Rule 10 — Liabilities
10.1 No Liability to Clearing Members and Others in Absence of Fraud Etc
Without prejudice to the generality of Rule 1.1.3, except as otherwise expressly provided in these Clearing Rules, none of CDP, its related corporations, SGX RegCo, any person or entity referred to under Rule 1.1.7, or their respective directors, officers, employees, representatives or agents ("Relevant Persons"), if acting in good faith and in the absence of fraud or negligence on their parts shall be liable to any Clearing Member or any Third Party in contract, tort or under any other cause of action with respect to, or with respect to any thing done or not done as a direct or indirect consequence of, any action or omission by any Relevant Person in connection with the clearing and settlement of Exchange Trades, and all other matters as contemplated in these Clearing Rules.
Without prejudice to the generality of Rule 1.1.3, the Relevant Persons shall have no obligation or liability of any kind to a Clearing Member or Third Party, or to any of the Clearing Member's customers in respect of any loss or damage (including consequential loss or damage) which may be suffered or incurred or which may arise directly or indirectly in respect of, or in respect of any thing done or not done as a direct or indirect consequence of, the exercise of any discretion or decision making power under the Clearing Rules or Clearing Directives.
10.2 Force Majeure
No Relevant Person shall be liable for, or for any thing done or not done as a direct or indirect consequence of, any action or omission or any failure, hindrance, suspension, restriction or delay in the provision of services and facilities to clear and settle any Exchange Trade or the performance in whole or in part of CDP's obligations under these Clearing Rules or Clearing Directives if such action, omission, failure, hindrance, suspension, restrictions or delay arises out of causes beyond the Relevant Person's reasonable control.
Such causes may include, but shall not be limited to, acts of God, war, civil disturbances, riots, acts of a civil or military authority, embargoes, fires, floods, explosions, accidents, labour disputes, mechanical breakdowns, computer or system failures or other failures of equipment, failures of or defects in computer or system software, unavailability of or restrictions on any on-line communications system or communication media or facilities, interruptions (whether in whole or in part) of power supplies or other utility or service, any suspension, restriction or closure of any market, any market emergency, failure, interruption or suspension of any depository or custodian, bank or financial institution, any law, decree, regulation or order or directive of any government, competent authority or any court or tribunal, and any other causes beyond the Relevant Person's reasonable control.
On the happening of any 1 or more of the events or circumstances referred to in Rule 10.2.1 above, CDP and any party affected shall immediately notify the same to the relevant party or parties.
In respect of affected Clearing Members, CDP shall be entitled, at any time after the receipt of such notice by CDP or any relevant party or parties, to exercise the powers under Rules 6A.9A and 6.10.
Without prejudice to the generality of the foregoing, the Relevant Persons shall not be liable for any failure, hindrance or delay in the performance (in whole or in part) of any of CDP's obligations to Clearing Members with regard to any Collateral where such failure, hindrance or delay arises from causes beyond CDP's control, such as but not limited to the failure whether partial or total, interruption or suspension of any depository or custodian or other service ("depository", which expression shall include banks or financial institutions with which such Collateral is placed with) CDP is using, the termination or suspension of CDP's membership or use of the depository or any variation of the depository's operational timetable, whether or not occasioned by action of the depository operator or other party, or any embargo, unavailability or restriction of bank transfer systems or wires, malfunction or overload of the depository or other emergency.
10.3 No Liability for Acts or Omissions of Clearing Members
10.4 Consequential Losses
The Relevant Persons shall not be liable for any special, indirect or consequential losses or damages or for the loss of business, revenue, goodwill, bargain or loss of profit suffered by any Clearing Member, even if the Relevant Persons had been notified of the possibility of these damages being incurred.
10.5 Limit on Amount of Damages Recoverable
Except for CDP's liability to make payment of the Final Settlement Balance owing to a Clearing Member, under no circumstances shall CDP's liability and the amount of damages owing to a Clearing Member exceed 100% of the aggregate amount of the fees, charges, fines or default interest paid by the Clearing Member in the calendar year the incident giving rise to the claim(s) in question occurs.
Each Clearing Member indemnifies each of CDP, its related corporations, SGX RegCo, any person or entity referred to under Rule 1.1.7, and their respective directors, officers, employees, representatives and agents ("Indemnified Persons") against any loss or liability reasonably incurred or suffered by the Indemnified Persons where such loss or liability arose out of or in connection with:—(1) any breach by the Clearing Member of its obligations under the Clearing Rules and/or Clearing Directives; or(2) any wilful, unlawful, reckless or negligent act or omission by the Clearing Member.
Without prejudice to the generality of Rule 10.6.1, in the event that any legal, arbitration or other proceedings are brought to impose any liability on all or any of the Indemnified Persons for an alleged failure on the part of any Indemnified Person to prevent or to require action by a Clearing Member or any of its directors, officers, employees, representatives or agents, the Clearing Member shall reimburse the relevant Indemnified Person for:—(1) all expenses and legal fees incurred by or on behalf of the Indemnified Person in connection with such proceedings;(2) any payment made by or on behalf of the Indemnified Person with the approval of the Clearing Member in connection with any settlement of such proceedings; and(3) any payment made by or on behalf of the Indemnified Person as a result of any order, award or judgment made in the such proceedings.
The Clearing Member shall render such co-operation as the Indemnified Person reasonably requires in respect of such proceedings including without limitation the production of any document or records.
Without prejudice to Rule 10.6.2, the Clearing Member shall pay to an Indemnified Person, if the Indemnified Person so requires, the costs incurred by or on behalf of the Indemnified Person of producing or obtaining, pursuant to a court order or other legal process, records relating to the business or affairs of a Clearing Member or any of its directors, officers, representatives, employees or agents, regardless of the party requiring such production or obtainment.