- 1.SYSTEM USE
- 1.1 Pursuant to this Agreement Participant is granted a personal,
limited, non-exclusive, revocable, non-transferable and non-sublicenseable license
to use the System. Part or all of the System may operate under license from third
parties, and Participant will comply with any additional restrictions on usage that
Tullett Prebon may communicate to Participant from time to time, or that are otherwise
the subject of an agreement between Participant and such third party service providers.
- 1.2 The System is provided for Participant’s internal use and only
for the purposes and subject to the terms of this Agreement. Participant may not
sell, lease, or provide, directly or indirectly, the System or any portion of the
System to any third party. Participant acknowledges and agrees that all proprietary
rights in the System are owned by TPICAP Group or by any applicable third party
service providers selected by TPICAP Group providing it with all or part of the
System, or providing Participant with access to the System, or their respective
licensors, and are protected under copyright, trademark and other intellectual property
laws and other applicable law. Participant receives no copyright, intellectual property
rights or other rights in or to the System, except those specifically set forth
in this Agreement. Participant will protect and not violate those proprietary rights
in the System and will honour and comply with TPICAP Group’s reasonable requests
to protect it and its third party service providers’ contractual, statutory and
common law rights in the System. If Participant becomes aware of any violation of
TPICAP Group’s or its third party service providers’ proprietary rights in the System,
Participant will notify Tullett Prebon immediately in writing, including via email.
- 1.3 Participant shall have sole responsibility for the placing
of any Order in the System, and Tullett Prebon shall be entitled to rely upon the
Order, as entered by or on behalf of Participant, without obligation to make further
inquiry, regardless of whether or not the Order is patently erroneous.
- 1.4 1.4 All bids and offers entered onto the System shall be subject
to the System protocols. Authorised Users may instruct Tullett Prebon to enter,
remove, amend or submit Orders on its behalf. All instructions shall be given either
on recorded telephone lines, by electronic messaging system or by other written
means (including via email), and shall be deemed received by Tullett Prebon only
when actually received. All instructions shall be effective only when entered onto
the System.
- 1.5 Participant undertakes to close, confirm and settle any and
all transactions with other customers of Tullett Prebon comprising Matched Orders.
Such transactions shall be governed by standard documentation agreed between the
counterparties, unless otherwise agreed by the counterparties to such transactions.
Participant will be solely responsible for the closing, execution and settlement
of any and all transactions with other customers of Tullett Prebon with respect
to all Matched Orders and Tullett Prebon’s role shall be at an end once it has notified
Participant of such Matched Orders.
- 1.6 At all times Tullett Prebon is acting as a broker of and not,
even fleetingly, as principal to the Matched Orders. As such, Tullett Prebon does
not accept or take a position in a Matched Order. Tullett Prebon merely facilitates
the Matched Order. All Matched Orders will be between Participant and the other
counterparty to the Matched Order, and in the case of a cleared transaction, if
any, between Participant and the clearing house through which the Matched Order
is cleared.
- 1.7 Tullett Prebon will allocate a user name and password to Participant
so that Participant may access the System. Participant is responsible for all access
to and use of the System made using Participant’s user name and password, and for
protecting and securing its user name and password from unauthorised use. Participant
will be solely responsible for all acts or omissions of any person using the System
through Participant’s user name and password and, without limitation of the foregoing
or any other provision of this Agreement, bound by the terms of all Matched Orders
placed through the System using Participant’s user name and password. All transmissions
generated by use of Participant’s user name and password will be deemed to be authorised
by Participant and made by an Authorised User whether or not Tullett Prebon acknowledge
receipt of such transmission.
- 1.8 Participant is responsible for all fees, costs and expenses
associated with its access to and use of the System and the execution and settlement
of Matched Orders (including, commissions, telecommunications, modems and other
connectivity costs, and costs of any third party software, equipment and any related
maintenance services).
- 1.9 This Agreement will take effect on the date that Participant,
through an Authorized User, for the first time or subsequently installs, accesses
or uses the System. Either party may terminate this Agreement at any time by notice
to the other party, but continuing obligations hereunder shall survive such termination.
- 1.10 Regardless of any other provision of the Agreement, Tullett
Prebon has the right to suspend or terminate (at any time, with or without cause
or prior notice) all or any part of the System or Participant’s access to the System,
to change the nature, composition or availability of the System or the type of System
Instruments available for matching via the System, or to change the limits on the
matching Participant may conduct via the System.
- 2.SPECIAL PROVISIONS FOR SEF EXECUTION
- 2.1 The System is not a “swap execution facility” as defined in
Section 1a(50) of the Commodity Exchange Act, as amended, (the “CEA”) and the regulations
of the Commodity Futures Trading Commission (the “CFTC”) thereunder, and Tullett
Prebon does not execute Orders in “swaps” as defined in CEA Section 1a(47) and the
CFTC regulations and interpretations thereunder.
- 2.2 Tullett Prebon is an affiliate of tpSEF Inc. (the “SEF”), a
swap execution facility registered with the CFTC. The SEF is a separate legal entity
and is subject to separate regulation and oversight by the CFTC.
- 2.3 Tullett Prebon can be a participant of the SEF and may act
as Participant’s introducing broker with respect to unmatched swap Orders that are
to be executed on or subject to the rules of the SEF (“SEF Transactions”).
- 2.4 Upon Participant’s instruction, Tullett Prebon will route to
the SEF for execution unmatched swap Orders for SEF Transactions that are arranged
through the System (the “SEF Access Service”).
- 2.5 All Orders with respect to swaps are binding in accordance
with their terms, but Participant will not have a binding Matched Order for SEF
Transactions until execution occurs on the SEF.
- 2.6 Certain Orders for SEF Transactions are required by CFTC regulations
and the SEF rules to be exposed to the market, and may be subject to the risk of
being “broken up,” for a period of time prior to being executed.
- 2.7 Tullett Prebon is not responsible for any losses, damages,
liabilities or costs, of whatsoever kind, that may result from errors made by the
SEF in reading, processing or executing Orders routed to the SEF under the SEF Access
Service.
- 2.8 To the extent Participant transacts in SEF Transactions via
the System, Participant and all SEF Transactions shall be subject to the rules and
jurisdiction of the SEF. It is Participant’s responsibility to know the rules, terms
and conditions of the SEF, as necessary, to ensure that Participant is compliant
with the most recent version of such rules. Tullett Prebon shall have no responsibility
for Participant’s compliance with such rules.
- 2.9 Participant is responsible for appointing a clearing broker
and must have a clearing arrangement in place for all SEF Transactions that are
to be cleared through a clearing house.
- 3.SPECIAL PROVISIONS FOR MTF EXECUTION
- 3.1 The System is not a “Multilateral Trading Facility” (“MTF”)
as defined in Directive 2014/65/EU Article 4(1)(22) (the “Directive”).
- 3.2 Tullett Prebon is an affiliate of Tullett Prebon (Europe) Ltd
(“TPE”), a company authorised and regulated by the Financial Conduct Authority and
is the operator of the Tullett Prebon Europe MTF (“TPE MTF”).
- 3.3 Tullett Prebon can be a participant of the TPE MTF (“TPE MTF
Participant”) and is permitted to submit Registered Trades, as defined in the TPE
MTF Rulebook, that are to be executed on the TPE MTF.
- 3.4 Upon Participant’s instruction, Tullett Prebon, acting in the
capacity of a TPE MTF Participant, will register Orders as Registered Trades on
the TPE MTF in accordance with the rules of the TPE MTF Rulebook.
- 3.5 All Orders are binding in accordance with their terms, but
Participant will not have a binding Matched Order for Registered Transactions until
execution occurs on the TPE MTF.
- 3.6 Certain Orders for Registered Trades may be required by the
Directive and the TPE MTF Rulebook to be exposed to the market.
- 3.7 Tullett Prebon is not responsible for any losses, damages,
liabilities or costs, of whatsoever kind, that may result from errors made by TPE
in reading, processing or executing Orders routed to the TPE MTF.
- 3.8 To the extent Participant transacts in Registered Trades via
the System, Participant and all Registered Trades shall be subject to the rules
of the TPE MTF. It is Participant’s responsibility to know the rules, terms and
conditions of the TPE MTF, as necessary, to ensure that Participant is compliant
with the most recent version of such rules. Tullett Prebon shall have no responsibility
for Participant’s compliance with such rules.
- 3.9 Participant is responsible for appointing a clearing broker
and must have a clearing arrangement in place for all Registered Trades that are
to be cleared through a clearing house.
- 4.LIMITATIONS OF LIABILITY
- 4.1 Participant agrees that Tullett Prebon and TPICAP Group shall
have no liability to Participant or any third party (contingent or otherwise and
howsoever the same may arise) for any direct, indirect, incidental or consequential
loss, liability, damage or expense whatsoever, including, without limitation, for
loss of profits, opportunity or use, or for position risk arising on transactions
(including those done outside the System) on the assumption that a transaction would
be consummated on the System through Participant’s use of the System or the Hardware
including, without limitation, arising from: (a) any error, failure, malfunction,
delay, fault or non-performance of all or any part of the System or the Hardware;
(b) any interruption, withdrawal, suspension or inability to use the System or the
Hardware; (c) any delay, omission, timing inconsistency or inaccuracy in the transmission
of any instruction, Order or operation of the System or the Hardware or the failure,
inaccuracy, error or delay in settling or reporting of Matched Orders; (d) any discrepancy,
inaccuracy or incompleteness in, or delay in generating, or failure to generate
records relating to any transaction effected by or on or through the System; (e)
any financial or credit exposure, or any uncovered obligations or receivables resulting
directly or indirectly by reason or in consequence of any of the foregoing; or (f)
any other cause or matter in connection with or relating to the furnishing, performance,
delay in performance, malfunction or use of or inability to use all or any part
of the System or the Hardware.
- 4.2 The Data consists of purely indicative or historic market prices.
Tullett Prebon and TPICAP Group give no warranty that the Data represents or indicates
prices at which the matching of System Instruments may be or were effected at any
time. Any opinion expressed in association with the Data is a reflection of Tullett
Prebon’s judgment at the time of compiling the Data and is subject to change without
notice. To the maximum extent permitted by law, Tullett Prebon and TPICAP Group
will accept no responsibility or liability for, and cannot and do not warrant the
accuracy, quality, correctness or completeness, merchantability or fitness for a
particular purpose of the Data or the System, whether arising from the negligence
of Tullett Prebon or otherwise.
- 4.3 Participant agrees that the liability of Tullett Prebon or
TPICAP Group, if any, arising out of any kind of legal claim (whether in contract,
tort or otherwise) in any way connected with the System or the Hardware shall not
exceed the greater of: (i) US$10,000 and (ii) the aggregate amount paid by Participant
to Tullett Prebon for the use of the System and the Hardware in the 3 months immediately
preceding the event giving rise to such claim.
- 4.4 Tullett Prebon shall have no responsibility to inform Participant
of any difficulties experienced by Tullett Prebon or third parties in the use of
the System or the Hardware or to take any action in connection therewith.
- 4.5 Participant acknowledges and agrees that the System does not
and shall not serve as a basis for any investment decisions made by Participant,
and that neither Tullett Prebon nor TPICAP Group is and shall not be a fiduciary
of Participant. Participant expressly acknowledges and agrees that neither Tullett
Prebon nor TPICAP Group has made any recommendation with respect to the Data, the
System, any System Instrument or any Order, and that they and any third party service
providers selected by them provide Participant with access to and use of the System
on an “as is” basis, at Participant’s sole risk.
- 4.6 E-mail, chat and instant messaging features may be provided
on the System as a convenience to enhance Participant’s communications needs. Participant
will use these features in compliance with applicable law, rules and regulations,
and will not use them to transmit inappropriate information, including information
that may be deemed obscene, libellous, harassing, fraudulent, manipulative or slanderous.
TPICAP Group is not responsible for any Orders Participant may attempt to enter
into or instructions it may attempt to make by means of the System.
- 4.7 Orders that Participant enters through the System may be routed
to third party systems, markets, clearers, repositories or exchanges, including
the SEF (each a “Third Party System”). Tullett Prebon and TPICAP Group are not responsible
for any losses, damages or costs that may result from errors made by any Third Party
System in reading, processing, clearing, recording or executing such Orders, or
if any Third Party System otherwise fails to properly execute such Orders.
- 5.WARRANTIES
- 5.1 Tullett Prebon represents and warrants to Participant that
it has all rights, authorities and licenses to provide the System, the Application
Software and the Documentation to Participant. Tullett Prebon and TPICAP Group do
not make any other, and Participant expressly waives all other, warranties, express
or implied, including but not limited to, any warranties of merchantability or fitness
of the System for a particular purpose. Tullett Prebon shall have no responsibility
to maintain the System or to supply any modifications in connection with the System.
- 5.2 Participant represents and warrants to Tullett Prebon and TPICAP
Group that its access to and use of the System will comply with all applicable laws,
rules and regulations, and with the policies and practices of securities and futures
exchanges and clearing houses, alternative trading facilities, and self-regulatory
organisations, and that the policies and procedures applicable to the System and
this Agreement and any other agreement between Participant and Tullett Prebon, as
may be amended from time to time. Without limitation of the foregoing, Participant
represents and warrants that, if Participant uses the System to effect Orders (i)
in System Instruments that it or its affiliates issued or, (ii) if Participant is
a broker-dealer, investment manager or investment adviser and is acting on behalf
of a customer in System Instruments which the customer or the customer’s affiliate
issued, such transactions will comply with applicable laws and regulations regarding
transactions in System Instruments by issuers and affiliates. Prior to entering
an Order, Participant will ensure that there are no legal restrictions on the transfer
of any System Instruments Participant sells. Participant is responsible for any
delays, expenses and losses associated with compliance or failure to comply with
any restrictions on the transfer of System Instruments. If Participant is a broker-dealer,
investment manager or investment adviser and it uses the System and executes Orders
for its customers’ benefit and account, Tullett Prebon will nevertheless treat Participant
as principal in connection with Orders that Participant executes through the System.
Participant represents and warrants that it has full authority to enter this Agreement,
and to use the System and execute Orders on behalf of itself and its customers.
Participant further represents and warrants that it has satisfied, in relation to
its customers, all necessary or desirable ‘know your client’ and anti-money laundering
obligations as they may apply from time to time to Participant, its business and
its customers and that Participant is a professional, wholesale market, investor.
- 6.INDEMNITIES
- 6.1 Tullett Prebon shall indemnify, protect, defend and hold harmless
Participant, its directors, officers, partners, affiliates, parents, employees and
agents from and against any and all losses, liabilities, judgments, suits, actions,
proceedings, claims, damages, costs (including attorney’s fees) to the extent it
is based upon a claim of infringement by the System, taken as a whole, of any patent,
copyright, trademark, trade secret or other proprietary right.
- 6.2 Participant shall indemnify, protect, defend and hold harmless
Tullett Prebon and TPICAP Group and their directors, officers, partners, affiliates,
employees, suppliers and agents from and against any and all, whether direct or
indirect, losses, liabilities, judgments, suits, actions, proceedings, claims, damages,
costs (including attorney’s fees) resulting from or arising out of the access to
or use by Participant of the Data, the System or the Hardware.
- 7.GOVERNING LAW AND JURISDICTION
This Agreement shall be governed by and construed under the laws of Singapore, without
regard for principles of conflicts of laws. The exclusive jurisdiction and venue
for all legal proceedings relating to the subject matter of this Agreement shall
be the Singapore courts, and the parties expressly consent to the jurisdiction of
said courts.
- 8.GENERAL
- 8.1 Neither this Agreement nor any rights or obligations hereunder
may be directly or indirectly assigned, sublicensed or otherwise transferred by
Participant without Tullett Prebon’s prior written consent, which Tullett Prebon
may withhold or deny in its sole and absolute discretion. This Agreement shall be
binding upon and shall inure to the benefit of the parties and their respective
successors and permitted assigns.
- 8.2 Participant irrevocably agrees that the System is proprietary
to the TPICAP Group and title thereto at all times remains in the TPICAP Group.
Accordingly, Participant shall not seek to reverse engineer the System.
- 8.3 Without the prior written consent of the other party, neither
party will (i) use the name of the other party, or the name of any of the other
party’s related parties, or any trade name, trademark, trade device, service mark,
symbol or any abbreviation, contraction or simulation of the other party or its
affiliates in advertising, publicity, or otherwise; or (ii) represent (directly
or indirectly) that any product or any service provided by the party has been approved
or endorsed by the other.
- 8.4 During the term of this Agreement, each party may provide the
other with confidential and/or proprietary materials and information (collectively
“Confidential Information”). Each party shall maintain the confidentiality of the
Confidential Information and will not use or disclose such Confidential Information
without the prior written consent of the other. At any time, upon the disclosing
party’s request, the receiving party of such Confidential Information shall return
to the disclosing party all Confidential Information in its possession.
- 8.5 Participant shall be treated as a non-private customer by reason
of its experience and due to its status as a professional investor operating in
its national and/or the international wholesale financial markets. Tullett Prebon
will not be obliged to warn Participant of the nature of any risks involved in the
use of the System and will not provide Participant with written risk warnings in
relation to transactions in derivatives or other financial products whether in relation
to its use of the System or otherwise.
- 8.6 Participant entered this Agreement without inducement by any
representation or warranty not set forth in this Agreement. This Agreement contains
the entire agreement of the parties with respect to its subject matter and supersedes
all existing and all other oral, written or other communications between the parties
concerning this subject matter.
- 8.7 Tullett Prebon reserves the right to modify or amend this Agreement
from time to time without notice to Participant, and Participant’s continued use
of the System after any such modifications or amendments have been made by Tullett
Prebon shall constitute Participant’s acceptance of and agreement to such modifications
or amendments.
- 8.8 Participant consents to the delivery of confirmations, any
other required or optional communication or agreement under any applicable law or
regulation and any agreements or changes in the terms and conditions on the System,
by e-mail, web site or other electronic means, subject to compliance with any applicable
laws, rules or regulations. Any such documents that are delivered to Participant
electronically are deemed to be “in writing.” If Participant’s signature or acknowledgment
is required or requested with respect to any such document and any Authorized User
“clicks” in the appropriate space, or takes such other action as may be indicated
on the Services, Participant will be deemed to have signed or acknowledged the document
to the same extent and with the same effect as if Participant had signed the document
manually. All notifications shall be in English.
- 8.9 Market data, information, volumes, averages and other data
and statistics which are derived from or are the by-products of Orders, Matched
Orders or otherwise related to the System are the exclusive property of TPICAP Group
and, without identifying Participant, TPICAP Group may share, sell, distribute or
redistribute all or any of such property at its exclusive and sole discretion.
- DEFINITIONS
Application Software: the proprietary software that enables Participant
to obtain access to the System, to place Orders in the System (directly or via Tullett
Prebon) and to view, amend or cancel its Orders pursuant to the rules, protocols
and procedures of the System, subject to such limitations as Tullett Prebon may
establish from time to time.
Authorised User: an individual using the System on behalf of Participant.
Data: the historic data available to Participant through the System
to be used when matching Orders at the next crossing session from time to time.
Documentation: all operator and user manuals, training materials,
guides and other materials, if any, for use in conjunction with the System, as may
be provided by Tullett Prebon to Participant from time to time.
Hardware: the modem, computer, network or other equipment used
by either Tullett Prebon or Participant in conjunction with the Application Software.
Matched Orders:Orders that are matched by the System with similar
orders placed by other customers of Tullett Prebon during crossing sessions.
Orders:orders placed on the System, from time to time, by or on
behalf of Participant, as principal, to match System Instruments denominated in
the relevant currency by means of the System.
System: the proprietary electronic matching system and software
(including the Application Software and Documentation) known as MatchBook,
and derived names such as MatchBookNDF, MatchBookEquity and the like,
designed to provide customers of Tullett Prebon with an electronic means for the
submission and matching of Orders.
System Instruments:forward rate agreements, single period swaps,
non-deliverable forwards, equity derivatives and/or such other instruments that
Tullett Prebon may make available, in its sole discretion, for matching on the System
from time to time.
TPICAP Group: TPICAP plc and its subsidiaries from time to time,
including Tullett Prebon.
Tullett Prebon: Tullett Prebon (Singapore) Limited, including its
representatives, affiliates, directors, officers, employees and agents from time
to time.
