Tullett Prebon
Energy Coal
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.
