Terms and Conditions – Clearing Members
1DEFINITIONS AND INTERPRETATION
1.1In these Terms, the following phrases have the following meanings:
“Accepted Application” means an Application which has been approved and accepted by SGX;
“Agreement” means the agreement between SGX and the Participant for the access to Titan OTC, comprising the Accepted Application and these Terms;
“Application” means the application or request to subscribe for Titan OTC made by the Participant on a form prescribed by SGX, including in the form of a request for Authentication Device(s) which is made by the Participant for the purpose of subscribing to Titan OTC;
“Authentication Device” means any logon identifier, password, and/or other code, device and/or access procedure issued by SGX to authenticate or identify a Participant’s or an Authorised Person’s entry into Titan OTC;
“Authorised Person” means any person authorised by the Participant to have access to Titan OTC under this Agreement;
“Clearing Account Administrator” means any Authorised Person that is authorised by the Participant to have account administrator rights in Titan OTC to set and maintain parameters relating to trades, including but not limited to the setting of thresholds and limits;
"Designated User System" means any software, hardware, systems, and communications connections designated by SGX as being necessary to access and use Titan OTC, with such specifications as may be prescribed by SGX from time to time;
“Force Majeure Event” means an event beyond the reasonable control of such party, including but not limited to acts of God, fire, flood, war, government action, or delay or inability to obtain equipment, software or data provided to such party by third parties;
“Logout Time” means the time in minutes submitted by the Participant in the Application, and as amended from time to time by the Participant in such manner as prescribed by SGX, being the period of inactivity following which an Authorised Person will be automatically logged out of Titan OTC;
“Participant” means the person or entity named in the Accepted Application for access to Titan OTC;
“Rules” means the SGX-DC Clearing Rules and/or the SGX-DT Futures Trading Rules, as the case may be, as may be varied, amended, or supplemented from time to time;
“Services” means any service or facility which SGX makes available to the Participant from time to time upon the terms of this Agreement for such Service and offered through electronic means via the Service System, following SGX’s approval and acceptance of the Application for such service or facility;
“System” means the Site, Service Network and Service System collectively;
“Service Network” means such secure network as may be designated by SGX for use with the Service System from time to time, and through which the Participant obtains access to the Service System;
“Service System” means the computerised online systems operated and maintained by or on behalf of SGX for the Services, and for access by the Participant through its Designated User System and via the Service Network in connection with the Services;
“SGX” means each of SGX-DC and SGX-DT;
“SGX-DC” means Singapore Exchange Derivatives Clearing Limited;
“SGX-DT” means Singapore Exchange Derivatives Trading Limited;
“Site” means SGX’s web site at www.sgx.com or such other addresses as may be specified by SGX for access to Titan OTC;
“Titan OTC” means the software and system provided by SGX to Participants and its Authorised Persons for the purpose of facilitating, registering and confirming Non-Relevant Market, exchange of futures for physical, exchange of futures for swaps and/or negotiated large trade transactions with SGX, and any other services as SGX may from time to time provide; and
“User Account Administrator” means any Authorised Person that is authorised by the Participant to have account administrator rights in Titan OTC to create and maintain user accounts.
1.2Words importing the singular include the plural and vice versa.
1.3The headings in these Terms are for purposes of reference only and shall not affect the interpretation or construction of these Terms.
1.4These Terms shall supersede any conflicting terms contained in the terms and conditions governing the access to and use of systems or services provided by SGX and that the Terms shall be superseded by any conflicting terms contained in the Rules.
1.5Unless otherwise stated, all capitalised terms used herein shall have the same meaning set out in the Rules.
1.6Any obligation expressed to be imposed on an Authorised Person in these Terms shall be construed to be a joint and several obligation imposed on the Participant.
2APPLICABLE RULES AND REQUIREMENTS
2.1The Participant and each Authorised Person agree to be bound by this Agreement and all applicable Rules, policies, procedures, requirements, restrictions and instructions of SGX, as varied, amended or supplemented from time to time. The Participant’s or an Authorised Person’s use of Titan OTC constitutes its continued agreement to the same.
2.2SGX may, at its sole discretion and at any time:
(a) accept or decline the registration of any transaction, the submission of any orders or any other instructions under Titan OTC;
(b) vary, suspend or remove any Systems or Services or any software or system relating to Titan OTC; and
(c) prescribe, change, deactivate or revoke the use of any Authentication Device or Designated User System to be used in connection with Titan OTC.
2.3The Participant shall procure the use or installation of any Authentication Device or Designated User System in the manner and specifications prescribed by the SGX from time to time, at the Participant's own risk and cost.
2.4The Participant undertakes, where applicable:
(a) to inform SGX as soon as practicable upon being aware of any malfunction, error, compromise, loss or unauthorised use, duplication or access of the Authentication Device;
(b) not to disassemble or reverse engineer any Authentication Device and not to cause any portion thereof to be copied, removed, modified, transferred, adapted or translated in any form, in whole or in part; and
(c) where the Participant has reason to believe that the security of any Authentication Device has been compromised, to immediately cease to use such compromised Authentication Device until further notice from SGX.
2.5Unless an Authentication Device supplied is inherently defective in SGX’s opinion, the Participant will be liable to bear the cost, if any, of a replacement Authentication Device.
2.6Any instruction or transaction issued, transmitted, or submitted using the Authentication Device or otherwise through Titan OTC (regardless of whether such instruction or transaction was actually made or authorised by the Participant or its Authorised Person or whether the Authentication Device was compromised) is irrevocable and binding on the Participant. SGX shall be entitled to rely, act on, effect, perform or process such instruction or transaction without further reference to the Participant and without verifying the authenticity, accuracy or completeness of such instruction or transaction.
2.7The Participant acknowledges that the information relayed through Titan OTC may not be a true and accurate representation or conclusive evidence of the state of an instruction or transaction and that a transaction is only confirmed for clearing when the conditions under the Rules have been satisfied.
3REGISTRATION
3.1The Participant must register all Authorised Persons with SGX by creating unique user profiles in Titan OTC. The Participant shall further specify if any Authorised Person is to act as a Clearing Account Administrator or User Account Administrator.
3.2The Participant shall inform the SGX as soon as practicable upon a change of its Authorised Persons, Clearing Account Administrators or User Account Administrators by updating the relevant user profiles in Titan OTC.
3.3By registering any Authorised Person, the Participant agrees to be bound by all actions taken by such Authorised Person in connection with Titan OTC as though they were conducted by the Participant.
3.4SGX shall issue one (1) password per Participant for use exclusively by the Participant or any Authorised Person on behalf of the Participant.
4FEES
4.1There will be no fee payable by the Participant for access to Titan OTC, unless otherwise notified by SGX.
5PARTICIPANT OBLIGATIONS
5.1The Participant shall ensure that only it or its Authorised Persons access or use Titan OTC on the Participant’s behalf.
5.2The Participant and each Authorised Person shall only access or use Titan OTC for the purposes of data consumption, facilitating, registering, confirming or accepting Non-Relevant Market, exchange of futures for physical, exchange of futures for swaps and/or negotiated large trade transactions for themselves, or persons for whom they are authorised to act, for clearing and settlement by SGX.
5.3The Participant shall ensure, and must procure that each Authorised Person ensure that:
(a) the Authentication Device is kept confidential and that the use of the Authentication Device is monitored and controlled accordingly;
(b) the Participant or the Authorised Person is duly authorised to enter instructions for facilitating trade matching or to register, confirm or accept the relevant transaction for clearing and settlement by SGX, as the case may be;
(c) the details of any instruction, transaction or other information entered into Titan OTC or otherwise submitted to SGX are accurate and complete;
(d) trades that fail the pre-novation checks and which are not accepted by Titan OTC will remain between the initial counterparties;
(e) if the Participant is a futures commission merchant registered with the U.S. Commodity Futures Trading Commission:
(i) the transaction has been validated by the relevant Clearing Member as being eligible for clearing (including successfully adhering to the margin, position and price band limits set in Titan OTC for the relevant accounts) prior to submitting the transaction for clearing;
(ii) if the validation in sub-paragraph (i) is unsuccessful or incomplete, the relevant transaction is not submitted for clearing;
(iii) the relevant transaction is not co-brokered; and
(iv) the relevant transaction is tagged as involving a futures commission merchant in Titan OTC; and
(f) any information disclosed or made available to the Participant or Authorised Persons through Titan OTC is kept confidential and reasonable steps are taken to ensure that the Participant, Authorised Persons and their directors, officers, employees are made aware of the confidential nature of such information so disclosed or made available and agree to keep such information confidential, except that this obligation of confidentiality does not apply to information which is:
(i) in or becomes part of the public domain other than through a breach of this Agreement;
(ii) known or obtained without an obligation of confidentiality;
(iii) independently developed by the Participant outside of this Agreement; or
(iv) required to be disclosed by law or regulation, provided the Participant notifies SGX as soon as is practicable of such requirement and minimises disclosure to what is specifically required.
5.4The Participant shall provide SGX, upon request, any necessary information relating to instructions sent, and transactions registered, confirmed or accepted under Titan OTC, including indicative end-of-day prices.
5.5The Participant agrees and acknowledges that the single Logout Time provided by the Participant will apply to all its Authorised Persons. The Participant undertakes to ensure that all Authorised Persons are duly informed about the Logout Time (including any changes thereof from time to time) and its associated consequences. Each request for a change of Logout Time submitted by the Participant will be deemed to be submitted by the Participant on its behalf and on behalf of each Authorised Person.
5.6The Participant and each Authorised Person shall not access or use Titan OTC in any jurisdiction within which such access or use would be illegal or prohibited.
6INTELLECTUAL PROPERTY
6.1The Participant agrees and acknowledges that all intellectual property rights relating to Titan OTC, including but not limited to information disclosed or made available to the Participant or Authorised Persons through Titan OTC (the “Information”) vest solely in SGX. Other than the licence granted under Clause 6.2, SGX does not grant any rights, interest or licence in Titan OTC or the Information to the Participant.
6.2SGX hereby grants to the Participant a revocable non-transferable non-exclusive licence to use the Information solely for (a) the purposes of facilitating, registering, confirming or accepting transactions for clearing and settlement by SGX and (b) internal or non-commercial purposes. The Participant shall not make the Information or information derived from the Information available to any person other than the Participant or its Authorised Persons without the prior written consent of SGX.
6.3The Participant agrees that SGX shall have the right to use, sell or redistribute any information related to instructions sent, and transactions registered, confirmed or accepted for clearing, via Titan OTC, provided that such information shall not refer to the identities of the Participant, its Authorised Persons or their customers if the recipients of such information are parties other than:
(a) SGX, its related corporations or any third party agent or sub-contractor engaged by SGX for the provision of services related to Titan OTC from time to time;
(b) any authentication entity, certification authority, regulatory authority or any electronic, computer, data bureau, telecommunication or network service provider involved in the provision of Titan OTC; and
(c) any third party as SGX considers necessary in order to give effect to any instruction given or transaction submitted or comply with the order of any court or government or regulatory authority.
7INDEMNITY AND LIMITATION OF LIABILITY
7.1The Participant shall indemnify and hold SGX harmless from any loss, damage, claim or costs (including any legal costs on an indemnity basis) that SGX may incur arising in connection with the Participant’s or its Authorised Persons’ access to or use of Titan OTC or the Participant’s breach of this Agreement, save where such losses arise directly as a result of SGX’s negligence, fraud or wilful misconduct.
7.2Titan OTC is provided on an "as is", "as available" basis and SGX makes no representation or warranty of any kind in respect of the accuracy, correctness, currency, completeness, reliability, quality, timeliness or fitness for any purpose of Titan OTC.
7.3SGX shall not be liable (whether in contract, tort (including negligence), equity or otherwise) for any direct, indirect or consequential loss or expense arising from the Participant’s access to or use of Titan OTC, including without limitation in relation to:
(a) any error or omission in the processing of instructions, in facilitating registration of the transactions for clearing, or in verification of the sufficiency or the details of the information or transactions submitted by the Participant or its Authorised Persons;
(b) SGX’s acceptance, rejection or failure to accept an instruction or transaction for matching or registration, regardless of the circumstances by which the transaction was made;
(c) any interruption, error, defect or failure of Titan OTC, including but not limited to any inability to enter or cancel instructions or transactions through Titan OTC whether due to unintended log-out caused by expiry of the Logout Time or otherwise;
(d) any delay, interception or failure in respect of any transmissions of communications through Titan OTC, unencrypted electronic mail or any other electronic communication means used in connection with Titan OTC;
(e) any negligence or breach on the part of SGX or its employees, agents or contractors relating to Titan OTC; and
(f) any measure taken or rights exercised by SGX in relation to Titan OTC.
7.4Without prejudice to the foregoing, SGX’s total liability to the Participant under this Agreement and at law shall not exceed S$10,000.
8TERM AND TERMINATION
8.1The term of this Agreement commences from the earlier of the date of this Agreement or the date the Participant or any Authorised Person accesses Titan OTC and will continue until terminated in accordance with this Clause 8.
8.2The Participant acknowledges that SGX shall be entitled in its absolute discretion to terminate this Agreement and/or the Participant’s access to and usage of Titan OTC:
(a) without cause, by giving one month’s prior written notice to the Participant; and
(b) with immediate effect if:
(i) the Participant breaches any provision of this Agreement and (provided such breach may be remedied) fails to remedy such breach within 14 days from SGX’s request to remedy such breach; or
(ii) the Participant breaches any provision of this Agreement where such breach cannot be remedied.
8.3The Participant may terminate the Agreement by giving at least one month’s prior written notice to SGX, provided that the Participant has fully paid all fees, charges, costs and compensation payable to SGX under this Agreement.
8.4Immediately upon the termination of this Agreement by either party for any reason, the Participant agrees that:
(a) all outstanding sums payable by the Participant under this Agreement, if any, whether or not invoiced by SGX, shall become immediately due and payable by the Participant;
(b) the Participant shall forthwith cease to use all Authentication Devices and Titan OTC; and
(c) upon SGX’s request, the Participant shall forthwith return all Authentication Devices issued under this Agreement to SGX.
8.5Any termination of this Agreement shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any term in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination. Without prejudice to the generality of the aforesaid, Clauses 5.3(f), 6, 7 and 9.6 shall survive the termination of this Agreement.
9GENERAL
9.1SGX has the right to amend this Agreement as it may in its sole discretion deem necessary or desirable with one month's prior written notice to the Participant. The Participant shall be deemed to have accepted the amendment by continuing to use Titan OTC at any time after the notice period.
9.2Neither SGX nor the Participant will be liable to the other party for any losses or delay or failure in performance arising from a Force Majeure Event.
9.3No failure or delay by SGX in enforcing the provisions of this Agreement shall operate as a waiver thereof, or of the exercise of any other right, power or remedy. No waiver by SGX will operate as a waiver of any subsequent breach.
9.4A person or entity who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act (Chapter 53B of Singapore) to enforce any term of this Agreement.
9.5If any provision of this Agreement is found to be illegal, void or unenforceable under any applicable law, that provision will (so far as it is invalid or unenforceable) be given no effect and deemed not to be included, without affecting the validity and enforceability of the remaining provisions.
9.6This Agreement shall be construed and governed by the laws of Singapore. The Participant irrevocably submits to the non-exclusive jurisdiction of the Singapore courts.