This Service Agreement (hereinafter referred to as "Agreement") is a legal contract between FXcast Corporation, (hereinafter referred to as "FXcast") its successors and assigns, and the party (hereinafter referred to as "Trader" or "Client") executing this document. In connection with opening an account with FXcast to speculate and purchase and / or sell financial instruments, which may be purchased and / or sold to FXcast or through FXcast for Trader's account(s), Trader acknowledges and agrees as follows:
1. FOREIGN EXCHANGE TRADING
1.1. Over-The-Counter Foreign Exchange: Trader may purchase and / or sell cash or spot foreign currency (hereinafter referred to as "Currency") and any similar financial instruments, through the over-the-counter foreign exchange markets (collectively referred to as "OTCFX"), where FXcast may act as Trader's counterparty in the purchase and / or sale of the Currency.
1.2. Authorization to Trade OTCFX: FXcast is authorized to purchase and sell OTCFX for Trader's account(s) with counterparty banks or sophisticated institutions or participants, in accordance with Trader's oral or written or computer instructions. FXcast is authorized to execute all orders with such banks or sophisticated institutions or participants as FXcast deems appropriate.
1.3. Margins and Deposit Requirements: Trader shall provide to and maintain with FXcast margin in such amounts and in such forms as FXcast, in its sole discretion, may require or as may be otherwise required by applicable regulation. Trader is aware and acknowledges that the requirements for margin vary, and may be changed from time to time, at FXcast's sole discretion, based upon account size, volume traded, and market conditions. Such margin requirements may be greater or less than margins required by a counterparty bank. FXcast may change margin requirements at any time. Trader agrees to deposit by immediate wire transfer such additional margin when and as required by FXcast and will promptly meet all margin calls in such mode of transmission as FXcast in its sole discretion designates. FXcast may at any time proceed to liquidate Trader's account in accordance with paragraph 3.3 and any failure by FXcast to enforce its rights hereunder shall not be deemed a waiver by FXcast to enforce its rights thereafter. No previous margin requirement by FXcast shall preclude FXcast from increasing that requirement without prior notice.
1.4. Settlement Date, Rollovers and Delivery: With respect to purchases or sales of Currencies through an OTCFX account, Trader agrees to instruct FXcast as to the offset or rollover of a Currency position. Except as provided herein, during the term of the Currency position, Trader shall give FXcast instructions for rolling the Currency position no later than two hours prior to the settlement of trading in the Currency contract on the day Trader intends to rollover a Currency position. In addition, Trader, by noon of the business day before the settlement date of the Currency contract, shall instruct FXcast whether to deliver, offset or rollover the Currency position. In the absence of timely instructions from Trader, FXcast is authorized, at FXcast's absolute discretion, to deliver, rollover or offset all or any portion of the Currency positions in the OTCFX account(s) for Trader's Account(s) and at Trader's risk. Trader's account(s) shall be charged commissions, at broker's rates, upon the rollover or offset of a Currency position. Trader also acknowledges that the purchase or sale of a Currency always anticipates the accepting or making of delivery, though in most cases the accepting or making of delivery will not actually occur.
1.5. Interest / Premium: Interest on open positions held past 17:00 EST / EDT may be charged or paid on a daily basis depending on the underlying position. Trader acknowledges that such interest rates shall be determined by FXcast, in its sole discretion.
1.6. Price Differences: Trader acknowledges that OTCFX business is not traded on an organized exchange and therefore does not require open-outcry. Even though quotations or prices are afforded by many computer-based component systems, the quotations and prices may vary due to various reasons, including without limitation to spread sizes, markups and markdowns, commissions, fees, delays in transmission and market liquidity.
2. INVESTMENT FUNDS TRADING
2.1. Over-The-Counter Funds Market: Trader may purchase and / or sell shares of investment funds (hereinafter referred to as "Funds") and any similar financial instruments, through the over-the-counter funds market (referred to as "OTCFM"), where FXcast may act as Trader's counterparty in the purchase and / or sale of the Funds.
2.2. Authorization to Trade OTCFM: FXcast is authorized to purchase and sell OTCFM for Trader's account(s) with counterparty banks or sophisticated institutions or regulated investment firms, in accordance with Trader's oral or written or computer instructions. FXcast is authorized to execute all orders with such banks or sophisticated institutions or regulated investment firms as FXcast deems appropriate.
2.3. Funds Structure and Objectives: FXcast shall invest Fund assets into one or more investment funds (hereinafter referred to as "Primary Funds") offered by counterparty banks or sophisticated institutions or regulated investment firms. Trader acknowledges and agrees that FXcast shall not disclose to Trader or to any third party information on particular Primary Funds where the Fund assets are invested. FXcast may in its sole discretion change the Primary Funds or reallocate assets invested in the Primary Funds at any time, without prior notice to Trader, and all expenses arising from the change or reallocation shall be deducted from Fund's net asset value. When collecting cash from new investors in Fund, FXcast may delay transfer of the cash into the Primary Funds to group the cash into larger transactions as FXcast deems appropriate, and all the lost profits arising from the delay in the transfer of cash into the Primary Funds shall be deducted from Fund's net asset value. The Funds offered by FXcast may be distinguished by different geographical areas, investment styles and objectives, industries and currencies, providing opportunity for Trader to spread investment risk.
2.4. Funds Pricing Methods: For variable-yield Fund FXcast shall calculate Fund price as net asset value of the Fund divided by the Fund's shares outstanding and then decreased for the charges, expenses and fees as FXcast deems appropriate. Any Primary Fund's net assets denominated in currency other than the denomination currency of Fund shall be converted using the prevailing market rates as obtained from one or more banks or dealers or FXcast. For fixed-yield Fund FXcast shall determine Fund price based on a fixed yield as determined by FXcast from time to time as FXcast deems appropriate, provided that FXcast may not determine a negative fixed yield in time intervals when the Primary Funds of the Fund record total profit. Trader acknowledges and agrees that FXcast may quote the Fund prices in any time intervals and that the spread between Fund's Bid and Ask price shall be determined by FXcast as FXcast deems appropriate. If any Fund price quote is unacceptable to the Trader, Trader's only recourse is to close existing positions Trader maintains on the particular Fund offered by FXcast. In light of FXcast providing access to investment funds for investors with tiny amounts of cash, Trader acknowledges that in the process of investing in the Primary Funds various types of charges, expenses and costly organizational overheads may arise and that the only firm pricing policy FXcast adheres to when quoting the Fund prices, is to attempt to make the performance of the Funds competitive with similar funds offered by other participants in the international financial industry.
2.5. Additional Charges and Expenses: Management Fee that covers all investment management, investment advisory, and distribution services provided in relation to the relevant Fund and all operating, administrative and servicing expenses of the Fund shall be subtracted from the Fund's net asset value and shall reflect into the Fund's price quoted by FXcast and shall not be charged separately. Fund's Performance Fee shall also be subtracted from the Fund's net asset value and shall reflect into the Fund's price quoted by FXcast and shall not be charged separately. Management Fee and Performance Fee shall be calculated as a percentage of Fund's net asset value, accrued and charged daily, and shall be determined by FXcast as FXcast deems appropriate.
2.6. No Dividends on Funds: Trader acknowledges and agrees that Funds offered by FXcast do not pay dividends, and that the only profit Trader is able to collect from investing in Funds shall be derived from increase in price of the particular Fund the Trader invests in.
2.7. Prevention of Market Timing Practices: FXcast does not allow investments which are associated with Market Timing Practices as such practices may adversely affect the interests of other investors in the same Fund. In general, market timing refers to the investment behavior of an individual or company or a group of individuals or companies buying, selling or exchanging shares or other securities on the basis of predetermined market indicators by taking advantage of time differences and / or imperfections or deficiencies in the method of determination of the net asset value and Fund prices. Market timers may also include individuals or groups of individuals whose securities transactions seem to follow a timing pattern or are characterized by frequent or large exchanges. In the event of Trader employing the Market Timing Practices, Trader agrees and acknowledges that FXcast may in FXcast's sole discretion take one or more, or any portion of, the following actions: (i) close Trader's account; (ii) suspend Trader's account for an indefinite period of time; (iii) carry out an investigation on Trader's account for an indefinite period of time; (iv) charge a penalty fee to Trader in the same or greater amount of money that resulted from Trader using Market Timing Practices.
3. COMMON SERVICE PROVISIONS
3.1. Governmental, Counterparty Institution and Interbanking System Rules: All transactions under this Agreement shall be subject to the constitution, by-laws, rules, regulations, customs, usage, rulings and interpretations of the counterparty institution or other interbank market (and its clearing organization, if any) where executed and to all applicable laws and regulations. If any statute shall hereafter be enacted or any rule or regulation shall hereafter be adopted by any governmental authority, or a contract market or clearing organization which shall be binding upon FXcast and shall affect in any manner or be inconsistent with any of the provisions hereof, the affected provisions of this Agreement shall be deemed modified or superseded, as the case may be by the applicable provisions of such statute, rule or regulation, and all other provisions of this Agreement and provisions so modified shall in all respects continue in full force and effect. Trader acknowledges that all transactions under this Agreement are subject to the aforementioned regulatory requirements and Trader shall not thereby be given any independent legal or contractual rights with respect to such requirements.
3.2. Collateral Terms: All funds, securities, currencies, and other property of Trader which FXcast or its affiliates may at any time be carrying for Trader or which may at any time be in its possession or control or carried on its books for any purpose, including safekeeping, are to be held by FXcast as security and subject to a general lien and right of set-off for liabilities of Trader to FXcast whether or not FXcast has made advances in connection with such securities, commodities, currencies or other property, and irrespective of the number of accounts Trader may have with FXcast. FXcast may in its discretion, at any time and from time to time, without notice to Trader, apply and / or transfer any or all funds or other property of Trader between any of Trader's accounts. Trader hereby also grants to FXcast the right to pledge, re-pledge, hypothecate, invest or loan, either separately or with the property of other Traders, to itself as broker or to others, any securities or other property of Trader held by FXcast as margin or security. FXcast shall at no time be required to deliver to Trader the identical property delivered to or purchased by FXcast for any account of Trader. This authorization shall apply to all accounts carried by FXcast for Trader and shall remain in full force until all accounts are fully paid for by Trader or notice of revocation is sent by FXcast from its home office.
3.3. Liquidation of Accounts and Payment of Deficit Balances: In the event of (a) the death or judicial declaration of incompetence of Trader; (b) the filing of a petition in bankruptcy, or a petition for the appointment of a receiver, or the institution of any insolvency or similar proceeding by or against Trader; (c) the filing of an attachment against any of Trader's accounts carried by FXcast, (d) insufficient margin, or FXcast's determination that any collateral deposited to protect one or more accounts of Trader is inadequate, regardless of current market quotations, to secure the account; (e) Trader's failure to provide FXcast any information requested pursuant to this agreement; or (f) any other circumstances or developments that FXcast deems appropriate for its protection, and in FXcast's sole discretion, it may take one or more, or any portion of, the following actions: (1) satisfy any obligation Trader may have to FXcast, either directly or by way of guaranty of suretyship, out of any of Trader's funds or property in its custody or control; (2) sell any or purchase any or all financial instruments held or carried for Trader; and (3) cancel any or all outstanding orders or contracts, or any other commitments made on behalf of Trader. Any of the above actions may be taken without demand for margin or additional margin, without prior notice of sale or purchase or other notice to Trader, Trader's personal representatives, heirs, executors, administrators, trustees, legatees or assigns and regardless of whether the ownership interest shall be solely Trader's or held jointly with others. In liquidation of Trader's long or short positions, FXcast may, in its sole discretion, offset in the same settlement or it may initiate new long or short positions in order to establish a spread or straddle which in FXcast's sole judgment may be advisable to protect or reduce existing positions in Trader's account. Any sales or purchases hereunder may be made according to FXcast's judgment and at its discretion with any interbank or other exchange market where such business is then usually transacted or at a public auction or private sale, and FXcast may purchase the whole or any part thereof free from any right of redemption. Trader shall at all times be liable for the payment of any deficit balance of Trader upon demand by FXcast and in all cases, Trader shall be liable for any deficiency remaining in Trader's account(s) in the event of the liquidation thereof in whole or in part by FXcast or by Trader. In the event the proceeds realized pursuant to this authorization are insufficient for the payment of all liabilities of Trader due to FXcast, trader shall promptly pay upon demand, the deficit and all unpaid liabilities, together with interest thereon equal to three (3) percentage points above the then prevailing prime rate at FXcast's principal bank or the maximum interest rate allowed by law, whichever is lower, and all costs of collection, including attorney's fees, witness fees, travel expenses and the like. In the event FXcast incurs expenses other than for the collection of deficits, with respect to any of the account(s) of Trader, Trader agrees to pay such expenses.
3.4. Charges: Trader shall pay such brokerage, commission and special service and all other charges (including, without limitation, markups and markdowns, statement charges, idle account charges, order cancellation charges, account transfer charges or other charges), fees (including, without limitation, fees imposed by any interbank agency, bank, contract markets or other regulatory or self-regulatory organizations) arising out of FXcast providing services hereunder. FXcast may change its commission, charges, and / or fees without notice. Trader agrees to be liable to FXcast for interest on amounts due from Trader to FXcast at an interest rate equal to three (3) percentage points above the then prevailing prime rate at FXcast principal bank or the maximum interest rate allowed by law, whichever is lower. All such charges shall be paid by Trader as they are incurred, or as FXcast in its sole and absolute discretion, may determine, and Trader hereby authorizes FXcast to withdraw the amount of any such charges from Trader's accounts(s). FXcast and Trader agree and confirm that all prices quoted to Trader are not inclusive of markups and markdowns.
3.5. Right to Refuse Orders: FXcast retains the right to limit the amount and / or total number of open positions that Trader may acquire or maintain at FXcast. FXcast will attempt to execute all orders, which it may, in its sole discretion, choose to accept in accordance with the oral or written or computer instructions of Trader's. FXcast reserves the right to refuse to accept any order. However, FXcast shall not be responsible for any loss or damage caused, directly or indirectly, by any events, actions or omissions beyond the control of FXcast including, without limitation, loss or damage resulting, directly or indirectly, from any delays or inaccuracies in the transmission of orders and / or information due to a breakdown in or failure of any transmission or communication facilities.
3.6. No Guarantees to Credit Worthiness: There are no guarantees to the credit worthiness of the counterparty of your positions. Every attempt has been made to deal with reputable creditworthy banks, institutions, clearing houses and other participants. Also, there may be certain cases in which trading liquidity decreases causing trading in a certain financial instruments to cease, thereby preventing the liquidation of an adverse position that may result in a substantial financial loss.
3.7. Internet Failures: Since FXcast does not control signal power, its reception or routing via Internet, configuration of your equipment or reliability of its connection, we cannot be responsible for communication failures, distortions or delays when trading on-line (via Internet).
3.8. Trading Agent: In the event that Trader grants trading authority or control over Trader's account to a third party (Trading Agent), whether on a discretionary or non-discretionary basis, FXcast shall in no way be responsible for reviewing Trader's choice of such Trading Agent or for making any recommendations with respect thereto. FXcast makes no representations or warranties concerning any Trading Agent; FXcast shall not be responsible for any loss to Trader occasioned by the actions of the Trading Agent; and FXcast does not, by implication or otherwise endorse or approve of the operating methods of the Trading Agent. If Trader gives the Trading Agent authority to exercise any of its rights over Trader's account, Trader does so at his own risk.
3.9. Password Protection: The Trader is obligated to keep passwords secret and ensure that third parties do not obtain access to the trading facilities. The Trader will be liable to FXcast for trades executed by means of the Trader's password even if such use may be wrongful.
3.10. Quoting Errors: Should quoting errors occur, which may include, but are not limited to, a dealer's mistype of a quote, a quote which is not representative of fair market prices, an erroneous price quote from a Trader, such as but not limited to a wrong big figure quote or an erroneous quote due to failure of hardware, software or communication lines or systems and / or inaccurate external data feeds provided by third-party vendors, FXcast will not be liable for the resulting errors in account balances. The foregoing list is not meant to be exhaustive and in the event of a quoting error, FXcast reserves the right to make the necessary corrections or adjustments on the account involved. Any dispute arising from such quoting errors will be resolved on a basis of a fair market value of a financial instrument at the time such an error occurred.
3.11. No Scalping: Trader agrees and acknowledges that the service provided by FXcast to Trader hereunder is not adapted for trading techniques commonly known as "scalping" or "picking" ("Scalping"). In the event of Trader employing the Scalping techniques, Trader agrees and acknowledges that FXcast may in FXcast's sole discretion take one or more, or any portion of, the following actions: (i) close Trader's account; (ii) suspend Trader's account for an indefinite period of time; (iii) carry out an investigation on Trader's account for an indefinite period of time; (iv) charge a penalty fee to Trader in the same or greater amount of money that resulted from Trader using Scalping techniques.
3.12. Account Hibernation: In the event Trader does not deposit funds into Trader's account and does not access Trader's account for ninety (90) days, FXcast may cancel all active orders, close all open positions and place the Trader's account into a hibernation state until the Trader returns and re-activates the Trader's account. Trader acknowledges that FXcast places inactive accounts into hibernation state in order to preserve computer resources.
3.13. Trading Recommendations, Signals and Alerts: Trader acknowledges that (i) any market recommendations and information, including the trading signals and alerts ("Trading Recommendations"), communicated to Trader by FXcast or by any person within the company or by any contributor on the FXcast's discussion channels ("Chat Rooms") or by any market analyst listed on the FXcast website ("Market Analysts"), does not constitute an offer to sell or the solicitation of an offer to buy any financial instrument, (ii) such Trading Recommendations, although based upon information obtained from sources believed by FXcast to be reliable, may be based solely on an opinion and that such information may be incomplete and may be unverified, and (iii) FXcast makes no representation, warranty or guarantee as to, and shall not be responsible for, the accuracy, completeness or profitability of any Trading Recommendations furnished to Trader.
3.14. Conflicts of Interest: Trader acknowledges that FXcast and / or its subsidiaries, officers, directors, affiliates, associates, stockholders or representatives may have positions in or may intend to buy or sell financial instruments, which are offered to Trader by FXcast or through FXcast, or which are subject of market recommendations furnished to Trader, and that the market positions of FXcast or any such subsidiary, officer, director, affiliate, associate, stockholder or representative may be opposing to the positions of Trader, and may not be consistent with the recommendations furnished to Trader by FXcast.
3.15. Taxation: Trader acknowledges that FXcast makes no representations concerning the tax implications or treatment of any financial instrument or contract offered by FXcast or through FXcast. Trader acknowledges and agrees that tax obligations of Trader are Trader's sole responsibility and that FXcast does not provide any advice, recommendation or information on tax obligations of Trader.
3.16. International Clientele and Jurisdiction: In light of FXcast offering financial instruments and other products and services ("Offerings") to international clientele subject to an enormous number of local, state and federal laws in many countries around the world, Trader acknowledges and agrees that it is Trader's responsibility to check with Trader's local, state and federal government, if FXcast and the Offerings and use or purchase of the Offerings are in accordance with all the relevant local, state and federal laws ("Relevant Laws"). If FXcast or the Offerings or use or purchase of the Offerings are not in accordance with the Relevant Laws, it is Trader's obligation to immediately stop using and purchasing Offerings, cancel all active orders, close all open positions held with FXcast and request closure of Trader's account(s) with FXcast. Trader agrees to indemnify and hold FXcast harmless from all damages or liability resulting form Trader's failure to comply with provisions stipulated in this paragraph.
4. REFERRING AFFILIATES
4.1. No Supervision or Liability: FXcast does not supervise the activities of referring and introducing agents and affiliates (hereinafter referred to as "Introducing Agent" or "Referring Affiliate" or "Referring Agent") and assumes no liability for any representations made by Referring Agent. FXcast and Referring Agent are wholly separate and independent from one another. The agreement between FXcast and Referring Agent does not establish a joint venture or partnership and Referring Agent is not an agent or employee of FXcast.
4.2. Third Party Trading Advice: FXcast does not control, and cannot endorse or vouch for the accuracy or completeness of any information or advice Client may have received or may receive in the future from Referring Agent or from any other person not employed by FXcast regarding trading of the financial instruments offered by FXcast or the risks involved in such trading.
4.3. Integral Risk Disclosure: FXcast provides risk disclosure information to all new Clients when they open accounts. Client should read that information carefully, and should not rely on any information to the contrary from any other source.
4.4. No Promises Regarding Profits: Client acknowledges that no promises have been made by FXcast or any individual associated with FXcast regarding future profits or losses in Client's account. Client understands that trading is very risky, and that many people lose money trading.
4.5. No Responsibility for Trading Advice: If Referring Agent or any other third party provides Client with information or advice regarding trading of the instruments offered by FXcast, FXcast shall in no way be responsible for any loss to Client resulting from Client's use of such information or advice.
4.6. Trading Systems and Courses: To the extent Client has previously been led to believe or believes that utilizing any third party trading system, course, program, research or recommendations provided by Referring Agent or any other third party will result in trading profits, Client hereby acknowledges, agrees and understands that all trading, including trading done pursuant to a system, course, program, research or recommendations of Referring Agent or another third party involves a substantial risk of loss. In addition, Client hereby acknowledges, agrees and understands that the use of a trading system, course, program, research or recommendations of Referring Agent or another third party will not necessarily result in profits, avoid losses or limit losses.
4.7. Non-Regulated Third Parties: Client understands that Referring Agent and many third party vendors of trading systems, courses, programs, research or recommendations are not regulated by a government agency.
4.8. Compensation for Referring: Client understands and acknowledges that FXcast may compensate Referring Agent for introducing Client to FXcast and that such compensation may be on a per-trade basis or other basis. Such compensation to the Referring Agent may require the Client to incur a markup, above and beyond the ordinary spread generally provided by FXcast. Further, the Client has a right to be informed of the precise nature of such remuneration.
4.9. Limited Referral Data Access: Client understands and agrees that if Client's account with FXcast is introduced by Referring Agent, that Referring Agent shall have a limited access, determined in FXcast's sole discretion, to data in Client's FXcast account, but the Referring Agent shall not have the right to enter into any trades on Client's account with FXcast.
5. GENERAL PROVISIONS
5.1. Risk Acknowledgment: Trader acknowledges that investments in leveraged and non-leveraged transactions are speculative, involve a high degree of risk, and are appropriate only for persons who can assume risk of loss in excess of their principal investment and margin deposit. Trader warrants that Trader is willing and able, financially and otherwise, to assume the risk of trading in financial instruments offered by FXcast, and in consideration of FXcast's carrying Trader's account(s), Trader agrees not to hold FXcast responsible for losses incurred through following its trading recommendations or suggestions or those of its employees, agents or representatives. Trader recognizes that guarantees of profit or freedom from loss are impossible of performance in trading. Trader acknowledges that Trader has received no such guarantees from FXcast or from any of its representatives or any Introducing Agent or other entity with whom Trader is conducting his / her FXcast account and has not entered into this agreement in consideration of or in reliance upon any such guarantees or similar representations. Trader acknowledges that he / she has been advised and understands the risk factors described in this Agreement and in the Risk Disclosure statement which has been provided to Trader.
5.2. Communications: Reports, statements, notices and any other communications may be transmitted to such address as Trader may from time to time designate in writing to FXcast. All communications so sent, whether by mail, electronic mail, telegraph messenger or otherwise, shall be deemed transmitted by FXcast when electronically submitted or deposited in the mail, or when received by a transmitting agent, and deemed delivered to Trader personally, whether actually received by Trader or not.
5.3. FXcast Responsibilities: FXcast will not be responsible for delays in the transmission of orders due to a breakdown or failure of transmission or communication facilities, electrical power outage or for any other cause beyond FXcast's control or anticipation. FXcast shall only be liable for its actions directly attributable to negligence, willful default or fraud on the part of FXcast. FXcast shall not be liable for losses arising from the default of any agent or any other party used by FXcast under this agreement.
5.4. Consent to Electronic Transmission: Client hereby consents to have Client's account information and trade confirmations available on the Internet in lieu of having such information delivered to Client via mail or e-mail. Client will be able to access account information via the FXcast website using Client's account login information to access the account. FXcast will post Client's account activity and Client will be able to generate daily, monthly and yearly reports of account activity as well as a report of each executed trade. Updated account information will be available no more than twenty-four (24) hours after any activity takes place on Client's account. FXcast may show a portion of trading activity in an aggregated form in order to optimize system performance, in which case Client will be able to request e-mail delivery of records of all trading activity that has been aggregated for optimization purposes. Posting of account information on Client's online account will be deemed delivery of confirmation and account statements. Account information will include trade confirmations with trade identifiers, purchase and sale rates, margin information if applicable, statements of profits and losses, as well as current open or pending positions.
5.5. Statements and Confirmation: Reports of the confirmation of orders and statements of accounts for Trader shall be deemed correct and shall be conclusive and binding upon Trader if not objected to immediately upon receipt and confirmed in writing within (1) day after transmittal to Trader by mail or otherwise. Margin calls shall be conclusive and binding unless objected to immediately in writing. In lieu of sending trade confirmation via postal mail, FXcast will provide Trader Internet access to view his / her account at any time with an online login. Written objections on Trader's part shall be directed to FXcast at its home office located at the most recent address as indicated on the FXcast website, and shall be deemed received only if actually delivered or mailed by registered mail, return receipt requested. Failure to object shall be deemed ratification of all actions taken by FXcast or FXcast's agents prior to Trader's receipt of said reports. Trader's failure to receive a trade confirmation shall not relieve Trader of the obligation to object as set out herein.
5.6. E-Mail and Address Acknowledgment: Client acknowledge that it is Client's obligation to immediately notify FXcast if there is a change in Client's electronic mail address, or other location to which the electronic records may be provided. Client acknowledges that it is Client's obligation to notify FXcast if there is a change in the address or other location to which paper records may be provided, if necessary.
5.8. Trader Representations and Warranties: Trader represents and warrants that: (a) Trader is of sound mind, legal age and legal competence; and, (b) No person other than Trader has or will have an interest in Trader's account(s); and, (c) Trader hereby warrants that regardless of any subsequent determination to the contrary, Trader is suitable to trade instruments offered by FXcast and is a sophisticated institution and / or market participant; and, (d) Trader is not now an employee of any exchange, any corporation in which any exchange owns a majority of the capital stock, any member of any exchange and / or firm registered on any exchange, or any bank, trust, or insurance company that trades the same instruments as those offered by FXcast, and in the event that Trader becomes so employed, Trader will promptly notify FXcast at its home office in writing of such employment; and, (e) All the information provided by the Trader, in the account opening and identification process on FXcast's website, is true, correct and complete as of the date hereof and Trader will notify FXcast promptly of any changes in such information.
5.9. Disclosure of Financial Information: The Trader represents and warrants that the financial information disclosed to FXcast is an accurate representation of the Trader's current financial condition. The Trader represents and warrants that the Trader has very carefully considered the portion of the Trader's assets which the Trader considers to be Risk Capital. The Trader recognizes that Risk Capital is the amount of money the Trader is willing to put at risk and if lost would not, in any way, change the Trader's lifestyle. The Trader agrees to immediately inform FXcast if the Trader's financial condition changes in such a way to reduce the Trader's Risk Capital.
5.10. No Guarantees: Trader acknowledges that Trader has no separate agreement with Trader's broker or any FXcast employee or agent regarding the trading in Trader's FXcast account, including any agreement to guarantee profits or limit losses in Trader's account. Trader understands that Trader is under an obligation to notify FXcast's Compliance Officer immediately in writing as to any agreement of this type. Further, Trader understands that any representations made by anyone concerning Trader's account that differ from any statements Trader receives from FXcast must be brought to the attention of FXcast's Compliance Officer immediately in writing. Trader understands that Trader must authorize every transaction prior to its execution, and any disputed transactions must be brought to the attention of FXcast's Compliance Officer pursuant to the notice requirements of this Agreement. Trader agrees to indemnify and hold FXcast harmless from all damages or liability resulting form Trader's failure to immediately notify FXcast's Compliance Officer of any of the occurrences referred to herein. All notices required under this section shall be sent to FXcast at its home office.
5.11. No Waiver or Amendment: No provision of this Agreement may be waived or amended unless the waiver or amendment is in writing and signed by both Trader and an authorized officer of FXcast. No waiver or amendment of this Agreement may be implied from any course of dealing between the parties or from any failure by FXcast or its agents to assert its rights under this Agreement on any occasion or series of occasions. No oral agreements or instructions to the contrary shall be recognized or enforceable. This instrument and the attachments hereto embody the entire agreement of the parties, superseding any and all prior written and oral agreements and there are no other terms, conditions or obligations other than those contained herein.
5.12. Severability: If any provisions hereof are deemed to be illegal or unenforceable by a court of competent jurisdiction, the enforceability or effectiveness of the remainder of the Agreement shall not be affected and this Agreement shall be enforceable without reference to the unenforceable provision.
5.13. Governing Law and Jurisdiction: This Agreement, the rights and obligations of the parties hereto, and any judicial or administrative action or proceeding arising directly or indirectly hereunder or in connection with the transactions contemplated hereby, whether brought by Trader or FXcast, shall be governed by, construed and enforced in all respects by the laws of the Antigua. Antigua is jurisdiction where FXcast is incorporated.
5.14. Binding Effect: This Agreement shall be continuous and shall cover, individually and collectively, all accounts of Trader at any time opened or reopened with FXcast irrespective of any change or changes at any time in the personnel of FXcast or its successors, assigns, or affiliates. This Agreement including all authorizations, shall inure to the benefit of FXcast and its successors and assigns, whether by merger, consolidation or otherwise, and shall be binding upon Trader and / or the estate, executor, trustees, administrators, legal representatives, successors and assigns of Trader. Trader hereby ratifies all transactions with FXcast affected prior to the date of this Agreement, and agrees that the rights and obligations of Trader in respect thereto shall be governed by the terms of this Agreement.
5.15. Termination: This Agreement shall continue in effect until termination, and may be terminated by Trader at any time when Trader has no open position(s) and no liabilities held by or owed to FXcast upon the actual receipt by FXcast at its home office of written notice of termination, or at any time whatsoever by FXcast upon the transmittal of written notice of termination to Trader; provided, that such termination shall not affect any transactions previously entered into and shall not relieve either party of any obligations set out in this agreement nor shall it relieve Trader of any obligations arising out of any deficit balance.
5.16. Indemnification: Trader agrees to indemnify and hold FXcast, its affiliates, employees, consultants, agents, successors and assigns harmless from and against any and all liabilities, losses, damages, costs and expenses, including attorney's fees, incurred by FXcast arising out of Trader's failure to fully and timely perform Trader's agreements herein or should any of the representations and warranties fail to be true and correct. Trader also agrees to pay promptly to FXcast all damages, costs and expenses, including attorney's fees, incurred by FXcast in the enforcement of any of the provisions of this Agreement and any other agreements between FXcast and Trader.
5.17. Terms and Headings: The term "FXcast" shall be deemed to include FXcast, its divisions, its successors and assigns; the term "home office" is office of FXcast, accessible through FXcast's website located at http://www.FXcast.com/ address, and through contact forms on FXcast's website, and through the mailing address specified on FXcast's website; the term "Trader" shall mean the party executing the Agreement; and the term "Agreement" shall include all other agreements and authorizations executed by Trader in connection with the maintenance of Trader's account with FXcast regardless of when executed. The paragraph and segment headings in this Agreement are inserted for convenience of reference only and are not deemed to limit the applicability or affect the meaning of any of its provisions.
5.18. Acceptance: This Agreement shall not be deemed to be accepted by FXcast nor become a binding contract between Trader and FXcast until approved by FXcast home office.
5.19. Consent to Jurisdiction and Venue: In order to induce FXcast to accept this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, Trader hereby agrees to the following: (a) Any judicial or administrative action or proceeding arising directly or indirectly hereunder or in connection with the transactions contemplated hereby, whether brought by Trader or FXcast, shall be held, within geographical location FXcast chooses, in its sole discretion. Trader consents and submits to, and waives any and all objections Trader may have to such venue, and further agrees to waive and forego any right Trader may have to transfer or change the venue of any action or proceeding encompassed hereby; and, (b) Trader consents and submits to the jurisdiction of any local, state, federal or international court located within the geographical location FXcast chooses, in its sole discretion, in any action or proceeding arising directly or indirectly hereunder or in connection with the transaction hereby, whether brought by Trader or FXcast.
5.20. Recordings: Trader agrees and acknowledges that all communications and conversations regarding Trader's account(s) between Trader and FXcast personnel may be electronically recorded with or without the use of an automatic tone-warning device. Trader further agrees to the use of such recordings and transcripts thereof as evidence by either party in connection with any dispute or proceeding that may arise involving Trader or FXcast. Trader understands that FXcast destroys such recordings at regular intervals in accordance with FXcast's established business procedures and Trader hereby consents to such destruction.
5.21. Modifications to the Agreement: FXcast reserves the right to change and / or modify any and all terms of this Agreement from time to time, and at any time, with or without notice to Trader, by posting such changes on the FXcast's website. Trader is responsible for regularly reviewing these terms and conditions for any modifications and agrees to be bound by the same.