Tullett Prebon

TRAYPORT LIMITED - END USER LICENSE AGREEMENT This is a legal agreement between you, the end user and Trayport Limited. BY USING, INSTALLING OR COPYING THIS SOFTWARE, YOU ARE AGREEING TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. If you do not agree to the terms of this agreement, do not install or use this SOFTWARE PRODUCT. GRANT OF LICENCE At any time you may have as many copies of the SOFTWARE in use as you have licenses. If the anticipated number of users of the SOFTWARE will exceed the number of applicable licenses, then you must have a reasonable mechanism or process in place to assure that the number of persons using the SOFTWARE concurrently does not exceed the number of Licenses. Trayport grants the client the right to use the SOFTWARE for the specification for which it was purchased, but shall not be entitled to sell or transfer reproductions of the SOFTWARE and associated documentation to other parties in any way, nor rent or lease the product to others without expressed written permission of Trayport. You may not reverse engineer, decompile, or disassemble the SOFTWARE, except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. COPYRIGHT The SOFTWARE is owned by and remains the property of Trayport and is protected by English Copyright laws. All rights are reserved. Therefore, you must treat the SOFTWARE like any other copyrighted material (e.g. a book) except that if the SOFTWARE is not copy protected, the client may take one copy of the SOFTWARE solely for backup or archival purposes. The supporting documentation or written materials accompanying the SOFTWARE may not be copied. Copying the SOFTWARE for any reason other than to make a backup is a violation of law. LIMITED WARRANTY Trayport warrants that the SOFTWARE will perform substantially in accordance with the supporting literature for a period of 30 days from the completion of the final acceptance of the installation by the client. Any implied warranties on the SOFTWARE are limited to 30 days, or the shortest period permitted by applicable law, whichever is the greater. NO OTHER WARRANTIES To the maximum extent permitted by applicable law, Trayport disclaims all other warranties, either express or implied, including but not limited to implied warranties of merchantability and fitness for a particular purpose, with respect to the SOFTWARE, the accompanying supporting literature and written materials. The limited warranty contained herein gives the Client specific legal rights. NO LIABILITY FOR CONSEQUENTIAL DAMAGES To the maximum extent permitted by applicable law, Trayport shall not be liable for any damages whatsoever (including, without limitation, damages for loss of business profits, business interruption, loss of business information, or other pecuniary loss) arising out of the use of or inability to use any program developed by Trayport, even if Trayport has been advised of the possibility of such damages. In any case, Trayport's entire liability under and provision of this agreement shall be limited to the amount actually paid by the Client for the software development. Should you have any questions concerning this Agreement, or if you wish to contact Trayport for any reason we are available at the following address: Trayport Limited 4th Floor, Rose Court 2 Southwark Bridge Road London SE1 9HS Tel: +44 (0)20 7960 5500 Fax: +44 (0)20 7960 5501 e-mail: enquiries@trayport.com TERMS AND CONDITIONS Tullett Prebon (Europe) Limited ("Tullett") has established the Tullett Prebon Energy trading screen ("Tullett Prebon screen") and this agreement sets out the terms and conditions under which you (the "Customer") shall use the Tullett Prebon Energy screen. By clicking on the "accept" button below the Customer and User are showing their intention to create a legally binding agreement between the Customer and Tullett and agrees to accept and be bound by these terms and conditions. Tullett's acceptance to the Customer entering into these terms and conditions and the creation of a legally binding agreement between the parties shall be with effect from Tullett's email to the Customer confirming Tullett's acceptance of the Customer and User upon these terms and conditions and the issue of a user name and password. 1. Definitions "Credit Limit" means each Customer's credit matrix specifying the counterparties with whom a User will trade, as amended from time to time. "Firm Order" means any bid or offer entered by a User (or on their behalf) onto the Tullett Prebon screen. "Licensed Materials" means the software installed for the Tullett Prebon screen. "Tullett Prebon Group" means Tullett's holding companies and its holding companies' subsidiary companies. "Registration Form" means the registration page that each User will be required to complete to apply for access to the Tullett Prebon screen. "User" means any person duly authorised by and for the Customer who has been issued a User Log-On by Tullett for access to the Tullett Prebon screen and such User Log-On remains current. "User Log-On" means a user name and user password supplied to a User. 2. Licence Tullett grants the Customer (and each User) a limited non-exclusive, non-transferable, revocable licence to use and access the Tullett Prebon screen in accordance with these terms and conditions. 3. Use of System 3.1 The Customer will procure that access to the Tullett Prebon screen shall only be made by a User who has completed the Registration Form. 3.2 The Customer will procure a separate User Log-On for each User accessing the Tullett Prebon screen. User Log-Ons are non-transferable and may not be used in more than one location simultaneously. The Customer shall maintain and ensure the security and confidentiality of User Log-Ons and shall change User Log-On passwords each calendar month. The Customer will prevent the unauthorised use of any User Log-On and will immediately notify Tullett Prebon Limited of any suspected unauthorised access to any User Log-On or to the Tullett Prebon screen. 3.3 The Customer shall be solely responsible for: (a) all Firm Orders transmitted through the Tullett Prebon screen by any of its Users, (or transmitted by Tullett at the request of the Users) regardless of whether a User action was beyond his authority, or whether such transmission was the result of error, accident, fraud, or similar cause; (b) the use of any information or services obtained through or with the assistance of the User Log-Ons of any of its Users; (c) all acts and omissions of its Users in connection with the Tullett Prebon screen and/or all acts accomplished through User Log-Ons of its Users; and (d) any and all costs, charges, or expenses incurred in connection with, or as a result of, the use of the User Log-Ons of its Users, or any improper or fraudulent action in connection therewith. 3.4 All bids and offers entered onto the Tullett Prebon screen are firm bids and offers until effective instructions to withdraw or reference such bids and offers are entered onto and accepted on the Tullett Prebon screen 3.5 All trades on the Tullett Prebon screen will traded in accordance with the bi-lateral agreements in existence between the counterparties involved. 3.6 A User may instruct Tullett to enter, remove, amend, hit or take bids or offers on its behalf. All instructions shall be given either or recorded telephone lines or by electronic messaging system directly to the broker responsible for the transaction and shall be deemed received by Tullett Prebon Limited only when actually received and read by the broker responsible for the transaction. All instructions shall be effective when entered onto the Tullett Prebon screen by Tullett. 3.7 A User's Firm Orders may at any time be cancelled by Tullett for any reason. Such reasons shall include but not be limited to a technical failure of the Tullett Prebon screen. 3.8 Tullett may in its absolute discretion suspend or terminate at any time a Customer's or a User's access to the Tullett Prebon screen. 3.9 At the time a Firm Order is hit or taken by a User: . a transaction between the relevant Customers is concluded; and . the User shall receive an electronic message confirming transaction details. The electronic message does not and should not be taken by the User as confirmation of the transaction and the User should seek to confirm transaction details directly from the counterparty to the transaction. 3.10 Tullett acts solely as a broker for transactions executed through the Tullett Prebon screen, and not, even fleetingly, as a principal. As such, Tullett does not accept or take a position in a transaction, it merely facilitates the transaction. A transaction effected through the Tullett Prebon screen will be between two Customers introduced by Tullett. The two counterparties to the transaction will be responsible for arranging settlement between themselves. 3.11 All Users are responsible for withdrawing their orders at the end of each day. 4. Credit Limits The Customer may amend their Credit Limit by giving notice to Tullett Prebon Limited of its wish so to do. Notice to amend will only be accepted by Tullett Prebon Limited by electronic message to the email address designated by Tullett Prebon Limited for such purpose or such other method as agreed between the parties from time to time. Tullett Prebon Limited shall input amendments to Credit Limits properly received, and such amendment shall be effective when these amendments have been inputted and accepted onto the Tullett Prebon screen. 5. Confidentiality and Data 5.1 The Licensed Materials contain Confidential Information belonging or licensed to, the Tullett Prebon Group. The Customer shall take all steps reasonably necessary to preserve and protect the Confidential Information and proprietary interest of the Tullett Prebon Group. 5.2 All rights in and to data in connection with the Tullett Prebon screen belong to Tullett and the Tullett Prebon Group and Tullett does not grant the Customer any rights in the data transmitted through the Tullett Prebon Energy trading screen other than the right to use this data in connection with the Tullett Prebon screen. The Customer will not make any permanent record of this data other than in connection with the use of the Tullett Prebon screen, nor will it re-distribute this data other than to other Users. 6 Fees and Other Charges The Customer shall, for each transaction concluded on the Tullett Prebon screen, pay brokerage commissions at the rates agreed between Tullett and the Customer from time to time. Value added tax (or such other tax as applicable) shall be added to brokerage commissions (if applicable) and brokerage commissions shall be payable within 30 days of receipt of invoice from Prebon. 7 Warranties and Limitations of Liability 7.1 The Tullett Prebon screen is provided solely on an "as is" basis. 7.2 Neither Tullett, nor the Tullett Prebon Group warrant that the use of the trading screen will be uninterrupted or error free nor do they make any warranty as to the results that may be obtained from use of the Tullett Prebon Energy trading screen. The Customer acknowledges that the Tullett Prebon Energy trading screen may not perform in accordance with any specification provided to the Customer, may not meet the needs of the Customer, may cause loss or distortion of data or may cause the Customer's internal computer system(s) to malfunction. Tullett excludes all express and implied warranties relating to the Licensed Materials to the maximum extent permitted by law. 7.3 The Customer agrees that in no event will Tullett or the Tullett Prebon Group be liable, except where they have been negligent or are in wilful default of their obligations hereunder for any loss, damage, costs and expenses (including, without limitation, any legal fees and expenses) of any kind, whether categorised as direct, indirect, special, incidental, consequential, punitive, lost profits, lost opportunity, damages for loss of business information, damage to customer's environment, data or information, or otherwise, regardless of whether the Customer or the Tullett Prebon Group have been advised or is otherwise aware of the possibility of such loss, damage, or cost, arising out of or in connection with these terms and conditions, the use or performance of the trading screen, any error or omission of the Customer, its employees, agents, or any of the Customer's Certified Users, or any service provided by or on behalf of Tullett. Without limiting the generality of the foregoing, this limitation of liability applies to any damages or injury caused by any failure of performance, error, omission, interruption, defect, deletion, delay in operation or transmission, computer virus, communication line failure, and theft or destruction or unauthorised access to, alteration of, or use of records. 7.4 The Customer agrees that Tullett Prebon Limited and the Prebon Group shall not be liable for, failure of or delay in transmission of any Firm Order or loss of Firm Orders or resulting from any malfunction of The Tullett Prebon Energy trading screen, disruption of common carrier lines, loss of power, acts or failure to act of any third party, natural disasters or any and all other causes. Tullett Prebon and the Tullett Prebon Group shall not be liable to the Customer for any decision made or action taken or not taken by the Customer in reliance on The Prebon Energy trading screen or any information or data furnished hereunder. 7.5 Save in respect of Clause 7.6, Tullett and the Tullett Prebon Group's liability under this Clause 7 shall not exceed a sum equivalent to the lesser of the aggregate brokerage fees paid by the Customer to Tullett for other transactions concluded on the trading screen during the 12 month period immediately preceding the claim or 10,000. 7.6 Nothing in these terms shall exclude Tullett's liability for death or personal injury resulting from Tullett's negligence. 8 Customer Warranty and Indemnity 8.1 The Customer represents and warrants to Tullett that: (a) a User is duly authorised by the Customer to enter into transactions on the trading screen on a Customer's behalf; (b) each User shall use the trading screen in accordance with all applicable laws, rules and regulations in the relevant jurisdiction; and (c) it is duly authorised to enter into these terms and conditions and has received all due authorisation and corporate power necessary to enter into these terms and conditions. 8.2 The Customer agrees to indemnify and keep Tullett and the Tullett Prebon Group and its employees, officers and agents indemnified from and against all loss, damage, costs and expenses (including any legal fees and expenses) claims, action, demands or liabilities which may be brought against Tullett or any member of the Tullett Prebon Group resulting from or arising out of any failure by the Customer, User or its employees to comply with these terms and conditions. 9 Term 9.1 These terms and conditions may be terminated by either party at any time by giving the other party one month's written notice of its intention to terminate. 9.2 Termination or suspension shall not relieve the Customer from any payment obligations due and owing to Tullett. 9.3 The Customer acknowledges and agrees that, if these terms and conditions are terminated or access to the trading screen is suspended, any Firm Order may be cancelled immediately. 10 General 10.1 Neither party shall be liable for any failure in performance of these terms and conditions if such failure arises out of causes beyond its control including but not limited to acts of God or the public enemy, acts of a civil or military authority, fire, flood, labour dispute, unavailability or restriction of computer or data processing facilities or of energy supplies, communications failure, riot or war. 10.2 These terms and conditions may only be amended by agreement between Tullett and the Customer. 10.3 Save where expressly provided to the contrary under these terms and conditions, notices may be given orally, and such oral notices are effective immediately. The contents of the oral notice shall, as soon as practicable, be confirmed by a facsimile letter or e-mail communication of the contents of the notice. 10.4 Any notice or communication to be made under or in connection with these terms and conditions in writing (other than modifications) shall be addressed to the party to whom such notice or communication is to be given and shall be deemed to have been delivered to such party when delivered to the registered office of such party 48 hours after being deposited in the post postage pre-paid in an envelope addressed to it at that address. 10.5 The Customer may not assign or transfer these terms and conditions or any rights, obligations or liabilities hereunder, whether in whole or in part, without Tullett's prior written consent. 10.6 These terms and conditions are governed by and shall be construed in accordance with the laws of the England and all disputes in connection with these terms and conditions shall be subject to the non-exclusive jurisdiction of the English courts. 11. Privacy Statement Tullett will require that the Customer provides information of which some may be personal information. The information collected is used for data processing, and may be used to verify identity, provide quote information and responses to requests, to process, execute and monitor orders, to notify the Customer of the status of orders, to provide the Customer with information about products, services or offers Tullett believes will be of interest to the Customer, or to notify the Customer of updated information or changes to these Terms and Conditions. Tullett may, for the reasons given above, and in order to produce impersonal statistical information, provide information collected from the Customer to other Tullett Prebon Group companies. Information provided by the Customer is stored on Tullett's systems subject to firewalls and other security measures. However, the Customer will be aware that transmission of personal data via the internet is at the Customer's own risk. Schedule A Transaction Query In the event that a transaction is being queried by a Customer for a manifest error in a transaction ("Transaction Error") the following procedure shall apply: 1. The Customer shall notify the counterparty to the transaction and Tullett Prebon Limited that they believe that there has been a Transaction Error. Such notification shall be on the same day that the transaction is concluded on The Prebon Energy trading screen. The parties to the transaction shall seek to reach an agreement in relation to the Transaction Error 2. In the event that the parties to the transaction are unable within 3 Business Days of the transaction to reach an agreement, the parties shall notify Tullett Prebon Limited. 3. Once Tullett Prebon Limited has been so notified, Tullett Prebon Limited shall make its own determination in relation to the transaction based on the price at which the transaction was concluded and the then market price. Tullett Prebon Limited shall endeavour to resolve the query between the parties amicable. 4. In the event that the parties do not agree with Tullett Prebon's determination in relation to the transaction then Tullett Prebon shall convene a committee to determine the Transaction Error. The finding of this committee shall be binding on both parties to the transaction. Tullett Prebon shall not be required to indicate how a member of the committee voted. 5. The committee shall comprise of companies (other than the companies who were party to the transaction) selected by Tullett Prebon from the main market participants (in Tullett Prebon's view) at the time who are willing to act. 6. The decision of the committee that the transaction should be: . unwound, . implemented as transacted on The Tullett Prebon Energy trading screen ; . where the committee vote by a majority that the price of the transaction should be revised, the price of the transaction shall be revised to the arithmetic average of the prices proposed by all the members of the committee; or . such other decision of the committee as it may in its absolute discretion determine. 7. The Customer agrees that the decision of the committee shall be final and binding upon them.