Limitation of Liability; No Warranties

Participant's and Clearing Member's use of the Services, the System, Exchange and Clearinghouse property and any other information and materials provided by the Exchange or the Clearinghouse, is at the Participant's and Clearing Member's own risk, and the Services, the Exchange and Clearinghouse property and any other information and materials provided by the Exchange or the Clearinghouse hereunder are provided on an "as is" and "as available" basis, without warranties or representations of any kind, express or implied, by statute, common law or otherwise including all implied warranties of merchantability, fitness for a particular purpose and non-infringement and any warranties arising from a course of dealing, usage or trade practice. The Exchange and the Clearinghouse do not guarantee that (1) Exchange and Clearinghouse property or Services will operate in an error free, secure or uninterrupted manner, or (2) any information or materials provided by the Exchange, the Clearinghouse or accessible through Exchange or Clearinghouse property will be accurate, complete, reliable, or timely, or (3) the Exchange and Clearinghouse property or any aspects of the Services will be free from viruses or other harmful components. Neither Exchange nor its Affiliates shall have any liability for the creditworthiness of any Participant or for the acts or any aspect of the Services or System. Participants and Clearing Members are solely responsible for the security and integrity of their technology. Participants and Clearing Members acknowledge that their access to the System and the Services is internet-based and that the Exchange and the Clearinghouse have no control over the internet or Participant's and Clearing Member's connections thereto. Participants and Clearing Members further acknowledge that the internet, computer networks, and communications links and devices necessary to enable Participants and Clearing Members to access and use the System and the Services are inherently insecure and vulnerable to attempts at unauthorized entry and that no form of protection can ensure Participant's and Clearing Member's data, hardware, or software or the System or other Exchange or Clearinghouse property will be fully secure. Furthermore, neither the Exchange nor the Clearinghouse shall be obligated to monitor or verify any information displayed through the System.

Excluding any liability for such party's fraud or willful misconduct, and excluding any indemnification obligations under a Participant Agreement or a Clearing Member Agreement (as applicable), each party agrees that in no event shall either party be liable for any indirect, special, punitive, exemplary or consequential damages, including damages for loss of profits, loss of revenue, loss or corruption of data, trading losses or business interruption and the like, arising in any manner whatsoever out of or in connection with this agreement or any use (whether or not authorized) or inability to use Exchange or Clearinghouse property or any other information or materials provided to a Participant or Clearing Member by the Exchange or Clearinghouse or accessible through the Systems or Services, including the accuracy, completeness, reliability, timeliness, quality, security, performance, or pricing of the Systems or Services or any failures, malfunctions, interruptions, degradations or delays associated therewith, regardless of whether such damages arise in tort, contract, or otherwise, and even if it has been advised of the possibility of such damages.

Notwithstanding the foregoing, if a court or other tribunal of competent jurisdiction should find the Exchange, the Clearinghouse or any of their Affiliates liable for any loss, damage or expenses, the aggregate liability of the Exchange, the Clearinghouse and their Affiliates, regardless of the form of action, shall in no event exceed the greater of:

1. $100,000 and
2. the total commissions, fees, or other amounts (excluding any applicable taxes and duties) paid to the Exchange and Clearinghouse by the applicable Participant or Clearing Member during the six months preceding the date on which the events giving rise to such liability arose.

Any claim for redress or damages hereunder shall be filed in a court of competent jurisdiction or filed for arbitration in accordance with Rule 701 within one (1) year of the date on which such claim allegedly arose. Failure to institute litigation or arbitration within such time period shall be deemed to be a waiver of such claim and the claim shall be of no further force or effect. The allocations of liability in this Rule 1011 represent the agreed and bargained for understanding of the parties, and each party acknowledges that the other party's rights and obligations hereunder reflect such allocations. The parties agree that they will not allege that this remedy fails its essential purpose.

Participant further agrees that the provisions of the Rules of the Clearinghouse limiting the liability of the Clearinghouse to its members shall apply to Participant as fully as if Participant were a member of the Clearinghouse mutatis mutandis. The Clearinghouse shall not be liable for any obligations of a non-clearing member, obligations of a Clearing Member to a nonmember, obligations of a Clearing Member to another member of the Clearinghouse who is acting for him as broker, or obligations to a Customer by a Clearing Member; nor shall the Clearinghouse become liable to make deliveries to or accept deliveries from a Customer of its Clearing Members.

Neither the Exchange nor the Clearinghouse will have any responsibility or liability to any Person for the use of, or any failure, error, action or omission of, the Settlement Facility.