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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 Members 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 Members 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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