- 1.COMPLETION OF TRANSACTIONS AND 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 TP Group or by any applicable third party service providers selected by TP 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 honor and comply with TP 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 TP 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 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 or by electronic messaging system 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 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 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. At all times Tullett Prebon is acting as a broker of, and not as principal to, the Matched Orders.
- 1.6 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.
- 1.7 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).
- 1.8 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 trading via the System, or to change the limits on the trading Participant may conduct via the System.
- 2.LIMITATIONS OF LIABILITY
- 2.1 Participant agrees that Tullett Prebon and TP 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, malfunction or use of or inability to use all or any part of the System or the Hardware.
- 2.2 The Data consists of purely indicative or historic market prices. Tullett Prebon and TP Group give no warranty that the Data represents or indicates prices at which Orders may be 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 TP Group will accept no responsibility or liability for, and cannot and does not warrant the accuracy, quality, correctness or completeness, merchantability or fitness for a particular purpose of the Data, whether arising from the negligence of Tullett Prebon or otherwise.
- 2.3 Participant agrees that the liability of Tullett Prebon or TP 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.
- 2.4 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.
- 2.5 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 TP Group is and shall not be a fiduciary of Participant. Participant expressly acknowledges and agrees that neither Tullett Prebon nor TP Group has made any recommendation with respect to the System or any Order, and that they and any third party service providers selected by Participant or them provide the System on an "as is" basis, at Participant's sole risk.
- 2.6 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, libelous, harassing, fraudulent or slanderous. TP Group is not responsible for any Orders Participant may attempt to enter or orders or instructions it may attempt to make by means of these services.
- 3.WARRANTIES
- 3.1 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 TP 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.
- 3.2 Participant represents and warrants to Tullett Prebon and TP Group that its use of the System will comply with all laws, rules and regulations applicable to Participant.
- 4.INDEMNITIES
- 4.1 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.
- 4.2 Participant shall indemnify, protect, defend and hold harmless Tullett Prebon and TP Group and their directors, officers, partners, affiliates, employees 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 use by Participant of the System or the Hardware.
- 5.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.
- 6.GENERAL
- 6.1 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.
- 6.2 Participant irrevocably agrees that the System is proprietary to the TP Group and title thereto at all times remains in the TP Group. Accordingly, Participant shall not seek to reverse engineer the System.
- 6.3 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.
- 6.4 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.
- 6.5 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.
- 6.6 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. This Agreement may be modified only by a subsequent agreement in writing.
- 6.7 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.
- 6.8 Market data, information, volumes, averages and other data and statistics which are derived from or are the byproducts of Orders, Matched Orders or otherwise related to the System are the exclusive property of TP Group and, without identifying Participant, TP 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 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 tpMatch, and derived names such as tpMatchNDF, tpEquityMatch 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.
TP Group: Tullett Prebon 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.
