OT Markets PTY is a Corporate Authorized Representative (“Authorized Representative”) number (001258906) of AGM Markets Pty Ltd (ABN 87 158 706 766, ACN 158 706 766) a duly licensed Australian Financial Services License (AFSL) firm, license Number 422662 ("AGM", "AGM Markets", "Issuer").
The distribution of this Client Agreement by OTCapital and its representatives has been approved by AGM Markets. Please further note that this Agreement shall replace any prior or existing agreement, or previously issued agreement, and shall apply to any existing arrangements currently operating between you and OTCapital.
Warning - CFD Products are speculative products which are not suitable for all investors. CFD Products are leveraged investments and by investing in them you are exposed to much greater risk of financial loss than other types of conventional investments such as share trading. You may incur a loss which is far greater than the amount you invest. See the PDS for more information on risks. You should obtain your own financial, legal, taxation and other professional advice as to whether CFDs Products are an appropriate investment for you.
1. Terms1.1 Margin FX and Contract for Difference trading is issued and managed on the terms set out in this agreement.
1.2 These terms also cover the Account you must have to manage your Transactions, access to or use of OTCapital website (and any services available on that website), the Online Trading Platform, any electronic content and/or software that provides real-time information (including on exchange rates of currencies), program transaction services (whether via internet, telephone or fax), and any other features, content or services that OTCapital may provide in relation to FX Trading.
1.3 In order to establish your Account, you must complete an Application Form and that must be accepted by us. OTCapital may, in its absolute discretion, accept or decline to establish any Account or to provide any one or more Financial Products that you have selected in your Application Form.
1.4 These Account Terms will apply to you in respect of any Financial Product that you have selected in the Application Form from the time OTCapital opens an Account for you.
1.5 By signing or submitting (electronically or otherwise) the Application Form when you apply to be our Client or by using or accessing our website, you agree to the terms and conditions, and make the representations and warranties, set out in the Product Disclosure Statement (PDS), the Financial Services Guide (FSG) and these Account Terms.
1.6 If the required fields on the Application Form are not completed to our satisfaction, OTCapital may not allow you to trade, or if a trade is made to profit or have money reimbursed unless it is directly refunded to the account from that it was deposited. All fees and charges will be paid by you.
1.7 OT Markets Pty Ltd is a Corporate Authorized Representative (CAR), license number 001258906 of AGM Markets Pty Ltd AFSL 422662.
1.8 OTCapital may in its discretion allow you to have two or more Accounts from time to time. A reference in these Account Terms to “Account” is a reference to all of the Accounts you have from time to time, unless the context requires a different meaning.
1.9 All Financial Products offered by OTCapital which are provided by AGM Markets to OTCapital are subject to these Account Terms, which include the Schedule. A reference to “terms” is a reference to the terms in these Account Terms (including the Schedule) which are applicable to you, as amended from time to time.
1.10 You should check that you have the latest version of the Account Terms including the latest Schedule.
1.11 Please feel free to use the customer support Live Person button located on the bottom of the page on OTCapital website www.OTCapital.com or to contact us by e-mail at [email protected] whenever you have a question.
1.12 Jurisdiction: OTCapital brand doesn't accept US rejoin residents and/or payments methods related to this area.
2. Orders2.1 It is stated that AGM Markets is the issuer of any derivatives and or financial product.
You may from time to time place orders with us to request to enter into Transactions. On an absolute discretion the Issuer may decide to accept or reject your order. You agree and acknowledge that no Transaction is entered into until your order is accepted in accordance with these Account Terms. Any Transaction entered into between you and OTCapital will be between you and the AGM Markets (the "Issuer") as principal.
2.2 We will not be responsible for delays or errors in the transmission or execution of your instructions.
2.3 The Issuer refuse to accept an order and we may place a limit on any order or place other conditions on the receipt of instructions or orders, in our absolute discretion and for any reason. The Issuer may at any time use, add and change filters within a trading system which prevent delivery of orders or execution of orders. OTCapital will notify you of any refusal or limitation as soon as reasonably practicable, unless we are prevented by law or a direction from a regulatory authority from notifying you.
2.4 The Issuer may cancel or amend an order in any of the following cases:
a. if the Financial Product the subject of the Transaction has been subject to a trading halt on a Financial Market or other regulatory action preventing execution of your order and you have not reconfirmed instructions;
b. if the Issuer considers the cancellation or variation is appropriate, having regard to the desirability to maintain a fair and orderly market, general market conditions. if required by a relevant Financial Market or Applicable Laws to do so, in respect of your order;
c. in the event of an error or Event of Default.
2.5 If you give instructions to cancel or to amend your order, but an order is filled, or a Transaction is entered into, prior to the cancellation or amendment instruction being effected as determined by us, you are bound by the Transaction on the original terms prior to your amendment or cancellation instruction.
2.6 The cancel feature enables a client to request cancelling the client’s position within a few seconds of placing of an order. The order may be accepted or declining this request at its absolute discretion. Where we consider the use of the cancel feature as a system abuse, we may:
a. cancel a position;
b. disable the cancel feature;
c. refuse to distribute profits; and/or
d. suspend the Account.
Without limitation, the use of the cancel feature will be considered by us as a system abuse if the client canceled positions exceeding 20% of the number of executed options in a trading period.
2.7 The Issuer may execute orders for (and enter into Transactions with) you even in circumstances if the Issuer or its associates:
a. hold a principal position or deal in the relevant Financial Products;
b. provide similar services to other persons in relation to the relevant Financial Products;
c. have material price sensitive information relating to the relevant Financial Products; or
d. have a potential conflict of interest or duties.
2.8 Notwithstanding any rule of law or equity to the contrary, OTCapital and/or the Issuer is not disqualified from contracting with any person and no contract, transaction or arrangement in which OTCapital and/or the Issuer is in any way interested is avoided or rendered voidable by virtue of your agreement with OTCapital or a Transaction. OTCapital and/or the Issuer is not liable to account to you for any profit realised by any such contract, transaction or arrangement in connection with these Account Terms or a Transaction. Except as required by the Applicable Law, OTCapital is not required to make any disclosure to you concerning any such contract, transaction or arrangement.
2.9 The Issuer will enter into Transactions with you as principal. If permitted by the Applicable Law, The Issuer may take the opposite position in a Transaction with you (in addition to the Transaction with you). Your orders may match opposite orders of another person who is our Client, and this may entitle us to receive fees or commission from both sides of the transaction. Similarly, as the Issuer deals as principal, your orders may match opposite orders entered on our behalf as principal and you authorise OTCapital to charge you commission or a Transaction Fee in respect of the Transaction in those circumstances.
2.10 You are aware of and acknowledge the right of OTCapital and/or the Issuer and its Related Bodies Corporate, directors and employees, either on their own account or on behalf of other Clients or persons, to deal in any Transaction or take the opposite position to you in Transactions, if permitted (or, if not expressly permitted, then if not prohibited) to do so by the Corporations Act and the Rules.
2.11 You acknowledge that OTCapital does not operate any discretionary accounts and will only act on your instructions (including those given by your Authorised Person).
2.12 If a security code or identifier changes, you are responsible for replacing all live and contingent order codes with the new relevant security code or identifier. OTCapital will not be responsible for any live or contingent orders with the incorrect security code or identifier.
2.13 You must not instruct OTCapital or submit an order to request to enter into a Transaction, or enter into any Transaction with OTCapital, which would breach or cause OTCapital and/or the Issuer or any other person to breach the Corporations Act, the Rules or any other Applicable Laws including, without limitation, any law or the Rules in relation to:
a. market manipulation, false trading, market rigging, fictitious transactions, wash trading or matching of orders;
b. insider trading;
c. short selling;
d. creating a disorderly market or otherwise prejudicing the integrity or efficiency of the market; or
e. misleading or deceptive conduct.
2.14 Your instructions to OTCapital to request to enter into a Transaction, your order to OTCapital and/or the Issuer to request to enter into the Transaction and the Transaction remains valid and enforceable against you, without affecting your other liability to OTCapital, even if you (or your Authorised Person) are not authorised by your own rules (such as a corporate or trust constitution or an investment management agreement).
2.15 You agree not to make any Claim against OTCapital and/or the Issuer for any Loss incurred or suffered by you which arise in connection with or directly or indirectly caused by an exercise of any power by a Financial Market (whether or not OTCapital has given you a Confirmation in respect of any affected Transaction and whether or not that exercise of power was in relation to a particular contract made by OTCapital to hedge its Transaction with you).
3. Calculations and Valuations3.1 The Balance of an Account will be determined by OTCapital on the basis of:
a. Transactions, including rolled Transactions;
b. Transaction Fees;
c. payments received and credited;
d. Price of FX Trading entered into;
e. Unrealised Gain/Loss;
f. Finance Charges (including forward and rollover fees components); and
g. any other fees and costs.
3.2 OTCapital may from time to time calculate and report the Liquidated Value. The Liquidated Value is an indicative (non-binding) value of an Account calculated by us for the Account. It takes into account (among other things, without limitation):
a. Finance Charges (whether or not accrued and payable); and
b. the expected (but non- binding estimate of) costs of closing Transactions by termination or Close Out.
3.3 OTCapital may from time to time calculate and report the Available Funds for an Account. The value of the
Available Funds is the amount calculated by us as the amount of cash, which would be paid to you from the Account if requested. The amount is subject to final adjustment by us at any time including immediately after payment of cash to you for any reason whatever, including changes in value or level of Underlying Assets, interest rates, currency rates, and unposted (or unreported) but accrued Finance Charges or Transaction Charges.
3.4 OTCapital may from time to time calculate and report the Unrealised Gain/Loss for an Account. Unrealised Gain/Loss is the indicative amount of net profit or loss of an Account calculated by OTCapital (including by the Online Trading Platform) by reference to prevailing market prices and so:
a. may be adjusted by us at any time; and
b. is not definitive and so does not assure you that the Transactions will have that value if actually terminated or sold at that particular time.
3.5 Terms and expressions used in these Account Terms for reporting and calculating amounts may differ from time to time from terms or expressions used in the Online Trading Platform usage or desk usage or market practice. You should have regard to the statements, Confirmations, guides and dealing practices used from time to time.
3.6 If the composition or calculation of an Underlying Asset is adjusted by its issuer, regulator or sponsor, OTCapital will make such adjustment to the Transaction at the time determined by us which reasonably preserves the intended economic effect of the Transaction, but without being obliged to consider your particular circumstances. OTCapital need not give notice of the adjustment. If the Underlying Asset becomes subject to a take-over bid, a take-over offer, scheme of arrangement or other mechanism for change in control, then we may elect to Close Out the Transaction on a new Closing Date determined by OTCapital.
4. Appointment of Authorised Persons4.1 You may authorise another person (Authorised Person) to give instructions and place orders on your behalf or otherwise to do anything which you are entitled to do in connection with or under these Account Terms. You must notify OTCapital in your Application Form or otherwise in writing of any such authorisation, setting out the full name, telephone number, fax number, email address and specimen signature of that person.
4.2 Any change or revocation of such authority is only effective upon receipt by OTCapital of a signed written notice of change or revocation from you. If another person is later appointed an Authorised Person, the notice must include the full name, telephone number, fax number, email address and specimen signature of that person and be verified by an Authorised Person and, if you are a body corporate, by a director.
4.3 For the purposes of these Account Terms, orders placed by, and other instructions or directions given by, an Authorised Person (or which appear to OTCapital on the face of the orders or other instructions or directions to be placed or given by an Authorised Person) are taken to be your orders, instructions or directions.
4.4 You are and remain solely liable and responsible for all acts and omissions of your Authorised Person notwithstanding the act or omission of the Authorised Person was:
a. outside their actual or ostensible authority; or
b. in error, fraudulent, negligent, in breach of their fiduciary duties or criminal.
4.5 You agree not to make, and release OTCapital from any liability to you under your right to make, any Claim against OTCapital for any Loss incurred or suffered by you which arise directly or indirectly due to OTCapital relying on instructions from or other communications from or acts or omissions by your Authorised Person.
5. Client Instructions5.1 You must keep all logins and passwords secret and secure and ensure that unauthorised third parties do not
obtain access to your Account for Transactions under these Account Terms. You are solely responsible for any damage caused by reason of any act or omission resulting in improper or illegal use of your Account. You agree to provide to OTCapital accurate and complete information, including about yourself during the registration process. You also agree not to impersonate another person or entity, and not to hide your identity, to OTCapital for any reason whatsoever.
5.2 You can instruct OTCapital in the following ways:
a. electronically through OTCapital internet-based Online Trading Platform; b. by email;
c. face to face; or
d. by telephone.
5.3 It is your responsibility to ensure that OTCapital has received instructions sent by you. OTCapital may, in its own discretion, not accept instructions in any of the ways described above if OTCapital cannot verify the identity of the client.
5.4 Transmission of an instruction by you will not constitute a binding contract with OTCapital because any order or instruction made by you is subject to OTCapital accepting your order and having been confirmed by OTCapital to you.
5.5 You must execute, or otherwise authorise OTCapital to execute, all such agreements and other documents as required to enable the provision of the services and Financial Products contemplated in these Account Terms.
5.6 If there are any changes to the information provided to OTCapital by you (including for the registration process – for example, name) you must provide details of the changes immediately. If a form of identity has expired, a new one must be provided by you immediately. For a person with a few accounts under the same identity, we may request (and the person must provide) more information or an updated form of identification to OTCapital satisfaction.
6. Confirmations6.1 If OTCapital accepts an order, we will send you a Confirmation. If OTCapital fails to send you a Confirmation, it does not affect the validity of the order or the Transaction.
6.2 You consent to Confirmations being sent to you electronically (including by being available on the Online Trading Platform).
6.3 It is your obligation to review any Confirmation immediately to ensure its accuracy and report any discrepancies that you may have to OTCapital within 48 hours. Confirmations can be viewed electronically through the Online Trading Platform.
6.4 If there is a conflict between:
a. the Account Terms; and
b. OTCapital records of the Transaction concerning an order; OTCapital record of the Transaction concerning an order prevail.
7. Client Representations, Warranties and Agreements7.1 You, the Client, represent, warrant and agree that as at the date of these Account Terms and at all times during which you provide instructions to OTCapital or during which you have any Transaction with OTCapital and/or the Issuer:
a. corporate authorisation: if you are a company, you are duly organised and validly existing and have full power and authority to enter into and perform, and has taken all necessary steps to enable it lawfully to enter into and perform, these Account Terms and the transactions and obligations contemplated under them;
b. legal disability: if you are a natural person, you are over 18 and are of legal age to make binding agreements and are not under a legal disability or incapacity which would make these Account Terms or any transaction or obligation contemplated under them unenforceable or invalid;
c. authority: you and any Authorised Person have full power and authority to enter into and perform these Account Terms and the transactions and obligations contemplated under them, and bind you (whether you are a natural person, company, partnership or otherwise);
d. joint account: if the Client is more than one person they will each be jointly (that is, together) and severally (that is, individually fully) liable under these Account Terms and the transactions and obligations contemplated under them and all such decisions made, and instructions issued, pursuant to these Account Terms, are made on a fully informed and agreed basis by all the parties to the joint Account;
e. partnerships: if the Client is one or more persons acting as a partnership in relation to these Account Terms, the Client and each partner has power and authority to deal in Transactions and to be bound by these Account Terms and the transactions and obligations contemplated under them, and has full power and authority to enter into and perform these Account Terms and the transactions and obligations contemplated under them on behalf of all of the partners;
f. trustee: if the Client is the trustee of a trust:
i) you are the sole trustee of the trust;
ii) no action has been taken or proposed to remove you as trustee of the trust;
iii) you have power under the trust deed to enter into and comply with your obligations under these Account Terms and the transactions and obligations contemplated under them;
iv) you have in full force and effect the authorisations necessary to enter into and perform these Account Terms and the transactions and obligations contemplated under them and make an order, perform obligations under them and allow them to be enforced (including under the trust deed and its constitution (if any)) and
v) you have a right to be fully indemnified out of the assets of the trust in respect of obligations incurred by you under these Account Terms and the transactions and obligations contemplated under them and any order;
vi) the trust fund is sufficient to satisfy that right of indemnity and all other obligations in respect of which you have a right to be indemnified out of the trust fund;
vii) you have not, and never have been, in event of default (howsoever called) under the trust deed;
viii) no action has been taken or proposed to terminate the trust;
ix) you and your directors and other officers have complied with their obligations in connection with the trust; and
x) you have carefully considered the purpose of these Account Terms and the transactions and obligations contemplated under them and any order and consider that entry into these Account Terms and the transactions and obligations contemplated under them and any order is for the benefit of the beneficiaries and the terms of the trustee documents are fair and reasonable; all necessary consents required in order for it to conduct its business and relevant to the performance, validity or enforceability of these Account Terms and the transactions and obligations contemplated under them and any order have been obtained and are in full force and effect.
g. If the Client is an investment manager or a responsible entity, the investment management agreement or fund constitution specifically empowers and authorises dealings in the Financial Products, by the Client and on behalf of their underlying Clients or investors; and
i) such dealings are within the authorised ambit of each underlying Client’s investment strategy and/or governing documents;
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 Product transactions when the funds or other assets under its control are sufficient to meet the obligations which arise in connection with such dealing; and
iv) if your appointment as investment manager or responsible entity is terminated, it is authorised to arrange for closing out of all Transactions entered into on behalf of the Client prior to the date of such termination as soon as possible;
h. you have read these Account Terms and any PDS issued by OTCapital in relation to the Financial Products and Transactions relevant to the Account (including the disclosures of significant risks), have considered your objectives and financial situation and have been advised by OTCapital to obtain appropriate independent advice prior to entering into these Account Terms and the transactions and obligations contemplated under them, and have formed the opinion that dealing in the Financial Products is suitable for your needs and purposes;
i. you have experience and sufficient knowledge in financial matters, are able to evaluate the benefits and risks of entering into any Transaction and are solely responsible for any decision to enter into any Transaction;
j. you are willing and able, financially and otherwise, to assume the risk of trading in high risk investments, and all Transactions covered by these Account Terms;
k. information supplied to OTCapital by you is or will be accurate in all material respects and you will not omit or withhold any information which would make such information inaccurate in any material respect;
l. you will provide to OTCapital on request such information regarding its financial and business affairs and identity, as OTCapital may reasonably require;
m. you are complying with all Applicable Laws and will comply with all Applicable Laws in entering into and performing these Account Terms and any Transactions (and, without limitation to the foregoing, you are not resident in or located in any jurisdiction (such as the United States of America) under the laws of which jurisdiction the entry into or performance of these Account Terms or any Transactions is illegal);
n. no Event of Default continues unremedied;
o. you will not conduct any Transactions, including trades, which contravene any laws or regulations (including in relation to insider trading, market manipulation or market abuse);
p. in entering into and complying with these Account Terms and the transactions and obligations contemplated by them, you will not infringe any provisions of any other document or agreement to which you are a party; and
q. you will take all reasonable steps to obtain and communicate to OTCapital all information, and will deliver or cause to be delivered to us, 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. You authorise OTCapital to pass on or deliver all such information and documents to any such person.
7.2 You acknowledge and agree that OTCapital has entered into the Account Terms in reliance on the representations, warranties and agreements in this clause 7.
8. Client Acknowledgments8.1 You acknowledge, agree and confirm to OTCapital for our benefit in relying the following:
a. you (or, if a corporate entity, the directors who apply to be bound by these Account Terms) have read and understood all documentation provided to you by OTCapital including these Account Terms and any PDS in relation to any Financial Products which you request OTCapital to make available to you in relation to your Account;
b. you have received, read and understood OTCapital FSG;
c. all dealings in Financial Products and the performance by OTCapital of its obligations under these Account Terms are subject to Applicable Laws;
d. OTCapital does not and will not provide any legal, tax, financial or accounting advice to you (including any personal advice) as part of the services that OTCapital provides to you in accordance with these Account Terms;
e. by these Account Terms (including any Transaction made under it) OTCapital does not act in a fiduciary capacity in relation to you and OTCapital does not owe any fiduciary obligations to you in respect of its services provided to you in connection with these Account Terms;
f. OTCapital may transfer from your other Account(s) held with OTCapital (if any), such funds as may be required to meet obligations as a result of Transactions between you and OTCapital or to satisfy any amount owing by you under these Account Terms or otherwise and OTCapital would not enter into these Account Terms but for this acknowledgement and agreement (and all of the other terms);
g. The Issuer will act as principal when dealings with you;
h. you and OTCapital are bound by the Applicable Laws;
i. you will indemnify and keep indemnified OTCapital and each of its Related Bodies Corporate and their respective directors, officers employees and agents from and against all sums of money, actions, proceedings, suits, Claims, complaints, demands, damages, costs, expenses and any other amounts whatever claimed against any of them in connection with these Account Terms and any transactions or obligations contemplated by them other than moneys payable by OTCapital to you under the Transactions contemplated by these Account Terms;
j. OTCapital is not required to act in accordance with your instructions if in OTCapital opinion to do so would or could constitute a breach by it or its agent or counterparty of the Applicable Law;
k. that trading in Transactions incurs a risk of loss as well as a potential for profit;
l. dealings in the Transactions may create an obligation to give or take delivery or make a cash adjustment in accordance with the terms of the relevant Transaction;
m. The Issuer will act as principal with you in respect of the Financial Products;
n. subject to Applicable Law, you consent to the Issuer either knowingly or unknowingly taking the opposite side to you in relation to any of the Financial Products, without notice to you;
o. subject to Applicable Law, you agree and acknowledge that OTCapital and/or the Issuer directors, employees and associates may and can deal on their own account in relation to any of the Financial Products;
p. OTCapital and/or the Issuer may, in its sole discretion and without explanation, refuse to deal with or on behalf of you in relation to any Transaction (including Closing Out existing open positions in your Account) or to limit the number of open positions of or held in your Account (OTCapital will try to inform you of any refusal before or as soon as practicable after such refusal);
q. The Issuer may, in is sole and absolute discretion, and without notice and explanation, hedge part or all of the client’s exposures with a counterparty or counterparties in accordance with risk management parameters determined by it from time to time, and nothing in this Agreement requires the Issuer to hedge its exposures at all;
r. if errors have occurred in the pricing of Transactions quoted by the issuer to you, it may choose not to be bound by such Transactions (without further liability to you) if determines that there was a material error at the time of the Transaction;
s. there are risks associated with using an internet-based deal execution trading system which include, but are not limited to, the failure of hardware, software, and internet connection and since OTCapital and/or the Issuer does not control data flows, internet or power connection, routing via internet, configuration of your equipment or reliability of its connection, OTCapital will not be responsible for communication failures, distortions or delays when trading (including processing payments) via the internet;
t. reports to you on the execution of Confirmations by OTCapital and/or the Issuer, and the content of such Confirmations, open position statements and monthly statements, unless otherwise objected to within 48 hours after communication to you, will be deemed to be conclusive proof of the accuracy of such contents and their execution in accordance with these Account Terms except only in the case of manifest error; and
u. a notice issued by an authorised officer or agent of OTCapital stating the amount of money due and payable by you will be taken as conclusive evidence of except only in the case of manifest error.
9. Fees and Charges9.1 You must pay to OTCapital or as OTCapital directs:
a. any transaction charges imposed by OTCapital and all transaction commission, charges, fees, Prices, premiums, settlement and clearing fees and charges, charges imposed by any Exchange, interest, Event of Default charges and Taxes (including GST but excluding OTCapital income tax or penalty tax and levies) and any other amounts due under these Account Terms on demand by OTCapital in cleared funds or otherwise as required by these Account Terms;
b. a Transaction Fee, a Finance Charge or any or all of them (if applicable), in respect of each Transaction in which OTCapital acts as principal;
c. Finance Charges applicable to any Transaction or Account (if applicable), as specified by OTCapital from time to time;
d. any fees, Taxes, stamp duty or other charges as may from time to time be levied on or in connection with any Transactions entered into with you or on your behalf; and
e. in respect of any unpaid amounts required to be paid under these Account Terms and any transactions or obligations contemplated by them including (without limitation) any amounts due as a result of your failure to pay interest on all such amounts denominated in Australian dollars at the rate of Base Rate plus 4% per annum, such interest to accrue daily from the due date to the date of its payment in full.
9.2 You acknowledge and agree that:
i) OTCapital may receive commissions and other benefits from other parties in relation to Transactions OTCapital enters into with you or on your behalf or in connection with other services provided to you. OTCapital is entitled to retain such commissions and benefits.
ii) If you have been referred to OTCapital or on behalf of a broker or other third party, that broker or third party may receive benefits in the form of a commission or rebate from us.
iii) Unless otherwise agreed, the terms of any amounts payable by you under the PDS and these Account Terms are stated exclusive of GST. You must pay the GST on the amount charged for the supply of the service, unless that is not permitted by law. OTCapital will when required by law and as far as practicable state in Confirmations the amounts as GST-inclusive.
iv) You acknowledge and agree that you are responsible for your own legal costs associated with entering into
these Account Terms and any transactions or obligations contemplated by them and for all Taxes and expenses incurred by you in connection with these Account Terms and any transactions or obligations contemplated by them, including any Transaction made under them.
9.3 The amounts of the fees, commissions and charges referred to in clause 9.1 will be as notified from time to time in writing by OTCapital, by way of a PDS, posting to OTCapital website or as otherwise agreed with you or permitted by these Account Terms.
9.4 You agree that OTCapital may:
a. debit your Account (on a monthly or any other basis) and pay itself, without further reference to you:
v) administration fees, including but not limited to fees associated with returned cheques, payment processing, Short Message Service (SMS), debt collection and telephone transcript copies from your Account with OTCapital during the full term of these Account Terms while you use such services; and
vi) all fees, charges and royalties which you owe to OTCapital; and
b. withdraw from the Account any amount payable to OTCapital or reimbursable in accordance with these Account Terms.
a. you are required to make a deduction or withholding in respect of Tax from any payment to be made; or
b. OTCapital is required to pay any Tax (other than income tax) in respect of any payment made in relation to these Account Terms at your request, then you:
vii) indemnify OTCapital against the Tax; and
viii) agree to pay to OTCapital an additional amount to ensure OTCapital receives a net amount (after payment of any Tax in respect of each additional amount) that is equal to the full amount OTCapital would have received had a deduction or withholding or payment of Tax not been made.
9.6 You must reimburse OTCapital for all fees (both direct and indirect) and expenses charged in connection with any Transaction (other than Tax on the income of OTCapital) and for all costs and expenses incurred by OTCapital in implementing these Account Terms and in enforcing its rights under these Account Terms (including its legal costs of external or internal legal advisers on a full indemnity basis).
9.7 All payments by you under these Account Terms are:
a. to be made without any set-off by you, counter claim or condition made by you and without you making any deduction or withholding for any Tax or any other reason unless the deduction or withholding is required by applicable law or the set-off arises by express application of these Account Terms; and
b. payable in any currency that OTCapital may require or determine.
9.8 If no minimum period is required or is not stated elsewhere in these Account Terms, notice of a change in Transaction Fees, charges or rates (including new ones) may be effective immediately OTCapital first generally publishes the information of any variation or new item in its PDS, on its website or through Online Trading Platform or platform administration service.
9.9 If GST is payable on a taxable supply made by OTCapital under, by reference to, or in connection with these Account Terms, you must also pay the amount of GST payable in respect of that taxable supply. This clause does not apply to the extent that consideration for a supply is expressly stated to you to be GST inclusive. Terms which have a defined meaning in the A New Tax System (Goods and Services Tax) Act 1999 have that meaning in these Account Terms.
10. Client Moneys10.1 All Client funds received by OTCapital are dealt with in accordance with the Australian Client Money Rules. Moneys paid by you to OTCapital for Transactions are initially deposited into OTCapital clients money accounts (AGM Markets segregated trust accounts on behalf of OTCapital). OTCapital may invest any of your money held in the OTCapital Client Money trust account in the kinds of investments as permitted by the Australian Client Money Rules and you irrevocably and unconditionally authorise OTCapital to undertake any such investment.
10.2 Moneys in the OTCapital Client Moneys trust account are held for OTCapital clients and are segregated from OTCapital own funds. This means those funds are not available to pay general creditors in the event of receivership or liquidation of OTCapital. You agree and acknowledge that the money of OTCapital clients are not separated from each other within the OTCapital Client moneys trust account.
10.3 You acknowledge, authorise and agree that:
a. your moneys and the moneys of other Clients of OTCapital may be combined and deposited by OTCapital in the OTCapital Client Money trust account, separate from the moneys of OTCapital;
b. all moneys credited to the OTCapital Client Money trust account may be used by us to meet the Event of Default of any Client of OTCapital to the extent permitted by the Corporations Act;
c. OTCapital is entitled to all interest earned on moneys credited to the OTCapital Client Money trust account or invested by us in accordance with the Australian Client Money Rules;
d. upon realisation of an investment of your moneys, the initial capital invested must either be invested in another investment permitted by the Australian Client Money Rules or deposited by OTCapital into the OTCapital Client moneys trust account, operated in accordance with the Australian Client Money Rules;
e. in the event that the amount received upon realisation of an investment of your moneys is less than the initial capital invested, OTCapital must pay an amount equal to the difference into an OTCapital Client Money trust account for the benefit of you, except where any such difference is the result of amounts paid out of the investment to OTCapital and/or any Associate of OTCapital in accordance with the terms and conditions of these Account Terms;
f. We will not charge a fee for investing your moneys in accordance with the Australian Client Money Rules;
g. moneys credited to the OTCapital Client Money trust account may be used by OTCapital for purposes unrelated to your Account to the extent permitted by the Corporations Act and accordingly such use of a OTCapital Client Money trust account does not fully protect your money and property from risk of loss.
10.4 You authorise OTCapital to withdraw, deduct, pay, apply and use any or all moneys in the OTCapital Client Money trust account (or invested by OTCapital) to meet any liability, obligation or Loss which you owe to OTCapital under these Account Terms, including, without limitation, making a payment for, or in connection with, the Price for Transactions entered into by you with OTCapital or the payment of interest, fees or charges to OTCapital, it being acknowledged and agreed by you that such amounts belong to OTCapital and may be used by OTCapital from time to time for any purpose whatsoever.
10.5 You also authorise us to withdraw, deduct, pay, apply and use any and all moneys in the OTCapital Client Money trust account (or invested by us) to meet obligations incurred by OTCapital in connection with margining, guaranteeing, securing, transferring, adjusting or settling dealings in derivatives by OTCapital (including dealings on behalf of people other than you), including without limitation for the payment of amounts to OTCapital counterparties.
10.6 The proceeds of a Transaction or other moneys to which you are entitled under these Account Terms will be paid directly to you and not to any third party, unless you have otherwise instructed OTCapital to do so. You must provide relevant account details for payment instructions in respect of payments to be made by OTCapital to you. Although we will take reasonable steps to comply with your payment instructions, OTCapital accepts no responsibility for any failure to comply with those instructions and, if such failure occurs, the relevant moneys will continue to be held by OTCapital in accordance with the Corporations Act and Applicable Laws.
10.7 All currency exchange risks regarding any payment instruction or any order or Transaction entered into by you or arranged for you by OTCapital is your responsibility. Any conversion from one currency to another required to be made for performing or executing any payment instruction, order or Transaction may be effected by OTCapital in the manner and at the time and at the exchange rates that OTCapital, in its absolute discretion, decides.
10.8 If OTCapital determines that your Account has been inactive for a reasonably long period, you authorise us to withdraw any withdrawal funds from the Client Money trust account to be paid into your nominated bank account.
10.9 Where money is held in an account that is inactive for at least 6 years, and we are unable to locate you the money will be lodged with the New South Wales Office of State Revenue, where you may make a claim to retrieve it.
11. Price of FX and CFD Trading11.1 You undertake to comply strictly with the following:
a. Any reference to time under this item 11 includes weekends and public holidays.
b. OTCapital requires you to pay, and you must pay, cleared funds to cover the Price of the Margin FX and CFD Trading prior to or on any Transaction being effected. The Price and the time at which it is required is in the absolute discretion of OTCapital. OTCapital is not obliged to permit any offset of any Price payment required by OTCapital.
c. The Price of a FX and CFD Trading applicable in respect of a Transaction may be increased by OTCapital in its absolute discretion as to time for payment and amount. If there is an increase or other change, OTCapital may require that you (and you must) pay OTCapital additional cleared funds equal to such an increase or comply with the other change.
d. Your liability to pay accrues and the Price is payable to OTCapital at the time the Transaction for the FX and CFD Trading comes into existence.
e. All of your payments for FX and CFD Trading (after withdrawal from the AGM Markets Client segregated trust account) are received and held by AGM Markets absolutely for its benefit.
f. If the required Price of a FX and CFD Trading has not been paid, you acknowledge and agree that OTCapital may refuse any request by you to enter into the relevant Transaction and any further Transactions until OTCapital has confirmed the receipt of payment in the required amount in the form of cleared funds.
g. The time when funds paid by you to us are “cleared funds” is when OTCapital determines when they are cleared funds. This may mean, for example, that cleared funds in the AGM Markets Client Money trust accounts are not cleared funds for the purposes of OTCapital being paid the Price of the FX Trading.
h. Any amounts payable to you by OTCapital in respect of FX Trading will not fall due for payment by OTCapital until all of your obligations to OTCapital (under or in respect of the Account or any other account with or transaction between OTCapital and you whether under these Account Terms or otherwise) are satisfied in full. Until this time any amount will not constitute a debt due by OTCapital to you nor will you have any right to receive payment of any amount in respect of these funds.
i. Subject to you meeting all your obligations in respect of your Accounts and Transactions with OTCapital and these Account Terms, OTCapital may permit you to withdraw from your Account any Available Funds.
j. You are responsible to pay in cleared funds any deficit owing to OTCapital after closure of positions in accordance with these Account Terms. In payment of such deficit, OTCapital may realise any other position held by you with OTCapital and apply the proceeds against that deficiency.
k. OTCapital will have sole, absolute and unfettered discretion as to the exercise of any power or right under this clause or otherwise under these Account Terms.
l. Any power or right exercised by OTCapital under this clause or otherwise under these Account Terms will be binding upon you.
m. You acknowledge and agree that you must provide payment in cleared funds so that you will not have satisfied your obligation until cleared funds have been credited to the correct account required for payment for the Price of the FX Trading.
12. Event of Default12.1 Each of the following constitutes an Event of Default:
a. you breach these Account Terms, whether by act or omission;
b. you fail to pay the Price of the FX and CFD Trading or other sum due under these Account Terms payable to OTCapital by the required time;
c. you fail to pay by the required time the amounts due in respect of any Transaction entered into pursuant to these Account Terms;
d. you fail to perform any obligation arising pursuant to the settlement of a contract which arises pursuant to a Transaction;
e. you fail to fulfil any settlement obligations in respect of a Transaction entered into pursuant to these Account Terms;
f. you fail to comply with any limit or restriction imposed on you by OTCapital in connection with your Account (for example, a restriction on the kind, volume or value of Transactions or outstanding liabilities);
g. a guarantee lodged by you, or lodged by a third party at your request, in favour of OTCapital is withdrawn without OTCapital consent or becomes ineffective and other replacement security acceptable to OTCapital is not provided;
h. any representation or warranty which you give under or pursuant to these Account Terms is or becomes incorrect or misleading in any way;
i. OTCapital believes that you may not be able to meet your obligations to OTCapital in respect of one or more Transactions, including, without limitation, strict compliance with any time limits for performance;
j. you become insolvent or bankrupt;
k. you call a meeting to discuss a contemplated scheme of arrangement or compromise or you enter or propose to enter into any scheme of arrangement or compromise with your creditors;
l. you enter into a composition or scheme of arrangement for the benefit of creditors;
m. OTCapital believes that you, the Client, have ceased to pay debts duly owed to OTCapital in accordance with these Account Terms or have threatened to cease carrying on business;
n. you become insolvent or a receiver, or receiver and manager or administrator is appointed to you or any of your assets;
o. if you are a body corporate:
(i) a resolution is passed or a petition is presented or an order is made for your winding up or liquidation;
(ii) you go into liquidation, voluntarily or otherwise (except for the purpose of reconstruction), or you or another person appoint a liquidator, receiver, administrator or official manager in respect of your assets;
(iii) a director of the Client has not given a valid deed of guarantee and indemnity in respect of your obligations under these Account Terms) in favour of OTCapital and in a form acceptable to OTCapital; or
(iv) you have not notified OTCapital of a change of any director within seven (7) days of the change taking effect;
p. if you are acting on behalf of another person pursuant to authority provided by another person, the authority is varied in a way which (in OTCapital opinion) negatively impacts on your authority or legal or financial capacity to perform your obligations under these Account Terms;
q. if you are a trustee, the relevant fund or trust of which you are trustee is terminated, vests or a distribution of capital of the trust or fund is made which would result in there being, in our opinion, insufficient assets of the trust or fund to meet your liabilities under these Account Terms or any Transaction;
r. if you are a natural person, you die or become of unsound mind or if you or your estate is liable to be dealt with in any way under any law relating to mental health;
s. you impose a moratorium on payments to creditors or cease, or threaten to cease, carrying on business;
t. in the absence of making alternative arrangements, you are not contactable by OTCapital within 12 hours in order for OTCapital to obtain instructions in relation to any of your Transactions;
u. OTCapital has reason to believe that your activities on our website, or in relation to any Transaction, may be illegal;
v. OTCapital considers that it may be harmed by any fiscal or pecuniary damage due to your activities;
w. OTCapital considers that one or more operations on our Website were made in violation of these Account Terms; or
x. the occurrence of any other event (i) referred to in the Schedule as constituting an Event of Default or (ii) which OTCapital and you have agreed constitutes an Event of Default.
13. Actions Following an Event of Default13.1 If an Event of Default occurs, OTCapital, in addition to any and without prejudice to any other rights it may have under these Account Terms, has the right and power, in its absolute discretion and without necessity to give prior or any notice to you, to take any action, or refrain from taking action, which it considers reasonable in the circumstances in connection with Transactions entered into pursuant to these Account Terms and, without limitation, OTCapital may:
a. cancel any outstanding orders;
b. enter into one or more Transactions to effect the Close Out of one or more unsettled Transactions or open positions you may have as if you had agreed to Close Out at the Closing Price determined by OTCapital;
c. in accordance with clause 13.3 treat all or any Open Transactions as having been terminated by you;
d. settle any Transaction which has not, at the time of the Event of Default, settled;
e. cover in whole or in part open positions by entering into further Transactions;
f. take any other action a reasonably prudent principal might take in the circumstances to protect OTCapital personal obligation incurred when dealing with you;
g. charge you with all of the costs, expenses and losses incurred by OTCapital as a result of entering into, or Closing Out Transactions pursuant to these Account Terms;
h. calculate any or all amounts owing by you to OTCapital and declare such amount immediately due and payable;
i. convert any amount owed by you to OTCapital into US dollars or other currency as determined by OTCapital at any time on or after payment is due (until payment is received in full);
j. satisfy obligations that you may have to OTCapital out of any property belonging to you including, funds in OTCapital custody or control including, without limitation, by selling securities lodged by you with OTCapital or setting off obligations such that security transferred as collateral is not required to be returned and to enforce any asset or security held by OTCapital in such manner as it sees fit at your expense;
k. transfer from your other Accounts, if any, such funds as may be required for that purpose to satisfy any obligation you may have to OTCapital;
l. apply any money that you have paid, or which is held by OTCapital in the OTCapital Client Money trust account, and to which you are entitled, by way of set-off;
m. immediately, or at a later time, terminate these Account Terms, the Schedule, one or more Accounts, one or more Transactions or any combination of these;
n. realise or enforce any guarantee or any security interest provided by you or in respect of your obligations to OTCapital;
o. refuse or cancel any services or products offered by OTCapital;
p. refuse to distribute profits; and/or
q. exercise any power or right that OTCapital may have in accordance with these Account Terms or in law or equity or take any other form of action as the holder of an AFSL or CAR may be required to take.
13.2 In respect of any action which OTCapital takes, or refrains from taking under this clause, you must account to OTCapital as if OTCapital took, or refrained from taking, the action on your instructions and, without limitation, you are liable for any deficiency and are entitled to any surplus which may result.
13.3 If OTCapital treats a Transaction as having been terminated by you and OTCapital exercises its rights in accordance with item 13.1(c), we will calculate the amount owing by you or by us as if you had agreed to Close Out at the Closing Price determined by OTCapital. OTCapital may debit from your Account an amount equal to the amount which would have been payable by you to OTCapital had the Transaction been closed at Closing Price. It is agreed that this amount represents a reasonable pre-estimate of the damages incurred by OTCapital.
13.4 In exercising any right of sale of any property under these Account Terms, OTCapital may sell (or arrange for the sale of) the property:
a. either by public auction, private treaty or tender;
b. for cash or on credit;
c. in one lot or in parcels;
d. with or without special conditions or stipulations as to title or time or mode of payment or purchase money or otherwise;
e. with power to allow the whole or any part of the purchase money to be deferred (whether with or without any security);
f. whether or not in conjunction with the sale of any property to any person; and
g. upon such other terms and conditions as OTCapital may consider appropriate. OTCapital is not liable for any loss occasioned by a sale of the property.
13.5 Upon any sale purporting to be made in the exercise of the powers conferred by these Account Terms or otherwise, no purchaser will be:
a. bound to ask whether any Event of Default has been made or otherwise as to the propriety or regularity of any sale; or
b. affected by express notice that any such sale is unnecessary or improper.
Despite any irregularity or impropriety in any such sale, the sale will be deemed to be authorised by such powers, as regards the protection of the purchaser or other party to any such dealing or disposal, and will be valid accordingly.
13.6 OTCapital will not forgo any of the rights outlined in this clause incurred as a result of a delay in the exercise of such rights; if OTCapital does not exercise any of its rights it reserves the right to do so at any time in the future.
13.7 Any action taken by us will not limit any other provision of these Account Terms and be without prejudice to any of rights we may have to any remedy or damages.
13.8 Subject to Applicable Law, OTCapital may appropriate credits and all payments received from or on behalf of you or held on behalf of you in reduction of any moneys owing by you to us whether on the Account or on any other account including, but not limited to, Accounts with OTCapital for dealing in any Financial Products.
13.9 You acknowledge that we may make payments out of your Client Money trust account to pay OTCapital money to which it is entitled.
14. Disputes and Queries14.1 You agree to examine the terms of each deal Confirmation immediately upon receipt or availability on the Online Trading Platform and you agree that the contents of a Confirmation, in the absence of manifest error, will be conclusive evidence of the executed deal, unless within 48 hours of issue of a written Confirmation you notify OTCapital of any disputed detail in the Confirmation received by you.
14.2 OTCapital will try to resolve your complaint quickly and fairly. Complaints received in writing will be acknowledged as soon as possible with a written receipt of your complaint and we will use our best endeavours to try to resolve your complaint within 45 days of receipt of your written complaint.
15. Disputes ResolutionAny dispute or difference whatsoever in connection with these Account Terms or any transaction or obligation contemplated by them must be dealt with by you as follows in the event the dispute or difference is unable to be resolved by OTCapital to your satisfaction in accordance with OTCapital internal complaints handling system:
15.1 You may refer the dispute or difference to the Financial Ombudsman Service (FOS) for determination in accordance with their rules; or
15.2 If the dispute does not fall within FOS’ rules, the dispute may be submitted by OTCapital to arbitration in accordance with and subject to the Institute of Arbitrators and Mediators of Australia Expedited Commercial Arbitration Rules, and to the extent permitted under those rules the Arbitrator will be a person recommended by the Victoria Chapter of the Institute of Arbitrators and Mediators of Australia; or
15.3 If the dispute or difference does not fall within the rules of FOS, you may request OTCapital to refer the dispute to arbitration in accordance with clause 15.1 above, and
a. OTCapital may decide in OTCapital absolute discretion whether to agree to any such request;
b. without agreement by OTCapital in accordance with this clause, you will not be able to refer the dispute or difference to arbitration, but will have to submit for the benefit of OTCapital only the dispute or difference to the exclusive jurisdiction of the Courts of Victoria.
15.4 You and OTCapital agree to accept any determination of the arbitrator under clauses 15.1 or 15.3 above as final and binding and submit for the benefit of OTCapital only, to the exclusive jurisdiction of the Courts in Victoria for the enforcement of any such determination. For the avoidance of doubt, this clause 15 will not prevent OTCapital from commencing proceedings in any other relevant jurisdiction for the enforcement of any such determination.
This clause 15 is for the benefit of OTCapital only, and it does not prevent OTCapital from commencing proceedings against you in any relevant jurisdiction, in addition to submitting any dispute or difference whatsoever with you in connection with these Account Terms or any transaction or obligation contemplated by them to arbitration in accordance with clause 15.2.
16. Tape Recordings16.1 You consent to:
a. OTCapital recording any or all incoming and outgoing phone calls with you with or without the use of an automatic tone warning device; and
b. the use of such recordings and their transcripts for any purpose, including but not limited to, their use as evidence in any dispute between OTCapital and you.
16.2 Recordings may be used to assess the performance of or to train OTCapital representatives, monitoring compliance with OTCapital respective regulatory and contractual obligations and resolving disputes.
16.3 OTCapital is not obliged (unless Applicable Laws require for it) to keep any transcripts or copies of any telephone recording or conversation nor to tell you when OTCapital disposes of the record.
17. Client to Provide Information17.1 You acknowledge that information may be provided to any regulatory authority or any other person or organisation including if OTCapital reasonably considers that the disclosure is required by Applicable Law, regulatory requirement or necessary to protect OTCapital interests. You authorise OTCapital to provide any such information concerning your Account, these Account Terms, or any Transaction entered into or proposed to be entered into by you.
17.2 You must, upon the request of OTCapital, take all reasonable steps to deliver all information and documentation which OTCapital requires in order for it to comply with its compliance polices and its duties and obligations and you authorise OTCapital to produce such information or documentation to any regulatory agency, with or without prior notice to you.
18. Online Trading Platform18.1 OTCapital provides an Online Trading Platform for the purpose of executing Transactions and providing additional information and services to Clients of OTCapital, including details regarding Accounts, Confirmations and messages from OTCapital.
18.2 The following terms apply to Transactions executed through the Online Trading Platform:
a. OTCapital is not liable to you for any loss, expense, cost or liability suffered or incurred by you due to failure of the Online Trading Platform, transmission failure or delays or similar technical errors whether or not the error might be due to factors under OTCapital control;
b. OTCapital is not liable to you for any removal of profits or losses you might suffer due to errors in quotes which are the result of your typing errors or feed errors committed or your erroneous perception of information entered into the system by you;
c. OTCapital is entitled to make the necessary corrections in your Account according to market value of the Underlying Asset in question at the time when the error occurred;
d. you are responsible for providing and maintaining the communications equipment and telephone or alternative services required for accessing and using the Online Trading Platform and for any communication service fees and charges incurred by you in accessing and using the Online Trading Platform;
e. you are responsible for the confidentiality and use of any user-name login and password issued by OTCapital and agree that you will not disclose any such information to third parties. If you become aware of any unauthorised use, loss or theft of your user-name login and/or password, you must notify OTCapital immediately. OTCapital reserves the right to cancel your user-name and/or password without notice, OTCapital will notify you as soon as practical should this happen;
f. you are responsible for the consequences of any unauthorised disclosure or use of Security Information, and for any actions or omissions by an Authorised Person;
g. you are responsible for ensuring you have in place alternative arrangements for the execution of orders or other services available through the Online Trading Platform, if the Online Trading Platform or any aspect of it ceases to be available or subject to failure (including, for example, arrangements for the use of telephone or facsimile);
h. you are responsible for all orders, and for the accuracy of all information, sent via the Online Trading Platform using your name, password or any other personal identification means implemented to identify you;
i. you must notify OTCapital immediately if you become aware of any inaccurate information being transmitted through the Online Trading Platform including, for example, inaccurate content as to orders, Transactions or Account balances;
j. you are liable to OTCapital for Transactions executed by means of your password even if such use might be unauthorised or wrongful;
k. regardless of the fact that the Online Trading Platform might confirm that a Transaction is executed immediately when you transmit instructions via the Online Trading Platform, the Confirmation forwarded by OTCapital or made available to you on the Online Trading Platform constitutes OTCapital Confirmation of a Transaction;
l. you must inform OTCapital if you become aware of a material defect, malfunction or virus in the Online Trading Platform and cease all use of the Online Trading Platform until you have received permission from OTCapital to resume use.
18.3 OTCapital reserves the right to withdraw or suspend access to the Online Trading Platform in its absolute discretion at any time without prior notice to you.
18.4 You acknowledge that the Online Trading Platform includes information which is supplied by persons not controlled by OTCapital (Information Vendors) and that OTCapital has not verified any information provided by an Information Vendor and that it is acting solely in the capacity as a carrier by conveying the information to you. Except to the extent required by law, neither OTCapital nor any Information Vendor makes any representation or warranty as to the accuracy, timeliness, suitability or completeness of any information accessed via the Online Trading Platform. You agree that information provided via the Online Trading Platform is provided for your own use and that you may not on sell, disclose or make available such information to any other person without the prior consent of OTCapital or the Information Vendor as appropriate.
18.5 OTCapital may grant you access to one or more Online Trading Platforms, including terminal access through your internet browser, for the electronic transmission of orders to your Account with OTCapital.
18.6 OTCapital may permit you electronically to monitor the activity and positions in your Account by providing an Online Trading Platform. The Online Trading Platform is a third party system offered by another vendor.
18.7 The Online Trading Platform includes all software and communication links. In accordance with these Account Terms, OTCapital may supply you with software for use with the Online Trading Platform, and grant you a non-exclusive and non-transferable licence to use the Online Trading Platform subject to the terms of these Account Terms.
18.8 You agree to use the Online Trading Platform software solely for your internal business or investment purposes.
18.10 OTCapital reserves the right to institute or change any policies at any time relating to the use of the Online Trading Platform. Bulletin boards may be subject to limitations on usage, reproduction or dissemination, and you remain responsible for adhering to any such limitations.
18.11 There are significant risks in trading through the Online Trading Platform because it is serviced by means of computer and telecommunications systems, even if generally accepted industry standards and practices are followed, including that your data may not be protected, and there are risks that other users of the Online Trading Platform, institutions or brokers may be able to see your orders and other communications relating to trading and execution without your (or our) consent and that third parties (including persons on private networks) will have the ability to attach to your network.
18.13 You are responsible for reading, understanding and complying with the details of the operational aspects of the Online Trading Platform. It is important that you read and understand any user manuals and operational procedures relating to the relevant Online Trading Platform. Further information on how to use and understand the Online Trading Platform can be obtained on OTCapital website.
18.14 OTCapital (or any third party providing the Online Trading Platform) may suspend, terminate or impose conditions on the use by you or any Authorised Person of the Online Trading Platform at any time without notice to you.
18.15 All rights in patents, copyrights, design rights, trade-marks and any other intellectual property rights (whether registered or unregistered) relating to the Online Trading Platform remain vested in OTCapital or its licensors. You will not copy, interfere with, tamper with, alter, amend or modify the Online Trading Platform or any part or parts thereof unless expressly permitted by OTCapital in writing, reverse compile or disassemble the Online Trading Platform, nor purport to do any of the same or permit any of the same to be done, except in so far as such acts are expressly permitted by law. Any copies of the Online Trading Platform made in accordance with law are subject to these Account Terms. You must ensure that all the licensors’ trademarks and copyright and restricted rights notices are reproduced on these copies. You must maintain an up-to-date written record of the number of copies of the Online Trading Platform made by you. If OTCapital so requests, you must as soon as reasonably practical, provide to OTCapital a statement of the number and whereabouts of copies of the Online Trading Platform.
19. Website; Appointment of Attorney19.1 OTCapital grants you a limited non-exclusive, non-transferable license to access and use our website (the “License”). The license is subject to your compliance with these Account Terms. You agree not to resell or make available our website to any other person, and will not copy any documents contained on OTCapital website for resale or for any other purpose without the prior written consent of OTCapital. To avoid any doubt, you will be liable and bound by any unauthorised use of OTCapital website, in violation of this section 19.1. You agree to use all the information received from the information systems provided by OTCapital for the sole purpose of performing Transactions. You also agree not to use any electronic communication feature in relation to our website for any illegal, abusive, intrusive, obscene, threatening or hateful purpose, or for any harassment, vilification or intrusion in the privacy of others. The license granted hereunder shall terminate if OTCapital considers that any information provided by you, including your e-mail, is no longer current or accurate, or if you fail to comply with any term or condition of these Account Terms or if OTCapital determines that you committed a crime or breach on the Online Trading platform (including without limitation the conclusion of a transaction outside the market rates). If such a violation occurs, you agree to cease accessing OTCapital website and all products and services provided by us. You agree that OTCapital, in its sole discretion and with or without notice, may terminate your access to all or part of, and may remove and discard any information or content within, OTCapital website and products and services provided by OTCapital, and close any open Transaction.
19.2 You agree to use OTCapital website at your own risk. Without limitation, the services provided on OTCapital website is intended only for customers who are able to withstand the loss of any money they invest and who understand the risks and have experience in taking risks in financial Markets. The possibility exists that you could endure loss and hence you should not invest money that you cannot afford to lose. You should be aware of all the risks related to FX and CFD Trading, and solicit advice from an independent financial adviser.
19.3 OTCapital assumes no responsibility for any error, omission, deletion, interruption, delay, defect, in operation or transmission, communications line failure, theft or destruction or unauthorised access or alteration of OTCapital website and all products and services provided by us. OTCapital is not responsible or liable for any problems or technical malfunction of any telephone network or lines, computer online systems, servers or providers, hardware or software, or any technical failure because of technical problems or traffic congestion on the internet, our website or any service or product provided by us. To the extent permitted by applicable law, OTCapital will not be liable for any loss or damage arising from use of our website or products and services provided by OTCapital, for any content posted on or through the OTCapital website or products and services provided by OTCapital, or the conduct of all users of OTCapital website or OTCapital website or products and services provided by us, whether online or offline.
In no event shall OTCapital or any of its directors, officers, employees or agents be liable for any damages whatsoever to you, including, without limitation, indirect, incidental, consequential or punitive damages, arising out of or related to the use of OTCapital website or the products and services provided by us, including without limitation the quality of the usefulness of information provided through or as part of OTCapital website or any investment decision making on the basis of the information, whether the damages were predictable or not and whether or not OTCapital has been acquainted with the possibility of such damages.
This limitation of liability shall apply to the fullest extent permitted by law and in no event shall OTCapital cumulative liability to you exceed the amount of money you have paid to OTCapital for the Transaction giving rise to such liability in relation to your Account.
19.4 OTCapital may make available to you a wide range of financial information that is generated internally from agents, suppliers or partners (“Third Party Providers”). This includes, but is not limited to, financial market data, quotes, news, analyst opinions, research reports, graphs and data. The financial information provided on OTCapital website is not intended to be, and is not, financial or investment advice. OTCapital and its Third Party Providers do not warrant the accuracy, timeliness, completeness or correct sequencing of the financial information, or results of your use of this financial information. The financial information may promptly become unreliable for various reasons, including, for instance, changes in market conditions or economic circumstances. Neither OTCapital nor the Third Party Providers are required to update the information or opinions included in the financial information, and OTCapital may interrupt the flow of financial information at any time without notice. It is your responsibility to verify the reliability of the information on OTCapital website and its suitability for your needs. We exclude all liability for any claim, damage or loss of any kind caused by any financial information contained in OTCapital website or referenced by OTCapital website.
19.5 Every content, trademark, service mark, trade name, logo and icon is the property of OTCapital or its affiliates or agents and is protected by law and international treaties and provisions relating to copyright. You agree not to remove copyright notices or other indications of protected intellectual property rights of any material you print or download from OTCapital website. You will not obtain intellectual property rights, or any right or license to use such material or the OTCapital website, other than those set forth in these Account Terms. Images displayed on OTCapital website are property of OTCapital. You agree not to upload, post, distribute or reproduce any information, software or other material protected by copyright or other intellectual property right (including rights of publicity and privacy) without first obtaining permission from the copyright owner and the prior written consent of OTCapital.
19.6 In consideration of OTCapital entering into these Account Terms, you irrevocably appoint OTCapital and each director, secretary and principal executive officer and each employee (which employee’s title of office includes the word “Manager” or “Head”) of OTCapital severally as your attorney at any time and from time to time following an Event of Default, to execute and deliver all documents and to do all things which your attorney may consider necessary or desirable to give effect to the provisions of these Account Terms, and in particular, without limitation, in connection with, or incidental to, the exercise of any of the rights and powers of OTCapital under these Account Terms. Those powers may be exercised in the interests of OTCapital notwithstanding any conflict with the interests of OTCapital. This appointment survives termination of these Account Terms.
20. Limitations of Liability and Indemnity
20.1 To the fullest extent permitted by law:
a. OTCapital makes no warranties either expressly or impliedly as to merchantability, fitness for a particular purpose, or otherwise (including as to accuracy, currency, availability, completeness or quality), with respect to any services OTCapital provides under these Account Terms including, without limitation, the Online Trading Platform;
b. OTCapital is excluded from all liability in contract, tort or otherwise relating to or resulting from use of any services or products OTCapital provides under these Account Terms including any use or access of OTCapital website or of the Online Reading Platform and for any Loss incurred by you directly or indirectly, including without limitation as a result of or arising out of or in connection with:
i) in the absence of gross negligence or willful default by OTCapital, any delay in transmitting or a failure to transmit funds caused by reasons outside the control of OTCapital or as a result of OTCapital failure to execute orders in a timely manner or administer these Account Terms in the manner contemplated by these Account Terms for reasons beyond OTCapital control (reasons outside OTCapital control include but are not limited to, government restrictions, suspension of trading, power failure, telecommunication failure, strikes or war);
ii) any moratorium, suspension, halt, delisting or removal from quotation or sponsored publication of any Underlying Asset or any other similar or analogous occurrence in relation to the Underlying Asset;
iii) any unauthorised use of your user-name login or password;
iv) any inaccuracy, error or delay in or omission from any information provided to you under the terms of or for purposes in connection with these Account Terms including the Online Trading Platform;
v) any delay, interruption, failure or inaccuracies in the transmission of your instructions;
vi) any failure of any electronic means used to transmit instructions or to disseminate orders, data or information or of any telecommunications link;
vii) any fault, error or defect in design or engineering of the Online Trading Platform or computer systems or any delay, fault, failure or loss of access to the Online Trading Platform;
viii) any private dealings, contracts, transactions or relationships between you and any of OTCapital employees or agents;
ix) any delays or failures or inaccuracies, or loss of access to, the provision of a service to you including, without limitation, any delay, failure or inaccuracy in, or the loss of access to, the Online Trading Platform or in respect of the transmission of orders or any other information;
x) any misinterpretation of your orders or instructions which are unclear, ambiguous, or not Specific;
xi) any auditing or checking of your level of knowledge or experience (or lack thereof); and/or
xii) any government or legal authority’s restriction or act, Exchange or market rulings, suspension of trading, computer or telephone failure, unlawful access to OTCapital Online Trading Platform, theft, sabotage, war, earthquakes, strike, force majeure and, without limitation, any other conditions beyond OTCapital control;
c. OTCapital is not liable in contract, tort (including negligence) or otherwise for any loss of prospective profits or expenses or special, indirect or consequential damages resulting from the supply of a service or Financial Product including, without limitation, the Online Trading Platform; and
d. every exemption and limitation from liability available to OTCapital will also be available to OTCapital directors, employees, agents and representatives, for whom OTCapital will hold the benefit of these Account Terms on trust; and
e. OTCapital liability to you is in any event limited to the amount of money you have paid to OTCapital for the Transaction giving rise to such liability in relation to your Account.
20.2 To the fullest extent permitted by law, you release, discharge and indemnify and agree to keep OTCapital and its respective officers, employees, agents and representatives indemnified from and against all Claims, liabilities, damages, losses and expenses (including without limitation any lawyers’ fees and costs) arising out of or in connection with:
a. acting on your instructions in relation to their dealings in Transactions or otherwise in relation to their Account;
b. the occurrence of any Event of Default;
c. OTCapital exercising any of its rights and powers upon occurrence of any Event of Default;
d. the payment of any amounts to you, in accordance with these Account Terms;
e. any lawful action by OTCapital in accordance with our rights under these Account Terms or otherwise, including any actions by OTCapital to ensure compliance with any direction, request or requirement of any regulatory authority or government body;
f. any Event of Default, whether by your act or omission under these Account Terms or any order or Transaction;
g. any breach by you of any Applicable Laws or Rules or of the terms of these Account Terms (or any transaction or obligation contemplated by them);
h. any representation or warranty made or given by you under these Account Terms being untrue or incorrect;
i. any error, omission, fraud, malfeasance, negligence, misappropriation or criminal act or omission by you or by any of your employees, agents or Authorised Persons, consultants or servants;
j. any failure of any of your computer or electronic systems or networks to perform, be available or successfully transmit data to OTCapital, or any error or inadequacy in the data or information input into such systems or networks by you;
k. any delays in processing any order including, for example (but not limited to), as a result of systems or market delays, or due to verification or filtering procedures or unauthorised processes, email delays or due to telephone call waiting time or adherence to internal policies and procedures;
l. anything lawfully done by OTCapital in accordance with, pursuant or incidental to these Account Terms;
m. any instruction, request or direction given by you;
n. your access to or use of OTCapital website or services or products provided by OTCapital;
o. by reason of OTCapital complying with any direction, request or requirement of Applicable Laws or Rules, any government body or any regulatory body having jurisdiction over OTCapital; and/or
p. arising from and in connection with or in any way related to OTCapital in good faith accepting and acting on instructions received by facsimile transmission, email or by other means of any kind which are signed by or purported to be signed by you or any Authorised Person, except only to the extent attributable to the gross negligence or wilful misconduct by OTCapital.
21. Amendment and Termination
21.1 You agree that the latest version of these Account Terms published on OTCapital website governs the Transactions.
21.2 OTCapital may amend or replace these Account Terms at any time. Amendment or replacement of these Account Terms will occur by OTCapital posting a new or modified version of these Account Terms on our website. You are responsible for checking whether these Account Terms have been amended or replaced. Any amendment or replacement will come into force as of the day it is published on OTCapital website. By accessing or using OTCapital website or entering into or performing any Transaction, you agree that each access or use, and each Transaction, will be subject to the then applicable Account Terms. If you do not agree to be bound by an amendment to these Account Terms, do not access or use OTCapital website or services or products, and notify OTCapital immediately in writing.
21.3 OTCapital and you agree that without affecting any existing obligations or liabilities, and subject to any other term of these Account Terms, you may terminate these Account Terms, including rights to the Online Trading Platform, by giving written notice to us, if all of your Transactions have been Closed Out; and
21.4 OTCapital may:
a. Close Out any Transaction; and
b. terminate these Account Terms, including your rights associated with the use of the Online Trading Platform, either:
i) immediately on giving you notice; or ii) immediately, following an Event of Default or to otherwise protect OTCapital interests, without notice to you.
21.5 On termination by any party, OTCapital may consolidate all Accounts held by you, and deduct all amounts due to you from any Account, before transferring any credit balances on any Account to you.
21.6 Termination of these Account Terms will not release either party from their obligations or liabilities relating to any breach of the terms outlined in these Account Terms.
22. Bonuses; Withdrawal requests; Payments; Links22.1 Bonuses
(a) Bonuses and one time trading credits may be offered by OTCapital at OTCapital absolute discretion. Any bonuses or credits offered by OTCapital are limited by time and the conditions related to any bonuses or credits are subject to change.
(b) Withdrawal of any bonus or credit from any account is subject to OTCapital condition that you must have performed a trading volume of at least 20,000 times for each $1 bonus (or such other volume as agreed by OTCapital). Any bonus or credit can only be withdrawn when the condition has been fully satisfied (to the satisfaction of OTCapital). Any withdrawal of funds from an account made before satisfaction of the condition (to the satisfaction of OTCapital) will be immediately cancelled and removed from the account.
(c) Any indication of fraud, manipulation, cash back arbitrage or other forms of deceptive or fraudulent activity based on or in connection with the provision of any bonus or credit (in the opinion of OTCapital) will invalidate the transaction, withdrawal, account and/or any profits or losses.
22.2 Withdrawal requests; Payments
OTCapital finance department supervises every withdrawal request submitted. You must submit identification documents along with a deposit confirmation form for any withdrawal. Any delay in submitting the required documents may result in a delayed processing of your withdrawal request.
A bank transfer requires a minimum deposit of 2000 AUD
OTCapital may charge up to $100 for withdrawal fee (including banking fees or any other expenses related that may accure). The minimum withdrawal amount is $100.
When a withdrawal request (with the relevant identification documents and deposit confirmation form) is submitted, OTCapital may take up to 3 Business Days to review the request.
Upon submission of the withdrawal request time, the client must to follow the criteria's below:
• To close any open / pending positions
• To provide any relevant valid identification documents as well as any payment details information (i.e. bank statement, credit card, declaration, etc.)
• To confirm verbally or written the withdrawal request details over a phone call with one of the company's representative.
Once we transfer the funds it may take up to 10 additional Business Days before seeing your funds in your Account, according to the bank's transferred time frame.
OTCapital may offer a link to other websites that are provided or controlled by third parties. Such link is neither an endorsement or an approval nor a sponsorship or an affiliation to such websites, their owners or their suppliers. OTCapital recommends you make sure you understand the risks associated with the use of such websites before retrieving, using or purchasing via the internet. Links to these websites are provided solely for your convenience and you agree not to hold OTCapital responsible for any loss or damage due to the use or reliance on any content, products or services available on these websites.
23. Notices23.1 Any notices or communications, which include demands for payment to OTCapital in relation to a
Transaction, can be made by telephone, email, mail, facsimile to the contact details as provided by you to OTCapital from time to time.
23.2 All communications to you will be deemed to have been received:
a. when delivered to you if delivery occurs in person;
b. three (3) Business Days from and including the date of postage if delivered by mail;
c. when transmitted if delivered by facsimile; and
d. when transmitted if sent by email or SMS unless earlier receipt is confirmed by reasonable evidence of that.
23.3 You must notify OTCapital in writing of any change in your name, address, telephone number, fax number or email address.
23.4 If an Account is opened in the joint names of more than one person, each person agrees that OTCapital may discharge any obligation OTCapital has to give a notice or a document to those persons under these Account Terms or Applicable Laws by giving notice to any one of those persons.
24. Anti-Money Laundering Legislation24.1 You acknowledge and agree that:
a. OTCapital is subject to various AML/CTF Laws which may prohibit us from offering services or entering into or conducting Transactions;
b. OTCapital may require further information from you from time to time to comply with the AML/CTF Laws. By entering into these Account Terms, opening an Account and transacting with us, you undertake to provide OTCapital with all additional information and assistance that we may reasonably require to comply with the AML/CTF Laws; and
c. the AML/CTF Laws include prohibitions against any person dealing with the proceeds of or assets used in criminal activity (wherever committed) and from dealing with any funds or assets of, or the provision of finance to, any person or entity involved (or suspected of involvement) in terrorism or any terrorist act.
24.2 You agree that:
a. OTCapital is not required to take any action or perform any obligation under or in connection with these Account Terms if we are not satisfied as to your identity or if OTCapital suspects on reasonable grounds that by doing so OTCapital may breach the AML/CTF Laws;
b. OTCapital may delay, block or refuse to make any payment or to provide any service if we believe on reasonable grounds that to do so may breach any law in Australia or any other country, and OTCapital will incur no liability to you if we do so; and
c. OTCapital will not incur any liability to you for any loss you suffer (including consequential loss) however caused by reason of any action taken or not taken by OTCapital as contemplated in clause (a) or (b) above.
24.3 You agree that OTCapital may disclose information which you provide to OTCapital, or about Transactions you have with OTCapital or which you seek to conduct with OTCapital, if OTCapital is required to do so by the Applicable Laws in Australia or in any other country.
24.4 You represent and warrant to OTCapital that:
a. you are not aware and have no reason to suspect that:
i) the moneys used or held to fund your Transaction have been or will be derived from or related to any money laundering, terrorism financing or other illegal activities, whether prohibited under Australian law, international law or convention or by agreement; and
ii) the proceeds of your investment will be used to finance any illegal activities;
b. neither you nor your directors, in the case of a company, are a politically exposed person as the term is used in the Anti-Money Laundering and Counter-Terrorism Rules Instrument 2007(1); and
c. the moneys used or held to fund your Transaction do not come from drug trafficking, kidnapping or any other activity that is illegal or criminal under any laws of any jurisdiction.
25.2 OTCapital collects personal information from you in order to process your Application, and if your Application is accepted, to administer your investment and to provide you with services related to your investment.
25.3 OTCapital may disclose your personal information on a confidential basis to OTCapital agents, contractors or third party service providers which provide services to OTCapital in connection with these Account Terms, but restricted to the purposes of providing that service.
25.4 OTCapital may also disclose your personal information to regulatory authorities and third parties as required or authorised by law.
25.5 OTCapital may also use your personal information to tell you about other products and services offered by OTCapital or other companies associated with OTCapital and in order to do that OTCapital may disclose your information to other such companies.
25.6 OTCapital may also disclose your personal information to your financial adviser and any other authorised person.
25.7 You acknowledge it may be necessary for your information to be transferred to someone who provides a service to OTCapital in other countries, and you consent to such transfer.
25.8 You agree to take all reasonable steps to deliver information or documentation to OTCapital, or cause information or documentation to be delivered to OTCapital concerning Transactions which are requested by a person having a right to request such information or documentation. You understand that if you do not provide any information requested by OTCapital or do not agree to OTCapital using your information as set out in this clause OTCapital may not be able to provide OTCapital services to you.
25.9 In most cases you can gain access to the personal information that OTCapital holds about you. OTCapital may charge you a fee for providing access, based on the cost of providing the information. OTCapital aims to ensure that the personal information OTCapital retains about you is accurate, complete and up-to-date. To assist OTCapital with this, please contact OTCapital if any of the details you have provided change.
25.10 You acknowledge and agree that OTCapital is permitted to carry out an electronic database search and search credit reference agencies in order to verify your identity and credit standing, before during and after an Account is opened (since the insolvency or bankruptcy of you after cessation of the Account or termination of these Account Terms may continue to be relevant to OTCapital). If such searches are carried out, OTCapital may keep records of the contents and results of such searches in accordance with all current and applicable laws.
25.11 OTCapital may provide all such information regarding you in relation to its obligations to, or requests (whether legally binding or not) by, any regulatory body.
26. Governing Law and Rules26.1 You and OTCapital agree that any dealings between you and OTCapital are subject to, and are each bound by, the Applicable Laws as amended or altered from time to time.
26.2 You acknowledge and agree that these Account Terms are governed by the laws in force in Victoria and agree to submit to the non-exclusive jurisdiction of the Courts of Victoria in relation to any claim or dispute arising out of the performance of these Account Terms.
27. General27.1 If any of the provisions contained in these Account Terms are found to be invalid or unenforceable, such provisions will be deemed deleted, and the validity and enforceability of the remaining provisions will continue unimpaired and will remain in full force and effect.
27.2 These Account Terms contain the entire terms and understanding between you and OTCapital concerning the provision of the services (including the Account and all Transactions) referred to in these Account Terms, as later amended only in accordance with these Account Terms.
27.3 If OTCapital fails to exercise or enforce or delays in exercising or enforcing any right under these Account Terms, by doing so it does not waive such right. The rights provided in these Account Terms do not exclude other rights provided by law.
27.4 OTCapital may assign or otherwise transfer or deal with OTCapital rights or obligations under these Account Terms or any Transaction without obtaining your consent.
27.5 You may not assign or otherwise transfer or deal with your rights or obligations under these Account Terms or any Transaction, without the express written consent of OTCapital.
27.6 If any event occurs which has the effect of making or declaring it unlawful or impracticable for OTCapital to offer or to maintain Transactions to you in accordance with the terms outlined in these Account Terms, OTCapital may immediately terminate these Account Terms by providing you written notice of that. A termination of these Account Terms will also result in the closure of all Transactions as if an Event of Default had occurred in relation to them. Any such termination will not relieve you of any obligations you may have to OTCapital in accordance with these Account Terms prior to the termination. For this clause 27.5, events include any change in law, regulation, treaty, order, official directive or ruling or in their interpretation or application by any governmental authority or agent, and the introduction, implementation, operation or taking effect of, any law, regulation, treaty, order or official directive or ruling.
Unless the context otherwise requires, any expressions or phrases not otherwise defined within these Account Terms have the meaning given to them in the Applicable Laws.
The following terms and expressions have, unless the context otherwise requires, the following meanings.
Account means your account with OTCapital established under these Account Terms.
Adjustment Event means, any event in respect of which OTCapital considers in its absolute discretion an adjustment to the terms of a FX Trading is appropriate including, for example:
a. the Underlying Asset is a share, debenture, unit or other security (or depositary receipt of any kind in respect of any of them) - a bonus issue for combination of rights issued, rights issue, stock split, share or other capital consolidation, security reclassification or sub-division return of capital, buy back, special dividend (however legally constituted), in specie distribution, takeover, scheme of arrangement or similar event or other corporate action event in respect of the security, whether or not the event triggers an adjustment to any exchange traded derivative of it;
b. a distribution to existing holders of additional shares or other securities or other Financial Products granting them the right to receive dividends or other proceeds equally and proportionately with payments made to holders of the underlying securities; or securities, rights or warrants granting the right to a distribution of shares or to purchase, subscribe, or receive shares, in any case for payment (in money cash or money’s worth) at less than the prevailing market price per share as determined by OTCapital;
c. an event that has a dilutive or concentrative effect on the market value of the shares or other Underlying Asset;
d. if the Underlying Asset is an index, a substantial adjustment to the composition of the index outside its own terms allowing for adjustments or weightings; a failure to publish the index or a suspension or cancellation of the index; and
e. if the Underlying Asset is a Derivative which is able to be traded on a Financial Market – any event in respect of which the operator of the Financial Market makes an adjustment to the terms of the Derivative.
AFSL means Australian Financial Services Licence.
OTCapital means OT Markets Pty Ltd (ACN 621 714 181) and its successors or assignees.
AML/ CTF Laws means the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) and all regulations, rules and instruments made under that act.
Applicable Laws means all laws, legislation, regulation and subsidiary regulation, instruments and orders of a regulatory authority or a court, rules and procedures of any relevant jurisdiction which apply to OTCapital, its Clients, these Account Terms and the transactions contemplated by these Account Terms, including, without limitation, the Corporations Act and rules and regulations made pursuant to the Corporations Act, ASIC class orders and other instruments, and any laws, rules, regulations or directives of the jurisdiction of your residence .
Application Form means the form of application by which a person applies to become a Client of OTCapital and to open an Account.
ASIC means Australian Securities and Investments Commission.
Australian Client Money Rules means the provisions in Part 7.8 of the Corporations Act and the Corporations Regulations made under those provisions that specify the manner in which financial services licensees are to deal with Client Moneys and property.
Authorised Person means the person (if any) described as your authorised agent in the Application Form or another person notified by you to OTCapital in accordance with these Account Terms.
Available Funds has the meaning given in clause 3.3.
Balance has the meaning given in clause 3.1.
Base Rate means the amount nominated by OTCapital from time to time, as notified to you or posted on OTCapital website.
Business Day means a weekday which is not a public holiday in Sydney.
Claim means any or all, actual or potential claim, action, complaint, suit, cause of action, arbitration, debt due, costs, claim, entitlement, allegation, demand in respect of damages and any other benefit verdict and judgment whether both at law or in equity or arising under the provisions of any statute, award or determination whether known at the date of these Account Terms or not.
Client refers to the person who has an Account with OTCapital.
Close Out, Closed Out or Closing Out in relation to a Transaction means discharging or satisfying the obligations of the parties under the Transaction and this includes:
(a) by paying amounts calculated in respect of an Underlying Asset in accordance with the terms of the Transaction;
(b) as a result of the matching up of the Transaction with a Transaction of the same kind under which you have assumed an offsetting opposite position; and
(c) making adjustments for fees and charges.
Closing Date means the date on which the Transaction is agreed to be Closed Out, or earlier, if deemed to be
Closed Out in accordance with these Account Terms.
Closing Price means the price of the FX Trading at the Closing Date.
Confirmation means any confirmation of a Transaction issued by OTCapital or on its behalf to you and includes an electronically transmitted Confirmation.
Corporations Act means the Corporations Act 2001 (Cth) and regulations made under it, as amended from time to time (including, for the avoidance of doubt, as amended by the Corporations Regulations and ASIC Class orders).
Event of Default has the meaning in clause 12.1 and, if applicable, as supplemented by a term in the Schedule.
Exchange means any exchange or market in which OTCapital participates from time to time or on which the Underlying Asset is traded or, if an index, who sponsors the index, as the context permits or requires.
Finance Charge means a charge payable in accordance with clauses 3 and 9.
Financial Market means a financial market within the meaning of the Corporations Act (which includes, for example, any market on which prices of Financial Products are quoted), whether located in Australia or overseas.
Financial Product has the meaning given in Part 7.1 Division 3 of the Corporations Act.
Foreign Exchange means currency including Australian Dollars and foreign currency.
FSG means OTCapital financial services guide.
GST means tax that is imposed as a goods and services tax under any of:
(a) A New Tax System (Goods and Services Tax) Act 1999; or
(b) any regulation made pursuant to the A New Tax System (Goods and Services Tax) Act 1999.
Liquidated Value has the meaning given in clause 3.2.
Long Party means the party to a Transaction who is treated as having notionally bought the Underlying Asset
(or, in the case of an index FX Trade, a right in respect of payment arising from a change in the level of an index).
Loss means a damage, loss, cost, expense or liability incurred by a person, however it arises and whether it is present or future, fixed or unascertained, actual or contingent.
Online Trading Platform means the online trading platform offered by OTCapital to enable the Client to trade in Transactions.
Open Transaction means, at any time, a Transaction which has not been Closed Out or settled prior to the time agreed for settlement.
PDS means OTCapital product disclosure statement, as amended from time to time, including supplementary or replacement PDS.
Position means the long or short position that you have taken in your FX Trading with us.
Price means, in relation to a Transaction, the price or rate quoted by OTCapital (as adjusted for any Transaction Fee or other fees and charges) and agreed to by you and OTCapital.
Related Bodies Corporate has the same meaning as in section 9 of the Corporations Act.
Rules, in relation to a Financial Market, means the rules, procedures, customs and usages of the Financial
Market (as applicable).
Security Information means any of your email address, logon code, password or trading password.
Settlement Time means the time by which a Transaction must be settled, as set out in the Confirmation for the
Short Party means the party to a Transaction who is treated as having notionally sold the Underlying Asset.
Tax means any present or future tax, levy, impost, deduction, charge, duty, compulsory loan or withholding (together with any related interest, penalty, fine or expense in connection with any of them) levied or imposed by any government agency, other than any imposed on overall net income.
Terms means the terms of these Account Terms, as amended from time to time.
Transaction means any contract:
(a) between you and the Issuer as principal;
(b) to pay an amount calculated in respect of an Underlying Asset; and
(c) in respect of which you have, or are taken to have, agreed (whether orally, electronically or in writing)
(i) the Underlying Assets involved;
(ii) the amount ;
(iii) the Price; and
(iv) the settlement date or time.
Transaction Fee means the fee or commission from time to time specified by OTCapital to be the amount payable by you to OTCapital in respect of each Transaction, which may include a Transaction Fee payable to OTCapital as principal.
Underlying Asset means the security, index, commodity, Foreign Exchange, futures contract, bullion or other instrument or asset or factor the reference to which the value of a FX Trading is determined.
Underlying Market means the exchange or market on which the Underlying Asset is traded.
Unrealised Gain/Loss has the meaning given in clause 3.4.
you means the person or persons in whose name OTCapital opens an Account (including any Authorised Person), following an application by that person or those persons.
1.1. The following terms will apply to you, and you agree to be bound by them, each time you place an Order with OTCapital to deal in a Contract for Differences (as defined in clause 2 of this Schedule) (CFD Terms).
In this clause, the following terms have the following meanings:
Adjustment Event means, any event in respect of which OTCapital considers in its absolute discretion an adjustment to the terms of a CFD is appropriate including, for example:
(a) if the Reference Security is a share, debenture, unit or other security (or depositary receipt of any kind in respect of any of them) - a bonus issue for combination of rights issued, rights issue, stock split, share or other capital consolidation, security reclassification or sub-division return of capital, buy back, special dividend (however legal constituted), in specie distribution, takeover, scheme of arrangement or similar event or other corporate action event in respect of the security, whether or not the event triggers an adjustment to any exchange traded derivative of it,
(b) a distribution to existing holders of additional shares or other securities or other Financial Products granting them the right to receive dividends or other proceeds equally and proportionately with payments made to holders of the underlying securities; or securities, rights or warrants granting the right to a distribution of shares or to purchase, subscribe, or receive shares, in any case for payment (in money cash or money’s worth) at less than the prevailing market price per share as determined by us;
(c) an event that has a dilutive or concentrative effect on the market value of the shares;
(d) if the Reference Security is an index, a substantial adjustment to the composition of the index outside its own terms allowing for adjustments or weightings; a failure to publish the index or a suspension or cancellation of the index; and
(e) if the Reference Security is a Derivative which is able to be traded on a Financial Market – any event in respect of which the operator of the Financial Market makes an adjustment to the terms of the Derivative.
In these terms you acknowledge the following in favour of OTCapital:
(a) CFD Transactions are cash settled with no physical exchange of the Reference Security; and
(b) there is no definitive time to the life of a CFD, so such a contract will continue until the Closing Date.
4. Opening and closing CFD Transactions
4.1. All CFD Transactions are entered into between you and the Issuer as principal. The acquisition of a CFD involves entering into, or opening, a CFD. The disposal of a CFD involves Closing Out an open CFD.
4.2. OTCapital will from time to time state the prices or values at which it may enter into a CFD Transaction with you, either to open or Close Out a CFD (including by an Online Trading Platform) to do so.. If you wish to enter into a CFD Transaction you may submit an Order to OTCapital. OTCapital is not bound to enter into any CFD Transaction with you and reserves the right to state another price or value at which it may deal with you.
(a) You may request on any given Business Day by an Online Trading Platform, via telephone or otherwise OTCapital to quote a price at which OTCapital may be prepared to enter into a CFD. You agree to and acknowledge that a price quotation pursuant to this request does not constitute an offer to enter into a new or close an existing CFD.
(b) Upon receiving the quote from OTCapital, you may by an Online Trading Platform, via telephone or otherwise offer to enter into a CFD with OTCapital at the price quoted by us.
(c) OTCapital is not obliged to accept your offer to enter into a CFD and, without limitation, is not obliged to accept your offer to enter into a CFD:
(i) if you have exceeded or would exceed a pre-determined limit imposed on you under clause 4.2(g) below; or
(ii) until OTCapital has received from you the Initial Margin required in the form of cleared funds to enter into the respective CFD.
(d) The Initial Margin required to enter into a CFD, if not already received from you, will be payable to OTCapital upon acceptance by OTCapital of your offer to enter into the CFD.
(e) If OTCapital accepts your offer to enter into a CFD, we will issue to you an electronic Confirmation of the CFD entered into shortly after it has been entered into. Failure by OTCapital to issue a Confirmation will not prejudice or affect the relevant CFD. OTCapital will not bear any liability whatever resulting from the failure to issue a Confirmation. OTCapital will promptly advise you if we decide not to accept your offer to enter into a CFD.
(f) You agree to examine the terms of each Confirmation immediately upon receipt and you agree that the contents of the Confirmation, in the absence of manifest error, will be conclusive evidence of the executed deal, unless within 48 hours of receipt of a written Confirmation you notify us of any disputed detail in the Confirmation received by you. Upon receipt of written notice within the 48 hour period of a disputed Transaction, we will investigate the dispute and in co-operation with you must endeavour to resolve the dispute in good faith. Notwithstanding any such dispute, you must continue to satisfy your obligations to maintain Margin cover and to pay Margin calls made by us in respect of the CFD as if the Confirmation was correct and the details contained in the Confirmation were not the subject of dispute.
(g) In its absolute discretion, OTCapital reserves the right to limit the value of CFDs you may have outstanding under these terms. If you wish to enter into any further CFDs, you must seek and obtain approval from us, beyond which you may not enter into any further CFDs whatever.
(h) OTCapital may vary the limit imposed at any time in its absolute discretion.
4.3. If OTCapital enters into a CFD Transaction with you for the acquisition of one or more CFDs:
(a) OTCapital will give you a Confirmation in respect of the CFD Transaction setting out, among other things, the number of CFDs acquired and the amount or amounts which you are required to pay, or are entitled to receive, in connection with the acquisition of the CFD; and
(b) you or OTCapital (as applicable), must pay the relevant amount referred to in paragraph 4.3 (a) by the time specified in the Confirmation.
4.5. If OTCapital enters into a CFD Transaction with you for the disposal of one or more CFDs (by way of Closing Out that contract):
(a) OTCapital will give you a Confirmation in respect of the CFD Transaction setting out, among other things, the number of CFDs disposed of and the amount or amounts which you are required to pay, or are entitled to receive, in connection with the disposal of the CFD; and
(b) you or OTCapital (as applicable) must pay the relevant amount referred to in paragraph 4.4 (a) by the time specified in the Confirmation,.
5. Settlement of Difference
5.1. After Close of Business on each Business Day over the term of an open CFD, OTCapital will determine at Close of Business the Contract Value of the CFD.
5.2. If the Contract Value determined by OTCapital in accordance with clause 5.1 above is higher than the Contract Value determined by OTCapital in respect of the previous Close of Business, then the Short Party must pay to the Long Party the difference.
5.3. If the Contract Value determined by OTCapital in accordance with clause 5.1 above is lower than the Contract Value determined by OTCapital in respect of the previous Close of Business, then the Long Party must pay to the Short Party the difference.
5.4. In order to determine in accordance with the CFD Terms the Contract Value at Close of Business on the Business Day on which the CFD is entered into, the Contract Value will be determined by OTCAPITAL using the Reference Security Price at which OTCapital and you agreed to enter into the CFD.
5.5. If OTCapital determines that the Contract Value of a CFD at Close of Business cannot be determined in accordance with clause 5.1 above for any reason, the Contract Value at Close of Business will be the value determined by OTCapital in its sole discretion.
5.6. Without limiting clause 5, if at any time trading on an Exchange is suspended or halted in any Reference Security, OTCapital will, when determining the Contract Value, at its discretion consider (but is not limited to) the last traded price before the trading suspension or halt.
6. Dividend Payment and Receipt
6.1. If you are the Long Party to a CFD, and the issuer of the Reference Security makes a cash distribution in respect of the Reference Security (for example, a dividend in respect of a Reference Security which
is a security), OTCapital will credit to your Account in respect of the CFD an equivalent amount (less any Taxes and costs) within a reasonable period following the date the cash distribution is paid in respect of the Reference Security corresponding with your CFD being the amount that will be equal to the cash dividend payable to the holder of the Reference Security multiplied by the quantity on the first Business Day following the ex-dividend date for the Reference Security. OTCapital is not obliged to pay to you any amount under this clause 6.1 unless and until it receives that amount as the owner of the Reference Security or an equivalent amount under the Hedge Contract acquired in respect of the CFD. Further, OTCapital is not liable to pay to you any amount in excess of the amount (less any Taxes and costs) which OTCapital itself receives either as the owner of the Reference Security or pursuant to a Hedge Contract acquired in respect of the CFD.
6.2. If you are the Short Party to a CFD, OTCapital will debit your (relevant) Account with an amount that will be equal to the cash dividend plus any imputation or franking credits payable to the holder of the Reference Security multiplied by the quantity on the first Business Day following the ex-dividend date for the Reference Security.
7. Closing out a CFD
7.1. At any time you may give OTCapital by way of the Online Trading Platform, telephone or otherwise notice of its intention to close any CFD (whether in whole or part) by specifying the Reference Security and the quantity of CFDs that you wish to close.
7.2. Upon receipt of a notice of intent to close a CFD, in accordance with clause 7.1 OTCapital will use reasonable endeavours to provide a quote for the Closing Price and notify you of that quote (by telephone or otherwise). It is your obligation to notify OTCapital as soon as possible (by telephone or otherwise) as to whether you are willing to accept the Closing Price quote. If you accept the Closing Price quoted by OTCapital, the CFD, or relevant portion of the CFD, will be closed on the Closing Date.
7.3. At the Close of Business on the Closing Date, if there is a difference between the Closing Value and the Contract Value of the CFD (or portion of it closed under clause 7.2) it must be accounted for in the following way:
(a) If the Closing Value is greater than the Contract Value, the Short Party must pay to the Long Party the difference; and
(b) If the Closing Value is less than the Contract Value, the Long Party must pay to the Short Party the difference.
7.4. If the issuer whose security represents the Reference Security on which all or part of a CFD is based becomes externally administered in accordance with the meaning in the Corporations Act (or equivalent legislation), the CFD will be taken to have been Closed at that time. The Closing Price of the CFD will be determined by OTCapital who may consider a number of factors it deems appropriate including, for example, the last traded price of the Reference Security.
7.5. If the Reference Security on which the CFD is based ceases to be listed for quotation on an Exchange, or is suspended from quotation for 5 consecutive Business Days, OTCapital may, in its absolute discretion, without limiting clause 7.6 elect to terminate the relevant CFD. If OTCapital elects to do so then:
(a) the Closing Date will be deemed to be the date which OTCapital determines (Early Closing Date);
(b) you will be treated as having given notice under clause 7.1 on the Early Closing Date.
7.6. If OTCapital determines that the Closing Value of a CFD cannot be calculated on or with effect on the Closing Date for any reason, the Closing Value will be the value determined by OTCapital in its sole discretion.
7.7. Without limiting clause 7.6, if at any time trading in the Reference Security on an Exchange is suspended or halted at any time, OTCapital will, in its absolute discretion in determining the Closing Value of a CFD, have regard to (but is not limited by) the last traded price before the suspension or halt.
7.8. All calculations made by us in accordance with the CFD Terms in the absence of any manifest error will be binding on you.
8. Settlement of Positions
8.1. Payments to be made to you with respect of any CFD must be made in accordance with this clause
8.2. If a CFD is Closed Out in accordance with clause 7 above, or settlement for difference being made in accordance with clause 5 above:
(a) OTCapital will credit to your (relevant) Account any amount payable by OTCapital to you; or
(b) subject to clause 8.3 below you must pay to OTCapital any amount payable by you to OTCapital in cleared funds in any such currency that OTCapital may require immediately upon the payment request being made.
8.3. If there is any free equity in your Account, any amount owing by you in accordance with clause 8.2 above will be settled in whole or in part by debiting your Account with OTCapital.
8.4. If you request payment of any money owed to you under this clause 8, OTCapital will deduct the amount of the requested payment from your Account and pay you, electronically, by cheque or in any other manner as agreed. Money owed to you that has not been the subject of any payment request by you will remain in your Account.
8.5. OTCapital may offset any money owed to you under these terms or any other agreement against any moneys owed by you under these terms or any other agreement.
9. Adjustment Events
9.1. If the Reference Security on which a CFD is quoted is subject to an Adjustment Event or possible Adjustment Event, OTCapital will determine the adjustment, if any, that will be made to the Contract Value of that Reference Security, the related quantity (or both) that would have placed the parties in substantially the same economic position they would have been in had the event not occurred. OTCapital will notify you as soon as practicable of the adjustment. In the absence of any manifest error any adjustment determined will be deemed to be conclusive and binding on you.
9.2. OTCapital may give you an opportunity to elect to participate in an adjustment to the CFD which corresponds with the Adjustment Event, but OTCapital is not obliged to give you that opportunity, or give reasonable notice of it or make its terms correspond exactly with the Adjustment Event, nor is OTCapital obliged to accept in part or at all any election you make to participate. Any adjustment will take effect at the time determined by OTCapital.
9.3. If the Reference Security is subject to a take-over offer or similar event, OTCapital may at any time prior to the closing date of the offer provide you notice of our intention to Close the CFD, in accordance with clause 7, with the Closing Price being the price notified to you by us.
9.4. If at any time an Adjustment Event occurs and it is not reasonably practicable as determined by OTCapital in its absolute discretion to make an adjustment in accordance with clause 9.1 above, then without limiting 9.1 above, OTCapital may at any time after the Adjustment Event give you notice of our intention to Close Out the CFD. If this occurs you will be taken to have been provided with Closing Notice in accordance with clause 7 above, with the Closing Price being the price notified to you by us.
9.5. References to “offer”, “take-over” and “closing date” in clause 9.1 above will have the same meaning given to them in the Corporations Act 2001.
10. Interest on Open CFD positions
10.1. Finance Charges
(a) When you are a Long Party under a CFD, we charge you a Finance Charge by interest payments which accrue on a daily basis and are payable to us daily by you; and
(b) when you are a Short Party under a CFD, you may be entitled to receive interest payments which will accrue on a daily basis and are payable to you by OTCapital daily, from the date the CFD is entered into until the Closing Date, at an interest rate determined by us in accordance with clause 10.5 below.
10.2. Each day we will make interest payments by debiting or crediting your Account with the interest rate differential between the amount of interest payable by you and the amount of interest payable by us to you. If you have insufficient free equity in your account, under this clause you acknowledge that any such amount is a debt owed by you to us.
10.3. When debiting or crediting amounts of interest to your Account, we may charge or pay you interest at a rate that is different to the rate which we are charged or paid on equivalent borrowings from its bank or any other client or counterparty.
10.4. OTCapital will retain the difference between the amount we may charge or pay you and the amount OTCapital may charge or paid on equivalent or similar borrowings with its bank or counterparty.
10.5. The interest rate applicable under this clause is the rate nominated by OTCAPITAL from time to time.
11. Margin Requirements
11.1. Any reference to time under this clause 11 includes weekends and public holidays.
11.2. Prior to entering into a CFD with us you acknowledge that we require you to pay cleared funds as an
Initial Margin and to maintain the minimum total Margin determined by us in its absolute discretion from time to time. The Margin cover requirements may be determined automatically by an Online Trading Platform. The required Margin cover may charge at any time, including outside of trading hours and without prior notice to you. The amount of Initial Margin required by OTCapital and the time at which it is required is in the absolute discretion of OTCapital. We are not obliged to permit any offset of any Initial Margin required by OTCapital.
11.3. All of your payments for Margin (after withdrawal from any trust account or clients’ segregated account) are received and held by OTCapital absolutely for its benefit (however, OTCapital will use the balance (if any) towards purchasing or maintaining the Reference Security or Hedge Contract and maintaining the account for managing its own margin obligations on those Reference Securities or Hedge Contracts. The Margin maintained with OTCapital is therefore a notional amount allocated to your Account by reference to your payments of Margin to OTCapital (and not any deposit held on trust for you).
11.4. You have an absolute obligation to maintain the amount of Margin cover required by OTCapital.
11.5. The Initial Margin requirement applicable in respect of any CFD may be increased by OTCapital in its absolute discretion as to time for payment and amount. In the event of such an increase OTCapital may require that you pay OTCapital additional cleared funds equal to such an increase.
11.6. If OTCapital increases the required Margin cover you acknowledge and agree that OTCapital may refuse any request by you to enter into any further CFD positions until OTCapital has confirmed the receipt of the payment for more Margin in the form of cleared funds.
11.7. OTCapital does not owe you any payment from your Account in respect of any Margin amount with OTCapital until all of your obligations under all Accounts between OTCapital and you and under these terms are satisfied in full. Until this time any Margin amount will not constitute a debt due by OTCapital to you nor will you have any right to receive payment of that Margin.
11.8. Subject to you meeting all Margin obligations OTCapital may permit you to withdraw from your Account any excess free equity.
11.9. OTCapital will have sole, absolute and unfettered discretion, as to the exercise of any power or right under clause 11.
11.10. Any power or right exercised by OTCapital under clause 11 will be binding upon you.
12. Actions Following a Default
12.1. Upon or after any Default occurs, OTCapital, without prejudice to any other rights it may have under these terms, has the right and power in its sole absolute and unfettered discretion and without necessity to give prior or any notice to you to do any one or more of the following:
(a) in accordance with clause 13 terminate these terms;
(b) Close Out all or any open CFD positions you may have as if you had given a closing notice to OTCapital and had accepted the Closing Price determined by OTCapital in accordance with clause 7;
(c) in accordance with clause 12.2 treat all or any open CFD positions as having been terminated by you;
(d) terminate any agreement or account whatever you have or may have with us;
(e) in the event of there being insufficient funds in your Account to satisfy amounts owing to us (including to maintain the Margin cover), we may cancel any outstanding Orders in order to close your Account;
(f) satisfy obligations that you have to us out of any property belonging to you including, money or security in our custody or control including, without limitation, the Account or by selling securities lodged by you with OTCapital or setting off obligations such that security transferred as collateral is not required to be returned but instead the value of them (as determined by OTCapital) is applied in calculation of the set-off of obligations and to enforce any asset or security held by OTCapital in such manner as it sees fit at your risk and expense;
(g) transfer from your other accounts or the Account, if any, such funds as may be required for that purpose to satisfy any obligation you may have to OTCapital; and
(h) exercise any power or right that OTCapital may have in accordance with these terms or in law or equity or take any other form of action as the holder of an Australian financial services licence (AFSL) or Corporate Authorized Representative (CAR) may be required to take.
12.2. If we treat a CFD as having been terminated by you and OTCapital exercises its rights in accordance with clause 12.1(c), OTCAPITAL will calculate the amount owing by you or by OTCapital as if you had been given a Closing Notice and you had accepted the Closing Price determined by OTCapital in accordance with clause 7. OTCapital may debit from your Account an amount equal to the amount which would have been payable by you to AGM Markets trust account had the CFD been closed at the Closing Price. It is agreed that this amount represents a reasonable pre- estimate of the damages incurred by OTCapital.
13. Termination of a CFD Contract
13.1. You acknowledge that we may terminate a CFD (apart from any other right to terminate) if:
(a) the Reference Security ceases to be able to be traded on a relevant market or is subject to a trading suspension or trading halt for a period of more than two (2) Business Days;
(b) an Adjustment Event occurs and OTCapital determines that it is not reasonably practicable to make an adjustment to the terms of a CFD under this Schedule;
(c) the relevant Hedge Contract, or our rights under the relevant Hedge Contract or in respect of the relevant Reference Security, are Closed Out, suspended or terminated by the Hedge Counterparty (which may occur automatically under the terms of any agreement between OTCapital and the Hedge Counterparty); or
(d) OTCapital considers, acting reasonably, that the Hedge Counterparty or issuer of the Reference Security may not be able to meet its obligations to OTCapital under the terms of the Hedge Contract or Reference Security or other contracts between OTCapital and the issuer of the Reference Security or the Hedge Counterparty.
(e) OTCapital may where it determines in its absolute discretion that you have engaged in scalping, arbitrage, market manipulation, insider trading or any other market abusing cancel your trade(s).
Where this occurs any profit which you would have realized will be cancelled.
13.2. If OTCapital terminates a CFD under clause 13.1 or otherwise, OTCapital will determine a termination value, payable by OTCAPITAL to you or by you to us, which we consider appropriate, acting reasonably, and having regard to the circumstances of termination, the value (if any) of the Reference Security and the position as between OTCapital and the Hedge Counterparty in respect of the Hedge Contract. The termination will take effect at the time determined by OTCapital.
13.3. You agree that this limitation of liability under this clause is a reasonable term having regard to at least the nature of the services and Financial Products offered and provided by OTCapital to you, the benefits to you and the risks and benefits from Transactions using OTCapital in the context of these terms.