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
and you agree to be bound by these changes.
1.4
Our online foreign
exchange dealing 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 clicking the “register” button” 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 “register” button, below. By continuing to
access or use this website you agree that the terms and conditions in this
agreement apply to your use of the website.
2 ON-LINE ACCESS
2.1 In order to use our online foreign exchange dealing
service (on-line facility) you will need to request a username and
password (access code) from us when you provide your details in the
on-line application form.
2.2 We are entitled to reject your application to use the
on-line facility at our discretion and we do not allow people below the age of
18 to use the on-line facility. We will not be responsible for any loss or
damage you incur using the on-line 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;
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 on-line 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 affect and recover any losses we may have sustained as a
result of your breach.
3
ONLINE TRADING RULES
3.1 The on-line facility can only be accessed using your
access code which you will need to provide each time you wish to use the
on-line 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 contract
through the on-line 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 on-line facility. You are solely responsible for placing orders and
for all errors made in placing orders through the on-line facility.
3.5 An order placed through the on-line 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 on-line 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 on-line
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 on-line 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)
The Transaction’s end date is reached.
(iv)
An event of force majeure occurs.
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
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. If a Transaction is held to
the end date that you have nominated it is cash settled according to the
closing price of that currency, as quoted by us, on that particular day.
4.3
Our service does not provide a market amongst or between users of
the on-line 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 on-line 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 on-line 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 on-line 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 on-line 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.
d. If a
court holds us liable for any loss or damage relating to the use of the on-line
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 on-line 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 on-line 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
on-line facility;
b. access to foreign exchange
transactions and quotes; and
c. "bid" and "offer" prices in
respect of currencies,
through our on-line facility twenty-four
hours a day.
8.2 The on-line 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 on-line
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 on-line 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 on-line facility. We will post details of your account activity
online 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.
11 ROLLOVER
AND OFFSET INSTRUCTIONS
11.1 In the absence of timely instructions from you, we are
authorised, at our absolute discretion, to rollover 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 rollover all open positions on
your account to the following [business] day unless you notify us to close your
position(s) prior to 12AM. (GMT). We will charge a fee in respect of each
rolled over position.
12 CURRENCY
FLUCTUATIONS
12.1
If you enter into any currency Transaction
via the on-line 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
on-line 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 fund in accordance with
applicable laws.
13.3 You will automatically receive notification by email
and pop-up message when you execute[1][1] 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 on-line facility. 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 market is 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 a 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 on-line facility; and
d. regardless of any subsequent determination to the
contrary, you are eligible to trade in foreign exchange, trading in foreign
exchange 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 Information 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
on-line 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 clauses 20.2 to
20.6 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 on-line 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.
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
23.6 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 on-line,
no matter how convenient or efficient, does not necessarily reduce risks
associated with currency trading.
Additionally, you acknowledge that you
fully understand the nature and risks of currency trading and your obligations
to others will not be neglected should you suffer investment losses.
26
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 |
|
on-line facility |
means our online currency trading and account review
facility |
|
Transaction |
means an offer to buy or sell, or buy and sell, foreign
exchange, or currency, made and executed via the on-line facility |
|
Related Party |
has the same
meaning that it has in the Corporations Act 2001 (Cth) of |
|
Scalping |
means opening and closing
a position within a 2 minute timeframe |