| AGREEMENT TERMS & CONDITIONS GOVERNING INTERNET BASED BROKERAGE
TRANSACTIONS
This document contains important information regarding the
terms and conditions which apply to your account with Navia Markets Limited (hereinafter
referred to as THE MEMBER), a member of the National Stock Exchange. Your access to and
use of your account and THE MEMBER's services are subject to your compliance with all the
terms and conditions set forth herein.
The agreement between the CLIENT and the MEMBER is
reproduced below in 2 forms. The first is the short format. By signing the short format
and dispatching the same to the MEMBER the CLIENT agrees to bound by all the terms and
conditions found in the full format of the agreement. The MEMBER is bound by this
agreement only after the agreement signed by the CLIENT reaches the MEMBER and the same is
signed on behalf of the MEMBER.
The CLIENT is hereby informed that the MEMBER reserves the
right to add, delete, alter and/ or amend the full format of the agreement from time to
time. The time and date of each change to the agreement will be recorded by the MEMBER.
The CLIENT will be bound by that agreement it is counter signed by the MEMBER.
AGREEMENT
(FULL FORMAT)
THIS AGREEMENT ENTERED INTO
BETWEEN
NAVIA MARKETS LIMITED, a public limited
company incorporated under the provisions of The Companies Act, 1956, having its
registered office at No.36-40, Armenian Street, Chennai - 600 001, rep. herein by its
............ .............. hereinafter referred to as MEMBER which term shall, unless
repugnant to or inconsistent with the context, mean and include its successors-in-interest
and assigns of the OTHER PART
AND
** IN THE CASE OF INDIVIDUAL/S
........ ........, son/ wife/ daughter of ........, aged
about ........ years, residing at ........ ........ ........ ........ hereinafter referred
to as "CLIENT" which term shall, unless repugnant to or inconsistent with the
context, mean and include, his/ her respective heirs, executors, administrators, legal
representatives and assigns of the OTHER PART
** IN THE CASE OF A PARTNERSHIP FIRM
(All partners should sign the agreement)
M/s. ........ ........, a partnership firm registered under
the Partnership Act, 1932, carrying on business at ........ ........ ........ ........
........ ........ ........ , represented by its partners (1) ........ ........, son/ wife/
daughter of ........ ........, aged about ........ years, residing at ........ ........
........ ........ ........ ........ and (2) ........ ........ , son/ wife/ daughter of
........ ........, aged about ........ years, residing at ........ ........ ........
........ ........ hereinafter referred to as "CLIENT", which term shall, unless
repugnant to or inconsistent with the context, mean and include the successors-in-interest
of the partnership firm and respective heirs, executors, administrators, legal
representatives of each of the partners and assigns of the OTHER PART
** IN THE CASE OF A COMPANY
........ ........ , a private/public limited company,
within the meaning of The Companies Act, 1956, having its registered office at .....
........... ........ ........ ........ ........ represented herein by its ........ Mr.
........ hereinafter referred to as "CLIENT ", which term shall, unless
repugnant to or inconsistent with the context, mean and include its successors-in-interest
and assigns of the OTHER PART
** Delete whatever is not applicable
WHEREAS
1. the MEMBER is registered as a TRADING MEMBER of the
NATIONAL STOCK EXCHANGE (hereinafter called NSE) on the Capital Market;
2. the CLIENT is desirous of investing/ trading in those
securities admitted for dealing on the Capital Market segment of the NSE as defined in the
Bye-Laws of the NSE;
3. the CLIENT has satisfied itself of the capability of the
MEMBER to deal in those securities admitted for dealing on the Capital Market segment of
NSE and wishes to execute orders through MEMBERS;
4. the MEMBER has taken steps and shall take steps to make
the CLIENT aware of the precise nature of the MEMBER's liability for business to be
conducted, including any limitations on that liability and the capacity in it acts;
Now, therefore in consideration of the mutual understanding
as set forth in this agreement, the parties thereto have agreed to the following terms and
conditions :
TERMS & CONDITIONS GOVERNING BROKERAGE TRANSACTIONS
1. GENERAL TERMS
1.The provisions of this agreement shall always be subject
to Government notifications, any rules,regulations and guidelines issued by SEBI and Stock
Exchange rules, regulations and Bye-laws that may be in force from time to time.
2.The agreement entered into between the Trading MEMBERand
the CLIENT shall terminated by mutual consent of the parties by giving at least one month
notice to each other. Such termination shall not have any effect on the transactions
executed before the date of notice of termination and the parties shall enjoy same rights
and shall have same obligations in respect of such transactions.
3..In the event of the death or insolvency of the client or
his otherwise becoming incapable of receiving and paying for or delivering or transferring
securities which the client has ordered to be bought or sold the Trading MEMBER may with
the approval of the Exchange , close out the transaction of the client and the constituent
or his legal representative shall be liable for any losses, costs and be entitled to any
surplus which may result therefrom.
4.All trades, transactions and contracts are subject to the
Rules and Regulations to the Exchange and shall be deemed to be and shall take effect as
wholly made, entered into and to be performed in the city of Chennai and the parties to
such trade shall be deemed to have submitted to the jurisdiction of the Courts in Chennai
for the purpose
of giving effect to the provisions of the Rules and
Regulations of the Exchange. Notwithstanding anything to contrary in any Contract Note/s
that may be issued by the MEMBER to the CONSTITUENT, the parties hereby expressly agree
that in respect of any dispute only the courts in Chennai City shall have jurisdiction to
the exclusion of all other Courts.
5.The instructions issued by an authorised representative
of the client shall be binding on the client in accordance with the letter authorizing the
said representative to deal on behalf of the client
6.The Client is aware that authentication technologies and
strict security measures are required for the internet trading through order routed system
and undertakes to ensure that the password of the CLIENT and/or his authorised
representative are not revealed to any third party.
7.The CLIENT agrees that the MEMBER shall not be liable or
responsible for non-execution of the orders of the CLIENT due to any link/system failure
at the CLIENT/MEMBERS/EXCHANGE end.
8. The Stock Exchange may cancel a trade suo-moto without
giving any reason thereof. In the event of such cancellation, MEMBER shall be entitled to
cancel relative contract(s) with CLIENT.
9.The CLIENT is aware that any order received through the
Member Website containing the Userid and Password stamp of the said Client, then it would
be deemed by the Member to have received an order request from the said Client for
execution through the Member’s Website. The Client will be bound to honour the trade
that is executed on his/her request which is triggered on the exercising his/her Userid
and Password.
10. All trades , transactions and contracts are subject to
the Bye-Laws, Rules and Regulations of the Exchange and shall be deemed to be and shall
take effect as wholly made , entered into and to be performed in the city of Chennai and
the parties to such trade shall be deemed to have submitted to the jurisdiction of the
Courts in Chennai for the purpose of giving effect to the provisions of the Rules and
Regulations of the Exchange.q
ENTRY OF ORDER: orders entered by CLIENT , either
electronically or otherwise, are based upon their investment decisions & their sole
responsibility. The CLIENT will not hold, nor seek to hold, MEMBER or any of its officers,
directors, employees, agents, subsidiaries or affiliates, liable for any trading losses or
other losses incurred by CLIENT. The CLIENT agrees that entering an order with the MEMBER,
including market orders, either electronically or otherwise, does not guarantee execution
of the order. The MEMBER shall not be deemed to have received any order electronically
transmitted by the CLIENT until the MEMBER has confirmed the receipt of such order. The
CLIENT is aware that any order received through the Member Website containing the Userid
and Password stamp of the said Client, then it would be deemed by the Member to have
received an order request from the said Client for execution through the Member’s
Website. The Client will be bound to honour the trade that is executed on his/her request
which is triggered on the exercising his/her Userid and Password.
The Client is aware that the member has provided on the
website a facility for reconfirmation of orders, which are larger than that specified by
the Members risk management, by the Member and is also aware that the Member has the
discretion to reject the execution of such orders based on his risk perception.
3. EXECUTION OF ORDER:
The CLIENT agrees that MEMBER acts as its agent to
complete all such transactions and is authorised to make advances and expend monies as
required. Though orders are usually routed through the marketplace within seconds, certain
orders, at MEMBER's sole discretion, may be subject to manual review and entry, which may
cause delays in the processing of CLIENT's orders. The CLIENT also understands that with
respect to market orders, the CLIENT will receive the price at which the CLIENT's order
was actually executed in the marketplace, which may be different from the price at which
the security is traded when the CLIENT's order is entered into the MEMBER's system.
4. PURCHASE OF SECURITIES:
To process orders to purchase securities, It is
necessary that the CLIENT's account contains buying power before the execution of the
order. Any order inadvertently accepted and executed without sufficient buying power will
be subject to cancellation or liquidation at the MEMBER's discretion. However, CLIENT is
responsible for all of the CLIENT's orders, including any orders, which exceed available
limit in the CLIENT's account. If limits are not available in the account and an order is
processed, then the CLIENT should credit the required funds in the CLIENT's Bank Account
with .......... BANK via wire or personal cheque, cashier's cheque or money order or
account transfer or any other mode, promptly to assure that such payment will be received
and processed on or prior to the settlement date or intimated date, whichever is earlier.
If payment is not received by the settlement date or intimated date, whichever is earlier,
the CLIENT'S position may be squared off, without prior notification. In the event the
CLIENT's account is liquidated, the CLIENT will be liable for any resulting losses and all
associated costs incurred by the MEMBER.
5. SALES OF SECURITIES - IN CASH PRODUCT:
To process orders to sell securities, It is necessary
that the CLIENT's account contains sufficient Free Securities Balance in the Security
Demat Account with the MEMBER prior to the acceptance of a sell order or the physical
shares which are in the custody of MEMBER.
Proceeds of the sale cannot be paid to the CLIENT until
securities have been delivered to the NSE/ clearing house & pay out is received from
the NSE / Clearing House. The proceeds of all sales will be credited to the CLIENT's
account directly on the settlement date.
If the securities are not received on or before the
settlement date or securities received are not in a deliverable state or due to any other
reason whatsoever, the CLIENT is not able to deliver the securities, the securities will
be Auctioned or closed out as per the rules of the NSE/ concerned Exchange. Consequently,
the CLIENT will be responsible for any resulting losses and all associated costs including
penalty levied by the Exchange.
6. CONFIRMATIONS, STATEMENTS, NOTICES AND OTHER
COMMUNICATIONS:
The MEMBER shall send the CLIENT electronically the
Contract Note/Trade Confirmation of the trades executed on the CLIENT's behalf on the
trade date through e-mail at the Client's request, within (time period as specified by
Client) . The CLIENT understands that it is the CLIENT's responsibility to review, upon
first receipt, whether delivered to the CLIENT by mail, by e-mail, or other electronic
means, all confirmations, statements, notices and other communications, including but not
limited to, margin, maintenance calls, and prospectuses. All information contained therein
shall be binding upon the CLIENT , if the CLIENT does not object, either in writing or via
electronic mail, which must be received by MEMBER within Twenty Four hours, after any such
document is sent to the CLIENT . In all cases, MEMBER reserves the right to determine the
validity of the CLIENT's objection to the transaction. Notices and other communications
may also be provided to the CLIENT verbally. The CLIENT agrees that the MEMBER fulfills
its legal obligation to deliver to the CLIENT any such document if sent via electronic
delivery. Documents sent by electronic delivery will contain all the information as it
appears in the printed hardcopy version as prepared and distributed by the originator,
with the possible exception of graphic insertions such as photographs or logotypes.
Electronic delivery may be in the form of an e-mail, an electronic mail attachment, or in
the form of an available download from the web site. The CLIENT represents that the CLIENT
will download the relevant document promptly after receiving notice of its availability.
Should the CLIENT experience any difficulty in opening a document electronically delivered
by MEMBER, the CLIENT will promptly advise the MEMBER in order to allow the MEMBER to make
the required delivery by other means. Failure to advise the MEMBER of such difficulty
within forty eight hours after delivery shall serve as a confirmation that the CLIENT has
received and open the said document.
7. SALES OF SECURITIES:
Short Sales:
Before executing any sell order, the CLIENT should
either have security in the CLIENT's Security Account with the MEMBER or funds in the
CLIENT's bank account with ........ Bank equal to or greater than the margin money. The
MEMBER generally requires that Free Stock Balance in the Security Demat Account prior to
the acceptance of a sell order. Any order accepted without free stock balance in the
account would be deemed a short sale. Short Sales can be settled by squaring off the trade
within the same trade cycle. The CLIENT agrees and understands that if the CLIENT does not
put an order to square off the position by the stipulated time before the close of market
hours on the last day of the trading cycle, the MEMBER has all rights to square off the
position on the same day or on any later date. Any such sales or purchases may be made at
any time at MEMBER's discretion on any exchange or other market where such business is
usually transacted, or at public auction or private sale, or the MEMBER may be the
purchaser/seller for the MEMBER's own account. The CLIENT is responsible for any losses or
expenses incurred by the MEMBER as a result of the MEMBER's failure to make such
delivery/square off the trade.
8. MARGIN REQUIREMENTS:
The CLIENT agrees that the CLIENT will maintain such
securities and other property in the CLIENT's account as collateral as required by all
applicable statutes, rules, regulations, procedures or as the MEMBER deems necessary or
advisable. The CLIENT agrees to promptly satisfy all margin and maintenance calls.
9. CALLS FOR ADDITIONAL COLLATERAL AND LIQUIDATION:
If it is considered necessary for the MEMBER's own
protection, then the MEMBER may require the CLIENT to immediately deposit cash or
collateral into the CLIENT's account with the MEMBER prior to any applicable settlement
date in order to assure due performance of the CLIENT's open contractual commitments. If
the CLIENT does not provide the additional collateral, the CLIENT hereby understands and
acknowledges that the MEMBER has the right to sell any or all the securities and other
property in the CLIENT's account, buy any or all securities and other property which may
be short in the CLIENT's account, cancel any or all open orders and/or close any or all
outstanding contracts.
In addition, the CLIENT understands and agrees that the
MEMBER may exercise any or all of the above rights without demand for additional
collateral, or notice of sale or purchase, or other notice or advertisement. Any such
sales or purchases may be made at any time at the MEMBER's discretion on any exchange or
other market where such business is usually transacted, or at public auction or private
sale, or the MEMBER may be the purchaser/seller for the MEMBER's own account. It is
understood that the MEMBER's giving of any prior demand or call or prior notice of the
time and place of such sale or purchase shall not be considered as a waiver of the
MEMBER's legal right to sell or buy without any such demand, call or notice.
10. AUTOMATIC SETTLING OFF
The CLIENT agrees that the MEMBER would have the
discretion to square off the position of the CLIENT in the following circumstances:
In case of Margin Trades, if the open position is neither
squared off nor converted to Delivery by the client within the stipulated time.
In case of Margin Trades, where Mark to Market Loss on the
open position has reached the stipulated % of the margins placed with the MEMBER and the
CLIENT has not taken any steps either to replenish the margin or reduce the Mark to Market
Loss.In all other cases where the margin or security placed by the client falls short of
the requirement or where the limits given to the CLIENT has been breached or where the
CLIENT has defaulted on the CLIENT's existing obligation.
The CLIENT agrees that although the auto square off trigger
point is pre-defined, subsequent to which the MEMBER could exercise its discretion to
carry out the square off within a reasonable period of time, the actual execution could
happen at a price different from the trigger point and the CLIENT agrees to bear the loss
based on actual executed price.
THE FOLLOWING CLAUSE(CLAUSE NO 11) WILL APPLY AND COME INTO
EXISTENCE ON THE CLIENT EITHER OPENING OR OPERATING A DEMAT ACCOUNT WITH NAVIA MARKETS LTD
EITHER SEPERATELY OR THROUGH THE NET BROKING ACCOUNT OF THE CLIENT.
11. Opening and operating a demat account with NAVIA
MARKETS LTD.
a. The client shall pay such charges to the depository
Participant for the purpose of opening and maintaining his account, for carrying out the
instructions of the Client and for rendering such other services as may be agreed to from
time to time between the Depository Participant and the client as set out in Schedule A.
The Depository Participant hereby reserves the right to revise the charges by giving not
less than thirty days notice in writing to the client.
b. The Client shall have the right to get the securities
which have been admitted on the Depository dematerialized in the form and manner laid down
under the Bye Laws and Business Rules. The Depository Participant further undertakes that
it shall not create or permit to subsist any mortgage. Charge or other encumbrance over
all or any of such securities submitted for dematerialization except on the instructions
of the Client.
c. The Depository Participant hereby undertakes that it
shall maintain a separate account of its own securities held in dematerialised from with
the Depository and shall not mingle the same with the securities held in dematerialised
form on behalf of the Client.
d. The Depository participant undertakes that a transfer to
and from the accounts of the Client shall be made only on the basis of an order ,
instruction , direction or mandate duly authorised by the Client and that the Depository
Participant shall maintain adequate audit trail of such authorization.
e. The Depository Participant agrees that the Client may
give standing instructions with regard to the crediting of securities in the clients
account and the Depository Participant shall act according to such instructions.
f. The depository participant undertakes to provide a
transaction statement including statement of accounts , if any, to the Client at
fortnightly intervals unless the Depository Participant and the Client have agreed for
provision of such statements as shorter intervals. However , if there is no transaction in
the account , then the Depository Participant need provide such statement to the Client
only once a quarter.
g. The depository Participant shall have the right to
terminate this agreement , for any reasons whatsoever, provided the Depository Participant
has given a notice in writing of not less than thirty days to the Client as well as to the
Depository . Similarly, the Client shall have the right to terminate this agreement and
close his account held with the Depository Participant , provided no charges are payable
by the client to the Depository Participant . In such an event , the Client shall specify
whether the balances in the client's account should be transferred to another account of
the Client held with another Depository Participant or to rematerialise the security
balances held. Based on the instructions of the Client , the Depository Participant shall
initiate the procedure for transferring such security balances or rematerialise such
security balances within a period of thirty days , as per the procedure laid down in the
Bye Laws and Business rules. Provided further , termination of this agreement shall not
affect the rights, liabilities and obligations of either party and shall continue to bind
the parties to their satisfactory completion.
h. On the failure of the Client to pay the charges as laid
out in clause(1) of this agreement within a period of thirty days from the date of demand
the Depository Participant shall terminate this agreement and close the account of the
Client and require the client to specify whether the balances in the clients account be
transferred to the account of the Client held with another Participant or be
rematerialised in the manner specified in the Bye Laws and Business Rules.
i. The Client further agrees that in the event of Client
committing a default in the payment of any of the accounts provided in Clause (1) within a
period of thirty days from the date of demand, without prejudice to the right of the
Depository Participant to close the account of the Client \, the Depository Participant
may charge interest @not more than 24% p.a. or such other rate as may be specified by the
Executive Committee from time to time for the period of such default. In case the Client
has failed to make the payment of any of the amounts as provided in clause (1) of this
agreement , the Depository Participant shall have the right to discontinue the Depository
Participant services till such time the client makes the payment along with interest , if
any, after giving two days notice to the client.
j. The Depository Participant has the right to provide such
information related tot he Client's accounts as may be requested by the National
Securities Depository Limited from time to time.
k. The Client shall have the right to create a pledge of
the securities held in the dematerialised from with the Depository Participant only in
accordance with the procedure and subject to the restrictions laid down under the Bye Laws
and Business Rules.
L. The Depository shall not be liable tot he Client in any
manner towards losses, liabilities and expenses arising from the claims of third parties
and from taxes and other governmental levies & charges in respect of securities
credited tot he Clients account.
m. The Client may exercise the right to freeze the client
account maintained with Depository Participant so as to lock the securities held with the
Depository Participant in accordance with the procedure prescribed in the Bye laws and
Business Rules.
n. The Client may exercise the right to defreeze the
clients account maintained with the depository Participant in accordance with the
procedure and subject to the restrictions laid down under the Bye laws and Business Rules.
o. The Client shall notify the Depository Participant
within, seven days, of any charge in the details set out in the application form submitted
to the Depository participant and the Client.
p. The depository Participant undertakes to resolve all
legitimate grievances of the Client against the Depository within a period of thirty days.
q. The depository participant and the Client shall abide by
the arbitration and conciliation procedure prescribed under the Bye laws of National
Securities Depository Limited and that such procedure shall be applicable to any disputes
between the Depository Participant and the Client.
*Schedule A* Account Opening Charges - Rs.100
Annual Maintaining Charges - Rs. 400/-p.a
Transaction Charges - Buy: 0.04% Sell: 0.04%
Dematerialisation Charges - Rs.100- per lakh of request -
Rs. 200/- above 1 lakh
Other Charges - Off Market : 0.04%
12. PASSWORD, CLIENT - ID:
The CLIENT must:
keep the CLIENT -Id and password totally confidential and
not reveal the password to any third party.Choose a password that shall consist of a mix
of alphabets and numbers which must not relate to any readily accessible personal data
such as the CLIENT's name, address, telephone number, driver licence etc, or easily
deduced combination of letters and numbers.Commit the CLIENT -Id and password to memory
and not record them in written or electronic form,and not let any unauthorised person have
access to the CLIENT's computer unattended whilst accessing the MEMBER's Website.
13. TERMINATION OF SERVICE:
The CLIENT may request for termination of the facility
any time by giving a written notice of atleast 30 days. The CLIENT will remain responsible
for any transactions made on the CLIENT's account(s) through the MEMBER prior to the time
of such cancellation of the service/facility.
The facility may be withdrawn anytime by the MEMBER
provided the CLIENT is given reasonable notice under the circumstances. If the service is
withdrawn for a reason other than the breach of these terms and conditions by the CLIENT,
the MEMBERS's liability shall be restricted to the return of the annual charges, if any,
recovered from the CLIENT for the period in question. The closure of all accounts of the
CLIENT will automatically terminate the MEMBER's Service. The MEMBER may suspend or
terminate trading facilities without prior notice if the CLIENT has breached these terms
and conditions or the MEMBER learns of the death, bankruptcy or lack of legal capacity of
the CLIENT.
14. PAYMENT OF FEES:
Fees are due and payable as accrued, and the CLIENT
shall pay all fees in accordance with the payment method that the parties have agreed to.
The CLIENT shall inform the MEMBER within 10 days of cancellation or termination of a
credit card to which such fees are charged, or closing a bank account from which fees are
debited. If the MEMBER is unable to collect accrued fees through the selected payment
method, then the MEMBER may terminate this Agreement and CLIENT's right to receive the
MEMBER Services immediately upon notice to CLIENT. MEMBER may charge interest at the
lesser of 1.5% per month or the maximum permitted by applicable law on all uncollected
fees.
15. USE OF MEMBER'S SERVICES:
a. NO FRAUD OR MANIPULATION:
The CLIENT shall not manipulate any Quote, Quote
Request or Feedback score, or otherwise misuse the MEMBER's Services in any way. Without
limiting the generality of the foregoing, the CLIENT shall submit or accept information
only from the CLIENT's own account, and shall not use any automated device, software or
algorithm to respond to Quote Requests or Quotes.
b. PASSWORDS AND SECURITY:
The CLIENT shall at all times maintain the confidentiality
of the CLIENT's user names and passwords. If the CLIENT is a corporation, partnership or
other legal entity, then it may allow employees to use CLIENT's names and passwords in any
event the CLIENT is responsible for all activity and all charges payable to the MEMBER.
Permitting use of the MEMBER Services by a third party is
prohibited and is a violation of this Agreement. If there is a breach of security through
CLIENT's account, the CLIENT must immediately change its password and also notify the
MEMBER's customer service at ............... The CLIENT will be liable for any
unauthorised use of the MEMBER Services until CLIENT notifies the MEMBER of the security
breach.
c. POSTING FEEDBACK:
The MEMBER Services permit the CLIENT to submit Feedback
regarding the services of the MEMBERS. The CLIENT is obligated and responsible to be
truthful in all statements it makes. In addition to CLIENT's obligations under Section
........ regarding offensive or unlawful messages, the CLIENT shall not 1) submit any
Feedback not based on direct experience with the buyer or seller that is the subject of
the Feedback, 2) attempt to manipulate the Feedback scores of itself or any other
subscriber by posting Feedback more than once with respect to a particular experience or
set of related experiences (except if such information is requested in more than one
category), by posting Feedback regarding the CLIENT itself, or by posting Feedback from an
account other than the MEMBER account assigned to the CLIENT. The CLIENT shall indemnify
MEMBER, pursuant for any violation in this regard.
The MEMBER reserves the exclusive right to remove a CLIENT
from the system if the MEMBER determines in the MEMBER's sole discretion that the simple
average of such CLIENT's overall score falls below an acceptable level, or if such CLIENT
has an unsatisfactory credit rating that is brought to the attention of the MEMBER, or if
such CLIENT is found to have falsely represented itself, or made a proposal or quote that
was not truthful.
The CLIENT shall not take any actions which may undermine
the integrity of the Feedback system, such as; leaving positive Feedback for such CLIENT
using secondary User IDs or third parties; leaving negative Feedback for other users using
secondary accounts or third parties (Feedback bombing); or leaving negative Feedback if a
CLIENT fails to perform some action that is outside the scope of the proposal (Feedback
extortion).
d. CLIENT's INFORMATION:
CLIENT's information includes any information it
provides to the MEMBER or other users during the registration, or quoting processes, in
any public message area (including the Feedback area and all other areas) or through any
e-mail feature (`CLIENT's Information'). With respect to CLIENT's Information.
1. The CLIENT is solely responsible for CLIENT's
Information, and MEMBER acts as a passive conduit for CLIENT's online distribution and
publication of CLIENT's Information. However, MEMBER may take any action with respect to
such information if the MEMBER believes it may create liability for the MEMBER or may
cause the MEMBER to lose (in whole or in part) the services of the MEMBER's ISPs or other
suppliers, as determined in the MEMBER's sole discretion.
2. The CLIENT's Information (a) shall not be fraudulent or
involve the sale of counterfeit or stolen securities; (b) shall not infringe any third
party's copyright, patent, trademark, trade secret or other proprietary rights or rights
of publicity or privacy; (c) shall not violate any law, statute, ordinance or regulation
(including without limitation those governing export control, consumer protection, unfair
competition, licensing requirements, anti-discrimination or false advertising); (d) shall
not be defamatory, trade libelous, threatening or harassing; (e) shall not contain any
viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming
routines that are intended to damage, detrimentally interfere with, surreptitiously
intercept or expropriate any system, data or personal information; and (f) shall not link
directly or indirectly to or include descriptions of goods or services of others.
16. OFFENSIVE, LIBELOUS OR UNLAWFUL MESSAGES:
a. NO OFFENSIVE OR UNLAWFUL MESSAGES:
The CLIENT shall not submit any Quote Requests, responses;
Feedback or other information or materials that would be deemed offensive or that are
illegal, as determined in the MEMBER 's sole discretion.
17. MEMBER CONTENT; INTELLECTUAL PROPERTY RIGHTS:
A. OWNERSHIP AND LIMITATIONS ON USE OF MEMBER
SERVICES: The MEMBER retains ownership of all right, title and interest in and to the
MEMBER Services and MEMBER Content (defined below), subject to CLIENT's rights in CLIENT
Information. The CLIENT shall not reproduce, duplicate, copy, sell, resell or exploit for
any commercial purpose the MEMBER Services, MEMBER Content or access to the MEMBER
Services. The CLIENT shall not reverse engineer, decompile, or otherwise attempt to derive
source code from any software accessible or available through the MEMBER Services. MEMBER
DOES NOT CONDONE COPYRIGHT INFRINGEMENT AND WILL TERMINATE CLIENT'S THAT INFRINGE OR
ATTEMPT TO INFRINGE ON COPYRIGHTS.
b. DEFINITIONS OF OTHER CLIENT INFORMATION AND MEMBER
CONTENT:
By using the MEMBER Services, the CLIENT will have
access to information that other customers have provided to the MEMBER only under the
terms and conditions of this Agreement (`Other CLIENT Information'), with the
understanding that it will be kept confidential and used only for the purposes of
contacting potential buyers or sellers via the MEMBER Services. The Other CLIENT
Information is one component of the MEMBER Content. In addition, `MEMBER Content' means
any data, information, files (including software) or graphics that is available on the
MEMBER and that is protected by copyright, trademarks and other intellectual and
proprietary rights.
c. RESTRICTIONS ON USE OF MEMBER CONTENT:
This Agreement and applicable copyright and other laws
(including laws regarding confidential information and other proprietary rights) govern
use of the MEMBER Content. The burden of determining that any MEMBER Content is not
protected by intellectual or proprietary rights rests with CLIENT .
i. The CLIENT may make only a limited number of copies of
MEMBER Content (except any software, which CLIENT shall not copy except to download, if
specifically permitted), so long as any copyright, trademark or other proprietary rights
notices are included on those copies and so long as such copies are not distributed except
to CLIENT's employees who have signed confidentiality agreements covering third-party
confidential information.
ii. The CLIENT may use the MEMBER Content only for
investigating the possibility of selling or buying and shall not use any CLIENT
Information for direct marketing or other sales contacts outside of the MEMBER Service.
iii. The CLIENT shall not disclose any CLIENT Information
(except its own) to third parties.
18. INDEMNITY:
The CLIENT hereby agrees to, at its own expense, indemnify,
defend and hold the MEMBER harmless from and against any loss, cost, damages, liability,
or expense arising out of or relating to (a) a third-party claim, action or allegation of
infringement based on information, data, files or other content submitted by CLIENT , (b)
any fraud, manipulation, or other breach of this Agreement by a CLIENT or a user, or (c)
any third-party claim, action or allegation brought against the MEMBER arising out of or
relating to a dispute with a CLIENT over the terms and conditions of a contract or related
to the purchase and sale of any goods/services. The MEMBER will have the right to
participate in its defense and hire counsel of its choice, at CLIENT's expense. The CLIENT
cannot settle any action or claims on MEMBER's behalf without the prior written consent of
the MEMBER.
19. TERMINATION OF AGREEMENT:
a. SUSPENSION OR TERMINATION FOR CLIENT's BREACH:
The CLIENT breaches any of the terms or conditions of
this Agreement, the MEMBER may, at its sole discretion, suspend provision of the MEMBER
Services (including access) or terminate this Agreement. Whether or not a breach results
in suspension or termination depends on several factors, including but not limited to the
severity of the breach, the potential harm to other CLIENT or to MEMBER or the MEMBER
Services, and whether or not the breach is repeated or cured. If MEMBER suspends or
terminates CLIENT's right to access or use the MEMBER Services, then MEMBER shall, within
24 hours, provide notice to CLIENT of such action.
20. LIMITED WARRANTY:
MEMBER does not warrant that the MEMBER Services will
be secure or be continuously available, or that information provided will be accurate. The
MEMBER MAKES NO WARRANTIES REGARDING THE MEMBER WEB SITE OR MEMBER SERVICES, AND HEREBY
DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE MEMBER SERVICES, CONTENT, AND WEB SITE,
WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND THE STATUTORY WARRANTY AGAINST
NON-INFRINGEMENT. NO ORAL ADVICE OR WRITTEN INFORMATION GIVEN BY MEMBER , OR ITS EMPLOYEES
OR REPRESENTATIVES, WILL CREATE A WARRANTY; NOR SHALL CLIENT RELY ON ANY SUCH INFORMATION
OR ADVICE.
21. LIMITATION OF LIABILITY:
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL
MEMBER OR ITS DIRECTORS, OFFICERS, EMPLOYEES OR AFFILIATES BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO
LOSS OF REVENUE, GOODWILL, OR ANTICIPATED OR LOST PROFITS) THAT RESULT FROM CLIENT's USE
OF OR INABILITY TO USE THE MEMBER SERVICES. MEMBER IS NOT LIABLE FOR THE COST OR
PROCUREMENT OF SUBSTITUTE SERVICES, TECHNOLOGY, OR DATA. MEMBER 'S TOTAL AGGREGATE
LIABILITY ARISING OUT OF THE SUBJECT MATTER OF THIS AGREEMENT WILL NOT EXCEED THE AMOUNTS
RECEIVED BY MEMBER / FROM CLIENT DURING THE 12 MONTHS PRIOR TO THE OCCURRENCE OF THE FACTS
GIVING RISE TO SUCH A CLAIM. THE CLIENT HEREBY ACKNOWLEDGES THAT THIS PROVISION WILL APPLY
WHETHER OR NOT MEMBER IS GIVEN NOTICE OF THE POSSIBILITY OF SUCH DAMAGES AND THAT THIS
PROVISION WILL APPLY TO ALL SERVICES OR SOFTWARE AVAILABLE FROM MEMBER OR ITS AFFILIATES.
22. NO AGENCY OR PARTNERSHIP:
The parties are independent contractors. Neither party
may direct or control the day-to-day activities of the other; neither party may create or
assume any obligation on behalf of the other.
23. ASSIGNMENT:
The CLIENT shall not assign this Agreement or any of its
rights or obligations without the prior written consent of MEMBER , and any such attempted
assignment will be void. Subject to the above, this Agreement will be binding upon the
parties' respective successors and permitted assigns.
24. NOTICES:
The MEMBER shall provide notice to CLIENT via e-mail,
or (at its discretion) via registered mail, to the address provided on the registration
form or such other address provided by CLIENT to MEMBER. The CLIENT shall provide notice
to MEMBER via e-mail to ........ with a copy sent via registered mail to the address on
the registration form. Notices will be effective 6 hours after sending if sent via e-mail
(unless the sender receives a response indicating that the message was undeliverable) or 3
business days after the mailing date, whether or not received.
25. FORCE MAJEURE:
The MEMBER will not be liable in any amount for failure to
perform any obligation under this Agreement if such failure is caused by Internet outages,
earthquakes, communications outages, fire, flood, war, an act of God, or the occurrence of
any other unforeseen contingency beyond the reasonable control of the MEMBER.
26. ENTIRE AGREEMENT; NO SEVERABILITY OR UNINTENTIONAL
WAIVER: This Agreement, constitutes the entire agreement between CLIENT and MEMBER
with respect to the MEMBER Services and supersedes all prior agreements between CLIENT and
MEMBER . No amendment or modification hereof will be valid or binding upon either party
unless made in writing and signed by the authorised representatives of both parties. In
the event that a portion of this Agreement is held unenforceable, the unenforceable
portion will be construed in accordance with applicable law as nearly as possible to
reflect the original intentions of the parties, and the remainder of the provisions will
remain in full force and effect. Waiver by either party of a breach of any provision of
this Agreement or the failure by either party to exercise any right hereunder shall not
operate or be construed as a waiver of any subsequent breach of that right or as a waiver
of any other right.
27. ARBITRATION:
Any dispute, controversy or claim arising out of any
dispute, controversy, or claim arising out of, relating to, or concerning the
interpretation or performance of this Agreement that cannot be resolved through
negotiation shall be submitted to binding arbitration under the Arbitration &
Conciliation Act, 1996. Such arbitration shall occur in Chennai. The language of
arbitration shall be English.
The member and the Client are aware that of the provisions
of Bye-LAWS, Rules and Regulations of the exchange relating to resolution of disputes
/differences through the mechanism of arbitration provided by the Exchange and agree to
abide by the said provisions.
28. TAXES:
The CLIENT shall pay all taxes, assessments, duties,
tariffs, imposts, permits sales, use, excise, import, export, value-added, or similar tax,
duty, and fees, however designated, which are levied upon CLIENT and related to CLIENT's
activity on the MEMBER Web site.
IN WITNESS WHEREOF the parties have executed this agreement
on this ..... day of ........... TWO THOUSAND.
MEMBER CLIENT/S
1.
2.
WITNESSES:
1.
2.
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