In consideration of MAXOFX agreeing to carry one or more accounts of the undersigned ("Trader") and providing services to Trader in connection with the purchase and sale of Contracts For Difference (hereinafter referred to as "CFDs"), futures, indices, foreign exchange, and/or shares through the OTC market (hereinafter referred to as "OTC") , which may be purchased or sold by or through MAXOFX for Trader's accounts(s), Trader agrees as follows:
1. AUTHORIZATION TO TRADE. MAXOFX is authorized to purchase and sell OTC for Trader's account(s) in accordance with Trader's oral or written or computer instructions.
2. GOVERNMENTAL, COUNTER PARTY INSTITUTION AND INTERBANKING SYSTEM RULES. All transactions under this Agreement shall be subject to the constitution, by-laws, rules, regulations, customs, usage, rulings and interpretations of the counter party institution or other interbank market (and its clearing organization, if any) where executed and to all applicable laws and regulations. If any statute shall hereafter be enacted or any rule or regulation shall hereafter be adopted by any governmental authority, or a contract market or clearing organization which shall be binding upon MAXOFX and shall affect in any manner or be inconsistent with any of the provisions hereof, the affected provisions of this Agreement shall be deemed modified or superseded, as the case may be by the applicable provisions of such statute, rule or regulation, and all other provisions of this Agreement and provisions so modified shall in all respects continue in full force and effect. Trader acknowledges that all transactions under this Agreement are subject to the aforementioned regulatory requirements and Trader shall not thereby be given any independent legal or contractual rights with respect to such requirements.
3. MARGINS AND DEPOSIT REQUIREMENTS. Trader shall provide to and maintain with MAXOFX margin in such amounts and in such forms as MAXOFX, in its sole discretion, may require. Such margin requirements may be greater or less than margins required by a counter party bank. MAXOFX may change margin requirements at any time. Trader agrees to deposit by immediate wire transfer such additional margin when and as required by MAXOFX and will promptly meet all margin calls in such mode of transmission as MAXOFX in its sole discretion designates. MAXOFX may at any time proceed to liquidate Trader's account and any failure by MAXOFX to enforce its rights hereunder shall not be deemed a waiver by MAXOFX to enforce its rights thereafter. MAXOFX retains the right to limit the amount and/or total number of open positions which Trader may acquire or maintain at MAXOFX, and to increase margin requirements on individual share CFDs in advance of earnings or other news or events, with or without notice, either before such events or retroactively. MAXOFX will attempt to execute all orders which it may, in its sole discretion, choose to accept in accordance with the oral or written or computer instructions of Trader's. MAXOFX reserves the right to refuse to accept any order. However, MAXOFX shall not be responsible for any loss or damage caused, directly or indirectly, by any events, actions or omissions beyond the control of MAXOFX including, without limitation, loss or damage resulting, directly or indirectly, from any delays or inaccuracies in the transmission of orders and/or information due to a breakdown in or failure of any transmission or communication facilities.
4. AUTOMATIC ROLLOVER AND VOLUNTARY LIQUIDATION OF ACCOUNT POSITIONS. Except as otherwise provided herein, or in the Trading Procedures as in effect from time to time, unless Trader provides to MAXOFXFX written or oral instructions to liquidate an open FOREX position in the Account (each, a "Spot FOREX Position") in accordance with the subsequent provisions of this Section 4, that position will be automatically rolled-over as an open position in the Account to the next business day, successively, subject at all times to the right of MAXOFXFX , in its sole and absolute discretion, to liquidate said position in accordance with the provisions of this Agreement, including, without limitation, the provisions of Section 6 hereof. A Spot FOREX Position in the Account may be settled or liquidated at any time by means of either (i) entering into an offsetting Spot FOREX Transaction or (ii) making or taking delivery of the specified quantities of foreign currency. In order to liquidate an open Spot FOREX Position in the Account by selling or purchasing, as applicable, an equal and opposite offsetting Spot FOREX Contract, written instructions must be given to MAXOFXFX by Trader. Alternatively, in order to liquidate an open Spot FOREX Position in the Account by means of delivering, or taking delivery, of the underlying currency, written or oral instructions to this effect must be given to MAXOFXFX, together with sufficient funds and all documents necessary to effectuate this mode of settlement.
5. COLLATERAL AND LENDING AGREEMENT. All funds, securities, currencies, and other property of Trader which MAXOFX or its affiliates may at any time be carrying for Trader (either individually, jointly with other, or as a guarantor of the account of any other person,) or which may at any time be in its possession or control or carried on its books for any purpose, including safekeeping, are to be held by MAXOFX as security and subject to a general lien and right of set-off for liabilities of Trader to MAXOFX whether or not MAXOFX has made advances in connection with such securities, commodities, currencies or other property, and irrespective of the number of accounts Trader may have with MAXOFX. MAXOFX may in its discretion, at any time and from time to time, without notice to Trader, apply and/or transfer any or all funds or other property of Trader between any of Trader's accounts. Trader hereby also grants to MAXOFX the right to pledge, re-pledge, hypothecate, invest or loan, either separately or with the property of other Traders, to itself as broker or to others, any securities or other property of Trader held by MAXOFX as margin or security. MAXOFX shall at no time be required to deliver to Trader the identical property delivered to or purchased by MAXOFX for any account of Trader. This authorization shall apply to all accounts carried by MAXOFX for Trader and shall remain in full force until all accounts are fully paid for by Trader or notice of revocation is sent by MAXOFX from its home office.
6. LIQUIDATION OF ACCOUNTS AND PAYMENT OF DEFICIT BALANCES. In the event of (a) the death or judicial declaration of incompetence of Trader; (b) the filing of a petition in bankruptcy, or a petition for the appointment of a receiver, or the institution of any insolvency or similar proceeding by or against Trader; (c) the filing of an attachment against any of Trader's accounts carried by MAXOFX, (d) insufficient margin, or MAXOFX's determination that any collateral deposited to protect one or more accounts of Trader is inadequate, regardless of current market quotations, to secure the account; (e) Trader's failure to provide MAXOFX any information requested pursuant to this agreement; or (f) any other circumstances or developments that MAXOFX deems appropriate for its protection, and in MAXOFX's sole discretion, it may take one or more, or any portion of, the following actions: (1) satisfy any obligation Trader may have to MAXOFX, either directly or by way of guaranty of suretyship, out of any of Trader's funds or property in its custody or control; (2) sell any or purchase any or all Currency contracts, securities held or carried for Trader; and (3) cancel any or all outstanding orders or contracts, or any other commitments made on behalf of Trader. Any of the above actions may be taken without demand for margin or additional margin, without prior notice of sale or purchase or other notice to Trader, Trader's personal representatives, heirs, executors, administrators, trustees, legatees or assigns and regardless of whether the ownership interest shall be solely Trader's or held jointly with others. In liquidation of Trader's long or short positions, MAXOFX may, in its sole discretion, offset in the same settlement or it may initiate new long or short positions in order to establish a spread or straddle which in MAXOFX's sole judgment may be advisable to protect or reduce existing positions in Trader's account. Any sales or purchases hereunder may be made according to MAXOFX's judgment and at its discretion with any interbank or other exchange market where such business is then usually transacted or at a public auction or private sale, and MAXOFX may purchase the whole or any part thereof free from any right of redemption. Trader shall at all times be liable for the payment of any deficit balance of Trader upon demand by MAXOFX and in all cases, Trader shall be liable for any deficiency remaining in Trader's account(s) in the event of the liquidation thereof in whole or in part by MAXOFX or by Trader. In the event the proceeds realized pursuant to this authorization are insufficient for the payment of all liabilities of Trader due to MAXOFX, trader shall promptly pay upon demand, the deficit and all unpaid liabilities, together with interest thereon equal to three (3) percentage points above the then prevailing prime rate at MAXOFX's principal bank or the maximum interest rate allowed by law, whichever is lower, and all costs of collection, including attorney's fees, witness fees, travel expenses and the like. In the event MAXOFX incurs expenses other than for the collection of deficits, with respect to any of the account(s) of Trader, Trader agrees to pay such expenses.
7. COMMISSIONS AND OTHER ACCOUNT CHARGES. Trader shall pay all such brokerage, commission, and special service charges and regulatory fees as MAXOFX may from time to time charge to the Account, and all other charges (including, without limitation, cross-currency overnight interest debits, mark-ups and mark-downs, statement charges, idle Account charges, order cancellation charges, Account transfer charges and other charges) and fees (including, without limitation, fees imposed by any bank, clearing house, contract market or regulatory or self-regulatory organization) MAXOFXing out of MAXOFX's providing of services hereunder. MAXOFX may at any time change its commission schedule, and increase or decrease the charges and/or fees payable hereunder and there under without notice. Trader agrees to be liable to MAXOFX for interest on any and all amounts due from Trader to MAXOFX hereunder, including, without limitation, the amount of required margin not timely deposited in the Account, at an interest rate equal to two (2) percentage points above the then prevailing prime rate at MAXOFX's principal overseas bank, or the maximum interest rate allowed by applicable law, whichever is lower. All such charges payable to MAXOFX by Trader shall be paid by Trader as they are incurred, or as MAXOFX in its sole and absolute discretion may determine, and Trader hereby expressly authorizes MAXOFX to withdraw the amount of any such commissions and other charges directly from the Account. In the event that the deposits and/or credit balances in the Account are insufficient to cover such commissions and other charges, the unpaid balance of such charges shall automatically become a debit balance in the Account, to the extent of such non-coverage, subject to the same terms relating thereto as are described in Section 6 hereof.
8. STATEMENT AND CONFIRMATION. Reports of the confirmation of orders and statements of Account for the Account shall be deemed correct and shall be conclusive and binding upon Trader if not objected to by Trader in writing within one (1) calendar days after transmittal to Trader by email. Margin calls shall be deemed to be conclusive and binding unless objected to by Trader immediately by email. Written objections on Trader's part shall be directed to MAXOFX and shall be deemed received only if actually delivered to MAXOFX. Failure of Trader to object timely shall be deemed ratification of all actions taken by MAXOFX or MAXOFX's agents.
9. COMMUNICATIONS. Reports, statements, notices and any other communications may be transmitted such address as Trader may from time to time designate in writing to MAXOFX. All communications so sent, whether by email, Live Support.
10. MAXOFX RESPONSIBILITIES. MAXOFX will not be responsible for delays in the transmission of orders due to a breakdown or failure of transmission or communication facilities, electrical power outage or for any other cause beyond MAXOFX's control or anticipation. MAXOFX shall only be liable for its actions directly attributable to negligence, willful default or fraud on the part of MAXOFX. MAXOFX shall not be liable for losses arising from the default of any agent or any other party used by MAXOFX under this agreement. As OTC is not an exchange traded market, prices at which MAXOFX deals at or quotes may or may not be similar to prices at which other OTC market makers deal at or quote.
11. CURRENCY FLUCTUATION RISK. If Trader directs MAXOFX to enter into any currency forex transaction: (a) any profit or loss arising as a result of a fluctuation in the exchange rate affecting such currency will be entirely for Trader's account and risk; (b) all initial and subsequent deposits for margin purposes shall be made in U.S. dollars, in such amounts as MAXOFX may in its sole discretion require; and (c) MAXOFX is authorized to convert funds in Trader's account for margin into and from such foreign currency at a rate of exchange determined by MAXOFX in its sole discretion on the basis of the then prevailing money market rates.
12. RISK ACKNOWLEDGMENT. Trader acknowledges that investment in leveraged and non-leveraged transactions are speculative, involves a high degree of risk, and is appropriate only for persons who can assume risk of loss of their entire margin deposit. Trader understands that because of the low margin normally required in OTC trading, price changes in OTC may result in significant losses. Trader warrants that Trader is willing and able, financially and otherwise, to assume the risk of OTC trading, and in consideration of MAXOFX's carrying his/her account(s), Trader agrees not to hold MAXOFX responsible for losses incurred through following its trading recommendations or suggestions or those of its employees, agents or representatives. Trader recognizes that guarantees of profit or freedom from loss are impossible of performance in OTC trading. Trader acknowledges that Trader has received no such guarantees from MAXOFX or from any of its representatives or any introducing agent or other entity with whom Trader is conducting his/her MAXOFX account and has not entered into this agreement in consideration of or in reliance upon any such guarantees or similar representations.
13. TRADING RECOMMENDATIONS. (a) Trader acknowledges that (i) any market recommendations and information communicated to Trader by MAXOFX or by any person within the company, does not constitute an offer to sell or the solicitation of an offer to buy any OTC contract, (ii) such recommendation and information, although based upon information obtained form sources believed by MAXOFX to be reliable, may be based solely on a broker's opinion and that such information may be incomplete and may be unverified, and (iii) MAXOFX makes no representation, warranty or guarantee as to, and shall not be responsible for, the accuracy or completeness of any information or trading recommendation furnished to Trader. Trader acknowledges that MAXOFX and/or its officers, directors, affiliates, associates, stockholders or representatives may have a position in or may intend to buy or sell currencies, which are the subject of market recommendations furnished to Trader, and that the market position of MAXOFX or any such officer, director, affiliate, associate, stockholder or representative may not be consistent with the recommendations furnished to Trader by MAXOFX. Trader acknowledges that MAXOFX makes no representations concerning the tax implications or treatment of contracts; and, (b) Trader further acknowledges that should Trader grant trading authority or control over Trader's account to a third party ("Trading Agent"), whether on a discretionary or non-discretionary basis, MAXOFX shall in no way be responsible for reviewing Trader's choice of such Trading Agent nor making any recommendations with respect thereto. Trader understands that MAXOFX makes no warranties nor representations concerning the Trading Agent, that MAXOFX shall not be responsible for any loss to Trader occasioned by the actions of the Trading Agent and that MAXOFX does not, by implication or otherwise, endorse or approve of the operating methods of the Trading Agent. If Trader gives Trading Agent authority to exercise any of its rights over Trader's account(s), Trader understands that Trader does so at Trader's own risk.
14. TRADER REPRESENTATIONS AND WARRANTIES. Trader represents and warrants that: (a) Trader is of sound mind, legal age and legal competence; and, (b) No person other than Trader has or will have an interest in Trader's account(s); and, (c) Trader hereby warrants that regardless of any subsequent determination to the contrary, Trader is suitable to trade OTC and is a sophisticated institution and/or institutional participant; and, (d) Trader is not now an employee of any exchange, any corporation in which any exchange owns a majority of the capital stock, any member of any exchange and/or firm registered on any exchange, or any bank, trust, or insurance company, and in the event that Trader becomes so employed, Trader will promptly notify MAXOFX at its home office in writing of such employment; and, (e) All the information provided in the information portion of this booklet is true, correct and complete as of the date hereof and Trader will notify MAXOFX promptly of any changes in such information.
15. DISCLOSURE OF FINANCIAL INFORMATION. The Trader represents and warrants that the financial information disclosed to MAXOFX in this document is an accurate representation of the Trader's current financial condition. The Trader represents and warrants that the Trader has very carefully considered the portion of the Trader's assets which the Trader considers to be Risk Capital. The Trader recognizes that Risk Capital is the amount of money the Trader is willing to put at risk and if lost would not, in any way, change the Trader's lifestyle. The Trader agrees to immediately inform MAXOFX if the Trader's financial condition changes in such a way to reduce the Trader's Net Worth, Liquid Assets and/or Risk Capital.
16. NO GUARANTEES. Trader acknowledges that Trader has no separate agreement with Trader's broker or any MAXOFX employee or agent regarding the trading in Trader's MAXOFX account, including any agreement to guarantee profits or limit losses in Trader's account. Trader understands that Trader must authorize every transaction prior to its execution unless Trader has delegated discretion to another party by signing MAXOFX's limited trading authorization, and any disputed transactions must be brought to the attention of MAXOFX's Compliance Officer pursuant to the notice requirements of this Trader Agreement. Trader agrees to indemnify and hold MAXOFX harmless form all damages or liability resulting form Trader's failure to immediately notify MAXOFX's Compliance Officer of any of the occurrences referred to herein. All notices required under this section shall be sent to MAXOFX at its home office.
17. NO WAIVER OR AMENDMENT. No provision of this Agreement may be waived or amended unless the waiver or amendment is in writing and signed by both Trader and an authorized officer of MAXOFX. No waiver or amendment of this Agreement may be implied from any course of dealing between the parties or from any failure by MAXOFX or its agents to assert its rights under this Agreement on any occasion or series of occasions. No oral agreements or instructions to the contrary shall be recognized or enforceable. This instrument and the attachments hereto embody the entire agreement of the parties, superseding any and all prior written and oral agreements and there are no other terms, conditions or obligations other than those contained herein.
18. GOVERNING LAW AND JURISDICTION. This Agreement, and the rights and obligations hereunder of the parties hereto, shall in all respects be governed by, and construed and enforced in all respects by the international laws governing such matters.
19. BINDING EFFECT. This Agreement shall be continuous and shall cover, individually and collectively, all accounts of Trader at any time opened or reopened with MAXOFX irrespective of any change or changes at any time in the personnel of MAXOFX or its successors, assigns, or affiliates. This Agreement including all authorizations, shall inure to the benefit of MAXOFX and its successors and assigns, whether by merger, consolidation or otherwise, and shall be binding upon Trader and/or the estate, executor, trustees, administrators, legal representatives, successors and assigns of Trader. Trader hereby ratifies all transactions with MAXOFX effected prior to the date of this Agreement, and agrees that the rights and obligations of Trader in respect thereto shall be governed by the terms of this Agreement.
20. TERMINATION. This Agreement shall continue in effect until termination, and may be terminated by Trader at any time when Trader has no open Currency position(s) and no liabilities held by or owed to MAXOFX upon the actual receipt by MAXOFX at its home office of written notice of termination, or at any time whatsoever by MAXOFX upon the transmittal of written notice of termination to Trader; provided, that such termination shall not affect any transactions previously entered into and shall not relieve either party of any obligations set out in this agreement nor shall it relieve Trader of any obligations arising out of any deficit balance.
21. INDEMNIFICATION. Trader agrees to indemnify and hold MAXOFX, its affiliates, employees, agents, successors and assigns harmless from and against any and all liabilities, losses, damages, costs and expenses, including attorney's fees, incurred by MAXOFX arising out of Trader's failure to fully and timely perform Trader's agreements herein or should any of the representations and warranties fail to be true and correct. Trader also agrees to pay promptly to MAXOFX all damages, costs and expenses, including attorney's fees, incurred by MAXOFX in the enforcement of any of the provisions of this Agreement and any other agreements between MAXOFX and Trader.
22. TERMS AND HEADINGS. The term "MAXOFX" shall be deemed to include MAXOFX Financial Ltd, its divisions, its successors and assigns; the term "Trader" shall mean the party (or parties) executing the Agreement; and the term "Agreement" shall include all other agreements and authorizations executed by Trader in connection with the maintenance of Trader's account with MAXOFX regardless of when executed. The paragraph headings in this Agreement are inserted for convenience of reference only and are not deemed to limit the applicability or affect the meaning of any of its provisions.
23. RECORDINGS. Trader agrees and acknowledges that all conversations regarding Trader's account(s) between Trader and MAXOFX personnel may be electronically recorded with or without the use of an automatic tone warning device. Trader further agrees to the use of such recordings and transcripts thereof as evidence by either party in connection with any dispute or proceeding that may arise involving Trader or MAXOFX. Trader understands that MAXOFX destroys such recordings at regular intervals in accordance with MAXOFX's established business procedures and Trader hereby consents to such destruction.
24. INTEREST/PREMIUM. Interest on open positions is paid on a daily basis, regardless of position direction.