The following Terms & Conditions shall replace any prior or existing agreement between the parties, or previously issued terms and conditions, and shall apply to any existing arrangements currently operating between the parties. By executing the account application documents provided and/or undertaking any transaction with Vertical Capital Markets Pty Ltd ACN 147 186 114 (“VCM”), the holder of Australian Financial Services Licence (“AFSL”) 418418, the Client hereby agrees to be bound by the following Terms & Conditions (as amended from time to time)
The Client wishes VCM to deal in Financial Products on their behalf in accordance with the Client’s instructions from time to time, and in accordance with the terms and conditions contained herein.
2. DEFINITIONS AND INTERPRETATION
a) In these Terms & Conditions unless a different intention is expressed, the following terms (as subsequently modified by amended legislation or regulation) shall mean:
“Account” means the account of the Client dealing in the Financial Products offered by VCM, which is established in accordance with the terms and conditions of this Terms & Conditions.
“Agent” means a legal entity undertaking a transaction or function on behalf of another legal entity but in its own name.
“Authorised Person” means a person authorised to bind the Client under these Terms & Conditions.
“Business Day” means a day on which trading banks in Sydney, Australia are open for business.
“Contract” means any contract whether verbal or written, for the purchase or sale of a Financial Product, entered into by the Client.
“Corporations Act” means the Corporations Act 2001 (Cth), or as amended from time to time.
“Credit Information” has the meaning given in Section 6N, and Part IIIA and Part IIIB of the Privacy Act, and as further defined by the Credit Reporting Code. It includes: credit-related personal information, credit reporting information, credit eligibility information, and such other information as may be prescribed by the Privacy Regulations.
“Credit Provider” has the meaning given in Sections 6G – 6K of the Privacy Act.
“Credit Reporting Body” (“CRB”) has the meaning given in Part IIIA of the Privacy Act. A CRB is means: (a) an organisation; or (b) an agency prescribed by the regulations: that carries on a credit reporting business.
“Credit Reporting Code” means the Credit Reporting Privacy Code that replaces the Credit Reporting Code of Conduct issued under Section 18A of the Privacy Act 1988 (this section was repealed with effect from 12 March 2014).
“Default” means one of the events listed in cl12(a) of these Terms and Conditions.
“EFP” means Exchange for Physicals. An EFP allows a futures position to be exchanged for a physical position in the underlying market at a price negotiated between the counterparties.
“Excess Variation Margin” means the amount of the Client’s Variation margin plus any amount payable by VCM to the Client at that time and less any amount payable by the Client to VCM at that time.
“Financial Product” includes futures, options, securities, commodities and foreign exchange contracts, as those terms are defined in the applicable legislation or governed by market convention.
“Financial Services Guide” has the meaning given in Section 9 of the Corporations Act.
“Financial Services Laws” has the meaning given in Section 761A of the Corporations Act.
“Force Majeure” means an act, event or cause which is beyond the reasonable control of VCM including an act of God, war, riot, insurrection, civil commotion, national emergency (whether in fact or law), lightning, flood, earthquake, storm or other adverse weather conditions, power shortage, strike or other labour difficulty; action or inaction of a government or other competent authority and third parties failing to fulfil their obligations.
“Immediate Family” in relation to a person means that person’s spouse and non-adult children, if any.
“Initial Margin” means an amount required to be deposited by the Client to open a position, where applicable.
“LIBOR” means the London Interbank Offered Rate, a benchmark used in the financial services industry for short-term interest rates.
“Margin” means Initial Margin or Variation Margin or both.
“Market Integrity Rules” has the meaning given in Section 761A of the Corporations Act.
“Market Operator” means an entity that is licensed under Section 795B(1) of the Corporations Act.
“Operating Rules” shall mean the rules, regulations, customs and practices from time to time of any Market Operator, exchange, clearing house or other organisation or market involved in the execution or settlement of any Financial Product transaction or contract.
“Personal Information” means information or an opinion about an identified individual, or an individual who is reasonably identifiable: (a) whether the information or opinion is true or not; and (b) whether the information or opinion is recorded in a material form or not.
“Privacy Act” means the Privacy Act 1988 (Cth), as current at 12 March 2014.
“Product Disclosure Statement” has the meaning given in Section 9 of the Corporations Act.
“Responsible Entity” means a company that is a responsible entity within the meaning of Section 9 of the Corporations Act.
“Statement of Advice” has the meaning given in Section 9 of the Corporations Act.
“Terms & Conditions” means these terms & conditions and any other documents annexed or incorporated by reference.
“Trust” means where the Client is a trust, the trust identified in the Client’s application.
“Trust Deed” means where the Client is a trust, the trust deed governing the Trust as varied, substituted, supplemented or resettled from time to time.
“Variation Margin” means the amount deposited by the Client including any increase or reduction arising from settlement of a closed position.
b) Headings are for convenience only and shall not affect the construction and interpretation of these Terms & Condition
c) The singular includes the plural and vice versa.
d) Reference to a person or individual includes bodies corporate, unincorporated associations, partnerships and individuals.
e) If there is any conflict between the terms of these Terms & Conditions and the relevant Operating Rules, the Operating Rules shall prevail.
f) Any reference in these Terms & Conditions to any law, statute, regulation or enactment shall include references to any statutory modification or re-enactment thereof or to any regulation or order made under such law, statute or enactment (or under such modification or re-enactment).
3. CLIENT REPRESENTATIONS AND WARRANTIES
The Client represents and warrants to VCM that:
a) These Terms & Conditions constitutes a legal, valid and binding obligation of the Clie
b) The Client will not enter into a Financial Product transaction as or by way of a wager and that all orders to be placed and all trading to be conducted under these Terms & Conditions are lawful.
c) In executing and giving effect to these Terms & Conditions, the Client does not and will not infringe any provision of any other document or agreement to which the Client is a party, nor any law or judgment/order binding upon it.
d) Where the Client is more than one person, all decisions made, and instructions issued, pursuant to these Terms & Conditions, are made on a fully informed and agreed basis by all the parties to the account.
e) The Client, nor any of the Client’s Immediate Family, is an employee of a participant of a Market Operator which VCM is also a participant of.
f) All information supplied to VCM by the Client is, or at the time it is supplied will be, accurate in all material respects and the Client will not omit or withhold any information which would make such information inaccurate in any material respect.
g) The Client shall, where so required, provide to VCM a valid and binding guarantee and indemnity in favour of VCM as a precondition of entering into these Terms & Conditions.
h) The Client will provide to VCM on request such information regarding its financial and business affairs and/or identity, as VCM may reasonably require.
i) In executing these Terms & Conditions, the Client will appoint VCM as its agent for the purpose of dealing in Financial Products in accordance with the terms of these Terms & Conditions.
j) The Client and VCM are bound by the applicable Financial Services Laws, Corporations Act, Market Integrity Rules, applicable Operating Rules, Privacy Act, customs, usages and practices (as modified from time to time) of the Market Operator where any dealing takes place.
k) The Client will take all reasonable steps to obtain and communicate to VCM all information, and shall deliver or cause to be delivered to VCM all documents with respect to dealings in the Financial Products which are requested by any person having the right to request such documents and information. The Client authorises VCM to pass on/deliver all such information and documents to any such person.
l) The Client is not insolvent, and if the Client is a corporate client, no resolution has been passed and no petition has been presented or order made for the Client’s winding up or liquidation or the appointment of a receiver or a receiver and manager or an administrator of other insolvency official to the Client or any of its assets.
m) VCM relies on representations and warranties made by the Client. These representations and warranties and those contained elsewhere in these Terms & Conditions, survive the entering into of these Terms & Conditions and are repeated in respect of each Financial Product transaction.
4. CAPACITY TO ENTER INTO THESE TERMS & CONDITIONS
The Client represents and warrants to VCM that:
a) The Client is duly organised and validly existing (or, if an individual, is of legal age and is under no legal disability or incapacity) and has full power and authority to enter into, and has taken all necessary steps to enable it lawfully to enter into, these Terms & Conditions and the transactions contemplated by it, and perform its obligations it.
b) The person executing these Terms & Conditions has full power and authority to execute the Agreement on behalf of the Client, and bind the entity (whether individual, company, partnership or otherwise).
c) The Client is not insolvent, and if the Client is a corporate client, no resolution has been passed and no petition has been presented or order made for the Client’s winding up or liquidation or the appointment of a receiver or a receiver and manager or an administrator of other insolvency official to the Client or any of its assets.
d) Where the Client is a trustee (including the trustee of a superannuation fund):
i. The Trust has been duly constituted, is valid and complies with all applicable laws.
ii. The Trust Deed has been executed and stamped, in accordance with the laws of the relevant State or Territory of Austr
iii. The Client is the only trustee of the Trust.
iv. The property of the Trust has not been resettled, set aside or transferred to any other trust or settlement and the Trust Deed has not been terminated and the date or any event for the vesting of the Trust’s property has not occurre
v. The Trust Deed specifically empowers and authorises dealings in Financial Products, and such dealings are within the authorised ambit of the Trust’s investment strate
vi. All obligations under, and transactions contemplated by, these Terms & Conditions constitute binding obligations and are lawfully enforceable against the Trust and its property in accordance with their terms.
vii. It has an unrestricted right to be fully indemnified or exonerated out of the Trust’s property in respect of any losses or liabilities incurred by it in its dealings with VCM, and the Trust’s property is sufficient to satisfy that right of indemnity or exone
viii It has complied with its obligations in connection with the Trust.
ix. There is no conflict of interest on the Client’s part in entering into these Terms & Conditions and performing its obligations under it or the transactions contemplated by it.
x. If the Client is a superannuation fund, it complies with all requirements outlined in the Superannuation Industry (Supervision) Act 1993 (Cth).
e) where the Client is an investment manager or a Responsible Entity, the investment management agreement or constitution specifically empowers and authorises dealings in the Financial Products, by the Client and on behalf of their underlying clients; and:
i. Such dealings are within the authorised ambit of the/each underlying client’s investment strategy.
ii. It will enter into transactions pursuant to the applicable investment management agreement as investment manager or Responsible Entity and not otherwise.
iii. It will only deal in Financial Products when the funds or other assets under its control are sufficient to meet the obligations which arise in connection with such dealing.
iv. Repeats each of these representations and warranties in relation to both itself and its underlying clients.
v. In the event of termination of the Client’s appointment as investment manager or Responsible Entity of the Client, it is authorised to arrange for closing out of all contracts entered into on behalf of the Client prior to the date of such termination as soon as possible.
5. ACCOUNT ESTABLISHMENT
a) VCM agrees to establish an account in the name of the Client, who is the person named as the holder of the a
b) Where the Client is more than one person, the account shall be established in their names as joint tenants unless they specifically advise otherwise (in which case it shall be established in their names as joint tenants). In any case, the parties to such joint account shall each be jointly (together) and severally (individually) liable.
c) No one except the Client has an interest in the Client’s account with VCM opened for the purposes of these Terms & Conditions.
6. RISK DISCLOSURES
6.1 The Client represents and warrants to VCM that:
a) They have received, read, understood and accepted the risk disclosures provided herein in relation to the Financial Products to be traded and contained here
b) They have received, read and understood the Financial Services Guides and Product Disclosure Statement.
c) The Client acknowledges, recognises and understands that trading and investment in Financial Products is speculative, may involve an extreme degree of risk and significant loss, and is appropriate only for persons who can assume risk of loss in excess of their margin deposit.
d) The Client has read these Terms & Conditions and understands that, unless specifically agreed with VCM and unless a Statement of Advice has been provided, VCM has only provided general advice, and the Client has considered its objectives and financial situation and has obtained appropriate independent advice prior to entering into these Terms & Conditions, and has formed the opinion that dealing in the Financial Products is suitable for the Client’s needs and purposes.
e) The Client has taken such independent legal and financial advice as the Client considers necessary prior to executing these Terms & Conditions.
f) The Client is willing and able, financially and otherwise, to assume the risk of trading in high risk investments.
6.2 The Client acknowledges that neither VCM nor any associated entity guarantees the performance of any given Financial Product or account nor that any Financial Product or account will achieve a particular rate of retur
7. CLIENT ACKNOWLEDGEMENTS
The Client acknowledges to VCM that:
a) VCM will deal or instruct third parties to deal on behalf of the Client, in the Financial Products.
b) VCM may utilise the execution and settlement services of appropriately licensed third parties on behalf of the Client in order to provide the services detailed in these Terms & Conditions.
c) Dealings in the Financial Products create an obligation to make a cash adjustment in accordance with the terms of the relevant transaction.
d) Where a Financial Product has no maturity date or defined term, open contracts shall continue until such date as they are closed.
e) All dealings executed on behalf of the Client pursuant to these Terms & Conditions shall be at the absolute discretion of VCM. In particular, VCM shall be entitled to take any action it considers necessary in its absolute discretion to ensure compliance with the Operating Rules and all other applicable laws and regulatory decisions.
f) Subject to applicable legal/regulatory requirements, the Client consents where VCM either knowingly or unknowingly takes the opposite side to the Client in relation to any of the Financial Product transactions.
g) Subject to applicable legal/regulatory requirements, the Client agrees and acknowledges that VCM’s directors, employees and associates may and can deal on their own account.
h) VCM reserves the right, at its sole discretion and without explanation, to refuse to deal on behalf of the Client in relation to any Financial Products (other than closing out existing open positions held in VCM’s account on behalf of the Client) or to limit the number of open positions held on behalf of the Client or both. VCM will inform the Client of any refusal before or as soon as practicable after such refusal.
i) Client has no rights, whether by way of subrogation or otherwise, against any person other than VCM, in respect of transactions on a futures exchange or market traded pursuant to the applicable rules of the exchange or market, except to the extent (if any) provided by any applicable law.
j) Where errors have occurred in price quotes provided by, or the pricing of transactions quoted by VCM to the Client, VCM reserves the right to not be bound by such a quote or transaction where VCM is able to substantiate to the Client that there was a material error at the time of the quote or transaction. Where this occurs in relation to the initial purchase of a Financial Product, VCM will not issue (or if already issued will cancel) the contract and refund the Client’s money accordingly. Where this occurs in relation to a price quote for an existing position, VCM will re-issue the price quote accordingly.
k) In dealing in the Financial Products on behalf of the Client or for any other purpose under these Terms & Conditions, when VCM needs to buy/sell foreign currency from time to time, the applicable exchange rate shall be any widely recognised and published foreign exchange rate selected by VCM in its sole discretion available on the date the Client’s money is exchanged.
l) Reports to the Client on the execution of confirmations by VCM, and the content of such confirmations, open position statements and monthly statements, unless otherwise objected to within 48 hours after communication to the Client, shall be deemed proof of the accuracy of such contents and their execution in accordance with these Terms & Conditions.
m) A notice issued by an authorised officer or agent of VCM stating the amount of money due and payable by the Client shall be taken as final evidence thereof in the absence of manifest error.
n) All determinations and calculations made by VCM under these Terms & Conditions will be binding on the Client in the absence of manifest error.
o) Anything VCM is permitted to do in accordance with these Terms & Conditions may be done in its absolute discretion, and any opinion or view required to be formed by VCM may be formed in its absolute discretion.
p) Any transaction or market information or research provided by VCM to the Client is provided as general information only, and does not constitute and cannot be relied upon as a recommendation to trade. VCM makes no representation, warranty or guarantee, and accepts no liability for, the accuracy or completeness of any such information, and the Client relies on such at its sole risk.
q) Provision of a Tax File Number (“TFN”) is optional. However, the non-provision of a TFN may result in a higher tax liability or surcharge.
8. AUTHORISATIONS AND INSTRUCTIONS
a) The Client hereby authorises VCM to trade in the Financial Products on their behalf pursuant to the prior approval and instruction of the Client, or otherwise in accordance with VCM’ rights elsewhere under these Terms & Conditions.
b) The Client may communicate their instructions to VCM via email or by telephone.
c) In consideration of VCM agreeing to accept telephone (or other written) instructions from the Client, the Client acknowledges that VCM is not obliged to accept/implement such instructions, and will not be liable to the Client or any other party should such instructions be unauthorised, forged or fraudulently given.
d) The Client may authorise any other person (the “Authorised Signatory”) by way of a properly executed power of attorney, to give instructions on its behalf and VCM is entitled to act upon instructions which are, or appear to be, from the Client or the Authorised Signatory thereof. It is the Client’s sole responsibility to notify VCM in writing immediately if there is any change to the details of any Authorised Signatory.
e) VCM may, in its sole discretion and without explanation, refuse to act upon any instruction.
f) The Client authorises VCM to trade in EFP transactions on behalf of and at the request of the Client in accordance with the relevant Operating Rules. The Client will not engage in EFPs unless a bona fide physical transaction in a commodity or instrument is completed OR where both sides of the physical transaction or the Financial Product contract are taken out on behalf of the Client.
g) Other than a Client who is an individual, VCM may act upon instructions received from any one person who is, or appears to VCM to be, such a person, whether or not such person is an Authorised Person.
h) Persons may only be appointed as Authorised Persons where they are a director, employee or representative of an incorporated or registered Client.
i) VCM is under no obligation to accept any instruction that is not made by an Authorised Person or to enquire as to the identity of any person providing the instruction if it reasonably believes the person is an Authorised Person.
j) Should VCM receive any instruction that it reasonably assumes was from an Authorised Person, VCM will not be liable for any properly performed action or omission by VCM in reliance on that instruction.
k) VCM shall not be liable for any act or omission by VCM in reliance on any instruction given or action taken by any person acting or purporting to act on behalf of the Client who is not listed as an Authorised Person.
l) Mere transmission of an instruction by the Client shall not constitute a binding contract with VCM until confirmed by VCM via the trade confirmation;
m) The Client has appointed VCM as its agent for the purposes set out in these Terms & Conditions and conferred upon VCM authority to do, or omit to do, all things reasonably necessary to perform its functions and all things reasonably incidental to the performance of its functions;
n) If the Client does not provide VCM with notice of its intention to exercise an option or another Financial Product transaction which requires an instruction from the Client at the time stipulated by VCM, VCM may treat the option or the transaction as abandoned by the Client. If a transaction can be prolonged on expiry, VCM may in its absolute discretion, choose to prolong or to close such transaction.
o) In general, VCM shall act according to instructions as soon as practically possible and shall, as far as trading instructions are concerned, act within a time frame reasonable seen in the context of the nature of the instruction. However, if after instructions are received, VCM believes that it is not reasonable practicable to act upon such instructions within a reasonable time, VCM may defer acting upon those instructions until it is, in VCM’s reasonable opinion, practicable to do so or notify the Client that VCM is refusing to act upon such instructions.
9. ENTERING INTO A FINANCIAL PRODUCT TRANSACTION
a) The Client may request on any given Business Day, via telephone or otherwise, VCM to provide it with financial product advice in regard to prices or rates of various Financial Products. The Client acknowledges that such advice does not constitute an offer to enter into a new Financial Product transaction or close an existing Financial P
b) Upon consideration of such financial product advice, the Client may, via telephone or otherwise, offer to enter into a Financial Product transaction with VC
c) VCM is in no way obliged to accept the Client’s offer to enter into a Financial Product transaction and, will promptly advise the Client should VCM decide not to accept a Client’s offer to enter into a Financial Product transaction.
d) Should VCM accept the Client’s offer to enter into a Financial Product transaction, VCM will issue to the Client a deal confirmation shortly after the Financial Product transaction has been entered Failure by VCM to issue a deal confirmation will not prejudice or affect the relevant Financial Product transaction. VCM will not bear any liability whatsoever resulting from the failure to issue a deal confirmation.
e) The Client agrees to examine the terms of each deal confirmation immediately upon receipt and the Client agrees that the contents of the deal confirmation, in the absence of manifest error, will be conclusive evidence of the executed deal, unless within 48 hours of issue of a deal confirmation the Client notifies VCM of any disputed detail in the deal confirmation received by the Clie Upon receipt of written notice within the 48hour period of the disputed detail, VCM will investigate the dispute and with the co-operation of the Client, will endeavour to resolve the dispute in good faith.
f) In its absolute discretion, VCM reserves the right to limit the value of Financial Product transactions the Client may have outstanding under these Terms & Conditions. Should the Client wish to enter into any further Financial Product transactions, the Client must seek and obtain approval from VCM, which they may grant or refuse in its absolute discre
10. EXECUTION OF ORDERS
a) VCM undertakes and the Client acknowledges that in respect of dealings in the Financial Products, and in compliance with the applicable Corporations Act and Operating Rules requirements, VCM shall execute all dealings in the sequence in which they are received and recorded, unless it would be fair and equitable to allocate such contracts on a different basis.
b) VCM shall provide the Client with confirmations and statements in accordance with applicable laws and regulation.
c) It is the responsibility of the Client on receipt to carefully check all transaction confirmations and statement documentation (whether received/accessed electronically or otherwise) and to bring any errors or omissions to the attention of VCM in writing within the time specified by VCM. In the absence of such written objection, the confirmations and monthly statements shall be deemed correct in all respects.
d) Orders may be placed as market orders to buy or sell an instrument as soon as possible at the price obtainable in the market, or limit and stop orders to trade when the price reaches a predefined level, as applicable to the various instruments offere Limit orders to buy and stop orders to sell must be placed below the current market price, and limit orders to sell and stop orders to buy must be placed above the current market price. If the bid price for sell orders or ask price for buy orders is reached, t he order will be filled as soon as possible at the price obtainable in the market. Limit and stop orders are thus not guaranteed executable at the specified level or amount, unless explicitly stated otherwise by VCM.
e) VCM may, in its absolute sole discretion, execute a stop loss order in relation to any contract where there are reasonable grounds to believe that subsequent price movements may be adverse to the Clie VCM shall not be liable to the Client for any failure to exercise this discretion. A stop loss order is triggered when the Client has a sold position and the contract is traded at or above the stop loss price; or when the Client has a bought position and the contract is traded at or below the stop loss p rice. Once a stop loss order is triggered or executed it becomes a market order and VCM shall use its best endeavours to execute the market order. The acceptance of a stop loss order is not a guarantee or representation by VCM that the stop loss order can be executed at the stop loss price.
f) VCM may at its discretion aggregate the Client’s orders with its own orders or orders of associates and/or persons connected with VCM including employees and other clients. In addition, VCM my split the Client’s orders. Orders will generally be aggregated or split where VCM reasonably believes it to be in the overall best interests of Client
11. COMMISSIONS FEES AND EXPENSES
a) The Client agrees to pay:
i. All legal costs incurred by the Client associated with entering into these Terms & Conditions and all taxes and expenses incurred by the Client in connection with these Terms & Conditions.
ii. Commission upon the execution of any requested Financial Product transaction at such rate as is agreed separately between VCM and the Client, as well as an amount equal to any other fee charged or levied on VCM, or other expense incurred by VCM, arising from any action taken pursuant to these Terms & Conditions.
iii. All stamp duty, duties and taxes (including GST) payable on or pursuant to these Terms & Conditions.
iv. All amounts payable as a result of making or taking delivery or making cash adjustment in accordance with the terms of a Financial Product transaction.
v. All amounts incurred by VCM as a result of the Client’s default under the terms of these Terms & Conditions, including without limitation, all reasonable legal costs on a solicitor/client basis.
iv. Interest, in respect of any unpaid amount due under these Terms & Conditions, at a rate of three per cent per annum above LIBOR (at a minimum of 10% per annum). Such interest shall accrue and be calculated daily from the date payment was due until the date the Client pays in full and shall be compounded monthly.
b) The Client authorises VCM to appropriate, transfer, credit, apply or pay monies that may be received by VCM or held by VCM on the Client’s behalf in payment of any amounts which may be outstanding by the Client to VCM or VCM’s agent in a transaction effected on the Client’s behalf.
c) Where amounts are payable by one party to the other, netting principles shall apply to enable the party owing the larger amount to pay the excess only to the other party. Amounts may be converted into the same currency in accordance with these Terms & Conditions.
d) VCM may in its absolute discretion reduce or waive the minimum deposit amount, the minimum account balance or interest rates on debit balances, fees (including royalties or fees for third party services) or transaction charges, for individual clients or for classes of clients, for any length of time, with or without conditions, without notice.
e) Payments by the Client to VCM in accordance with these Terms & Conditions must be made without any offset, counter claim or condition and without any deduction or withholding for any tax or any other reason unless the deduction or withholding is required by applicable law. Should the Client be required to make any form of deduction in respect of tax from any payment to be made or if VCM is required to pay any tax in respect of any payment made in relation to these Terms & Conditions at the Client’s request the Client agrees to keep VCM indemnified against that tax and agrees to pay to VCM any additional amounts required to ensure VCM receives the full net amount that is equal to the amount VCM would have received had a deduction, withholding or payment of tax not been made.
f) The Client agrees that VCM may at any time share transaction fees and charges with any other persons without being required to disclose the sharing of such fees and charges to the Client, unless such disclosure is required by law.
a) The Client acknowledges and agrees that where one of the following events occurs, VCM may take any such action provided in Clause 12(c) below:
i. The Client fails to meet a call for a deposit or Margin or make any other payment when due under these Terms & Conditions.
ii. The Client is not contactable by VCM (and has not made alternative arrangements) within the time specified by VCM in order for VCM to obtain instructions (where required).
iii. The Client dies or becomes of unsound mind, or the partnership is dissolved or ceases to exist for any reason.
iv. The Client suspends payment of its debts, makes any composition with its creditors, has a receiver appointed over some or all of its assets, takes or has any proceedings taken against it in bankruptcy or takes or allows any steps to be taken for its winding up (except for a solvent amalgamation or reconstruction approved in advance in writing by VCM) or anything similar to any of these events happens to the Client anywhere in the world.
v. The Client fails in any respect fully and promptly to comply with any obligations to VCM under these Terms & Conditions or otherwise or if any of the representations or information supplied by the Client are or become inaccurate or misleading in any material respect.
vi. Any guarantee, indemnity or security for the Client’s obligations is withdrawn or becomes defective, insufficient or unenforceable in whole or in part.
vii.These Terms & Conditions has been terminated.
viii. It becomes or may become unlawful for VCM to maintain or give effect to all or any of the obligations under these Terms & Conditions or otherwise to carry on its business or if VCM or the Client is requested not to perform or to close out a transaction (or any part thereof) by any governmental or regulatory authority whether or not that request is legally binding.
ix. VCM considers it necessary to do so for its own protection.
b) If the Client becomes aware of the occurrence of any event referred to in clause 12(a) above, it shall notify VCM immediately.
c) If any event referred to in Clause 12(a) above takes place, VCM shall at its absolute discretion be entitled, but not obliged, to, and at the expense of the Client:
i. Terminate the Agreement immediately.
ii. Close out any or all of the Client’s contracts.
iii. Close out, exercise or abandon any option not yet exercised.
iv. Cover positions by entering into further contracts.
v. Cancel any outstanding orders in order to close the Client’s account.
vi. Convert any amount owed by the Client to VCM into Australian currency at any time on or after payment is due (until payment is received in full).
vii. Satisfy any obligation the Client may have to VCM out of any money or security belonging to the Client in VCM’s custody or control, and enforce any such asset or security (at the Client’s expense) held by VCM in such manner as it deems appropriate, but to a maximum amount equal to all sums due or to become due to VCM from the Client.
viii. Charge the Client with all of the costs, expenses and losses incurred by VCM as a result of entering into, or closing out transactions pursuant to these Terms & Conditions.
ix. To take any such action a reasonably prudent person would take in the circumstances to protect the personal obligation incurred when dealing on behalf of the Client.
x. Where appropriate and authorized under any relevant law or regulation, to make a report to a Credit Reporting Body of the client’s Default.
a) The Client will indemnify and keep indemnified VCM and its employees, contractors or agents from and against any cost, expense, claim, action, suit, loss, damage or other amounts whatsoever arising out of any default, whether by act or omission, of the Client under these Terms & Conditions or anything lawfully done by VCM in accordance with these Terms & Conditions or by reason of VCM complying with any direction, request or requirement of a Market Operator or other regulatory authority.
b) VCM shall not be responsible or liable in any way for any delay or error in the transmission or execution of any dealing by it under these Terms & Conditions caused by the Client or any other third party, including but not limited to a Market Operator’s system operational failure or action, bank delay, postal delay, failure or delay of any fax or electronic transmission or delay caused by accident, emergency or Force Majeure.
c) No warranty is provided by VCM in relation to information or advice sourced from third parties, and all information or advice provided by VCM to the Client is for the private use of the Client and is not to be communicated to any third party without the prior written consent of VC
d) VCM makes no representation or warranty as to the results of dealing in the Financial Products, and shall not be liable for any damage or loss suffered or incurred by the Client arising out of or in connection with any advice, forecast, or opinion to the Client in relation to price movements or positions or to the likely profitability of any transaction.
e) These indemnities shall survive any termination of the Client relations
14. LIMITATION OF LIABILITY
a) The Client declares it has read, understood and accepted all of the terms and conditions outlined in these Terms & Conditions.
c) The Client agrees that when entering into a Financial Product transaction with VCM the Client is relying on its own judgment and, to the extent permitted by law, in the absence of negligence, fraud or dishonesty by VCM or any of its employees, agents and representatives in relation to VCM’s activities as the holder of an AFSL, VCM shall bear no responsibility or liability of any kind whatsoever with respect to any advice or recommendation given or views expressed to the Client, whether or not the advice, recommendation, or views expressed was as a result of a request by the Client, nor will VCM be liable in any respect of any losses incurred by the Client resulting from dealing in any product or products offered by VCM including contract for differences.
d) VCM will bear no liability whatsoever in respect of any private dealings, contracts, transactions or relationships between the Client and any of VCM’s employees or agents.
e) VCM shall bear no liability whatsoever in respect of any impact on the Client caused directly or indirectly by the issuance of any instructions by the Client to VCM.
f) In the absence of negligence, fraud, dishonesty or misconduct by VCM or any of its employees, agents and representatives and to the full extent of the law, VCM bears no responsibility or liability for any Client’s losses or damages whatsoever incurred as a result of any delay in transmitting or a failure to transmit funds caused by reasons outside the control of VCM or as a result of VCM’s failure to execute orders in a timely manner or administer these Terms & Conditions in the manner contemplated by these Terms & Conditions for reasons beyond its control and, without limiting the indemnity in clause 13, the Client indemnifies and agrees to keep VCM and its employees, agents and representatives (for whom VCM acts as agent) indemnified and against all sums of money, actions, proceedings, suits, claims, demands, damages, costs, expenses and other amounts whatsoever arising in respect of any such loss or damage. Reasons outside VCM’s control may include but are not limited to, exchange control or other government restrictions, exchange or market rulings, and Force Majeure.
g) All such available exemptions and limitations of liability shall apply in respect of VCM’s employees, officers, agents and representatives.
15. DISPUTE RESOLUTION
If a dispute arises between VCM and the Client relating to any transaction (a “Disputed Transaction”), VCM may close out or take any other action it considers appropriate in relation to the Disputed Transaction without previously notifying and/or without having received instruction from the Client. VCM will try to notify the Client (verbally or in writing) what action it has taken, as soon afterwards as it practically can, but if it does not, the validity of its action shall not be affected.
a) These Terms & Conditions can be terminated at any time by either party giving ten (10) Business Days written notice to the other party.
b) Unless otherwise agreed in writing between the parties upon termination of these Terms & Conditions VCM will close out all of the Client’s Financial Product transactions and will close out, abandon or exercise any option not yet exercised, at VCM’s discretion.
c) Should any event occur which has the effect of making or declaring it unlawful or impracticable for VCM to offer Financial Product transactions to the Client in accordance with the terms outlined in these Terms & Conditions, VCM may immediately terminate these Terms & Conditions by providing the Client with written notice.
d) Termination of the Terms & Conditions shall not release either party from any existing obligations or from any liabilities for any antecedent breach of any of the terms of these Terms & Conditions and will not relieve the Client of any obligations the Client may owe to VCM in accordance with these Terms & Conditions prior to its termination.
e) Rights under these Terms & Conditions can only be waived in writing, such waiver not to affect the waiving party’s rights or entitlements in respect of subsequent breaches of the Terms & Conditions. Failure to compel performance shall not be construed as a waiver.
f) If these Terms & Conditions are terminated, the Client acknowledges and agrees that all open positions must be closed within five (5) Business Days following the termination.
a) VCM may amend these Terms & Conditions by giving the Client thirty days written notice of any amendments.
b) In the event that any of the provisions contained in these Terms & Conditions are found to be invalid or unenforceable, such provisions shall be deemed deleted, and the validity and enforceability of the remaining provisions shall continue unimpaired.
c) If a party fails to exercise or delays in exercising any right under these Terms & Conditions, by doing so it does not waive such right. The rights provided in these Terms & Conditions do not exclude other rights provided by law.
d) The Client may not assign or otherwise transfer its rights or obligations under these Terms & Conditions or any transaction, without the express written consent of VCM.
e) The parties agree to the electronic recording by either party of telephone or internet conversations between the parties with or without an automatic tone warning device, and the use of such recordings as evidence by either party in any dispute or anticipated dispute between the parties or relating to dealings between the parties. Clients shall be permitted access to such tapes up to 90 days after the date of the relevant telephone conversation, and shall be liable to VCM for all reasonable costs in retrieving and providing such tapes.
f) The Client acknowledges and agrees that VCM is permitted to carry out an electronic database search and search credit reference agencies in order to verify the Client’s identity and credit standing. If such searches are carried out, VCM may keep records of the contents and results of such searches in accordance with all current and applicable laws.
g) VCM reserves the right to collect such information as is necessary from the Client to meet its obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). VCM may pass on information collected from the Client and relating to transactions as required by applicable anti money laundering laws and regulations and is under no obligation to inform the Client it has done so. VCM may undertake all such anti money laundering checks in relation to the Client (including restricted lists, blocked persons and countries lists) as deemed necessary or appropriate by VCM, and reserves the right to take any action with regard thereto with no liability whatsoever therefore.
h) VCM reserves the right to provide all such information regarding the Client in relation to its obligations to, or requests (whether legally binding or not) by a relevant regulatory body.
b) The Client shall ensure that all information provided to VCM is accurate and up-to-date at all times. Any changes must be advised to VCM as soon as practicable.
c) VCM have systems and processes in place to address privacy requirements, and can provide the Client with a Privacy Notice should the Client require further information about VCM’s information handling practices.
d) The Client authorises VCM to collect, use, store or otherwise process any Personal Information and Credit Information which enables VCM to provide and/or improve its services. This may, on occasion, require the disclosure of Personal Information and Credit Information to our related entities, agents and service providers, and to organisations located in countries which do not have exactly comparable privacy laws to those in Australia.
All communications relating to these Terms & Conditions shall be in writing and delivered by hand or sent by post or telex, facsimile, or, electronic mail to the party concerned at the relevant address. Any such communication shall take effect if delivered, upon delivery; if posted, two business days after it is posted to the party’s last known address; if sent by facsimile, or electronic mail, at the time of transmission (and receipt of confirmation); by telex, upon receipt of the answer back. Where the Client is more than one person, any notice or other communication provided by VCM to one such person shall be deemed to have been provided to all such persons.
20. GOVERNING LAW
These Terms & Conditions are governed by and construed in accordance with the laws of New South Wales, and the parties submit to the non-exclusive jurisdiction of the courts and tribunals in that State.