend, halt, or terminate trading or to void, nullify or cancel orders or trades in whole or in part; (c) any errors or inaccuracies in information provided by Seed SEF, affiliates or the platform; (d) unauthorized access to or unauthorized use of the platform by any person; or (e) any force majeure event affecting Seed SEF. This limitation of liability will apply regardless of whether or not Seed SEF, its representatives, affiliates or affiliates' representatives (or any designee thereof) was advised of or otherwise might have anticipated the possibility of such damages.
No participant, authorized trader, supervised person or any other person shall be entitled to commence or carry on any proceeding against Seed SEF, its representatives, affiliates or affiliates' representatives, in respect of any act, omission, penalty or remedy imposed pursuant to the rules of Seed SEF. This section shall not restrict the right of such persons to apply for a review of a direction, order or decision of Seed SEF by a competent regulatory authority.
The limitations on liability in this Rule 1203 shall not protect any party for which there has been a final determination (including exhaustion of any appeals) by a court or arbitrator to have engaged in willful or wanton misconduct or has acted in bad faith. Additionally, the foregoing limitations on liability of this rule shall be subject to the CEA and the regulations promulgated thereunder, each as in effect from time to time.
The maximum aggregate liability of Seed SEF, its Representatives, Affiliates and Affiliates' Representatives to any Participant, or any partner, director, officer, agent, employee of a Participant, Authorized Trader or any other Person, on an aggregate basis, for any and all claims made in relation to the use of or failure of the Platform or any action or failure to act in any calendar year shall be one hundred thousand dollars ($100,000), however that liability arises, including (without limitation) breach of contract, tort, misrepresentation or breach of statutory duty. This aggregate liability limit applies regardless of whether a claim is allowed under Rule 1203 (including under Rule 1203(d)) or the limitation in Rule 1203 is found by a court of competent jurisdiction to be invalid, unlawful, or unenforceable.
In the event any legal proceeding is brought by a third party against Seed SEF which arises directly or indirectly from the use of the Platform by a Participant, and/or the partner, shareholder, director, officer, agent or employee of a Participant, such Participant, partner, shareholder, director, officer, agent or employee of a Participant, undertakes to hold Seed SEF harmless in respect of, and to reimburse to Seed SEF all costs related to same including all legal fees and expenses.
Participants, and/or its partners, shareholders, directors, officers, agents or employees of Participants shall indemnify and hold Seed SEF, its Representatives, Affiliates or Affiliates' Representatives harmless from and against all costs, including without limitation amounts paid to settle an action or to satisfy a judgment, legal and professional fees, expenses for attending trials, hearings and meetings, that Seed SEF incurs in any civil, criminal or administrative action, suit, proceeding, investigation, inquiry, hearing, appeal, or review that is threatened or brought against Seed SEF, or in respect of which Seed SEF is compelled or requested to participate, in respect of any act committed or permitted by the Participant, and/or its partners, shareholders, directors, officers, agents or employees.
Any Participant, or any partner, director, officer, agent, employee of a Participant, which institutes an action or proceeding against Seed SEF, its Representatives, Affiliates or Affiliates' Representatives, and which fails to prevail in such action or proceeding, shall reimburse such Seed SEF, Representative, Affiliate or Affiliate's Representative, for any and all costs or expenses (including but not limited to attorneys' fees, expenses of investigation and amounts paid by way of indemnifying any officers, directors, employees or other persons by the Corporation) incurred in connection with the defense of such action or proceeding.
Seed SEF provides any licensed products, access to the platform, the equipment and any part or parts of the platform, on an "as is" basis.
Except as specifically provided in any written agreement, Seed SEF and its affiliates make no, and hereby disclaim all, warranties, conditions, undertakings, terms or representations, expressed or implied by statute, common law or otherwise, in relation to any licensed products, equipment or any part or parts of the platform. Seed SEF and its affiliates specifically disclaim all implied warranties of merchantability, fitness for a particular purpose and non-infringement. Seed SEF and its affiliates further disclaim all warranties, implied or otherwise, relating to any third party materials.
Seed SEF does not guarantee the sequence, timeliness, accuracy or completeness of any of Seed SEF's or its affiliate's transaction data or guarantee the accuracy, responsiveness or completeness of the platform, the platform software or the related documentation.
Any dispute between Seed SEF and a Participant arising from or in connection with Seed SEF Rules will be settled by arbitration administered in New York County, New York by the American Arbitration Association (the AAA) under its Commercial Arbitration Rules. The dispute will be submitted to one arbitrator who will be appointed by the AAA. Any arbitrator appointed for purposes of this Rule 1207 will have experience with and knowledge of commodities, derivatives and Swaps as listed on the National Roster of Arbitrators kept in the AAA's records. Judgment on the award rendered by the arbitrator will be binding on the parties and may be entered in any state or federal court sitting in New York County, New York, and Seed SEF and each Participant shall be deemed to have consented to the personal jurisdiction of any such court. Each party to the dispute will bear its own costs and expenses in connection with any arbitration hereunder, as well as an equal share of the administrative fees and the fees of the arbitrator; provided, however, that the arbitrator will be entitled to include in any award a full reimbursement for the prevailing party's costs and expenses, such party's share of the administrative fees and the fees of the arbitrator, or any combination of any or all of the above. In the event that this Rule 1207 is held to be unenforceable in connection with any dispute or a claim is deemed by a court of competent jurisdiction to be not arbitrable, exclusive jurisdiction for any such dispute will reside in any state or federal court sitting in New York County, New York, (ii) SEF and the Participant involved in the dispute will be presumed to have submitted to the personal jurisdiction of any such court, and (iii) an action to enforce any judgment or decision of such court may be brought in the same court or in any other court with jurisdiction or venue. Finally, all Participants unconditionally and irrevocably waive any and all right to trial by jury in connection with any such dispute.
If necessary and expedient, Seed SEF may, in its sole discretion, waive, or extend the time period for performing, any act or acts designated by the Rules, but only to the extent such waiver or extension is not inconsistent with Applicable Law.
In connection with any transaction or matter handled through, with or by Seed SEF under or pursuant to the Rules, the form of any required list, notice or other document shall be as from time to time prescribed by Seed SEF, and additions to, changes in and elimination of any such forms may be made by Seed SEF at any time in its discretion.
A Participant may execute any document to be delivered to Seed SEF or to any other Participant pursuant to these Rules by means of a mechanically or electronically reproduced facsimile signature of a representative of the Participant; provided that the Participant shall have complied with such requirements as may be prescribed by Seed SEF in connection with the use of such facsimile signatures.
Seed SEF shall be authorized to amend these Rules and any related procedures or other documents from time to time with the approval of the Board and without the consent of any other Person, subject to Applicable Law, and in connection therewith to determine the effective date of any such amendment and whether, and how, any such amendment may apply to existing Contracts. Seed SEF will notify Participants of Rule changes by Circular. Each Participant, Authorized Trader and Supervised Person shall be bound by any such amendment.
All non-public information provided by a Participant or Authorized Trader to Seed SEF shall be held in confidence and shall not be made known to any other Person except as follows:
with the consent of the Participant or Authorized Trader providing such information;
to a Governmental Body if Seed SEF is requested or legally required to do so by such Governmental Body;
pursuant to a lawful discovery request;
to a Swap Data Repository;
subject to appropriate confidentiality requirements, to any Person providing services to SEF, including the Regulatory Services Provider;
pursuant to an information sharing agreement or other arrangement or procedures in accordance with Rule 213;
subject to appropriate confidentiality requirements, to Seed SEF employees, the Board, Board committees, Disciplinary Panels, SEF Officers, attorneys, auditors, and agents, independent contractors or other Persons that have been engaged by Seed SEF, in each case, who require such information in connection with the discharge of their duties to SEF; and
as otherwise permitted under these Rules.
All information and data obtained or received by Seed SEF from inspections of accounting and other records will be treated as confidential by SEF; however, this Rule 1211 does not supplant Rule 210 (Emergency Actions) and the Rules in CHAPTER 7: (Disciplinary Rules), or any other requirement of legal process or law.