14. Limitation of our liability and indemnity
14.1 You will indemnify and hold us harmless from any and all liabilities, claims, costs, expenses and damages of any nature, including, but not limited to, reasonable legal fees and any fees and expenses incurred in connection with litigation, arising out of or relating to your or an Authorised Person’s negligence, mistake or wilful misconduct, the violation of any Law by you, or the breach by you of any provision of this Agreement, if an Event of Default occurs.
14.2 We, our Directors, our Licensee, Service Providers, officers or agents, are not liable for any actions, claims, demands, proceedings, liabilities, losses, damages, costs and expenses except to the extent resulting from or caused by our negligence, fraud or dishonesty due to:
- us acting upon your instructions;
- refusal to act on your instructions;
- your default;
- any legal action;
- compliance with a direction, request or requirement;
- error, omission, non-receipt, or invalidity in your Instructions;
- problems involving the relevant Exchange, market participant, and or/failure of an Exchange, including any error, omission, interruption, deletion, defect, delay in operation or transmission, or any other factor;
- any events or circumstances that we cannot reasonably control;
- any Force Majeure;
- any delay, interruption, omission, failure, error or fault by us in passing on and executing your Instructions;
- market movements and other risks associated with the trading of Securities;
suspected or actual manipulative trading, including insider trading, false or misleading trading, market rigging and market manipulation; or
- faults, errors, defects, failures in the Website, the mobile app, other computer systems, or loss of access to your Account.
14.3 You also agree to promptly pay us for all damages, costs and expenses including reasonable legal fees and expenses, incurred by us in the enforcement of the provisions of this Agreement. Your obligations under this clause shall survive the termination of this Agreement.
14.4 We will use reasonable endeavours to execute Contracts or make payments to you or to any third party specified by you, in accordance with the timing specified in your Instructions. However, we will not be liable for any direct, indirect, special, incidental, punitive or consequential damages (including any loss of profits) incurred as a result of a delay in funds reaching your nominated account.
14.5 Nothing in this Agreement is intended to limit or exclude any liability we may owe you under any statutory rights you may have.
14.6 You acknowledge that you will be liable for any losses which may be realised as the result of entering into a Contract, regardless of the trading resources available in relation to your Account at the time the Contract is executed.
14.7 Subject to the provisions of the Corporations Act 2001 (Cth), Australian Securities and Investments Commission Act 2001 (Cth), Competition and Consumer Protection Act 2001 (Cth) and any other rights implied by law which cannot be excluded by agreement we and our Licensee, Service Providers our officers, employees and agents exclude liability for any losses arising directly or indirectly out of:
- a disruption to or failure of the service or error in processing a Transaction you have Instructed us to process in accordance with this Agreement. We will however correct any incorrect entry because of any disruption, failure or error and will adjust any Fees and Charges as appropriate. You agree to reimburse us any amount that has been erroneously paid to you as a result of such disruption, failure or error;
- any delay in providing any information or the Service to you;
- effecting an Instruction received from you which is unclear;
- our decision to stop offering the Service;
- a change in any law or a rule of an Exchange, an order or directive received from a foreign Exchange, suspension of trading, unlawful access to Service by an unauthorised person, or
- any Force Majeure.
14.8 Your liability to indemnify us will be reduced proportionately to the extent a negligent or fraudulent act of ours contributed to the loss.
14.9 You will be liable for losses caused by unauthorised Transactions where we can prove that you contributed to losses on the balance of probability:
14.9.1 through fraud or breach of the security requirements, or
14.9.2 from unauthorised Transactions because you unreasonably delayed notifying us after realising that the security of your Account had been breached.
14.10 If you are liable for losses under clause 14 you will be liable for the actual losses that occur between the time you realised, or should reasonably have become aware, that your Account’s security had been breached and when you actually let us know
14.11 Each indemnity in this Agreement is a continuing obligation, which is separate and independent from your other obligations, and survives termination of this Agreement.
14.12 We do not need to incur expenses or make Transactions on your behalf before enforcing our right of indemnity under these terms and conditions.
14.13 You indemnify us, our Licensee, Service Providers, our officers, employees, agents and our related bodies corporate for any losses arising directly or indirectly out of:
- your use of the Service;
- our acting on your Instructions;
- your failure to comply with this Agreement;
- your failure to comply with any legislation or Rule, whether foreign or domestic; and
- any of your acts or omissions or that of a person acting on your behalf.
- You agree to indemnify us, our Licensee, Service Providers and each of our respective members and associates, and the directors, officers, agents of either us indemnified parties) against:
- any losses, liabilities or expenses incurred by you arising out of, or in connection with, any of the indemnified parties acting under, or in connection with, this Agreement except to the extent that any loss, liability, or expense is caused by the negligence, fraud or dishonesty of any indemnified party;
- any losses, liabilities or expenses incurred by any indemnified party arising out of, or in connection with, a breach by you of any of your obligations under this Agreement;
- any losses, liabilities or expenses incurred by any indemnified party arising out of, or in connection with, any incorrect or misleading representation or warranty given by you under this Agreement; and
- you agree that the risk and liability for unauthorised instructions or fraud lies with you alone, and that you will indemnify us from all loss, costs and expenses arising from such unauthorised instructions or fraud, except to the extent resulting from or caused by our negligence, fraud or dishonesty. We hold the benefit of this indemnity on trust for each indemnified party.