These terms and conditions (the “Terms and Conditions“) apply to the provision of certain services to you (“you“) by ERAD TECHNOLOGY HOLDING (“ERAD“, “us“, “our“, “we“) and its Associates. The Terms and Conditions contain the core information defining our business relationship with you, including the provision to you by ERAD of the financial service of arranging for credit. ERAD is a company incorporated and registered in the Cayman Islands with company number CR-385923, whose registered office is Clara Formations (Cayman) Limited George Town Financial Center, Suite 306 90 Fort Street, PO Box 10061 Grand Cayman, Cayman Islands KY1-1001. These Terms and Conditions contain important information regarding the services that we will provide to you for your own protection. You should read them carefully before accepting them. Please let us know as soon as possible if there is anything which you do not understand or please visit our Website at ae.erad.co and ask for further information. These Terms and Conditions together with any schedule(s), annexes, accompanying documents and/or supplemental agreements (as may be amended from time to time) form an agreement between you and ERAD (the "Agreement").
GENERAL INFORMATION
1.1 Our Particulars: ERAD TECHNOLOGY HOLDING is incorporated in the Cayman Islands.
1.2 Communication with us: You may communicate with us in writing, including; email or other electronic means, or orally (including by telephone). The language of communication will be the English language, and you will receive documents and other information from us in the English language. If a document is translated into another language this will be for information purposes only and the English version will prevail at all times.
1.3 Our Website: Our Website at https://www.erad.co contains further details about us and our services and other information, relevant to this Agreement and our Website. In the event of conflict between this Agreement and the Website, this Agreement will prevail.
1.4 Capacity: we treat you as a client when conducting business with you, and you will benefit from the regulatory protection afforded to that category of client protection under applicable regulations in relation to such business.
1.5 Applicable Regulations: This Agreement and all Transactions are subject to Applicable Regulations so that:
(i) if there is a conflict between this Agreement and any Applicable Regulations, the latter will prevail;
(ii) nothing in this Agreement will exclude or restrict any obligation which we have to you under Applicable Regulations;
(iii) we may take or omit to take any action we consider necessary to ensure compliance with any Applicable Regulations;
(iv) all Applicable Regulations and whatever we do or fail to do in order to comply with them will be binding on you; and
(v) such actions that we take or fail to take for the purpose of compliance with any Applicable Regulations will not render us or any of our directors, or officers, employees liable.
1.6 Independent Decision: You must make an independent decision as to whether or not to enter into a Transaction with us and get financing through the ERAD Platform subject to this Agreement.
1.7 Conflicts of Interest: We are required to have arrangements in place to manage conflicts of interest between us and our clients and between different clients. We operate in accordance with a conflicts of interest policy which we have put in place for this purpose, under which we have identified those situations in which there may be a conflict of interest, and in each case the steps we have taken to manage that conflict ("Conflict of Interest Document") a copy of which is found in Schedule 1. Any changes and/ or moderations to the Conflict of Interest Document will be available at all times at https://www.erad.co.
1.8 Market Abuse: By entering into any Transactions you represent and warrant that:
(i) you will act in accordance with any Applicable Regulations;
(ii) you are not acting in any way which is intended to or may be considered to be "Market Abuse"(as such term is defined in the Applicable Regulations); and
(iii) you are not acting with the intention of contravening any other provision of the Applicable Regulations.
SCOPE AND APPOINTMENT
2.1 Commencement: You acknowledge and agree that:
(i) you have not relied on or been induced to enter into this Agreement by a representation other than those expressly set out in this Agreement;
(ii) you have read and understood the terms and conditions including but not limited to the customer account agreement of the Third Party Provider before opening an account with the Third Party Provider; and
(iii) you understand that the management of your funds held with the Third Party Provider will be governed by the terms and conditions of the Third Party Provider.
2.2 Scope of this Agreement: This Agreement sets out the basis on which we provide services to you. ERAD provides a digital platform for the purposes of arranging for credit with a Third Party Provider. During the course of your relationship with us, you represent and warrant to us that you:
(i) are duly authorised to enter into this Agreement;
(ii) are a business;
(iii) have not previously been suspended or removed from the services provided by ERAD or any of our Third Party Providers;
(iv) your registration and your use of the services provided by ERAD is in compliance with any and all Applicable Regulations;
(v) may not authorise another user to use the services provided by ERAD on your behalf; and
(vii) are not a United States Resident.
2.3 Processing of your subscription: The ERAD app is free to use. However, you may wish to make use of ERAD’s subscription service where you are provided with additional features, such as access to research from Refinitiv, to enhance your market knowledge. We will use reasonable endeavours to process your subscription promptly. We do not guarantee that your subscription will be activated by any specific time. You will not be provided with access to ERAD subscription service until we have successfully verified your payment and contact details. You will receive email confirmation when your subscription has been accepted.
2.4 Unless specifically stated in any subscription offer, if you chose an auto-renew option for your subscription, you agree that at the end of the initial subscription period (and of each renewal period thereafter), your subscription will automatically renew for the same subscription period at the then prevailing Subscription Fee, which may be amended from time to time. If you do not choose an auto-renewal payment option, we will contact you at the end of the subscription period with an offer to renew your subscription.
2.5 Cancellation: You have a period of 60 days within which to cancel your subscription. This period commences on the date on which your subscription is confirmed.
2.6 Account Opening: To enter into a Transaction, you must open accounts with ERAD and the Third Party Provider. To apply for such accounts, you will need to complete an online application form and provide us with information that we request, so that we can identify you, verify your identity, conduct fraud checks, sanctions checks, anti-money laundering and counter-terrorism checks, and any other checks as required by Applicable Regulations, or as required by our internal procedures. This means we will require you to provide us with personally identifiable information, the countries where you are a tax resident and any other information which is required under Applicable Regulations.
2.7 Third Party Provider: You acknowledge and agree that ERAD has entered into an agreement, or agreements, with Third Party Provider(s).
2.8 By making use of the services provided by ERAD you acknowledge and agree that ERAD does not handle cash and does not provide financing. All financing and cash are provided by a Third Party Provider.
2.9 You acknowledge and agree that you will enter into a separate customer agreement with the Third Party Provider which will govern your relationship with the Third Party Provider.
2.10 You acknowledge and agree that ERAD does not supervise the Third Party Provider and will not be responsible, and will not be liable, for any of the Third Party Provider's actions. In the event of any disputes between you and the Third Party Provider, you will resolve such disputes directly with the Third Party Provider.
FEES, PAYMENT, REVENUE
3.1 Platform Fees: ERAD charges a fee that is a minimum of 2% and a maximum of 5% out of the financing amount.
3.2 ERAD will have the right to levy such fees and charges ("Fees") (in the manner determined by ERAD) in relation to any service offered by ERAD pursuant to this Agreement as prescribed by ERAD from time to time.
3.3 You note that ERAD may incur the costs, fees, charges and/or expenses of third parties in the delivery of the services to you. Such costs, fees, charges and/or expenses will be governed by the terms and conditions of such third parties.
3.4 Any payments due to us under this Agreement will be payable in same day funds in such currency as we may from time to time specify and to the bank account designated by us for such purposes.
3.5 Any payments due to us under this Agreement are:
(i) exclusive of VAT or any other similar taxes, and you will in addition pay an amount equal to any VAT chargeable on those sums; and
(ii) will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of Tax as required by law). If you are required by law to deduct or withhold Tax you will pay to us additional amounts as may be necessary to ensure that we receive a net amount equal to the full amount we would have received had such payment not been subject to a deduction or withholding of Tax.
3.6 ERAD may, in its sole discretion, amend the Platform Fee and/ or any other Fees payable by you upon thirty (30) days prior notice.
3.7 Third Party Payments: In respect of Transactions which we enter with you, unless expressly affirmatively agreed between us in writing:
(i) We reserve the right not to comply with any request by you to make a payment or a delivery to a third party; and
(ii) Where we become aware that funds have been paid to us and/or the Third Party Provider or a delivery made to us other than by you, we reserve the right to refuse such payment or delivery.
3.8 The amount of fees, as well as the nature of fees, may change from time to time. ERAD reserves the right to adjust its existing fees and add new fees at its sole discretion. You acknowledge that the prevailing fees may change. We will always notify you of the changes in fees which will apply to your account at least 30 days before these changes become effective.
NO ADVICE
4.1 Instruction Only: In respect to each Transaction, we will deal with you solely on an Instruction-Only Basis. We will not advise on the merits of any Transaction or the taxation or other consequences hereof.
4.2 Own Judgement and Suitability: In entering into any Transaction, you represent that you have been solely responsible for making your own independent appraisal and investigations into the risks of the Transactions. You represent that you have sufficient knowledge, market sophistication, professional advice and experience to make your own evaluation of the merits and risks of the Transaction.
USE OF THE ERAD PLATFORM
5.1 Your access to and use of the ERAD Platform is subject to:
(i) your compliance with the terms of this Agreement; and
(ii) Your compliance with any guidelines for using the ERAD Platform which are posted on or provided through the ERAD Platform (as may be amended from time to time); and
(iii) our privacy policy (as may be amended from time to time).
5.2 In the event of any inconsistency between the terms of this Agreement and the terms of the guidelines and/or privacy policy, the provisions in the guidelines and/or privacy policy will prevail.
5.3 Any amendments to the guidelines and/or privacy policy will take immediate effect.
5.4 You acknowledge that we will have sole discretion and control over, and the right to modify at any time, the ERAD Platform and its functionality, configuration, appearance and content, including without limitation:
(i) the parameters and methods by which Transactions are placed, routed, marketed or otherwise processed by the ERAD Platform; and
(ii) the availability of the ERAD Platform to any user or with respect to particular Financial Instrument, or Transactions at any particular places, times or locations.
5.5 You agree to be bound by the various legends, disclaimers, terms and conditions displayed on or linked to the ERAD Platform and/ or the Website. Such legends and disclaimers may be updated and/or modified from time to time without prior written notice thereof to you.
USER CONTENT
6.1 Third Party Content: You acknowledge and agree that certain content is provided by third-parties and made available to ERAD by or through social media websites, blogs, wikis, online conferences, telecasts, podcasts, and other forums (collectively, the "Forums"). Such content is not advice created or provided by ERAD and does not constitute a recommendation to buy, sell, or hold any security or securities. Reliance on any third party content available on or through the Forums is used at your own risk and ERAD will not be responsible or liable to you for the performance by the third party or their services and whether they have exercised reasonable care and diligence in the selection of the same.
6.2 Uploading Content: Whenever you make use of a feature that allows you to upload content to our Website and/or ERAD Platform, or to make contact with other users of our Website and/or ERAD Platform any content you upload must not:
(i) be defamatory of any person;
(ii) contain material which is obscene, discriminatory, offensive, hateful, threatening or inflammatory;
(iii) infringe any copyright, database right or trademark of any other person;
(iv) be likely to deceive any person;
(v) promote any illegal activity;
(vi) be likely to harass, upset, embarrass, alarm or annoy any other person; or
(vii) be used to impersonate any person, or to misrepresent your identity or affiliation with any person.
6.3 Any content you upload to our Website and/or ERAD Platform will be considered non-confidential and non-proprietary. You retain all of your ownership rights in your content, but you are required to grant us and other users of our Website and/or ERAD Platform a limited licence to use, store and copy that content and to distribute and make it available to third parties. We also have the right to disclose your identity to any third party who is claiming that any content posted or uploaded by you to our Website and/or ERAD Platform constitutes a violation of their intellectual property rights, or of their right to privacy.
6.4 You are solely responsible for securing and backing up your content.
6.5 The Website and/or ERAD Platform may include information and materials uploaded by other users of the site, including to bulletin boards and chat rooms. This information and these materials have not been verified or approved by us. The views expressed by other users on the Website and/or ERAD Platform do not represent our views or values. If you wish to complain about information and materials uploaded by other users please contact us.
YOUR INFORMATION
7.1 Confidentiality: The obligations relating to client confidentiality as set out in this clause 7 and the Privacy Policy shall not apply to any information:
(i) we provide to our employees, officers, representatives, group companies, affiliates, advisers or credit reference agencies who need to know such information for the purposes of carrying out obligations under or in connection with this Agreement or providing us with services relating to the subject matter of this Agreement.'; and
(ii) as may be required - by law, a court of competent jurisdiction or any governmental or regulatory authority.
7.2 Data Protection: Before providing us with any information in connection with this Agreement, please read our privacy policy (the "Privacy Policy").
7.3 ERAD may collect, use and store the personal information which you provide from time to time including Personal Data and Sensitive Personal Data . Personal Data may include information provided for the purpose of compliance with anti-money laundering regulations and information deriving from transactions that ERAD facilitates on your instructions.
7.4 You consent to us using and holding your Personal Data in accordance with our Privacy Policy.
7.5 In particular, ERAD may use the Personal Data that it collects:
(i) to open your ERAD Account and enable related arrangements;
(ii) to supply the services;
(iii) for client service, analysis and market research purposes;
(iv) to undertake credit and reference checks and/or to recover a debt or for the purposes of legal proceedings; and/or
(v) for general account administration purposes.
7.6 You acknowledge and agree that ERAD may share your Personal Data in the following circumstances:
(i) where ERAD uses your Personal Data to assess your eligibility for the services and to verify your identity;
(ii) ERAD may share Personal Data with its affiliates and with third parties who may administer and operate the ERAD Account from time to time. ERAD will always take appropriate measures and meet its legal obligations to ensure that any Personal Data transferred to such third parties is kept securely;
(iii) on an assignment of the obligation and rights under this Agreement, or if ERAD restructures its business or the whole or any part of its business is sold then ERAD may transfer your information to the relevant third party provided this is in line with statutory data protection requirements; and
(iv) ERAD may share your Personal Data with local and overseas law enforcement agencies or regulatory authorities and other relevant bodies for crime prevention purposes.
7.7 ERAD will retain copy records for a period of six (6) years or otherwise stipulated by us from the date of termination of your Agreement. ERAD may scan and retain all hard copy documentation including Personal Data within our data storage system indefinitely. Retained data may be archived off-site and can usually be retrieved within three (3) working days. ERAD may seek to recover reasonable expenses for retrieval of any such data after the date of termination of your Agreement.
7.8 For the avoidance of doubt, ERAD will at all times collect, use and store Personal Data
TRANSACTIONS
8.1 Entering Transactions: The ERAD Platform will display the financing offers that are extended to you by the Third Party Provider. You enter into the Transaction by accepting a financing offer that is displayed on the platform.
8.2 If we do not accept your application, we will not instruct the Third Party Provider to extend a financing offer, or if we cancel your application, we will inform you by making that information available on the ERAD Platform, unless there is a legal reason that we cannot provide this information to you.
8.3 A Third Party Provider may deduct our fees using the money in your financing to pay fees, costs or charges which become due and payable.
8.4 ERAD will transmit your application and data to effect a transaction to the Third Party Provider for execution, based on your instructions. We will not advise you about the merits of any transactions. We will be dealing on an Instruction-Only Basis. All deals are arranged on your behalf with the Third Party Provider.
8.5 We do not have to make sure that any transaction is suitable or appropriate for you..
8.6 Instructions to ERAD: ERAD will act on your instructions to undertake (on your behalf) such actions as may reasonably be required for ERAD to pass orders and effect transactions through a Third Party Provider on your behalf.
8.7 You will execute and deliver any authorizations and documents as may be reasonably necessary for ERAD to carry out the arranging services under this Agreement.YOUR
OBLIGATIONS
9.1 You acknowledge that ERAD will be relying on the information or documents provided by you to ERAD. It is your responsibility to ensure that information or documentation provided by you to ERAD is complete, accurate and not misleading in any material respect and that you have notified ERAD of any information which could be relevant to the performance of ERAD's duties under this Agreement.
9.2 Further, we may, from time to time, require additional information and/or documents (including as required by anti-money laundering regulations and any other similar regulations applicable to us ("AML"), as well as for anti-fraud measures or any other related internal procedures), or clarifications to information and/or documents which you have provided to us. The information you provide to us must be complete, accurate and not misleading. If you do not provide us with the required information, or if you provide inaccurate, incomplete or misleading information, we will not be able to open a ERAD Account for you, or, if you already have a ERAD Account, we may freeze, block, or close your ERAD Account.
KEEPING YOUR ACCOUNT(S) SAFE
10.1 If we accept your application, we will open a ERAD Account for you. You will need to choose a username and a password to access your ERAD Account and we may also require other security details. It is your responsibility to take all reasonable steps to keep your ERAD Account safe. You should select a password that is not easy to guess (such as using a combination of uppercase and lowercase letters, numbers and symbols) and is a unique password for your ERAD Account. We recommend that you do not reuse a password previously used by you for other platforms/services.
10.2 You will need to change your security details immediately and contact us as soon as possible if you think someone else knows them. We may block access to your ERAD Account or block access to our services if we believe that it is necessary for security or legal reasons. For example, if we think someone may have access to or is using your ERAD Account without your permission. We may contact you to provide you with new security details, or contact you to require you to change your security details.
10.3 You must not give any third party (including minors) any access to and/or control of your ERAD Account. If you elect to give another person access to and/or control of your ERAD Account, you do so at your own risk and we will not be responsible for the decisions of that third party.
INSTRUCTIONS AND COMMUNICATION
11.1 Instructions may only be provided by you through the ERAD Platform. All written communications should be directed to ERAD's registered office at the address set out in clause 17.3 of this Agreement and on our Website. Complaints should be notified to ERAD in accordance with clause 14.
11.2 ERAD will be entitled to act on any instructions reasonably believed to be from you or an authorized representative of you. It is your responsibility to keep the security details applicable to your ERAD Account safe and not share them with any other person. Where you have any reason to suspect that your security details have or might be compromised, you must contact us immediately.
11.3 You acknowledge that: a) ERAD may not accept instructions until it is able to satisfy itself that the instructions originated from you or an authorized representative of you; b) ERAD will not be responsible for any losses or loss of opportunity due to any delays arising from ERAD confirming the validity of instructions or the accuracy of instructions where they are, in ERAD's reasonable opinion, unclear.
11.4 ERAD will not be responsible for the advisability or suitability of transactions made at your instruction.
11.5 ERAD, in its sole discretion, may refuse to act on an instruction given by you or an authorized representative of you, where:
(i) it has reason to doubt the validity of the instruction; and/or
(ii) the instruction is not capable of being carried out on the ERAD platform.
11.6 ERAD will not be obliged to deal with any person to whom you may have disposed of or otherwise assigned or transferred to or encumbered any funds, assets or other entitlements held in or under your ERAD Account.
11.7 All communications between you and ERAD must be in English. By entering into this Agreement, you confirm that you can read and understand the English language. If you are in doubt as to the meaning of any clause in any document that we provide to you, please seek independent advice.
CLIENT FUNDS AND ACCOUNT FUNDING
12.1 We will not receive or hold any funds on your behalf. You acknowledge and agree that any funds relating to your Transactions will be held with the Third Party Provider.
12.2 You acknowledge and agree that you are solely responsible for reading and accepting the terms and conditions of the Third Party Provider before sending your funds to the Third Party Provider.
12.3 You can initiate a payment using a debit card through our platform after which the funds will be deposited into your account with the Third Party Provider. You acknowledge that ERAD will incur card processing fees and charges and other administrative costs in providing you with the convenience of making a deposit using your debit card and agree that we shall be entitled to apply an additional fee on top of the amount funded using your debit card, which shall be added to the total value of the card transaction to be authorised. Prior to making a payment using a debit card, you will be presented with the total amount of such fee that will be added to the value of the card transaction and be required to consent to this fee.
REPRESENTATIONS, WARRANTIES AND COVENANTS
13.1 Representations and Warranties: You represent and warrant to us as of the date of this Agreement and the date of each Transaction that:
(i) you have the power to execute, deliver and perform your obligations under this Agreement and all necessary action has been taken to authorise that execution, delivery and performance;
(ii) as at the date of each Transaction, you have all the necessary authority, powers, consents, licenses and authorisation and have taken all the necessary action to enable you lawfully to enter into such Transaction;
(iii) you have obtained from all relevant authorities all licences, permissions and consents required in order for you to enter into a Transaction and to perform your obligations under this Agreement;
(iv) this Agreement, each Transaction and the obligations created under them are binding upon you and enforceable against you in accordance with their terms and do not and will not violate the terms of any regulation, order, charge or agreement by which you are bound;
(v) no event of default ("Event of Default") or any event which may become (with the passage of time, the giving of notice, the making of any determination or any combination of the above) an event of default (a "Potential Event of Default") has occurred and is continuing with respect to you;
(vi) you act as principal and sole beneficial owner in entering into this Agreement and each Transaction;
(vii) any information which you provide or have provided to us in respect of your financial position, domicile or other matters is accurate and not misleading in any material respect;
(viii) except as otherwise agreed in writing by us, you are the sole beneficial owner of all funds you transfer to us or the Third Party Provider under this Agreement;
13.2 Covenants: You will:
(i) at all times obtain and comply, and do all that is necessary to maintain in full force and effect, all authority, powers, consents, licenses and authorisations referred to in this clause 15;
(ii) promptly notify us of the occurrence of any Event of Default or Potential Event of Default with respect to yourself.
(iii) use all reasonable steps to comply with all Applicable Regulations in relation to this Agreement and any Transaction, so far as they are applicable to you or us, and in any event you will at all times act with due skill and care.
COMPLAINTS
14.1 Complaints: If you have any complaint about our performance under this Agreement, you should direct that complaint to our Compliance Officer at compliance@erad.co, who will investigate the nature of the complaint in accordance with our complaints handling procedure to endeavour to resolve it. A copy of our complaints handling procedure is available on request. We have procedures for handling your complaints fairly and promptly.
14.2 Should we consider that the Third Party Provider is entirely or partly responsible for the matter complained of, we may refer your complaint to that institution. In this instance, we will firstly inform you that the Third Party Provider is entirely or partly to blame and will obtain your consent in writing to refer the complaint to the relevant institution.
14.3 We will try to resolve your complaint as quickly as possible and to your complete satisfaction.
TERMINATION
14.1 Termination: Unless required by Applicable Regulations, you may terminate this Agreement and the relationship between us by giving us 30 (thirty) days notice of termination using ERAD Platform. Upon receipt of your termination request we will notify the Third Party Provider to close your Third Party Provider Account. The redemption of your funds will be governed by the terms and conditions of Regulated Third Party's Customer Account Agreement.
14.2 Upon terminating this Agreement, subject to clause 14.1, all amounts payable by you to us will become immediately due and payable.
14.3 Existing Rights: Termination or expiry of this Agreement will not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination or expiry.
14.4 The following clauses will continue in full force
(i) clause 18 (Exclusions, Limitations and Indemnity);
(ii) clause 21 (Governing Law and Jurisdiction); and
(iii) any other clauses agreed between us in relation to such Transactions.
EXCLUSIONS, LIMITATIONS AND INDEMNITY
15.1 The ERAD Platform is provided "AS IS" on an "IS AVAILABLE" basis without any representations or any kind of warranties whatsoever (whether expressed or implied by law). We and our licensors disclaim to the fullest extent permitted by law all express, implied and statutory warranties, including without limitation, the warranties as to functionality, operability, accessibility, accuracy, correctness, reliability, updatedness, timeliness, satisfactory quality, merchantability, fitness for a particular purpose, and non-infringement of proprietary rights. Without limiting the foregoing, we do not warrant that our services, functions contained in or access to the Website and/or your ERAD Platform and/or the dashboard or other content will be timely, uninterrupted or error-free without omission, that defects will be corrected, or that the ERAD Platform or its contents are free of infection by computer viruses and/or other harmful or corrupting code, programme, macro and such other unauthorized software, or that the download, installation or use of any systems or content of the ERAD Platform in or with any computer will not affect the functionality or performance of the computer. We are not responsible or liable for the deletion or failure to store any content maintained or posted by or through the ERAD Platform.
15.2 The ERAD Platform may contain links to other websites which are not maintained by us. Similarly, other websites may contain links to the Website. We have no control over such sites and resources, and you acknowledge and agree that we are not responsible for the availability or contents of those websites and will not be liable for any damages or injury arising from the availability or contents of those websites. Any links to other websites are provided as a convenience to you as a user of the ERAD Platform and does not imply our endorsement of the linked website or association with their operators. We disclaim all responsibility and liability, direct or indirect, for any damage or losses (including any virus, spyware, malware, worms, errors or damaging materials contained in the linked sites) caused or alleged to be caused by or in connection with the use or reliance on any such content available on or through any such site or resource, which are accessed and used at your own risks.
15.3 Limitation of Liability: We will not be liable to you for any partial or non-performance of our obligations hereunder by reason of any cause beyond our reasonable control, including without limitation any breakdown, delay, malfunction or failure of transmission, communication or computer facilities, industrial action, act of terrorism, act of God, acts and regulations of any governmental or supra-national bodies or authorities or the failure by the relevant intermediate lender, agent or principal of our custodian, sub-custodian, dealer, market, clearing house, or regulatory or self-regulatory organisation, for any reason, to perform its obligations. Nothing in this Agreement will exclude or restrict any duty of liability we may have to you under the regulatory system, which may not be excluded or restricted thereunder.
15.4 Indemnity: You will pay to us such sums as we may from time to time require in or towards satisfaction of any debit balance on any of your Accounts with us and, on a full indemnity basis, any losses, liabilities, costs or expenses (including legal fees), taxes, imposts and levies which we may incur or be subjected to with respect to any of your Accounts or any Transaction or any matching Transaction on a market or with an intermediate lender or as a result of any misrepresentation by you on any violation by you of your obligations under this Agreement (including any Transaction) or by the enforcement of our rights.
FORCE MAJEURE
16.1 In the event of any failure, hindrance or delay in performance of ERAD's obligations under this Agreement where such failure, hindrance or delay arises directly or indirectly from circumstances outside ERAD's control, including, but not limited to acts or regulations of any governmental bodies or authorities or securities exchanges, any delay or changes in the market conditions, settlement system, a custodian refusing to act on ERAD's instructions or the breakdown, failure, disruptions or malfunction of any telecommunications or computer service, except for ERAD's own systems, ERAD will have no liability for any loss or change in the value of the assets in the Third Party Provider Account or any opportunity lost incurred as a result of above failure or delay.
MISCELLANEOUS
17.1 Amendments: We have the right to amend the terms of this Agreement. If we make any material change to this Agreement, we will provide you with at least thirty (30) Business Days written notice to you. Such amendment will become effective on the date specified in the notice. For the avoidance of doubt, any amendment to the Subscription Fees will be deemed material. If you do not close your Accounts prior to the date on which you are notified that the changes will come into effect, you will be deemed to have agreed to the changes and they will apply to your Accounts. Any other amendment must be agreed in writing between us. Unless otherwise agreed, an amendment will not affect any outstanding order or Transaction or any legal rights or obligations which may already have arisen.
17.2 Assignment: ERAD may on thirty (30) days' prior written notice (which may be via email to the email address provided to ERAD by you), assign its rights and/or obligations under this Agreement to a third party selected by ERAD, including by way of merger, consolidation or the acquisition of all or substantially all of ERAD's business and assets relating to this Agreement, provided that;
(i) doing so will not adversely affect your rights or obligations under this Agreement; and
(ii) the assignee is to ERAD's reasonable satisfaction able to provide an equivalent level of service and regulatory and commercial assurance.
17.3 Notices: Unless otherwise agreed, all notices, instructions and other communications to be provided by us under this Agreement will be given to the address or email provided by you. You will notify us of any changes to your address. All notices, instructions and other communications to be given by you to us under this Agreement will be given in writing using the details below or such other details as may be notified to you from time to time. Address:Clara Formations (Cayman) Limited, George Town Financial Center, Suite 306, 90 Fort Street, PO Box 10061, Grand Cayman, KY1-1001, Cayman Islands. Email: admin@erad.co For the attention of: Legal & Compliance Department
17.4 Electronic Communication: Subject to Applicable Regulations, any communication between us using electronic signatures will be binding as if it were in writing.
17.5 Recording of Calls: In order to comply with our regulatory requirements, we are required to record telephone conversations relating to Transactions. You consent to the recording of such telephone conversations and the use of such recordings and/or transcripts from such recordings for any purpose. The recordings and/or transcripts will be our sole property and you acknowledge and agree that they may be used as evidence of the orders or instructions that you provided.
17.6 Our Records: Our records, unless shown to be wrong, will be evidence of your dealings with us in connection with our services. You will not object to the admission of our records as evidence in any legal proceedings because such records are not originals, are not in writing or are documents produced by a computer. You will not rely on us to comply with your record keeping obligations, although records may be made available to you on request at our absolute discretion.
17.7 Your Records: You agree to keep adequate records in accordance with Applicable Regulations to demonstrate the nature of orders submitted and the time at which such orders are submitted.
17.8 Third Party Rights: This Agreement will be for the benefit of and binding upon us both and our respective successors and assigns. You will not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer your rights or obligations under this Agreement or any interest in this Agreement, without our prior written consent, and any purported assignment, charge or transfer in violation of this clause will be void.
17.9 Time of Essence: Time will be of the essence in respect of all your obligations under this Agreement (including any Transaction).
17.10 Rights and Remedies: The rights and remedies provided under this Agreement are cumulative and not exclusive of those provided by law. We will be under no obligation to exercise any right or remedy either at all or in a manner or at any time beneficial to you. No failure by us to exercise or delay by us in exercising any of our rights under this Agreement (including any Transaction) or otherwise will operate as a waiver of those or any other rights or remedies. No single or partial exercise of a right or remedy will prevent further exercise of that right or remedy or the exercise of another right or remedy.
17.11 Set-off: Without prejudice to any other rights to which we may be entitled, we may at any time and without notice to you set-off any amount (whether actual or contingent, present or future) owed by you to us against any amount (whether actual or contingent, present or future) owed by us to you. For these purposes we may ascribe a commercially reasonable value to any amount which is contingent or which for any other reason is unascertained.
17.12 Partial Invalidity: If, at any time, any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of this Agreement nor the legality, validity or enforceability of such provision under the law of any other jurisdiction will in any way be affected or impaired.
GOVERNING LAW AND JURISDICTION
18.1 Governing Law: A Transaction which is subject to the rules of a market will be governed by the law applicable to it under those rules.
18.2 This Agreement will be governed by and construed in accordance with the laws of the Cayman Islands.
18.3 Dispute Resolution: Any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination, will be subject to the exclusive jurisdiction of the Courts of the Cayman Islands.
INTERPRETATION
19.1 Defined Terms: In this Agreement "Accounts" means collectively the ERAD Account and the Third Party Provider Account. "Applicable Regulations" means each of the following, as in force from time to time:
(i) Cayman Islands Laws or any other rules of a relevant regulatory authority; and
(ii) All other applicable laws, rules and regulations.
"Associate" means an undertaking in the same group as us, a representative whom we or an undertaking in the same group as us appoints, or any other person with whom we have a relationship that might reasonably be expected to give rise to a community of interest between us and them.
"ERAD Account" means an account opened by you directly with ERAD for the purposes of arranging for credit with a Third Party Provider which will display in aggregate the status of your Third Party Provider Account(s).
"ERAD Platform" means the ERAD mobile application.
"Business Day" means a day which is not a Friday or a Saturday and upon which banks are open for business in the Cayman Islands.
"Financial Instrument" means and includes but is not limited to securities, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates or yields, or other derivatives instruments, financial indices, financial measures or commodities;
"Instruction-Only Basis" means we will convey your instructions to arrange to buy and sell securities through a Third Party Provider but will not give you advice about the securities and/or any Transactions.
"Retail Client" means any person who receives a financial service who is not a wholesale client.
"Third Party Provider" means an entity, including but not limited to a financing provider which carries out certain financial services activities including providing financing.
"Third Party Provider Account" means an account opened by you with a Third Party Provider.
"Subscription Fee" means the fees that are required to be paid by you to us on a monthly and/or annual basis for the duration of the subscription period.
"Tax" means any tax, levy, impost, duty or other charge or withholding of a similar nature (including any interest or penalty payable in connection with any failure to pay or any delay in paying any of the same).
"Transaction" means any transaction in a Financial Instrument or any other contractual arrangement entered into between you and us.
"United States Resident" means any natural person resident in the United States.
"VAT" means any value added tax and any other Tax of a similar nature.
"Website" means ERAD's website, as amended from time to time, which may be found at https://www.erad.co.
SCHEDULE 1
CONFLICTS OF INTEREST
This document sets out ERAD TECHNOLOGY HOLDING's ("ERAD") obligation to effectively manage the conflicts of interest that may arise where it provides services to you in the course of carrying on regulated activities. This document is not intended to create third party rights or duties or form part of any contractual agreement between ERAD and you. A conflict of interest arises when the interests of ERAD (including its Directors, employees' certain persons directly or indirectly connected to ERAD) or another client conflict with the interests of its clients to whom ERAD provides arranging for credit services. ERAD manages conflicts of interest fairly, both between itself and its clients and between a client and any another client. This includes:
1.1. Identification of conflicts: ERAD is required to take all reasonable steps to identify conflicts of interest between itself and its clients, and between a client and another client, whose existence may entail a material risk of damage to the interest of that client;
1.2. Managing conflicts: ERAD is required to maintain and operate effective organizational and administrative arrangements with a view to taking all reasonable steps to prevent a conflict of interest from constituting or giving rise to a material risk of damage to the interest of its clients;
1.3. Record of conflicts: ERAD is required to keep and maintain a record of the kinds of service or activity carried out by ERAD in which a conflict of interest that entails a material risk of damage to the interest of its clients has arisen or may arise;
1.4. Disclosure of conflicts: Before providing services to a client, ERAD is required to disclose to clients on a durable medium the nature and source of any conflict of interest that risks damage to the interest of the client and which are not avoided by ERAD's organizational and administrative arrangements; and
1.5. Conflicts Policy: ERAD is required to establish, implement and maintain a conflict of interest policy.
