Old Mission Markets LLC – Terms of Business for Counterparties
1. All orders placed with Old Mission Markets LLC (“OMM”) by the (“Counterparty”) may be routed to an affiliate of OMM, Old Mission Capital LLC (“OMC” and collectively with OMC, “Old Mission”) for execution. OMM may execute any resulting transactions on a riskless principal basis with OMC. OMC may execute Counterparty’s order on a proprietary basis, in which case, it will be compensated in the form of trading profits from buying and selling for its own account or OMM may route Counterparty’s orders to venues including exchanges, market makers, and alternative trading systems.
2. Old Mission is not acting as a fiduciary or as an adviser to the Counterparty in respect of any transaction, it may undertake and no communication from Old Mission shall be construed as an undertaking to act in such a capacity. If Old Mission provides any advice or opinions from time to time, the Counterparty agrees that it shall not rely on any such advice or opinion in making any investment or other.
3. When placing any sell order, the Counterparty agrees to appropriately designate it as “long” or as “short”. The Counterparty will designate a sale as “long” only if the securities being sold are securities then owned by the Counterparty and such securities will be delivered to OMM as soon as it is possible to do so, and in any event prior to settlement. If the Counterparty has sold securities “short” or otherwise has a delivery obligation with respect to securities that are not timely delivered to OMM, OMM may satisfy the Counterparty’s obligation to deliver securities to the purchasers thereof by delivering securities on the Counterparty’s behalf, and the Counterparty shall be liable and responsible for any and all costs or expenses incurred by OMM in connection therewith.
4. Old Mission may execute an order to buy or sell a security or a related financial instrument when OMM and/or OMC has/have material, non-public market information concerning an imminent block transaction of the Counterparty in that security, a related financial instrument or a security underlying the related financial instrument, in order to fulfill, or facilitate the execution of, the Counterparty’s order.
5. With respect to each and every order submitted to OMM by the Counterparty, with respect to both held and not-held orders, unless immediately executed, OMM and/or OMC may accept and hold such order while OMM and/or OMC simultaneously trades that security on the same side of the market for its own account at a price that would satisfy the Counterparty’s order. The Counterparty will not submit any order to OMM for which it does not agree with the foregoing.
6. The Counterparty authorizes OMM to act on the instructions, demands, notices or requests (whether oral or written, delivered by any means) of anyone it in good faith believes to be authorized to give instructions on the Counterparty’s behalf, and any such instruction, demand, notice or request acted upon by OMM shall create a binding obligation on the part of the Counterparty.
7. OMM may change these terms and conditions from time to time upon written notice to the Counterparty.
Old Mission Europe LLP – Terms of Business for Counterparties
Old Mission Europe LLP (“OME”) is a proprietary trading firm authorised by the UK Financial Conduct Authority (“FCA”) to conduct the investment activity of dealing on own account. OME is a London Stock Exchange member and provides liquidity in exchange traded funds (“ETFs”) for UK and European markets (for the latter OME is an authorised participant with the main European ETF issuers).
OME and Counterparty (as defined below) agree that any trading activity conducted between them shall at all times be subject to these Terms of Business.
“Applicable Law” means all applicable laws, statutes, rules, regulations and other pronouncements having the binding effect of law of any applicable government authority, court, tribunal, agency, legislative body, commission or other instrumentality of (a) the United Kingdom; (b) any regulatory or self-regulatory organization including the rules and regulations of the exchange, market, or clearinghouse where the transaction is executed; and (c) any foreign laws, regulations and interpretation thereof applicable to you in connection with transactions under these Terms.
“Counterparty” means the trading counterparty of OME.
“MiFID” means the revised and restated EU Markets in Financial Instruments Directive (Directive 2014/65/EU) and the European Markets in Financial Instruments Regulation (Regulation (EU) No 600/2014)
“Professional Client” means professional client within the meaning of MiFID.
“Eligible Counterparty” means eligible counterparty within the meaning of MiFID.
“Instrument” means any ETF (or, as applicable, any other exchange traded financial instrument).
“Party” means OME or Counterparty, as the case may be, together also referred to as the “Parties”.
“Transaction” means any agreement to trade an Instrument.
“Terms of Business” or “Terms” means these OME Terms of Business as amended or supplemented from time to time.
“U.S. Person” has the meaning as such term is defined under the U.S. Securities Act of 1933, as amended (including without limitation Regulation S thereunder), the U.S. Securities Exchange Act of 1934, as amended, the U.S. Commodity Exchange Act, as amended, or any rules, regulations or interpretations adopted or promulgated by either the U.S. Securities and Exchange Commission or the U.S. Commodity Futures Trading Commission under any such act, or adopted or promulgated by any U.S. self-regulatory organization or body.
2. Relationship between the Parties and Client Classification
2.1. OME will consider all trading activity with Counterparty as the MiFID activity of dealing on own account. Such activity shall be limited to responding to requests for quotes from Counterparty or bilaterally agreeing on entering into a trade with Counterparty on a principal-to-principal basis. Counterparty expressly agrees that under no circumstances shall it construe any trading activity with OME as a MiFID investment service or activity other than dealing on own account offered by OME. Specifically, Counterparty acknowledges that OME shall under no circumstances execute orders on Counterparty’s behalf and shall not provide any best execution to Counterparty. Accordingly, the provisions of MiFID with respect to conflict of interest, client order handling rules and conduct of business shall not apply to their relationship.
2.2. Based upon the information available to OME, Counterparty will be classified as a Professional Client and/or an Eligible Counterparty. If any counterparty (being per se an Eligible Counterparty) wishes to be reclassified by OME as a Professional Client, such Counterparty may make a written request to OME for such reclassification. OME may, in its sole discretion and upon provision by Counterparty of any relevant supporting documentation, confirm to Counterparty that it has been reclassified as a Professional Client. For the avoidance of doubt, such reclassification shall only take effect in the event that OME provides the Counterparty with a MiFID investment service or activity other than dealing on own account. No offer or provision by OME, of what might otherwise be a MiFID investment service or activity other than dealing on own account, shall be deemed to take place prior to OME providing Counterparty with written notification of the same.
3. Conflicts of Interest Policy
OME has implemented procedures and policies to help prevent conflicts of interest between OME and its counterparties. These measures include mandatory compliance training, policies that prohibit front-running, segregated information areas or “Chinese walls” and compliance monitoring and surveillance. In addition, employees of OME are under an obligation to disclose their personal investment transactions to OME and are obligated to report to the Compliance department the receipt or offering of gifts or other benefits.
4. No Relationship with Underlying Parties
In any trading activity with OME where Counterparty is an agent or otherwise acting on behalf of or for the benefit of any third party, OME will treat Counterparty alone as its counterparty for all purposes relating to such activity and Counterparty alone will be liable in accordance with these Terms in relation to that third party. OME shall owe no fiduciary duty or best execution obligations to such third party and shall not have any liability to such third party.
5. Trading Activities
5.1. Counterparty may request a price in relation to an Instrument from OME. OME may, but is not obligated to, respond to such request with a price quote. On the basis of such quote, Counterparty will independently decide whether it enters into a Transaction with OME.
5.2. Each Party maintains responsibility for the performance and settlement of its obligations for each Transaction, either by delivery versus payment (DVP) settlement, or by having the trade crossed by an executing broker engaged by each of the Parties and given-up to their respective clearing brokers, or by confirming the trade to the relevant exchange, as the case may be.
5.3. Where requested by the Counterparty, OME may agree to quote or price “clean”, i.e. reflecting a price or bid-ask spread without implicit costs associated with a trade. If applicable, such costs shall be disclosed in the trade confirmations. Counterparty expressly acknowledges that any such agreement by OME to receive such payment shall not be construed as a service charge or commission by OME to Counterparty and shall not change the principal-to-principal relationship between the Parties.
6. Best Execution Policy
Old Mission Europe LLP (OME) executes worked orders from time to time on behalf of third-party institutional clients in accordance with their instructions. OME will only execute orders on behalf of firms classified as professional clients or eligible counterparties, and never for retail investors. We have an obligation to take all sufficient steps to obtain the best possible result for clients when executing orders/transmitting orders for execution. If a client has provided specific instructions, we will meet our obligation to obtain the best possible result by following those instructions.
‘Execution’ is where OME executes an order directly against an execution venue, a market maker or other liquidity provider. An example of a liquidity provider may be: a regulated market, MTF, OTF, SI, or principal trading firm. Execution of orders on behalf of clients means acting to conclude agreements to buy or sell one or more financial instruments on behalf of clients. We do not receive a duty of best execution from the venue and therefore, we must take ‘all sufficient steps’ to obtain the best possible result for our institutional clients.
FCA guidance on the obligation to provide best execution notes that dealing on own account does not in all circumstances exclude firms from the obligation to provide best execution. Where a counterparty relies on OME to protect their interests in terms of pricing or other factors of the transaction, we may owe a duty of best execution to counter parties in relation to our liquidity provision business. We measure this obligation against our four-fold cumulative test as referenced in the May 2007 CESR Q&A paper on Best Execution under MiFID I: CESR/07-320. OME liquidity provision counterparties do not generally place reliance on OME for pricing or other factors of the transaction. Therefore, we generally do not perceive the obligation to therefore apply to us in relation to our liquidity provision business.
IMPORTANT: Whether we execute or pass order, circumstance may require best execution efforts to our clients.
For more detailed information regarding the Firm’s Best Execution obligation to its institutional clients including Execution Methodology, Client Information and Consent, and Governance, please contact your Sales Associate.
Transactions executed in certain jurisdictions may be liable for transaction taxes (e.g. SDRT or FTT). Where OME pays a transaction tax on behalf of a counterparty that counterparty will reimburse OME on demand. The counterparty will also reimburse OME on demand where the tax would prima facie be due by the counter party but OME pays the tax because of a secondary liability.
8. Compliance with Applicable Law
All business transacted with OME under these Terms is subject to Applicable Law. In no event is OME obligated to enter into a Transaction that would breach any Applicable Law. You will fulfil all of your obligations under Applicable Laws and will not breach such Applicable Laws. In the event of any conflict between these Terms and any such Applicable Law, such Applicable Law shall prevail.
9. Anti-Money Laundering
9.1. Applicable Law requires OME to obtain, verify, and record information that identifies each counterparty that maintains a trading relationship with us. To transact with you, we may be required to collect certain information, including your: (a) name; (b) date of incorporation or organization; (c) registered business address; (d) identification number; (e) legal entity identifier, and (f) information regarding the ownership structure of the Counterparty, including the beneficial owners thereof.
9.2. A corporation, partnership, trust, or other legal entity may need to provide other information, such as its principal place of business, local office, certified articles of incorporation, relevant licenses, a partnership agreement, or a trust agreement. OME reserves the right to request any additional information or documentation from you that OME reasonably determines necessary to comply with Applicable Law.
10.1. Neither Party will hold the other Party, or any of its employees, officers, or affiliates liable for any damages (whether direct, indirect or consequential) or any expenses regardless of cause.
10.2. Nothing in these Terms of Business limits or excludes a Party’s liability:
(A) for losses suffered by the other Party arising out of the first Party’s fraud, negligence or willful misconduct;
(B) for any liability that cannot be excluded or limited by law.
11. Information Provided by OME
Any communication provided by OME to the Counterparty, including price quotes, price-formation or promotional material, will be provided strictly on the basis of the relationship between the parties as set out above in Section 2 and Section 3. The Counterparty acknowledges that such information will not be construed as any form of advice or service on the part of OME.
12. Representations and Warranties
12.1. Each Party represents and warrants that:
(A) it has full capacity, power and authority to enter into, deliver and perform its obligations under and in accordance with these Terms of Business;
(B) it is duly incorporated or formed and validly existing under the laws of the jurisdiction of its incorporation or creation;
(C) the obligations under these Terms of Business are fully binding upon it and enforceable against it;
(D) the entry into and performance of these Terms of Business do not and will not conflict with any laws applicable to it or its constitutional documents;
(E) there are no existing agreements or arrangements with third parties or orders, judgments or decrees the terms of which prevent it from entering into these Terms of Business nor are there any actions, suits, proceedings or regulatory investigations pending or threatened against or affecting it that may affect its ability to perform its obligations under these Terms of Business;
(F) it has (and will continue to have or hold) all necessary licences, permits, consents and regulatory approvals from relevant regulatory bodies necessary to perform its obligations under these Terms of Business; and
(G) it adheres to applicable anti-money laundering and sanctions regulations.
12.2. [If the Counterparty is a U.S. resident, the Counterparty makes the following representations as to its regulatory status under U.S. laws:
(A) with respect to any Transaction in Securities as defined in the Securities Exchange Act of 1934, as amended, it is registered with the U.S. Securities and Exchange Commission as a Broker-Dealer;
(B) with respect to any Transaction in an Eligible Option as defined in the July 1, 2013 class no-action letter issued by the Division of Trading and Markets of the U.S. Securities and Exchange Commission, it is an Eligible Broker-Dealer as defined in that same letter;
(C) with respect to any Transaction that is a Block Trade as defined in CME Rule 526, it is an Eligible Contract Participant as defined in section 1a(18) of the Commodity Exchange Act of 1936.]
12.3. Each representation and warranty given under this clause shall be deemed repeated on each occasion a Transaction is entered into.
Neither Party may assign or transfer its rights and obligations under these Terms of Business without the prior written consent of the other Party.
14.1. Neither Party shall disclose information concerning the other Party which it has acquired as a consequence of activities performed under these Terms of Business and which it knows or can reasonably suspect to be confidential information (regardless of whether or not such information is explicitly marked as “confidential”).
14.2. These confidentiality obligations shall not apply to any confidential information lawfully in a Party’s possession otherwise than as a result of activities performed under these Terms of Business or coming into the public domain otherwise than by breach by any Party of its obligations contained in these Terms of Business. In addition, these Terms of Business shall not prohibit a Party from disclosing any confidential information concerning the other Party to any relevant regulatory, government or fiscal authority where required to do so, or pursuant to any law or regulation or the order of any court of competent jurisdiction.
15. Personal Data
15.1. Data Protection Laws means:
(A) Regulation (EU) 2016/679 on the protection of natural persons with regard to the Processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC; and
(B) Any other all applicable laws, rules, regulations relating to, or impacting on, the Processing of Personal Data.
15.2. The terms data controller, personal data, processing (and process, processes and processed shall be construed accordingly) and sensitive personal data shall each have the meaning given to them in the Data Protection Laws.
15.3. You acknowledge that we may process information (including personal data and sensitive personal data) about you in the course of conducting trading activity with you pursuant to these Terms. Such processing is legally permissible under article 6(1)(f) of the Data Protection Laws as necessary for the purposes of conducting our trading activity. Each party acknowledges that, for the purposes of Data Protection Laws, it is a data controller of personal data and that it, in common (but not jointly) with other party, determines the manner and purposes for which personal data is processed. Each party shall comply with its obligations under Data Protection Laws.
15.4. Your personal data will be retained by OME for as long as we determine it is necessary to facilitate our trading relationship. Under the Data Protection Laws, you have the right to request access to your personal data, to request that your personal data be rectified or erased, and to request that processing of your personal data be restricted. You also have to right to data portability. In addition, you may lodge a complaint with the UK Information Commissioner. OME’s data protection officer is Mike Chaplee, who can be contacted at Mke.Chaplee@oldmissioncapital.com.
15.5. As between the parties, you represent to us that you will ensure that any of your directors, employees, officers, agents or clients whose personal data we process pursuant to these Terms is aware of the use of such data, and you agree to indemnify us against any loss, costs or expenses arising out of any breach of this representation.
16. Telephone recording
Communication between the Parties may be recorded to comply with regulatory obligations or for a legitimate business purpose.
17. No partnership
Nothing in accepting these Terms of Business or any other document between the Parties shall create any partnership, joint venture, or relationship of principal and agent between the Parties hereto or any of their affiliates or subsidiaries, or provide either Party with any right, power or authority, whether express or implied, to create any such duty or obligation on behalf of the other Party.
18. Conflict with other agreements
In the event of any conflict between these Terms of Business (or any portion thereof) and any other agreement now existing or hereafter entered into between the Parties, the terms of these Terms of Business shall prevail. Any terminology used in such further agreements shall be regarded as for definition purposes only and shall not influence the understanding of the nature of the relationship between the Parties, as set out in these Terms of Business.
19. Governing Law
These Terms of Business and any dispute or claim arising out of or in connection with it shall be governed by and construed in accordance with the laws of England and Wales. The English courts shall have exclusive jurisdiction to settle any disputes which may arise out of or in connection with these Terms of Business.
20. Acceptance of these Terms of Business
The Parties are legally bound by the Terms of Business and any amendments thereto from the moment they agree to the terms of a Transaction (whether orally or otherwise). Please notify Mike Chaplee at firstname.lastname@example.org if you do not agree to the Terms of Business.