This Agreement sets forth the terms and conditions governing your trading account which you (hereafter called “Customer”) will open with RSG Finance Ltd. (hereafter called the “Company”) for the purposes of engaging in trading transactions in the CFD market.
This Agreement includes the following annexes:
– Terms of Business;
– Risk Disclosure Statement;
– Trading Rules;
forming an integral part hereof. Customer shall accept each annex separately. Any references to the terms and conditions hereof shall include provisions contained herein, in annexes hereto, and in other rules, regulations and schedules established by Company for the purposes of cooperation with Customer. The Company may, in its sole discretion, modify or amend this Customer Agreement and annexes from time to time. All references to the terms and conditions of this Customer Agreement include the terms and conditions contained in this Customer Agreement and annexes hereto.
This Customer Agreement incorporates the Account Application Form (hereinafter “the Application”) which must be submitted to the Company together with this Customer Agreement. The Company shall rely on the information provided in the Application, and the Customer shall supply such information and guarantee that all such information is true, correct and accurate. The Customer shall undertake to inform the Company forthwith about any material changes in the supplied information.
PLEASE READ ALL OF THE MATERIAL CAREFULLY BEFORE YOU SIGN THE APPLICATION. YOU ALSO MUST SIGN THE ACKNOWLEDGEMENT PAGES WHERE INDICATED. TO OPEN A TRADING ACCOUNT THE COMPANY MUST RECEIVE ALL APPLICABLE COMPLETED AND SIGNED PAGES.
2. Definitions and Common Trading Terms
Definitions and common trading terms may be shown in bold or italics type the first time they are used in this Customer Agreement. The exact meanings of the defined terms used in this Customer Agreement are set out in Terms of Business (”Glossary of Terms”).
3. Scope of Customer Agreement
All Transactions and all Agreements entered into between Company and the Customer shall be governed by the terms of this Customer Agreement. Terms of any additional written statements of Company’s trading regulations or Company additional schedules which may from time to time be set forth or amended by the Company and which shall thereupon constitute an integral term of this Customer Agreement, except to the extent (if any) that Company shall agree or notify the Customer in writing that other or additional terms apply. Additionally, all transactions under this Customer Agreement shall be subject to the constitution, by-laws, rules, regulations, customs, usage, rulings and interpretations of the counterparty institution or other Interbank Market (and its clearing organization, if any) where such transactions are executed and to all applicable laws and regulations. If any statute shall hereafter be enacted or an rule or regulation shall hereafter be adopted which shall be binding upon Company and shall affect it in any manner or be inconsistent with any of the provisions hereof, the affected provision of this Customer Agreement shall be deemed modified or superseded, as the case may be by the applicable provisions of such statute, rule or regulation, and all other provisions of this Customer Agreement and provisions so modified shall in all respects continue in full force and effect. Customer acknowledges that all transactions under this Customer Agreement are subject to the aforementioned requirements and Customer shall not thereby be given any independent legal or contractual rights with respect to such requirements.
CFDs are not eligible for sale in certain jurisdictions or countries. All Agreements are not directed to any jurisdiction or country where its publication, availability or distribution would be contrary to local laws or regulations, including the United States of America. The Agreements do not constitute any offer, invitation or solicitation to buy or sell CFDs. The Agreements are not intended to constitute the sole basis for the evaluation of the Client’s decision to trade in CFDs.
Any proposals for, additions to, or modifications of this Customer Agreement, absent written agreement by an authorized person employed by Company to the contrary, are void and shall have no effect.
4. Services Rendered
Subject to the terms and conditions of this Customer Agreement, the Application accepted by the Company, the Company will maintain one or more trade accounts opened in Customer’s name, and make transactions with Customer in the CFD market. Unless expressly stated otherwise in written agreement between the Parties, all transactions entered into between the Company and Customer shall be governed by the terms of this Customer Agreement, including the annexes hereto, as may be amended from time to time and any other rules, regulations and schedules established by the Company.
This Customer Agreement refers and extends to a potential dealing relationship between the Customer and Company in OTC non-deliverable Foreign Exchange (Currencies) on a Spot Settlement Basis as is commonly dealt in the international Interbank Market, and all other provisions of this Customer Agreement notwithstanding, the Customer agrees, understands and warrants that the dealing relationship between the Customer and the Company hereunder shall not extend at any time to the dealing, trading, brokering of or advice related to any exchange listed, or off-exchange regulated commodity futures or options contract. Wherever the term(s) ”Currencies,” ”Foreign Exchange,” ”Foreign Currencies,” or ”Foreign Currency”, ”Indices”, ”Options”, ”Futures” are used in this Customer Agreement, Risk Disclosure Statement and/or Trading Rules or any annexes or exhibits the terms include transactions in the change in price of OTC non-deliverable precious metals on a Spot Settlement Basis as they are commonly dealt in the International Interbank Market.
Subject to the terms and conditions of this Customer Agreement, the full completion of the Account Setup Requirements and acceptance of Customer’s Application to open a Trading Account with Company, Company will open and maintain Trading Account(s) in Customer’s name for the purpose of engaging in cash settled transactions with and for Customer in CFD on a spot settlement basis including but not limited futures, options and other quotations that the Company may determine at its sole discretion, and provide such other services and products as Company may, in its sole discretion, determine to offer in the future. Unless expressly stated otherwise in writing, all Contracts and other transactions entered into between Company and Customer shall be governed by the terms of this Customer Agreement, including the Risk Disclosure Statement and Company Trading Rules, to the extent annexed hereto, and as amended from time to time.
The Company is not an investment advisor and does not give any trading or market recommendations, advice or instructions in its communications, including its online daily market analysis updates, which shall not be deemed to trading or market recommendations, advice or consultations on investments of any kind whatsoever.
The Customer shall not be entitled to ask the Company to provide investment advice or to make any statements of opinion to encourage the Customer to make any particular Transaction. The Company shall not provide physical delivery in relation to any Transaction. Profit or loss in the Currency of the Trading Account is deposited in/withdrawn from the Trading Account once the Transaction is closed.
The Company may from time to time and at its discretion provide information and recommendations in newsletters which it may post on its Website or provide to subscribers via its Website or otherwise. It will not be responsible for such information and recommendations and gives no representation, warranty or guarantee as to the accuracy, correctness or completeness, suitability or effect or consequences upon the Customer of such information and recommendations. It is provided solely to assist the Customer to make the Customer’s own investment decisions and does not amount to investment advice or unsolicited financial promotions to the Customer.
The Company reserves the right, at its discretion, at any time to refuse to provide the Services to the Customer and the Customer agrees that the Company will have no obligation to inform the Customer of the reasons.
The Customer Agreement will commence on the date on which the Customer receives notice from the Company as soon as the Company has received Account Application Form and other required information and documents from the Customer via e-mail or through the Trading Platform. The Customer warrants that before filling and providing the Company with Application Form has read, understood and unconditionally accepted this Customer Agreement including all annexes hereto. The Customer Agreement will continue unless or until terminated by either party in accordance with this Customer Agreement.
6. Trading Account
The Customer hereby instructs the Company to establish the Trading Account on Company’s books in the name of the Customer. The Customer acknowledges and accepts that the Trading Account will be maintained in U.S. Dollars or any other currency in accordance with the account type based on the terms provided by the Company, unless otherwise agreed between parties in writing.
The Customer represents, warrants and undertakes that the Customer is acting for the Customer’s sole benefit and not for or on behalf of any other person or entity and all Transactions are and will be carried out for the sole benefit of the Customer.
The Customer is the only person or entity authorized or permitted to enter into Transactions for the account. If the Customer appoints an agent, the Customer hereby acknowledges and agrees that he shall be solely responsible for all acts and/or omissions of the agent, and neither the Company nor any of its affiliates nor the officers, directors, managers, agents or employees of the Company or any Company’s affiliate shall be liability to the Customer for any such actions or omissions, whether or not within the scope of the agent’s authorization.
If the Customer is more than one person, all such persons shall be jointly and severally liable for all obligations of the Customer under this Customer Agreement. In such event (unless otherwise agreed in writing between the Customer and the Company) the sole person or entity authorized to enter into or close out Transactions for the Trading Account is the first of such persons mentioned.
The Company shall not be obliged but has the right from time to time at its sole discretion to pay interest to the Customer on any funds that the Company holds. The Customer waives all rights to interest.
7. Conflicts of Interest
The Customer acknowledges that the Company and its Associated Companies provide a diverse range of financial services to a broad range of customers and counterparties and circumstances may arise in which the Company, the Company’s Associated Companies may have a material interest in a Bet with or for the Customer or where a conflict of interest may arise between your interests and those of other customers or counterparties or of ourselves.
The Company will take all reasonable steps to identify conflicts of interests between ourselves, the Company’s Associated Companies and Company’s customers, or between one customer and another, that arise in the course of providing our investment service. The following are examples of such material interests and conflicts of interests:
a. The Company may effect or arrange for the effecting of a Bet with you or on your behalf in connection with which the Company, the Company’s Associated Companies may have other direct or indirect material interests;
b. The Company may execute hedging transactions prior to (i.e. in anticipation of) or following receipt from you of a request, or information concerning a contemplated request, to open or close a Bet in order to manage the Company’s risk in relation to Bet(s) you are entering into or contemplating, all of which may impact on the price you pay or receive in relation to such Bet(s) and any profits generated by such hedging may be retained by the Company or an Associated Company without reference to you;
c. The Company may match your Bet with that of another customer by acting on its behalf as well as yours;
d. The Company may pay to and accept from third parties (and not be liable to account to you) benefits, commissions or remunerations which are paid or received as a result of Bets conducted by you;
e. The Company may make a market in Bets, which you enter into under this Customer Agreement;
f. The Company may deal in the Underlying Market to which your Bets relate as principal for own account or that of someone else;
g. The Company may give investment advice or provide other services to another customer about or concerning the Underlying Market in relation to which you enter into a Bet;
The Company is not under an obligation to disclose that the Company, the Company’s Associated Companies have a material interest in a particular Bet with or for you, or that in a particular circumstance a conflict of interest exists, provided the Company has managed such conflicts in accordance with internal policy. Where the Company does not consider that the arrangements under Company’s internal policy are sufficient to manage any particular conflict, the Company will inform you of the nature of the conflict so that you can decide how to proceed. The Company is not under any obligation to account to you for any profit, commission or remuneration made or received from or by reason of Bets or circumstances in which the Company, the Company’s Associated Companies or a have a material interest or where in particular circumstances a conflict of interest may exist.
The Customer acknowledges that the Customer is aware of the possibility that the conflicts disclosed in this Customer Agreement will arise and consent to us acting notwithstanding such conflict.
8. Representations and Warranties
As of the date hereof, the date of each Contract and other transaction in Customer’s Trading Account and any date on which Company’s Risk Disclosure Statement or Trading Rules are revised, updated or amended, Customer represents and warrants the following to the Company and agrees to the following for the benefit of the Company.
Customer is of sound mind, legal age and legal competence. Customer (if not a natural person) is duly organized and validly existing under the applicable laws of the jurisdiction of its organization.
Execution and delivery of this Customer Agreement and all Agreements and other transactions contemplated hereunder and performance of all obligations contemplated under this Customer Agreement and all Agreements and other transactions contemplated hereunder have been duly authorized by Customer.
Each person executing and delivering this Customer Agreement and all Agreements and other transactions contemplated hereunder on behalf of Customer performing the obligations contemplated under this Customer Agreement and any agreement and other transaction contemplated hereunder on behalf of Customer, has been duly authorized by Customer to do so.
Execution and delivery by Customer of this Customer Agreement and all agreements and other transactions contemplated hereunder, and performance of all of Customer’s obligations contemplated under this Customer Agreement and any agreement and other transaction contemplated hereunder, will not violate any statute, rule, regulation, ordinance, charter, by-law or policy applicable to Customer.
Customer has full beneficial ownership of Customer’s Trading Account. Customer has not granted and will not grant a security interest in Customer’s Trading Account with Company (other than the security interest granted to the Company hereunder) to any person without Company prior written consent. Customer has full beneficial ownership of all Collateral as further defined below and will not grant any security interest in any Collateral to any person (other than the security interest granted to Company hereunder) without prior written consent of the Company.
Customer will execute and deliver all documents, give all notices, make all filings and take such other actions, as Company, in its sole discretion, deems necessary or desirable to evidence or perfect any security interest in favor of Company or to protect Company’s interests with respect to any Collateral.
Customer has read and understands the Risk Disclosure Statement contained in this Customer Agreement. Customer will review Company’s risk disclosures, including, without limitation, Risk Disclosure Statement, each time they are amended. Customer will not affect any opening transaction in Customer’s Trading Account unless Customer understands Company revised risk disclosures, and Customer agrees that in effecting any opening transaction it is deemed to represent that it has read and understands Company revised risk disclosures as in effect at the time of such opening transaction.
Customer has read and understands the Trading Rules contained in this Customer Agreement. Customer will review Trading Rules each time they are amended. Customer will not affect any opening transaction in Customer’s Trading Account unless Customer understands revised Trading Rules, and Customer agrees that in effecting any opening transaction it is deemed to represent that it has read and understands revised Trading Rules as in effect at the time of such opening transaction.
Customer acknowledges that Customer has conducted simulated trading using the Company’s Trading Platform or such other platform as Company shall make available for a period that has allowed the Customer to develop a full understanding of the Company’s Internet Trading Platform or such other platforms as the Company shall make available for online trading of CFD real-time trading.
All information provided by Customer to the Company, including information regarding Customer’s trading experience and investment sophistication, is true, correct and complete, and Customer will notify Company in writing promptly of any changes in such information.
The Customer represents and warrants that in determining the Customer’s liquid assets the Customer included only those Assets that can be immediately (within one day’s time) converted to Cash. The Customer represents and warrants that the Customer has very carefully considered the portion of the Customer’s assets which the Customer considers to be risk capital. The Customer recognizes that risk capital is the amount of money the Customer is willing to put at risk. The Customer agrees to immediately inform the Company in writing if the Customer’s financial condition changes in such a way to reduce the Customer’s Net Worth, Liquid Assets and/or Risk Capital.
Customer further represents that it has full power and authority pursuant to governing agreements and otherwise to enter into this Customer Agreement and to engage in transactions in foreign currency of the kind contemplated herein.
Customer has not been given any warranties whatever as to success of trading transactions in the CFD market by Company or any of its representatives or other authorized agents, if any, and has not entered into this Customer Agreement relying on, and/or being confident in obtaining said warranties or similar representations.
Customer acknowledges that it is Customer’s obligation to immediately notify the Company in writing if there is a change in Customer’s electronic mail address, or other location to which the electronic records may be provided. Customer acknowledges that it is Customer’s obligation to notify the Company in writing of the address or other location to which paper records may be provided, if necessary.
Conditions for trading transactions (currency pairs, indices, commodities, options, futures and other trading instruments; spreads, lot amounts, security requirements and other parameters) shall be established by the Company.
Conditions for trading transactions established by the Company are contained in the Trading Rules and/or schedules posted to Company’s official websites and/or otherwise brought to Customer’s attention. Company shall notify Customer of Company’s changes in conditions for trading transactions amid smooth market by means of early placement of changes on Company’s official websites and/or otherwise.
Customer authorizes Company to purchase and sell physically settled and cash settled CFDs on a spot basis for Customer’s Trading Account in accordance with Customer’s instructions received through the Company’s Online Trading System or via telephone to the Company’s Trading Desk, subject to the terms of this Customer Agreement, including the annexes hereto and the Application, including any applicable addenda thereto.
Customer agrees to be conclusively responsible for any instruction received electronically that is identified with Customer’s password and Trading Account number and for any electronic, oral and written instruction (including, but not limited to, any Order) to Company, in its sole judgment, believes are apparently authorized by Customer. If Customer’s Account is titled as a joint account, the Company is authorized to act on the instructions of any one owner, without further inquiry, with regard to trading in the Trading Account and the disposition of any and all assets in the Trading Account. The Company shall have no responsibility for further inquiry into such apparent authority and no liability for the consequences of any actions taken or failed to be taken by Company in reliance on any such instructions or on the apparent authority of any such persons.
The Company will make available, by posting on the Company’s Online Trading System or by telephoning the Company’s Trading Desk, Bid Prices and Ask Prices at which Company is prepared to enter CFDs with Customer. Each Bid Price or Ask Price shall be for a Spot Contract with a specified Value Date and shall specify each Eligible Foreign Currency or tradable U.S. Dollar-based currency pairs involved where applicable. Company expects that these prices will be reasonably related to the bid prices and ask prices available in the market at that time for similar transactions, but a number of factors, such as communication system delays, high volume or volatility can result in deviations between prices quoted by the Company and other sources.
When the Customer requests a market quotation from the Company, it may differ from the current price quoted by other sources, depending on the market condition. The Company expects that such quotations will adequately reflect current ask and bid prices in the market for similar transactions; however, a number of factors, such as communication system delays, high volumes or volatility, may result in deviations between prices quoted by the Company and other sources. The Company does not give any guarantee that its quotations will represent current ask and bid prices prevailing in the market but the Company makes every reasonable effort to represent the best ask and bid prices.
The Company makes no warranty, express or implied that Bid Prices and Ask Prices represent prevailing bid prices and ask prices; however, the Company makes every reasonable effort to represent such prices. In addition, these Bid and/or Ask Prices may reflect additional pips added to the Bid and/or Ask price that may result in an increase of the dealable spread available for the Customer’s Trading Account as well as a per trade or per lot commission and/or fees.
Company normally quotes bid prices (at which the Customer can offer to sell) and offer prices (at which the Customer can offer to buy) for each Transaction. The difference between the lower, bid, price and the higher, offer, price is the ”Spread.” For some Transactions, spreads may change frequently. In any event, the Company has the right to vary its spreads at any time in its absolute discretion without notice. Prices quoted by Company are set by Company in its absolute discretion. The Customer may only offer to enter into a Transaction at the price currently quoted by Company. A price may change or cease to be valid at any time after it has been quoted and before the Customer’s offer to enter into a Transaction is accepted. In the case of difference between the market current quotation and the Company’s spot price, the Company may offer a new spot price and the Customer is obliged to accept transaction or refuse from such acceptance.
The Company will attempt to execute all Orders that it may, in its sole discretion, accept from Customer in accordance with Customer’s instructions received through the Company’s Online Trading System or via telephone to the Company’s Trading Desk. In cases where the prevailing market represents prices different from the prices Company has posted on Company’s screen, Company will attempt, on a best efforts basis, to execute trades on or close to the prevailing market prices. These prevailing market prices will be the prices, which are ultimately reflected on the Customer Statements. This may or may not adversely affect customer realized and unrealized gains and losses. All Contracts made and entered into by the Company hereunder will be entered into by the Company as principal. Customer acknowledges, understands and agrees that Company is not acting as a broker, intermediary, agent, and advisor or in any fiduciary capacity.
Customer acknowledges, understands and agrees that all non-market orders such as Limit Orders, Stop/Loss Orders, One Cancels the Other Orders, Day Only Orders, and Good till Cancelled Orders, are accepted by Company and undertaken on an “best-efforts basis” in accordance with the relevant provisions of the Trading Rules, as amended from time to time.
The Company or its affiliates may, at a future date, establish a trade matching system or determine to route Customer’s orders to a trade matching system operated by third parties. In that event, Company, and/or any one or more of its affiliates, shall have the right (but not the obligation), in the sole discretion of Company or any such affiliate, to act for its own account, and as a counter party or as a broker to Company customers, in the making of markets and the purchase and sale of CFDs via any medium, including without limitation, over any trade matching network in use by Company customers and/or the general public.
As the Company does not control signal power, data transmission and receipt via Internet, or configuration of the Customer’s computer equipment and reliability of its connection, the Company cannot be held responsible for any data communication failure, distortion or delay when the Customer trades on-line (via Internet). Trading through the Company’s trading system may differ from trading by telephone or through other electronic trading systems. When the Customer makes transactions through the electronic trading system, the Customer is exposed to the risks inherent in the system, such as the failure of equipment, software, or Internet connection, and the Customer’s personal computer security. The Company shall have no responsibility for delays in the transmission of orders due to disruption, failure or malfunction of communications facilities and to any reasons beyond its control and shall not be liable for any claims, losses, damages, costs or expenses, including attorneys’ fees, to any person or entity arising other than as a direct result of Company’s gross negligence. Any disputes arising out of such quoting errors shall be settled by negotiations.
Any transactions entered into and made with the Company shall be concluded with the Company as a market maker except for the Company’s external market transactions. The Customer acknowledges, understands and agrees that the Company shall not act as a broker, intermediary, agent, and advisor or in any fiduciary capacity. The Customer acknowledges, understands and agrees that the Company reserves the right to refuse to accept any order; all orders shall be executed in compliance with the Trading Rules; the Company may cancel any erroneous transaction resulting from mistaken (nonmarket) quotation, transmission errors, illegal network interventions, internet failures, interruptions or any other reasons.
The Customer acknowledges that he understands and fully and solely assumes the risks involved in providing telephone instructions, including the risks of possible misunderstanding of the Customer’s instructions, impostures and/or false identification of the Customer on the phone.
The Company shall in its discretion keep a record of all transactions made by the Customer. The records of the Company shall be final and binding upon the Customer in any disputes, including legal proceedings, and shall serve as the best evidence.
Customer knows and does not object that the Company may, at its sole discretion and option, record telephone conversations with Customer; such recordings will be confidential and may be used exclusively as evidence, should disputes and conflicts arise.
Customer knows and does not object that the Company may, at its sole discretion and option, archive and save any correspondence with Customer, including electronic correspondence; such recordings will be confidential and may be used exclusively as evidence, should disputes and conflicts arise.
The Customer acknowledges that he understands and fully and solely assumes the risks involved in providing telephone instructions, including the risks of possible misunderstanding of the Customer’s instructions, impostures and/or false identification of the Customer on the phone.
Customer acknowledges and agrees that all conversations between Customer and Company personnel, including but not limited to principals, agents, employees or associates, may at the sole option and discretion of Company, be recorded electronically with or without the use of an audible, automatic warning tone. Customer further agrees to the use of such recordings and transcripts thereof as evidence by either Party in connection with any dispute or proceeding that may arise involving Customer or Company. Customer understands that Company destroys such recordings at regular intervals in accordance with Company established business procedures and at its sole discretion, and Customer.
9.4. Limits and Margin
The Company reserves the right to limit the number of Open Positions that Customer may enter or maintain in Customer’s Trading Account. Company reserves the right, in its sole discretion, to refuse to accept any Order opening a new position or increasing an Open Position.
The Company reserves the sole discretionary right to limit the number of Open Positions which Customer may enter, acquire or maintain with the Company, to refuse acceptance of any Order entered by Customer or to alter its dealing relationship with the Customer to include or exclude use of any electronic trading network or other trade execution method in any manner and to any extent.
Customer shall provide to and maintain with the Company Margin in such amounts and in such forms, and within such limits as the Company, in its sole discretion, may from time to time require. Margin requirements, including Initial (Opening) Margin and Maintenance Margin requirements, are at Company’s discretion. The Company may change Margin requirements at any time without prior notice.
CUSTOMER AGREES TO MAINTAIN SUFFICIENT MARGIN IN CUSTOMER’S TRADING ACCOUNT WITHOUT NOTICE FROM THE COMPANY.
Such first Initial (Opening) Margin may be made by bank transfer or credit card payment or such other method as may be agreed between the Company and the Customer. Such first deposit together with subsequent Margin made by the Customer from time to time and any profits and losses from existing open and closed Transactions, credits and debits from daily rollovers, and charges from commissions, if applicable, shall serve as the guarantee for the performance of Transactions in the Trading Account. Please note the Company will not accept any third party payments made in respect of funding your account. Similarly, the Company will not pay out any funds from your account to any third party. If the Customer fails to provide any Margin, deposit or other sum due in respect of any transaction Company may close all Open Positions without prior notice and in such case any sums referred to therein which are not denominated in the Currency of the Trading Account shall be treated as if they were denominated in the Currency of the Trading Account by converting them into the Currency of the Trading Account at the relevant exchange rate for spot dealings in the CFD market.
It is the Customer’s responsibility to notify the Company as soon as the Customer believes that the Customer will be unable to meet a Margin payment when due.
In the event that Customer directs the Company to sell any Margin, Collateral, Contract or other property and the Company is unable to deliver such Margin, Collateral, Contract or other property to a purchaser because Customer fails to deliver it to the Company, the Company may borrow or purchase any Margin, Collateral, Contract or property necessary to make such delivery, and Customer hereby agrees to guarantee and hold the Company harmless against any liability, claim, loss, damage, cost or expense, including attorneys’ fees that the Company may sustain.
The Company is not obliged to make Margin Calls for the Customer. The Company is not liable to the Customer for any failure by the Company to contact, or attempt to contact the Customer.
The amounts payable under the Operative Agreements are automatically converted by the Company into the Currency of the Trading Account at the relevant exchange rate for spot dealings in the CFD market. If the aggregate amount payable under the Operative Agreements by the Customer equals the aggregate amount payable under the Operative Agreements by the Company, then the obligations to make payment of any such amount will be automatically satisfied and discharged.
If the aggregate amount payable under the Operative Agreements by one party exceeds the aggregate amount payable under the Operative Agreements by the other party, then the party with the larger aggregate amount shall pay the excess to the other party and all obligations to make payment will be automatically satisfied and discharged.
The Customer obligations to pay any due amount shall include all commissions, charges and other costs determined by the Company.
9.6. Transfer of Funds
All transfers of funds shall be made at Customer’s expense. Customer knows and accepts the condition that in case of funds withdrawal from Trading Account the Company will deduct from Customer’s funds the amounts required to cover Company’s expenses related to the funds transfer.
The Customer agrees that the Company shall charge a commission for each bank transfer to cover the transfer costs.
Transfers to any third parties shall NOT be permitted. All other transfers must be in the name of the holder of the account.
Customer agrees hereby that Company may at any time, in the sole judgment of the Company, apply and transfer from Customer’s account to any of Customer’s other accounts held with the Company or an affiliate of the Company or other approved financial institution or its associates any of the moneys, currencies or other property of Customer held either individually or jointly with others to another regulated account of the same said Customer.
Basic settlement currencies for monetary relations between the Company and Customer shall be U.S. Dollars. Settlements in other currencies shall be made exclusively at the sole discretion of the Company. Customer understands that if it is necessary to convert currencies for the purposes of monetary relations between Company and Customer, such actions will be made by Company at Customer’s expense by deducting from Customer’s funds the amounts required to cover Company’s expenses related to such conversion.
10. Risk Acknowledgements
CUSTOMER ACKNOWLEDGES AND UNDERSTANDS THAT TRADING AND INVESTMENT IN LEVERAGED CFD CONTRACTS IS HIGHLY SPECULATIVE, INVOLVES AN EXTREME DEGREE OF RISK, AND IS GENERALLY APPROPRIATE ONLY FOR PERSONS WHO CAN ASSUME RISK OF LOSS IN EXCESS OF THEIR MARGIN DEPOSIT.
Customer understands that because of the low margin / high leverage normally available in CFD trading, price changes in CFD may result in significant losses. Such losses may substantially exceed Customer’s investment and Margin deposit. By Customer directing Company to enter into any leveraged CFD Contract, any profit or loss arising as a result of a fluctuation in the exchange rate affecting such Currency will be entirely for the Customer’s account and risk, all initial and subsequent deposits for Margin purposes shall be made in U.S. Dollars or in other currency in accordance with the type of Trading Account and its currency, in such amounts as Company may in its sole discretion require; and Company is authorized to convert funds in Customer’s account for Margin into and from such account currency at a rate of exchange determined by Company in its sole discretion on the basis of the then prevailing money market rates. Customer warrants that the Customer is willing and able, financially and otherwise, to assume the risk of leveraged CFD trading. In consideration of Company carrying his/her Account(s), Customer agrees not to hold Company responsible for losses incurred through following its trading recommendations or suggestions or those of its employees, agents or representatives. Customer recognizes that guarantees of profit or freedom from loss cannot be given and it is impossible to predict performance in leveraged CFD trading. Customer acknowledges that Customer has received no such guarantees from Company or from any of its representatives or any Introducing Broker or other entity with whom Customer is conducting his/her Company account and has not entered into this Customer Agreement in consideration of or in reliance upon any such guarantees or similar representations. All transactions effected for Customer’s Trading Accounts and all fluctuations in the market prices of the Contracts carried in Customer’s Trading Accounts are at Customer’s risk, and Customer shall be solely liable therefore under all circumstances. Customer represents and warrants that Customer is willing and financially able to sustain such losses, and that the trading of leveraged CFD is a suitable investment vehicle for the Customer. The Company is not responsible for delays or partial or total failures in any online (electronic) Trading Platforms or any communications facility or other causes beyond Company’s reasonable direct control.
The Customer understands and recognizes that the transactions to be conducted pursuant to this Customer Agreement are NOT conducted on a Regulated Market or Exchange. Customer represents that it is aware of the risks inherent in the trading of leveraged CFD and is financially able to bear such risks and withstand any losses incurred.
11. Fees, Commissions and Charges
The Customer shall be obliged to pay the Company the commissions, charges and other costs set out in the Contracts Specifications. The Company will display all current commissions, charges and other costs on its Website.
The Company may vary commissions, charges and other costs from time to time without prior notice to the Customer. All changes in commissions, charges and other costs including the changes in rollover/interest policy, which are displayed on the Website.
The Customer realizes that the Company derives compensation from spread. The Company may charge for incidental banking costs, such as charges for bank transfers in the event of withdrawal of funds. The Company reserves the right to change its existing incidental fee structure at any time and without notice. When trading transactions are conducted with CFD instruments, Company charges Customer a commission, which may be determined by Company per each instrument separately. The Company reserves the right, at its sole motivated discretion, to introduce changes in the existing structure of commissions and fees. The Company is not a tax agent as related to Customer; hence, it does not withhold any amounts for the purposes of Customer’s taxation.
The Company will not be under any obligation to disclose to, or to account to the Customer for, any profit, benefit, commission or other remuneration made or received by the Company due to any Transaction or investment, unless otherwise agreed in the Operative Agreements.
Customer acknowledges and agrees that the Company will deduct commissions/fees from Customer’s Trading Account(s), which will reduce account value. The Company reserves the right to liquidate positions if commissions or other charges cause a Margin deficiency. Before you begin trading with the Company, you should obtain a clear explanation of all charges (i.e. commissions, fees, spreads, markups and markdowns, etc.) for which you will be held legally responsible to pay. These charges will have a direct affect on the net results of your trading strategy. Frequent trading will result in increased charges that will have an overall affect on your trading performance.
12. Customer’s Money
The Customer may deposit funds into the Trading Account at any time. Customer shall deposit funds to their trade account with the Company by cashless transfer to Company’s settlement account or in other form determined by the Company at its sole discretion.
Customer may withdraw funds deposited to their trade account and/or profit gained through trading transactions from any of their trade accounts to Customer’s bank accounts or to any other payment service provider accounts by virtue of which the Customer credit its account. Transfer (Withdrawal) of funds to accounts of any third party is not allowed.
Customer shall withdraw funds from their trade account in accordance with the effective rules and regulations established by the Company.
Per a general rule, funds may be withdrawn from trade accounts in any amount; still, to keep the account active, Customer is required to comply with the open position collateral requirements.
It is not Company’s obligation but the Company has the right from time to time at Company’s sole discretion to pay interest to you on any of your money that the Company holds and by entering into this Agreement, you acknowledge that you therefore waive any entitlement to interest on such money.
In the event that there has been no movement (deposit/withdrawal, trading transaction in the case of no Open Positions) on your account balance for a period of at least six months (notwithstanding any payments or receipt of charges, interest or similar items) and the Company is unable to trace you despite having taken reasonable steps to do so, you agree that the Company may cease to treat your money as Customer’s money and further that ownership of such money will be irrevocably transferred from you to the Company.
13. Confirmations and Reports
Confirmation of trades will be made online as the trades are executed and should immediately be reflected in the Customer’s Trading Platform.
Reports and all online position windows and statements of Accounts for Customer shall be deemed correct and shall be conclusive and binding upon Customer if not objected to by telephone immediately upon receipt and such objection is confirmed in writing within two (2) Business Days after the transmission to Customer or if the Company does not change the confirmed execution price and details. The Company reserves the right to change confirmed rates, prices or trade details of executed and confirmed deals if the Company determines the electronic or verbal price or details from that deal were executed in error. Margin Calls or trade corrections shall be conclusive and binding unless objected to immediately by telephone, fax or email.
Conditions and other data as to conducting each trade shall be set forth in the confirmation sent to Customer electronically, and is evidence of the completed transaction. If for some reason Customer did not receive confirmation, including due to a computer bug, the transaction will not be void, and records made by Company in connection with this transaction will serve as indisputable evidence of conditions and other data of the transaction conducted. Transactions conducted on-line via the electronic trading platform will be confirmed on-line as the trade is executed, and transactions conducted over the telephone will be confirmed verbally as the trade is executed, on-line on the screen of the trading terminal and in the form of statements sent electronically to 24:00 hrs. (Central European Time) of the day when the Transaction is executed.
Statements will be sent to Customer monthly, electronically to Customer’s e-mail indicated by them when executing the Customer Agreement. Confirmations and changes per Customer’s account shall be deemed correct, and become final and binding for Customer upon expiration of 2 (two) Business Days after being sent to Customer electronically or via e-mail. Customer’s objections as to the information contained in confirmations, account statements, and other information having to do with Customer’s account shall be made in writing or in the form of an electronic document, and must contain sufficient information so that the issue or error could be detected.
Customer understands and acknowledges that oral information provided by the Company to Customer regarding confirmations of trades and statements of Trading Account may be unverified and incomplete due to delays in transmission and other factors beyond Company’s reasonable control. Customer therefore acknowledges and agrees that any reliance upon such oral information is at Customer’s risk and Customer further agrees to immediately bring to Company’s attention any such oral information which Customer has reason to believe is inconsistent with Customer’s own information. No provision of this Customer Agreement shall operate to prevent Company from correcting any error or omission upon discovery. The Customer agrees that such errors, whether resulting in a profit or loss, shall be corrected and Customer’s Trading Account will be credited or debited in such manner and extent as to place the Trading Account in the same position in which it would have been had the error not occurred. The Company reserves the right to be the final arbiter relating to disputed Orders.
Customer is entitled to object to the confirmation and other statements via e-mail or through the personal area of the Company’s Internet Trading Platform within the time frames above indicated, but any of such claims must be duplicated and sent to the Company via e-mail or regular mail within 2 (two) subsequent business days. Absence of claims within said period shall mean that Customer confirms correctness of any actions of the Company made prior to receipt of such statements by Customer. Customer’s failure to receive a confirmation shall not relieve Customer of the obligation to object as set forth herein. Customer agrees to promptly notify the Company of any information received from Company that Customer for some reasons thinks contradicting Customer’s proper information. Customer understands, confirms and realizes that errors, whether resulting in a profit or loss, shall be corrected, and Customer’s account will be credited or debited in such manner and extent as to place the account in the same position in which it would have been had the error not occurred. In terms of receipt of confirmations and/or statements, the operation of this paragraph does not extend to relations that involve electronic document management with the use of elements of strict identification/authentication and/or electronic digital signature.
Customer’s reports, statements, notices and any other outbound communications will be available online in the Private Office and in the Internet Trading Platform and Customer monthly statements will be available by posting e-mail fixed in the records of the Company.
We are not obliged to send you a paper copy of messages, reports, statements, notices sent to you by email or posted to Company’s Website/Internet Trading Platform. Sending messages, reports, statements, notices to you by email or by posting it to Company’s Website/Internet Trading Platform in a durable medium fully complies with all Company’s obligations under the Customer Agreement.
Reports, statements, notices and any other communications may be transmitted to Customer at the address set forth herein, or to such other address as Customer may from time to time designate in writing to the Company. All communications sent, whether by mail, telegraph, e-mail, fax, messenger or otherwise, shall be deemed transmitted by the Company when deposited in mail, or when received by a transmitting agent, or communications or recording device, designated by Customer or otherwise within Customer’s actual or constructive control, and such communication shall be deemed delivered to Customer personally, whether actually received by Customer or not, and Customer hereby waives all claims resulting from failures to receive such communications. All communications sent by Customer shall not be deemed effective until accepted by the Company. Customer shall notify the Company immediately in writing of any change in Customer’s address by e-mail to [email protected]
All contact details provided by the Customer, e.g. address, email address or fax number as last notified will be used as applicable. The Customer agrees to accept any notices or messages from the Company at any time.
Customer undertakes to promptly notify the Company of any change in their mailing or e-mail address by sending a message to the Company via e-mail, by mail or other correspondence courier service.
Any outbound correspondence of the Company shall be deemed transmitted to Customer and in force when transferred to a mail service for delivery or other courier service, or when received by a transmitting agent (e.g. an Internet service provider) to be re-sent to Customer, whether actually received by Customer or not.
Neither the Company nor any of its affiliates, officers, directors, managers, employees or agents shall be liable for any loss, damage or debt to the Customer arising directly or indirectly out of or in connection with this Customer Agreement or any Transaction, except in the event of gross negligence or wilful misconduct on the part of the Company, its affiliates, officers, directors, managers, employees or agents.
The Customer agrees to indemnify and hold Company, and Company’ affiliates, officers, directors, managers, employees, agents, successors and assigns (”Indemnified Persons”), harmless from and against any and all liabilities, losses, damages, costs and expenses (including reasonable attorney’s fees) incurred by the Indemnified Persons and each of them arising out of the Customer’s failure to comply with any and all of its obligations set forth in this Customer Agreement and/or Company’ enforcement against the Customer of any and all of its rights under this Customer Agreement.
Except as otherwise expressly stated herein, Customer also agrees to pay promptly to Company all damages, costs and expenses, including attorney’s and other professional fees, incurred by Company in the enforcement of any of the provisions of this Customer Agreement, any other agreements between Company and Customer, and any Contracts and other transactions hereunder.
The Customer acknowledges and agrees that any oral information given to the Customer concerning the Account, if given, may be unverified and incomplete and that any reliance on such information is at the Customer’s sole risk and responsibility. Company makes no warranty, express or implied, that any pricing or other information provided by it, through the Trading Platform or by telephone or otherwise is correct or reflects current market conditions. Furthermore, Company does not make any warranty or guarantee with respect to the Trading Platform and/or its content, including but not limited to, warranties for merchantability or fitness for a particular purpose. If a quoting error (known to the Customer or of which the Customer should reasonably have been aware) occurs due to a mistake by Company or due to a computer or system malfunction, Company will not be liable for any resulting errors in the Customer’s Account balances. Company reserves the right to make such corrections or adjustments to the Account involved in any such error, as it considers appropriate in its discretion. Any dispute arising from such quoting errors will be resolved based on the fair market value of the underlying product at the time the error was made.
To avoid misinterpretation of this Customer Agreement, Company shall not be responsible for:
a. any damage caused, directly or indirectly, by any events, actions or omissions beyond the control of Company, including delays in transmission of orders due to disruption, failure, or malfunction of communication or data transmission facilities, delay or distortion in the transmission of orders and/or information due to a breakdown in or failure of transmission or communication systems, power supply interruption, damage to the Customer’s computer or related equipment through software application or other causes beyond control of Company;
b. any loss or damage resulting, directly or indirectly, from any claims, losses, damages, costs and expenses, including attorney’s fees, to any natural person or entity, arising other than as a direct result of gross negligence or malfeasance committed by Company, and under no circumstances shall Company be responsible for consequential or special damages. Company shall not be liable for any claim, loss or damage arising from any actions by any agent or by the Customer.
Customer confirms that they conduct transactions exclusively at their own expense and risk and have no arrangements with any of Company’s employees or its agents in terms of conducting transactions per Customer’s account, including arrangements that guarantee profit or limitation of loss per Customer’s account. No arrangement or promise of this kind was authorized or is legal. Customer understands that they undertake to promptly notify Company in writing of any arrangement or promise of this kind with any person stating or allegedly acting on behalf of Company. Moreover, Customer understands that any promise made by anyone regarding Customer’s account, that differs from statements Customer receives from Company, must be immediately brought to the attention of Company in writing. Customer understands that they undertake to authorize any transactions prior to execution thereof, and any disputable transactions must be brought to the attention of Company. Customer agrees to indemnify and hold Company harmless for any damage, which may arise because of Customer not notifying Company promptly of any above event.
16. Intellectual property and Confidentiality
The Customer shall not have any rights to the Trading Platforms, except for the right to have access to and use the Platform for the purposes set forth in this Customer Agreement. The Customer acknowledges that the Trading Platform is confidential and is a property of Company and those significant intellectual resources, time; efforts and money have been spent for its development. The Customer may not copy, reproduce, modify, decompile, reverse engineer or convert the trading platform or the manner in which it operates.
All copyright, trademark, trade secrets and other intellectual property rights in the Company Trading System or Company Online Trading System (“Trading System(s)”) shall remain at all times the sole and exclusive property of the Company and/or its 3rd party service providers and Customers shall have no right or interest in the Trading System(s) except for the right to access and use the Trading System(s) as specified herein. Customer acknowledges that the Trading System(s) are confidential to the Company and/or its 3rd party service providers and have been developed through the expenditure of substantial skill, time, effort and money. The Customer will protect the confidentiality of the Company and/or its 3rd party service providers by allowing access to the Trading System(s) only by its employees and agents on a need to access basis. Customer will not publish, distribute, or otherwise make information available to third parties any information derived from or relating to the Trading System(s). Customer will not copy, modify, decompile, reverse engineer, and make derivative works of the Trading System(s) or in the manner in which it operates.
The information, which the Company holds about the Customer is confidential and will not be used for any purpose other than in connection with the provision of the Services. Information of a confidential nature will be treated as such provided that such information is not already in the public domain. Information of a confidential nature will only be disclosed to any person other than an Affiliate of the Company, in the following circumstances:
(a) where required by law or if requested by any regulatory authority or exchange having control or jurisdiction over the Company (or any respective associate);
(b) to investigate or prevent fraud or other illegal activity;
(с) to any third party in connection with the provision of Services to the Customer by the Company;
(d) he initiation by a third party of proceedings for the Customer’s bankruptcy (if the Customer is an individual) or for the Customer’s winding-up or for the appointment of an administrator or receiver in respect of the Customer or any of the Customer’s assets (if the Customer is a company) or (in both cases) if the Customer makes an arrangement or composition with the Customer’s creditors or any procedure which is similar or analogous to any of the above is commenced in respect of the Customer;
(e) where any representation or warranty made by the Customer in clause 8 is or becomes untrue;
(f) the Customer is unable to pay the Customer’s debts when they fall due;
(g) the Customer (if the Customer is an individual) dies or becomes of unsound mind; or
(h) any other circumstance where the Company reasonably believes that it is necessary or desirable to take any action set out thereinafter.
If an Event of Default occurs the Company may, at its absolute discretion, at any time and without prior notice, take one or more of the following steps:
a. close or part-close all or any of your Bets at a Closing Level based on the then prevailing quotations or prices in the relevant Underlying Markets or, if none, at such levels as the Company considers fair and reasonable and/or delete or place an Order on your account with the aim of reducing your exposure and the level of Deposit/ Margin or other funds owed by you to us;
b. convert any Currency balances on your account into another Currency;
c. debit the Customer’s Trading Account(s) for the amounts which are due to the Company;
d. retain any funds, investments (including any interest or other payment payable thereon) or other assets due to you, and sell them without notice to you at such price and in such manner as the Company, acting reasonably, decide, applying the proceeds of sale and discharging the costs of sale;
e. close any or all of the Customer’s Trading Accounts held with the Company;
f. refuse to open new Trading Accounts for the Customer.
You acknowledge and agree that, inclosing out Bets under this clause, it may be necessary for the Company to ’work’ the order. This may have the result that your Bet is closed out in tranches at different bid prices (in the case of Sells) or offer prices (in the case of Buys), resulting in an aggregate closing level for your Bet that results in further losses being incurred on your account. You acknowledge and agree that the Company shall not have any liability to you as a result of any such working of your Bets.
If you have failed to make a payment when due the Company may at our absolute discretion at any time and without prior notice inform your partner, employer, any professional, regulatory or other organization with which you are associated or any person who the Company believes to have an interest in knowing such facts of the amount of such overdue sum, the fact you have failed to make a payment and any other relevant facts or information. By entering into this Customer Agreement, you expressly consent to any disclosure of this data by the Company in the circumstances set out herein.
17. Amendments and Termination
Customer understands, acknowledges and agrees that relations hereunder are of continuous character; with a view to that, events may occur such as changes in market circumstances and conditions, changes in normal business customs and practices currently existing in the market, other circumstances and conditions relevant for Company and affecting the Company’s operations.
With a view to the above said, the Company reserves the right to introduce amendments at any time or change this Customer Agreement, including all and any annexes hereto, and change the sequence of work and operations. The Company will notify Customer of any amendment or change by posting such amendment or change to its official website at http://www.excofinance.com and/or notifying Customer accordingly via e-mail.
Customer agrees that said amendment or change shall come into force and become binding not earlier than 10 (ten) days after the Company posted notification of such amendment to its official website at http://www.excofinance.com and/or notified Customer of such change via e-mail. Customer understands that the rules set forth in this paragraph shall not extend to the terms of Force-Majeure market condition.
This Customer Agreement shall continue in effect until termination, and may be terminated by Customer at any time when Customer has no open positions and/or no liabilities held by or owed to the Company, upon the actual receipt by the Company of written notice of termination with 3 (three) days prior to termination in writing via e-mail, by mail or any other correspondence courier service in accordance with the provisions set forth in clause 14 hereof. This Customer Agreement may be terminated by the Company at any time whatsoever upon the transmittal of written notice of termination to Customer; provided, that such termination shall not affect any transactions previously entered into and shall not relieve either party of any obligations set forth in this Customer Agreement. Any such notice of termination by the Customer shall not relieve Customer of any obligations arising out of any deficit balance.
Any such termination will not affect any obligation, which has already been incurred by either the Customer or the Company in respect of any Open Position or any legal rights or obligations, which may already have arisen under the Operative Agreements or any Transactions and deposit/withdrawal operations made thereunder. Termination by any party shall not extend to any contract or other prior transactions conducted, and shall not relieve any party from its respective obligations hereunder.
Upon termination of this Customer Agreement, the Company will be entitled without prior notice to the Customer to cease to grant the Customer access to the Trading Platform.
Upon termination of this Customer Agreement, all amounts payable by the Customer to the Company will become immediately due and payable including (but without limitation):
(a) all outstanding fees, charges and commissions;
(b) any dealing expenses incurred by terminating this Customer Agreement and charges incurred for transferring the Customer’s investments to another investment firm; and
(c) any losses and expenses realized in closing out any Transactions or settling or concluding outstanding obligations incurred by the Company on the Customer’s behalf.
18. Manifest Error
The Company reserve the right to, without Customer’s consent, either void from the outset or amend the terms of any Bet containing or based on any error that the Company reasonably believe to be obvious or palpable (a ”Manifest Error”). If, in Company’s discretion, the Company chooses to amend the terms of any such Manifestly Erroneous Bet, the amended level will be such level as the Company reasonably believes would have been fair at the time the Bet was entered into. In deciding whether an error is a Manifest Error the Company must act reasonably and the Company may take into account any relevant information including, without limitation, the state of the Underlying Market at the time of the error or any mistake in, or lack of clarity of, any information source or pronouncement upon which the Company bases its quoted prices. Any financial commitment that the Customer has entered into or refrained from entering into in reliance on a Bet with the Company will not be taken into account in deciding whether or not there has been a Manifest Error. In the absence of willful default or fraud by the Company we will not be liable to the Customer for any loss, cost, claim, demand or expense following a Manifest Error (including where the Manifest Error is made by any information source, commentator or official upon whom we reasonably rely).
If a Manifest Error has occurred and the Company chooses to exercise any of Company’s rights under this clause, and if you have received any monies from the Company in connection with the Manifest Error, the Customer agrees that those monies are due and payable to the Company and the Customer agrees to return an equal sum to the Company without delay.
19. Force Majeure
The Company may, in its reasonable opinion, determine that an emergency or an exceptional market condition exists (a ”Force Majeure Event”), in which case the Company will, in due course take reasonable steps to inform the Customer. A Force Majeure Event will include, but is not limited to, the following:
(a) any act, event or occurrence (including, without limitation, any strike, riot or civil commotion, act of terrorism, war, industrial action, acts and regulations of any governmental or supranational bodies or authorities) that, in our opinion, prevents the Company from maintaining an orderly market in one or more of the Indices in respect of which the Company ordinarily accepts Bets;
(b) the suspension or closure of any market or the abandonment or failure of any event upon which the Company bases, or to which the Company in any way relates, its quote, or the imposition of limits or special or unusual terms on the trading in any such market or on any such event; or
(с) the occurrence of an excessive movement in the level of any of Company’s Indices and/or any corresponding market or Company’s anticipation (acting reasonably) of the occurrence of such a movement;
(d) any breakdown or failure of transmission, communication or computer facilities, interruption of power supply, or electronic or communications equipment failure; or
(e) the failure of any relevant supplier, broker, agent or principal of ours, exchange, clearing house or regulatory or self-regulatory organization, for any reason to perform its obligations.
If the Company determines that a Force Majeure Event exists the Company may at its absolute discretion without notice and at any time take one or more of the following steps:
(a) increase Customer’s Margin requirements;
(b) close any or all of Customer’s open Bets, other than any Controlled Risk Bet, at such Closing Level as the Company reasonably believes to be appropriate (and, in the case of a Controlled Risk Bet, where there is no quotation available, the Company may close any such Bet at the time when the Company reasonably believes that, but for the existence of the Force Majeure Event, the level set by the Customer for closing the Bet would have been reached);
(c) suspend or modify the application of any or all of the terms of this Customer Agreement to the extent that the Force Majeure Event makes it impossible or impractical for the Company to comply with the term or terms in question; or
(d) alter the Determination Date for a particular Index.
The Company will not be responsible for delays in the transmission of orders due to a breakdown or failure of transmission or communication facilities, electrical power outage or for any other cause beyond The Company’s control or anticipation. The Company shall only be liable for its actions directly attributable to gross negligence, willful default or fraud on the part of the Company. The Company shall not be liable for losses arising from the default of any agent or any other party used by the Company under this Customer Agreement.
20. Entire Agreement and Severability
This Customer Agreement, together with the full Customer Account Application, Trading Rules, Terms of Business, Risk Disclosure Statement and all applicable written Annexes thereto, embodies the entire Customer Agreement of the parties, superseding any and all prior written and oral agreements. If any provision of this Customer Agreement or the application thereof to any Transaction, person or circumstance will be invalid, illegal, or unenforceable to any extent, the remainder of this Customer Agreement and the application thereof will not be affected and will be enforceable to the fullest extent permitted by law.
21. Binding Effect
This Customer Agreement shall be continuous and shall cover, individually and collectively, all Accounts of Customer at any time opened or reopened with the Company, irrespective of any change or changes at any time in the personnel of the Company or its successors, assigns, or affiliates. This Customer Agreement, including all authorizations, shall inure to the benefit of the Company and its successors and assigns, whether by merger, consolidation, or otherwise and shall be binding upon Customer and/or the personal representatives, heirs, executor, administrator, trustee, legatees, legal representative, successors and assigns of Customer.
The Company has the right to suspend the Customer’s Trading Account at any time for any good reason with or without written notice to the Customer.
In the event that a situation arises that is not covered under the Operative Agreements, the Company will resolve the matter on the basis of good faith and fairness and, where appropriate, by taking such action as is consistent with market practice.
No single or partial exercise of, or failure or delay in exercising any right, power or remedy (under these terms or at law) by the Company shall constitute a waiver by the Company of, or impair or preclude any exercise or further exercise of, that or any other right, power or remedy arising under the Operative Agreements or at law.
Any liability of the Customer to the Company under the Operative Agreements may in whole or in part be released, compounded, compromised or postponed by the Company in its absolute discretion without affecting any rights in respect of that or any liability not so waived, released, compounded, compromised or postponed. A waiver by the Company of a breach of any of the terms of the Operative Agreements or of a default under these terms does not constitute a waiver of any other breach or default and shall not affect the other terms. A waiver by the Company of a breach of any of the terms of the Operative Agreements or a default under these terms will not prevent the Company from subsequently requiring compliance with the waived obligation.
The rights and remedies provided to the Company under the Operative Agreements are cumulative and are not exclusive of any rights or remedies provided by law.
The Company may assign the benefit and burden of the Operative Agreements to a third party in whole or in part, provided that such assignee agrees to abide by the terms of the Operative Agreements. Such assignment shall come into effect ten Business Days following the day the Customer is deemed to have received notice of the assignment in accordance with the Terms of Business.
If any term of the Operative Agreements (or any part of any term) shall be held by a court of competent jurisdiction to be unenforceable for any reason then such term shall, to that extent, be deemed severable and not form part of this Customer Agreement or the Terms of Business, but the enforceability of the remainder of Operative Agreements shall not be affected.
The Customer may not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer the Customer’s rights or obligations under the Operative Agreements without prior written consent of the Company and any purported assignment, charge or transfer in violation of this term shall be void.
23. Governing law and Jurisdiction
This Customer Agreement and each Bet entered into between the Company and the Customer is in all respects governed by the appropriate court of the respective jurisdiction with which disputes that may arise in relation thereto are most closely related. Nothing will prevent the Company from bringing proceedings against the Customer in any other jurisdiction.
With respect to any proceedings, the Customer irrevocably waives any objection, which the Customer may have at any time to the bringing of any proceedings in any such court, and agrees not to claim that such proceedings have been brought in an inconvenient forum or that such court does not have jurisdiction over the Customer.
Process may be served on Customer by being delivered to the address provided by Customer when the Customer opened Trading Account or to any new address subsequently notified to the Company. Nothing affects Company’s right to serve process in another manner permitted by law.
Where the Operative Agreements are issued in a language other than English, the English language version shall take precedence in the event of any conflict.
24. Entry into force and Acceptance
This Customer Agreement shall not be deemed entered into and shall not become a legally binding contract between Customer and the Company unless the Customer Agreement annexes hereto, and other rules, regulations and schedules established by Company are accepted by Customer in their entirety.
Acceptance of this Customer Agreement, annexes hereto, and other rules, regulations and schedules established by Company shall involve either signing this Customer Agreement and annexes hereto in person, or implicative actions of Customer such as executing the Customer Agreement on-line form and further depositing funds to the trade account and conducting any trading transaction. Upon acceptance hereof, annexes hereto, and other rules, regulations and schedules established by Company, in any manner, Customer shall not be entitled to plead a circumstance that they did not know or did not understand the terms and conditions hereof, annexes hereto, and other rules, regulations and schedules established by Company.
This Customer Agreement shall not be deemed to be accepted by Company or become a binding contract between Customer and Company until the signed Customer Account Application has been received and approved by Company. In the event that there are any unauthorized alterations or deletions to this Customer Agreement or related documents such alteration and deletions shall not be binding on Company and said original forms shall govern Account.
THE CUSTOMER CONFIRMS THAT HE HAS RECEIVED, READ AND UNDERSTOOD THIS CUSTOMER AGREEMENT, AND AGREES TO ALL PROVISIONS CONTAINED THERE IN.