15.4 Following termination of this Agreement and the receipt by Rivkin Securities of all money and fees payable to Rivkin Securities, the Client will then be released from any further obligations under this Agreement, other than its obligations under clause 14 which survive termination.
15.5 Upon termination of this Agreement:
a. the Client releases and discharges Rivkin Securities from all liability for damages or loss and from all sums of money, accounts, actions, proceedings, claims, demands, costs and expenses whatsoever which the Client has or had or at any time in the future may have or have had against Rivkin Securities for or by reason or in respect of act, cause, matter or thing arising out of or in connection with or incidental to the Private Client Execution Service, the General Advice and/or this Agreement; and
b. the Client remains liable to Rivkin Securities in respect of any amount owing to Rivkin Securities which is unpaid on the date of termination.
16.1 The Client acknowledges that information disclosed to it by Rivkin Securities (such as the Technology) pursuant to this Agreement or in the performance of this Agreement is confidential and is the property, and a trade secret, of Rivkin Securities.
16.2 Except as provided expressly in this Agreement, the Client agrees it will not and will not permit any of its officers, employees, agents, contractors, associates or anyone else to use or to disclose to any person the confidential information without the prior written consent of Rivkin Securities.
16.3 This clause does not apply to any information which:
a. is generally available to the public (other than as a result of the breach by the Client of the provisions of this clause); or
b. is required to be disclosed by law.
17.1 An undertaking, warranty, agreement, representation, provision or obligation in this Agreement which is made or given by or which applies to more than one person or which extends to or is for the benefit of more than one person binds and extends to or is for the benefit of, as the case may be, all of them jointly and each of them severally. In the event that the Client is two or more persons, then the rights under this Agreement by such persons are held as tenants in common.
17.2 This Agreement contains the entire understanding between the parties in relation to its subject matter. There are no express or implied conditions, warranties, promises, representations or obligations, written or oral, in relation to this Agreement other than those expressly stated in it or necessarily implied by law.
17.3 If any provision of this Agreement is invalid, void or unenforceable, all other provisions which are capable of separate enforcement without regard to an invalid, void or unenforceable provision are and will continue to be of full force and effect in accordance with their terms.
17.4 Rivkin Securities may at any time by notice advise the Client of an amendment to this Agreement and following the expiration of 7 days, such notice will amend this Agreement.
17.5 A notice or other communication will be taken, for the purposes of this Agreement, to have been given if:
a. personally delivered – upon delivery;
b. mailed – on the expiration of 2 Business Days after posting; or
c. sent by electronic mail or facsimile transmission – on the day it is sent (or, if that is not a Business Day, on the next Business Day).
d. For the purposes of sub clause 17.5, the contact details to which notices are to be sent are the Client details listed in the associated Rivkin Securities application form, and in respect of Rivkin Securities are as follows:
Po Box 1524
Double Bay NSW 1360
Telephone: +61 2 8302 3650
Facsimile: +61 2 8302 3601
Marked to the attention of the Compliance Department.
18.1 The Client cannot assign this Agreement without the prior written consent of Rivkin Securities.
18.2 Rivkin Securities can assign the whole or any part or parts of this Agreement as and when it may determine in its sole and unfettered discretion.
19. GOVERNING LAW AND JURISDICTION
19.1 The validity, interpretation and performance of this Agreement will be governed by and construed in accordance with the law of the State of New South Wales and of the Commonwealth of Australia which the parties acknowledge is the proper law of this Agreement.
19.2 Each of the parties irrevocably agrees that the courts of the State of New South Wales and of the Commonwealth of Australia will have jurisdiction to hear and determine any suit, action or proceeding, and to settle any disputes, which may arise out of or in connection with this Agreement and for this purpose irrevocably submits to the jurisdiction of such courts.
20. TELEPHONE RECORDINGS
20.1 The Client agrees that Rivkin Securities may electronically record all telephone conversations (with or without a tone warning device) among representatives of Rivkin Securities, the Client and Authorised Persons and that any of the electronic recordings may be submitted in evidence in any proceedings relating to this agreement or any transaction contemplated by this Agreement. In the event of any dispute as to the terms of a transaction any electronic recordings between the persons who entered into that transaction will be taken to be the preferred evidence of the terms of that transaction, notwithstanding the existence of any writing to the contrary.
21. DEPOSITS AND MARGINS
The Client agrees and acknowledges that:
21.1 Rivkin Securities may call the Client for a deposit or margin and such calls may be for the payment of money, or if Rivkin Securities so agrees, the lodgment of property in lieu of money, in such amount as determined by Rivkin Securities in its sole discretion, feels is necessary to protect itself from the personal obligation incurred by dealing in the financial products on behalf of the Client;
21.2 the Client will comply with and meet all such calls by paying the sum requested or lodging the property agreed within the time specified by Rivkin Securities;
21.3 Rivkin Securities may, in its discretion, request the Client to make all margin and deposit payments with respect to any financial product transactions directly to our agents and service providers affiliated with Rivkin Securities. Rivkin Securities agrees that any payments made by the client to such affiliate agent and service provider of Rivkin Securities pursuant to such a request will satisfy the Client’s obligation to make payments to Rivkin Securities;
21.4 liability for a deposit or margin arises at the time it is executed irrespective of the time at which any call is made, and such liability is not limited to the amount, if any, deposited with Rivkin Securities;
21.5 Rivkin Securities reserves the right whenever it deems appropriate to raise or lower the margin or deposit requirements, which may apply to existing positions as well as to new positions; and
21.6 the Client is responsible to pay any deficit owing to Rivkin Securities after closure, and if the Client defaults or refuses such payment, Rivkin Securities may apply the proceeds of any assets held by Rivkin Securities against that deficit.
21.7 Understand and acknowledge that Rivkin Securities reserves the right to close out the Client’s position if margin calls are not met within the time specified by Rivkin Securities;
21.8 Understand and acknowledge that during times of unusual market volatility, margins may be increased intra-day and margin calls may need to be met intra-day by the Client.