Membership Agreement

Parties

(1) LFEX LIMITED
(2) The Member as documented on the LFEX Membership Application Form

Background

(A) This agreement (“Agreement”) sets out the terms and conditions that will govern the use and access by a firm using the Trading Platform (“LFEX TRADING PLATFORM”) operated by LFEX Limited in the event that the firm’s application to become a member (“Member”) of LFEX TRADING PLATFORM is accepted by LFEX. Such acceptance will follow satisfactory completion and submission of the LFEX TRADING PLATFORM Membership Application Form (“Application Form”). This Agreement will come into effect when LFEX accepts the firm’s application to become a Member.

(B) By registering for an account the Member agrees to the terms set out below.

(C) The Member’s access to LFEX TRADING PLATFORM is at all times subject to and governed by the rules of LFEX TRADING PLATFORM (the “LFEX TRADING PLATFORM Rules”). Capitalised terms used but not defined in this Agreement are as defined in the LFEX TRADING PLATFORM Rules.

(D) Both the Member and LFEX are also referred to herein individually as a “Party” and together as “Parties”.

1.1 The Member acknowledges that access to LFEX TRADING PLATFORM is provided equally to each other member of LFEX TRADING PLATFORM and LFEX has no level of responsibility to any one person (including the Member) over any other Member.

2.1 LFEX hereby grants the Member a revocable, non-exclusive, non-transferable licence to access and use LFEX TRADING PLATFORM during the term of the Member’s participation for its own business solely in accordance with the provisions of this Agreement and the LFEX TRADING PLATFORM Rules.

3.1 The Member will, at its own cost and expense, provide all equipment, operating platforms, and software (other than the software provided by LFEX) to use LFEX TRADING PLATFORM. Any minimum standards and requirements for such equipment, operating platforms, and software will be communicated to the Member prior to the Member being activated on LFEX TRADING PLATFORM. The Member will also provide, at its own cost and expense, all connections from its own computer systems to LFEX TRADING PLATFORM, and subject to Clause 6 (Indemnity and exclusion of liability), LFEX will have no liability for any such equipment or connections, nor any liability for any damage thereto. In addition, the Member shall pay or reimburse to LFEX all connection and testing costs and expenses incurred by LFEX as set out in the Fee Schedule and/or otherwise reasonably incurred.

3.2 Subject to the terms of this Agreement and the LFEX TRADING PLATFORM Rules, LFEX shall use reasonable efforts to make available, operate and maintain LFEX TRADING PLATFORM during the term of this Agreement and to permit the Member to access and use LFEX TRADING PLATFORM in accordance with this Agreement and the LFEX TRADING PLATFORM Rules.

3.3 LFEX shall use reasonable efforts promptly to notify the Member of any difficulties experienced by LFEX or other Members with respect to their access to or use of LFEX TRADING PLATFORM, but only to the extent that LFEX is aware of such difficulties and reasonably determines that they are material to the Member’s access to or use of LFEX TRADING PLATFORM. LFEX shall have no obligation to verify, correct, complete or update any information displayed on LFEX TRADING PLATFORM from time to time except where LFEX is the author of such information as set out in Clause 4.1 (Intellectual Property Rights) below.

3.4 LFEX shall have no obligation to provide access to LFEX TRADING PLATFORM, unless the Member has in place satisfactory communications facilities with LFEX TRADING PLATFORM.

3.5 If LFEX considers that the Member’s access to LFEX TRADING PLATFORM is causing, or is likely to cause, technical problems for LFEX TRADING PLATFORM or interference with the access to LFEX TRADING PLATFORM of other Members, then LFEX may suspend the Member’s access to LFEX TRADING PLATFORM without notice.

4.1 Intellectual Property Rights

All Intellectual Property Rights (as defined in the Annex to this Agreement) in and related to:

• (a) LFEX TRADING PLATFORM; and
• (b) any data (including without limitation bids, offers, prices, executions and volumes of transactions on LFEX TRADING PLATFORM, but excluding Member Information as defined in Clause 4.2 (Member Information) below), analytics, research or other information contained in, displayed on or generated by the operation of LFEX TRADING PLATFORM (collectively the “Information”) shall be or remain, as between the Parties, the exclusive property of LFEX,

and the Member shall not obtain any Intellectual Property Rights in or to LFEX TRADING PLATFORM or the Information except as expressly set out in this Agreement.

4.2 Member Information

4.2.1 Without limiting the scope of Clause 4.1 (Intellectual Property Rights) the Member acknowledges and agrees that LFEX shall be permitted, and the Member grants LFEX a non-exclusive, perpetual, royalty-free licence (without warranties of any kind, express or implied), directly and through agents or contractors, to use, distribute, sub-license, disclose and sell for LFEX’s own benefit all order data, price, volume and other information regarding the Member’s transactions (“Member Information”). Subject to the foregoing licence, as between LFEX and the Member, the Member retains all ownership and Intellectual Property Rights with respect to the Member Information.

4.2.2 Members may choose to be ‘public’ on LFEX TRADING PLATFORM, in which case their name and contact details will be available to other members on LFEX TRADING PLATFORM for the purposes of accessing or publishing pricing and order data and completing transactions with other members. It is the Member’s responsibility to manage this disclosure process and select those members (or classes of members) with whom they wish to share data and those with whom they do not wish to share data. The purpose of this clause is to ensure all members can clearly identify trading counterparties, as well as to enable members generally to access new counterparties on the platform. The Member agrees that provision of this information in this form will not be in breach of Clauses 10 or 11 (Confidentiality or Data Protection) by LFEX.

4.2.3 LFEX agrees that it will not, without the prior written consent of the Member, and except as reasonably necessary to operate LFEX TRADING PLATFORM as contemplated in this Agreement:

• (a) use in advertising, publicity, marketing or other promotional materials or activities, the name, trade name, trademark, trade device, service mark or symbol, or any abbreviation, contraction or simulation thereof, of the Member, its affiliates or their respective partners or employees; or
• (b) represent, directly or indirectly, that any product or any service provided by LFEX has been approved or endorsed by the Member.
  This provision shall survive termination of the Agreement.

4.3 Use of Information and Intellectual Property Rights

The Member shall not sell, lease, license, transfer, provide or otherwise make available to any third party any form of access to or the use of the Information (whether through written, electronic or other means) of LFEX TRADING PLATFORM (whether as a demonstration or otherwise) other than as described in this Agreement. The Member shall permit access to the Information only by those of its employees, affiliates, clients or agents that have been authorised by the Member to access and use LFEX TRADING PLATFORM on the Member’s behalf for the purposes of entering into any transactions or for performing related support functions (“Authorised Persons”) and that are using the Information solely for such purposes. Nothing in this Agreement shall limit any rights the Member may acquire with respect to Information under a separate agreement between the Member and LFEX or any third party distributing information pursuant to a licence or sub-licence granted by LFEX. The Member shall protect and safeguard LFEX’s Intellectual Property Rights in and to the Information by using the same degree of care that the Member generally uses to protect its own confidential information and Intellectual Property Rights, but in any event with no less than a reasonable degree of care. The Member shall promptly notify LFEX upon becoming aware of any infringement or misappropriation, or threatened infringement or misappropriation, of any Intellectual Property Rights of LFEX.

The Member acknowledges and agrees that, notwithstanding anything to the contrary herein:

• (a) LFEX shall not, directly or indirectly, be a principal to any transaction (Relevant Transaction) or be responsible for, or otherwise guarantee performance of any Relevant Transaction entered into by the Member, and the Member shall not proceed against LFEX, to collect or recover any amounts owed to it or to enforce any of its rights in connection with, or as a result of, such Relevant Transaction;
• (b) neither the relationship between the parties, nor the services provided by LFEX, nor any other aspect of this Agreement shall give rise to any fiduciary or equitable duties on the part of LFEX;
• (c) LFEX may receive fees from both the Member and another member in respect of a Relevant Transaction effected through LFEX TRADING PLATFORM and LFEX shall have no duty to account to either the Member or that other member for such fees; and
• (d) the submission of any Information on LFEX TRADING PLATFORM by LFEX or any member shall not be deemed a recommendation by LFEX or such member that the Member enters into any particular Relevant Transaction or that any particular Relevant Transaction is suitable or appropriate for the Member.

6.1 The Member will indemnify, protect and hold harmless LFEX, its affiliates, and their respective directors, officers, employees and agents from and against any and all losses, liabilities, judgments, suits, actions, proceedings, claims, penalties, damages or costs (including reasonable legal fees as incurred) resulting from or arising out of:

• (a) the Member’s breach of this Agreement; and
• (b) any claim asserted against LFEX by any party for whom the Member acts or purports to act (including, without limitation, any asserted breach of fiduciary duty) in relation to the services provided to the Member in accordance with this Agreement. LFEX shall provide the Member with:
  (i) prompt written notice of each such claim received by LFEX;
  (ii) control over the defence and settlement of such claim; and
  (iii) full information and reasonable assistance to settle or defend any such claim. Notwithstanding the foregoing, the Member shall not settle any such claim without LFEX’s prior written approval if such settlement requires LFEX to take any action, refrain from taking any action or admit any liability.

6.2 LFEX warrants that it has all rights, authorisations and licences necessary to provide LFEX TRADING PLATFORM to Members as contemplated in this Agreement.

6.3 Subject to Clause 6.8, LFEX and its affiliates will not be liable for any loss incurred by the Member arising from or related to a loss of connectivity to LFEX TRADING PLATFORM or any other systems failure on behalf of the Member or LFEX nor any loss arising, in whole or in part, from a failure in the systems and controls of the Member or LFEX governing access to LFEX TRADING PLATFORM, including but not limited to the unauthorised use of the Member’s user account.

6.4 Subject to Clause 6.8, neither LFEX nor its affiliates, or any network provider under contract with LFEX will be responsible to any party for any losses however caused by the use of LFEX TRADING PLATFORM or by any errors, delays or interruptions in the transmission or confirmation of transactions or information, or from the failure of LFEX or its affiliates to process or confirm any Relevant Transaction initiated by the Member. Each party hereby acknowledges that it has not relied upon any warranty, condition, guarantee or representation made by the other, except as specifically set forth in this agreement or in any of the supplemental fee documents (the “LFEX Fee Schedule”) or Application Form.

6.5 Subject to Clause 6.8, in no circumstances will LFEX or its directors, officers, employees, affiliates or agents be liable to the Member or any person for whom the Member purports to act for any direct or indirect loss of revenues or profits, loss of goodwill, loss of opportunity, anticipated savings, wasted expenditure, or incidental, special or consequential damages, resulting from or arising out of, in whole or in part, the provision of access to LFEX TRADING PLATFORM, regardless of whether such damages could have been foreseen or prevented.

6.6 Subject to Clause 6.3, Clause 6.5 and Clause 6.8, LFEX’s aggregate liability (whether for breach of contract, negligence or for any other reason) arising from LFEX’s failure to perform any obligation under this Agreement, shall, in respect of any one incident or series of incidents attributable to the same cause, be limited in aggregate to £25,000.

6.7 Neither LFEX nor the Member shall be liable for any failure or delay in the performance of any of their respective obligations hereunder (other than the payment by the Member of Member Fees) due to causes beyond their reasonable control, including but not limited to industrial disputes of any nature, work stoppages, civil disobedience, riots, rebellions, accidents, explosions, acts of God, acts of a public enemy, acts of government, interruptions or imperfections of telecommunications, sabotage, pestilence, terrorism, lightning or electromagnetic disturbances, brown-outs or black-outs, earthquakes, storms, floods, fires or other casualty. During the time that any of the events specified above continue to exist, the obligations of each party hereunder, other than those affected by the events listed above, shall remain in full force and effect and each Party shall continue to perform such obligations. Notwithstanding the foregoing, nothing in this Clause 6 (Indemnity and exclusion of liability) shall affect the Member’s settlement obligations with respect to any Relevant Transaction.

6.8 Nothing in this Agreement will:
(a) exclude or restrict to an extent prohibited by law any duty or liability LFEX may have to the Member; or
(b) exclude or restrict any claim which can be directly attributable to the Parties’ wilful default or fraud.

7.1 LFEX will invoice the Member, where applicable, for, and the Member will pay to LFEX, the aggregate of all the fees specified in the LFEX Fee Schedule, as applicable (“Member Fees”).

7.2 Member Fees shall be net of all taxes and duties and, in all cases; the Member shall pay the amount thereof to LFEX in full without any deduction. In addition to the Member Fees, the Member will pay any sales, use, goods and services, value added, transfer, property or other taxes, any tax in the nature of withholding tax, and any duty or duties payable in respect of Member Fees or any part thereof and/or the provision of LFEX TRADING PLATFORM or otherwise arising in respect of this Agreement, (excluding any taxes imposed on the income of LFEX capital gains of LFEX, net profits of LFEX or any other similar taxes).

7.3 In order to pay charges and sums due to LFEX, LFEX may require a Member to execute and maintain in force a direct debit mandate in LFEX’s favour on a bank account in the United Kingdom or similar mechanism. Where a Member fails to pay in accordance with these rules other than in the case of legitimate dispute, LFEX may suspend or terminate its membership with immediate effects, without prejudice to any other action which LFEX may take. LFEX TRADING PLATFORM relies on the data submitted to it to calculate charges. Trades submitted in error may incur a charge. Any invoice queries including, without limitation, any request by a Member for repayment of overpaid charges must be made within six months of the end of the month to which the relevant invoice relates. The Member shall not be entitled to query an invoice and/or claim repayment of any overpaid charges after this period.

8.1 This Agreement will remain in effect until the Member resigns membership under rule 2.6 of the LFEX TRADING PLATFORM Rules or the Member’s membership is terminated under rule 2.4 of the LFEX TRADING PLATFORM Rules.

8.2 LFEX may terminate this Agreement or suspend its performance of all or any obligations under it immediately and without liability for compensation or damages if the Member fails to comply with any of the conditions set out in the LFEX TRADING PLATFORM Rules or fails to comply in all material respects with any of its obligations under this Agreement.

9.1 LFEX may amend this Agreement in any respect at any time on one months’ notice, except in relation to changes required by law or regulatory bodies which may be required to take effect earlier.

9.2 This Agreement shall not be assigned or transferred by the Member, in whole or in part, without the prior written consent of LFEX, provided, that LFEX shall not unreasonably withhold its consent to an assignment of a Member’s rights hereunder to an affiliate of the Member which: (i) meets the entry criteria established by LFEX from time to time to allow access to LFEX TRADING PLATFORM; and (ii) agrees to be bound by this Agreement.

9.3 LFEX may assign part or all of its rights, or transfer part or all of its obligations under this Agreement, upon the provision of written notice to the Members, to:

• (a) any of its affiliates, provided that any such affiliate has any necessary approvals, where necessary, and is permitted to provide and operate LFEX TRADING PLATFORM; or
• (b) a successor to substantially all of LFEX’s relevant assets or business, or to its corporate successor as a result of any merger, spin-off, consolidation, initial public offering or any similar corporate reorganisation, provided that any such entity has regulatory approval, where necessary, and is permitted to provide and operate LFEX TRADING PLATFORM.

9.4 Any proposed assignment not in compliance with this Clause 9 (Miscellaneous) shall be null and void.

9.5 The obligations under this Agreement bind, and the rights will be enforceable by, the parties and their respective successors and permitted assignees.

9.6 A person who is not a party to this Agreement shall have no rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms.

9.7 If any provision of this Agreement is held by any competent authority to be invalid or unenforceable in whole or in part the validity of all other provisions (and, if applicable, the remainder of the provision in question) shall not be affected.

10.1 The parties shall keep confidential all information relating to this Agreement unless such information has become public knowledge otherwise than in breach of this Clause 10 (Confidentiality) or disclosure is required by law or a party’s regulatory body or disclosure is made in confidence to their professional adviser.

10.2 The Member agrees that LFEX may share confidential information with any of its affiliates and for the purposes of this Agreement, “affiliate” means any group undertaking of LFEX and “group undertaking” shall be construed in accordance with section 1161 of the Companies Act 2006. LFEX shall ensure the compliance of such affiliate with Clause 10 (Confidentiality) of this Agreement, and shall remain liable for any breach of Clause 10 (Confidentiality) by such affiliate.

11.1 For the purposes of the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) and the Privacy and Electronic Communications (EC Directive) Regulations 2003, the information provided pursuant to this Agreement will be used by LFEX and/or any of its affiliates (together with LFEX, the “Group”) for the purposes of providing the Member with products, services and data pursuant to this Agreement and enabling the Group to perform its business activities.

11.2 The Member acknowledges and agrees that any entity within the Group may disclose the Member’s data, including Personal Data and Sensitive Personal Data as defined under the GDPR (“Member Data”) to organisations within and outside of the Group for the purpose of providing products, services and data to the Member, performing its business activities and any other activities set out in the relevant Group Privacy Policy. LFEX shall ensure that it keeps any such data secure in compliance with its obligations under GDPR.

11.3 The Member explicitly consents to the Member Data being exported to a location outside the European Economic Area including to third parties outside the Group.

This Agreement and its enforcement shall be governed by and construed in accordance with the laws of England and Wales. The Parties consent to the exclusive jurisdiction of the courts of England and Wales for the purpose of any action or proceeding hereunder.

The Member represents and warrants that:

• (a) the information it has provided to support the Application Form is complete and accurate and agrees to inform LFEX of any material changes to the information in between now and approval of this application. The Member understands that a failure to provide complete and accurate information is a breach of the LFEX TRADING PLATFORM Rules. The Member agrees to comply with, and be bound by, the LFEX TRADING PLATFORM Rules which are, or may be in force, and may be amended from time to time;
• (b) it complies with the eligibility criteria set out in the LFEX TRADING PLATFORM Rules;
• (c) its systems relevant to trading on LFEX TRADING PLATFORM have been adequately tested and that they conform with LFEX’s own systems;
• (d) it has the power and authority to execute, deliver and perform this Agreement;
• (e) it has all necessary rights and licences to submit the Member Information to LFEX as contemplated herein, and its use of any software or equipment (other than those provided by LFEX) to access LFEX TRADING PLATFORM shall not violate any third party’s Intellectual Property Rights; and
• (f) it is authorised to enter into the Relevant Transactions entered into by it through LFEX TRADING PLATFORM and each of such Relevant Transactions, as confirmed by LFEX TRADING PLATFORM, is the legal, valid and binding obligation of the Member, enforceable against the Member in accordance with its terms and the terms of this Agreement.

The terms and conditions of Clause 6 (Indemnity and exclusion of liability), Clause 9.5, Clause 9.6, Clause 10 (Confidentiality), Clause 12 (Governing law), and Clause 14 (Survival) shall survive any termination, cancellation, replacement, expiration, modification, rejection or cessation of the effectiveness of this Agreement.

“Intellectual Property Rights” means all title, interests and other proprietary rights in and to:

• (a) trademarks, service marks, brand names, certification marks, trade dress, trade names and other indications of origin, and the goodwill associated with the foregoing;
• (b) inventions, discoveries and ideas, whether patentable or not;
• (c) patents and all reissues, divisions, continuations-in-part, renewals and extensions thereof;
• (d) trade secrets;
• (e) writings and other works, whether or not protectable by copyright or other law;
• (f) copyrights, database rights, or mask works;
• (g) know-how, technical information, processes, practices and systems, whether protectable by patent, copyright, trade secret or other law; and
• (h) any other intellectual property or similar proprietary rights or interests which may exist in any jurisdiction,
  in each case, including all registrations thereof, applications therefor and renewals, modifications, translations and extensions thereof, in any jurisdiction, and any claims or causes of action arising out of or related to any infringement or misappropriation of any of the foregoing as described in Clause 4 (Intellectual property rights and Member information) of this Agreement.