GENERAL
BUSINESS TERMS
SA XO LEGAL SINGAPORE
S A X O C A P I T A L M A R K E T S ( A U S T R A L I A ) P T Y L T D
Version: 16th March 2015 General Business Terms
1. DEFINITIONS – INTERPRETATION OF TERMS
1.1 In these General Business Terms the following terms shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
i “Account” shall mean a transaction account of a Client at Saxo Capital Markets;
ii “Account Statement” shall mean a periodic statement of the transactions credited or debited to an Account; iii “Account Summary” shall mean a summary of the Client’s financial products portfolio, open positions, margin requirements, cash balance etc. at a specific point in time;
iv “AEST” shall mean Australian Eastern Standard Time; v “Agent” shall mean an individual person or legal
entity undertaking a transaction on behalf of another individual person or legal entity but in their/its own name;
vi “Associate” means an employee, agent or representative of Saxo Capital Markets, and includes persons employed by the Saxo Bank Group, and other entities within, the Saxo Bank Group;
vii “Authorised Person” shall mean a person authorised by the Client to give instructions to Saxo Capital Markets and identified in the application form; viii “Best Execution Policy” shall mean Saxo Capital
Markets’ prevailing policy regarding best execution when executing Client orders. The Best Execution Policy is available on Saxo Capital Markets’ website at www.saxomarkets.com.au and includes execution of Client orders on the Trading Platform;
ix “Business Day” shall mean any day on which banks are open for business in Sydney, excluding Saturdays and Sundays;
x “Cash” means the cash-balance on the Client’s Account(s) from time to time;
xi “CFD Contract” or “CFD” shall mean a contract which is a contract for difference by reference to fluctuations in the price of the relevant security or index;
xii “Client” shall mean the individual person, legal entity or firm who has an Account with Saxo Capital Markets;
xiii “Collateral” shall mean any Cash, the Client’s beneficial interest in any such Cash held by Saxo Capital Markets as client money;
xiv “Commissions, Charges & Margin Schedule” shall mean the schedule of commissions, charges, margin, interest and other rates which at any time may be applicable to the Services as determined by Saxo Capital Markets from time to time. The Commissions, Charges & Margin Schedule is available on Saxo Capital Markets’ website at www.saxomarkets.com. au and may be supplied to the Client on demand;
xv “Conflict of Interest Policy” shall mean Saxo Capital Markets’ prevailing policy regarding conflicts of interest which is available at our website at www. saxomarkets.com.au;
xvi “Contract” shall mean any contract, whether oral or written, entered into by Saxo Capital Markets with the Client under these Terms;
xvii “CFD” shall mean contract for difference;
xviii “Contract Option” shall mean a contract between Saxo Capital Markets and a Client, the terms of which correspond in all respects to the terms of an option, which is quoted, listed or ordinarily purchased or sold on and cleared through a regulated market place or another market;
xix “Counterparties” shall mean banks and/or brokers through whom Saxo Capital Markets may cover its Contracts with Clients or with whom Saxo Capital Markets otherwise deals in relation to Clients’ transactions;
xx “Events of Default” shall have the meaning given to this term in Clause 19.2;
xxi “Exchange” means any exchange, market or association of dealers in any part of the world on which financial products are bought and sold; xxii “Exchange-traded Financial Product” means a
financial product traded on an Exchange;
xxiii “FIFO” is an abbreviation of “First in First Out” and refers to the fact that in case one or more Contracts with the same characteristics shall be closed, Saxo Capital Markets will close the older Contract first; xxiv “Inside Information” shall mean: (a) information which
is not generally available; and (b) if the information were generally available, a reasonable person would expect it to have a material effect on the price or value of a particular Exchange-traded Financial Product or OTC;
xxv “Introducing Broker” shall mean a financial institution or advisor which is remunerated by Saxo Capital Markets and/or Clients for referral of Clients to Saxo Capital Markets and/or for provision of advice to such Clients and/or execution of such Clients’ transactions with Saxo Capital Markets;
xxvi “Law” means:
(a) any law, regulation, authorisation, ruling, judgment, order or decree of any Government agency; and
(b) any statute, regulation, proclamation, ordinance or by-law in:
(i) Australia; or (ii) any other jurisdiction.
xxvii “Loss” shall mean expense, cost or liability.
xxviii “Margin Trade” shall mean a Contract opened
GENERAL BUSINESS TERMS
and maintained based on a margin requirement as opposed to a Contract based on a purchase price; xxix “Market Maker” shall mean a professional participant
in the financial markets who continuously offers purchase and sale prices for a financial instrument in order to buy and sell respectively in the event of interested Clients;
xxx “Market Rules” shall mean the rules, regulations, customs and practices from time to time of any Exchange, clearing house or other organisation or market involved in, or otherwise relevant to, the conclusion, execution, terms or settlement of a transaction or Contract and any exercise by any such Exchange, clearing house or other organisation or market of any power or authority conferred on it; xxxi “Net Free Equity” is a basis of calculation of interest
which is calculated in accordance with the definition specified in the Commissions, Charges & Margin Schedule;
xxxii “OTC” shall mean any Contract which is not traded on a regulated Exchange but issued “over the counter” by Saxo Capital Markets to the Client; xxxiiii “Power of Attorney” means a written document
between a Client and a person authorised to act on behalf of the Client and provided to Saxo Capital Markets. The Client may grant either a full or limited Power of Attorney;
xxxiv “Principal” shall mean an individual person or legal entity which is a party to a transaction;
xxxvi “Saxo Bank Group” shall mean all entities, including headquarters, branches, subsidiaries, representative offices and any other entities, as stated at Saxo Bank’s website at www.saxobank.com;
xxxvii “Saxo Bank” shall mean Saxo Bank A/S, CVR no. 15 73 12 49 and with the address of Philip Heymans Alle 15, DK-2900 Hellerup, Denmark or any branch hereof; xxxviii “Saxo Capital Markets” shall mean Saxo Capital
Markets (Australia) Pty Ltd, ABN 32 110 128 286 AFSL No. 280372;
xxxix “Security” shall mean any securities or other assets provided to Saxo Capital Markets by the Client; xxxvii “Services” shall mean the services to be provided by
Saxo Capital Markets subject to the Terms;
xxxviii “Settlement/Trade Confirmation” shall mean a notification from Saxo Capital Markets to the Client confirming the Client’s entry into a Contract; xxxix “Terms” shall mean these General Business Terms
governing the Client relationship between the Client and Saxo Capital Markets; and
xl “Trading Platform” shall mean any online trading platform made available by Saxo Capital Markets under the Terms.
xli “underlying asset” means the thing which is used as the basis for the calculations of prices for a Contract, such as a share, units in a listed fund, an Exchange-traded Financial Product, a commodity, a share index, a futures contract, an option, another Contract or other item (or any combination of one or more of those);
1.2 If there is any conflict between the Terms and relevant Market Rules, the Market Rules shall prevail to the extent of the inconsistency.
1.3 In the Terms any reference to an person shall include bodies corporate, unincorporated associations, trusts, partnerships and individuals.
1.4 Headings and notes in the Terms are for reference only and shall not affect the contents and interpretation of the Terms.
1.5 In the Terms, any reference to any law, statute or regulation or enactment shall include references to any statutory modification or re-enactment thereof or to any regulation or order made under such law, statute or enactment (or under such a modification or re-enactment).
2. RISK ACKNOWLEDGEMENT
2.1 The Client acknowledges that self-directed trading and investment in leveraged as well as nonleveraged Contracts is: i highly speculative;
ii may involve an extreme degree of risk; and
iii is appropriate only for persons who, if they trade on margin, can assume risk of loss in excess of their margin requirement.
2.2 The Client acknowledges that:
i because of the low margin normally required in Margin Trades, price changes in the underlying asset may result in significant losses, which losses may substantially exceed the Client’s investment and margin requirement;
ii when the Client enters into any transaction under these Terms, any profit or loss arising as a result of a fluctuation in the value of the asset or the underlying asset will be entirely for the Client’s Account and risk; iii the Client warrants that the Client is willing and able,
financially and otherwise, to assume the risk of trading in speculative investments;
iv to the maximum extent permitted by law, the Client agrees not to hold Saxo Capital Markets responsible for losses incurred by the Client in using the Trading Platform, entering into OTC or as a consequence of the Client following Saxo Capital Markets’ recommendations or suggestions or those of its employees, associates or representatives, unless Saxo Capital Markets has exercised gross negligence in connection herewith;
v unless it is otherwise specifically agreed, Saxo Capital Markets shall not conduct any continuous monitoring of the transactions entered into by the Client. Hence, Saxo Capital Markets is not responsible for the transactions developing differently from what the Client might have presupposed and/or to the disadvantage of the Client;
vi neither Saxo Capital Markets or any other entity within the Saxo Bank Group, any Introducing Broker, or representatives of the above or any other entity providing services to a Client Account guarantees the performance and profit of any investment or the prevention of loss.
3. SERVICES
3.1 Subject to the Client fulfilling its obligations under the Terms, Saxo Capital Markets may enter into transactions with the Client in relation to the following investments and instruments:
i futures and CFDs on commodities, shares, interest rate and debt instruments, indices, foreign exchange and basic and precious metals;
ii spot and forward bullion, currencies, and OTC derivatives;
iii shares, bonds and other debt instruments, including government and public issues;
iv options and warrants to acquire or dispose of any of the instruments above in clause 3.1(iii);
v managed assets whether as OTC or Exchange-traded Financial Product; and
vi such other investments as Saxo Capital Markets may offer from time to time.
3.2 The Services provided by Saxo Capital Markets may involve: i margined transactions;
ii short sales (i.e. sales where one party to the Contract is obliged to deliver an asset which it does not possess); or
iii transactions in instruments which are: traded on exchanges which are not recognised or designated investment exchanges and/or not traded on any stock or investment exchange; and/or not immediately and readily realisable.
The Client agrees that at the time of placing an order to sell financial products the Client must comply with all applicable disclosure obligations pursuant to the Corporations Act, Market Rules, any other applicable Laws, rules, regulations, directions, procedures and requirements applicable to placing such an order, and any procedures or rules from time to time laid down by Saxo Capital Markets. In addition, the Client must provide Saxo Capital Markets, within the specified time, such further information relating to any short sale order which Saxo Capital Markets may request from the Client from time to time.
3.3 Orders may be placed as market orders to buy or sell as soon as possible at the price obtainable in the market, or, on selected products, as limit and stop orders to trade when the price reaches a predefined level. Limit orders to buy and stop orders to sell must be placed below the current market price, and limit orders to sell and stop orders to buy must be placed above the current market price. If the bid price for sell orders or ask price for buy orders is reached, the order will be filled as soon as possible at the price obtainable in the market. Limit and stop orders are executed consistent with the Best Execution Policy. Saxo Capital Markets do not guarantee that limit and stop orders can be executed at the specified price or amount, unless explicitly stated by Saxo Capital Markets for the specific order. For further information on the types of orders, please refer to Saxo Capital Markets’ website at www.saxomarkets.com.au.
3.4 In relation to any order placed by the Client with Saxo Capital Markets to buy or sell an Exchange-traded Financial Product, the order will be placed on behalf of the Client unless Saxo Capital Markets specifically agrees otherwise. In respect of all other transactions and Contracts, Saxo Capital Markets acts as Principal unless otherwise agreed in writing with the Client.
3.5 The Client shall, unless otherwise agreed in writing with Saxo Capital Markets, enter into Contracts as Principal. If the Client acts as Agent, regardless of whether the Client identifies another entity as the Principal to Saxo Capital Markets, Saxo Capital Markets shall not be obliged to accept the said Principal as a Client, and consequently Saxo Capital
Markets shall be entitled to consider the Client as Principal in relation to the Contract.
3.6 When the Client enters into a Contract Option with Saxo Capital Markets, Saxo Capital Markets will enter into a contract with a Counterparty which is identical in all respects to the contract between Saxo Capital Markets and the Client. The Counterparty will in turn enter into a contract on the relevant Exchange (unless Market Rules requires the Counterparty to act as Saxo Capital Markets’ Agent in which case Saxo Capital Markets will enter into a contract on the Exchange). The Client is contracting with Saxo Capital Markets and has no right of recourse against Saxo Capital Markets’ Counterparties or any right over contracts between Saxo Capital Markets and its Counterparties.
3.7 In the event Saxo Capital Markets provides advice, information or recommendations to the Client, Saxo Capital Markets shall not be responsible for such advice, information or recommendation. The Client accepts that:
i all transactions in Contracts which are Exchangetraded will be effected subject to, and in accordance with, Market Rules;
ii Market Rules usually contain wide powers in an emergency or otherwise undesirable situation; iii if any Exchange or clearing house takes any action
which affects a transaction or Contract, directly or indirectly then Saxo Capital Markets is entitled to take any action relevant to the situation and reasonable to the parties in the interests of the Client and/or Saxo Capital Markets;
iv Saxo Capital Markets shall not be liable for any loss as further stipulated in Clause 21.3 and suffered by the Client as a result of the acts or omissions of any Exchange or clearing house or any action reasonably taken by Saxo Capital Markets as a result of such acts or omissions unless Saxo Capital Markets has been grossly negligent;
v where any transaction in Exchange-traded Contracts is effected by Saxo Capital Markets as Agent for the Client, delivery or payment (as appropriate) by the other party to the transaction shall be at the Client’s entire risk;
vi Saxo Capital Markets’ obligation to deliver investments to the Client or to account to the Client or any other person on the Client’s behalf for the proceeds of sale of investments shall be conditional upon receipt by Saxo Capital Markets of deliverable documents or sale proceeds (as appropriate) from the other party or parties to the transaction;
vii Saxo Capital Markets may in whole or in part, on a permanent or temporary basis close any Account facility provided by Saxo Capital Markets to the Client. Situations where Saxo Capital Markets may take such action include situations where:
i Saxo Capital Markets considers that the Client may be in possession of Inside Information;
ii Saxo Capital Markets considers that there are abnormal trading conditions;
iii Saxo Capital Markets is unable to calculate prices in the relevant Contract due to the unavailability of the relevant market information;
iv Saxo Capital Markets, in its reasonable opinion, considers it necessary for the protection of its rights under the Terms;
v Saxo Capital Markets considers that the Client may be in breach of any applicable Law or Market Rules; vi either the Client or Saxo Capital Markets is so
requested by the Australian Securities & Investments Commission or any other regulatory agency or authority;
vii Saxo Capital Markets can no longer hedge the Client’s position or has position(s) closed out by a Counterparty; and
viii prices are manipulated or the Client unfairly gains a price advantage which would not normally be available if there were no errors on the Trading Platform. Saxo Capital Markets will inform the Client of the Account closure and the reasons for it, where possible and permitted by law, before the closure and if this is not possible immediately thereafter, unless giving such information would compromise objectively justified security reasons.
3.8 Saxo Capital Markets is not obligated to provide any advice to the Client on any tax issues related to any Services. The Client is advised to obtain individual independent advice from its financial advisor, auditor or legal counsel with respect to tax implications of the respective Services.
3.9 Notwithstanding any other provision of the Terms, in providing its Services, Saxo Capital Markets shall be entitled to take any action considered necessary and reasonable to ensure compliance with the Market Rules and all other applicable Laws and regulatory decisions.
4. DEALINGS BETWEEN SAXO CAPITAL MARKETS AND THE CLIENT
4.1 The Client may provide Saxo Capital Markets with oral or written instructions (which shall include instructions provided via the internet or by email as described below). Saxo Capital Markets shall acknowledge the receipt of the instructions orally or in writing, as appropriate.
4.2 The Client shall inform Saxo Capital Markets in writing of any person the Client has granted a Power of Attorney to instruct Saxo Capital Markets on behalf of the Client, with such authorised person being an “Attorney”. For practical reasons, Saxo Capital Markets can only undertake to register one Power of Attorney for the Client. If the Client at any time wishes to revoke such a Power of Attorney, to change the extent of the Power of Attorney, or grant Power of Attorney to a different person, the Client must advise Saxo Capital Markets in writing. The Client may grant an Attorney with full or limited authority. Attorneys under a full Power of Attorney will be able to given instructions to Saxo Capital Markets: (i) for the purchase or sale of any financial products, (ii) to transfer funds to and from the Account and (ii) to request and obtain information about the Account. Attorneys under a limited Power of Attorney will only be able to request certain information from Saxo Capital Markets and will not be able to give instructions to Saxo Capital Markets is, entitled to receive instructions from the Attorney appointed by the Client. The Client is responsible and liable for all the acts and omission of their Attorney, irrespective of whether the Attorney was appointed under a full or limited Power of Attorney. The Power of Attorney shall be written on one of Saxo Capital Markets’ Power of Attorney forms. The Attorney shall be approved by Saxo Capital Markets and must pass the eligibility test or such other requirements from time to time. A personal user ID and password shall be provided to the Attorney.
4.3 In addition to the Conflict of Interest Policy and the Best Execution Policy and the terms stated in Clause 5 regarding the Trading Platform, the following terms apply to Contracts executed on the internet:
i Saxo Capital Markets shall not be liable to Clients for any Loss, liability suffered or incurred by the Client due to failure of the system, transmission failure or delays or similar technical errors unless Saxo Capital Markets has exercised gross negligence in connection herewith, notwithstanding Clause 5.9;
ii Saxo Capital Markets may notify non-binding indicative prices, which are indicative of realtime tradable prices, to the Client. The indicative price notified by Saxo Capital Markets may differ from the actual price a Client receives for any specific order due to circumstances including (but not limited to) those circumstances described in Clause 14.5 , delayed transmission between the Client, Saxo Capital Markets and/or the Counterparties, latency or interruptions in internet services from the Client’s, Saxo Capital Markets’ and/or the Counterparties’ internet service providers, or latency in the Client’s Saxo Capital Market’s and/or the Counterparties’ software. If automatic order execution is offered to the Client, Saxo Capital Markets shall be entitled to disregard any indicative price previously notified to the Client, and to execute the Client’s order on the basis of the market value at the time at which the order from the Client was triggered. If the stop-loss orders are placed alongside the Client’s positions, the Client acknowledges that Saxo Capital Markets shall be entitled to execute the Client’s stop-loss order on the basis of the market value at the time at which the stop-loss order was triggered and thereafter. iii prices offered by Saxo Capital Markets regarding the
sale, purchase or exercise of Contract Options reflect the price of the relevant Exchange-traded Financial Product. Due to delays from the Client’s execution of an order or instruction regarding a Contract Option to the execution of the relevant Exchange-traded Financial Product on the Exchange, the price as listed on the Trading Platform is subject to change, in order for the Contract Option to reflect the price of the relevant Exchange-traded Financial Product at the time of its execution or exercise (as applicable); iv the Trading Platform may be available in several
versions, which may be different in various aspects including, but not limited to the level of security applied, products and services available etc. Saxo Capital Markets shall not be liable to the Client for any loss, expense, cost or liability suffered or incurred by the Client due to the Client using a version different from Saxo Capital Markets’ current version with all available updates installed;
v the Client shall be responsible for all orders, and for the accuracy of all information sent via the internet using the Client’s name, and any other personal identification means implemented to identify the Client;
vi the Client is obliged to keep passwords secret and ensure that third parties do not obtain access to the Client’s trading facilities;
vii regardless of the fact that the Trading Platform might confirm that a Contract is executed immediately when the Client transmits instructions via the Trading Platform, it is the Settlement/Trade Confirmation forwarded by Saxo Capital Markets or made available to the Client on the Trading Platform which solely constitutes Saxo Capital Markets’ confirmation of execution.
4.4 Any instruction sent via the Trading Platform, by email or phone by the Client shall only be deemed to have been received and shall only then constitute a valid instruction and/or binding Contract between Saxo Capital Markets and the Client when such instruction has been recorded as executed by Saxo Capital Markets and confirmed by Saxo Capital Markets to the Client through the Settlement/ Trade Confirmation and/or Account Statement, and the mere transmission of an instruction by the Client shall not constitute a binding Contract between Saxo Capital Markets and the Client.
4.5 On request from Saxo Capital Markets, the Client shall promptly give to Saxo Capital Markets any instructions required by Saxo Capital Markets. If the Client does not give such instructions promptly, Saxo Capital Markets may, at its reasonable discretion, take such steps at the Client’s cost, as Saxo Capital Markets considers necessary to protect its interests or the protection of the Client’s interests. This provision also applies in situations when Saxo Capital Markets is unable to contact the Client.
4.6 If the Client does not provide Saxo Capital Markets with notice of its intention to exercise an option, a Contract Option or another Contract which requires an instruction from the Client at the stipulated time, Saxo Capital Markets may treat the option, Contract Option or Contract as abandoned by the Client. If the Client wishes to exercise an option, Contract Option or another Contract (subject to whether the Contract Option is in the money or out of the money - see below), the Client must provide Saxo Capital Markets with notice thereof in reasonable time (and within applicable cut-off times) for Saxo Capital Markets to exercise the corresponding right under any contract equivalent to the Contract Option that Saxo Capital Markets has entered into with any Counterparty. Contract Options (put and call) that close one tick or more in the money on the last trading day will automatically be exercised, regardless of whether the Client has purchased or sold the Contract Option. The Client cannot instruct Saxo Capital Markets not to exercise Contract Options that are in the money at expiry, and cannot at any time instruct Saxo Capital Markets to exercise Contract Options that are out of the money.
4.7 Saxo Capital Markets applies a random method of assignment among its Clients’ Contract Options when Saxo Capital Markets is notified by its Counterparties that one or more short option positions have been assigned. Saxo Capital Markets’ allocation method randomly selects short Contract Options among all Saxo Capital Markets’ Clients’ positions, including Contract Options opened immediately prior to the assignment. All short Contract Options are liable for assignment at any time. If a short Contract Option is assigned, the Client is obliged, within the applicable time of delivery, to deliver the relevant amount of cash or assets in the case of a call Contract Option and the relevant amount of cash in the case of a put Contract Option, to effect settlement.
4.8 Saxo Capital Markets may (but shall not in any circumstances be obliged to) require confirmation in such form as Saxo Capital Markets may reasonably request if an instruction is to close an Account or remit money due to the Client or if it appears to Saxo Capital Markets that such confirmation is necessary or desirable.
4.9 Pursuant to general rules regarding Power of Attorney, the Client is liable to Saxo Capital Markets for losses which Saxo Capital Markets may suffer as a result of instructions from a person who has actual or ostensible authority to give Saxo Capital Markets instructions on behalf of the Client.
4.10 Saxo Capital Markets may refuse to act upon any instruction from any person authorised by the Client if Saxo Capital Markets can reasonably consider that the disposal pursuant to the instruction submitted would be in violation of the legislation relevant to the area, usual market practice, including but not limited to legislation on money laundering or insider trading, or if the disposal by Saxo Capital Markets will adversely affect the Client and/or Saxo Capital Markets’ financial situation.
4.11 Saxo Capital Markets shall act according to instructions as soon as practically possible and shall, as far as trading instructions are concerned, act in accordance with the Best Execution Policy. However if, after instructions are received, Saxo Capital Markets believes that it is not reasonably practicable to act upon such instructions within a reasonable time, Saxo Capital Markets may defer acting upon those instructions until it is, in Saxo Capital Markets’ reasonable opinion, practicable to do so or as soon as possible notify the Client that Saxo Capital Markets is refusing to act upon such instructions.
4.12 It is possible that errors may occur in the prices of transactions quoted by Saxo Capital Markets or a Counterparty, or the prices quoted on an Exchange. In such circumstances, without prejudice to any rights it may have under applicable Laws, Saxo Capital Markets shall not be bound by any Contract which purports to have been made (whether or not confirmed by Saxo Capital Markets) at a price which: i Saxo Capital Markets is able to substantiate to the
Client was materially incorrect at the time of the transaction; or
ii the Client knew, or ought to have reasonably been known in the circumstances, was materially incorrect at the time of the transaction.
In which case Saxo Capital Markets reserves the right to either 1) cancel the trade all together or 2) correct the erroneous price at which the trade was done to either the price at which Saxo Capital Markets hedged the trade or alternatively to the historic correct market price.
4.13 Trading strategies aimed at exploiting errors in prices and/ or concluding trades at off-market prices (commonly known as “sniping”) are not accepted by Saxo Capital Markets. Provided that Saxo Capital Markets can document that on the time of the conclusion of the trade there were errors in the prices, commissions, or in the Trading Platform, and provided Saxo Capital Markets has reasonably formed the view that the Client, has deliberately and/or systematically exploited or attempted to exploit such an error, Saxo Capital Markets is entitled to take one or more of the following countermeasures:
i adjust the price spreads available to the Client; ii restrict the Client’s access to streaming, instantly
tradable quotes, including providing manual quotation only;
iii retrieve from the Client’s Account any historic trading profits that Saxo Capital Markets can document have been gained through such abuse of liquidity at any time during the Client relationship; and/or
iv terminate the Client relationship immediately by giving written notice.
4.14 If the Client is more than one person (for example, joint Account holders):
i the liabilities of each person (Authorised Person) shall be joint and several;
ii Saxo Capital Markets may act upon instructions received from any one person who is, or appears to Saxo Capital Markets to be, such a person, whether or not such person is an Authorised Person;
iii any notice or other communication provided by Saxo Capital Markets to one person using the Client’s nominated primary email address shall be deemed to have been provided to the Client; and
iv the rights of Saxo Capital Markets under Clause 19 shall apply if an event described in Clause 19 shall be deemed to have occurred in respect of any one of such persons.
4.15 The Client agrees that Saxo Capital Markets may record all telephone conversations, internet conversations (chat), and meetings between the Client and Saxo Capital Markets and use such recordings, or transcripts from such recordings, as evidence towards any party (including, but not limited to, any regulatory authority and/or court of law) to whom Saxo Capital Markets at its reasonable discretion sees it to be desirable or necessary to disclose such information in any dispute or anticipated dispute between Saxo Capital Markets and the Client. However, technical reasons may prevent Saxo Capital Markets from recording a conversation, and recordings or transcripts made by Saxo Capital Markets will be destroyed in accordance with Saxo Capital Markets’ normal practice. Consequently, the Client should not rely on such recordings to be available.
4.16 When the Client instructs Saxo Capital Markets to enter into a position opposite to one or more of the Client’s open positions, Saxo Capital Markets will close out the opposite position in accordance with the FIFO principles unless the position has related orders or otherwise agreed
4.17 The Client agrees that Saxo Capital Markets has the right to, but not the obligation to close directly opposite positions. This applies not only when the positions are held on the on the same Account, but also when they are held on separate Accounts.
4.18 If the Client operates several Accounts (or sub-Accounts) and opposite positions are opened on different Accounts (or sub-Accounts). The Client is specifically made aware that unless closed manually, all such positions may be rolled over on a continuous basis and thereby consequently all incur a cost for such rollover.
5. SPECIAL NOTE ON THE USE OF THE TRADING PLATFORM
5.1 The technical requirements to which the Client’s IT equipment, operating system, internet connection etc. shall conform with are described on Saxo Capital Markets’ website at www.saxomarkets.com.au.
5.2 The Client shall enter their user ID and password when logging on to the Trading Entering an incorrect password five times in a row will automatically terminate the connection and block the user ID. Saxo Capital Markets informs the Client of the termination/blocking and the reasons for it, where possible, before the termination/blocking and if this is not possible immediately thereafter, unless giving such information would compromise objectively the security. The Client is obligated to notify Saxo Capital Markets at telephone 1300 660 734 without undue delay on becoming aware of unauthorised use of the Trading Platform, or if the Client suspects that the password has been misappropriated by a third party. to block their Account on the Trading Platform. The Client can then order a new password.
5.3 The Client can block their Trading Platform at any time by contacting Saxo Capital Markets at telephone 1300 660 734. Blocking the Trading Platform prevents other persons from accessing it. Open orders and positions placed on the Trading Platform before the blocking will not be affected by the blocking unless the Client specifically requests so, and the Client is responsible for deciding about their positions.
5.4 The right to use the Trading Platform is personal, and the Client shall not allow other persons to use their user ID and/ or their password. If the Client wants to allow a third party to trade on the Client’s Account on its behalf, the Client will need to appoint that third party as their Attorney in accordance with clause 4.2.
5.5 From the Trading Platform the Client can print reports on trading activities and their Account balances.
5.6 Where the Client has placed an order which they subsequently wish to cancel, the Client may request that the order be cancelled up until the time of execution. The Client is aware that Saxo Capital Markets is under no obligation to cancel the order where reasonable notice has not been given for Saxo Capital Markets to cancel the trade. A request for cancellation or an order can be made via the Trading Platform or by calling Saxo Capital Markets Client Trading. Requests concerning cancellation of orders generated when the margin is exceeded can only be made to Saxo Capital Markets Client Trading. An order shall not be considered to be cancelled until the Client has received a written confirmation from Saxo Capital Markets.
5.7 The following limitations on the Client’s liability, in case of abuse or other unauthorised use of the Trading Platform, shall apply:
i If Saxo Capital Markets proves that:
- the Client or a person to whom the Authorised Person has entrusted their user ID and/or their password, by grossly irresponsible conduct has made the unauthorised use by a third party possible, or - the Client or a person to whom the holder has entrusted their user ID and/or their password, has failed to inform Saxo Capital Markets as soon as possible after having become aware that their user ID and/or their password has become known to an unauthorised third person, or
- the unauthorised use is made by a person to whom the Client has disclosed the user ID and/or the password without the matter being covered by Subclause 5.7(ii),
the Client shall be liable for losses caused by unauthorised use of the Trading Platform.
ii The Client shall be liable without limitation if the unlawful use was made by someone with whom the Client has knowingly entrusted their user ID and/or password in circumstances where the Client realised or should have realised that there was an obvious risk of abuse as a result of such disclosure.
5.8 Saxo Capital Markets shall be liable for direct losses resulting from non-executed or defective executed orders, unless a non-executed or defective executed order is due to conditions for which the Client is liable. Saxo Capital Markets shall not be liable for any indirect losses.
5.9 Saxo Capital Markets shall not be liable for losses in cases of abnormal and unforeseeable circumstances beyond the control of Saxo Capital Markets, except as a result of Saxo Capital Markets’ gross negligence or wilful default.
5.10 Saxo Capital Markets shall not be responsible for losses resulting from the Client’s installation and use of the computer programs used on the Trading Platform, unless such liability follows from a law that cannot be excluded. The Client shall be responsible for ensuring that the Trading Platform is adequately insured against direct and indirect losses which may result from the installation and use of the computer programs in the Client’s computer system. Furthermore, the Client shall be obliged to make backup copies of data which, should such data be lost, might result in losses for the Client.
6. TRANSFER OF FUNDS TO THE CLIENT’S ACCOUNT AT SAXO CAPITAL MARKETS
6.1 Saxo Capital Markets only allows transfers to the Client’s Account from bank accounts held in the Client’s name, in order to secure the identity of the sender. Therefore, Saxo Capital Markets must receive sufficient information about the transfer from the sending bank to enable identification of the relevant Client and of the Account into which the funds will be credited. Accordingly, the time limits specified in Clauses 6.2 and 6.3 only apply where Saxo Capital Markets is provided with sufficient information to enable it to identify the Client as the sender and the Account into which the funds shall be credited.
6.2 For transfers of Australian Dollars from an account in an Australian bank, if Saxo Capital Markets receives the funds before 2 p.m. AEST on a Business Day, the funds will be available for trading in the Client’s Account without undue delay after Saxo Capital Markets has received the funds. If the transfer is received in the period between 2 p.m. AEST on a Business Day to 8 a.m. AEST on the following Business Day, the funds will be available for trading in the Account after 10.am. AEST on the following Business Day.
6.3 When the Client transfers funds in a currency other than Australian Dollars, the funds will be available for trading in the Account no later than two Business Days after the funds are received by Saxo Capital Markets. If Saxo Capital Markets receives the funds on a day that is not a Business Day or receives the funds after 2 p.m. AEST on a Business Day, the funds are considered to be received on the following Business Day and, consequently, the funds will be available for trading in the Account after 10.a.m AEST on the third following Business Day.
6.4 When the Client transfers funds between two Accounts held with Saxo Capital Markets, the funds are available for trading in the receiving Account on the day of the transfer.
6.5 The Client agrees that Saxo Capital Markets cannot be held liable for how the period of time it takes for funds sent to Saxo Capital Markets to become available for trading in their Account.
6.6 The Client agrees, that special events as described in Clause 29.4 can cause the crediting of funds to be delayed by up to three Business Days from the day that Saxo Capital Markets receives it.
7. MARGINS, SECURITY, PAYMENTS AND DELIVERY
7.1 The Client shall pay to Saxo Capital Markets on demand: i such sums of money as necessary to enable the Client
to satisfy the applicable margin requirement (whether it be initial or variation on the margin) as Saxo Capital Markets may require from time to time. In the case of a Contract effected by Saxo Capital Markets on an Exchange, such margin shall be not less than the amount or percentage stipulated by the relevant Exchange plus any additional margin that Saxo Capital Markets ,at its reasonable discretion, may require;
ii such sums of money as may from time to time be due to Saxo Capital Markets under a Contract and such sums as may be required in or towards clearance of any debit balance on any Account;
iii such sums of money as Saxo Capital Markets may from time to time require as Collateral for the Client’s obligations to Saxo Capital Markets; and
iv any amount to maintain a positive cash-balance on any and all Account(s).
7.2 When dealing with Contract Options, Saxo Capital Markets will enter into a contract with its Counterparties which is identical in all respects to the Contract Option between Saxo Capital Markets and the Client and Saxo Capital Markets may under such Counterparty contract be required to deliver additional margin from time to time. Saxo Capital Markets may by giving reasonable notice change the margin requirement towards the Client to reflect changes in applicable margin requirements for Saxo Capital Markets from time to time under any Counterparty contract.
7.3 If the Client makes any payment which is subject to any price fluctuations, withholding or deduction, the Client shall pay to Saxo Capital Markets such additional amount to ensure that the amount actually received by Saxo Capital Markets will equal the full amount Saxo Capital Markets would have received had no price fluctuations, withholding or deduction been made.
7.4 Payments into the Client’s Account are documented as being received by Saxo Capital Markets on the condition that Saxo Capital Markets does ultimately receive the amount in question. This shall apply irrespective of whether receipt of the payment has been explicitly stated in receipts or other notices of or requests for payment.
7.5 With the prior written agreement of Saxo Capital Markets on each occasion, the Client may provide Saxo Capital Markets with a guarantee or indemnity from a person and in a form acceptable to Saxo Capital Markets instead of cash for the purpose of complying with its obligations to pay money to Saxo Capital Markets.
7.6 The Client may not create or allow to subsist any security interest (as defined in the Personal Property Security Act 2009) over any assets held on the Client’s Account with Saxo Capital Markets (other than security interests in favour of entities in the Saxo Bank Group. Any pledge of assets towards another Saxo Capital Markets entity is subject to the approval of Saxo Bank A/S.
7.7 The Client directs Saxo Capital Markets to arrange for any Collateral to be held by an intermediate broker or eligible custodian, appointed by Saxo Capital Markets, and the intermediate broker or eligible custodian shall be responsible for claiming and receiving all income and other rights accruing to the Client.
7.8 The Client directs Saxo Capital Markets to:
i pass on any money received from the Client in order to satisfy Saxo Capital Markets’ obligations to any third party that have arisen in relation to an order placed by Saxo Capital Markets on behalf of the Client or in relation to Counterparties in relation to the Client’s transaction with Saxo Capital Markets (“Obligations”); ii charge, pledge or grant a security arrangement
over Cash in order to satisfy Saxo Capital Markets’ Obligations to any third party in which case the Cash may or may not be held in the Client’s name;
iii lend Security to any third party in which case the Security may or may not be registered in the Client’s name; and
iv return to the Client equivalent Security other than the original Security.
7.9 Saxo Capital Markets will not be obliged to account to the Client for any income received by Saxo Capital Markets as a result of carrying out any of the activities described in this Clause. For the avoidance of doubt, any interest earned on the Client’s Account will be retained by Saxo Capital Markets.
7.10 The Client will be obliged to promptly deliver any money or property deliverable by it under a Contract in accordance with the terms of that Contract and with any instructions given by Saxo Capital Markets for the purpose of enabling Saxo Capital Markets to perform its Obligations under any corresponding contract entered into between Saxo Capital Markets and a third party.
7.11 If the Client fails to provide any sums of money necessary to satisfy a margin requirement or other sum due under the Terms in respect of any transaction, Saxo Capital Markets may in its reasonable discretion reduce a Client’s exposure by closing one of more, or all of the clients leveraged open positions with Saxo Capital Markets without notice to the Client and apply any proceeds thereof to payment of any amounts due to Saxo Capital Markets. This issue is further addressed in Clause 8.2 and Clause 19.
7.12 If the Client fails to make any payment when it falls due, the Client shall pay interest (from the due date and until payment takes place) on the outstanding amount at the rate stated in the Commissions, Charges & Margin Schedule.
7.13 Saxo Capital Markets will have the right, in addition to any other rights it may have under the Terms, or under applicable Laws, to limit the size of the Client’s open positions (net or gross) and to refuse orders to establish new positions. Saxo Capital Markets will inform the Client as soon as possible regarding such refused orders and the reason for the refusals. Situations where Saxo Capital Markets may exercise such right include, but are not limited to, where:
i Saxo Capital Markets has reason to believe that the Client may be in possession of Inside Information; ii Saxo Capital Markets considers that there are
abnormal trading conditions; or
iii the Client has a negative cash-balance on any Account.
7.14 Settlement of Contract Options shall correspond to the settlement of the relevant Exchange traded option in accordance with the Market Rules and terms and conditions applicable to the relevant Exchange traded option. For Contract Options on cash settled options, final settlement requires payment of the cash difference between the value of the underlying option and the strike price. For Contract Options regarding physically settled options, the Contract Options will settle into the respective contract, stock or other security. Contract Options regarding options on futures will settle into a future acquired at the strike price. Saxo Capital Markets will only allow the Client to trade Contract Options on Contracts with physical delivery if the Contract Option expires before the underlying Contract. Saxo Capital Markets will require Clients to close any Contract with physical delivery of commodities before they can be exercised (i.e. Saxo Capital Markets does not support physical delivery of commodities).
8. MARGIN TRADES
8.1 On the date of the opening of a Margin Trade between Saxo Capital Markets and the Client, Saxo Capital Markets may require the Client to have margin on the Account at least equivalent to the initial margin requirement.
8.2 Saxo Capital Markets’ margin requirement shall apply throughout the term of the Margin Trade. It is the Client’s responsibility continuously to ensure that sufficient margin is available in the Account at any time. If practicable Saxo Capital Markets shall notify the Client if the margin requirements are not met. If, at any time during the term of a Margin Trade, the margin available on the Account is not sufficient to cover Saxo Capital Markets’ margin requirement, the Client is obliged to reduce the amount of open Margin Trades or transfer adequate funds to Saxo Capital Markets. Even if the Client takes steps to reduce the size of open Margin Trades or to transfer sufficient funds to Saxo Capital Markets, Saxo Capital Markets may in its reasonable discretion: (i) close one or more, or all of the Client’s open Margin Trades or part of a Margin Trade; and/or (ii). where applicable, liquidate or sell Securities, financial products or other property forming part of the Client’s Account with the Client’s consent where Saxo Capital Markets considers that it is in the Client’s best interests to so act without assuming any responsibility towards the Client for such action including if Saxo Capital Markets considers the Client or a Margin Trade to be an unacceptable risk.
8.3 The Client shall expect, unless otherwise agreed and confirmed by Saxo Capital Markets that all of the Client’s open Margin Trades will be closed.
8.4 If the Client has opened more than one Account, Saxo Capital Markets is entitled to transfer money or, where applicable, Securities from one Account to another, even if such transfer will necessitate the closing of Margin Trades or other trades in the Account from which the transfer takes place.
8.5 Saxo Capital Markets’ general margin requirements for different types of Margin Trades are displayed on Saxo Capital Markets’ website at www.saxomarkets.com.au. However, Saxo Capital Markets reserves the right to determine specific margin requirements for individual Margin Trades.
8.6 The margin requirements for any Margin Trade that has yet to be opened are subject to change by Saxo Capital Markets without any further notice. When a Margin Trade has been opened and Saxo Capital Markets increases the margin requirement, Saxo Capital Markets is not allowed to close the Margin Trade at its reasonable discretion but only at the Client’s instruction or according to Saxo Capital Markets’ rights under the Terms. However, Saxo Capital Markets may increase the margin requirements if Saxo Capital Markets reasonably considers that the risk on an open Margin Trade has increased as compared to the risk on the date of the opening. If Saxo Capital Markets increases the margin requirements when a Margin Trade has been opened under this clause 8.6, Saxo Capital Markets shall provide reasonable notice of that change to the Client. If, as a result of Saxo Capital Markets increasing the margin requirements the Client receives a margin call, the Client must deposit the funds necessary to satisfy that margin call within 48 hours of the change in the margin requirements.
9. ACCOUNTS
9.1 Saxo Capital Markets will make available to the Client a Settlement/Trade Confirmation in respect of any transaction or Contract entered into by Saxo Capital Markets with or for the Client and in respect of any open position closed by Saxo Capital Markets for the Client. Settlement/Trade Confirmations will be available following the execution of the transaction.
9.2 Account Summaries and Account Statements are available to the Client through the Trading Platform. The Account Summary will normally be updated on a regular basis, generally daily, during Saxo Capital Markets’ opening hours. The Account Statement will normally be updated every Business Day with information for the previous Business Day.
By accepting the Terms the Client agrees not to receive any Account Statements or Account Summaries in printed form from Saxo Capital Markets other than upon specific request.
9.3 Any notice or other communication to be provided by Saxo Capital Markets under the Terms, including Account Statements and Settlement/Trade Confirmations, may be sent by Saxo Capital Markets to the Client in electronic form by email or by display on the Client’s Account Summary on the Trading Platform. The Client is obliged to provide Saxo Capital Markets with an email address for this purpose. An email message is considered received by the Client when sent from Saxo Capital Markets. Saxo Capital Markets is not responsible for any delay, alteration, redirection or any other modification the message may undergo after transmission from Saxo Capital Markets. A message on the Client’s Account on the Trading Platform is considered received by the Client when Saxo Capital Markets has placed the message on the Trading Platform. It is the responsibility of the Client to ensure that the Client’s software and hardware setup does not stand in the way of the Client receiving emails or get access to the Trading Platform from Saxo Capital Markets.
9.4 The Client is obliged to verify the contents of each document, including documents sent in electronic form from Saxo Capital Markets. Such documents shall, in the absence of manifest error, be deemed conclusive unless the Client notifies Saxo Capital Markets in writing to the contrary immediately after having received such document. In the event that the Client believes to have entered into a transaction or Contract, which should have produced a Settlement/Trade Confirmations or otherwise a posting on the Client’s Account, but the Client has not received such confirmation, the Client must inform Saxo Capital Markets immediately when the Client ought to have received such confirmation. In the absence of such information the transaction or Contract may, at Saxo Capital Markets’ reasonable discretion, be deemed nonexistent if Saxo reasonably believes that the transaction has not been processed.
10. COMMISSIONS, CHARGES, AND OTHER COSTS
10.1 The Client shall be obliged to pay Saxo Capital Markets the commissions and charges set out in the Commissions, Charges & Margin Schedule. The Commissions, Charges & Margin Schedule is available on Saxo Capital Markets’ website at www.saxomarkets.com.au and may be supplied to the Client on demand. All amounts payable to Saxo Capital Markets do not include goods and services tax (or other value added tax) (“GST”), net of any reduced input tax credit, unless otherwise stated.
10.2 Saxo Capital Markets may vary such commissions and charges by giving notice when the change is to the Client’s advantage, or the grounds for changes are due to external circumstances beyond Saxo Capital Markets’ control. Such circumstances include:
i changes in the relationship with Saxo Capital Markets’ Counterparties, which affect Saxo Capital Markets’ cost structures; and/or
ii changes in commissions and charges from Exchanges, clearing houses, information providers or other third party providers that are passed on to the Client by Saxo Capital Markets.
10.3 Saxo Capital Markets may vary commissions and charges, with 30 days of any increase, if :
i market conditions, including competitive behaviour, call for changes to Saxo Capital Markets conditions; ii Saxo Capital Markets for commercial reasons wishes
to change its general cost and pricing structure; and/ or
iii significant particulars of the Client, based on which individual conditions were provided, have changed.
10.4 In addition to such commissions and charges, the Client shall be obliged to pay all applicable GST, net of any reduced input tax credit and other taxes, storage and delivery charges, Exchange and clearing house fees and all other fees, liabilities, charges, duties, costs or expenses, payable or incurred by Saxo Capital Markets in connection with any Contract and/or in connection with maintaining the Client relationship. This clause 10.4 shall not apply to the in-house administration costs of Saxo Capital Markets in the nature of rent for premises, salaries and like expenses or taxes incurred on Saxo Capital Markets’ income.
10.5 Furthermore, Saxo Capital Markets shall be entitled to demand that the following expenses are paid separately by the Client:
i all extraordinary disbursements resulting from the Client relationship e.g. telephone, facsimile, courier, and postal expenses in case the Client requests hardcopy Settlement/Trade Confirmations, Account Statements etc. which Saxo Capital Markets could have delivered in electronic form;
ii any expenses of Saxo Capital Markets, caused by nonperformance by the Client, including a fee determined by Saxo Capital Markets in relation to forwarding of reminders, legal assistance etc; iii any expenses of Saxo Capital Markets in connection
with replies to inquiries by public authorities, pursuant to applicable Laws. including a fee determined by Saxo Capital Markets in relation to forwarding of transcripts and enclosures and for the preparation of copies; iv administration fees in connection with any Collateral,
and any expenses of Saxo Capital Markets in relation to a pledge, if provided, including any insurance premium payments; and
v any expenses of Saxo Capital Markets in connection with auditor’s comments/reports if such is requested by the Client.
Where practicable, Saxo Capital Markets will give the Client prior notice of these expenses.
10.6 The fees, liabilities, charges, duties, costs or expenses, payable will be charged either as a fixed amount corresponding to payments effected, or as a percentage or hourly rate corresponding to the service performed. The methods of calculation can be combined. Saxo Capital Markets reserves the right to introduce new fees, liabilities, charges, duties, costs or expenses and, where practicable, will give the Client prior notice of such fees, liabilities, charges, duties, costs or expenses.
10.7 Saxo Capital Markets may share commissions and charges with its associates, Introducing Brokers or other third parties or receive remuneration from them in respect of Contracts entered into by Saxo Capital Markets. Details of any such remuneration or sharing arrangement will not be set out on the relevant Settlement/Trade Confirmations, however Clients on-boarded via an Introducing Broker on or after the 1 July 2013, will received this information at the time of application via a payment schedule page. Saxo Capital Markets (or any associate) may benefit from commission, markup, markdown or any other remuneration where it acts for the Counterparty to a Contract.
10.8 The Client agrees that Saxo Capital Markets may receive commissions or other remuneration in connection with this agreement or any transactions contemplated by it. Saxo Capital Markets, as required under Future of Financial Advice rules and regulations, will upon reasonable request and to
the extent possible disclose to the Client the amount of commission, markup, markdown or any other remuneration paid by Saxo Capital Markets to any Introducing Broker or other third party.
10.9 Unless specified otherwise in the Terms, all amounts due to Saxo Capital Markets (or Agents used by Saxo Capital Markets) under the Terms shall, at Saxo Capital Markets’ option:
i be deducted from any funds held by Saxo Capital Markets for the Client; or
ii be paid by the Client in accordance with the provisions of the relevant difference Account, Settlement/Trade Confirmation or other advice.
10.10 In respect of any transactions to be effected OTC, Saxo Capital Markets shall be entitled to quote prices at which it is prepared to trade with the Client. Save where Saxo Capital Markets exercises any rights it may have under the Terms to close a Contract, it is the Client’s responsibility to decide whether or not it wishes to enter into a Contract at such prices.
10.11 Furthermore, the Client accepts that the procedures described in Clause 10 and Clause 13 may result in additional indirect costs for the Client.
11. INTEREST AND CURRENCY CONVERSIONS
11.1 Subject to this Clause below and save as otherwise agreed in writing, Saxo Capital Markets shall not be liable to:
i pay interest to the Client on any credit balance in any Account or on any other sum held by Saxo Capital Markets (which for the avoidance of doubt will be retained by Saxo Capital Markets); or
ii account to the Client for any interest received by Saxo Capital Markets on such sums or in connection with any Contract.
11.2 The Client is entitled to interest on the basis of the Client’s positive Net Free Equity in accordance with the Commissions, Charges & Margin Schedule.
11.3 The Client is obliged to pay interest on the basis of the Client’s negative Net Free Equity in accordance with the Commissions, Charges & Margin Schedule.
11.4 Saxo Capital Markets may vary such interest rates and/or thresholds for interest calculation by giving notice at 30 days’ notice if
i market conditions, including competitive behaviour, call for a change to Saxo Capital Markets conditions; ii Saxo Capital Markets wishes to change its general
commission, fee and pricing structure for commercial reasons; and/or
iii changes to significant particulars of the Client, based on which individual conditions were provided, occurs. The Client will be taken to have accepted such changes if they do not, before the proposed date of their entry into force, notify Saxo Capital Markets that they do not accept them.
11.5 Saxo Capital Markets is entitled, but shall not in any circumstances be obliged, to convert:
i any realised gains, losses, option premiums, commissions, interest charges and brokerage fees which arise in a currency other than the Client’s base currency (i.e. the currency in which the Client’s Account is denominated) to the Client’s base currency;
ii any cash currency balance to another cash currency balance for the purpose of purchasing an asset denominated in a currency other than the Client’s base currency;
iii any monies held by Saxo Capital Markets for the Client into such other currency as Saxo Capital Markets considers necessary or desirable to cover the Client’s obligations and liabilities in that currency.
11.6 Whenever Saxo Capital Markets conducts currency conversions, Saxo Capital Markets will do so at such reasonable rate of exchange as Saxo Capital Markets selects. Saxo Capital Markets shall be entitled to add a markup to the exchange rates. The prevailing markup is defined in the Commissions, Charges & Margin Schedule.
12. EQUITABLE MORTGAGE
12.1 For the purpose of securing all liabilities and obligations of the Client to Saxo Capital Markets whatsoever, the Client assigns to Saxo Capital Markets by way of equitable mortgage all of its right, title and interest in all Cash. Saxo Capital Markets may at the Client’s expense apply for any registration, perfection or give any notification in connection with a security interest created under this agreement, and may complete and submit all relevant documents (including financing statements, financing change statements, and amendment demands).
12.2 If an Event of Default occurs, Saxo Capital Markets may in its reasonable discretion (i) transfer the Collateral to its name, and (ii) do anything else the law allows an owner or receiver of the Collateral to do. Saxo Capital Markets need not give any notice or demand or allow any time to elapse before exercising any right in respect of Cash under this Clause unless it is a requirement of law which cannot be excluded. A reference to a notice under this Clause includes any notice under the Personal Property Securities Act 2009 (Cwlth) (including a notice of a verification statement). A person who acquires Cash from Saxo Capital Markets need not check whether Saxo Capital Markets has the right to dispose of that Cash and the Client may not challenge that acquirer’s rights.
12.3 The Client must not dispose of any right, title or interest in any Collateral or allow any security interest to subsist over any Collateral.
12.4 The Client must do anything (such as obtaining consents, signing and producing documents, getting documents completed and signed and supplying information) which Saxo Capital Markets asks and considers necessary for the purposes of (i) ensuring that the security interest is enforceable, perfected and otherwise effective and binding on the Client, (ii) enabling Saxo Capital Markets to apply for any registration, or give any notification, in connection with the security interest so that the security interest has the priority required by Saxo Capital Markets, or (iii) enabling Saxo Capital Markets to exercise rights in connection with the security interest.
12.5 The Client irrevocably appoints Saxo Capital Markets as its attorney to do anything which the Client can lawfully authorise an attorney to do in connection with the Cash or which Saxo Capital Markets believes is expedient to give effect to its rights. Saxo Capital Markets may delegate its powers as attorney and it and any delegate may act even if this involves a conflict of duty or a personal interest. The Client agrees to ratify any acts of the attorney under this Clause.
13. PAYMENTS, NETTING AGREEMENT AND CLOSE OUT NETTING AGREEMENT
13.1 Saxo Capital Markets may retain, or make deductions from, any amounts which Saxo Capital Markets owes to or is holding for the Client and may apply those amounts in satisfaction of any amounts that are due from the Client to Saxo Capital Markets, Saxo Bank Group or their Associates.
13.2 Subject to Clause 8.2, the Client authorises Saxo Capital Markets, at Saxo Capital Markets’ reasonable discretion, at any time and without notice or liability to the Client, to sell and/or charge in any manner any or all of the Client’s property of which Saxo Capital Markets or any of its associates or Agents has custody or control, and in order to use the amounts raised in satisfaction of any amounts that are due from the Client to Saxo Capital Markets, Saxo Bank Group or their Associates.
13.3 Without prejudice to Saxo Capital Markets’ other rights under the Terms or under applicable Laws, Saxo Capital Markets may, at any time and without notice, combine or consolidate all or any of the Accounts maintained by the Client with Saxo Capital Markets or any of its Associates and off-set any and all amounts owed to, or by, Saxo Capital Markets or any of its Associates in such manner as Saxo Capital Markets at its reasonable discretion may determine.
13.4 If on any date the same amounts are payable under the Terms by each party to the other in the same currency, then, each party’s obligations to make payment of any such amount will be automatically satisfied by netting. If the amounts are not in the same currency, the amounts are converted by Saxo Capital Markets in accordance with the principles referred to in Clause 11.
13.5 If the aggregate amount that is payable by one party exceeds the aggregate amount that is payable by the other party, then only the difference between those aggregate amounts shall be payable by the party from whom the larger aggregate sum is due and the obligations to make payment of each party will be satisfied and discharged.
13.6 If the Client, at any time during the Client relationship, has a negative cashbalance in any Account, Saxo Capital Markets is entitled but not obligated to net between the Client’s Accounts. The Client shall bear all the charges and any other costs associated with such netting in accordance with the Commissions, Charges & Margin Schedule.
13.7 If the Client relationship is terminated according to Clause 25, or otherwise under this agreement, or if an Event of Default occurs under Clause 19, then:
i Saxo Capital Markets may terminate any or all arrangements and transactions with the Client, including without limitation terminating and closing out Contracts and terminating arrangements where the Client has transferred Collateral to Saxo Capital Markets under these Terms or otherwise (each a “Terminated Transaction”). Saxo Capital Markets shall do this by giving notice to the Client specifying the Terminated Transactions, and Saxo Capital Markets may close out any Contracts which are Terminated Transactions;
ii as soon as practicable after delivering a termination notice under Clause 13.7.i. above, Saxo Capital Markets shall calculate the amounts payable under each terminated and closed out Terminated Transaction (in relation to Contracts, this shall be done in accordance with the terms of each Contract and the principles set forth in Clauses 13.8, 13.9, 13.10 and 13.11). The intention behind these calculations is to place a monetary value on every Terminated Transaction in order to calculate a single net amount owed to or by Saxo Capital Markets.
iii Saxo Capital Markets shall aggregate all amounts calculated by it under Clause 13.7.ii as being payable by it, and shall set-off that aggregate amount against the aggregate of all amounts calculated by it under Clause 13.7.ii as being payable by the Client, and only the difference between those aggregate amounts shall be payable by the party from whom the larger aggregate sum is due and the obligations to make payment of each party will be satisfied and discharged.
13.8 Rates based on which the Contracts shall be closed shall be market rates applicable on the day on which Saxo Capital Markets decides to close the Contracts.
13.9 Saxo Capital Markets may at its reasonable discretion determine the rates by obtaining an offer from a Market Maker in the asset in question or by applying rates from electronic financial information systems.
13.10 When determining the value of the Contracts to be netted, Saxo Capital Markets shall apply its usual spreads and include all costs and other charges.
13.11 This netting agreement shall be binding towards the estate and creditors of the parties to the Client.
13.12 To the extent any dealing by Saxo Capital Markets under this Clause 13 or otherwise under this agreement involves a dealing with money that is held in an Account described in section 981B of the Corporations Act, the Client authorises and approves all such dealings. This authorisation constitutes a written direction on the part of the Client to make any corresponding payments for the purposes of regulation 7.8.02 of the Corporations Regulations.
14. MARKET MAKING
14.1 When Saxo Capital Markets arranges (as Principal) for an order to be placed with a third party dealer/broker in order to enable a Contract between Saxo Capital Markets and the Client to be effect on an Exchange, clearing house or other organisation or market involved in the conclusion, execution or settlement of a transaction or Contract, Saxo Capital Markets will not be a party to such a trade as such orders will be executed in the trading system of the relevant Exchange, clearing house or other organisation or market at the best price and the most favourable conditions available at the time of the order or according to the Client’s specific instructions, e.g. in a situation where the Client has chosen to limit the order. Saxo Capital Markets will not include any additional spread in the price of the execution achieved for the Client but will be remunerated according to the Commissions, Charges & Margin Schedule.
14.2 The Client accepts that Capital Markets may act as a Market Maker in respect of the OTCs.
14.3 Saxo Capital Markets will, upon the Client’s written request, in general disclose to the Client whether Saxo Capital Markets may act as a Market Maker in certain financial products.
14.4 When acting as a Market Maker, Saxo Capital Markets will under normal market circumstances quote the Client bid and ask prices.
14.5 In order for Saxo Capital Markets to quote prices with the swiftness normally associated with speculative trading, Saxo Capital Markets may have to rely on available price or availability information that may later prove to be faulty due to circumstances including (but not limited to) those circumstances described in Clause 4.3 (and like circumstances), specific market circumstances, for instance, lack of liquidity in or suspension of an asset or errors in feeds from information providers or quotes from Counterparties. If so and Saxo Capital Markets has acted in good faith when providing the price to the Client, Saxo Capital Markets may cancel the trade with the Client but shall do so within
