Company E-XUN Asia Company Limited, address 19/F, 3 Lockhart Road, Wan Chai. Hong Kong (hereinafter called the “Company”), provides under the terms of this public proposal (hereinafter called the “Agreement”) opening and maintaining of margin trading Accounts for trading operations with OTC Metals without physical delivery to any capable individual or corporate entity (hereinafter called the Client) on and subject to the following terms and conditions:
1. Terms and Definitions.
In this Agreement the following terms shall bear the following meanings:
In this Agreement, words denoting the singular include the plural and vice versa and words denoting gender will include any other gender. In case of controversies in interpretation of this Agreement terms the English version of this Agreement shall prevail.
2. General Terms:
2.1. Company is hereby authorized by Client to act as broker or as an agent or as a principal to execute Client's Instructions on buying and/or selling of OTC Metals on financial markets.
2.2. The Company provides only Service. The Сompany certainly executes Client's Instructions/Direction, even despite the fact that such a trading operation may be loss-making for the Client.
2.3. Client will take full obligations and responsibility for any sort of consequence what so ever that may result from the execution of Client's Instructions and/or his Agent's instructions.
3. Procedures and Terms of the Service Provisioning:
3.1. Procedures and Terms of the Service provisioning by Company, as well as information about their changes are specified at the official Company web-site.
3.2. Client understands and agrees with Procedures and Terms of the Service Provisioning applicable at the date of entry into force of this Agreement.
3.3. Procedures and Terms of the Service provisioning, as well as established procedures for Company interaction may be changed. Hereby Client agrees that Company shall be deemed to notify Client about changes according clause 18 of this Agreement.
4. Personal Information:
4.1. Client hereby states and guarantees that all information Client supplies during Account registration according established procedures by the Company (as provided at the Company request) is complete, correct, true, up-to-date and accurate.
4.2. Company is entitled to rely on such information until it has received written notice from Client of any changes according established procedures for Company interaction.
4.3. Client undertakes to and will notify Company forthwith of any changes to such information previously provided no later than 3 days after the changes occurred.
4.4. Client states that in any jurisdiction he is a legally capable person and of legal age under that jurisdiction.
5. Applicable Rules and Regulations:
5.1. All Transactions made pursuant by this Agreement in any market shall be subject to the relevant provisions of the constitution, rules, regulations, laws, customs and usual practices of the relevant market in which transactions are executed by Company/Brokers/Principals on Client's behalf and Client's Instructions.
5.2. The Rules, which relate to trading operations and transaction closure shall be binding both on Client and Company in respect of Transactions executed on Client's behalf.
5.3. Client states that he has read the Regulations of the Company and agrees to its terms.
5.4. Client will observe and accept all rules, requirements, timetables and trading facts for and related to Client's Trading operations/ investments as prescribed by Company.
6. Investment Advice:
6.1. Client acknowledges that Company provides the Service and that it has no liability with respect to any advice regarding the suitability or profitability of any Transaction/Trading operation.
6.2. Client agrees that Client will not solicit or rely on any such advice from Company or any of its employees.
6.3. Client agrees that Client will independently and without any reliance on Company make Client's own judgement and decisions with respect to each Transaction/Trading operation.
6.4. Client assumes full responsibility for Transactions/Trading operations in or for the Account and for Client’s investment decisions.
6.5. Client acknowledges and agrees that Company and its officers, directors, employees and Brokers/Principals have no liability with respect to Transactions/Trading operations in or for the Client's Account or for Client's investment decisions.
7. Instructions Execution:
7.1. Client/Agent shall from time to time instruct the selling and/or buying Lots on Client's behalf, either through the Service in writing, by telephone or via Internet.
7.2. On receipt of such Instructions Company shall so far as it considers it reasonably practicable sell and/or buy Lots in accordance with Client's Instructions and current financial markets conditions.
8. Brokers and Counter Parties:
8.1. Company is authorized to employ Brokers/Principals to perform all or part of its duties under this Agreement and to provide information regarding the Account to such Brokers/Principals.
8.2. Company may buy or sell Lots on Client's behalf, in order to execute Client's Instructions/Directions, by placing appropriate Orders/ Instructions with any Broker/Principals, other company or client associated with it, which are acting as investment managers, merchants or commercial banks, registered and/or licensed deposit takers, brokers and dealers, and with any other brokers and dealers at of Company sole discretion.
9. Deposits to and Withdrawals from the Account:
9.1. Client is informed about all established procedures for deposits to and withdrawals to/from the Account, and he is committed to act accurately and within the specified time frames subject to these instructions in order to make deposits/to withdraw the funds to/from the Account.
9.2. Client shall not hold Company responsible for Client financial losses that may result from Client's failure to observe the established procedures for making deposit/withdrawals of funds to/from the Account.
9.3. When making the Account, Client states the amount of funds. Such amount is paid to Company through money transfer to the official Company requisites specified on the Personal page or on the Company’s official website.
9.4. Client acknowledges that Company does not accept cash deposits.
9.5. Client acknowledges that Service will not be made available to Client, and Client's Account credit will not be increased until net funds is actually received by Company to the official Company requisites specified on the Personal page or on the company’s official web-site. Client's Account credit will be increased exactly in the amount that was actually received to official Company requisites from Client's requisites.
9.6. In an exceptional case at its own discretion Company can deposit to Client's Account the amount of funds demanded by Client prior to actual funds receipt.
9.7. Client acknowledges that the funds withdrawal can be made only personally by the Client from Client's Account to the requisites advised by Client.
9.8. An access to funds withdrawal transaction shall be made with the use of personal identification information (login and password). Client acknowledges that identification information is the subject of confidentiality, and Company shall not be responsible for Client's unauthorized withdrawal from the Account in case of Client's violation of confidentiality terms.
9.9. Money withdrawal can be made on condition that the Available Funds on the Account shall be not less the amount indicated by Client for withdrawal.
9.10. The Company shall be obliged at Client's demand to send the funds to requisites specified for this purpose.
9.11. Client is informed that Client will pay the cost of money transfer.
9.12. Client is informed that Company does not pay cash.
9.13. Payment of funds will be made to Client within 7 (seven) business days.
9.14. Company has the right to limit or refuse the withdrawal of funds in case of incomplete personal data provided by Client, as well as in the Client’s failure to confirm his identity in accordance with the registration data provided by Client earlier. Company will not be responsible for and does not guarantee the receipt by Client of withdrawn funds, and will not be responsible for non-observance of the time frames for receipt of the withdrawn funds in case if Client has indicated payment details other than personal payment details.
10. Interest rates and charges:
No interest shall be charged by Company to the funds transferred to Company.
11. Fees and Charges:
Client pays from the Account fees per each Transaction if they are prescribed by Company, and all and any other costs or expenses, whether accidental or material, properly incurred by Company in connection with Client/Agent use of the Service and trading on the Account.
Client agrees to pay/receive swap payment/interest arising from Open Positions left overnight, according to correspondent financial markets swap interest rates by Company, which shall be calculated and paid/received by Client, and will be stated in the Account History.
All Transactions relating thereto, now or hereinafter to be held or carried out by Company for and on Client's behalf are to be held by Company as a lien/collateral for the payment of any of Client's liabilities to Company.
14. Trading Profit and Loss:
Company is specifically authorised by Client to transfer such necessary amount from Client's Account, without any call or notice by either party, to Broker/Principal/ Company trading funds to cover trading loss resulting from/relating to Transactions/Trading operations executed by Company on Client's behalf, in accordance with the Account history. Company is specifically authorised by Client to transfer current assets/trading profits resulting from any trading in Transactions/Trading operations executed by Company on Client's behalf from Broker/Principal/ Company to Client's Account without any call or notice by either party, in accordance with the Account history.
15. Account Confirmations:
Account confirmations will hold the complete accounting/transactions information in respect to Client's Account, including Available funds, Actual/ Floating profits/losses arising from open/closed positions/transactions, marked-to-market at the relevant market closing prices, as well as notices of deposits of funds to and withdrawals of funds to Client's Account/from Client's Account, fees, charges, commissions, swap payments/profit, and all other expenses/revenues resulted from/related to Transactions/Trading operations executed/carried out by Company on Client's Instructions.
16. Information Recording and Registration:
Client understands and agrees that, for mutual protection, Company may electronically monitor or record any of Client's operations or telephone conversations conducted with it.
17. Liquidation of Open Positions:
17.1. In case of the deficit of Available funds/equity on Client 's Account that are necessary to maintain Open Positions, Company /Broker/ Principal may liquidate whole or part of Open Positions on the Client's Account at the given Market Price and at its sole discretion and without notice/ written confirmation of the deal issued for Client. The record of such a deal must be stated in Account History.
17.2. Once the amount of the Available Funds on Client's Account falls below the Stop Out level (available at the website of the Company), Company has a right to liquidate whole of or a part of Open Positions on the Client's Account without notice.
Notices and other communications delivered to Client via appointed Representative/Agent or via e-mail address/mobile telephone provided by Client for the purpose and to Personal Page or published at the Company official site are deemed to have been personally delivered to Client.
19. Validity and Enforceability:
19.1. The proposal to enter into this Agreement is a public offer (for an indefinite number of persons). Agreement shall enter into force as a result of the confirmation of unconditional consent of the Client with terms of the Agreement (Acceptance). The registration of the Account by the Client and confirmation of approval of the terms of the Agreement in accordance with the established procedures of the Company, transfer of funds by the Client to the Account and the actual receipt of these funds by the Company constitute Acceptance.
19.2. This Agreement shall be regulated by the law of the country of Company registration.
19.3. Issues not settled by this Agreement shall be regulated by the law of the country of Company registration.
19.4. If any provision of this Agreement shall be held to be illegal, invalid, void or unenforceable under the laws of any jurisdiction, the legality, validity, applicability and enforceability of the remainder of this Agreement in that jurisdiction shall not be affected. The legality, validity, and enforceability of the whole of this Agreement shall not be affected in any other jurisdiction.
19.5. Company has a right at any time to amend or modify this Agreement, including any and all amendments, as well as to change the conditions of work and working procedures by posting these amendments or the changes on the official website of the Company. Client agrees that these amendments or changes shall take effect after their posting on the official website of the Company.
Any easing of the Agreement or deferred payment terms to the Client granted by the Company as well as in case of the non-performance or inaccurate performance of the Client's Instructions by Company due to the conditions or the financial market's situation shall not be considered as the waiver by Company of any rights hereunder.
Client agrees that this Agreement and all the terms hereof shall be binding on Client's heirs, executors, administrators, personal representatives and assigns. This Agreement shall endure for the benefit of Company, its successors and assigns.
22. Force Majeure:
Client agrees that Company and its directors, officers, employees and Brokers/Principals will not be liable for any failure or delay to perform obligations under this Agreement on its part or for any losses caused directly or indirectly by any conditions or circumstances over which Company, its directors, officers, employees and Brokers/Principals do not have under direct control, including but not limited to government restrictions, exchange or market rulings, suspension of trading, failure of electronic or mechanical equipment or power supply systems, software (system or applied), both in the local terminal and server, hackers’ attacks, theft, war (whether declared or not), weather conditions, earthquakes and strikes.
Client agrees to indemnify and keep indemnified Company and its directors, officers, employees and Brokers/Principals for any loss, cost, claim, liability or expense arising out of or in connection with any breach by Client of any of Client obligations under this Agreement, including any cost reasonably incurred by Company in connection with the closure of the Account or in collecting any debts due to Company.
24.1. Client declares that all and any corporate/personal taxes will be paid by Client/the company Client represents in due order according to laws and the constitution of the country of Client present residence.
24.2. Client acknowledges that Company does not provide to Client with any legal, tax or accounting advice.
24.3. Client hereby indemnifies Company of any responsibility for Client fulfilment/unfulfilment of any tax obligations Client can have in respect of Funds on Client's Account or profits Client gained as result of market Transactions undertaken by Company for and on Client's behalf and Instructions.
25.1. In case of bankruptcy/insolvency of Company Client has a right to claim the Available funds/equity on Client's Account, as it is stated in the Account history, from Company direct successor.
25.2. In case of insolvency/bankruptcy of the Broker/Principal through which Company operates in order to execute Client's Instructions on Transactions, Client has a right to claim the Available funds/equity on Client's Account, as it is stated in the Account History, directly from the governmental/non-governmental securities and futures/financial markets brokerage associations/commissions for audit/control, of relevant markets in accordance with international laws.
26. Entire Understanding:
This Agreement, together with all other agreements between Client and Company relating to the Account and terms contained on statements and confirmations sent/given to Client, contains the entire understanding between Client and Company concerning the subject matter of this Agreement.
27.1. Company guarantees that all personal information received from Client, information about Client's Account, information giving the right to access to Client's Account, such as a login and a password to the Account, as well as other access and authorization codes that are required to deposit/ withdraw funds from the Account, is strictly confidential, and shall not be disclosed to any third party without authorization.
27.2. Client understands that nobody can require from Client to disclose this information in full or in part. Client also understands that confidentiality violation from Client's part can result in unauthorized by Client access to Client's Account and consequently possible financial losses through conduct of transactions unauthorized by Client.
27.3. Client understands and agrees that Company will not be liable for Client's financial losses that arose as a result of confidentiality violation, as well as for interaction between Client and Agent in the Account to which the Client provides the right to access.
28. Agreement Duration:
28.1. This Agreement shall enter into force upon its registration in accordance with the procedures established by Company.
28.2. This Agreement shall continue to be in full force and in effect, until receiving by Company of Client notice of its termination, or receiving by Client from Company of the notice of its termination according established by Company procedure . In both cases Client will confer to Company the right to liquidate the Open Positions on Client's Account.
28.3. Upon termination of this Agreement, the Available Funds on Client's Account, calculated and payable upon closing out of all Open Positions on the Account, will be transferred to Client's requisites according to Client's Instructions given/mailed by Client to Company according to the established procedures. Deficit or debit balance on Client's Account resulted thereupon will be in full transferred by Client in favour of Company on/before the date prescribed by Company.
29. Agreement Registration:
This Agreement shall be mandatory registered in accordance with the procedures established by Company. This Agreement shall not be valid without appropriate registration.
30. Risk Disclosure:
30.1. Client may sustain a total loss of the initial margin and any additional margins that Client deposit with Company to establish or maintain of Client Open Positions, If the market moves against of Client Open Positions Company shall have right to liquidate whole of or part of Client Open Positions on Client's Account without notice, according to clause 17 of this Agreement.
30.2. Client acknowledges that in case of adverse market conditions (for example, the output of significant news, etc.) may be some difficulties with dealing procedure via telephone or internet. In case of adverse market conditions, execution prices of the pending orders can differ from specified prices in pending orders. In case of adverse market conditions, sending of requests, modify, deleting of orders can be difficult. In this case also execution time of orders may increase.
30.3. Client acknowledges and understand that this Agreement is governed by the laws of the country of Company registration. It will not be subjected to the law of any other country or jurisdiction.
30.4. Client acknowledges that Risk Disclosure cannot, of course, disclose all the risks and other significant aspects of trading operations with OTC Metals.
30.5. Client certifies that Client has read this Risk Disclosure and fully understand all information and warnings, given in this notification in a language that Client understand.
31. Client hereby confirms that this Agreement, Terms and Procedures for Services rendering, Risk Disclosure, as well as all procedures for interaction with Company have been explained to Client in comprehensible language, and that Client accept this Agreement.