MAREX SPECTRON’S GENERAL TERMS AND CONDITIONS
1. APPLICABILITY AND INTERPRETATION
1.1 These Standard Terms and Conditions (the “Terms”) published at www.marexspectron.com, as updated and amended, set out the general terms on which any company within the Marex Spectron Group (individually and collectively referred to as “Marex Spectron”) performs or provides any Services. Unless otherwise agreed by Marex Spectron in writing, these Terms apply to any and all offers made, Agreements concluded and/or general business undertakings, advice, information or services provided by Marex Spectron to you or any other third party.
1.2 In addition to these Terms, any specific terms agreed between Marex Spectron and you, including pursuant to an Agreement, may also apply to the Services. In the event of any inconsistency between such specific terms and these Terms, the former will prevail.
1.3 These Terms take effect upon the earlier of (i) you signifying acceptance of these Terms or (ii) upon the performance or provision of Services by Marex Spectron to you. You agree that at any time Marex Spectron performs or provides Services to you, such Services will be subject to these Terms.
1.4 Marex Spectron will not be bound by any conflicting terms and conditions (howsoever named) used by you or any other third party and such terms and conditions will not be applicable to an Agreement or legal relationship between you and Marex Spectron unless agreed to and accepted by Marex Spectron in writing.
1.5 The following terms and definitions apply to these Terms, save where the context requires otherwise:
“Agreement” means any agreement entered into between you and Marex Spectron, pursuant to which Marex Spectron offers to provide and you accept the provision of Services, and will include, without limitation, any written contract, agreement or correspondence communicated via any means and any applications or agreements attached thereto or contained thereon, or any email between you and Marex Spectron.
“Applicable Laws” means all applicable laws, rules and regulations as in force from time to time (including, without limitation, accounting rules and anti-money laundering and sanctions legislation).
“Loss” means, without limitation, any legislative or regulatory fines or penalties and any financial, reputational, contractual or tortious losses or damages, howsoever arising, including, without limitation, non-compliance with instructions or obligations, unavailability or incorrect advice or information.
“Marex Spectron Group” means the Marex Spectron group of companies, which includes Marex Financial (including the Marex Solutions and Marex Clearing Services divisions), Marex Spectron International Limited, CSC Commodities UK Limited, Tangent Trading Limited, Marquee Oil Broking Limited, Marex Spectron Europe Limited, BIP Trading (UK) Limited, BIP Asset Management SAS, Volatility Performance Fund SA, Marex North America, LLC (including the RCG division), Spectron Energy, Inc., Marex Hong Kong Limited, Marex Spectron Asia Pte Ltd and Spectron Energy (Asia) Pte Ltd.
“Services” means any and all services provided or to be provided by Marex Spectron to you pursuant to an Agreement and/or any other general business undertakings, advice, information or services provided by Marex Spectron to you.
“you” means the party to whom Marex Spectron’s offer for Services is addressed and/or the party entering into an Agreement with Marex Spectron and/or the party to whom Marex Spectron will provide the Services to pursuant to an Agreement.
2. GENERAL REPRESENTATIONS AND WARRANTIES APPLICABLE TO ALL SERVICES
2.1 You represent at the date any applicable Agreement comes into effect and at all times throughout the performance or provision of Services by Marex Spectron that: (i) you have all necessary authority, powers, consents, licenses and authorisation and have taken all necessary action to enable you to lawfully enter into and perform the Agreement and receive Services from Marex Spectron and you shall comply with all Applicable Laws; (ii) the persons entering into the Agreement on your behalf have been duly authorised to do so; (iii) the Agreement, the Services and any obligations created under either of them are binding upon you and enforceable against you in accordance with their terms and do not and will not violate the terms of any regulation, order, charge or agreement by which you are bound; (iv) you will promptly notify Marex Spectron of the occurrence of a Material Breach (as defined below) with respect to you; and (v) you shall observe the standard of behaviour reasonably expected of persons in your position and will not take or omit to take any action which would or might cause Marex Spectron to breach any Applicable Laws.
2.2 In the case of your failure to comply with section 2.1 above, you will indemnify Marex Spectron against any and all losses, actions, claims, costs, penalties, fines and damages and Marex Spectron may terminate the Agreement forthwith on written notice to you. Marex Spectron’s rights under this section 2.2 are in addition to, and not in limitation or exclusion of, any other rights which Marex Spectron may have (whether by agreement, operation of law or otherwise).
3. ACCEPTANCE OF OFFERS AND AMENDMENTS TO AN AGREEMENT
3.1 All offers made to and by Marex Spectron are non-binding until an Agreement has been concluded between you and Marex Spectron and signed in accordance with Marex Spectron’s authorised signatory policies.
3.2 Oral promises, representations or statements made by Marex Spectron’s directors, officers, employees or agents (together “Marex Spectron Representatives”) are not binding on Marex Spectron unless or until confirmed in writing by authorised representatives of Marex Spectron.
4.1 Marex Spectron is entitled to terminate the provision of Services to you immediately on written notice to you where you are in Material Breach of your obligations under an Agreement. In this context “Material Breach” means, without limitation, where:
(a) you fail to observe or perform any provision of an Agreement and such failure continues for two business days after notice of non-performance has been given to you by Marex Spectron;
(b) you fail to meet your liabilities and/or other obligations as and when they fall due;
(c) you seek, or the same is sought against you, a composition or rearrangement with your creditors;
(d) you are dissolved or, if your capacity or existence is dependent upon a record in a formal register, the registration is removed or ends; or
(e) a petition for liquidation, winding-up, bankruptcy or administration is filed in respect of you.
4.2 In the event that Marex Spectron gives notice in accordance with clause 4.1 of these Terms, any and all outstanding payments owed by you to Marex Spectron shall become immediately due and payable.
5. GENERAL RIGHT OF RETENTION, LIEN AND PLEDGES ON GOODS
5.1 Marex Spectron has a general lien in respect of any documents, cash or other property (collectively the “Properties”) of yours that are in Marex Spectron’s possession under an Agreement. The Properties of yours that are in Marex Spectron’s possession under an Agreement may serve as a pledge for Marex Spectron against all claims that it may or may not have against you or any other third party with rights to the Properties. Marex Spectron shall not, in any circumstance, be liable for any loss or damage resulting from the exercise of any such lien or pledge.
5.2 In the event a claim arises against you and payment is not received from you, Marex Spectron is entitled to sell the Properties in any manner prescribed under Applicable Law or, if not prescribed by Applicable Law, in such manner and at such price as Marex Spectron, in its sole discretion, deems appropriate. The proceeds from any such sale will be applied towards the satisfaction of all sums outstanding owed by you to Marex Spectron, following the deduction of the costs associated with conducting the sale, and any available balance thereafter shall be paid to you.
6. GENERAL LIABILITY PROVISIONS APPLICABLE TO ALL SERVICES
6.1 Where an Agreement specifically addresses liability, Marex Spectron’s liability will be determined in accordance with such terms. However, in the event an Agreement does not determine Marex Spectron’s liability, or there is no Agreement entered into between you and Marex Spectron, the terms of this clause 6 will apply.
6.2 Neither Marex Spectron nor any Marex Spectron Representative will be liable to you for any claim of any nature or for any Loss howsoever arising, whether based in contract or tort (and whether based in negligence or strict liability) for any lost profit, income or savings, wasted expenditure or indirect or consequential loss, irrespective of whether Marex Spectron or such Marex Spectron Representative knew, should have known or has previously been advised on the possibility of such loss or damage arising.
6.3 Neither Marex Spectron nor any Marex Spectron Representative will be liable to you for any actions, losses, damages, costs or expenses incurred or suffered by you unless arising solely and directly from Marex Spectron’s or such Marex Spectron Representative’s gross negligence, wilful default or fraud. In no event will Marex Spectron or any Marex Spectron Representative’s liability to you exceed the lower of (i) GBP 100,000 per event, (ii) GBP 100,000 per series of events arising from one and the same cause or (iii) the actual direct damages incurred. Nothing in these Terms will limit Marex Spectron or any Marex Spectron Representative’s liability for death or personal injury resulting from their negligence.
6.4 Without prejudice to any of Marex Spectron’s rights under these Terms and any Agreement, you undertake that you will indemnify and keep indemnified Marex Spectron against all losses, actions, claims, costs, penalties and damages (including any compensation or damages paid by Marex Spectron on the advice of its legal advisors to compromise or settle any claim) and all legal costs and other expenses arising directly or indirectly out of or in connection with an Agreement and/or Services, save where such losses, actions, claims, costs, penalties or damages result directly from Marex Spectron’s gross negligence, wilful default or fraud.
6.5 Legal proceedings (including any counterclaim) may not be brought against Marex Spectron unless they are issued and served within one (1) year of the event giving rise to the claim.
6.6 You will have no claim whatsoever against any Marex Spectron Representative (irrespective of whether such Marex Spectron Representative acted within the course of their employment with Marex Spectron).
6.7 In the event that legal proceedings arise between you and Marex Spectron and where judgment is entered in favour of Marex Spectron, you agree to reimburse Marex Spectron for any legal costs incurred in connection with such proceedings.
7. FORCE MAJEURE
7.1 Marex Spectron will not in any circumstance be liable to you for any loss, damage or delay in performance or non-performance of any obligations under an Agreement due in whole or in part to any cause beyond Marex Spectron’s reasonable control, including, without limitation, the following: (a) any breakdown, delay, malfunction or failure of transmission, communication or computer facilities; (b) industrial action, labour or trade dispute, strike or lockout; (c) act of terrorism, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, the imposition of sanctions, embargo or cessation of diplomatic relations; (d) acts of God, flood, drought, earthquake or other natural disaster; (e) laws, acts or regulations of any governmental, public authority or supra national bodies or authorities; (f) epidemic or pandemic; (g) nuclear, chemical or biological contamination; (h) non-performance by suppliers or subcontractors (other than by companies in the same group as the party seeking to rely on this clause); or (i) non-performance by Marex Spectron’s subcontractor or associated third-party affiliate (each referred to as a “Third Party Affiliate”) by reason of (i) an event or circumstance that would constitute a force majeure event under an Agreement and/or (ii) another unforeseeable restraint, delay, event or circumstance affecting the Third Party Affiliate, including, without limitation, bankruptcy, liquidation or administration.
7.2 Any and all additional costs that may be incurred by you as a result of a force majeure event in respect of Marex Spectron will be borne by you.
7.3 If Marex Spectron is prevented, hindered or delayed in or from performing any of its obligations under an Agreement by a force majeure event, it will not be in breach of this agreement or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations will be extended accordingly.
7.4 Any payment or other obligations owed by you to Marex Spectron arising before the commencement of the force majeure event will remain in force despite the occurrence of the force majeure event.
7.5 Notwithstanding anything to the contrary in an Agreement, if the force majeure event prevents, hinders or delays Marex Spectron's performance of its obligations for a continuous period of more than one (1) months, Marex Spectron may, at its sole option, terminate an Agreement and/or the provision or receipt of any services by you with immediate effect and without further liability to you.
8.1 Marex Spectron has the right to amend these Terms. Such amendment will become effective on the date specified below. Unless otherwise agreed, any amendment will not affect any outstanding Services or any legal rights attached thereto of either you or Marex Spectron which may have already arisen.
8.2 Failure by Marex Spectron to exercise or delay in exercising any of its rights under these Terms or otherwise will not operate as a waiver of those or any other rights or remedies. No single or partial exercise of a right or remedy will prevent further exercise of that right or remedy or the exercise of another right or remedy.
8.3 In the event of any conflict between these Terms and Applicable Law, the conflicting term will be deemed to be deleted and/or amended so as to confirm therewith, and any such deletion or amendment will not affect the remaining provisions of these Terms.
9. GOVERNING LAW AND JURISDICTION
9.1 Where an Agreement specifically addresses governing law, arbitration and/or jurisdiction, such will apply to your relationship thereunder with Marex Spectron. In the event an Agreement does not specify the governing law or jurisdiction the provisions of clause 9.2 of these Terms apply.
9.2 An Agreement and any non-contractual obligations arising thereunder will be governed by and construed in accordance with the laws of the country in which the Marex Spectron entity that is a party to that Agreement is domiciled, and the courts of that same country will have exclusive jurisdiction to determine any dispute, matter or otherwise arising out of or relating to an Agreement and any non-contractual obligations arising thereunder.
9.3 In the event the specific governing law and jurisdiction provisions contained in an Agreement are in conflict with those set forth in this clause 9, the provisions of the former will prevail.
Effective date: 15 June 2020. Any Agreement or these Terms will be subject to any modification of any legislation in force.