12. FAILURE TO SETTLE
12.1 In respect of the Private Client Execution Service, the Client represents to Rivkin Securities that it is, and at all times during its dealings with Rivkin Securities will be in a position to meet all commitments arising out of its dealings with Rivkin Securities and the Broker.
12.2 In respect of the Private Client Execution Service, the Client agrees that where they fail to pay the Broker for Securities/Derivatives purchased within the Settlement Period, Rivkin Securities may instruct the Broker to:
a. sell those Securities/Derivatives; and
b. sell any other Securities/Derivatives held by the Broker on the Client’s behalf; at the Client’s risk and expense (which shall include, without limitation, brokerage, goods and services tax and stamp duty) and apply the proceeds arising from such sale in reduction of the Client’s liability to Rivkin Securities. The Client releases Rivkin Securities and holds Rivkin Securities harmless for any loss sustained by the Client as a consequence of the sale of Securities/Derivatives in such circumstances.
12.3 Rivkin Securities may charge the Client Interest if the Client does not complete the purchase or sale of Securities/Derivatives within the Settlement Period. In addition, the Client indemnifies Rivkin Securities for any costs or charges levied (either by the Broker or any other person) on Rivkin Securities directly or indirectly from the Client’s failure to complete the purchase or sale within the Settlement Period. Interest means 6.00% (GST exclusive) above the Reserve Bank’s Cash Rate calculated and payable daily of the cash value of the transaction of the Securities which were to be bought or sold until the amount due is paid.
12.4 Notwithstanding any other clause to the contrary in this Agreement, the Client authorises Rivkin Securities to contact the Broker (and to provide to such person a copy of details of the amount owing to Rivkin Securities) and to direct such Broker (and such person is by these terms authorised and directed to make such payment) to pay to Rivkin Securities from any funds held by such person for the benefit of the Client or from the proceeds of sale of any Securities/Derivatives held by the Client such amount as may be claimed by Rivkin Securities to be owing to it under the terms of this Agreement.
13. INDEMNITY AND LIABILITY
a. The Client indemnifies and agrees to keep indemnified Rivkin Securities from and against all claims (or threatened claims), suits, demands, damages, costs, (including legal costs incurred in dealing with any threatened claim), expenses made by any person against Rivkin Securities and any other amounts howsoever characterised which arises directly or indirectly from Rivkin Securities providing the General Advice and/or Private Client Execution Service to the Client.
b. Without limiting paragraph (a) above, the Client indemnifies and agrees to keep indemnified Rivkin Securities against any claim (or threatened claim), suit, demand, cost, expenses or any other amount made by any person against Rivkin Securities in respect of any instructions or authority given to Rivkin Securities by the Client.
13.2 Rivkin Securities will indemnify the Client against any loss sustained by it pursuant to this Agreement as a direct result of Rivkin Securities’ dishonesty or fraud and provided further that such loss can be reasonable contemplated by Rivkin Securities at the time of making this Agreement.
13.3 In the event that the Client suffers any loss as a direct result of Rivkin Securities’ dishonesty or fraud in the performance of the General Advice and/or the Private Client Execution Service, then the Client must use its utmost best endeavours to expediently mitigate any such loss.
13.4 The Client holds Rivkin Securities harmless and releases it from any liability in respect of any loss, harm or damage:
a. incurred by the Client as a result of the Client’s use of the Private Client Execution Service in breach of the Agreement or from use of the Private Client Execution Service in a manner or for a purpose not reasonably contemplated by Rivkin Securities;
b. arising from a decision made by the Client on the basis of information obtained through the use of the Private Client Execution Service or any General Advice;
c. suffered by the Client including economic loss, as a result of delays in executing the orders (as part of the Private Client Execution Service) for the Client and acknowledges Rivkin Securities makes no guarantees about the time taken to execute an order on behalf of the Client;
d. suffered by the Client (including lost profits or economic loss), as a result of system failure caused by the Technology, or other information technology (or the like) which Rivkin Securities is not the intellectual property owner.
13.5 The Client indemnifies Rivkin Securities from and against all claims, demands, actions, proceedings, costs, expenses, damages, loss and other liabilities suffered by any person where the Client has directly or indirectly provided unauthorised access or reproduced or disclosed the Private Client Execution Service or General Advice to such person (whether directly or indirectly).
13.6 The Client acknowledges that Rivkin Securities relies on third parties in providing the Technology and releases Rivkin Securities from any harm, loss or damage they may suffer as a result of the failure of such information technology.
14. FORCE MAJEURE
14.1 No failure or omission by Rivkin Securities to perform or observe the terms and conditions of this Agreement will:
a. give rise to any right of action or claim against it; or
b. be treated for any purpose as a breach of this Agreement; if such failure or omission arises from any cause reasonably beyond the control of Rivkin Securities.
15. DURATION AND TERMINATION
15.1 This Agreement commences on the Commencement Date and continues until terminated in accordance with this Agreement.
15.2 This Agreement terminates following 5 Business Days written notice by either party to the other to that regard.
15.3 The provision of the Private Client Execution Services to the Client are terminated immediately on the occurrence of the first of any of the following events:
a. termination of the Private Client Agreement;
b. the Broker becoming insolvent or upon the termination or suspension of the Broker;
c. the expiration of 5 Business Days following Rivkin Securities receiving a written notice from the Client to that regard;
d. immediately upon Rivkin Securities providing written notice to the Client to that regard; or
e. immediately upon termination of this Agreement.