TERMS AND CONDITIONS
TERMS AND CONDITIONS
1
USER AGREEMENT
1.1 This agreement contains the terms and conditions
applicable to the use of our services available under the domain name of [www.forexct.com.au]
1.2 These terms and conditions form the agreement between
us and you (agreement). You acknowledge and agree that your relationship
with Forex Capital Trading Pty Ltd (we or us) is governed by the
provisions of this agreement.
1.3
We may amend or vary these terms and conditions by notifying changes to users of our service.
Changes will be notified to you on our website or via email and you agree to be bound by these
changes.
1.4
Our online foreign
exchange dealing and commodity service is offered on the basis of information and representations
contained in these Terms and Conditions as amended from time to time, the
relevant product disclosure statement and supplementary product disclosure
statement, and financial services guide. You acknowledge that in entering into
this agreement you are not relying on any other information or representation
from us however provided or conveyed to you.
1.5 By opening an account through our website, you acknowledge that you have read and understood
these terms and conditions.
1.6 This agreement comes into effect when you accept the terms and conditions by clicking the “Click to
SUBMIT” button, on the account opening page on our website. By continuing to access or use this
website and our trading platform(s), you agree that the terms and conditions in this agreement apply to
your use of the website and trading platform(s).
2 ONLINE ACCESS
2.1 In order to use our online foreign exchange and commodity dealing service(online facility) you will need to request a username and
password (access code) from us when you provide your details in the
online application form.
2.2 We are entitled to reject your application to use the
online facility at our discretion and we do not allow people below the age of
18 to use the online facility. We will not be responsible for any loss or
damage you incur using the online facility.
2.3 In
relation to the access code you acknowledge and undertake that:
a. the access code is confidential and you will be
responsible for the confidentiality and use of your access code;
b. other than with our prior written consent and our
receipt of a correctly completed Authorised Person Form, you will not disclose
your access code to persons other than your Authorised Representatives for any
purpose or allow any other individual to access your trading account with us;
c. you will ensure that your Authorised Representative
maintains the confidentiality of the access code;
d. we may rely on all instructions, orders or other
communications entered using your access code, and you will be bound by any
transaction entered into or expense incurred on your behalf in reliance on such
instructions, orders or other communications; and
e. you will immediately notify us if you become aware of
the loss, theft or disclosure to any third party, or of any unauthorised use,
of your access code; and
f. you are responsible to us for, and you indemnify us
against, any losses arising from the unauthorised use of your access code.
2.4 Subject
to this agreement, we grant you a licence to use the online facility.
2.5 If we have a reasonable belief that you have breached
the terms and conditions stated in clause 2.3, we have the right to close your
account with immediate effect and recover any losses we may have sustained as a
result of your breach.
3
ONLINE TRADING RULES
3.1 The online facility can only be accessed using your
access code which you will need to provide each time you wish to use the
online facility.
3.2 We are entitled to rely on all instructions given by
you, on your behalf, or apparently on your behalf, using your access code. We
will not be liable for any loss caused by acting on instructions given using
your access code.
3.3 You must not enter into a foreign exchange or commodities contract
through the online facility if it would breach, or cause us to breach any
other laws.
3.4 You may place orders to enter into a Transaction
through the online facility. You are solely responsible for placing orders and
for all errors made in placing orders through the online facility.
3.5 An order placed through the online facility will only
be taken to have been authorised at the time we accept the order for order
processing, and not before that time.
3.6 If you wish to amend or cancel a Transaction placed
through the online facility, you must give us specific instructions for the
amendment or cancellation of that order.
3.7 If a Transaction has been partially executed before it
is cancelled, you are responsible for settling that part of the order which has
been executed.
3.8 We may, at our discretion and at any time without
prior notice, suspend, restrict, or withdraw your access to the online
facility. If we believe you have supplied your access code to other persons in
breach of this agreement we may immediately terminate this agreement and your
access to, and use of, the online facility.
4
TRADING SERVICE
4.1
Transactions renew automatically every day at 12 AM (GMT) starting
from the day you place the order to enter the Transaction until the Transaction
is terminated. The Transaction terminates when:
(i)
You terminate it by providing instructions to that effect.
(ii)
The stop loss rate you predefined has been reached.
(iii)
An event of force majeure occurs.
(iv)
If the account equity reaches zero dollars, all open trades are automatically closed by the system.
You must
maintain margin in such amounts and in such forms as we require in our sole
discretion.
4.2
Transactions do not result in the physical delivery of currency or commodity but are cash adjusted or
closed by you taking an offsetting position. Positions will always be closed and your account(s) will be
either credited or debited according to the profit or loss on the Transaction.
4.3
Our service does not provide a market amongst or between users of the online facility. Each
Transaction you enter into is an individual agreement made between you and us as principal. You
cannot transfer, negotiate or assign the Transaction to or with any other person.
5
ELECTRONIC COMMUNICATIONS
5.1 you agree not to contest the validity or
enforceability of any electronic communications between you and us.
5.2 If a failure, interruption or malfunction of
electronic communication between the parties prevents a Transaction from being
placed, cancelled or amended, neither party will be liable to the other party
for any loss caused by that failure, interruption or malfunction.
5.3 You acknowledge that, in using the online facility:
a. there may be delays in processing an order or
instruction to amend or cancel a Transaction;
b. a Transaction may be wholly or partly completed before
an instruction for its amendment or cancellation is processed;
c. you remain liable for the original Transaction until
any relevant amendment or cancellation is accepted and effected by us; and
6
LIMITATION OF LIABILITY
6.1 Subject to any
applicable laws which cannot be excluded by agreement between the parties:
a. We make
no warranties either express or implied as to fitness for a particular purpose,
or otherwise, with respect to the goods or services supplied under this
agreement.
b. We are
not liable to you for any loss, including loss of prospective profits or
expenses, or damages, including special, indirect or consequential damages
(whether reasonably foreseeable or not), you suffer as a result of breach of
contract, in tort (including negligence), or otherwise relating to or resulting
from use of the online facility, including, without limitation, any loss or
damage arising out of:
(i)
any inaccuracy, error or delay in or
omission from any information provided to you pursuant to this agreement;
(ii)
any delays or failures or inaccuracies in:
a. the transmission of the online facility to you;
b. our transmissions of your orders or instructions; or
c. any other communications;
(iii)
any misinterpretation of your orders or
instructions which are unclear, ambiguous, or not specific;
(iv)
any delay, default, failure in or loss of
access to the online facility;
c. We are
not liable for any loss or damage suffered as a result of an event of force
majeure, including, without limitation:
(i)
anything done by a government or legal
authority;
(ii)
failure, damage, or destruction of all or
part of our computer systems, data or records;
(iii)
mismanagement of any telecommunications,
computer equipment, or software.
d. We will not be liable for any loss or damage to you
arising from any delay in:
(i)
the dissemination of market information;
(ii)
the processing of any Transaction, order,
or instruction; or
(iii)
the processing of any order or instruction
to amend or cancel a Transaction.
e. If a
court holds us liable for any loss or damage relating to the use of the online
facility our liability will be limited to the re-supply of the services.
7
INDEMNITIES
7.1 You forever indemnify us against any loss or damage:
a. that may
be suffered by us arising out of or in connection with:
(i)
your use of the online facility;
(ii)
our having acted upon any notice or
instructions from you, or purporting to be from you; or
b. which we
suffer as a result of your breach of this agreement.
c. You
agree to indemnify us and any of our Related Parties, and any of our or their
directors, officers, employees and agents against any and all liabilities,
losses, damages, costs and expenses, including legal fees, incurred by us or
any of our Related Parties, and any of our or their directors, officers,
employees and agents, in connection with the provision of our services to you,
except in respect of tax payable by us and losses and damage arising from our
negligence, fraud or breach of this agreement.
d. You acknowledge that we do not collect tax
for any authority in any form or manner. It is your obligation alone to
calculate and pay all taxes applicable to you in your country of residence or
otherwise arising as a result of your use of the online facility. You agree to
indemnify us and all our Related Parties with respect to taxes payable by you.
8 SERVICES
8.1 Subject to this agreement, we will provide you with:
a. the information and technical means to use the
online facility;
b. access to foreign exchange and commodity transactions and quotes; and
c. "bid" and "offer" prices in
respect of currencies and commodities through our online facility twenty-four hours a day, five days a week.
through our online facility twenty-four
hours a day.
8.2 The online facility is
restricted to executing transactions at the quoted prices at your order.
8.3 We
may at any time and in our sole discretion:
a. require
you to limit the number of open Transactions you have through the online
facility; and
b. close out
any one or more Transactions in order to ensure that such position limits are
maintained.
9 INSTRUCTIONS
9.1 Unless otherwise
agreed by us, all orders and instructions must be given to us electronically
through the online facility.
9.2 Any orders given to
us will not take effect unless actually received by us. We are entitled to act
on your
behalf upon instructions given or purporting to be given by you or any other person on your behalf
without further enquiry as to the genuineness, authority, identity or power of any such person giving or
purporting to give such instructions.
9.3 We may, at our
discretion and without liability, refuse to accept any orders or instructions
from you. If we do refuse to accept
orders or instructions, we will as soon as practicable notify you of any such
refusal, without being obliged to give you any reasons for it. We are not
liable to you for any loss you suffer due to your orders not being accepted or
you not being aware of our refusal to accept your orders. We may cancel any orders or instructions previously given by
you if we have not acted on those orders or instructions.
10 CONFIRMATIONS
10.1
We will give you a confirmation following
the execution of a Transaction. Confirmations are deemed to be conclusive and
binding on you if not objected to in writing within one (1) business day after
despatch.
10.2
We may despatch confirmations to you via email or via the online facility. We will post details of
your account activity via the online facility and you will be able to generate daily, monthly and
yearly reports of account activity as well as a report of each Transaction (subject to reasonable
limits on retaining historical records). Updated account information will be available no more than
twenty-four hours after any activity takes place on your account (subject to any technical support
requirement outside our control). Providing account information on your online account will be
deemed to be delivery to you of confirmation and account statements. If you require a paper copy
of your account statement, then you must request this from our accounts department and this will
be sent to you free of charge.
11 ROLLOVER
AND OFFSET INSTRUCTIONS
11.1 In the absence of timely instructions from you, we are authorised, at our absolute discretion, to
roll over or offset all or any portion of the positions in your accounts or to make or receive delivery
on your behalf upon such terms and by such methods deemed to be reasonable by us in our sole
discretion and without having regard to your particular situation and needs.
11.2 We will automatically roll over all open positions on your account to the following business day
unless you notify us to close your position(s) prior to 12 AM. (GMT). You may be charged or
receive roll over interest in respect of each rolled over position. The amount of roll over charged or
received will depend on several factors; namely, the currency pair or commodity held; the size of
the position; and whether the position has been bought or sold. You are able to view the roll over
amount directly through the PROfit trading platform. If you trade from a MetaTrader 4 account or
the iPhone Application, then you are able to obtain a list of current roll over rates by contacting us.
12 CURRENCY
FLUCTUATIONS
12.1
If you enter into any currency Transaction
via the online facility:
a. any loss
arising from a fluctuation in the exchange rate affecting a currency is
entirely at your risk; and
b. you
authorise us to convert funds in your account into and from foreign currency at
a rate of exchange determined by us on the basis of our reference rate (which
has regard to the then prevailing money market rates). We will not be liable to
you for any loss you suffer as a result of any currency conversion (although we
will use reasonable endeavours to convert only those funds prudently required
to cover the position in the relevant Transaction).
12.2 If you make any payment to us in relation to this
agreement in a currency other than that in which such amount was payable, you
indemnify us from and against any cost (including costs of conversion) or loss
we suffer as a result of receiving such amount in a currency other than the
currency in which it was due.
13 CLIENT
MONEY
13.1 Before any orders can be accepted or executed via the
online facility you will be required to deposit an amount of money into an
account held with us (account). The amount and currency of
this deposit will be notified to you from time to time, including prior to you
accepting this agreement or prior to you making an order.
13.2 The money in your account will be held by us in a trust account with a bank or a cash
management trust in accordance with the Corporations Act.
13.3 You waive the right to any interest on funds deposited in your account.
13.4 For money deposited in our client trust account, you acknowledge as part of our terms and conditions that:
·
Individual client accounts are not separated from each other;
·
All clients’ funds are co-mingled into the one client trust account;
·
The client money provisions in the Corporations Act 2001 may not insulate any individual client’s
funds from a default in our client trust account if such a default were to occur. Such a default may
arise from any clients’ trading i.e. by a client failing to pay for all losses incurred on their account;
and
·
Assets in the client trust account belonging to non-defaulting clients are potentially at risk, even
though they did not cause the default. However, in the case of ForexCT, no default by any client is
likely to occur on the basis that we have implemented systems and procedures whereby the potential
loss for any one client is limited to the amount deposited into their account with us (refer Section 2.1
under the heading “Potential Loss” for additional detail as to how ForexCT guarantees this). Thus, no
client will be in a position where they incur a loss in excess of the amount they have deposited with us
and accordingly, no client can become a debtor to ForexCT and default on the payment of that debt.
Although generally assets in the client trust account belonging to non-defaulting clients are potentially at
risk, even though they did not cause the default, this is not the case with ForexCT.
13.5 Notwithstanding clause 13.4, you are still exposed to the risk that you may not receive all money
owed to you, if there is a deficiency in the client trust account, and ForexCT becomes insolvent or
otherwise unable to meet the deficiency. It is possible that the hedging counterparty used by
ForexCT may become insolvent and fail to return client money that ForexCT has lodged with them
to meet its hedging obligations.
13.6 ForexCT is entitled to withdraw, deduct or apply any amounts payable to ForexCT under the terms
of this agreement, the PDS or the Corporations Act.
13.7 We are permitted to use money belonging to a client to meet the margin obligations of other
clients and our own positions. Thus, one client’s money deposited in the client trust account may
be used to satisfy obligations arising from dealing on behalf of another client (or ForexCT) which exposes each client to counterparty risk i.e. the risk that they may not receive all of the money
held by us on their behalf in the client trust account if there is a deficit in the client trust account
and we become insolvent or otherwise unable to pay the deficiency.
13.8 You will automatically receive notification by email and pop-up message when you execute the following actions:
·
Opening a trade
·
Closing a trade
·
Changing the stop loss
·
Changing the take-profit
·
Depositing funds
·
Withdrawing funds
·
Placing an order
14 QUOTING AND EXECUTION ERRORS
14.1 If quoting or execution errors occur, to the extent permitted by law we will not be liable for any
resulting losses or damage. Any dispute arising from such quoting or execution errors will be
resolved by us in our sole and absolute discretion. Quoting or execution errors include, but are not
limited to: a mistype of a quote, a quote or trade which is not representative of fair market prices,
an erroneous price quote from us, such as but not limited to an erroneous quote due to failure of
hardware, software or communication lines or systems and/or inaccurate external data feeds
provided by third-parties.
15
ARBITRAGE,
SCALPING, AND GENERAL RESTRICTIONS
15.1 Internet, connectivity delays, and price feed errors sometimes create a situation where the prices
displayed on our trading screen do not accurately reflect market rates. The concept of arbitrage, or
taking advantage of these internet delays, cannot exist in a market where the client is buying or
selling directly from the market maker. We do not permit the practice of arbitrage on our online
facilities. You acknowledge and agree to this and we rely on your acceptance of this. If we
determine that Transactions individually or together reasonably appears to rely on price latency
arbitrage opportunities, we may revoke those Transactions without further liability to you. To give
effect to this, we may make necessary or prudent corrections or adjustments on the account
involved. Any dispute arising from such apparent arbitraging will be resolved by us in our sole and
absolute discretion.
15.2 We have no obligation to contact you to advise upon appropriate action in light of changes in
market conditions or otherwise. You acknowledge that the foreign exchange and commodity
markets are highly speculative and volatile and that, following execution of any Transaction, you are
solely responsible for making and maintaining contact with us for the purpose of monitoring your
positions and ensuring that any further instructions are given on a timely basis. If you fail to do so,
we can give no assurance that it will be possible for us to contact you and we accept no liability for
loss alleged to be suffered as a result of any failure by you to do so.
15.3 Scalping is prohibited. Any Transaction made which, in our absolute discretion, is determined to be
in contravention of this prohibition may be revoked at our sole discretion.
15.4 You may not trade in currency pairs which from time to time we may determine in our absolute
discretion, for 2 minutes before and after a Critical News Release.
15.5 We may from time to time determine minimum withdrawal amounts with respect to your accounts.
15.6 You are prohibited from allowing any other person to access any of your accounts or trade on your
accounts on your behalf unless that other person has properly completed an Authorised Person
Form and submitted it to us.
16 REPRESENTATIONS
AND WARRANTIES
16.1 You represent and warrant that:
a. if you are an individual, you are of sound mind, legal age and legal competence;
b. if you are a corporation, you are duly incorporated and validly existing under the laws of
the country of your incorporation;
c. no person other than you has or will have an interest
in your account or any transactions you enter into via the online facility; and
d. regardless of any subsequent determination to the contrary, you are eligible to trade in
foreign exchange or commodities, trading in foreign exchange or commodities is
appropriate to your circumstances, and you are aware of the risks involved with such
transactions.
e. You will not delete any of our copyright notices or
other indications of protected intellectual property.
16.2 You represent and warrant that the information disclosed to us in the client account identification
form (including any financial information) is true, accurate and complete in all material respects. You
must notify us immediately of any changes to any information you have provided to us.
17 CREDIT
17.1 In making this agreement you authorise us, or agents acting on our behalf to investigate your credit
standing and in connection with that to contact such banks, financial institutions and credit agencies
which we deem appropriate to verify such information. You further authorise us to investigate any
current and past investment activity, and in connection with that, to contact such futures
commission merchants, exchanges, banks, and compliance data centres which we deem
appropriate. Upon reasonable request made in writing by you to us, you will be allowed to review
any records maintained by us relating to your credit standing. In addition, you will also be allowed
and entitled, solely at your own cost and expense, to copy such records.
18 CONFIDENTIALITY,
PRIVACY AND DATA PROTECTION
18.1 We will treat all information about you as private and
confidential. We will not disclose any information relating to you to others
except:
a. to the extent required by any applicable laws or
regulations;
b. if there is a duty to the public to disclose;
c. if our interests reasonably require disclosure;
d. to service providers for the purpose of providing the
online facility to you; or
e. at your request or with your consent.
18.2 You agree that we and our affiliates may hold and
process by computer or otherwise any information held about you and may use any
of that information to administer and to operate your account, to provide any
service to you, to monitor and to analyse the conduct of your account, to
assess any credit limit or other credit decisions and to enable us to carry out
statistical and other analyses. We may also use such information to inform you
about products and services offered by us or our affiliates as well as for
training purposes within our group.
19 EVENTS
OF DEFAULT
19.1 If at any time any one or more applies:
a. you fail to comply fully and immediately with any obligation to make any payment or to make
or take delivery of any property when due to or required by us;
b. you make default in any other obligation or commit any breach of any other obligations under
this agreement (including any transaction governed by this agreement) and including but not
limited to, any call for margin;
c. any representation or warranty made by you was or has become or subsequently would if
repeated at any time be incorrect;
d. due to market fluctuations or for any other reason we consider in our absolute discretion that
we hold insufficient margin or determine that any security held by us to protect one or more of
your accounts is inadequate regardless of current market quotations;
e. we, acting in our absolute discretion determine, that there is or has been an adverse change in
the creditworthiness of any party providing a guarantee or indemnity in respect of your
obligations under this agreement;
f. we consider it necessary or desirable to prevent what we consider is or might be a violation of
any applicable laws or regulations or good standard of market practice;
g. you commence any procedure seeking or proposing administration, liquidation, reorganisation,
an arrangement or composition, a freeze or moratorium, or other similar relief with respect to
you or your debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate or other law with potential application to you, if insolvent), or seeking
the appointment of a trustee, receiver, liquidator, administrator, custodian or other similar
official (each an "Insolvency Officer") to you or any substantial part of your assets; or if you
take any corporate action to authorise any of the foregoing; and, in the case of a
reorganisation, arrangement or composition, we do not consent to the proposals;
h. a procedure is commenced against you seeking or proposing liquidation, reorganisation, an
arrangement or composition, a freeze or moratorium, or other similar relief with respect to you
or your debts under any bankruptcy, insolvency, regulatory, supervisory or similar law
(including any corporate or other law with potential application to you, if insolvent) or seeking
the appointment of an Insolvency Officer to you or any substantial part of your assets;
i. you die, become of unsound mind, are unable to pay your debts as they fall due or are
bankrupt or insolvent, as defined under any bankruptcy or insolvency law applicable to you; or
any indebtedness of yours is not paid on its due date, or becomes capable at any time of being
declared, due and payable under agreements or instruments evidencing such indebtedness
before it would otherwise have been due and payable, or any suit, action or other proceedings
relating to this agreement(Proceedings) are commenced for any execution, any attachment
or garnishment, or distress against, or a person with the benefit of an encumbrance takes
possession of, the whole or any part of your property, undertaking or assets (tangible and
intangible);
j. you or any credit support provider (or any Insolvency Officer acting on behalf of either of you)
disaffirm, disclaim or repudiate any obligation under this agreement or any guarantee,
hypothecation agreement, security agreement or document, or any other document containing
an obligation of a third party (Credit Support Provider), or of you, in favour of us supporting
any of your obligations under this agreement (individually a Credit
Support Document);
k. 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 any procedures are commenced seeking or proposing your dissolution,
removal from such a register, or the ending of such a registration;
l. any Credit Support Provider fails to comply with or
perform any agreement or obligation to be complied with or performed by you or
it in accordance with the applicable Credit Support Document;
m. any
Credit Support Document expires or ceases to be in full force and effect prior
to the satisfaction of all your obligations under this agreement, unless
otherwise agreed in writing by us;
n. any representation or warranty made or given or deemed
made or given by any Credit Support Provider pursuant to any Credit Support
Document proves to have been false or misleading in any material respect as at
the time it was made or given or deemed made or given or any event referred to
in clause 19.1(g) to (i) occurs in respect of any Credit Support Provider; or
o. where you or your Credit Support Provider is a
partnership, any of the events referred to in clause 19(1)(g) to (i) or (k)
occurs in respect of one or more of your or its partners;
then we
may exercise our rights under clause 20.1 except that in the case of the
occurrence of any Event of Default specified in clause 19.1(g) or (h) (each a Bankruptcy
Default), the agreement is automatically terminated.
20 TERMINATION
20.1
This agreement may be terminated by you at
any time, by notice in writing to us, provided that
you do not have any open Transactions and do not have any outstanding
liabilities to us. We may terminate this
agreement immediately upon notice in writing to you at any time. Termination will not affect any Transactions
previously entered into and will be without prejudice
to any accrued rights and obligations of either you or us.
20.2
Additional
rights
Our rights under this clause 20 are in
addition to, and not in limitation or exclusion of, any other rights which we
may have under this agreement or otherwise whether by agreement or operation of
law. In particular and without prejudice to the provisions of clause 20.2 we are authorised and
entitled, without notification to you and in our
absolute discretion to take such action as we deem necessary, expedient or
desirable, to protect our own position, including without limitation, one or more
of the following actions:
a. close out all or any of your open positions;
b. perform, cancel or abandon any of your open positions;
c. borrow, buy, sell, , charge or otherwise dispose of
any or all monies or other assets which we hold for you (whether entered into
or held as security for your obligations to us hereunder or otherwise);
d. satisfy any obligation that you may have to us out of
any of your monies or other assets in our custody or control;
e. cancel any or all outstanding Transactions, orders or
contracts or any other commitments made with or for you.
You will
at all times be liable for the payment of any debit on your account and you
will be liable for any deficiency remaining on your account if it is liquidated
in whole or in part by you or us. If the proceeds realised pursuant to this
authorisation are insufficient for the payment of all liabilities due to us
from you, you must promptly pay on demand the deficit and all unpaid
liabilities.
21 NOTICES
Reports, statements, notices and any other
communications may be transmitted to you via
email or post, to such address (electronic or otherwise) as you from time
to time notify in writing to us, or by posting them to your online account.
All communications so sent, whether by mail, email, or otherwise, are deemed to
be transmitted by us when deposited in the mail, or at the time indicated on
any email (except in the case of manifest error) or posted to your account, and
will be deemed delivered to you personally, whether actually received by you or
not.
22 COMPLAINTS
AND COMPENSATION
If you have any complaint about our
performance under this agreement, you should direct that complaint to our
Compliance Officer, who will investigate the nature of the complaint and try to
resolve it.
23 GENERAL
23.1 If any provision of this agreement is found by any court or administrative body of competent
jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the
other provisions of this agreement which will remain in full force and effect.
23.2 Any failure by us (whether continued or not) to insist upon strict compliance with any provision of
this agreement will not constitute nor be deemed to constitute a waiver of any of our rights or
remedies. The rights and remedies conferred upon us under this agreement are cumulative and
the exercise or waiver of any part thereof will not preclude or inhibit the exercise of any other
additional rights and remedies.
23.3 You may not, without our prior written consent, assign, transfer, charge or deal in any other
manner with this agreement or any of its rights under it. We may, without prior notice to you or
your consent, assign, transfer, charge or deal in any other manner with this agreement or any of
its rights under it.
23.4 We may record our telephone conversations with you and such recordings may be used in
evidence in any dispute arising in connection with any transactions under this agreement. In the
event that our telephone conversations with you are recorded, those records are the property of
ForexCT and will not be provided to you even upon request.
23.5 All content, trademarks, service marks, trade names,
logos and icons are protected by copyright laws and the property of Forex
Capital Trading Ltd. You will not obtain any intellectual property rights in, or any right or
licence to use such materials on the web site, other than set out in this
agreement.
24 GOVERNING LAW AND JURISDICTION
This agreement is governed by the laws in force in
25 RISK
DISCLOSURE STATEMENT
You acknowledge that trading currencies
involves substantial risk that is not suitable for everyone. Trading online,
no matter how convenient or efficient, does not necessarily reduce risks
associated with currency and commodity trading.
Additionally, you acknowledge that you
fully understand the nature and risks of currency and commodity trading and your obligations
to others will not be neglected should you suffer investment losses.
26 THIRD PARTY CHARTING
All charting services (software, data and news) provided by NetDania ( “Netdania Services”) on the web PROfit trading platform is owned by or licensed to NetDania and its affiliates and you are permitted to store, manipulate, analyse, reformat, print and display the software, data and news only for your personal use. In no event shall you publish, retransmit, redistribute, communicate, disseminate or otherwise reproduce any software, data and news in any format to anyone, and you shall not use any part of the Netdania Services in any connection with any business or commercial enterprise, including, without limitation, any securities, investment, accounting, banking, legal or media business or enterprise. By using the Netdania Services, you:
(i) Agree that NetDania, ForexCT, the data sources and/or any other party shall have no liability for the accuracy or completeness of the software, data or news or for delays, interruptions, or omissions therein;
(ii) Agree not to use or permit anyone to use the Netdania Services for any unlawful purpose;
(iii) Agree that no intellectual property rights in the Netdania Services are transferred to any person or legal entity;
(iv) Agree that the software, data, news and any information obtained or derived therefrom shall be used solely by you in the normal course of your trading;
(v) Agree that you may not: communicate or disseminate the software, data, news or any information obtained or derived therefrom to any other party, including any of your subsidiaries or branch offices by any means whatsoever. This restriction shall include, without limitation, copying any part of the software, data, news or any information obtained or derived therefrom electronically or otherwise and distributing or disseminating any part of the software, data, news or any information obtained or derived therefrom via any network; or use the software, data or news in any way that may infringe any proprietary interest of NetDania or any third party;
(vi) Agree that notwithstanding any other provision of this agreement, you acknowledge that where the Netdania Services include any information and/or data obtained or derived from any of the other sources, such sources accept no liability whatsoever for such data or information;
(vii) Acknowledge that the sources, described in the preceding paragraph, may have the right to terminate provision of the data and news to you with or without notice and that neither any such source, NetDania, ForexCT nor any third party shall have any liabilities in connection therewith;
(viii) Acknowledge that neither ForexCT, NetDania, its affiliates, its employees, the sources or its third party licensors or any other party make any express or implied warranties (including, without limitation, any warranty or merchantability or fitness for a particular purpose or use) regarding the Netdania Services. The Netdania Services are provided to the users “as is”. Neither ForexCT, NetDania, its employees, its affiliates, its sources or its third party licensors, nor any other party will be liable to any user or anyone else for interruption, inaccuracy, error or omission, regardless of cause, in the Netdania Services or for any damages (whether direct or indirect, consequential, punitive or exemplary) resulting therefrom.
27
DEFINITIONS
|
Access code |
means any username and password provided to you by us to
gain access to the on line facility |
|
Authorised Representative |
means a person you nominate to act and trade as agent on
your behalf using your account |
|
Critical News Release |
means a news release that we determine in our absolute discretion
is a critical news release |
|
foreign
exchange |
means the purchase or sale of a currency against sale or
purchase of another currency |
|
commodities |
means means the purchase or sale of a commodity contract
where you speculate on the price movements of the
commodity, without actually taking physical delivery
of the commodity itself |
|
online facility |
means means our online currency and commodities trading
platforms (PROfit, MetaTrader 4, or iPhone
Application) |
|
Transaction |
means an offer to buy or sell, or buy and sell, foreign
exchange, or currency, made and executed via the online facility |
|
Related Party |
has the same
meaning that it has in the Corporations Act 2001 (Cth) of |
|
Scalping |
means opening and closing a profitable position
within a 2 minute timeframe (closing a position in loss
within the 2 minute timeframe does not constitute
scalping) |

