- Scope: These BARX Terms ("Terms") apply to Client's access and use of any BARX Service. They supplement any relevant product-specific agreement (e.g. ISDA) between Client and us. In using a BARX Service or signing these Terms below, Client consents to these Terms, including the electronic delivery of required information and agrees to comply with our BARX User Guidelines (the current version of which is attached), as amended from time to time, and other reasonable instructions notified to you relating to use of BARX Services.
- Logons and Security: Client must keep each Logon issued to it secret and ensure that it is used only by the individual or system for whom issued. Client is liable for all use or misuse of any such Logon and will comply with all reasonable instructions notified to it from time to time relating to any such Logon. Client will promptly inform us if it suspects that the security or functionality of any Logon or BARX Service has been compromised.
- Help Desk: Please see http://www.barx.com/contacts.html for information on our help desk.
- Instructions: Client authorises us to act (without further enquiry) on any instruction given or appearing to be given using a Logon and received by us in relation to any BARX Service ("Instruction"). Client is not required to submit Instructions; we are not required to act on any Instruction or to execute any transaction. We have no responsibility for transmissions that are inaccurate or not received by us, and we may implement an Instruction on the terms actually received by us. Where a BARX Service permits, you may send cancellations of an Instruction before it is executed; a cancellation is only effective when we inform you. We may cancel a transaction executed at a manifestly erroneous price or volume or where a Regulator requires. Acts and omissions of Client's Authorized Users are deemed for all purposes to be the actions of Client.
- Transactions: A transaction shall only be binding when we send an acknowledgment to Client, including by electronic means. We may send a subsequent definitive confirmation to Client in relation to such acknowledged transaction.
- No advice: We are not soliciting any action based upon use of any BARX Service. BARCLAYS DOES NOT MAKE ANY RECOMMENDATION AS TO THE SUITABILITY OF ANY INVESTMENT OR PROPOSED TRANSACTION. CLIENT ACKNOWLEDGES THAT WE WILL NOT, AND ARE UNDER NO DUTY TO, PROVIDE ADVICE IN RELATION TO ANY SUCH TRANSACTION OR PROPOSED TRANSACTION THROUGH ANY BARX SERVICE. Client agrees that (a) the BARX Services are not and will not be the basis for any of its investment decisions and (b) it is solely responsible for (i) any investment or trading decisions it makes with respect to products available via any BARX Service and (ii) determining whether any transaction is suitable, appropriate or advisable for it or its clients. Provision of the BARX Services does not make us an advisor or fiduciary for Client or its managed or fiduciary accounts. These Terms do not constitute an offer to sell or solicitation of an offer to buy securities or other financial instruments.
- Intellectual Property: We grant Client a non-exclusive, non-transferable, personal licence to use (but not modify) each BARX Service, subject to these Terms, solely for Client's internal use (for viewing data and sending Instructions) and if Client is a broker-dealer, investment manager or investment advisor, as agent on behalf of its customers, but otherwise not for use on behalf of third parties. All rights not expressly granted are reserved. Client acknowledges that all intellectual property rights in the BARX Services, including the trademark BARX, belong to us or our licensors and are protected under applicable law. Certain aspects of BARX Services may be provided by third parties and Client will comply with additional restrictions on usage notified to Client that they may impose.
- Representations and warranties: Each party represents and warrants to the other that it has all necessary authorisations and capacity to enter into and perform its obligations under these Terms.
- Client Indemnity: Client will indemnify Barclays and its Related Parties against all Losses arising from Client's use of a BARX Service and any claims by a third party in relation Client's use of a BARX Service, except to the extent caused by our negligence, fraud or wilful misconduct.
- Barclays Indemnity: If any third party claims that Client's use of Proprietary BARX Services in accordance with these Terms infringes its intellectual property (an "IP Claim"), and Client (a) notifies us promptly of any actual, or threatened IP Claim, (b) does not make any admission of liability, (c) assists us in responding to the IP Claim, and (d) allows us to control discussions and litigation relating to the IP Claim, then Barclays Bank PLC will indemnify Client against damages finally awarded against Client and reasonable legal expenses incurred by Client in dealing with the IP Claim except to the extent the IP Claim arises as a result of (i) the combination by Client or its agents of any BARX Service with other technology if such claim would have been avoided absent such combination, or (ii) modification by Client or its agents of any BARX Service. This paragraph states our entire obligation and Client's sole remedy regarding intellectual property infringement.
- DISCLAIMER: SAVE AS EXPRESSLY SET OUT IN THESE TERMS, EACH BARX SERVICE IS PROVIDED "AS IS" AND BARCLAYS AND ITS RELATED PARTIES MAKE NO WARRANTY, REPRESENTATION OR OTHER ASSURANCE IN CONNECTION WITH ANY BARX SERVICE, INCLUDING AS TO AVAILABILITY, ACCURACY, COMPLETENESS, RESULTS, FUNCTIONALITY, RELIABILITY, PERFORMANCE, TIMELINESS, NON-INFRINGEMENT, SUITABILITY, QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR OTHERWISE. ALL REPRESENTATIONS, WARRANTIES AND ASSURANCES (STATUTORY, IMPLIED OR OTHERWISE) ARE EXCLUDED. WE AND OUR RELATED PARTIES HAVE NO LIABILITY TO CLIENT OR THIRD PARTIES IN CONNECTION WITH ANY BARX SERVICE OTHER THAN FOR WILFUL DEFAULT, GROSS NEGLIGENCE AND FRAUD AND UNDER PARAGRAPH 10 (INDEMNITY) ABOVE. FURTHER, WE ARE NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES WHICH CLIENT MAY INCUR OR EXPERIENCE IN CONNECTION WITH THIS AGREEMENT OR USE OF ANY BARX SERVICE, EVEN IF WE KNEW OF THE POSSIBILITY OF THOSE LOSSES. Client is solely responsible for any losses, damages or costs resulting from your or its reliance on any data that we or our Related Parties may provide in connection with Client's use of the BARX Services. NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY TO THE EXTENT CONTRARY TO APPLICABLE REGULATIONS.
- Market data: We and any provider of Market Data are not liable (a) if the Market Data is inaccurate or incomplete in any respect or (b) for any actions that Client takes or does not take based on it. Client will use Market Data solely as part of a BARX Service and will not redistribute or disclose it, save as required under Applicable Regulations. Market Data is the intellectual property of us or our licensor(s). We may collect trade-related data and aggregate it with data of other users such that no user can be readily identified. We shall own all rights in that aggregated data.
- Usage information: If we have an enquiry relating to Client's use of a BARX Service, Client will promptly provide us and/or Regulators with any information, access to premises or systems or assistance reasonably requested by us or any Regulator. Any attendance at Client's premises will, unless Applicable Regulations otherwise require, be subject to reasonable prior notice and Client's reasonable security and confidentiality procedures.
- Investment Managers: If Client is an investment manager or agent, Client agrees that (a) it is executing these Terms on its own behalf and as agent of Client's principals, (b) Client has all requisite authority to so execute and to effect transactions through the BARX Services on behalf of its principals, (c) all such transactions will be suitable and/or appropriate for the principals (to the extent Client has a duty under Applicable Regulations to ensure this) and (d) Client will give us prior notice of any principals on whose behalf it will use a BARX Service. Client will indemnify us against any claims by Client's principals in respect of the BARX Services.
- Compliance with laws: Client will comply, and co-operate with us in complying, with all Applicable Regulations when using or accessing any BARX Service.
- Regulatory: Client confirms that it is an experienced corporate or institutional investor and not a consumer. In the EU, BARX Services are provided by Corporate and Investment Banking. In other jurisdictions, BARX Services may be offered by a particular Barclays' entity, either on its own account or as agent for another Barclays entity. Client acknowledges that we may trade for our own account or for others on the same markets and in the same products (including at different prices or using different strategies than those available via any BARX Service), which could affect the value or terms of Client's transactions.
- Provisions applicable to U.S. Institutional Investors: If Client is a "U.S. institutional investor" or "major U.S. institutional investor", as defined in Rule 15a-6 of the Securities Exchange Act of 1934, for certain transactions, Barclays Capital Inc. ("BCI") may act as agent for a foreign affiliate (the "15a-6 Transaction"). For a 15a-6 Transaction, BCI, a broker-dealer registered with the U.S. Securities and Exchange Commission (the "SEC"), will be responsible as agent for (a) effecting the 15a-6 Transaction, (b) issuing all required confirmations and statements to Client for the 15a-6 Transaction, and (c) keeping books and records for the 15a-6 Transaction as required by rule 15a-6. To the extent permitted by law, transfer of funds and securities in connection with the 15a-6 Transaction shall be directly between Client and the Barclays foreign affiliate engaging in the Applicable Transaction (or their respective agents or custodians) and BCI, as agent, will not be responsible for receiving, delivering and safeguarding funds for the 15a-6 Transaction.
- Confidentiality & Privacy/Data Protection: Without the other's consent, neither party shall disclose or use for any purpose except as contemplated under these Terms or the relevant product agreement (e.g. ISDA) any information disclosed to it by the disclosing party in connection with a BARX Service, except to the extent that such information is (a) already available in the public domain, other than as a result of a breach of these Terms, (b) already known to the receiving party at the time of disclosure, (c) required to be disclosed under Applicable Regulations or court order or (d) requested by a Regulator. We may disclose information to our agents and suppliers (provided that they are subject to confidentiality obligations). We may store and use the contact details of Authorised Users and the Security Administrator in countries worldwide (including countries outside the EU and EEA). Neither Client nor we shall make any public announcement relating to Client's use of the BARX Services without the other's prior written consent.
- Notices: In accepting these terms, Client agrees to the provision of notices (including acknowledgments, confirmations, statements and communications required under Applicable Regulations) by email and other electronic means as permitted under Applicable Regulations and such electronically delivered documents shall be deemed to be "in writing"; Client may revoke this consent by written notice to us, but Client's access to a BARX Service may be terminated.
- Amendments: We may amend these Terms by 10 or more days' written notice to Client (or immediately if a change is required under Applicable Regulations).
- Third party rights: These Terms are for the benefit of Barclays, Related Parties, our suppliers, our agents and Client. No other third party has rights under these Terms.
- Further assurances: Client shall cooperate with any reasonable request we may make to give full effect to these Terms and any Instruction and to protect our and Related Parties' rights in the BARX Services.
- Termination: This Agreement is effective until terminated by either party upon written notice to the other. We may suspend, limit or terminate Client's access to all or part of any BARX Service (with or without cause or notice).
- Governing law and jurisdiction: These Terms are governed by the laws of England and Client hereby submits to the exclusive jurisdiction of the courts of England, unless Client is organized under the laws of and located in any of the United States of America, in which case, these Terms shall be governed by New York law and Client hereby submits to the exclusive jurisdiction of the federal and state courts of New York, NY and Client hereby waives its right to a trial by jury. We may bring proceedings in other jurisdictions. If there is a conflict between these Terms and the terms of a product-specific agreement, these Terms will prevail. For some BARX Services, exchange or trading system rules may also apply.
- Miscellaneous. These Terms (and the BARX User Guidelines) are the parties' entire agreement and supersede all previous agreements on the matters covered by these Terms. Neither party may assign the Agreement without the other's written consent; any assignment in breach is void. However, we may assign this Agreement to any Affiliate or to any entity which succeeds to all or substantially all of our assets and business. The following paras. of these Terms shall survive termination: 8-13, 18, 19 and 24.
- Definitions and interpretation: Headings are for ease of reference only.
"Affiliate": any entity controlled directly or indirectly by, or under common control with, Barclays Bank PLC.
"Applicable Regulations": any applicable laws, rules and regulations (including any rules, policies and practices of a relevant Regulator) from time to time.
"Authorised User": the person(s) and/or system(s) for whom Client or any Authorised User requests access to a BARX Service, which request may be by email, phone, in person or in writing and to which we provide such access or a Logon.
"Barclays" / "we" / "us" / "our": Barclays Bank PLC and its Affiliates.
"BARX Service": any electronic commerce, messaging or information service provided by or routing to Barclays (directly or via a third party, e.g. Bloomberg), whether or not branded BARX (including any trading, algorithmic calculation or trading, routing, clearing, settlement, matching, communications or reconciliation services).
"Client": the entity identified in the form below.
"Logon": any PIN, digital certificate, password, authentication code or other data or device that enables access to a BARX Service.
"Losses": liabilities, costs, claims and expenses (including reasonable attorney fees).
"Market Data" means prices, market data, research, commentary, and other information.
"Proprietary BARX Services": Any BARX Service wholly owned and controlled by Barclays excluding in any event any services provided by a third party (e.g. via Reuters or Bloomberg).
"Regulator": any regulator, self-regulatory body, exchange, clearing house, alternative trading system, electronic communications network or similar entity to whose rules or regulations we or Client is subject in respect of a BARX Service.
"Related Party": any Barclays' director, officer, employee, agent or licensor of any part of any BARX Service.
"Security Administrator": the person(s) appointed by Client to act as an administrative contact.
Barclays offers premier investment banking products and services to its clients through Barclays Bank PLC. Registered in England 1026167. Registered office: 1 Churchill Place, London E14 5HP, England (tel +44 20 7773 0232; email@example.com). VAT registration no.: GB 243 8522 62 Authorised by the Prudential Regulation Authority and regulated by the Financial Conduct Authority and the Prudential Regulation Authority (Financial Services Register No. 122702) and a member of the London Stock Exchange. Barclays Bank PLC undertakes US securities business in the name of its wholly-owned subsidiary Barclays Capital Inc., a SIPC and NASD member.