Applied Derivatives Pty Ltd
(Co Reg. No. 2000/025182)
Before using the Estuary OTS through Applied Derivatives Pty Ltd, read terms 1 to 17.
Terms and Conditions applicable to use of the Online Trading System facilitated by Applied Derivatives Pty Ltd.
1. I understand and accept the strict application of these Terms and Conditions
to the use of any Applied Derivatives Pty Ltd User Name and User Password allocated
to me. I confirm that all information and instructions furnished by me and inserted
by me on this form are correct and that I shall have no claim against Applied Derivatives
Pty Ltd(hereafter referred to as "Applied Derivatives") in the event of any such information
or instructions being incorrect. I further undertake to notify Applied Derivatives in writing
should any of the said information or instructions change at any time in the future, as
from the date first furnished.
2. I am aware that my Applied Derivatives User Name and User Password shall entitle
me to use Applied Derivatives´ Online Trading System (hereafter referred to as the "OTS"),
all of which are made available to me following my downloading of the Estuary software,
which grants me access to the relevant application engine for accessing the OTS.
I acknowledge that:
- 3.1. Any of the facilities made available by Applied Derivatives under the OTS may be modified, replaced or withdrawn by
Applied Derivatives at any time, with no notice to me and without Applied Derivatives incurring any liability to me
whatsoever as a result thereof;
- 3.2. Applied Derivatives shall not be liable to me, directly or indirectly, for any breakdown or failure of any equipment or medium of access to the OTS, or any failure thereof;
- 3.3. When I make use of Applied Derivatives´ OTS, the User Name and User Password issued to me is intended to provide access to the OTS and my accounts or funds and I therefore agree, at my own risk, to:
3.3.1. ensure the safe-keeping and confidentiality of my User Password;
3.3.1. notify Applied Derivatives immediately on becoming aware that my User Password may have become available or accessible to an unauthorised person or entity;
- 3.4. the use of the OTS shall in no way vary any aspect of the Safex Client Agreement signed by me prior to entering into this agreement. It is understood and agreed that the terms of the Safex Client Agreement (hereafter referred to as the "Safex Agreement") entered into between Applied Derivatives and me shall in all respects remain valid and binding. However, should there be any discrepancy or inconsistency between this agreement and the
Safex Agreement, this agreement shall prevail. In particular I agree that:
- 3.4.1. the use of the OTS, or any part thereof, shall
not entitle me to overdraw on any account, unless prior written
arrangements have been made with Applied Derivatives, and then only in terms of such arrangements;
- 3.4.2. the limits allocated by Applied Derivatives to my accounts shall not be exceeded;
- 3.5. when I make use of Applied Derivatives
facility or OTS via the Internet, I shall:
- 3.5.1. obtain and maintain the hardware and software ("equipment")
required to access Applied Derivatives' OTS;
- 3.5.2. ensure that my equipment is fully compliant
and capable of accommodating any change in the specifications
of the OTS advised to me by Applied Derivatives from time to time;
- 3.5.3. read and take cognisance of the information and
recommendations sent to me via email from Applied Derivatives
about security and my role therein. I acknowledge further that:
- 18.104.22.168. any failure on my part to follow the recommended security
procedures may result in a breach of my Applied Derivatives User Name's
confidentiality and may lead to unauthorised transactions between accounts
linked to my Applied Derivatives User Name;
- 22.214.171.124. any software downloaded by me from the Internet, whether
from the Estuary Solutions site or not, is third-party software, the
licensing of which shall be subject to such terms and conditions as the
licensor of such software may impose. Applied Derivatives is not a party
to any licence agreement entered into by me and thus makes no warranties
relating to such software, including without limitation, warranties relating to
suitability for a particular purpose, security features or performance. I
understand that the use of any software shall be at my own risk and I hereby
absolve and hold Applied Derivatives harmless against any loss or damage that
I may suffer as a result of the use, abuse or possession of such software.
- 126.96.36.199. without derogating from the provisions of clause
- 188.8.131.52., I am aware that the use of such third party software may be
illegal in jurisdictions outside the Republic of South Africa and/or may
infringe certain third party intellectual property rights in such jurisdictions.
I understand that, should I use any third-party software outside the boundaries of
the Republic of South Africa, it shall at all times be incumbent upon me to ascertain
the legality of such use and to obtain all necessary licences and permissions
from the relevant parties. I accordingly absolve and hold Applied Derivatives
harmless against any and all liability that I may incur in this regard.
- 4. I understand and accept that:
- 4.1. once Applied Derivatives has received and/or implemented an
instruction given by me via the OTS, whether actively or passively,
I shall not be entitled to countermand or amend such instruction.
- 4.2. Applied Derivatives may at any time prescribe a financial
or other limit to the transactions I may undertake in terms of this agreement.
Applied Derivatives further reserves the right at any time to close client positions which
Derivatives further reserves the right at any time to close
client positions which it deems unsuitable in its sole discretion.
Such reservation of rights are more fully set out in the Safex Agreement.
- 4.3. Any power failure or failure in connection between
Applied Derivatives and SAFEX will result in a failure orders being
able to execute. Applied Derivatives cannot and will not be held liable
in the event that orders fails to execute as a result of a break in
communications between me and Applied Derivatives´ server.
- 5. I hereby warrant that every instruction and all information given to
Applied Derivatives shall be accurate, correct and in accordance with Applied
Derivatives' prescribed procedures.
- 6. Applied Derivatives shall:
- 6.1. not be required to inquire into the
authority of any person using the OTS, or any part thereof;
- 7.I hereby indemnify Applied Derivatives against any
demand, claim or action against it relating to or in connection
with my use of the OTS, or part thereof, whether directly or
indirectly, unless such demand, claim or action shall have arisen
from the proven gross negligence or wilful misconduct of employees of
Applied Derivatives or any of its directors or representatives authorised
in writing (in all of which cases the matter shall be dealt with on its legal merits).
- 8. Any demand, claim or action arising against
Applied Derivatives in terms of clause 7 shall be limited
to my direct damages and, without limiting the generality of
the clause, I agree that Applied Derivatives shall not be liable for:
- 8.1. any amount that is not part of the actual amount of a transaction;
- 8.2. any indirect, special or consequential damages;
- 8.3. any loss or damage occasioned by my
(or my representative's) failure to adhere to these terms
and conditions and/or any incorrect information furnished by me
(or my representative), including any failure by me or my representative
to adhere to the terms and conditions of clauses 3.5;
- 8.4. any loss or damage occasioned by the failure or unavailability of
third parties' facilities or software or hardware or other systems, or
the inability of any third-party to process a transaction, or to adhere
thereto. For the purposes of this clause, "third-parties" include, without
limitation, the South African Futures Exchange (or any division thereof),
Telkom SA Limited, the South African Post Office Limited, the Automated
Clearing Bureau (Proprietary) Limited, the Building Societies Data Bureau
(Proprietary) Limited and any and all financial institutions where
the destination accounts are, or were to be, kept, as well as any person,
legal entity or trust with whom I have executed a trade or have attempted to execute a trade;
- 8.5. any loss or damage that may arise from
the use, misuse, abuse or possession of any third-party
software, including, without limitation, any operating system
software, browser software, or any other software packages or programmes;
- 8.6. any failure or unavailability of the OTS,
or any part thereof, or failure by Applied Derivatives to perform
any clear duty or a transaction as a result of the loss or destruction
of data, the deterioration or corruption of storage media, power failures,
natural phenomena, riots, acts of vandalism, sabotage, terrorism or
any other event beyond Applied Derivatives' direct control;
- 8.7. any inability or omission of a financial institution
where a destination account is kept to process a transaction;
- 8.8. any destruction or accessing of my data or any
destruction or theft of, or damage to, any of my equipment;
- 8.9. any unauthorised access to my accounts or any breach of security;
- 8.10. any trading losses of any nature, incurred by me,
directly or indirectly, by virtue of any trading activities
undertaken by me in any instruments or products listed by the South
African Futures Exchange or any division thereof, or in any over the
counter products or similar instruments, via the OTS directly or indirectly.
I acknowledge and understand that derivatives markets are highly volatile
by nature and investment in these carry a substantial risk of loss.
- 9. I acknowledge that, should I breach any of
these terms and conditions, Applied Derivatives shall be
entitled, without notice, to cancel this agreement and withdraw
the facilities under the OTS with immediate effect, without
prejudice to any rights it may have to recover any amounts
due to it or any losses or any damages suffered by it in consequence of my breach.
- 10. I shall be entitled to cancel my Applied
Derivatives User Name at any time, provided that I
give Applied Derivatives at least 30 (thirty) day's written notice of my intention to do so.
- 11. I acknowledge that I shall not be entitled to cede,
transfer or alter my rights to the facilities of the OTS, or any
part thereof, or any other rights flowing from this agreement, to any other person.
- 12 Should I make use of Applied Derivatives'
OTS, I acknowledge that I shall be responsible for
all steps necessary to acquire access to the Internet and
for ensuring the security and confidentiality of such method
of access. I acknowledge further that Applied Derivatives
shall not be liable for any loss or damage whatsoever
which I may suffer as a result of the use, misuse or abuse of my Internet access.
- 13. I irrevocably undertake and warrant that I shall
not make any claim or institute any action against Applied
Derivatives should I incur any injury, loss or damage, whether
directly or indirectly, arising from the use, misuse or abuse of my Internet access or the OTS.
- 14. Should any dispute arise at any time between
Applied Derivatives and me relating to any matter arising
strictly out of any use of the OTS, such dispute shall be finally
resolved in accordance with the rules of the Arbitration Foundation
of Southern Africa by an arbitrator appointed by the Foundation.
- 14.1. In pursuance of clause 14, I agree that:
- 14.1.1. either I or Applied Derivatives
may demand that a dispute be referred to arbitration
by giving written notice to that effect to the other party;
- 14.1.2. this clause shall not preclude either me
or Applied Derivatives from obtaining interim relief on
an urgent basis from a court of competent jurisdiction pending
the decision of the arbitrator;
- 14.1.3. the arbitration referred to in 14 shall be held:
184.108.40.206. at Cape Town; and
220.127.116.11. immediately and with a view to its
being completed within 21 (twenty-one) days after it is demanded;
14.1.4. I irrevocably agree that the decision in arbitration proceedings:
18.104.22.168. shall be final and binding upon me;
22.214.171.124. shall be carried into effect;
126.96.36.199. may be made an order
of any court of competent jurisdiction.
- 14.2. This clause (14) is severable from the rest of these Terms and
Conditions and shall remain valid and binding on me
notwithstanding any cancellation by me of my Applied Derivatives
User Name or any withdrawal by Applied Derivatives of the OTS, or any
part thereof, and/or my Applied Derivatives User Name.
- 15. This agreement, its interpretation and termination
shall be governed by and construed in accordance with the laws
of the Republic of South Africa and all disputes, actions and other
matters relating thereto will be determined in accordance with such law.
The parties hereto consent to the non-exclusive jurisdiction of the High
Court of South Africa (WLD), subject however to the provisions of clause 13 above.
- 16. Notwithstanding the foregoing terms and conditions, I
acknowledge and accept that Applied Derivatives may from time to
time amend such Terms and Conditions, insofar as they relate to my
use of the Estuary OTS. I therefore confirm that:
- 16.1. I am aware that all such changes shall be
reflected in email format sent to me from Applied Derivatives Pty Ltd;
- 16.2. by entering my User Name and User
Password to gain access to Applied Derivatives OTS,
I thereby bind myself to the Terms and Conditions in force at
that time, and from time to time, as they appear via email.
- 17. Installation, reproduction, transmission or any form of use of the
OTS by me shall for all purposes be deemed to be an acceptance action of the
Terms and Conditions binding me in terms of this agreement, which incorporates the
provisions of the Safex Agreement.
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