FOR REFERENCE ONLY
These Operational and Security Terms for Electronic Trading Services, (the "Terms") as amended from time to time set out the terms which will apply where we grant you access to any Trading Service.
When we use the terms "we", "our", or "us", we are referring to Barclays.
1. GENERAL INFORMATION
1.1 These Terms relate to electronic trading. Before we grant you access to some Trading Services we may ask you to enter into a product specific Client Agreement. If there is a conflict between the terms of this Agreement and the terms of the Client Agreement, the terms of this Agreement will prevail regarding the Trading Services (except that the governing law and dispute resolution provisions of the Client Agreement will prevail over Paragraph 13.5 of this Agreement and both the Client Agreement and this Agreement shall be construed under the governing law stipulated in the Client Agreement).
1.2 By returning a signed copy of these Terms you are indicating your offer and intention to bind your firm to these Terms. You agree, that granting you access to any Trading Service shall be deemed by both parties as our acceptance of your offer to be bound by these Terms and the parties shall be bound by a legally binding contract ("Agreement"). Until we grant you access to a Trading Service, you acknowledge and agree that these Terms shall not be binding on either party.
2.1 You represent and warrant that you are aware of all Applicable Regulations that apply to Trading Services that you use and your use of the Trading Services will comply with all Applicable Regulations and this Agreement as may be amended from time to time.
2.2 We have no obligation to accept, or to execute or cancel, all or any part of a Transaction that you seek to execute or cancel through a Trading Service. Without limitation of the foregoing, we have no responsibility for transmissions that are inaccurate or not received by us, and may execute any Transaction on the terms actually received by us.
2.3 You may receive a written or electronic acknowledgement of the status of each Transaction executed through a Trading Service (an "Acknowledgement") in addition to any written or electronic confirmation of the execution of the Transaction ("Confirmation") that we deliver to you. If the terms of this Agreement and/or an Acknowledgement conflict with the terms of any Confirmation the Confirmation shall prevail.
2.4 We may engage in trading in the markets reflected on the Trading Services for our proprietary accounts and on behalf of accounts under our management, which could affect the value or terms of Transactions and we may enter into transactions at prices different from the prices reflected in the Trading Service.
2.5 You authorise us to act on any instruction given or appearing to be given by any Authorised User using the Security Devices (as defined in Paragraph 5) and received by us in relation to any Trading Service you use ("Instruction"). We are not obliged to act on any Instruction, or to execute or otherwise enter into any particular transaction, and need not give any reasons for declining to do so. Unless we agree otherwise with you, you will have no right to amend or revoke an Instruction once received by us. You will be responsible for the genuineness and accuracy, both as to content and form, of any Instruction received by us. You acknowledge that in the event of manifestly erroneous prices or volumes we will have a right to cancel the Transaction and such a Transaction will not be binding on us.
3. TERM, TERMINATION AND SUSPENSION
3.1 This Agreement is effective from the date of acceptance by us and will continue in effect until terminated by either party at any time upon written notice to the other party. This Agreement will remain in effect with respect to all Transactions executed through a Trading Service regardless of any subsequent termination of this Agreement.
3.2 You acknowledge we have the right, unilaterally and with immediate effect, to suspend or terminate (at any time, with or without cause or prior notice) all or any part of any Trading Service, or your access to any Trading Service, to change the nature, composition or availability of any Trading Service, or to change the limits we set on the trading you may conduct through any Trading Service.
4.1 Use of any high speed or automated mass data entry system with any Trading Service will only be permitted with our prior consent exercised in our sole discretion.
4.2 You grant to us, to any Exchange in respect of which you may submit orders or receive information or data using the Trading Service, the right, at any time or times, on reasonable notice (which, in certain circumstances, may be immediate) to enter (or to instruct our or the Exchange's subcontractors or agents to enter) your premises and inspect your System to ensure that it complies with the requirements notified by us to you from time to time and that you are using the Trading Service in accordance with, and otherwise complying with, these Terms and any requirements of any relevant Exchange or Applicable Regulations.
4.3 Where electronic communications between you and us are based on an interface protocol such as FIX, those communications will be interpreted by and subject to any Rules of Engagement for such interface protocol that are provided to you.
4.4 You are required to test any interface protocol prior to using it in a live environment and you agree you will be responsible for any errors or failure in your implementation of the interface protocol.
5.1 You will comply with all operational and security procedures that are notified to you from time to time by us with respect to access of any Trading Service including, without limitation, the use of Security Devices, and in particular the following:
(a) you will ensure that all Security Devices are kept confidential.
(b) you will, as soon as is practicable after becoming aware, or having a reasonable suspicion of the occurrence, of the unauthorised disclosure of a logon code, or of circumstances, in which a logon code may be so disclosed, notify us of the same.
(c) you will appoint, notify us and maintain at all times at least one of your officers or employees to act as a point of contact to us on security issues (the "Security Administrator"). We recommend that you notify us of your Security Administrator(s) in the attached schedule. We will deliver all notices relating to our security procedures to your Security Administrator. You acknowledge that where you have only one Security Administrator, the delivery of such information to a single point of contact poses a security risk to you and you assume all risks associated with this.
(d) you will limit access to any Trading Service you use and all Security Devices, to those Authorised Users authorised to access the electronic service, and will implement procedures to monitor, and will monitor, such access to ensure compliance with all applicable laws, rules and regulations and terms of this Agreement, "Authorised User" means any of your officers employees, or agents who, from time to time, is notified by you to us as being authorised by you to access the Trading Service on your behalf under this Agreement. A number of Exchanges that we may give you access to require us to provide full details of Authorised Users to them. It is therefore imperative that you provide us at our request with a list of your Authorised Users, their countries of domicile and updates of the list.
(e) Digital certificates are exclusive to and may only be used by the Authorised User it has been issued to and you will be responsible for ensuring that each Authorised User does not (i) copy, distribute, or transfer it to any other computer, computer system or electronic device without our consent, (ii) attempt to, or allow another person to attempt to: modify, alter, disassemble or decrypt it, or (iii) use it for any purpose other than to communicate with us.
6. USE OF THE SERVICES
6.1 Where we grant you access to a Trading Service we shall grant you, for the term of this Agreement, a personal, limited, non-exclusive, revocable, non-transferable and non-sublicenseable license to use the Trading Services pursuant to the terms of this Agreement. We may provide certain portions of the Trading Services under license from third parties, and you will comply with any additional restrictions on your usage that we may communicate to you from time to time, or that are otherwise the subject of an agreement between you and such licensors.
6.2 We are providing the Trading Services to you only for your internal use, except as provided in Paragraph 9, and only for the purposes, and subject to the terms, of this Agreement. You may not sell, lease, or provide, directly or indirectly, the Trading Services or any portion of the Trading Services to any third party except as permitted by this Agreement. You acknowledge that all proprietary rights in the Trading Services are owned by us or by any applicable third party service providers selected by us providing us with all or part of the Trading Services, or providing you with access to the Trading Services, or their respective licensors, and are protected under copyright, trademark and other intellectual property laws and other applicable law. You receive no copyright, intellectual property rights or other rights in or to the Trading Services, except those specifically set forth in this Agreement. You will protect and not violate those proprietary rights in the Trading Services and honour and comply with our reasonable requests to protect our and our third party service providers' contractual, statutory and common law rights in the Trading Services. If you become aware of any violation of our or our third party service providers' proprietary rights in the Trading Services, you will notify us in writing.
6.3 The software used in connection with the Trading Services may include encryption methods that are subject to the export and/or import control laws of the United States and other countries. You will cooperate with us in complying with any such laws.
7. YOUR OBLIGATIONS
7.1 You will be responsible for providing the System to enable you to use a Trading Service.
7.2 You will be responsible for the implementation and regular use of up to date virus detection/scanning programs. In the event you become aware of a material defect, malfunction or virus in your System or in a Trading Service, you will immediately notify us of such defect, malfunction or virus and cease all use of such Trading Service until you have received permission from us to resume.
7.3 In the event that you receive any data, information or software via a Trading Service other than that which you are entitled to receive pursuant to these Terms, you will immediately notify us and will not use, in any way whatsoever, such data, information or software.
7.4 You will pay such costs and fees associated with your use of a Trading Service as we may mutually agree from time to time.
7.5 When using a Trading Service you will run such tests and provide such information to us as we shall reasonably consider necessary to establish that your System satisfies the requirements notified by us to you from time to time.
8. CONFIDENTIALITY AND PUBLICITY
8.1 Without the prior written consent of the disclosing party or unless permitted under these Terms, neither party shall disclose to any person or use for any purpose other than as contemplated under these Terms:
(a) any information disclosed to it by the disclosing party in respect of any Trading Service; or
(b) any other information obtained by it pursuant to these Terms,
except to the extent that such information is (i) already available in the public domain, other than as a result of any breach by that party of these Terms, or (ii) already known to the receiving party at the time of disclosure or expressly stated not to be confidential by the disclosing party, or (iii) required to be disclosed to any third party for the purposes of these Terms (and then subject to such purposes), or (iv) required or requested to be disclosed to comply with any applicable law, regulation, applicable Exchange requirement or court order. Neither party shall be entitled to make press releases or other public announcements in relation to these Terms or use the trade names or logos of the other party without the prior written consent of the other party.
8.2 This Paragraph 8 shall survive termination except to the extent that the Parties agree otherwise in writing.
9.1 You will use the Trading Services (including the execution of or the transmission of orders for Transactions) solely for your own benefit and on your own account and will not use such Trading Services on behalf of third parties (other than your customers, if you are a broker-dealer, investment manager or investment advisor) without our written permission. Notwithstanding the foregoing, if you are a broker-dealer, investment manager or investment advisor acting on behalf of one or more principals (each, a "Principal"): (i) any Transactions executed by you through a Trading Service shall be solely for the benefit of the Principals and in compliance with the terms and conditions of these Terms, (ii) You represent and warrant that (A) you are executing, and you have all requisite authority to execute, these Terms on your own behalf and as agent of the Principals, (B) the provisions of these Terms shall be binding on you and the Principals and the term "you", as used herein, shall refer to you and each such Principal, (C) you have all requisite authority to effect Transactions through the Trading Services on behalf of the Principals, and (D) all such Transactions will be suitable and/or appropriate for the Principals, and (E) you will notify us in writing of all Principals you act on behalf of from time to time, and (iii) You shall indemnify us and hold us harmless against any and all liabilities, losses, damages, claims, costs and expenses (including without limitation fees and disbursements of counsel), incurred by or asserted against us or any of our Affiliates arising out of any claim that you have breached any of the representations and warranties set forth herein or that you have executed a trade that was not authorized by or suitable and/or appropriate for the relevant Principals.
10. MARKET DATA
10.1 With respect to any market data or other information that we or any third party service provider provide to you in connection with your use of the Trading Services, (i) we and any such provider are not responsible or liable if any such data or information is inaccurate or incomplete in any respect; (ii) we and any such provider are not responsible or liable for any actions that you take or do not take based on such data or information; (iii) you will use such data or information solely for the purposes set forth in this Agreement and any Client Agreement; (iv) such data or information is proprietary to us and any such provider and you will not retransmit or disclose such data or information to third parties except as required by applicable law or regulation; and (v) you will use such data or information solely in compliance with applicable laws, rules and regulations.
11. ELECTRONIC DOCUMENTS
11.1 You consent 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 Trading Services, 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 you electronically are deemed to be "in writing." If your 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 Trading Services, you will be deemed to have signed or acknowledged the document to the same extent and with the same effect as if you had signed the document manually. You acknowledge your understanding that you have the right to withdraw your consent to the electronic delivery and signature of documents at any time by providing prior written notice. However, if you revoke your consent, your access to the Trading Services may be restricted or terminated.
12. LIMITATION OF LIABILITY AND INDEMNITY
12.1 WE, OUR DIRECTORS, OFFICERS, AFFILIATES, EMPLOYEES AND AGENTS (EACH A "RELATED PARTY") HAVE NO LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), CONTINGENT OR OTHERWISE, TO YOU OR TO THIRD PARTIES, FOR THE CORRECTNESS, QUALITY, ACCURACY, SECURITY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, PRICING OR CONTINUED AVAILABILITY OF THE TRADING SERVICES OR FOR DELAYS OR OMISSIONS OF THE TRADING SERVICES, OR FOR THE FAILURE OF ANY CONNECTION OR COMMUNICATION SERVICE TO PROVIDE OR MAINTAIN YOUR ACCESS TO A TRADING SERVICE, OR FOR ANY INTERRUPTION IN OR DISRUPTION OF YOUR ACCESS OR ANY ERRONEOUS COMMUNICATIONS BETWEEN US AND YOU. WE ARE NOT LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES WHICH YOU MAY INCUR OR EXPERIENCE BECAUSE YOU ENTERED INTO THIS AGREEMENT OR RELIED ON THE TRADING SERVICES, EVEN IF WE KNOW OF THE POSSIBILITY OF THOSE DAMAGES. WE ARE NOT RESPONSIBLE FOR INFORMING YOU OF ANY DIFFICULTIES WE OR OTHER THIRD PARTIES EXPERIENCE CONCERNING USE OF THE TRADING SERVICES FOR OUR ACCOUNTS OR OTHER ACCOUNTS OR TO TAKE ANY ACTION IN CONNECTION WITH THOSE DIFFICULTIES. WE ALSO HAVE NO DUTY OR OBLIGATION TO VERIFY, CORRECT, COMPLETE OR UPDATE ANY INFORMATION DISPLAYED IN THE TRADING SERVICES. YOU ARE SOLELY RESPONSIBLE FOR ANY LOSSES, DAMAGES OR COSTS RESULTING FROM YOUR RELIANCE ON ANY DATA OR INFORMATION THAT WE MAY PROVIDE IN CONNECTION WITH YOUR USE OF THE TRADING SERVICES. YOU WILL MAKE YOUR OWN INDEPENDENT DECISION TO ACCESS OR USE ANY TRADING SERVICE OR TO EXECUTE ANY TRANSACTION AND YOU ACKNOWLEDGE AND AGREE THAT THE TRADING SERVICES DO NOT AND WILL NOT SERVE AS THE PRIMARY BASIS FOR ANY OF YOUR INVESTMENT DECISIONS CONCERNING YOUR ACCOUNTS OR YOUR MANAGED OR FIDUCIARY ACCOUNTS. YOU ARE SOLELY RESPONSIBLE FOR ANY INVESTMENT OR TRADING DECISIONS YOU MAKE WITH RESPECT TO PRODUCTS IDENTIFIED ON THE TRADING SERVICES AND WE ARE NOT RESPONSIBLE FOR DETERMINING WHETHER ANY TRANSACTION YOU MAY ENTER INTO IS SUITABLE, APPROPRIATE OR ADVISABLE. WE (AND ANY OF OUR AFFILIATES) ARE NOT AND WILL NOT BE, BY VIRTUE OF PROVIDING THE TRADING SERVICES, AN ADVISOR OR FIDUCIARY FOR YOU OR YOUR MANAGED OR FIDUCIARY ACCOUNTS.
12.2 YOU WILL INDEMNIFY, PROTECT, AND HOLD HARMLESS US AND OUR RELATED PARTIES FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, JUDGMENTS, SUITS, ACTIONS, PROCEEDINGS, CLAIMS, DAMAGES, COSTS (INCLUDING ATTORNEY'S FEES) (COLLECTIVELY, "LOSSES") RESULTING FROM OR ARISING OUT OF THE USE OF THE TRADING SERVICES BY YOU OR YOUR RELATED PARTIES, INCLUDING ANY BREACHES OF THE SECURITY OF THE TRADING SERVICES (INCLUDING ANY ACCESS OR ENTRY INTO ANY OF OUR OTHER SYSTEMS NOT COVERED BY THIS AGREEMENT), AND, IF YOU ARE A BROKER-DEALER, INVESTMENT MANAGER OR INVESTMENT ADVISER ACTING ON BEHALF OF YOUR CUSTOMERS, INCLUDING ANY CLAIMS THAT A TRADE WAS NOT SUITABLE FOR OR NOT AUTHORIZED BY A CUSTOMER, CAUSED DIRECTLY OR INDIRECTLY BY YOU OR YOUR RELATED PARTIES EXCEPT TO THE EXTENT SUCH LOSSES ARE DUE TO OUR PROVEN FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR, IF YOU ARE A BROKER-DEALER, INVESTMENT MANAGER OR INVESTMENT ADVISER ACTING ON BEHALF OF YOUR CUSTOMERS, TO THE EXTENT SUCH LOSSES ARISE SOLELY FROM TRANSACTIONS EXECUTED BY US THROUGH THE TRADING SERVICES ON BEHALF OF SUCH CUSTOMERS.
12.3 In Paragraph 12.1 the terms "we", "our" and "us" include any third party service providers selected by you or us in connection with the Trading Services, and in Paragraph 12.2 those terms include third party service providers selected by us.
12.4 Orders that you enter through the Trading Services may be routed to third party systems, markets or exchanges (each, a "Third Party System"). We are not responsible for any losses, damages or costs that may result from errors made by any Third Party System in reading, processing or executing such orders, or if any Third Party System otherwise fails to properly execute such orders.
12.5 You agree that our liability and the collective liability of our Related Parties and the third party service providers selected by you or us, if any, arising out of any kind of legal claim (whether in contract, tort, including negligence, or otherwise) or in any way connected to your use of the Trading Services is hereby excluded unless caused directly by our fraud, gross negligence or wilful misconduct.
12.6 You agree that the limitations and exclusions set out in this Paragraph 12 are reasonable having regard to all the relevant circumstances, and the levels of risk associated with each party's obligations under this Agreement.
12.7 The exclusions and limitations set out above will only apply to the extent permitted by the applicable law, regulations or rules of any competent regulatory authority.
13.1 We may amend these Terms by not less than 10 Business Days written notice to you, except where it is impracticable in the circumstances. Such amendment will become effective on the date specified in the notice. Unless otherwise agreed, an amendment will not affect any outstanding order or Transaction or any legal rights or obligations which may already have arisen.
13.2 These Terms shall be for the benefit of and binding upon us both and our respective successors and assigns. Neither party may assign the Agreement without the other party's prior written consent. 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.
13.3 Our records, unless shown to be wrong, will be evidence of your dealings with us in connection with our services. You will not object to the admission of our records as evidence in any legal proceedings because such records are not originals, are not in writing or are documents produced by a computer. You will not rely on us to comply with your record keeping obligations, although records may be made available to you on request at our absolute discretion.
13.4 You consent (for yourself and on behalf of, and with the knowledge and authority of, your relevant employees, directors and other officers) to any relevant business information about you and your employees, directors and other officers provided to us during the course of the provision and use of the Trading Services being held, both manually and on computer, and being processed for purposes connected with the provision and use of the Trading Services and for administrative or other internal business purposes (including keeping you informed of other products, services and opportunities that we may offer). Additionally such information may be transferred to any of our (or our Affiliates') offices and to third parties to process on our (or our Affiliates') behalf for the purposes described above, whether in the United States or elsewhere in the world. You warrant that you will inform the said employees, directors and other officers that their relevant business information may be used in the manner described above.
13.5 This Agreement will be governed by and construed by the laws of England and Wales and the parties agree that the courts of England shall have exclusive jurisdiction of any claim or dispute hereunder.
In these Terms the definitions shall have the following meaning:
"Affiliates" means any person or entity controlling, controlled by or under common control with such party. For these purposes control of an entity means the power, direct or indirect, to direct or cause the direction of the management and policies of such entity whether by contract or otherwise and, in any event and without limitation of the foregoing, any entity owning more than 50% of the voting securities of a second entity shall be deemed to control that entity;
"Applicable Regulations" means:
(a) Rules of a relevant regulatory authority;
(b) the Rules of the relevant Exchange; and
(c) all other applicable laws, rules and regulations as in force from time to time,
as applicable to these Terms and any Transaction, or Trading Service;
"Authorised Users" means those individuals notified to us as having been authorised by you to use a Trading Service. The initial Authorised Users are listed in the attached schedule to these Terms;
"Barclays" means Barclays Capital, the investment banking division of Barclays Bank PLC, Barclays Capital Inc., and Barclays Capital Securities Limited (together with any other Barclays Group entity that you contract with in any Client Agreement) or as we notify you in any Confirmation.
"Barclays Group" means Barclays and any Barclays' Affiliates.
"Business Day" means any day other than a Saturday or Sunday, or a day on which banking institutions in the jurisdiction to which the Barclays entity you are trading with is subject to and authorised or required by law to close;
"Client Agreements" means any other agreement that applies between you and us that relates to a Transaction executed through the Trading Service;
"Currency" shall be construed so as to include any unit of account;
"Exchange" means any securities or futures exchanges, or any clearing house, self-regulatory organizations or alternative trading system as we shall grant you to have access to from time to time;
"FIX" means Financial Information Exchange protocol.
"Rules" means articles, rules, regulations, procedures, policies and customs, as in force from time to time;
"Security Devices" means one or more user identification codes, digital certificates, passwords, authentication codes or such other information or devices as may be provided or specified to you, to enable your access to the Trading Services;
"System" means all computer hardware and software, equipment, network facilities and other resources and facilities needed to enable you to use a Trading Service;
"Trading Services" means any electronic or routing services (together with any related software) including without limitation trading, routing or information services that we grant you access to or make available to you either directly or through a third party service provider, and used by you to view information and/or enter into Transactions;
"Transaction" means in respect of any Trading Service:
(a) a contract made on an Exchange or pursuant to the Rules of an Exchange;
(b) a contract which is subject to the Rules of an Exchange; or
(c) a contract which would (but for its term to maturity only) be a contract made on, or subject to the Rules of an Exchange and which, at the appropriate time, is to be submitted for clearing as a contract made on, or subject to the Rules of an Exchange;
in any of cases (a), (b) and (c) being a future, option, contract for differences, spot or forward contract of any kind in relation to any commodity, metal, financial instrument (including any security), Currency, interest rate, index or any combination thereof;
(d) a transaction which is matched with any transaction within paragraph (a), (b) or (c) of this definition;
(e) any other transaction capable of execution on a Trading Service.