Platform Terms
Platform Usage Terms
Current Platform Terms effective as of October 1, 2020
The purpose of this notice is to clarify the nature of the trading relationship between You (the "User" or "You") and DMA LINK LIMITED ("DMALINK").
This document ("Platform Terms") sets forth the legally binding terms and conditions to which You and DMALINK are subject with respect to accessing and otherwise using the Platform (as defined below), except where the parties have executed separate legally binding terms and agreed that in writing such separate terms shall supersede Platform Terms, to govern their relationship on the matter.
Platform Terms are available in electronic format on the DMALINK website at www.dmalink.com/platformterms.
1 Definitions
In Platform Terms:
"Access Method" means the Internet, private line, virtual private network or other telecommunications facilities as well as trading interfaces, including DMALINK's front-end trading interface or those offered by your firm or third parties, or an API as described below or other method through which You directly or indirectly access the Platform.
"Affiliate" means, with respect to any Person, any other Person who directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a Person, whether through the ownership of voting securities, by contract or otherwise, and the terms "controlled" and "controlling" shall have meanings correlative thereto.
"Platform Terms" means the legally binding terms and conditions herein, as may be amended or modified from time to time, and constitutes the entire agreement between the parties with respect to the matters covered hereby and supersedes all previous written, oral or implied understandings between them with respect to such matter.
"Aggregate Data" means the trading data provided by You to the Platform or DMALINK that is (i) de-identified such that Your name and other identifying information have been removed and (ii) aggregated with similar data from at least two other Participants, in a manner that does not allow any Person (including DMALINK) to reverse engineer such data to discover that You are a source thereof.
"API" means application program interface inclusive of Java API and FIX gateway or other means.
"Business Hours" means any time between Sunday at 17:00 (EST) and Friday at 17:00 (EST), but shall exclude between: (i) 17:00 (EST) on Christmas Eve and 17:00 (EST) on Christmas Day; (ii) 17:00 (EST) on New Year's Eve and 17:00 (EST) on New Year's Day; or (iii) such other dates and times as communicated to You from time to time in writing by DMALINK.
"Conditions of Acceptance" has the meaning stipulated under clause 15(a).
"CCP" means a central counterparty clearing entity, which has agreed to intermediate and clear transactions entered into by You using the Platform.
"Credentials" means the login details including, without limitation, all security identification codes and passwords provided by (i) DMALINK to Participants or Sponsors for their use or for use by their clients; or (ii) by You to DMALINK
"Credit Limits" means the lines and conditions of credit for Your trading activities satisfying the applicable Conditions of Acceptance (including, without limitation, the permissible currencies, tenor, net open settlement or position limits and any other relevant limits and parameters) that are allocated or removed from time to time by the CCP, in its sole discretion.
"Currency" means the legal tender issued by and acceptable for the payment of obligations under the laws of a country.
"Currency Pair" means the two currencies that comprise a foreign Currency transaction.
"Data" means all data and other information generated by the Platform and/or otherwise provided to You by DMALINK or provided by You to DMALINK hereunder, including without limitation, information regarding bids, offers, pricing, mid-rates, volume, spreads, trading volume, block trades and liquidity.
"DMALINK Party" means DMALINK LINK LIMITED, its Affiliates, and their respective Representatives.
"ECP" means an "eligible counterparty" or "professional clients" as defined in the Financial Conduct Authority Handbook, and as amended by the relevant Governmental Authority from time to time.
"EST" means US Eastern Standard Time.
"Existing Technology" means the software and IP Rights owned or licensed by DMALINK or any Affiliate of DMALINK, in connection with which the Platform has been developed, used or operated by DMALINK.
"Fees" has the meaning stipulated in Clause 11.
"Governmental Authority" means any national, federal, state, provincial, county, municipal or local government, foreign or domestic, or the government of any political subdivision of any of the foregoing, or any entity, authority, agency, ministry or other similar body exercising executive, legislative, judicial, regulatory or administrative authority or functions of or pertaining to government, including any authority or other quasi-governmental entity established to perform any of such functions.
"Invalid Trades" has the meaning stipulated in Clause 15(b).
"IP Rights" has the meaning stipulated in Clause 16.
"Law" means all applicable laws, rules, regulations, judgments, decrees, treaties, ordinances, orders and rulings, of any Governmental Authority or self-regulatory organization, authority, agency or body, in each case which has jurisdiction over DMALINK, the User, or their respective operations.
"Off Market Transaction" means a transaction executed at a rate or price which differs from the prevailing market rate or price at such time.
"Participant" means a party transacting on the platform that has (i) signed a platform agreement with DMALINK; or (ii) been informed that transactions on the platform are subject to these Platform Terms; or (iii) has been permitted by the CCP to transact on the platform pursuant to agreed terms between the CCP and such party or the party’s prime broker or central clearer
"Permitted Trading Terms" means any permitted currencies, products, maximum tenors or credit limits relating to You, as added, amended or removed by the CCP at any time with or without notice.
"Person" means an individual, partnership, limited partnership, corporation, limited liability company, joint stock company, unincorporated organization or association, trust or joint venture, or a Governmental Authority or political subdivision thereof.
"Trading Data" means the information relating to transactions entered by You through use of the Platform.
"Platform" means the DMALINK trading platform, accessible via the internet and/or telecommunications networks and through a front-end trading or graphical user interface or API that enables select financial institutions, either directly or through an authorised third party, to enter spot foreign currency transactions.
"Platform Procedures" means the procedures relating to trading on the Platform as amended from time to time by DMALINK and available at http://www.dmalink.com/procedures.
"Representatives" means a Person's officers, directors, members, managers, employees and agents.
"Sponsor" means each of the financial institutions that has entered, or will enter, into a written agreement (or the equivalent thereof in whatever form, including, without limitation, Platform Terms or agreements designated as "price provider agreements" or "prime broker agreements" or "designation notice" or "taker/maker") with DMALINK with respect to the use of the Platform by such financial institution and certain authorised Third Party Users.
"Spread" means the difference between the "bid" and "ask" of any transaction.
"Term" has the meaning ascribed thereto in Clause 6.
"Third Party Providers" means third party licensors that have provided services to DMALINK relating to the Platform, including but not limited to the CCP.
"Third Party User" means (i) a third party that is not an Affiliate of a Sponsor which has been authorised to trade in the name of such Sponsor on the Platform for the purpose of effecting back-to-back transactions between such third party's customers (each, a "prime brokerage customer") and the Sponsor, but only where each such prime brokerage customer is an ECP, or (ii) a client of a Sponsor, which client is an ECP, that is authorised to effect transactions on the Platform by the Sponsor without using the services of a third party.
"Unmatched Transaction" means a transaction entered into between you and the CCP (the "Original Trade") that the Platform has not matched between the CCP and another Participant (with the identical amount of currency purchased/sold under the Original Trade), within eight (8) Business Hours of the Original Trade being executed.
"You" means the Person (i) accessing the platform; or (ii) who is a user of, or participant, on the platform.
In Platform Terms (a) section, clause and paragraph headings shall not affect the interpretation of the terms of Platform Terms; (b) unless the context otherwise requires, words in the singular shall include the plural and, in the plural, shall include the singular; (c) reference to notice or notifications shall not include written notice, unless otherwise expressed; (d) any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2 Grant of licence. Subject to Your compliance with the Platform Terms and the Platform Procedures, You are granted a limited, revocable, non-exclusive, non-transferable license ("License") to access and use the Access Method and the Platform during the Term, for purposes and in a manner consistent with the Platform Terms and the Platform Procedures.
3 Service Level. DMALINK shall use commercially reasonable efforts to operate the Platform without introducing any errors.
4 Access Method. Your access to, and Your use of, the Access Method and the Platform, and DMALINK's provision thereof, are expressly subject to the (i) Platform Terms and (ii) Platform Procedures. In the event of any inconsistency between the main provisions of Platform Terms, the Platform Procedures or any other arrangements entered into between You and DMALINK, the main provisions of Platform Terms shall prevail. You agree to not make use of the Platform or the Access Method (by remote means or otherwise), and DMALINK agrees not to make the Platform available, in a manner that would violate the Law.
5 Platform Procedures. You shall comply with the Platform Procedures at all times. DMALINK shall have the right, at any time, to amend the provisions of the Platform Procedures upon thirty (30) calendar days' prior written notice to You; provided, however, that any amendment to the Platform Procedures may be made effective immediately, where appropriate in DMALINK's sole determination, (i) to permit the Access Method, the Platform and/or DMALINK to comply with the Law; or (ii) to facilitate the continued and proper operation of the Access Method or the Platform without performance interruption or degradation; and provided further that any such amendment to the Platform Procedures which purports to amend or modify the main provisions of Platform Terms shall be deemed null and void.
6 Term and Termination. By using the Access Method and the Platform, you expressly agree, without condition, with the Platform Terms. The term (the "Term") of the Platform Terms shall commence and your acceptance of Platform Terms shall be deemed to be automatically renewed upon every use of the Access Method or upon any Data being received or submitted by You via the Platform. If You do not agree to be, or continue to be, legally bound by the Platform Terms (the “Termination”), You must (i) not use the Access Method or the Platform; and (ii) immediately discontinue and cease the use of the Access Method and the Platform; and (iii) notify DMALINK of the Termination in writing providing a notice of at least five (5) calendar days prior to the effective termination of these terms. Logging out of, disconnecting from, removing access to, suspending access to, or discontinuing the use of the Platform shall not affect your obligations to settle transactions effected prior to the Termination and shall not prejudice any right or obligation that may already have arisen. DMALINK and You agree and acknowledge that You have not affixed any signature to the Platform Terms. Each party confirms and procures to the other party that it will not at any time challenge or dispute the existence of a transaction on the basis that such transaction has been confirmed electronically and has no signature affixed thereto. DMALINK and You further agree that a printout of the confirmation or the electronic record available on the DMALINK systems is adequate and sufficient evidence of the existence of a transaction and the terms thereof.
7 Data. You shall not alter, derive, modify or manipulate the content of the Data in any way, except for Your and Your Affiliates' internal use for research and analysis purposes. You shall not use the Access Method or the Data for any purpose other than in connection with trading on the Platform and research and analysis. You also shall not publish or redistribute the Data, or otherwise directly or indirectly provide any third party that is not your Affiliate with access to the Data (or any data or information derived from the Data) or the Access Method; provided, however, that the foregoing does not restrict You from providing the Data to Your prime brokerage customers (if any) for the sole purpose of facilitating trading on the Platform. You agree that DMALINK shall own all Data, including without limitation, any right associated therewith.
8 Suspension or Limitation. (a) Notwithstanding any other provision of the Platform Terms, You acknowledge that DMALINK shall have the right to restrict Your access to, or to impose limits, suspend Your trading or transactions on, the Platform, either generally or in respect of specific Currency Pairs, transactions or Participants, or to discontinue transmitting any or all information, or to refuse to facilitate or process any or all transactions, if in DMALINK's reasonable determination any of the following circumstances occurs: (i) Full or partial Access Method or Platform failure, including failure of the technology constituting the Access Method or the Platform or any of the communications links within the Platform or between the Platform or the Access Method and any Sponsor, Participant, User or Third Party User, or any other circumstance where it is not practicable for DMALINK to provide the Access Method or the Platform; (ii)A breach in the security of the Access Method or the Platform; (iii) A material breach by You of your obligations under the Platform Terms or of the Platform Procedures; (iv) In order to comply with any Law; or (v) If market conditions generally, or conditions with respect to a particular Currency Pair or Currency, render it necessary or desirable, in DMALINK's sole determination, to do so; (b) DMALINK shall provide notice to You of any such suspension as soon as reasonably practicable. Any actions taken by DMALINK pursuant to this Clause 8 shall continue for such time as DMALINK shall reasonably determine to be necessary or desirable.
9 Control of the Platform. You acknowledge that DMALINK shall have sole discretion and control over, and the right to modify at any time, the Access Method's and the Platform's functionality, configuration, appearance and content, including without limitation: (i) the parameters and protocols by which Data is published; and (ii) the parameters and protocols by which orders are placed, routed, matched or otherwise processed by the Platform; and (iii) the availability of the Access Method and the availability of the Platform to any Participant or with respect to particular Currency Pairs or transactions at any particular place, time or location.
10 Transmission of Information. In connection with Your use of the Platform, the operation of the Platform (including the matching of bids and offers submitted to the Platform by the Sponsor or by You and the formation of transactions with respect thereto) shall be based on (i) all bids, offers, orders, commands and other input information submitted by a Sponsor or Participant or You and accompanied by or utilising valid Credentials, in the form in which such information is received by the Platform; and (ii) transaction confirmations sent to the Sponsor or Participant or You by the Platform reflecting transactions based on information received from the Sponsor or Participant or You accompanied by or utilising valid Credentials, in the form in which such confirmations are sent out by the Platform; in each case regardless of whether or not (A) such bids, offers, other orders or commands or other input information were authorised by the Sponsor or Participant or You; (B) such information had been altered or corrupted (electronically or otherwise) prior to reaching the Platform; and (C) such transaction confirmations are altered or corrupted (electronically or otherwise) after being transmitted from the Platform. Other than information made generally available to all Participants of the Platform, You shall have access only to information about the trades that You execute, or enter into, using the Platform. You acknowledge that neither DMALINK nor any Sponsor shall have any duty to verify whether any information submitted to the Platform accompanied by valid Credentials issued to any Sponsor or Participant or by You was authorised by the Sponsor or Participant or by You as the case may be. You shall be bound by any bids, offers, orders, commands and other input information You submit to the Platform that are accompanied by, or utilising, Your valid Credentials, except to the extent Your Credentials are disclosed to unauthorised Persons as a result of DMALINK's negligence or wilful misconduct. You acknowledge that neither the DMALINK Parties nor any Sponsor shall be responsible for any loss, corruption or modification of information submitted to or sent by the Platform, except to the extent that DMALINK has committed gross negligence or engaged in wilful misconduct with respect thereto. Each Sponsor is an express third-party beneficiary of this Clause 10. For avoidance of doubt, DMALINK are not obligated to accept bids, offers, orders, commands and other information submitted by or against You (including transactions effected on terms other than as ordered or submitted by You), unless it appears on DMALINK's FIX or other DMALINK computer communication logs between You and DMALINK.
11 Fees. DMALINK may charge User a mark-up that will be included in the price spread. From time to time DMALINK may invoice User for its trading activity on the Platform. User shall pay DMALINK without delay, deduction or setoff, Fees as stipulated at http://www.dmalink.com/fees, or as notified in writing by DMALINK from time to time. DMALINK may modify these Fees upon thirty (30) calendar days' prior written notice. You shall be solely responsible for all taxes, levies or charges imposed by any Governmental Authority of any kind whatsoever with respect to your trading and/or the Fees paid to or owing with respect to the transactions executed by You via the Platform. All fees quoted and payments made hereunder shall be in U.S. Dollars and will be billed to User monthly. All fees are non-refundable and non-creditable. You shall be solely responsible for all taxes, levies or charges imposed by any Government Authority of any kind whatsoever with respect to Your trading and any Fees paid or owing by You with respect to the Transactions executed via the Platform.
12 No Obligation to Maintain Records and Report. You acknowledge that DMALINK has no obligation to maintain or retain, and shall not be responsible for maintaining or retaining, any records of transactions between You and your customers, if applicable. DMALINK shall generally maintain and retain records of transactions made over the Platform as may be required by applicable Governmental Authorities or in accordance with DMALINK's internal procedures. For the avoidance of doubt, DMALINK shall have no obligation to report any transaction on your behalf for the purposes of the European Markets Infrastructure Regulation, the Markets in Financial Instruments Directive or Dodd Frank.
13 Credentials and Security. The party receiving Credentials (the "Receiving Party") shall keep confidential any Credentials that are provided by the party such Credentials (the "Issuing Party"). The Receiving Party shall promptly notify the Issuing Party as soon as the Receiving Party becomes aware of any unauthorised use or misuse of the Platform or the Credentials by any Person. Upon receipt of such notice from You, or if DMALINK believes that any Person is breaching the Platform's security, using the Platform without due authority, or using the Platform in a manner that is not in the best interests of the participants therein generally, or otherwise misusing the Platform, DMALINK shall have the right (but not the obligation except where DMALINK is the Receiving Party), in its sole discretion, to take any action as it may deem necessary to prevent such Person from accessing or using the Platform until such time as (in DMALINK's and the Issuing Party's reasonable determination) such breach, unauthorised use or misuse is no longer continuing or will no longer continue. You shall take all measures reasonable under the circumstances to rectify such breach, use, unauthorised use, or misuse, whether requested by DMALINK or not, including immediately ceasing to access or use the Platform. The DMALINK Parties shall use commercially reasonable efforts, consistent with prevailing industry standards, to maintain Platform security.
14 Risk of Transactions. You acknowledge that You have been informed, understand and agree that (a) DMALINK shall not, directly or indirectly, be a principal to any transaction or be responsible for, or otherwise guarantee, the performance of any transaction entered into by You via the Platform, and no DMALINK Party shall have any liability to You or any other Person for any transaction executed via the Platform and You agree that You may not and You shall not proceed against any DMALINK Party to collect or recover any amounts owed to You or to enforce any of your rights in connection with, or as a result of, such transaction; (b) Service provided by DMALINK in connection with the Platform, the Access Method, or otherwise, shall not give rise to any fiduciary or equitable duties on the part of DMALINK; (c) DMALINK may receive fees from more than one Sponsor and/or other third party in respect of any particular transaction executed through the Platform; and (d) the submitting or posting of any information to or on the Platform by a DMALINK Party shall not be deemed to be a recommendation by any such Person that You should enter into any particular transaction or that any particular transaction is suitable or appropriate for You.
15 Trading Conditions. (a) DMALINK shall operate, in accordance with the Platform Terms and the Platform Procedures, the Platform to facilitate the matching of transactions between Participants and clearing by the CCP; provided, however, that (i) each component transaction complies with all applicable Credit Limits; (ii) each component transaction is either with You or your prime broker; (iii) such transaction (and each component transaction) complies with all Laws; (iv) DMALINK receives transaction confirmation within 1000 millisecond (l000ms), or any other time period agreed in writing between You and DMALINK from time to time, such time difference to be solely established based on DMALINK's timestamps and such confirmation appears on DMALINK's FIX or other DMALINK computer communication logs between You and DMALINK; (v) the material terms of such matched transaction are promptly communicated to the CCP and the material terms of each component transaction are promptly communicated to the relevant Participant or your prime broker, as applicable; and (vi) You or your prime broker, as applicable, with respect to each component transaction shall have irrevocably committed to the material terms of such component transaction and all conditions precedent under the Platform Terms, as applicable, for such component transaction to be binding on You or your prime broker shall have been satisfied other than delivery of a notice of execution by DMALINK or acceptance of such component transaction by the CCP (the conditions set forth in Clauses (i) through (vi) collectively, "Conditions of Acceptance"); (b) the parties agree that, notwithstanding any provision to the contrary in Platform Terms, DMALINK may amend or reject any transaction or refuse to perform any obligation under Platform Terms in the event that (i) such performance shall be contrary to the Law; (ii) such transaction does not comply with the Conditions of Acceptance; (iii) such transaction is an Off-Market Transaction; (iv) such transaction is an Unmatched Transaction; (v) your prime broker rejects, amends, challenges the validity of, or cancels a leg of a transaction entered into using the Platform; (vi) if the CCP would be subject to a transaction with You without being subject to an equal but offsetting transaction with such other Participant or Sponsor; and/or (vii) such transaction was not entered into in accordance with the Permitted Trading Terms (the conditions set forth in Clauses (i) through (vi) collectively, "Invalid Trades").
16 Intellectual Property Rights. You acknowledge and agree that DMALINK is the sole owner (except to the extent owned by Third Party Providers and except to the limited extent licensed by DMALINK to Participants, Sponsors and the Sponsor's clients, including, without limitation, the limited license stipulated in Clause 2) of all right, title and interest (collectively, the "IP Rights") in and to the Access Method the Platform, the Data produced by and distributed by or through the Platform and/or the Access Method, and each component thereof, and all intellectual property and proprietary rights with respect thereto, including, without limitation, patent, copyright, trade secret, trademark and other proprietary rights, in and to the Platform and each component thereof, and to all modifications, including custom modifications, to the Platform and each component thereof, whether made by or with the assistance of You or any other Person, and any know-how, techniques, methodologies, equipment or processes used by DMALINK, the look and feel of the Access Method and the Platform and each component thereof, and all of DMALINK's Access Methods, all software (front-end and back-end), all registered trademarks, trademark applications, trademarks and service marks, trade names, URL registrations and all pricing information and other Data. You shall not obtain any intellectual property rights in or to the technology of the Platform. You shall take all steps necessary to maintain the confidentiality of all documents and material provided by DMALINK, its Affiliates or Third-Party Providers with respect to the Platform and each component thereof. You shall not (i) alter, maintain, enhance or otherwise modify the Access Method or the Platform; (ii) disassemble, decompile or reverse-engineer the Access Method or the Platform; nor (iii) otherwise take express action to discover the equivalent of the Access Method or the Platform. DMALINK is the sole owner of the Aggregate Data and reserves the right to manipulate, use, license (to Affiliates of DMALINK and to other Persons) and sublicense the Aggregate Data, in its sole discretion.
17 Confidentiality. (a) Each party shall keep confidential all Confidential Information (as defined below) of the other party or the other party's Affiliates both during the term and after termination of Platform Terms. Each party may disclose Confidential Information to its professional advisers but otherwise may only disclose Confidential Information to those of its and its Affiliates' employees and representatives who need to know such Confidential Information for the purposes of exercising or performing the rights and obligations under Platform Terms and have been informed of the confidential nature of the Confidential Information divulged. No party will disclose Confidential Information to any third party except as otherwise permitted under Platform Terms; (b) For the purposes of this Clause 17, "Confidential Information" shall mean all non-public information that is stated to be or that can reasonably expected to be of a confidential or trade secret nature in any form obtained by a party from the other party in the performance of Platform Terms including, but not limited to, any processes, financial information or data, proprietary data, information or documents and Platform Terms, all information regarding the Platform and the Fees save to the extent that such information: (i) is already in the public domain at the time of disclosure; (ii) enters the public domain other than by a breach of any obligation of confidentiality; or (iii) is required to be disclosed by reason of Law provided that, where permitted by such law or regulation, prior notice of such disclosure shall be provided to the non-disclosing party as soon as practicable in order to permit the non-disclosing party to seek a protective order or take other appropriate action to safeguard the Confidential Information.
18 Representations and Warranties. As of the date hereof each party represents and warrants, and at all times during the Term shall be deemed to be continuously representing and warranting, that (a) such party is duly organized and validly existing under the applicable laws of the jurisdiction of its organization or formation, such party's acceptance of Platform Terms, and with respect to the User, all transactions contemplated hereunder and the performance of all obligations contemplated hereunder have been duly authorised by all necessary action of the User, and any transaction contemplated hereby on the User's behalf has been duly authorised by the User to do so; (b) Platform Terms constitute such party's legal, valid and binding obligation, enforceable against such party in accordance with its terms; and (c) such party's acceptance of and performance of Platform Terms, and its provision, access and use (as applicable) of the Platform and the Access Method, does not and shall not violate the Law, the Platform Procedures, or any agreement by which such party is bound.
19 DISCLAIMERS AND LIMITATION OF LIABILITY. (a) EXCEPT AS PROVIDED IN THE PLATFORM TERMS, YOU UNDERSTAND AND AGREE THAT THE ACCESS METHOD, THE PLATFORM, ITS COMPONENTS, INTERFACES, ANY RELATED EQUIPMENT, ANY DOCUMENTATION, DATA AND OTHER MATERIALS AND THE EXISTING TECHNOLOGY ARE PROVIDED "AS IS" AND "AS AVAILABLE". DMALINK MAKES NO WARRANTY THAT THE PLATFORM WILL BE UNINTERRUPTED, ERROR FREE OR AVAILABLE AT ALL TIMES, NO WARRANTY OF CORRECTNESS, QUALITY, ACCURACY, SECURITY, COMPLETENESS, RELIABILITY, PERFORMANCE, TIMELINESS, PRICING, OR CONTINUED AVAILABILITY OF THE PLATFORM, NOR DOES DMALINK WARRANT THAT THE PLATFORM WILL REMAIN COMPATIBLE WITH, OR OPERATE WITHOUT INTERRUPTION ON, ANY EQUIPMENT PROVIDED BY USER. NOTWITHSTANDING ANYTHING IN PLATFORM TERMS TO THE CONTRARY, USER ACKNOWLEDGES AND AGREES THAT TECHNICAL PROBLEMS MAY PREVENT DMALINK FROM PROVIDING ALL OR PART OF THE PLATFORM. DMALINK SHALL NOT BE LIABLE SHOULD QUOTING ERRORS ON THE PLATFORM OCCUR, INCLUDING BUT NOT LIMITED TO, A WRONG BIG FIGURE QUOTE OR AN ERRONEOUS QUOTE THAT IS NOT REPRESENTATIVE OF FAIR MARKET PRICES. IN NO EVENT SHALL DMALINK BE LIABLE HEREUNDER TO USER OR ANY THIRD PARTY FOR ANY DAMAGES OR LOSS RESULTING FROM THE ACTIONS OR INACTIONS OF OTHER USERS, FROM TECHNICAL PROBLEMS AND/OR OTHER PROBLEMS OR FAILURES BEYOND DMALINK'S DIRECT CONTROL; (b) EXCEPT AS PROVIDED IN THE PLATFORM TERMS, THE DMALINK PARTIES AND ANY THIRD PARTY PROVIDERS, SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT (EXCEPT TO THE EXTENT EXPRESSLY SET FORTH IN SECTION 19 HEREOF) OR THOSE WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. THE DMALINK PARTIES AND ANY THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION ON THE ACCESS METHOD OR THE PLATFORM OR AS TO THE RESULTS TO BE ATTAINED BY YOU FROM ACCESS TO OR USE OF THE ACCESS METHOD OR THE PLATFORM. THE DMALINK PARTIES MAKE NO WARRANTIES AS TO THE LIFE OF ANY URL GENERATED OR PUBLISHED. YOU ACKNOWLEDGE THAT CERTAIN SOFTWARE AND EQUIPMENT USED BY YOU MAY NOT BE CAPABLE OF SUPPORTING CERTAIN FEATURES OF THE ACCESS METHOD OR THE PLATFORM; (c) YOU HEREBY ACKNOWLEDGE THAT YOU HAVE NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY THE DMALINK PARTIES AND ANY THIRD-PARTY PROVIDERS EXCEPT AS SPECIFICALLY SETFORTH IN PLATFORM TERMS. NONE OF THE DMALINK PARTIES OR THIRD-PARTY PROVIDERS RECOMMENDS, ENDORSES, ADVOCATES OR SPONSORS ANY OF THE CURRENCIES, CURRENCY PAIRS OR FOREIGN CURRENCY TRANSACTIONS APPEARING ON OR MADE THROUGH THE ACCESS METHOD OR THE PLATFORM. YOU ACKNOWLEDGE THE SUBSTANTIAL RISKS ASSOCIATED WITH FOREIGN EXCHANGE MARKETS AND TRADING TRANSACTIONS; (d) EXCEPT WITH RESPECT TO THE PARTIES' INDEMNIFICATION OBLIGATIONS HEREUNDER, AND EXCEPT WITH RESPECT TO DAMAGES ARISING OUT OF A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS AND ITS OBLIGATIONS UNDER PLATFORM TERMS HEREUNDER, ITS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 18ABOVE, OR ITS GROSS NEGLIGENCE OR WILFUL MISCONDUCT (ALL OF THE FOREGOING EXCEPTIONS, THE "EXCLUDED LIABILITIES"), NEITHER PARTY SHALL HAVE LIABILITY FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, LOST DATA, LOSS OF USE OF THE PLATFORM, BUSINESS INTERRUPTION, LOSS OF BUSINESS REPUTATION OR GOODWILL, COSTS OF SUBSTITUTE SERVICES, OR DOWNTIME COSTS) SUFFERED BY THE OTHER PARTY, ITS AFFILIATES AND ANY OTHER PERSON, EVEN IF SUCH PARTY HAS OR HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE; (e) NOTWITHSTANDING ANY OTHER PROVISION OF PLATFORM TERMS, EXCEPT FOR THE EXCLUDED LIABILITIES, THE AGGREGATE LIABILITY OF THE DMALINK PARTIES AND ANY THIRD PARTY PROVIDER FOR DAMAGES FOR ANY CAUSE WHATSOEVER RELATING TO OR ARISING OUT OF PLATFORM TERMS OR THE PLATFORM, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE GREATER OF (i) $10,000 AND (ii) SIX TIMES THE FEES PAID BY YOU (OR IF NO FEES ARE PAID, THEN THE SPREAD GENERATED BY DMALINK FROM YOUR TRADING) IN THE MONTH PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM; (f) THE DMALINK PARTIES AND ANY THIRD PARTY PROVIDER SHALL HAVE NO LIABILITY TO YOU OR TO ANY SPONSOR OR PARTICIPANT IN CONNECTION WITH THE FAILURE BY ANY OTHER PARTICIPANT OR SPONSOR TO PERFORM ANY TRANSACTION EXECUTED VIA THE PLATFORM OR THE FAILURE OF ANY OTHER SPONSOR OR PARTICIPANT TO COMPLY WITH THE PLATFORM PROCEDURES OR PLATFORM TERMS OR ITS AGREEMENTS WITH DMALINK REGARDING ACCESS TO OR USE OF THE ACCESS METHOD OR THE PLATFORM; (g) THE PARTIES HERETO ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION 19 ARE INTEGRAL TO THE AMOUNT OF FEES LEVIED BY THE PLATFORM, AND THAT, WERE THE DMALINK PARTIES TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS EXPRESSLY SET FORTH HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SUBSTANTIALLY HIGHER.
20 Indemnification. (a) You agree to defend, hold harmless and indemnify the DMALINK Parties from and against any claim, suit or proceeding brought by a third party against any DMALINK Party to the extent that it is based on a claim arising, directly out of your use of the Platform and/or the Access Method (including but not limited to Invalid Trades), to the extent such claim is not based upon the breach of Platform Terms by a DMALINK Party or a DMALINK Party's gross negligence or wilful misconduct (each, a "User Covered Proceeding"), and You shall pay all costs incurred by and damages (including reasonable attorneys' fees and disbursements) awarded against an DMALINK Party. DMALINK shall promptly notify you in writing of any claim, suit or proceeding that You may have obligations with respect to under this Clause 20(a); provided, however, that any failure of DMALINK to provide prompt written notice pursuant to this Clause 20(a) shall excuse You only to the extent that You are prejudiced thereby. DMALINK shall reasonably cooperate with You with regard to the defence of any User Covered Proceeding or threatened User Covered Proceeding; (b) DMALINK agrees to defend, hold harmless and indemnify the User, its Affiliates, and their respective Representatives (collectively, the "User Parties") from and against any claim, suit or proceeding brought by a third party to the extent that it is based on an allegation that the Platform or the use thereof in accordance with Platform Terms infringes or misappropriates a third party's intellectual property or other proprietary right (each, a "IP Covered Proceeding"), and DMALINK shall pay all costs incurred by and damages (including reasonable attorneys' fees and disbursements) awarded against a User Party.
You shall promptly notify DMALINK in writing of any claim, suit or proceeding that DMALINK may have obligations with respect to under this clause (b); provided, however, that any failure by You to provide prompt written notice pursuant to this Clause 20(b) shall excuse DMALINK only to the extent that DMALINK is prejudiced thereby. You shall reasonably cooperate with DMALINK with regard to the defence of any IP Covered Proceeding or threatened IP Covered Proceeding.
21 Assignment. Except as set forth in this Clause 21, neither party shall assign its rights or obligations under Platform Terms in any manner without the prior, written consent of the other, and any attempted assignment in violation of this Clause 21 shall be null and void. Each party may assign all of its rights and obligations under Platform Terms to its Affiliate or to another Person in connection with the transfer of all or part of such party's assets or business to a third-party. Except as set forth in Clauses 10 and 19, Platform Terms shall be for the sole benefit of the parties to this Platform Terms and their respective successors, permitted assigns and legal representatives and is not intended, nor shall it be construed, to give any other Person (other than the parties hereto), any legal or equitable right, remedy or claim hereunder.
22 Service providers. You acknowledge and agree that DMALINK may engage Third Party Providers in order to deliver and service the Platform. Unless otherwise expressly stated, You shall not have any direct contractual relationship with or enjoy any rights against any such Third-Party Provider.
23 Independent Contractors. The parties to Platform Terms are independent contractors. Neither party is an agent, representative or partner of the other party. Neither party shall have any right, power or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other party. Platform Terms shall not be interpreted or construed to create an association, agency, joint venture or partnership between the parties or to impose any liability attributable to such a relationship upon either party.
24 Amendments and Modification; Waiver. The terms of Platform Terms may be amended (i) by DMALINK at its sole discretion by giving at least thirty (30) days’ notice; or (ii) at any time, with immediate effect, by written notice of DMALINK to You if such amendment is required to comply with any Law or the requirements of any Governmental Authority or with the rules of exchange or clearing houses. No failure or delay by either Party in exercising any right, power or remedy hereunder shall operate as a waiver of such right, power or remedy.
25 Severability. The invalidity of any portion hereof shall not affect the validity, force or effect of the remaining portions hereof. If it is ever held that any restriction hereunder is too broad to permit enforcement of such restriction to its fullest extent, such restriction shall be enforced to the maximum extent permitted by law.
26 Time of the Essence. Time shall be of the essence with respect to any payment, delivery or other obligation you may have under Platform Terms.
27 Counterpart. Platform Terms (and each amendment, modification and waiver in respect of it) may be communicated in any number of counterparts, each of which, shall constitute a duplicate original, but all the counterparts shall together constitute the one Platform Terms.
28 Notice. Any notice required or permitted to be given in connection with Platform Terms by either party shall be deemed to have been delivered to the other party (a) if personally delivered, at the time of delivery; (b) if sent by registered post, five (5) Business Days after the date of posting; (c) if sent by overnight courier, the next Business Day; or (d) if sent by email, two hours after being sent provided that no failed delivery message has been received. Communications received by a party outside normal working hours (being 09:00 to 18:00 on any Business Day) shall be regarded as being received at 09:00 on the following Business Day. For the purposes of this Clause 28, "Business Day" shall mean a day other than Saturday, Sunday, bank holiday or public holiday in the City of London.
29 Governing Law. Platform Terms are governed by the law of England and Wales, and are subject to the exclusive jurisdiction of the courts of England and Wales.
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