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 Victoria, Australia and you agree to submit to the non-exclusive jurisdiction of the courts of Victoria.

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