Clarksons Platou
Commodities USA LLC
Terms of Business for
Institutional Customers
Effective from 18 December
2020.
1. General
1.1 Clarksons Platou Commodities USA LLC ("CCUSA") is a
Delaware limited liability company having its place of business at
1333 West Loop South, Suite 1525, Houston, Texas, 77027, USA.
References to "we", "us" and "our" are references to CCUSA.
References to "you", "your" and "yourselves" are to the contracting
entity identified by CCUSA on the attached covering letter
2. Application and Scope of these
Terms
2.1 The Terms of Business ("Terms of Business") shall
govern the Services (which will be described in clause 3 below) and
describe the terms and conditions upon which you enter into this
relationship with us. We may vary these Terms of Business at any
time by written notice to you. Such changes will become effective
on the date specified in the notice which will be at least twenty
four (24) Business Days after the notice is sent. They do not apply
to any other Services provided by us or our Associates to you or
your Associates (unless agreed in writing between us).
2.2 These Terms of Business shall apply to all proposed
transactions contemplated by these Terms of Business, to any
related service or activity performed by CCUSA and all matters
relating thereto.
2.3 These Terms of Business are legally binding and subject to
the successful completion of anti-money laundering checks, come
into force immediately prior to our providing you with the
Services. This agreement constitutes the entire agreement between
CCUSA and yourselves and supersedes any prior agreement relating to
the subject matter of this agreement, or any prior declaration or
statement we may have made.
2.4 For the avoidance of doubt, we may take or omit to take any
action we consider necessary to ensure compliance with applicable
law.
3. Our Services
3.1 Subject to any applicable laws, rules and regulations,
and the provisions of these terms and conditions, we may negotiate
and arrange trades in any derivative products and other trade
related financial instruments ("Proposed Transactions"), for
confirmation by you, as may be agreed between you and us from time
to time. All trades are subject to your confirmation.
3.2 We will act as a broker on all Proposed Transactions. We
shall establish with you the terms on which you may wish to enter
into a Proposed Transaction with a counterparty and, if we are
aware of or locate a counterparty which may wish to enter into such
a transaction with you, we may then negotiate between you and that
counterparty to see if there are terms for the Proposed Transaction
which may be acceptable to both you and the counterparty. The trade
may be agreed and entered into orally, at the completion of the
negotiations before any documentation is produced. We will
subsequently draft a confirmation and further documentation as
agreed, to evidence the terms negotiated and entered into between
you and the counterparty.
3.3 You accept that the counterparty may be another client of
CCUSA, a client of one of our Associates or one of our Associates.
You accept that we may be acting as a broker for the counterparty
at the same time and in the same capacity as we are acting as
broker for you.
3.4 We will not be a party (either as principal or agent) to any
Proposed Transaction.
3.5 We do not provide services in relation to any other
financial instruments.
3.6 CCUSA may provide advice to you on specific Proposed
Transactions.
4. Your responsibilities
4.1 Before concluding a Proposed Transaction with a Counterparty
introduced by us in accordance with clause 3, you will be solely
responsible and we accept no liability or responsibility for:
4.1.1 assessment of the suitability of the counterparty
(including its financial standing, credit risk, legal capacity and
ability to enter into the Proposed Transaction);
4.1.2 the suitability of the Proposed Transaction for you
including the proposed terms and pricing of the Proposed
Transaction;
4.1.3 any errors in the documentation and/or other documentation
and any disagreements relating to the Proposed Transaction or any
of the accompanying documentation;
4.1.4 assessing the risks for you in relation to the Proposed
Transaction including the risk of movement in the market before the
Proposed Transaction is concluded;
4.2 You warrant and represent that:
4.2.1 you have all necessary authority, powers, consents,
capacity, licenses, resources and authorisation and taken all
necessary action to enable you to lawfully enter into and perform
any of the Proposed Transactions. No liability shall attach to
CCUSA if an instruction which it has accepted and acted upon as
bona fide is subsequently discovered to have been forged, falsified
or amended without your authority and has purportedly emanated from
you;
4.2.2 all information you have given, or shall give, to us is
true and complete as of the date of this agreement and at the time
of any transaction and any changes to such information will be
promptly notified to us; and any Proposed Transaction that is not
agreed and entered into between you (including through us) and the
counterparty;
4.2.3 you are, and at all times during the term of these Terms
of Business will be, an "institutional customer" (as such defined
in CFTC Regulation 1.3(g));and
4.2.4 either that you are not, and at all times during the term
of these Terms of business, you will not be, required to be a
member of the National Futures Association ("NFA") or that you are,
and at all times during the term of these Terms of Business you
will be, a member of the NFA.
4.2.5 you will comply with your obligations pursuant to the
United Kingdom Modern Slavery Act 2015.
5. Confirmation
5.1 After the terms of a Proposed Transaction are agreed between
you and a counterparty, a confirmation and/or other documentation
will be issued. We will issue these documents unless we indicate
otherwise.
5.2 It is your responsibility to ensure that the terms of the
confirmation and/or other documentation match the terms agreed
between you and the counterparty. We shall not be liable for any
errors in the confirmation and/or other documentation or any
disagreements relating to these documents.
6. Execution of Proposed
Transactions
6.1 For the avoidance of doubt, we will not conclude or execute
any Proposed Transactions whether as principal or agent and you
agree that we do not owe you a duty of best execution.
6.2 All Proposed Transactions will be concluded and executed
directly between you and the counterparty (and not by us); the
Proposed Transaction will become legally binding when you and the
counterparty agree the terms of the trade and agree to be bound by
it. This can be done orally and before any confirmation and/or
other documentation is issued or entered into.
7. Our Charges and Payment of
Commission
7.1 CCUSA charges commission for its services. Unless otherwise
agreed the commission will be in accordance with our rates at the
time the commission was incurred and as notified to you verbally or
in writing prior to dealing. Any alteration to these rates will be
notified to you at or before the time of the change. You shall be
obliged to pay commission for each Proposed Transaction arranged by
us. Commission will be payable immediately against invoice which
will normally be presented at the end of the month of the contract
date. We will issue you with an invoice stating what commission is
due and payable to us once the Confirmation has been issued in
accordance with clause 5
8. Indemnity and limitation of
liability
8.1 You shall indemnify us and keep us indemnified against all
losses, taxes, expenses, costs and liabilities whatsoever (present,
future, contingent or otherwise and including reasonable legal
fees) (referred to as "Loss") which may be suffered or incurred by
us as a result of or in connection with your failing to comply with
your obligations under these Terms of Business unless and to the
extent only that such losses, taxes, expenses, costs and
liabilities are suffered or incurred as a result of our negligence,
wilful default, or fraud.
8.2 We accept no liability to you for any type of loss except
that resulting from our negligence, wilful deceit or fraud. In no
circumstances shall we be liable for any of the activities set out
in clause 4.
8.3 Nothing in these Terms of Business shall limit or exclude
our liability for personal injury or death.
8.4 The indemnities above shall survive termination of these
Terms of Business.
9. Communication with you
9.1 You are responsible for the verification of the content of
each such communication received from us. These shall be conclusive
unless you notify us in writing to the contrary within three (3)
Business Days of receiving such Communication.
10. Default, Termination and
Illegality
10.1 Following the happening of one or more defaults, we shall
have the right to immediately refrain from providing any Services
to you without prior notice to you. You acknowledge that we shall
not be responsible for any consequences of taking this action.
10.2 Either You or We may terminate these Terms of Business by
giving us fourteen (14) days written notice. We may terminate these
Terms of Business immediately by giving you written notice if
default occurs in accordance with clause 9.1. No penalty will be
payable by either party on termination of these Terms of Business
but all unpaid commissions must be paid.
10.3 If at any time any provision of these Terms of Business is
or becomes illegal, invalid or unenforceable in any respect under
the law of any jurisdiction, neither the legality, validity or
enforceability of the remaining provisions of these Terms of
Business under the law of that jurisdiction nor the legality,
validity or enforceability of such provision under the law of any
other jurisdiction shall be in any way affected.
11. Conflicts of Interest
11.1 Your attention is drawn to the fact that when we arrange a
transaction for you, we, an associated company, or some other
person connected with us may have an interest, relationship, or
arrangement that is material in relation to the transactions,
investments or service concerned.
11.2 CCUSA is committed to identifying any such conflicts and
managing them.
11.3 CCUSA has established procedures which are designed to
identify and manage such conflicts. These include organisational
and administrative arrangements to safeguard the interests of
clients.
11.4 Our conflicts of interest policy sets out the actual and
potential conflicts of interest which affect our business and
details of how these are managed.
11.5 Where a conflict of interest or potential conflict of
interest exists, we shall ensure that such Proposed Transaction is
effected on terms which are not materially less favourable to you
than if the potential conflict had not existed.
12. Tape recording of
conversations
12.1 You agree that we may record telephone conversations
between us and use such recordings, or transcripts from such
recordings, as evidence in any dispute or anticipated dispute
between you and us. We may act on telephone instructions before
receipt of any written confirmation and its records of telephone
conversations shall be conclusive evidence of such instructions. We
may act on telephone instructions before receipt of any written
confirmation and our records of telephone conversations shall be
conclusive
evidence of such instructions. Any recordings or transcripts
made by us shall be and remain our sole property.
13. Confidentiality
13.1 Subject to clause 12, neither party shall disclose to any
person (unless required to do so by any applicable law or by any
regulatory or supervisory authority or by any other person entitled
by law to require disclosure, or to enable it properly to perform
its obligations under these Terms of Business), any information in
relation to the business, investments, finances or other matters of
a confidential nature of the other party of which it may in the
course of its duties or otherwise become possessed, and each party
shall use all reasonable endeavours to prevent any such
disclosure.
13.2 By entering into these Terms of Business you authorise us
to disclose such information relating to you as may be required by
any law, rule or regulatory authority, including any applicable
market rules, without your prior notice or consent.
14. Data Protection
14.1 In this Clause 14, "Data Protection Legislation" means (as
they relate to these Terms of Business) (i) the General Data
Protection Regulation (EU/2016/679) ("GDPR") and any relevant
subordinate legislation in the UK unless and until the GDPR is no
longer directly applicable in the UK, and then (ii) any successor
legislation to the Data ProtectionAct 1988. "Personal data" has the
meaning ascribed in the Data Protection Legislation.
14.2 Each party will comply with its obligations under the Data
Protection Legislation and will also provide reasonable assistance
to the other party in its compliance with its obligations under the
Data Protection Legislation.
14.3 You will ensure that you are lawfully entitled to transfer
to us all Personal Data that we receive from you and that we may
lawfully use the same for and in the performance of the Services
and these Terms of Business. You may not instruct CPUSA to delete
the Personal Data that CPUSA holds.
15. Complaints
15.1 You should inform us immediately in writing of any dispute
or complaint that you may have in relation to these Terms of
Business. We will endeavour to investigate any dispute or complaint
as soon as reasonably practicable and will notify you of the
results of its investigation. All formal complaints should be made
in writing to:
The Compliance Manager Clarkson Commodities USA LLC
1333 West Loop South,
Suite 1525,
Houston,
Texas, USA 77027
16. Assignment and
delegation
16.1 You may not assign any of your rights or delegate any of
your obligations under these Terms of Business to any person
without our prior written consent. We may not assign any of our
rights or delegate any of our obligations under these Terms of
Business to any person without your prior written consent.
17. Governing law and
jurisdiction
17.1 These Terms of Business shall be governed by and construed
under the laws of the State of New York without regard to
principles of choice of law (other than as set forth in Sections
5-1401 and 51402 of the New York General Obligations Law).
18. Notices
18.1 Any communication given or made under or in connection with
the matters contemplated by these Terms of Business shall be sent
to the usual business address of the party to whom the
communication is addressed.
18.2 Any notice shall be deemed to have been received (i) if
delivered personally or by hand, at the time of delivery (ii) if
posted, within 3 clear banking days of posting (iii) if oral,
whether by telephone or face to face, when actually given (iv) if
sent by facsimile, one hour after completion of its transmission on
a business day.