Undertakings and Acknowledgements. 17.1. The parties undertake: 17.1.1. to notify one another if any representation or warranty made under any Transaction Document is or becomes incorrect or misleading; and 17.1.2. to do everything necessary to ensure that all obligations are met under the Transaction Documents. 17.2. The Client undertakes to notify Clarity of the occurrence or expected occurrence of any Insolvency Event in respect of the Client. 17.3. The Client acknowledges and agrees that: 17.3.1. Clarity is under no obligation to grant equal terms to each client; 17.3.2. Clarity is under no obligation to accept the Client’s Client Application or any CFD Order; 17.3.3. the Client is solely liable for complying with any legal restrictions to which the Client may be subject in respect of a Reference Security; 17.3.4. any member of the Clarity Group, may engage in trading in CFDs for its proprietary accounts and on behalf of accounts under its management, which could affect the value, Close-out or Early Termination of a CFD, and any member of the Clarity Group, may enter into CFDs and other transactions with parties other than the Client at prices different from the Reference Security Prices reflected on the Trading Platform; 17.3.5. members of the Clarity Group, may own Reference Securities that entitle them to voting rights and/or other rights relating to corporate actions in respect of the Reference Securities underlying the Client’s CFDs. The interests of the Client will not be taken account by members of the Clarity Group in exercising such voting rights and/or other rights relating to corporate actions; 17.3.6. the Client understands the advisability of reading these CFD Terms and Conditions and has read, understands and accepts these CFD Terms and Conditions; 17.3.7. the Client has read, understands and accepts Schedule 3 (System Latency) and Schedule 4 (Clarity Bank Limited Electronic Communication Indemnity) to these CFD Terms and Conditions; 17.3.8. the Client confirms its categorisation as a client in accordance with the Conduct Standard 2 of 2018 for Authorised Derivative Providers (the “ODP Standards”). In terms of the ODP Standards, ▇▇▇▇▇▇▇ has obtained authorisation from the Financial Sector Conduct Authority (the “FSCA’”), as an over-the-counter derivative provider (the “ODP”). Clarity attach ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/en_za/legal/SA/odp-client- categorisation.html (the “ODP Categorisation Letter”), including ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/content/dam/legal-and-compliance/sa/Investec- OTCTerms-and-Conditions.pdf (“ODP Terms and Conditions”) which Clarity hereby provides to its clients for confirmation. 17.3.9. the Client understands that “Portfolio Reconciliation” and “Portfolio Compression” will not be applicable; 17.3.10. while Clarity will determine the list of securities available as Reference Securities for the purposes of these CFD Terms and Conditions, the selection of the Reference Security underlying a CFD Order is the Client’s responsibility. Clarity’s inclusion of a particular security as a Reference Security is not a representation, warranty or endorsement of the value or prospects of that Reference Security by Clarity and, as such, Clarity accepts no liability or responsibility for the performance of any Reference Security; and 17.3.11. a CFD does not comprise or result in the transfer of the legal, registered or beneficial interest in any Reference Security to or from the Client and that neither the Client nor Clarity has any right or obligation to acquire or deliver the Reference Security underlying a CFD. Therefore, any gains or losses made on CFDs shall be settled in cash and never by physical delivery of the underlying Reference Securities. 17.4. The Client acknowledges and consents to Clarity reporting Transactions to the relevant trade repository as and when required by the Applicable Law, including, but not limited to, the FMA, the FMA Conduct Standard, No. 3 of 2018, and the Conduct Standard For Reporting Obligations In Respect Of Transactions In Over-The-Counter Derivatives. 17.5. The Client unconditionally and irrevocably indemnifies, and will keep indemnified, Clarity in full against all actions, suits, claims, demands, losses, liabilities, damages, costs and expenses that may have been or may be made or brought against or suffered or incurred by Clarity or the Client directly or indirectly arising out of or in connection with: 17.5.1. the inability of the Client to access the Trading Platform for reasons not reasonably within Clarity’s control; 17.5.2. ▇▇▇▇▇▇▇’s declining to accept an Open CFD Order; 17.5.3. Clarity’s cancellation or Close-out of a CFD Order or a CFD following the occurrence of an Adjustment Event; 17.5.4. Clarity’s cancellation or Close-out of a CFD Order or a CFD in accordance with the Margin Procedures; 17.5.5. any Event of Default; 17.5.6. any Taxes payable by Clarity in connection with a Transaction Document; and 17.5.7. Clarity acting in accordance with any direction, request or requirement of any regulatory authority or government body.
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Undertakings and Acknowledgements. 17.116.1. The parties undertake:
17.1.116.1.1. to notify one another if any representation or warranty made under any Transaction Document is or becomes incorrect or misleading; and
17.1.216.1.2. to do everything necessary to ensure that all obligations are met under the Transaction Documents.
17.216.2. The Client Investor undertakes to notify Clarity Investec of the occurrence or expected occurrence of any Insolvency Event in respect of the ClientInvestor.
17.316.3. The Client Investor acknowledges and agrees that:
17.3.116.3.1. Clarity Investec is under no obligation to grant equal terms to each clientInvestor;
17.3.216.3.2. Clarity Investec is under no obligation to accept the Clientan Investor’s Client Application or any CFD Order;
17.3.316.3.3. the Client Investor is solely liable for complying with any legal restrictions to which the Client Investor may be subject in respect of a Reference Security;
17.3.416.3.4. any member of the Clarity Investec Group, may engage in trading in CFDs for its proprietary accounts and on behalf of accounts under its management, which could affect the value, Close-out or Early Termination of a CFD, and any member of the Clarity Investec Group, may enter into CFDs and other transactions with parties other than the Client Investor at prices different from the Reference Security Prices reflected on the Trading PlatformCFD System;
17.3.516.3.5. members of the Clarity Investec Group, may own Reference Securities that entitle them to voting rights and/or other rights relating to corporate actions in respect of the Reference Securities underlying the ClientInvestor’s CFDs. The interests of the Client Investor will not be taken account by members of the Clarity Investec Group in exercising such voting rights and/or other rights relating to corporate actions;
17.3.616.3.6. the Client Investor understands the advisability of reading these CFD Terms and Conditions this Agreement and has read, understands and accepts these CFD Terms and Conditionsthis Agreement;
17.3.716.3.7. the Client Investor has read, understands and accepts Schedule 3 7 (System Latency) and Schedule 4 8 (Clarity Investec Bank Limited Electronic Communication Indemnity) to these CFD Terms and Conditionsthis Agreement;
17.3.816.3.8. where Investec has accepted an application in respect of which more than one person has completed the Client confirms Investor Application as joint applicants:
16.3.8.1. each of these persons is jointly and severally liable for the activities of the Investor; and
16.3.8.2. Investec is entitled, but not obliged, to act on the instructions or accept CFD Orders of any one of such persons or of any Authorised Agent purporting to have been appointed by any one of or all such persons and to assume, with no further enquiry, that each person has agreed to such instruction or CFD Order; and
16.3.8.3. subject to clause 16.3.8.1 above, a reference to the Investor in this Agreement is a reference to each of those persons separately so that (for example) a representation or undertaking is given by each of them separately;
16.3.8.4. in placing each CFD Order and entering into each CFD, the Investor is relying on his/her/its categorisation own judgement and investment experience, and Investec will have no responsibility or liability in respect of any decision of, or advice or recommendation given or views expressed to, the Investor associated with any CFD Order, CFD or any aspect relating to the Transaction Documents; and
16.3.8.5. without limiting any other provision of the Transaction Documents, to the maximum extent permitted by law, Investec and its officers, partners, agents and third-party suppliers are excluded from all liability to the Investor or any other person claiming through the Investor in contract, delict, under statute or otherwise for loss of profit, revenue or anticipated savings, loss of business opportunity or goodwill, aggregated or exemplary damages or indirect, special or consequential loss whatsoever, including as a client in accordance with the Conduct Standard 2 of 2018 for Authorised Derivative Providers (the “ODP Standards”)result:
16.3.8.5.1. In terms of the ODP Standards, ▇▇▇▇▇▇▇ has obtained authorisation from the Financial Sector Conduct Authority (the “FSCA’”), as an over-the-counter derivative provider (the “ODP”). Clarity attach ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/en_za/legal/SA/odp-client- categorisation.html (the “ODP Categorisation Letter”), including ▇▇▇▇▇://▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇/content/dam/legal-and-compliance/sa/Investec- OTCTerms-and-Conditions.pdf (“ODP Terms and Conditions”) which Clarity hereby provides to its clients for confirmation.
17.3.9. the Client understands that “Portfolio Reconciliation” and “Portfolio Compression” will not be applicablea Force Majeure event;
17.3.1016.3.8.5.2. Investec exercising, attempting to exercise or not exercising any of its rights, powers or remedies under the Transaction Documents; or
16.3.8.5.3. Investec not accepting a CFD Order;
16.3.9. while Clarity Investec will determine the list of securities available as Reference Securities for the purposes of these CFD Terms and Conditionsthis Agreement, the selection of the Reference Security underlying a CFD Order is the ClientInvestor’s responsibility. ClarityInvestec’s inclusion of a particular security as a Reference Security is not a representation, warranty or endorsement of the value or prospects of that Reference Security by Clarity Investec and, as such, Clarity Investec accepts no liability or responsibility for the performance of any Reference Security; and
17.3.1116.3.10. a CFD does not comprise or result in the transfer of the legal, registered or beneficial interest in any Reference Security to or from the Client Investor and that neither the Client Investor nor Clarity Investec has any right or obligation to acquire or deliver the Reference Security underlying a CFD. Therefore, Therefore any gains or losses made on CFDs shall be settled in cash and never by physical delivery of the underlying Reference Securities.
17.416.4. The Client acknowledges following representations and consents warranties are given by Investec as at the date of this Agreement until termination of this Agreement:
16.4.1. it has the power to Clarity reporting Transactions enter into and perform under this Agreement, and has taken all necessary action to authorise the relevant trade repository entry into and performance of this Agreement;
16.4.2. the obligations of Investec evidenced by this Agreement, constitute Investec’s legal, valid and binding obligations, enforceable in accordance with their respective terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganisation, moratorium and when other similar laws affecting creditors' rights or remedies generally;
16.4.3. the entry into and performance of this Agreement does not conflict with any applicable rule, law or regulation or any official or judicial order governing Investec or to which Investec is subject;
16.4.4. all authorisations, approvals, consents, licences, exemptions, filings, registrations, notarisations and other matters, official or otherwise, which may be required by in connection with the Applicable Lawentry into, includingperformance, but not limited tovalidity and enforceability of this Agreement, have been obtained or effected and are in full force and effect and any conditions thereof or thereto have been fully complied with; and
16.4.5. nothing in this Agreement shall be construed as creating a joint venture, partnership or employment relationship between the FMA, the FMA Conduct Standard, No. 3 of 2018parties, and the Conduct Standard For Reporting Obligations In Respect Of Transactions In Over-The-Counter Derivativesrelationship between the parties, severally, shall be governed exclusively by the provisions of the Agreement.
17.516.5. The Client Investor unconditionally and irrevocably indemnifies, and will keep indemnified, Clarity Investec in full against all actions, suits, claims, demands, losses, liabilities, damages, costs and expenses that may have been or may be made or brought against or suffered or incurred by Clarity Investec or the Client Investor directly or indirectly arising out of or in connection with:
17.5.116.5.1. the inability of the Client Investor to access the Trading Platform CFD system for reasons not reasonably within ClarityInvestec’s control;
17.5.216.5.2. ▇▇▇▇▇▇▇Investec’s declining to accept an Open CFD Order;
17.5.316.5.3. ClarityInvestec’s cancellation or Close-out of a CFD Order or a CFD following the occurrence of an Adjustment Event;
17.5.416.5.4. ClarityInvestec’s cancellation or Close-out of a CFD Order or a CFD in accordance with the Margin Procedures;
17.5.516.5.5. any Event of Default;
17.5.616.5.6. any Taxes payable by Clarity Investec in connection with a Transaction Document;
16.5.7. Investec acting in good faith on instructions purporting to have been provided by the Investor or any Authorised Agent via, telephone or electronic means; and
17.5.716.5.8. Clarity Investec acting in accordance with any direction, request or requirement of any regulatory authority or government body.
16.6. Investec unconditionally and irrevocably indemnifies, and will keep indemnified, the Investor in full against all actions, suits, claims, demands, losses, liabilities, damages, costs and expenses that may have been or may be made or brought against or suffered or incurred by the Investor directly arising out of or in connection with Investec’s gross negligence, wilful default, or fraud.
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Sources: Contracts for Difference Agreement