Tsunami Systems & Strategies

 

 

END USER LICENSE AGREEMENT and TERMS AND CONDITIONS

IMPORTANT - Please read this End User License Agreement (“Agreement”) carefully before attempting to download, import, install or use any software, documentation, or other materials made available through Tsunami Systems & Strategies, Inc., or Tsunami Systems and Strategies (PTY) Ltd, both will be referred to as the (“Company”). The software product offering that is subject to this Agreement is known as the Tsunami Pro Trader® referred to as the(“System”) and the Tsunami Pro Strategy referred to as (“Trading Strategy”). The System operates as an online monitoring, information generating and training platform which assists users in making decisions when performing online Market analysis and trading (defined below) and serves as the mechanism through which the Trading Strategy is applied.

This Agreement constitutes a legally binding agreement between you, or the legal entity which you represent or any affiliates herein after referred to as the(“Client”) and are authorised to bind the Client, and the Company in the terms as set out in this agreement. This Agreement regulates the Client’s use of the System and other related services offered by the Company. The System is licensed, not sold, to the Client for use only under the terms of this Agreement. By using the System and Trading Strategy, the Client acknowledges (1) that the Client has read this Agreement, (2) that the Client understands it, (3) that the Client agrees to be bound by its terms and conditions, and (4) to the extent the Client is entering into this Agreement on behalf of a legal entity, the Client has the power and authority to bind that legal entity to this agreement. If the Client does not agree to the terms of this Agreement, no licence will be granted to the Client in terms hereof. The Company reserves all rights not expressly granted to the Client herein.

 

1. DEFINITIONS AND INTERPRETATION

This Agreement and the Annexures hereto, unless the context indicates a contrary intention, shall be interpreted in accordance with the following provisions, moreover the following defined words and expressions, having capitalised first letters, bear the meanings assigned to them, while the same terms appearing in lower case shall be interpreted in accordance with their plain English meaning:

1.1. Account Credentials means a unique username and password used by the Client to access the Platform and Brokerage Services as well as the System;

1.2. Affiliate shall mean, any Party, any other person which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such Party. For the purposes of this definition, “control” (including, with correlative meanings, the terms “controlling,” “controlled by” and “under common control with”), as used with respect to any person shall mean the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of such person, whether through the ownership of voting securities or interests, or by contract or otherwise;

 

1.3. Agreement means this End User Licence Agreement and Terms and conditions as well as any Annexures hereto;

1.4. Broker means trading platform company providing trading in financial derivatives such as contracts for difference and financial spread betting. The Broker offers the Platform and Brokerage Services to the Client;

1.5. Brokerage Services means any electronic trading service provided by the Broker;

1.6. Company means TSUNAMI SYSTEMS & STRATEGIES, Inc, or TSUNAMI SYSTEMS and STRATEGIES (PTY) Ltd, with registered place of business at 3 Little Bear Peak Place, Midlands Estate, Midstream, 1692, the owner of the System and the Trading Strategy;

1.7. Effective Date means the date upon which the Client downloads and/or receives the System and/or receives any training materials and/or training whichever comes first;

1.8. Force Majeure Event shall mean any event or circumstance, or combination of events or circumstances, occurring during the duration of this Agreement, the occurrence of which is beyond the reasonable control (directly or indirectly) of, and could not have been avoided by steps which might reasonably be expected to have been taken by, the Company;

1.9. Indicator means the output generated by the System with the use of Market Data;

1.10. Instrument means any indices, forex, stocks, shares, commodities, or other financial instruments made accessible for trading via the Brokerage Services;

1.11. Intellectual Property means all registered and unregistered intangible property owned or licensed by the Company including trademarks; trade names; brand names; signs; symbols; logos; marketing material; copyright; patents; records; reports; formulas; diagrams; designs; processes; inventions; improvements; research information; development information; product information of existing and/or contemplated products; client lists; supplier list; internet domain names; rights in designs; database rights; computer programs, software, source code, data; trade secrets; methodology; technical know-how and data related to the business of the Company and any derivatives thereof including all future additions and improvements to the Intellectual Property;

1.12. Market means any exchanges where Instruments are traded;

1.13. Market Data means any financial and market data, price quotes, news, analyst opinions, research reports, graphs, behavioural markers or any other data or information whatsoever made available through the Platform by the Broker;

1.14. Parties shall mean Company and the Client and the term "Party" shall refer to any one of them, as the context may require;

1.15.        Platform means Pro Real Time Software, the intuitive charting and trading software that is provided as a value-added service by the Broker

1.16. System means the product called the TSUNAMI PRO TRADER® which is a software application applied to the Platform that provides the Client with Indicators to enable the Client to apply the Trading Strategy™;

1.17. Trading Strategy means the proposed strategy called the Tsunami Pro Strategy™ that the Company shares with the Client in the Training Module and its application in conjunction with the System;

1.18. Training Module means the training and documentation provided by the Company to the Client in respect of the System and the Trading Strategy;

1.19. Trading Account means the Client’s online demo or live trading accounts provided by the Broker via the Platform on the account logon Credentials of the Client;

1.20. Transaction means a “Contract for Difference” of any kind, constituting a principal to principal transaction, in relation to any Instrument or any combination of Instruments concluded by the Client on his Trading Account.

1.21. Where any term is defined within the context of any clause in this Agreement, the term so defined, unless it is clear from the clause in question that the term so defined has limited application to the relevant clause, shall bear the meaning ascribed to it for all purposes in terms of this Agreement, notwithstanding that that term has not been defined in this clause.

1.22. The words “including”, “such as” and “in particular” shall be construed as being by way of example or emphasis only and shall not be construed as, nor shall they take effect as, limiting the generality of any preceding word/s.

1.23. The words “other” or “otherwise” shall not be construed eiusdem generis with any preceding words where a wider construction is possible and the eiusdem generis-rule shall not be applied in the interpretation of this Agreement.

1.24. The term “day” shall be construed as calendar days unless qualified by the word “business”, in which instance a “business day” will be any day other than a Saturday, Sunday or public holiday in the Republic of South Africa.

1.25. References to a “person” shall include where the context so requires, an individual, firm, company, corporation, juristic person, local authority, and any trust, organisation, association or partnership, whether or not having separate legal personality;

1.26. Words importing:

1.26.1. Any one gender includes the other gender;

1.26.2. The singular shall include the plural and vice versa;

1.26.3. Natural persons include juristic persons and vice versa.

1.27. Where figures are referred to in numerals and in words, if there is any conflict between the two, the words shall prevail.

1.28. Any reference to an enactment is to that enactment as at the date of signature hereof and as amended or re–enacted from time to time.

1.29. The clause headings to this Agreement are for reference purposes only and do not bear upon the interpretation of the Agreement.

1.30. If any provision, in a definition or any annexure, is a substantive provision conferring rights or imposing obligations on any Party, notwithstanding that it is only in the definition and/or interpretation clause or the annexures, effect shall be given to it as if it was a substantive provision in the body of the Agreement.

1.31. The rule that the agreement must be interpreted against the party that drew up the agreement (contra preferentem-rule) shall not apply in the interpretation of the Agreement and the parties record that the Agreement was the result of negotiations between them and that they had the right to obtain legal advice on the Agreement.

1.32. Each provision of this Agreement is separate and severable from the rest of the Agreement. Any provision in this Agreement, which is or may become illegal, invalid or unenforceable in any jurisdiction in which this Agreement operates shall be treated as pro non scripto, to the extent of such prohibition or unenforceability, without invalidating the remaining provisions of this Agreement or affecting the validity or enforceability of the Agreement.

1.33. The expiration or termination of this Agreement shall not affect the provisions of this Agreement that expressly provide that they will operate after any such expiration or termination or which by necessity must continue to have effect after such expiration or termination, notwithstanding that the clauses themselves do not expressly provide for this.

1.34. No latitude, extension of time or other indulgence which may be given or allowed by any Party in respect of the performance of any obligation hereunder, and no delay or forbearance in the enforcement of any right of any Party arising from this Agreement and no single or partial exercise of any right by any Party under this Agreement, shall in any circumstances be construed to be an implied consent or election by such Party or operate as a waiver or a novation of or otherwise affect any of such Party’s rights in terms of or arising from this Agreement or estop or preclude any Party from enforcing at any time and without notice, strict and punctual compliance with each and every provision or term hereof. Any such latitude, extension, waiver or relaxation, delay or suspension which is so given or made shall be construed as relating strictly to the matter in respect whereof it was made or given.

2. SCOPE OF LICENSE

2.1. The System license granted in terms of this Agreement is a personal, non-transferable license to download, import, install, setup and use the System for the Client’s personal use and benefit, accessed through the Account Credentials of the Client only.

2.2. The System license grants the Client the right to load and use the System on a single Broker account onto the Platform for one demo account and one live account. Proof of the account numbers of these two accounts needs to be provided to the Company.

2.3. This Agreement regulates any System-upgrades provided by the Company that replace and/or supplement the original System unless such upgrade is accompanied by a separate license in which case the terms of that license will govern such upgrade.

3. FEES AND PAYMENT TERMS

3.1. All fees payable in terms of this Agreement shall be payable in advance. Any currency conversion differences shall be solely for the Client’s account.

4. RESTRICTIONS ON USE OF LICENSE

4.1. The System shall be installed and operated exclusively in terms the Client’s Account Credentials on his single sign in on his Broker account.

4.2. The Client shall use the System and Trading Strategy solely for the Client's own internal operations and shall not permit any other person to use or have access to the System via the Client’s Account Credentials.

4.3. The Client may not rent, lease, lend, sell, redistribute or sublicense the System or the Trading Strategy.

4.4. The System and/or Trading Strategy is not intended for distribution to, or use by, any person who resides in any country where such distribution or use would be contrary to local law or regulation. The use, of and access to, the System may be prohibited and/or blocked in some countries and jurisdictions. It is the Client’s responsibility to familiarize themselves with all local laws and regulation applicable to the System and the Brokerage Services and verify that the Client is permitted to use and access the System according to the jurisdiction of the Client’s domicile or any country in which the Client may be located.

4.5. Without derogating from the above, the Company reserve the right, acting reasonably, to suspend and/or refuse access to, or the use of, the System to anyone in the Company’s sole and absolute discretion.

5. RELATIONSHIP OF PARTIES

5.1. All information and advice provided by the Company to the Client pertains exclusively to the use of the System and the Trading Strategy and does not constitute any trading advice whatsoever. The Company recommends that the Client take advice from an independent financial advisor prior to performing any trading or investing on the Market.

5.2. The Company is not a registered financial services provider. Accordingly, the Company, the System, Trading Strategy and the Training Modules are not regulated by the Financial Services Board and are not bound by, or subject to, the provisions of the Financial Advisory and Intermediary Services Act 37 of 2002.

5.3. The Company does not act as the Client’s principal, agent or representative in respect of any Transaction. Accordingly, the Company does not perform or facilitate any Transaction. The Client will be directly and personally responsible for any Transactions the Client performs or is performed under the Client’s Account Credentials.

6. SYSTEM

6.1. The System generates Indicators regarding the behavior of specific Instruments selected by the Client via the Platform. The Indicators are intended to inform the Client about the manner in which the Market typically behaves within predefined parameters. The System does not take into account the Client’s personal objectives, circumstances and/or needs. Moreover, there are various real-world factors that may influence the behavior of Instruments which the System is unable to take into account when generating Indicators. Accordingly, the System must be utilised as a guide for good practice and the Client must consider its own objectives, circumstances or needs, before making a decision to use the System, apply the Trading Strategy as well as performing Transactions.

6.2. All Market Data is subject to change at any time and without notice. The Client acknowledges that the trading of Instruments on the Platform may become volatile very quickly and without warning. The Company cannot be held liable for any loss, cost or charge incurred directly or indirectly from the performance of the Client’s Transactions and does not accept liability for any loss or damage, including, any loss of profit, which may arise directly or indirectly from use of, or reliance on the Market Data or any Indicator or System provided by the Company.

6.3. The Company does not provide advice on the merits or suitability of any particular Transaction; however the System will provide information automatically generated based on the historic behaviour of the Instruments selected by the Client.

6.4. The System shall automatically monitor the status of the Instrument selected by the Client but does not instruct or advice the Client on any Transaction or how to proceed with such Transaction.

6.5. The methodology applied by the System in generating the Indicators makes exclusive use of the historical data draw by the Platform from the Market. Accordingly, all Indicators are based on historical Market Data. In the event Market Data moves outside of a historical range the Indicators shall indicate that the level at which the Instrument is currently trading is outside the functioning parameters of the System. The Client acknowledges and understands that past Market performance does not guarantee future Market performance.

6.6. In respect of the System and the Trading Strategy:

6.6.1. Such System and Trading Strategy is provided as general commentary for the Client’s convenience, information and training purposes only and does not constitute financial advice or investment advice or any intermediary service;

6.6.2. The Company is in no manner whatsoever responsible or liable if any such data or information is used by the Client or any other party;

6.6.3. The Company is not responsible or liable for any actions that the Client takes or does not take based on such data or information;

6.6.4. The Client will use such data or information solely in accordance and for the purposes set forth in the Agreement;

6.6.5. Such data or information is proprietary to the Company. The Client will not retransmit, redistribute, publish, disclose or display in whole or in part such data or information to third parties except as required by applicable regulations; and

6.6.6. The Client will use such data or information solely in compliance with any applicable laws and regulations.

6.7. The Client agrees that the System contains proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that the Client will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the System.

6.8. The Company shall have the right to add, modify or remove any part of the System, from time to time and at its sole discretion, without notice to the Client. The Client agrees to accept such modification as part of this Agreement.

6.9. Access to the System may be affected from time to time by routine maintenance, repairs, reconfigurations and upgrades. The Client must give the Company access to the Trading Accounts to perform these tasks.

6.10. The Company may, from time to time at its sole discretion, publish optional as well as mandatory upgrades to the System.

6.11. The Company does not make any warranty:

6.11.1. That the System will be available for access all the time, or at any time on a continuous uninterrupted basis;

6.11.2. As to the operation, quality or functionality of the System;

6.11.3. That the System information will be accurate. Any delay or latency in the Client’s internet speed or data connection may affect the accuracy to the current Market Data as well as the System;

6.11.4. That the System will be free of errors or defects; and

6.11.5. That the System is free from viruses or anything else that has contaminating or destructive properties including where such results in loss of, or corruption to, the Client’s data or other property.

6.12. The Client agrees not to:

6.12.1. Use the System for illegal or inappropriate purposes;

6.12.2. Interfere with or disrupt the proper operation of the Broker’s software, hardware, systems or networks, including knowingly or negligently transmitting files that may interrupt, damage, destroy or limit the functionality of any computer software, hardware, systems or networks, including corrupted files or files that contain viruses, trojan horses, worms, spyware or other malicious content;

6.12.3. Take any action which does or may cause the provision of the System to other users to be interrupted or degraded;

6.12.4. Knowingly or negligently upload or download files that contain software or other material protected by copyright, trademarks, patents or other intellectual property rights (or by rights of confidentiality or privacy of publicity, where applicable) unless the Client own or control the rights thereto or has received all necessary consents; or

6.12.5. Falsify the origin or source of any content or other material.

7. SYSTEM REQUIREMENTS

7.1. The Client shall be solely responsible for:

7.1.1. Ensuring the hardware, operating system, software and related infrastructure is sufficient for the successful installation and operation of the System; and

7.1.2. Maintaining and upgrading such hardware, operating system, software and related infrastructure to meet the minimum operating requirements for the System as prescribed by the Company from time to time; and

7.1.3. Implementing sufficient security measures to prevent any virus infections or security breaches from breaching or damaging the System.

7.2. A list of the minimum specifications and requirements applicable to the Service can be found on our website: www.tsunami-tradingss.com or www.tsunami-trading.co.za

8. THIRD-PARTY LINKS AND MATERIALS

8.1. The System may contain hyperlink access to websites or other platforms operated by third parties as well as contain content, data, information, applications or materials from third parties (“Third Party Material”). Third Party Materials may be provided for the Client’s reference only. By using the System, the Client acknowledges and agrees that the Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third-Party Materials. The Company does not control such websites or Third-Party Material and is not responsible for their contents of such Third-Party Material or the privacy or other policies of such websites. The Company shall not be liable whatsoever to the Client or any other person for any such website or Third-Party Material.

8.2. It is the responsibility of the Client to take precautions to ensure that whatever links the Client select or software the Client download (whether from the System or other websites) is free of such items as viruses, worms, trojan horses, defects and other items of a destructive nature. Our inclusion of hyperlinks to such websites does not imply any endorsement of the material on such websites or any association with their operators.

9. TRAINING

9.1. The license fee payable by the Client in terms of this Agreement shall include the initial setup support and induction, training materials and training manuals.

9.2. Any additional training sessions as requested by the Client shall be charged at the rates published from time to time according to the Company’s applicable rates at the specific point in time.

9.3. All additional costs incurred in respect of any training rendered by the Company, such as travel or accommodation costs, shall be for the Client’s account.

9.4. The Client will be required to provide its own equipment for training purposes.

9.5. The Initial Setup and Induction Training Module shall include:

9.5.1. Online technical support at the discretion of the company;

9.5.2. Training and assistance in respect of the familiarization, navigation and introductory use and application of the System.

9.6. The Formal Training Modules shall include:

9.6.1. Online technical support; and

9.6.2. Training and assistance in respect of the use and application of the System and Trading Strategy.

9.7. The Training Modules is provided exclusively to train the Client in how to operate the System and read and interpret the Indicators and apply the Trading Strategy. The choice in how or when to Transact shall at all times remain with the Client.

9.8. To the maximum extent permitted by applicable law, all Training, materials and services are provided "as is" and “as available”, with all faults and without warranty of any kind.

9.9. The Client has the responsibility to take the training opportunities provided and make what is offered his own as no competency assessments or outcomes-based approaches are followed in any of the training provided.

 

10. PLATFORM AND BROKERAGE SERVICES

10.1. The Client acknowledges that the Platform and the Brokerage Services are separate and operate independently from the System, however the functionality of the System requires that the System be linked to the Platform. Where the System and Platform are linked to a Brokerage Service, this creates a seamless functionality for applying the Trading Strategy while performing Transactions. Accordingly, the Client is required to conclude a separate agreement with the Broker for the use of the Platform and Brokerage Services (“Brokerage Services Agreement”).

10.2. The Client shall be responsible to familiarizes itself with the applications, tools and services offered by Broker and which does not form part of the System so as to ensure the Client is aware which applications, tools or services are regulated by the Brokerage Services Agreement or this Agreement.

10.3. All subsisting Brokerage Services Agreements concluded by the Client shall be read with this Agreement and in the event the there is a conflict, the provisions of this Agreement shall prevail in respect of the relationship between the Client and the Company.

10.4. All financial compliance provisions applicable to a Transaction shall be satisfied by the Broker, and it is the responsibility of the Client to ensure such compliance.

10.5. The Broker may have the right or ability to cut data feeds to or from the Market, halt Transactions or perform other actions which are outside of the Company’s control, and which may affect the Client’s use of the System. Such conduct or events shall constitute a Force Majeure Event.

11. TRANSACTIONS AND TRADING

11.1. The Client acknowledges and accepts that no Transactions are performed via the System whatsoever. When the Client completes a Transaction on the Platform, the Client agrees it is not dealing with the Company. Transactions and trading of Instruments are performed and facilitated by the Broker.

11.2. The use of the Platform, the Brokerage Services or any Transactions performed by the Client, or under the Client’s Account Credentials, shall be regulated by the applicable Brokerage Services Agreement.

11.3. All funds and currencies utilised in respect of the Brokerage Services belong to the Client and are not held or controlled by the Company. The Company shall not be responsible for, or involved in, any financial aspect of the Brokerage Services whatsoever.

12. REFUND POLICY

12.1. The Client has five (7) business days (the “cooling-off” period) after payment to request a refund.

12.2. Once the Client has received the Trading Strategy Indicators (Demo or Live), Training Material and Training on the System and/ or Trading Strategy no refund may be claimed as the Client would have received Trade Secrets and Trading Advantage on the Stock Market even if this falls within the first (7) business days of purchase.

13. ACCOUNT CREDENTIALS

13.1. Upon registration for the Brokerage Services, the Broker shall provide the Client or its authorised personnel with Account Credentials unique to such Client or such authorised personnel (if any). The Account Credentials are necessary to access and use the Platform and Brokerage Services.

13.2. The Account Credentials in turn are used to register and link the System with the Platform and the Brokerage Services. Accordingly, the Client is obliged to provide the Company with access to the Client’s Account Credentials in order to register the Client on the System.

13.3. The Client is responsible for ensuring that the Client’s Account Credentials remain confidential and for taking such other precautions as may be necessary to ensure the Account Credential cannot be used by any person other than the Client or its authorised personnel. The Client should not disclose their Account Credentials to any unauthorised person.

13.4. The Client shall be responsible for all Transactions effected under the Client’s Account Credentials.

13.5. The Client shall be responsible to log out from the Client’s Account Credentials at the end of each session on the System to prevent unauthorised use of the Client’s Account Credentials.

14. INTELLECTUAL PROPERTY RIGHTS

14.1. The provision of this clause shall apply to the Affiliates of each Party.

14.2. The System is licensed to the Client by the Company and not sold to the Client. In respect of the System and the Services as well as all derivative works thereof (by whoever created) all copyrights, trademarks, logos, know how, patents and any Intellectual Property therein is and shall remain owned solely by the Company. No Intellectual Property is transferred or assigned under this Agreement.

14.3. The Client shall not:

14.3.1. Assign, sublicense, transfer, pledge, lease or rent the System or any rights thereto under the Agreement;

14.3.2. Decompile, disassemble, reverse engineer, create derivative works of, or reproduce or otherwise attempt to derive source code, underlying ideas, algorithms, file formats or programming of the System or any parts thereof;

14.3.3. Develop methods to enable unauthorised parties to use the System;

14.3.4. Work around any technical limitations in the System, or use any tool to enable features or functionalities that are otherwise disabled in the System;

14.3.5. Use similar processes and functions to develop competing features or functions with the System;

14.3.6. Use the System or any Market Data to conduct any fraudulent, inappropriate or illegal activities.

14.4. Any modifications, design changes and improvements made to the System, based on feedback the Client provide to the Company, shall be the exclusive property of the Company.

14.5. The Parties shall not publish the other Party’s name, logo or trademark in any marketing, advertising or promotional material, without such Parties prior written consent.

 

15. PROTECTION OF PERSONAL INFORMATION

15.1. The provision of this clause shall apply to the Affiliates of each Party.

15.2. For the purposes of this clause, the term “process” (as well as any derivation thereof) shall include collection, receipt, recording, organising, collation, storage, updating, alteration, consultation or use.

15.3. For the purposes of this clause, the Company shall be the Responsible Party and the term ‘‘Responsible Party’’ shall mean the person which, alone or in conjunction with others, determines the purpose of, and means for, processing Personal Information.

15.4. The Parties agree that any Client’s Personal Information may only be processed in accordance with the provisions of the Protection of Personal Information Act, 4 of 2013. Therefore, the Parties expressly record that a Client’s Personal Information may only be processed:

15.4.1. For the purposes of this Agreement;

15.4.2. For lawful purposes;

15.4.3. Subject to adequate disclosure of the purpose and intended use of such information;

15.4.4. In accordance with the stated purpose and intended use of such information. In the event Personal Information is required to fulfil a different purpose, the Responsible Party shall notify the Client thereof and request the necessary consent prior to processing the Personal Information for such purpose;

15.4.5. By an authorised person;

15.4.6. Only for as long as the processing of such information is necessary in terms of this Agreement;

15.4.7. Subject to the relevant authorised person implementing reasonable technical and organisational measures to secure the integrity and confidentiality of such information as well as prevent loss, damage, and unauthorised or unlawful access thereto.

15.5. The Company may collect and use the Client’s technical data and related information, including but not limited to technical information about the Client’s recent Transactions. The Client agrees that the Company may use this information, as long as it is in a form that does not personally identify the Client, to identify, analyse and assess the Client’s trading history and trading decisions that the Client took.

15.6. In order to use the System, the Client must register with the Company and will be required to provide personal details, which may include identity documents, as the Client’s Personal Information.

15.7. The Company may make enquiries or carry out checks as to the Client’s identity and other personal information as may be required by the Financial Intelligence Centre Act 38 of 2001 or any other anti-money laundering or anti-corruption laws or regulations applicable to the Service or the Client.

15.8. The Client agrees and undertakes to provide true, accurate, current and complete Personal Information as requested by the Company or as prompted by the System registration process.

15.9. In the event the Company becomes aware of any illegal activity, impropriety in the Personal Information or failure of any due diligence requirement the Company may immediately, without notice, restrict the Client’s access to the System.

16. PRIVACY POLICY

16.1. The Client hereby authorises the Company and/or any Broker to collect, use, store, analyse, reproduce, publish, and adapt (either on its own or through any Broker) the information in relation to the Client or the Client ‘s use of the System.

16.2. The Company may use information provided by the Client to enforce the provisions of this Agreement; data analysis; improving the System; monitoring Client usage and activity; provide Client support services; and assist Client’s with technical difficulties. The Company may retain such information for as long as is required to fulfil its business objective, even after your account is terminated.

16.3. The Company does not directly process any payments and does not store the Client’s credit card information.

16.4. The Company reserves the right to disclose the Client’s personal information as required in order to comply with the Company’s legal obligations, including but not limited to complying with court orders, warrants, subpoenas, service of process requirements, or discovery requests. The Company may also disclose information, about Clients, to law enforcement officers or others, in the good faith if the Company is of the opinion that such disclosure is reasonably necessary to enforce this Agreement; respond to claims that any Content violates the rights of third-parties or protect the rights, property, or personal safety of the Company, Client or the general public.

17. CONFIDENTIAL INFORMATION

17.1. The provision of this clause shall apply to the Affiliates of each Party.

17.2. Having regard to the fact that the Client shall acquire knowledge of the Company’s Confidential Information, the Client acknowledges and agrees that is shall not, during the existence of this Agreement or at any time thereafter, use, disclose or divulge, directly or indirectly, the Confidential Information to any person who is not a Party to this Agreement.

17.3. The Client shall take all such steps as may be reasonably necessary to prevent the Company’s Confidential Information from falling into the hands of unauthorised third parties.

17.4. The Client shall treat the Company’s Confidential Information as private and confidential and shall safeguard it as it would its own.

17.5. The Client shall keep the Company’s Confidential Information in a secure environment and shall not copy the Company’s Confidential Information except as may be reasonably necessary for the performance of its obligations in terms of this Agreement.

17.6. In the event access to the Company’s Confidential Information is given the Client’s employees, advisers or agents:

17.6.1. The Client shall ensure that such employees, advisers or agents have agreed to be bound by all the terms of this Agreement pertaining to confidentiality, intellectual property or non-disclosure;

17.6.2. The Client shall take whatever steps are necessary to prevent its employees, advisors or agents from performing any unauthorised disclosure of the Confidential Information to third parties;

17.6.3. The Client hereby indemnifies the Company against any loss, harm or damage which it may suffer as a result of the unauthorised disclosure of the Confidential Information by such employees, advisers or agents.

17.7. The Client acknowledges that the unauthorised disclosure of the Company’s Confidential Information to a third party may cause substantial loss, harm and damage to the Company and its Affiliates and therefore the Company would be within its rights to claim any such losses, harm or damage from the Client as a result of such unauthorised disclosure.

17.8. The Client indemnifies the Company against any loss, harm or damage which it may suffer as a result of the unauthorised disclosure of the Confidential Information by the Client, its employees, advisers or agents.

17.9. Any documentation or records relating to the Company’s Confidential Information which comes into the possession of the Client during the existence of this Agreement or at any time thereafter:

17.9.1. Shall be deemed to form part of the Confidential Information;

17.9.2. Shall be deemed to the property of the Company;

17.9.3. Shall not be copied, reproduced, published or circulated by the Client;

17.9.4. Shall be surrendered to the Company on demand and the Client shall not retain any extracts therefrom.

18. FORCE MAJEURE EVENTS

18.1. Without limiting the generality of the defined term, a “Force Majeure Event” may include any one or more of the following:

18.1.1. Any act, event or occurrence (including any strike, riot or civil commotion, act of terrorism, war, industrial action, acts and regulations of any governmental authorities) or any breakdown or failure of transmission, communication or computer facilities, interruption of power supply, or electronic or communications equipment failure that, in the Company’s opinion, prevents the ordinary operation of the System;

18.1.2. The suspension or closure of any Market or the occurrence, abandonment or failure of any Instrument;

18.1.3. An act of God, act or threat of terrorism, war, revolution, riot, insurrection, civil commotion, public demonstration, sabotage, act of vandalism, explosions, lightning, fire, flood, storm, drought, earthquake or extreme weather;

18.1.4. A Governmental restraint or act of Parliament or other legislation, by-law, regulation or directive having the force of law (such restraint, Act, other legislation, by-law or directive arising or coming into effect after the Signature Date) of any authority having jurisdiction over any party to this Agreement, or any inability to obtain, or the cancellation of, any consent, approval or license rendering it unlawful for such party to comply with its obligations in terms of this Agreement; and/or

18.1.5. A national or regional shortage of electricity or any delay or failure in the supply thereof.

18.2. Upon the occurrence of a Force Majeure Event, the Company may, in the Company’s absolute discretion, without notice and at any time, restrict the Client’s access to the System.

18.3. During the continuance of a Force Majeure Event:

18.3.1. If the Force Majeure Event does cause delays in or failure or partial failure of performance by the Company of all or any of its obligations under this Agreement, such affected performance shall be suspended for the period during which the Force Majeure Event prevails; and

18.3.2. The Company shall take all reasonable steps, within the ambit of its power, to remedy the Force Majeure Event and to minimise the effect of such circumstances upon the performance of its obligations under this Agreement. The provisions of this clause shall not require the Company to settle any strike or other labour dispute on terms unacceptable to the Company; and

18.3.3. The Company shall keep the Client fully informed as to the status of such event on which it relies.

18.4. The Client agrees that the Company will not be liable in any way to the Client or to any other person in the event of a Force Majeure Event. The Parties shall be released of all responsibilities for partial or full non-fulfilment, as well as for improper fulfilment of the obligations under this Agreement.

18.5. The Agreement and all the terms thereof will remain in force and such events will not infringe on any rights of the Company or relieve the Clients from any terms as set out in this Agreement.

19. ARBITRATION

19.1. The provisions of this clause are severable from the rest of this Agreement and shall remain in effect despite the termination or invalidity, for any reason, of this Agreement.

19.2. This provision of this clause constitutes an irrevocable consent by the Parties to any proceedings in terms hereof and no Party shall be entitled to withdraw therefrom or claim at any such proceedings that it is not bound by such provisions.

19.3. For the purposes of this clause, the term “Dispute” includes any dispute arising out of or in connection with this Agreement and/or the interpretation and/or implementation and/or termination thereof.

19.4. Either Party shall be entitled at any time to demand, by written notice to the other (“Dispute Notice”), that a Dispute be submitted to the following dispute resolution procedure. Any Dispute shall in the first instance be referred to the Parties' senior executives for resolution and in the event of the Dispute not being resolved within 14 (fourteen) calendar days (or longer as may be agreed in writing between the said executives) from the date of receipt of the Dispute Notice, the Dispute shall be referred to arbitration.

19.5. Any Dispute Notice given in terms of this clause shall clearly describe the Dispute as well as state the conditions under which the complaining Party will consider the Dispute resolved and, upon receipt of such notice, the Parties shall be bound thereto.

19.6. Subject to the provisions of this clause, an arbitration shall be held under the provisions of the arbitration laws for the time being in force in Delaware and provided further that:

19.6.1. The arbitrator shall be if the question in issue is:

19.6.1.1. Primarily an accounting matter, an independent practicing accountant of not less than 10 (ten) years standing;

19.6.1.2. Primarily a legal matter, a practicing senior counsel or attorney of not less than 10 (ten) years standing;

19.6.1.3. Any other matter, a competent independent person with the necessary expertise and at least 10(ten) years experience;

19.6.2. The Parties hereby agree to keep the arbitration including the subject matter of the arbitration and the evidence heard during the arbitration confidential and not to disclose it to anyone except for the purposes of an order to be made in terms of clause

19.7. The arbitration shall be held in accordance with the formalities and/or procedures settled by the arbitrator, and may be held in an informal and summary manner, on the basis that it shall not be necessary to observe or carry out the usual formalities of procedure, pleadings and/or discovery, or the strict rules of evidence.

19.8. Until such time that the arbitrator rules on an order as to costs, each party shall be liable for his own costs and the parties shall share the costs of the arbitrator, the arbitration venue, the recording and transcription services of the proceedings.

19.9. The arbitrator shall, in respect of the arbitration proceedings as well as the Dispute in general, be entitled to:

19.9.1. Investigate any matter, fact or thing which such arbitrator considers necessary or desirable in connection with the Dispute and for that purpose shall have the widest powers of investigating all the books and records of any party to the Dispute, and the right to take copies or make extracts there from and the right to have them produced and/or delivered at any reasonable place required by him for the aforesaid purposes;

19.9.2. Interview and question under oath any of the parties to the Dispute, and/or any director, officer or affiliate of the parties;

19.9.3. Make a cost order that it deems fit in the circumstances;

19.9.4. Make such award, including an award for specific performance, and interdict, damages or a penalty of otherwise as the arbitrator, it its sole discretion may deem fit and appropriate.

19.10. The arbitration shall be held as quickly as possible after it is demanded with a view to being completed within 30 (thirty) days after is has been so demanded.

19.11. Immediately after the arbitrator has been agreed upon or nominated, any of the parties to the Dispute shall be entitled to call upon the arbitrator to determine a date and place when and where the arbitration proceedings shall be held and to settle the procedure and manner in which the arbitration proceedings will be held.

19.12. Any award that may be made by the arbitrator:

19.12.1. Shall be final and binding; and

19.12.2. Shall be carried into effect; and

19.12.3. May be made an order of any court to whose jurisdiction the Parties to the Dispute are subject.

19.13. The provisions of this arbitration clause shall not preclude either Party from obtaining interim relief on an urgent basis from a court of competent jurisdiction pending the decision of the arbitrator.

20. REPRESENTATIONS AND WARRANTY

20.1. The provision of this clause shall apply to the Affiliates of each Party.

20.2. The Client warrants to and in favour of the Company, that:

20.2.1. The Personal Information provided to the Company during the registration for the System and at any time thereafter is complete, true, accurate in all respects;

20.2.2. It is duly authorised to execute and deliver the Agreement;

20.2.3. It understands how a Transaction operates;

20.2.4. It understands the terms and conditions of the Agreement, and any legal and financial implications thereof;

20.2.5. The Client has obtained all relevant governmental or other authorisations and licenses required by the Client in connection with the Agreement and in connection with performing Transactions and such authorisations and licenses are in full force and effect and all of their conditions have been and will be complied with;

20.2.6. The Client has taken all reasonable steps to understand the specifications and characteristics of the System and the associated hardware, software, data processing and telecommunication systems and networks required to access and operate the System; and

20.2.7. The execution, delivery and performance of the Agreement and the Client’s use of the System shall not violate any law, ordinance, charter, by-law or rule applicable to the Client, in the jurisdiction in which the Client is resident, or any agreement by which the Client is bound or by which any of the Client’s assets are affected.

21. INDEMNITY

The Client indemnifies the Company, its Affiliates and their employees, contractors, representatives, agents, franchisees and distributors (“Indemnified Parties”) against all liabilities, losses, damages, penalties, costs, expenses, legal fees and disbursements (which shall be recovered on an attorney and own client scale) and any other costs incurred by the Indemnified Parties as a result of any action, claim, demand or proceeding brought against them, arising out of the wilful or negligent act or omission or breach by the Client, the Client’s employees, contractors, representatives, agents or Affiliates of any of the terms or conditions of this Agreement as well as any damage, loss, injury or death suffered by the Client, the Client’s employees, contractors, representatives, agents or Affiliates due to the Client’s non-compliance with any legislation or any other action or failure of the Client, the Client’s employees, contractors, representatives, agents or Affiliates be it through negligence or otherwise.

22. DISCLAIMER

22.1. The Company, specifically does not warrant that:

22.1.1. The System will meet the Client’s requirements;

22.1.2. The Client’s equipment, software, and communication connections will be compatible with the System;

22.1.3. The use of the System will be uninterrupted, secure or error-free;

22.1.4. It will be able to prevent third party disruptions of, or the operation of, the System; or

22.1.5. It will detect every bug in the System.

23. LIMITATION OF LIABILITY

23.1. The Company shall not be liable for, and is released from, all claims and losses arising out of any:

23.1.1. Act or omission by any person obtaining access to the Client’s Account Credentials, whether or not the Client has authorised such access;

23.1.2. Disruption of the Client’s connections to the internet or communication failures or delays;

23.1.3. Loss to or corruption of any of the Client’s data or records, whether stored on the System or not, or lack of back-up thereof;

23.1.4. Security breaches resulting in part or in whole from third-party software or networking goods or services or from actions or events outside the Company’s reasonable control;

23.1.5. Use of the System that is not in strict compliance with the Agreement.

23.2. The Company shall never be liable to the Client for any loss (whether direct or indirect) of:

23.2.1. Revenue or profits;

23.2.2. Anticipated savings;

23.2.3. Goodwill or injury to reputation;

23.2.4. Business opportunity; or

23.2.5. Corruption to data;

in each case arising out of or in connection with the Agreement.

23.3. Use of the System is at the Client’s sole risk and that the entire risk as to satisfactory quality, performance, accuracy of the System is with the Client.

23.4. To the maximum extent permitted by applicable law, the System is provided "as is" and “as available”, with all faults and without warranty of any kind.

23.5. The Client acknowledge that the System has not been developed to meet the Client’s individual requirements and that it is therefore the Client’s responsibility to ensure that the facilities and functions of the System meet the Client’s requirements.

23.6. The Client acknowledge that the System may not be free of bugs or errors and the Client agree that the existence of any minor errors shall not constitute a breach of any of the terms of the Agreement.

24. RECORDS

24.1. The Company records, unless shown to be wrong, will be evidence of the Client’s dealings with the Company in connection with the System.

24.2. The Client will not rely on the Company to comply with any record keeping obligations the Client may have, although records may be made available to the Client on request in accordance with the requirements of applicable law and, otherwise, in the Company’s absolute discretion.

25. GOVERNING LAW

25.1. The Parties:

25.1.1. Agree that all matters arising out of or in connection with the interpretation, implementation, termination or cancellation of this Agreement shall be governed in accordance with the laws of force in the state of Delaware from time to time and the law of the state of Delaware shall be deemed for all purposes to be the proper law of this Agreement;

25.1.2. Consent and acknowledge that the High Court or, at the option of the Company, the Magistrates Court shall have jurisdiction in regard to any legal proceeding arising out of, or in connection with, this Agreement, or its breach, notwithstanding that the amount of a claim may exceed the jurisdiction of the latter Court.

26. BREACH

26.1. If any Party is in breach or fails to observe any of the provisions of this Agreement (“Defaulting Party”) and fails to remedy such breach or failure within 7 (seven) business days of having received written notification from the non-defaulting Party to do so, the non-defaulting Party shall, in addition to any other remedies available to it in law, be entitled to institute action against the Defaulting Party, claiming:

26.1.1. Cancellation of this Agreement with immediate effect; and/or

26.1.2. Recovery of any damages which it may have suffered; or

26.1.3. Enforce specific performance;

26.2. The Defaulting Party shall be liable for all costs and expenses (calculated on an attorney and own client scale) incurred as a result of or in connection with the Defaulting Party’s breach of this Agreement.

26.3. Any breach notice given in terms of this clause shall clearly:

26.3.1. Define and stipulate the nature of the breach or failure;

26.3.2. Draw attention to the provisions of this clause;

26.3.3. State the conditions under which the complaining Party will consider the breach or failure as remedied.

27. TERMINATION

27.1. Either Party (“Terminating Party”) may terminate this Agreement by written notice to the other Party (with immediate effect) in the event the other Party:

27.1.1. Is dissolved or wound-up;

27.1.2. Files legal process pertaining to such Party’s insolvency or liquidation;

27.1.3. Commits an act of insolvency or enters liquidation or has appointed to it any form of liquidator, administrator or similar official or becomes a party to, or attempts to enter into, any arrangement with its creditors (or any class of them) or is unable to pay its debts as and when they fall due or enters into business rescue proceedings;

27.1.4. Fails to comply with any representation or warranty contained herein;

27.1.5. Fails to comply with any applicable laws in the performance of this Agreement;

27.1.6. Purports to assign, cede, change or otherwise transfer this Agreement without the prior written consent of the Terminating Party;

and the other Party shall have no claim against the Terminating Party with respect of such termination unless otherwise stated in this Agreement.

28. LANGUAGE

The Company may at its discretion provide a translation of this Agreement and/or provide an option to view all or part of the System’s written content in another language, however the English version of this Agreement shall at all times govern the relationship between the Client and the Company and the English version shall prevail in the event of any conflict with a translated version.

29. DOMICILIUM CITANDI ET EXECUTANDI

29.1. The Company elects the following as its domicilium citandi et executandi (hereinafter referred to as “Domicilium”):

651 N. BROAD ST.

SUITE 206

MIDDLETOWN

DELAWARE

UNITED STATES

19709

29.2. The Client is required to elect a Domicilium as part of this document.

29.3. The Client elects the following as its domicilium citandi et executandi (hereinafter referred to as “Domicilium”):

__________________________

__________________________

__________________________

__________________________

__________________________

 

29.4. The Parties choose their Domicilium for all purposes under this Agreement, whether in respect of court process, notices or other documents or communications of whatsoever nature (including the exercise of any option).

29.5. Any notice or communication required or permitted to be given in terms of this Agreement shall be valid and effective only if in writing, however it shall be competent to give notice by email (provided such notice is addressed to an email address expressly nominated by the respective Party to serve as a Domicilium).

29.6. Any Party shall by written notice to any other Party change the address chosen as its Domicilium to another address.

29.7. Any physical Domicilium address must be located within the Republic of South Africa and may not be a poste restante.

29.8. Any notice to a Party:

29.8.1. Sent by prepaid registered post (by airmail if appropriate) in a correctly addressed envelope to it at its Domicilium shall be deemed to have been received on the 7th (seventh) business day after posting (unless the contrary is proved); or

29.8.2. Delivered by hand to a responsible person associated with the recipient during ordinary business hours at its Domicilium shall be deemed to have been received on the day of delivery. The Sender shall be entitled to affix the notice to the premises in the event the recipient is not present and such affixing shall be sufficient service; or

29.8.3. Sent by email shall be regarded:

29.8.3.1. As sent by the sender when it enters an information system outside the control of the sender or, if the sender and recipient are in the same information system, when it is capable of being retrieved by the recipient; and

 

29.8.3.2. As having been received by the recipient when the complete data message enters an information system designated or used for that purpose by the recipient and is capable of being retrieved and processed by the recipient; and

29.8.3.3. As having been sent from the sender's usual place of business and as having been received at the recipient's usual place of business.

29.9. Notwithstanding anything to the contrary herein contained, a written notice or communication actually received by a Party shall be an adequate written notice or communication to it notwithstanding that it was not sent to or delivered at its chosen Domicilium.

30. ELECTRONIC COMMUNICATIONS AND TRANSACTIONS

This Agreement may also be entered into by electronic means by accepting the terms thereof electronically in terms of the Electronic Communications and Transactions Act 25 of 2002.

 

The client acknowledges that the Tsunami Pro Trader Strategy only works successfully when taking one trade a day, with no back-to-back trades.

30.1. Any claims from the Client of non-performance or that the System does not work needs to be accompanied by the following;

30.1.1. The Clients trade history

30.1.2. Screen shot or capture of the System displaying the 15-minute timeframe of the specific instrument at the time of the Transaction

30.1.3. Screen shot or capture of the System displaying the 1-hour timeframe of the specific instrument at the time of the Transaction

30.1.4. Copy of the completed “Trade Entry Confirmation” sheet that was completed prior to the Transaction

30.1.5. Screen shot or capture of the completed O&R analysis of the specific instrument at the time of the Transaction

 

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