Master Client Mandate and Terms and Conditions Agreement
28 July 2023
RainFin (Pty) Ltd is RainFin is an accountable institution in terms of the Financial Intelligence Centre Act, No. 38 of 2001 (FICA) and FIC Amendment Act (FICAA, Act No 1 of 2017) and is obliged to comply with the provisions of these Acts, which include the duty to establish and verify the identity of Clients.
RainFin is a Registered Financial Services (FSB 45756) and Credit Provider (NCRCP 5587). RainFin has registered as Crypto Asset Services Provider with the Financial Sector Conduct Authority of South Africa (FSCA)
Table of content
RainFin Mandate and Master Agreement
1. Introduction - background and purpose of this agreement
1.1RainFin owns and operates the platform www.web3nk.io, enabling RainFin clients to acquire Security Tokens (Token): each of these Tokens represents an investment in Real Word Assets. They might offer equity, dividends, or yield returns for holders. They are akin to traditional securities but in a digital form, collectively on the platform they are called Digital Assets
1.2A Security Token (Token) is a cryptographic Token that represents on chain ownership in a real-world asset, such as shares in a company, real estate, shares in bank depoit notes , or participation in an investment fund. Unlike utility tokens, which grant access to a specific network or service, security tokens derive their value from an external, off chain tradeable asset. Because they represent ownership, they are subject to Financial Market regulations, meaning RainFin, and you have to comply with specific legal requirements as defined in this agreement before they can be bought, sold, transferred or exchanged.
1.3Each Security Token offered by RainFin is an independent financial asset, each with its own prospectus and terms and conditions. In accordance with the terms of this agreement and the individual product Prospectuses both parties mutually recognize and agree that the Tokens distributed by RainFin to you shall be deemed, treated, and possess all the rights and obligations equivalent to traditional financial instruments This tokenized representation confirms the client's ownership, entitlement, and interest, carrying with it all associated rights, benefits, and responsibilities in line with customary financial product practices and as stipulated elsewhere in this contract and the individual Product Prospectus.
1.4The platform provides investors with a choice of Tokens that can be redeemed underlying real-world assets, USDC or other selected Stable Coins. RainFin Regulated Finance Network www.web3nk.io lets you safely Buy, Sell and Send Tokens to whitelisted wallet addresses with no minimums, Borrow against your portfolio, or export freely tradable Bearer Tokens to Public Networks.
1.5RainFin distributes local and global financial instruments, including those denominated in multiple currencies such as the US Dollar and Euro, in addition, it allows investors to use these instruments as collateral for borrowing at specified rates in local currency. The tokenized structure of RainFin’s instruments enables divisibility, free trading with registered counterparties, and compatibility with public networks. Users of RainFin services agree to the structured terms, including conditions relating to short-term loan facilities, collateralization thresholds, liquidation procedures, and any applicable fees or penalties. Participation in RainFin requires adherence to all relevant regulations and compliance with specific licensing or legal requirements.
1.6RainFin does not hold any Fiat currencies on behalf of clients all transactions on the platform are completed using digital assets. Any transactions where clients’ funds are paid into RainFin trust accounts, or the issuer’s trust accounts are for subscriptions to financial instruments only.
1.7RainFin (Pty) Ltd is a Registered Financial Services (FSB 45756) Category 1.
1.8RainFin identifies potential Participating Investors and introduces them to various Issuers Issuer. RainFin provides contractually regulated services to both the Issuer and Investors.
1.9The Issuers outsource certain functions to RainFin, including distribution, record keeping, beneficial owner tracking, and cash and asset administration services for the Issuers of Digital Assets. RainFin automates many of these functions using Blockchain technology, thereby streamlining the distribution, primary and secondary market sales process.
2. Terms of Agreement
2.1The terms stipulated in this document form the core of the Mandate and Master Agreement between you and RainFin. "Terms" encompasses the contents of this document, its Appendices, and any other related documents that have been revised over time.
2.2The Mandate and Master Agreement outlines the services we offer, including custody, lending, account management, representation (or brokerage) on your behalf, and the distribution of financial instruments to you.
2.3By this Mandate and Master Agreement, RainFin, along with its chosen Representative, is granted authority to represent and transact for you, in alignment with the stipulations set forth. This agreement binds the parties involved: you, RainFin, Prime Asset Managers, and Opus - Chartered Issuances S.A., acting on behalf of its compartments.
2.4In granting this authority, you accept all associated risks, except where RainFin may be legally liable. You're responsible for ensuring RainFin adheres to the guidelines of this written agency agreement.
2.5All services provided, whether as an agent or principle, are termed as Transactions.
2.6Transaction terms are integrated into and governed by the Mandate and Master Agreement. Specific transaction details might be contained within an Appendix, a Term Sheet, or a directive you provide us.
2.7The entirety of your interaction with RainFin, encompassing all Transactions and services, is dictated by these Terms, and is termed an Account.
2.8There exists no other documented or implied terms or agreements for our services and Transactions.
2.9The Mandate and Master Agreement function as a foundational agreement. Each Transaction adheres to this foundational agreement, meaning all relevant Terms apply collectively. Transactions might be documented separately but remain under the umbrella of the Mandate and Master Agreement.
2.10To initiate your Account, you must complete the online signup and registration process and agree to abide by the Master Agreement's Terms.
2.11 RainFin holds the discretion to either approve or decline your registration.
2.12 The Terms are binding from the earliest of:
(a) Any mutually agreed time.
(b) RainFin’s acceptance of your application, as solely determined by RainFin; and
(i) If you are already a RainFin client, from the start of the day RainFin notifies you about these Terms. As this takes effect:
(A) All previous rights and liabilities persist. Any pre-existing open transactions continue under their original terms.
(B) Unless clause (a) applies, these Terms completely replace any prior agreements, making the Mandate and Master Agreement the sole binding document between you and RainFin.
2.13You affirm understanding all documents supplied, including these Terms and any disclosure statements relating to Financial Products or Services linked to your Account.
2.14Applicable Laws govern all Financial Product transactions and services.
2.15Our services do not include providing legal, tax, financial, or accounting advice. We don't act in a fiduciary role for you.
2.16These Terms aren't personalized financial counsel. RainFin's evaluation of services or products for you is strictly for its internal assessment and shouldn't be interpreted as a suitability review for your benefit.
3. Web3nk Account
3.1RainFin will set up one or multiple Accounts related to the Financial Products or services it offers you. This will encompass an account on www.web3nk.io. All Transactions you initiate as per these Terms will be logged in the appropriate Statement of Account created by RainFin. Regardless of the number of Financial Products or services, all your Transactions will be consolidated and reflected under a single Account.
3.2An account holder, termed "Client", can be a combination of two or more individuals. If the Client consists of multiple persons, the Account is considered jointly owned by them. This joint ownership presumption holds, regardless of any underlying partnership or agreements between the individuals, unless a legal determination states otherwise or RainFin provides a written agreement indicating the contrary.
3.3An Account can feature a custody component, although it isn't mandatory to always have this feature. When custody is included, it adheres to these Terms. It's important to note that there isn't a distinct "custody account".
4. Transactions are conducted on the web3nk platform.
4.1A Transaction is executed by you on the platform and includes purchasing of Tokens, sale of Tokens, and converting Tokens, lending, borrowing, in whole or in part.
4.2An Buy, Sell, Trade, Deposit, Fund, or Withdraw Order is an instruction and request to us to execute it to make a Transaction based on the terms of the Order (and subject to these Terms).
4.3Some or all variables of a proposed or indicative Order (including Fees, charges, and costs) may be described on the Platform, in an Appendix, in a Term Sheet, by email or other written communication with or agreed to by Client (e.g., a social media channel message to Client) or in a combination of any of those.
4.4We will execute your Orders subject to these Terms (including if applicable acting as your agent to broker a Transaction). We may decline to execute the Order for any reason.
4.5We will not be responsible for delays or errors in the transmission or execution of your Orders (except to the extent Non-excluded Liability).
4.6We may refuse to accept an Order and we may place a limit on any Order or place other conditions on the receipt of instructions or Orders, in our absolute discretion and for any reason. We will notify you of any refusal or limitation as soon as reasonably practicable, unless we are prevented by law or a direction from a regulatory authority from notifying you.
4.7We may cancel or amend an Order if (in our sole discretion) any one or more of the following has occurred, is reasonably likely to have occurred or will occur:
(a) if we are required by Applicable Laws to do so.
(b) if there is an error, whether made by us in pricing or otherwise material to the Order.
(c) you have engaged in conduct which is a material breach of these Terms.
(d) you are using our Financial Products during criminal activities or in breach of AML/CTF Laws; and
(e) it is appropriate, having regard to the desirability to maintain a fair and orderly system or market, or due to our obligations as a user of a Payment System or due to our other legal and regulatory obligations.
4.8We will make reasonable efforts to implement any instructions to cancel or to amend Orders as quickly as possible. If, however, an Order is filled prior to a cancellation or amendment instruction being implement, you are obliged to accept the Transaction on the original terms prior to your amendment or cancellation instruction, unless the Transaction is itself cancelled or amended.
4.9 We may execute Orders for you even in circumstances if we or our related entities and other associates:
(a) hold a principal position or deal in Financial Products partly or wholly like your Transactions, whether at different rates or prices.
(b) provide similar services to other persons in relation to the relevant Financial Products.
(c) have material price sensitive information relating to the relevant Financial Products; or
(d) have an actual or a potential conflict of interest or duties including, for example, a conflict of interest of which you are not aware and which we are unable to disclose to you.
4.10Notwithstanding any rule of law or equity to the contrary, RainFin is not disqualified from contracting with any person and no contract, transaction, or arrangement in which RainFin is in any way interested is avoided or made voidable by virtue of your agreement with us. RainFin is not obliged to notify you of any such other roles, contract, transaction, or arrangement nor is it liable to account to you for any profit realized by any such contract, transaction, or arrangement in connection with these Terms. RainFin is not required to make any disclosure to you concerning any such contract, transaction, or arrangement.
4.11These Terms permit us and our related entities to enter Transactions with you as principal and as your agent or as the agent for another person in a Transaction with you. We, an associate or other client of RainFin may take the opposite position in a Transaction with you. Your Orders may match opposite Orders of another person who is our client, and this may entitle us to derive profits or receive fees or other benefits from both Transactions (and as agent for both). Similarly, because we may deal as principal, then your Orders may wholly or partly match opposite orders entered by us as principal and you authorize us and consent to us charging you the Transaction Fees (if any) provided by these Terms.
4.12You are aware of and acknowledge the right of RainFin and its associates, related entities, directors and employees, either on their own account or on behalf of other clients or persons, to deal in any Transaction or take the opposite position to you in Transactions, if permitted (or, if not expressly permitted, then if not prohibited) to do so by the Business Law and Applicable Laws.
4.13You acknowledge that we do not operate any discretionary accounts unless we expressly agree in writing to discretionary authority over your account. We will, unless otherwise expressly provided by these Terms or as otherwise expressly agreed for a discretionary account, only act on your instructions (including those given by your Authorized Person).
4.14Unless otherwise specified in these Terms, all Orders will remain open until either cancelled by you or purged by the Platform. We do not accept responsibility for reinstating lapsed Orders or for contacting you to seek new instructions.
4.15 You must not give us an Order to enter a Transaction which would breach or cause us or any other person to breach the Business Law, the Rules or any other Applicable Laws including, without limitation, in relation to:
(a) creating a disorderly market or otherwise prejudicing the integrity or efficiency of the relevant market; or
(b) misleading or deceptive conduct.
4.16Your instructions to RainFin to enter a Transaction, your Order to RainFin to enter the Transaction and the Transaction remains valid and enforceable against you, without affecting your other liability to RainFin even if you (or your Authorized Person) are not authorized by your own rules (such as a corporate or trust constitution or an investment management agreement).
4.17You agree not to make any Claim against RainFin for any Loss incurred or suffered by you which arises in connection with the exercise of any power by Business Regulator or pursuant to Applicable Laws or any Rules which directly or indirectly affects your Transaction except to the extent that the Loss incurred or suffered is caused by Non-excluded Liability.
4.18RainFin will deal fairly and in due sequence with all client Orders having regard to regulatory requirements, market practices and RainFin’s compliance policies and procedures.
4.19To the extent that it is reasonably practicable to do so, RainFin will allocate all Transactions (including Transactions implemented pursuant to Orders placed on RainFin's own account) in the sequence in which RainFin receives those Orders, subject to filters and compliance review and to any delay or technical faults connected with or arising through the use of the Platform, a Payment System or any other delay that is outside the control of RainFin.
4.20The details of a Transaction will be provided to the Client as follows:
4.21 A written record specifically of a particular Transaction is referred to in these Terms as a Confirmation. It might also be described in communications with Client as a contract note or trade note. A Confirmation can state just the final details of the Transaction and be based on (and incorporate by reference) other details which are in the Order for the Transaction, unless by law the Confirmation must state all the details of the Transaction.
(a) If we choose, we will give you (or as you nominate) a Confirmation.
(b) If required by Applicable Law (and Applicable Law does not allow any agreement otherwise), we will give you (or as you nominate) a Confirmation.
(c) if we are required by Applicable Law to give you a Confirmation but Applicable Law allows you to agree not to receive a Confirmation, you agree not to receive a Confirmation sent to you but instead to rely on the Platform giving you substantially continuously available access to the information that would be in the Confirmation or, if available in the Platform, to receiving Confirmations through the Platform.
(d) You can agree with us, if permitted by Applicable Laws, not to give you a Confirmation or to provide Confirmations to an address or person nominated by you.
(e) Each Confirmation given by us is subject to the Applicable Laws and the correction of errors and omissions. RainFin may, at any time, reissue a Confirmation to correct any errors or omissions.
(f) You are responsible for promptly checking each Confirmation. You must immediately notify us if you become aware that there is an error in the Confirmation. We are entitled to assume that the Confirmation is correct unless you notify us of any error within 24 hours following us (or someone on our behalf) giving you the Confirmation or the Confirmation (or its equivalent) becoming available to you.
(g) You must settle the Transaction in accordance with its terms. If RainFin has allowed you any grace period for settlement by you, including by payment of Initial Collateral, the delivery of Digital Assets to RainFin or payment for purchased Digital Assets, the grace period is not a waiver of RainFin’s rights including to exercise it powers arising on Default by you.
5.1This clause contains provisions which, in addition to the other Terms, govern the use of the Platform. The Platform is any online or other electronic platform for delivery of services or any information service which we provide or make available to you (including, without limitation, all software and communication links) from time to time by which you may do any of the following:
(a) place your Orders or transmit other instructions to RainFin or other persons.
(b) enquire as to the availability or pricing or value of one or more Financial Products or Financial Services.
(c) receive market data and other information in relation to one or more Financial Products or Financial Services.
(d) receive Confirmations, Account balances, reports, statements, and other information in connection with your Account or Transactions; and
(e) upload documents, applications, or information.
In these Terms, we refer to the entire service as the Platform. It includes each separate channel of electronic delivery of services which we provide to you from time to time.
For the avoidance of doubt, Platform means the facilities, or any single facility, which you access, not facilities used by RainFin for its operations and which you do not access.
5.2 The Platform may be a solely or partly a proprietary service provided by RainFin (or its nominated agent), or a service provided to you by a third party pursuant to an arrangement with RainFin (for example, by an affiliate of RainFin). To the extent that the Platform is provided to you by RainFin, we grant you a non-exclusive and non- transferable license to use the Platform subject to these Terms.
5.3RainFin may refuse to accept or to place any Order in its absolute discretion without having to provide a reason.
5.4 RainFin will not be responsible for confirming the receipt of instructions or verifying the authenticity of your instructions.
5.5 RainFin has no obligation to resubmit Orders purged from the Platform.
5.6 You agree that:
(a) you must not use the Platform (or permit or procure any other person including any Authorized Person to use the Platform) until the Security Information has been provided by us.
(b) the Security Information is confidential.
(c) you are responsible for always maintaining the confidentiality and use of that Security Information and must procure that any Authorized Person maintains the confidentiality of the Security Information.
(d) you will not permit, consent, or allow any person (other than any Authorized Person in its capacity as your agent) to use the Security Information or to access or use the Platform using that Security Information.
(e) you will not provide, disclose, or make available the Security Information to any person (other than an Authorized Person in its capacity as your agent); and
(f) you must notify us immediately upon becoming aware of any unauthorized use of the Security Information or the Platform.
5.7You acknowledge and agree that:
(a) you are only permitted to access and to use the Platform, using the Security Information.
(b) we are entitled to rely on all instructions given by, on behalf of, or apparently on your behalf, using the Security Information; despite any other provision of these Terms, we are not liable for any Loss caused by us acting on instructions or other communications using the Security Information.
(c) there may be delays in the processing, execution, amendment, or cancellation of an Order (whether entered through the Platform or otherwise) and:
(i) an Order may be filled before an instruction for its amendment or cancellation is processed.
(ii) you remain liable to settle the original Order, until any relevant amendment or cancellation is implemented; and
(iii) RainFin will not be liable for any Loss incurred by you arising from any delay in the dissemination of market information, the processing of any Order or instruction to amend or cancel an Order, Force Majeure, or Market Risk.
(d) the execution of an Order placed through the Platform may be delayed by filters or other features of the system.
(e) we are not responsible for the decision to place any Orders submitted through the Platform, regardless of who enters such Orders and regardless of whether there is an error in the Order entry or for any delays.
(f) the Platform is provided on an "as is" basis and, except as required by law, we make no representations or warranties express or implied with respect to the Platform.
(g) the speed of information provided through the Platform is subject to several factors including, but not limited to, the speed of the user's internet connection, the user's settings, the number of concurrent users accessing the Platform and the volume of information being received and sent by the Platform.
(h) there are significant risks in dealing through the Platform because it is serviced by means of computer and telecommunications systems, even if generally accepted industry standards and practices are followed.
(j) you are responsible for providing and maintaining the communications equipment and services required for accessing and using the Platform and for any communication service fees and charges incurred by you in accessing and using the Platform.
(k) you must notify us immediately if you become aware of any inaccurate information being transmitted through the Platform including, for example, inaccurate content as to Orders, Transactions or Account balances.
(l) you must only use the Platform for your own business purposes unless you have disclosed to us in writing your other purpose of using the Platform and we have agreed to that in writing.
(m) Client must not have applied for, or continue to use, or allow another person to use, Client’s Account for a purpose which, in RainFin’s sole discretion, is or is materially for or in any degree facilitates one or more of the following:
(i) criminal, fraudulent, or illegal purposes, including for extortion, ransoming data or systems, fraud, money laundering or for financing terrorism or other illegal activities.
(ii) manipulating, corrupting, or otherwise harming another person’s smart contract, protocol, market, or Exchange.
(iii) data mining.
(iv) providing to others false, misleading, deceptive information or representations.
(v) using a WebCrawler or similar technique or tool to access the Platform or any part of it or to extract data.
(vi) reverse engineer or dissemble any part of the Platform including any source code, algorithms, underlying concepts, ideas, or procedures.
(vii) perform any unauthorized vulnerability, penetration, design or similar testing or challenge to any part of the Platform; and
(viii) disruption or damage to the Platform.
5.8You agree to be bound by any terms and conditions of access and use which we or any third-party provider of the Platform may specify and notify to you, from time to time, on reasonable prior notice to allow you to assess those terms and decide whether to continue with your Account.
5.9 You are responsible for (yourself or, if a corporate entity, by senior staff who represent you) reading, understanding, and complying with the details of the operational aspects of the Platform. It is important that you read and understand any user manuals and operational procedures or rules relating to the relevant Platform, and which are made available either by RainFin or the provider of the Platform. Further information on how to use and understand the Platform can be obtained on our website.
5.10Either you or your Authorized Person may place Orders with us using the Platform. You authorize each person who is an Authorized Person from time to time to enter Orders using the Platform in accordance with these Terms as your agent. You must provide us on request with a list of your Authorized Persons (containing their names and contact details) and any changes to the list.
5.11 You and each Authorized Person must satisfy any requirements (including without limitation requirements as to knowledge, training, testing, procedures, and controls) notified by us to you from time to time and you are solely responsible for ensuring that an Authorized Person satisfies these requirements.
5.12You are responsible for the consequences of any unauthorized disclosure or use of the Security Information, and for any actions or omissions by an Authorized Person.
5.13We (or any third party providing the Platform) may suspend, terminate, or impose conditions on the use by you or any Authorized Person of the Platform at any time without notice to you.
5.14If you are uncertain as to whether your Order has been received, you must make all reasonable attempts to verify whether the Order has been received, approved, and implemented prior to taking further action. You agree to issue specific cancellation or amendment instructions with respect to an existing Order and not to attempt to make changes by placing a second or duplicate Order. You will be solely responsible and liable for any duplicate instruction that you place.
5.15You agree not to contest the validity or enforceability of any electronic communications or transactions between yourself (including your Authorized Person) and RainFin based on the electronic nature of that communication or transaction.
5.16If a failure, interruption, or malfunction of electronic communication between the parties prevents an Order from being placed, cancelled, or amended then, neither party is liable to the other party for any Loss caused then by that failure, interruption, or malfunction.
5.17You acknowledge that all market data and information in relation to dealing, volumes and pricing for a market or an Asset provided through the Platform may be proprietary information of another person and any display, dissemination or other use of that information may be subject to restrictions imposed by the other person. You are responsible for complying with any such restrictions.
6. Custody of Digital Assets
6.1The extended concept of custody
(a) For these Terms, custody of Assets includes control of all or any part of the digital address of an Asset or pooled Assets of more than one (whether by digital keys or otherwise), even if:
(i) the Asset is not ordinarily considered to be property by the relevant governing law of the Asset or of a service in relation to the Asset.
(ii) there is no change in legal or beneficial ownership of the Asset because of that control, or
(iii) the Asset is subject to restraints or limits imposed by subjecting the Asset to security interests or to controls by way of blockchain-based rules, protocols, smart contracts, or procedures.
6.2Entitlement to Assets
(a) Assets allocated to your Account are held in custody for you. Your Account is exclusively conclusive as to which Assets are held in custody for you in your Account. No other Assets are held beneficially for or otherwise in custody for you.
(b) As between you and RainFin, you will be presumed to be absolutely and presently entitled to all rights comprised in any Asset which is subject to custody by these Terms unless the terms of any product or service expressly or by their clear context impose some limit to those rights or grant some right (such as by these Terms or by staking or lending).
(c) Other provisions relating to the custody of Assets may be set out in an Appendix from time to time, including for different Classes of Clients or for different kinds of Assets.
6.3Appointment for custody
Client appoints RainFin to hold Assets on these Terms.
6.4Duties of RainFin
(a) Holding Assets
(i) RainFin must hold Assets that are for the account of Client either:
(A) segregated for Client (from other clients’ Assets and from the Assets of RainFin); or
(B) for custody purposes aggregated with Assets of other clients of RainFin (but beneficially segregated from the Assets of RainFin) if RainFin determines that is necessary or prudent for the relevant Transaction, due to the nature of the Asset or due to market conditions (or any combination of that).
(ii) RainFin must segregate the Assets in its books for the account of Client (even if the Assets are aggregated with Assets of other clients).
(iii) Assets which are capable of being held in the name of a person and which are held in custody by RainFin must be registered in the name of RainFin or of a sub-custodian appointed by RainFin.
(iv) Assets which are incapable of being held in the name of a person but are controlled by managing a digital address of the Asset and which are held in custody by RainFin must be solely controlled by RainFin or by a sub- custodian appointed by RainFin except to the extent necessary for a Transaction requested by Client and otherwise subject to these Terms.
(b) Other custodial obligations
(i) In addition to its other obligations under these Terms, RainFin must:
(A) open and maintain custody records concerning the Assets in custody in the name of Client.
(B) open and maintain custody records concerning the Assets in custody for Client whose digital address is under the direct or indirect control of RainFin.
(C) provide and maintain proper and separate accounts to record all material details of Transactions in relation to the Assets.
(D) receive and hold Title Documents (if any) relating to the Assets on behalf of Client; and
(E) upon request, give all information and records relating to the Assets which are reasonably requested by Client.
6.5Custody services and the Corporations Act
(a) RainFin must use reasonable efforts to observe and to always comply in all material respects with the Corporations Act directly applicable to RainFin in its role under these Terms as custodian of the digital Assets.
(a) RainFin will provide Client with reports or access to the Platform that Client reasonably identify Assets held in custody for Client.
(b) RainFin must retain all records and books of account maintained by RainFin with respect to Client during the continuance of its appointment as custodian under these Terms.
(c) If Client enters into any separate services agreement with RainFin, the reporting obligations under that agreement apply in place of clause (a).
6.7Custody fees and expenses
(a) Custodian Fee
(i) RainFin is entitled to a fee (Custodian Fee) in such amount as specified and as varied from time to time by notice to Client.
(ii) The Custodian Fee is payable in the manner and at the time as may be agreed from time to time between Client and RainFin.
Client must reimburse RainFin for any costs, charges, and expenses (including registration fees, duties, taxes, imposts, and other government charges) incurred by RainFin in acting in accordance with these Terms in relation to the Assets. RainFin may deduct from Client’s Account the amounts owing to RainFin.
(c) RainFin’s custody expenses on termination
Upon termination of The Mandate and Master Agreement RainFin is entitled to:
(i) all fees as are then due to RainFin under these Terms, calculated until the date of termination.
(ii) all costs, charges, and expenses to which it is entitled under these Terms which have not been reimbursed at the date of termination; and
(iii) all fees, costs, charges, and expenses due to or incurred by RainFin up until the date the Assets are transferred to or at the direction of Client under these Terms. (Even if incurred after The Mandate and Master Agreement is terminated)
RainFin may deduct from Client’s Account the amounts owing to RainFin.
6.8Liability of RainFin for custodial services
(a) Extent of Liability
Except to the extent of Non-excluded Liability, and subject to paragraph (e), RainFin is not liable for, and does not indemnify Client for, any loss resulting from, Force Majeure, Market Risk and for RainFin’s acts or omissions or the acts or omissions of its agents, sub-custodians, employees or contractors. Despite any other term of these Terms, any limitation on the liability of RainFin set out in these Terms which would, if applicable, be contrary to law as it applies to Client and RainFin must be severed from these Terms and these Terms must be interpreted as though that provision never applied.
(b) Limitations of Liability
(i) Subject to clause (a), RainFin is not responsible for the title, validity, or genuineness, including good deliverable form, of any property or evidence of title of any property received by it, delivered by it, or controlled by it pursuant to these Terms.
(ii) Subject to clause (a), RainFin is not liable for anything done or not done by it in good faith in reliance upon any notice, request, consent, certificate or instrument reasonably believed by it to be genuine and to be passed, signed, endorsed or otherwise to be given by the proper party or parties.
(iii) Subject to clause (a), RainFin is not liable for any loss, damage or expense resulting from or caused by:
(A) errors by Client in its Orders or instructions to RainFin.
(B) Force Majeure.
(C) Market Risk; or
(D) failure by Client to act in accordance with RainFin’s operational policies and procedures that have been agreed to in writing by Client.
Except to the extent of Non-excluded Liability, and without prejudice to any indemnity allowed by law, this clause indemnifies RainFin against any costs, charges and expenses incurred in connection with RainFin providing the custody services in accordance with these Terms including (without limitation) RainFin’s costs and other liabilities incurred in investigating, assessing and prosecuting or defending any action or suit made by a third party against RainFin in relation to Client’s Assets or Transactions.
This indemnity is a continuing obligation, separate and independent from the other obligations of Client, and survives termination of these Terms.
(d) Consequential Loss
Except to the extent of Non-excluded Liability, nothing under this clause requires Client to compensate RainFin for any consequential loss.
6.9Custody and Tax Law
(a) Domestic Tax Law
RainFin has no responsibility or liability for any obligations now or in the future imposed on Client, or RainFin as custodian of the Assets by the tax laws of any jurisdiction or any state or political sub-division of the jurisdiction.
(b) Payment of Tax and Other Expenses
RainFin is not liable to account to Client for any payments:
(i) to any fiscal authority for taxes or other charges with respect to any Assets; or
(ii) with respect to any transaction under these Terms,
notwithstanding that any such payment ought not or need not have been made.
(a) Client authorizes RainFin to exercise any right to vote attached to an Asset.
(b) RainFin must inform Client of any material change regarding RainFin’s policy for exercise of voting rights.
(c) If Client enters into a separate services agreement with RainFin or a Related Entity of RainFin for voting, then the provisions of that agreement relating to voting rights override this clause.
7. Appointment of authorized persons
7.1RainFin may accept your authorization of another person (Authorized Person) to give instructions and to place Orders on your behalf or otherwise to do anything which you are entitled to do in connection with or under these Terms. You must notify RainFin in your Application Form or otherwise in writing in a way permitted by RainFin of any such authorization, giving the details and identification of that person and any other information required by RainFin to identify the Authorized Person.
7.2Any change or revocation of such authority is only effective upon receipt by RainFin of a signed written notice of change or revocation from you. If another person is later appointed an Authorized Person, the notice must include the full name, telephone number, email address and specimen signature of that person and be verified by an Authorized Person and any other information required by RainFin to identify the Authorized Person and, if you are a body corporate, by a director.
7.3 You may appoint an attorney (under a power of attorney in the relevant jurisdiction) to give instructions and place orders on your behalf or otherwise to do anything which you are entitled to do in connection with or under these Terms. You must notify RainFin in writing of any such appointment giving the attorney’s details. You must provide RainFin with a copy of the power of attorney; RainFin may accept or reject this power of attorney.
7.4RainFin may allow a client which is a corporation or other legal entity to authorize a person (who is by that authorization an Authorized Person) or an attorney to do anything which Client is entitled to do under these Terms, including on conditions determined by RainFin.
7.5RainFin may allow any Client of a legal type not mentioned elsewhere in these Terms to authorize its Authorized Person or attorney to do anything which Client is entitled to do under these Terms, including on conditions determined by RainFin.
7.6For the purposes of these Terms, Orders placed by, and other instructions or directions given by, an Authorized Person (or which appear to us on the face of the Orders or other instructions or directions to be placed or given by an Authorized Person) are taken to be your Orders, instructions, or directions.
7.7 You are and remain solely liable and responsible for all acts and omissions of your Authorized Person notwithstanding the act or omission of the Authorized Person was:
(a) outside their actual or ostensible authority; or
(b) in error, fraudulent, negligent, in breach of their fiduciary duties or criminal.
7.8You agree not to make, and you release us from any liability to you under your right to make, any Claim against us for any Loss incurred or suffered by you which arise directly or indirectly due to us relying on instructions from or other communications from or acts or omissions by your Authorized Person (including your attorney).
8. Acknowledgement by the Client
8.1You, the Client, acknowledge and confirm to RainFin for RainFin’s benefit in relying on the following:
(a) you (or, if a corporate entity, your directors) have read and understood all documentation provided to you by us including these Terms and any product disclosure statement (Disclosure Statement) in relation to any Financial Products or Financial Services which you request RainFin to make available to you in relation to your Account (including provision of those documents by way of being sent a link to a webpage or portal providing those disclosures);
(b) all dealings in Financial Products or Financial Services and the performance by us of our obligations under these Terms are subject to Market Risk and to Applicable Laws.
(c) RainFin always relies on your representation that you will be able to make payments and fulfil all commitments on your part arising under these Terms and under the conditions applicable to dealings between you and RainFin.
(d) RainFin relies on your agreement by these Terms to notify us within 24 hours of receiving a Confirmation (including by way of accessing the Platform) if you object to any part of the Confirmation.
(e) we will not provide legal, tax, financial or accounting advice to you as part of the services that we provide to you.
(f) by these Terms (including any Transaction made under it) we do not act in a fiduciary capacity in relation to you and RainFin does not owe any fiduciary obligations to you in respect of its services provided to you in connection with these Terms except and only to the extent of custody of your Assets held in your Account.
(g) the respective duties, undertakings, obligations, and rights of you and of RainFin by these Terms are not identical or mutual due to the differences in the relationship by which RainFin provides you with an Account and Transactions on these Terms and accordingly the Defaults, rights of termination and indemnities, among other Terms, reasonably reflect the respective different roles, responsibilities, and risks of you and RainFin.
(h) Client must provide to RainFin on request such information regarding its financial and business affairs and identity as RainFin reasonably requires from time to time.
(i) that all Orders placed by Client and all dealings to be conducted under these Terms must be lawful.
(j) in making the application for The Mandate and Master Agreement and by complying with these Terms, Client will not infringe any provisions of any other document or agreement to which Client is a party.
(k) you, Client, will take all reasonable steps to obtain and to communicate to RainFin all information, and will deliver or cause to be delivered to RainFin, all documents with respect to dealings in the Financial Products or Financial Services which are requested by any person having the right to request such documents and information and Client authorizes RainFin to pass on or deliver all such information and documents to any such person;
(l) RainFin is not required to act in accordance with your instructions.
(m) dealings in the Transactions may create an obligation, or a liability, to make a payment to RainFin in accordance with these Terms.
(n) RainFin acts as principal in respect of some of the Financial Products issued by RainFin.
(o) RainFin acts as your agent in respect of Transactions for Financial Products which are not issued by RainFin and so you are solely liable on those Transactions and solely responsible for the risk of those Transactions (and so RainFin is not acting as agent of the other party to your Transaction and is not liable as principal to that other person, even if the identity of that other person is not disclosed to you);
(p) if you give RainFin standing instructions to enter into a Transaction on the basis of information or other reference criteria chosen by you, then the Order might not arise or, if it does, the Transaction arising from execution of it may be modified in order to be possible within your Account, the execution of the Order may be delayed and the price for it cannot be guaranteed;
(q) subject to applicable legal or regulatory requirements, you consent to RainFin either knowingly or unknowingly taking the opposite side to Client in relation to any of the Financial Products, without notice to Client.
(r) subject to applicable legal or regulatory requirements, Client agrees and acknowledges that RainFin’s directors, employees, and associates (and their directors, employees) may and can deal on their own account in Transactions which may be the same as or differ from your Transactions.
(s) RainFin may, in its sole discretion and without explanation, refuse to deal with Client in relation to any Transaction or RainFin may limit the kind of Transactions or both.
(t) if (in the sole discretion of RainFin) errors have occurred in the pricing of Transactions made by RainFin and Client, RainFin may choose not to be bound by such Transactions and cancel them as though they never existed (without further liability to Client).
(u) there are risks associated with using an system for the Platform which include, but are not limited to, the failure of hardware, software, and internet connection and since RainFin does not control data flows, internet or power connections, routing via internet, configuration of your equipment or reliability of its connection, RainFin will not be responsible for communication failures, distortions or delays when dealing (including processing payments) via the internet or other communication methods;
(v) RainFin is not liable for Force Majeure or consequences of an event of Force Majeure.
(w) RainFin is not liable for Market Risk or consequences of Market Risk occurring.
(x) reports to Client on the execution of Transactions by RainFin, and the content of Confirmations being statements, unless otherwise objected to within 24 hours after communication to Client, will be deemed to be conclusive proof of the accuracy of such contents and their execution in accordance with these Terms except only in the case of manifest error; and
(y) a notice issued by an authorized officer or agent of RainFin stating the amount of money due and payable by Client must be taken as conclusive evidence of notice except only in the case of manifest error.
8.2You, Client, acknowledge and confirm to RainFin for the benefit of RainFin and for the benefit of any holder of a license authorizing RainFin in relation to RainFin’s conduct under or in relation to these Terms, an Account, and any Transaction (despite that licensee not being a party to The Mandate and Master Agreement that:
(a) a liability of RainFin arising under these Terms, an Account or any Transaction accrues solely to RainFin.
(b) the holder of the license is not by reason of the terms of the Business Law governing the license and authorization liable for the conduct of RainFin whether as agent or otherwise, unless and only to the extent imposed by Applicable Laws which may not be contracted out by these Terms, and which have not been contracted out of by these Terms.
8.3All representations, warranties and acknowledgments given by you under these Terms are taken to have been made at the time you complete the Application Form and are taken to have been repeated by you:
(a) each time you place an Order with us.
(b) each time you enter a Transaction with us; and
(c) each time we do anything or refrain from doing something under these Terms or as contemplated by these Terms in connection with your Account or any Transaction.
9. Undertakings by RainFin
9.1RainFin will always act honestly and exercise due care and diligence in its performance of these Terms.
9.2RainFin will use reasonable endeavors to execute your Orders, subject to these Terms.
9.3Apart from any duties, undertakings, warranties, or representations which are imposed or implied by law, and which cannot be excluded, RainFin makes no undertaking, warranty, or representation in relation to any service or information provided or made available to you in connection with these Terms.
9.4To the full extent permitted by law, RainFin excludes liability for all costs, expenses, damages, and Losses (including consequential loss) arising in connection with such services or information, Force Majeure, Market Risk, and these Terms (including, without limitation, liability for negligence, tort or breach of fiduciary duties and breach of contract).
10. Risks in transactions and dealings
10.1You acknowledge and understand that there are significant features and risks involved in Transactions, including:
(a) Market Risk.
(b) Over-the-counter Transactions are not made on any Exchange so might be considered to involve a greater risk than an exchange-traded Financial Product since there is no exchange - you are only able to deal with us.
(c) the potential for loss or increases in value from Transactions relating to a non-local market, Exchange or denominated in a currency other than your local currency will be affected by fluctuations in foreign exchange rates.
(d) it is possible to incur a notional loss if, after your Transaction, rates of conversion (foreign exchange or Digital Assets, or both) change to your detriment and that notional loss will become a real loss if the Transaction is Closed out earlier than its intended date for settlement.
(e) you may sustain a total loss of the Collateral that you provided to us to secure your loan and, if the market moves against you, you may be required to pay substantial additional Collateral at short notice but if you fail to do so within the required time, your Loan may be need to be settled by selling your underlying Collateral at a loss to you and you will be liable for any remaining deficit in your Account;
(f) you will be required to maintain the Collateral Cover as notified to you, which might mean you must pay more Collateral, even if you are not contactable.
(g) a disruption affecting RainFin’s ability to offer Transactions can mean that you are unable to trade when desired or in the amounts and prices you desire, and you may suffer a loss as a result, including disruption due to government or regulatory decisions or announcements, the failure of a computer based dealing or pricing system, fire or exchange emergency or a regulatory body could declare an undesirable situation has developed in a particular currency, security or contract and suspend dealing or adjust terms of prices or dealing;
(h) you may incur losses (including incurring fees and charges) that are caused by matters outside our control for example, a regulatory authority exercising its powers during a market emergency or the provider of a Payment System exercising its discretion or experiencing malfunctions in the Payment System or any event of Force Majeure; and
(i) we have powers, and discretion to exercise those powers, without notice to you or giving you reasons, for canceling Transactions or adjusting their prices or timing and, though we would exercise our powers in accordance with these Terms and our statutory duties, you may incur losses (including incurring fees and charges) because of the exercise of our powers.
10.2You acknowledge and understand that there are significant features and risks involved in services involving Digital Assets, especially custody of Digital Assets including:
(a) coding of all Digital Assets is not verified or audited by or on behalf of RainFin.
(b) RainFin is not responsible for services provided by digital currency exchanges.
(c) protocols involving Digital Assets (whether described as “Defib” or in any other way), however they are structured or governed, may be complex, untested, or vulnerable to manipulation by other persons.
10.3No advice or recommendation is provided by RainFin in relation to your Transactions or other services unless that is expressly given in writing.
11. RainFin fees, charges, and costs
11.1You owe us, and must pay to us or as we direct (in accordance with these Terms):
(a) any Transaction charges including all Collateral, commission, charges, fees, settlement and clearing fees and charges, interest, default charges and Taxes (including Applicable Tax but excluding RainFin’s income tax or penalty tax and levies) and any other amounts due under these Terms on demand by RainFin in cleared funds or otherwise as required by these Terms.
(b) (If applicable) a Transaction Fee for each Financial Product or Transaction (as the case may be) being the fee from time to time specified by RainFin to be the amount payable by you to RainFin in respect of each such Transaction.
(c) any royalty or other fee which must be paid for the use of prices or information provided to you via access through the Platform or otherwise by any Exchange.
(d) (If applicable) a monthly access charge for the use of the Platform provided by RainFin, as specified by RainFin from time to time.
(e) any fees, Taxes, stamp duty or other charges as may from time to time be levied on or in connection with any Transactions entered with you; and
11.2Any amount or rate or formula which is to be specified by RainFin may be specified by a Disclosure Statement, a Supplementary Disclosure Statement or in any other permitted way of notifying you, such as on RainFin’s website or the Platform. The amount of any fees and charges or other amounts payable by you to RainFin in respect of any Transaction will be set out in the Confirmation of that Transaction or the Platform to the extent known at the time.
11.3RainFin may charge you for, and you must pay promptly on request, the following (plus any Applicable Tax), which must be reasonably based on the direct and indirect costs to RainFin for those items and relate to you:
(a) your payments which are declined, charged back, or challenged by the paying institution.
(b) paper copies of documents which we have not otherwise confirmed that we will provide for free.
You agree that any delay in, or partial exercise of, any of the above rights is not a waiver or abandonment of those powers.
11.4RainFin may receive commissions and other benefits from other parties in relation to Transactions which RainFin enters with you or in connection with other services provided to you. RainFin is entitled to retain such commissions and benefits.
11.5 If you have been referred to us or on behalf of a referrer or other third party, that referrer or third party may receive benefits in the form of a commission, rebate or other payment or benefit from us.
11.6Unless otherwise agreed, the terms of any amounts payable by you under these Terms are stated exclusive of Applicable Tax. If Applicable Tax is payable on a taxable supply made by RainFin under, by reference to, or in connection with these Terms, you must also pay the amount of Applicable Tax payable in respect of that taxable supply. RainFin will when be required by law and as far as practicable state in Confirmations (or Account statements, if applicable) the amounts as Applicable Tax- inclusive. RainFin will manage any credit granted to it for any Applicable Tax refund, input credit or similar tax credit in accordance with its policy from time to time.
11.7The amounts of or basis of calculating the fees, commissions, charges and credits referred to in this clause 10 will be as notified from time to time in writing by RainFin, either by way of a Disclosure Statement, posting on the Platform (including by way of Transaction prices), notification to your contact address, posting to RainFin’s website or as otherwise agreed with you or permitted by these Terms.
11.8You must reimburse RainFin for all fees (both direct and indirect) and expenses charged in connection with any Transaction (other than Tax on the income of RainFin) and for all costs and expenses incurred by RainFin in implementing these Terms and in enforcing its rights under these Terms (including its legal costs of external or internal legal advisers on a full indemnity basis).
11.9RainFin will notify you of any change in its fees and charges or other amounts payable by these Terms in accordance with Applicable Laws except indicative rates may change at any time.
12.1Any funds or property provided by you or received by RainFin in relation to the services it offers will be handled in strict compliance with Applicable Laws. Should any discrepancy arise between these Terms and the Applicable Laws, RainFin's actions will prioritize adherence to the Applicable Laws. In such cases, RainFin will not be held accountable to the Client for any deviations from these Terms.
12.2Your transfers of Collateral for Digital Asset Loans to your Margin wallet are intended for the issuance of a Loan, which necessitates the staking of your Assets. These transfers are distinct from deposits at RainFin and are neither classified as client money nor will be conserved in trust or in any manner that benefits you exclusively.
12.3Should you request RainFin to transfer your funds or other Assets to another party, RainFin will execute this without assuming any liability for the other party's actions or conduct. Specifically, RainFin has no obligation, nor will it investigate:
(a) How the third party utilizes those funds or Assets.
(b) To whom the third party might further transfer any of these funds or Assets.
(c) The financial stability of the involved parties.
(d) The adherence of these parties to Business Law, Applicable Laws, and established Rules.
(e) The basis on which these parties manage these funds or Assets, including nominee status, segregated accounts, trusts, or other protective mechanisms.
12.4Unless otherwise directed by you and agreed upon by us, any funds, or Assets to which you are entitled under these Terms, and are managed by RainFin, will be transferred directly to you. It is your responsibility to provide accurate account details for the processing of payment or delivery instructions. While RainFin commits to executing your instructions diligently, it disclaims any liability for potential failures in doing so. In the event of such failures, the said funds or Assets will be held by RainFin in line with the Business Law and Applicable Laws.
12.5If RainFin observes that your Account remains inactive over a period specified by RainFin, you thereby authorize RainFin to impose a charge on your Account (as detailed on the Platform) and, if necessary, to close your Account.
12.6The risk associated with currency exchange in any payment instruction, Order, or Transaction made through RainFin rests solely with you. RainFin reserves the right, at its sole discretion, to determine the methodology, timing, and exchange rates for any necessary currency or Asset conversions relating to the execution of any payment instruction, Order, or Transaction.
13. Privacy, Information, and Use of Data
13.1RainFin may, though not obliged furnish you with data or insights about interest rates, currencies, Financial Products, or markets. Such data, sourced from what RainFin deems reliable origins, hasn’t been independently verified. By using this data, you acknowledge that RainFin holds no liability for its accuracy, timeliness, or completeness. Moreover, unless explicitly agreed upon, the provided information doesn't account for your financial goals, circumstances, or specific needs.
13.2When RainFin renders services (including but not limited to opening an Account or dealing with you), it does not constitute any advisory or recommendation in relation to Financial Products, except as mandated by Applicable Laws.
13.3You continually assure RainFin that:
(a) You won't treat any RainFin communication as investment advice or as encouragement to initiate, modify, or terminate any Transaction.
(b) No details related to the terms of a Transaction will be deemed as advice or a recommendation.
(c) Communications from RainFin will never be seen as guarantees of a Transaction’s potential outcomes.
(d) It remains your responsibility to seek personal Financial Product advice before making decisions about Financial Products or Services.
13.4Where legally permissible:
(a) You consent to receiving written advice post-consultation; and
(b) You agree to obtain written advice post-Transaction within the legally stipulated timeframe.
(c) Any material, feedback, or information provided by you to RainFin, unrelated to your specific dealings, becomes RainFin’s exclusive property. RainFin can use this information without any restrictions or obligations to acknowledge or compensate you.
13.5During our service engagement, you permit us, and any associated corporate entities, to gather your personal information. This collected information can be used for:
(a) Assessing your service request
(b) Delivering services as per our agreement.
(c) Complying with beneficial interest obligations
(d) Communicating with third parties related to this agreement.
(e) Meeting legal and regulatory requirements.
13.6You are obligated to update us in writing regarding any changes to the information you provided.
(a) Our associated entities
(b) Clearing or settlement entities.
(c) Our service providers.
(d) Our agents, contractors, and advisors.
(e) Regulatory and government bodies.
(f) Payment system operators.
(g) Other service providers serving you.
(h) Potential investors in RainFin or its associates.
(i) Any party as required by law.
13.8You grant RainFin the authority to utilize and disclose your Tax File Number for Transactions in accordance with legal provisions.
13.9You reserve the right to access your personal information that we hold, barring specific legal constraints. Should you wish to understand or access your personal details, contact us.
13.10Agreeing to these Terms implies that you grant us the ability to use your data as mentioned. You also commit to furnishing any data requested by us or any legally entitled party.
13.11We reserve the right to make inquiries into your financial credibility from various sources, including banks, employers, or credit agencies, and to disclose the results of these checks for risk assessment purposes.
13.12Upon RainFin's request, you pledge to provide all relevant documentation concerning dealings in Financial Products.
13.13You permit RainFin to record any verbal communications without continuous disclosure. Such recordings may be employed for training, compliance monitoring, or dispute resolution. In the event of a disagreement, you can request access to relevant recordings.
13.14These recordings may also be utilized to evaluate and train RainFin’s team and for compliance.
13.15RainFin isn't bound to retain or notify you of any recording’s disposal unless law dictates otherwise.
13.16In alignment with clause 13.17, should any conflict arise, RainFin may provide transcripts or recording copies at your request. Any costs associated will be your responsibility. Your Capacity, Representations and Warranties
13.17We provide services under these Terms on the fundamental basis that you undertake as primary obligor all obligations arising on the execution of Transactions which we enter with you regardless of your legal capacity.
13.18 You represent and warrant to us, and we rely on the fundamental condition, that you are acting as principal.
13.19 You represent and warrant that:
(a) you have read and understood all documentation provided by RainFin to you in relation to the services provided by RainFin including, without limitation, any product disclosure statement.
(b) you are a person with whom RainFin is lawfully entitled to deal pursuant to any Applicable Laws and that all dealings by you with RainFin or requested to be done by RainFin are and will be lawful under all Applicable Laws.
(c) all information supplied on the Application Form or otherwise provided to RainFin is true, complete, and accurate in all respects and you will notify RainFin immediately of any change in any information supplied (including but not limited to any change in your name, address, contact number or address or email or social media account address).
(d) you will rely upon your own knowledge and judgment and will seek such advice (financial or otherwise) as may be prudent before placing an Order with RainFin and you assume full responsibility for any Order placed with RainFin; and
(e) at all times you will be able to make payments and fulfil all commitments on your part arising under these Terms and under the conditions applicable to dealings between yourself and RainFin.
13.20Apart from any warranties and representations which are implied by law and cannot be excluded, RainFin makes no warranties, representations, or undertakings in relation to any service or information provided or made available to you in connection with these Terms. To the full extent permitted by law, RainFin excludes liability for all costs, expenses, damages, and Losses (including consequential loss) arising in connection with such services or information, or these Terms (including, without limitation, liability for negligence).
13.21All representations, warranties and acknowledgments given under this clause 14, Appendix 3 or elsewhere in these Terms are taken to have been made at the time you complete the Application Form and are taken to have been repeated by you:
(a) each time you enter a Transaction with us; and
(b) each time we do anything or refrain from doing something under these Terms or as contemplated by these Terms in connection with your Account or any Transaction.
14. Anti-Money Laundering and Counter-Terrorism Financing
14.1You acknowledge that:
(a) RainFin is subject to various anti-money laundering and counter-terrorism financing laws (AML/CTF Laws) which may prohibit us from offering services or entering or conducting Transactions; and
(b) the AML/CTF Laws include prohibitions against any person dealing with the proceeds of or assets used in criminal activity (wherever committed) and from dealing with any funds or assets of, or the provision of finance to, any person or entity involved (or suspected of involvement) in terrorism or any terrorist act.
14.2You agree that:
(a) RainFin is not required to take any action or perform any obligation under or in connection with these Terms if we are not satisfied as to your identity or if we suspect on reasonable grounds that by doing so, we may breach the AML/CTF Laws.
(b) RainFin may delay, block, or refuse to make any payment or to provide any service if we believe on reasonable grounds that to do so may breach any law in Business Location or any other country, and we will incur no liability to you if we do so; and
(c) RainFin will not incur any liability to you for any loss you suffer (including consequential loss) however caused by reason of any action taken or not taken by us as contemplated in paragraph (a) or (b) above.
14.3You agree to provide all information and documents to RainFin which we reasonably require to comply with any law in Business Location or any other country, including any AML/CTF Laws. You agree that RainFin may disclose information which you provide to us, or about Transactions you have with us or which you seek to conduct with us, if we are required to do so by any law or Rule in Business Location or in any other country.
14.4You represent and warrant to RainFin that the payment of moneys by us in accordance with these Terms, or any instructions given by you, will not breach any law in Business Location or any other country.
15. Limitations of Liability, Indemnities and Payments
15.1Subject to any legislation and any other rights, duties or other obligations imposed or implied by law which cannot be excluded by agreement between the parties, to the extent each of the following is not prohibited by those laws:
(a) we make no warranties either expressly or impliedly as to merchantability, fitness for a particular purpose, or otherwise (including as to accuracy, currency, availability, completeness, or quality), with respect to any services we provide under these Terms including, without limitation, the Platform.
(b) RainFin excludes all liability in contract, tort, fiduciary duties or otherwise relating to or resulting from any financial product and any Financial Service which we provide under these Terms and for any Loss incurred by you directly or indirectly, including without limitation because of or arising out of:
(c) any inaccuracy, error, or delay in or omission from any information provided to you under these Terms including the Platform.
(d) any delays or failures or inaccuracies, or loss of access to, the provision of a service to you including, without limitation, any delay, failure, or inaccuracy in, or the loss of access to, the Platform or in respect of the transmission of Orders or any other information.
(e) any misinterpretation of your Orders or instructions which are unclear, ambiguous, or not specific.
(f) any government restriction, Exchange or market rulings, suspension of dealing, computer or telephone failure, unlawful access to our Platform.
(g) any event of Force Majeure; and
(a) RainFin is not liable in contract, (including negligence), breach of fiduciary duty or otherwise for any loss of prospective profits or expenses or special, indirect, or consequential damages resulting from the supply of a service including, without limitation the Platform.
(b) RainFin makes no representations or warranties either express or implied that:
(i) any Payment System (or any part of it) or any service or any services performed in respect of it will meet your requirements or the requirements of any user; or
(ii) the operation of, or services performed in respect of, any Payment System will be uninterrupted or error-free.
15.3RainFin is not liable for any breach of a provision of any relevant legislation, negligence, injury, death, lost profits, loss of files data or use, economic loss, loss or reputation or losses or damages incidental or consequential to the operation of any Payment System, except to the extent that it is caused by the negligence or dishonesty of RainFin or their employees, agents, or representatives; and
15.4RainFin's liability to you is (unless the limitation in this paragraph (f) is prohibited or void due to Applicable Law) in any event limited to:
(a) in the case of goods, the replacement or repair of the goods; or
(b) in the case of services, the re-supply of the services.
(c) To the fullest extent permitted by law, you release, discharge, and indemnify and agree to keep RainFin and its respective officers, employees, agents, and representatives indemnified from and against all Claims arising out of:
(d) any default by you, whether by your act or omission under these Terms or any Order or Transaction.
(e) any breach by you of any Applicable Laws.
(f) any representation or warranty made or given by you under these Terms proving to be untrue or incorrect.
(g) any error, omission, fraud, malfeasance, negligence, misappropriation or criminal act or omission by you or by any of your clients, employees, agents or Authorized Persons, consultants, or servants.
(h) any failure of any of your computer or electronic systems or networks to perform, be available or successfully transmit data to RainFin, or any error or inadequacy in the data or information input into such systems or networks by you.
(i) any delays in processing any Order including, for example (but not limited to), because of systems or market delays, or due to verification or filtering procedures or unauthorized processes, email delays or due to telephone call waiting time or adherence to internal policies and procedures.
(j) anything lawfully done by RainFin in accordance with, pursuant or incidental to these Terms.
(k) acting on any instruction, request or direction given by you, including a standing instruction or any Order.
(l) by reason of RainFin complying with any direction, request or requirement of Applicable Laws, any provider of market information or Payment System, any government body or any regulatory body having jurisdiction over.
(m) arising from and in connection with or in any way related to RainFin in good faith accepting and acting on instructions received by any electronic transmission (including email) or by other means of any kind which are signed by or purported to be signed or otherwise made by you or any Authorized Person, except only to the extent attributable to Non-excluded Liability or which would be liability which by law may not be imposed on you.
15.5Limited recourse for OTC Financial Products
(a) To the maximum extent permitted by law in respect of your Financial Products, Financial Services, Orders or Transactions and all related obligations and liabilities of RainFin to you in respect of Financial Products issued by RainFin as principal to you (RainFin OTC Liability):
(i) the RainFin OTC Liability - however that liability arises - is limited to paying to you an amount equal to the Recovery Amount (if any); and
(ii) your recourse against RainFin is limited to seeking payment of the Recovery Amount,
(iii) in accordance with this clause 15.3
15.6This limitation of RainFin's liability and your recourse against RainFin apply despite any other provision of these Terms or any other agreement, arrangement or understanding (written or not) and extends to all liabilities and obligations of RainFin in any way connected with any representation, warranty, conduct, omission, agreement, or transaction related to the Terms and anything done or omitted to be done under it, subject only to any Non-excluded Liability. In particular:
(a) this clause 15.3 applies before determining the respective amounts to be netted and set off under these Terms; and
(b) the Recovery Amount is nil unless and until the Recovery Amount is determined (with the effect that the amounts to be netted and set-off by these Terms must deem the Recovery Amount to be nil unless and until the Recovery Amount is determined).
15.7For clause 15.3 the Recovery Amount is:
(a) the amount that RainFin receives from, on behalf of or in respect of the counterparty to RainFin (OTC Counterparty) under the terms of or in respect of:
(b) any transaction made by RainFin with that OTC Counterparty which, in RainFin's opinion, fully or substantially corresponds with your Transaction with RainFin, and if RainFin receives only a proportion of the amount due to RainFin (whether for itself, as agent or in any other capacity) from, on behalf of or otherwise in respect of the OTC Counterparty in respect of several clients or several Transactions, then the Recovery Amount is limited to your pro rata portion (as determined by RainFin) of the amount actually received by RainFin);
(c) less any amount actually paid to you in respect of termination of your Transaction with RainFin.
(a) you make a claim in any way, whether directly or in any court or dispute resolution forum (your claim) against RainFin to recover Loss or for any other compensation in relation to a Transaction, which Loss has arisen because or substantially due to an OTC Counterparty failing to pay in full an amount to RainFin (payment failure) and RainFin relies on this clause 16.3 in respect of that payment failure); and
15.9RainFin receives from the OTC Counterparty an amount, or makes, or has made, a demand or claim against the OTC Counterparty in respect of that payment failure (RainFin claim),
15.10Then, subject to this clause 15.3 RainFin holds the RainFin claim against the OTC Counterparty for your benefit.
15.11Nothing in these Terms obliges RainFin to make a demand or other claim of any kind against the OTC Counterparty or any other person.
15.12RainFin has no liability for taking or failing to take any action in relation to any actual or prospective RainFin claim. RainFin is not obliged to accept any direction from you or any other person about how RainFin must conduct the RainFin claim or negotiate any settlement. RainFin may require a binding agreement to be fully indemnified, in a form satisfactory to it (including with or without security) in respect of accepting any such direction.
15.13RainFin may conduct or participate in one or more claims (for example, in connection with these Terms and the terms of agreements which it has with other clients) or under one or several proceedings, as determined by RainFin.
15.14RainFin may incur costs of preparing for and conducting any RainFin claim and defending crossclaims, including costs of legal services, experts and other agents and advisers and recover as expenses to it those costs, which recovery may be apportioned by RainFin across several claims (and across more than one client).
15.15RainFin may make or accept any offer for settlement of a RainFin claim which is considers reasonable, including for any amount less than the amount claimed by RainFin.
15.16RainFin may withhold from settlement of any RainFin claim proceeds such it amounts it determines to pay for, or to provide for payment for, costs incurred by RainFin in connection with the RainFin claim, including its estimate of costs of enforcing the judgments for the claim.
15.17RainFin may apply the net proceeds of settlement of any RainFin claim proportionally to the balance of the unsatisfied amounts of all claims.
15.18RainFin may decide not to prosecute any RainFin claim if it determines there are insufficient prospects of success and having regard to the estimate costs of prosecuting the claim.
15.19Nothing in in these Terms:
(a) limits your right to make a claim against RainFin for the full amount of liability which would have arisen but for these Terms; however, the liability of RainFin to you and your recourse to RainFin or any assets or other property held on your behalf is limited by these Terms.
(b) limits any party in obtaining an injunction or other order to restrain any breach of these Terms by any party or obtaining declaratory relief.
15.20The meaning and effect of this clause 16.3 are to be construed for the purposes of limiting the liability of RainFin to you and limiting your recourse against RainFin or any assets or other property held on your behalf, to the maximum extent permitted by law, so that RainFin is only liable to you to the extent provided by this clause and RainFin is not otherwise liable to you.
15.21You agree that this limitation of liability under this clause 15.3 is a reasonable term having regard to the nature of the Financial Services and Financial Products offered and provided by RainFin to you, the benefits to you and the risks and benefits from Transactions using RainFin in the context of these Terms and the protections given to you by RainFin from time to time for your moneys or for giving you other benefits in relation to the RainFin OTC Liability (whether or not given by these Terms).
15.22If Applicable Tax is payable on a taxable supply made by RainFin under, by reference to, or in connection with these Terms, you must also pay the amount of Applicable Tax payable in respect of that taxable supply. This clause does not apply to the extent that consideration for a supply is expressly stated to you to be Applicable Tax inclusive.
15.23You acknowledge that you are responsible for your own legal costs associated with entering these Terms and for all Taxes and expenses incurred by you in connection with these Terms, including any Transaction made under it.
15.24 All payments by you under these Terms are.
(a) to be made without any counter claim or condition made by you and without you making any deduction or withholding for any Tax or any other reason unless the deduction or withholding is required by applicable law or the set-off arises by express application of the Terms; an
(b) payable in the currency agreed with you.
(c) you are required to make a deduction or withholding in respect of Tax from any payment to be made; or
(d) RainFin is required to pay any Tax (other than income tax) in respect of any payment made in relation to these Terms at your request,
(e) indemnify RainFin against the Tax; and
(f) agree to pay to RainFin, promptly after demand by RainFin, an additional amount to ensure RainFin receives a net amount (after payment of any Tax in respect of each additional amount) that is equal to the full amount RainFin would have received had a deduction or withholding or payment of Tax not been made.
(g) or condition made by you and without you making any deduction or withholding for any Tax or any other reason unless the deduction or withholding is required by applicable law or the set-off arises by express application of the Terms; and
(h) payable in the currency agreed with you.
(i) you are required to make a deduction or withholding in respect of Tax from any payment to be made; or
(j) RainFin is required to pay any Tax (other than income tax) in respect of any payment made in relation to these Terms at your request,
(k) indemnify RainFin against the Tax; and
(l) agree to pay to RainFin, promptly after demand by RainFin, an additional amount to ensure RainFin receives a net amount (after payment of any Tax in respect of each additional amount) that is equal to the full amount RainFin would have received had a deduction or withholding or payment of Tax not been made.
16.1You must notify us within 24 hours of any disputed Transaction. If you do not dispute a Transaction on reusable grounds by that time, then (regardless of when you are notified or whether you access your Account information), the Account will be conclusive evidence of the executed Transaction except for any manifest error or for any Non-excluded Liability.
16.2Complaints (other than disputed Transactions) must initially be made to us in accordance with our policies and procedures from time to time for dispute resolution.
17.1Each of the following constitutes a Default:
(a) you breach these Terms, whether by act or omission
(b) a Transaction is entered into by you in any circumstances in which RainFin reasonably believes that conduct is, or could be considered to be, in breach of the Business Law, the Rules or any other Applicable Laws whether or not you are aware that the Transaction could breach those laws or rules;
(c) you fail to pay, or to provide security for, amounts payable by you to RainFin.
(d) you fail to pay the amounts due in respect of any Transaction entered pursuant to these Terms including but not limited to Collateral required by RainFin.
(e) you fail to maintain Collateral Cover required by RainFin.
(f) you fail to perform any obligation arising pursuant to the settlement of a contract which arises pursuant to a Transaction.
(g) you fail to fulfil any settlement obligations in respect of a Transaction entered pursuant to these Terms.
(h) you fail to fulfil any grace period for settlement obligations in respect of a Transaction entered pursuant to these Terms which RainFin has allowed.
(i) you fail to comply with any limit or restriction imposed on you by RainFin in connection with your Account (for example, a restriction on the kind, volume or value of Transactions or outstanding liabilities).
(j) any security provided by you (to anyone) which is binding on your assets becomes enforceable and the holder of that security takes any step to enforce the security.
(k) any representation or warranty which you give under or pursuant to these Terms is or becomes incorrect or misleading in any material way.
(l) RainFin determines that you are unable, or you might not be able to meet your obligations to RainFin in respect of one or more Transactions, including, without limitation, strict compliance with any time limits for performance by you.
(m) you become insolvent or bankrupt.
(n) you enter a composition or scheme of arrangement for the benefit of creditors.
(o) if you are acting on behalf of another person pursuant to authority provided by another person, the authority is varied in a way which (in RainFin’s opinion) negatively impacts on your authority or legal or financial capacity to perform your obligations under these Terms.
(p) if you are a trustee, the relevant trust of which you are trustee is terminated, vests or a distribution of capital of the trust or fund is made, or your rights of indemnification from trust assets or reimbursement is terminated, restricted or challenged, which would result in there being, in RainFin's opinion, insufficient assets of the trust or fund to meet your liabilities under these Terms or any Transaction;
(q) if you are a natural person, you die or become of unsound mind or if you or your estate is liable to be dealt with in any way under any law relating to mental health.
(r) you challenge or deny the applicability of the express governing law of these Terms, the non-exclusive jurisdiction of courts as provided in these Terms.
(s) you impose a moratorium on payments to creditors or cease, or threaten to cease, carrying on business.
(t) in the absence of making alternative arrangements, you are not immediately contactable by RainFin for RainFin to obtain instructions in relation to any of your Transactions; and
(u) the occurrence of any other event referred to in an Appendix applicable to your Account as constituting a Default or which RainFin and you have agreed constitutes a Default.
17.2If a Default occurs, RainFin may, in addition to any other rights which RainFin has or may have against you (including rights arising in other parts of the Terms), without giving prior notice to you, act, or refrain from acting, which it considers reasonable in the circumstances in connection with Transactions entered into pursuant to these Terms and, without limitation, RainFin may do any one or more of the following:
(a) cancel any outstanding Orders.
(b) settle any Transaction which has not at the time of Default settled.
(c) cancel a Transaction (whether it has settled) and make consequential adjustments to your Account.
(d) immediately, or later, terminate these Terms, one or more Appendixes, one or more Accounts, one or more Transactions or any combination of these.
(e) realize or enforce any security or guarantee provided in respect of your obligations to RainFin.
(f) convert any or all amounts owing by you to RainFin or by RainFin to you in a foreign currency into South African currency.
(g) calculate any or all amounts owing by you to RainFin and declare such amount immediately due and payable; or
(h) exercise any other rights conferred by Applicable Laws or these Terms or perform any other obligations arising under Applicable Laws or these Terms in respect of your Transactions.
In respect of any action which RainFin takes, or refrains from taking under this clause 18.2, you must account to RainFin as if RainFin took, or refrained from taking, the action on your instructions and, without limitation, you are liable for any deficiency and are entitled to any surplus which may result.
17.3Nothing in these Terms limits your rights to claim a default by RainFin or for you to take any proper action which you determine is appropriate to claim or to recover for any Loss arising from your claim. For example, we acknowledge that you may terminate these Terms if RainFin materially breaches these Terms. You agree that it is reasonable for you not to have specific rights following default and specific events of default by RainFin to avoid all Transactions of all RainFin’s clients prematurely terminating, which could cause irrevocable loss to some, or all clients and those losses could be irrevocably increased by such an automatic termination.
18.1Without limiting clause 18.2, you and RainFin may each terminate The Mandate and Master Agreement at any time by giving the other notice of that.
18.2The notice of termination and the termination of The Mandate and Master Agreement does not affect outstanding obligations which arose under these Terms, and which remain undischarged at the time of termination, limitations of liability or recourse, indemnities provided for in these Terms or any other clause of these Terms which states or implies that they survive termination.
18.3Each indemnity provided within these Terms survives the termination of these Terms.
18.4Upon termination of The Mandate and Master Agreement, and without limiting clause 18.2, this clause survives and RainFin may do one or more of the following:
(a) cancel any outstanding Orders.
(b) terminate and settle at one or more times any of the Transactions which has not at the time of notice of termination or at termination of The Mandate and Master Agreement been settled (and must adjust the settlement amount to reflect the early settlement as RainFin determines in its absolute discretion is reasonable, having regard to market conditions at the time but without needing to substantiate or evidence its determination).
(c) terminate at one or more times any of the Transactions which has not at the time of notice of termination or at termination been exercised despite the Expiry Date but for this clause (and must determine the termination value to reflect the early termination as RainFin determines in its absolute discretion is reasonable, having regard to market conditions at the time but without needing to substantiate or evidence its determination).
(d) exercise any other rights RainFin has under The Mandate and Master Agreement.
(e) do, or refrain from doing, anything else which RainFin considers reasonable in the context of these Terms (or any part of them) having been terminated; and
(f) calculate the net amount owing as between Client and RainFin as a result of termination of the Transactions and other accrued amounts owing by a party under these Terms (such net amount may later be adjusted according to anything relevant to the net amounts owing as between the parties including but not limited to Transactions were later terminated, interest accrued and capitalized for this purpose, indemnified amounts and fees, charges and costs incurred after the previous calculation of the net amount owing as between the parties).
19.1Notices given by us may be sent to any address (including email address) specified in your application for an Account or later notified by you, or by posting the notice on our website or through the Platform. Unless otherwise specified in these Terms any notice given by us is taken to have been received or becomes effective on the Business Day following the transmission or posting of the notice, demand, or Confirmation.
19.2Notices given by you must be in writing and sent by post, or email to our postal address or email address specified by us in the Disclosure Statement or on our website or as otherwise notified by us from time to time (including, if available, accepting your notice by the Platform). A notice given by you is taken to have been given at the time it is received by us during business hours or, if after business hours, on the next Business Day during business hours.
19.3If an Account is opened in the joint names of more than one person, each person agrees that we may discharge any obligation we have to give a notice or a document to those persons under these Terms or Applicable Laws by giving notice to any one of those persons.
19.4 RainFin may give notice to you of any change in its Transaction Fees or any rates, fees charges or other amounts payable by these Terms (for any new Transaction) in any manner permitted by these Terms, including by posting to RainFin’s website or to the Platform. RainFin must give at least the minimum period of notice required by the Business Law. If no minimum period is required or is not stated elsewhere in these Terms, notice of a change in Transaction Fees or any rates, fees charges or other amounts payable by these Terms (for any new Transaction) may be effective immediately RainFin first generally publishes the information of any variation on its website or through the Platform.
20.1In consideration of RainFin entering into the agreement on these Terms, you irrevocably appoint RainFin and each director, secretary and principal executive officer and each employee (which employee’s title of office includes the word “Manager” or "Head") of RainFin and any other authorized representative of RainFin (including an authorized representative of a related body corporate of RainFin) severally as your attorney at any time and from time to time following a Default, to execute and deliver all documents and to do all things which your attorney may consider necessary or desirable to give effect to the provisions of these Terms, and in particular, without limitation, in connection with, or incidental to, the exercise of any of the rights and powers of RainFin under these Terms. Those powers may be exercised in the interests of RainFin notwithstanding any conflict with the interests of RainFin. This appointment survives termination of these Terms.
20.2From time to time, RainFin may delegate any or all its obligations, powers, and discretions to any or all of its employees or any other authorized representative of RainFin (or a related body corporate of RainFin). RainFin remains responsible for the acts or omissions of its employees and any authorized representative of RainFin (including an authorized representative of a related body corporate of RainFin). A delegation by RainFin under this clause need not be in writing.
20.3These Terms and any relevant Application Form completed by you contain the entire understanding between you and RainFin concerning the provision of the Financial Products or financial services and any other services referred to in or provided under The Mandate and Master Agreement, as later amended only in accordance with The Mandate and Master Agreement.
20.4The location of services provided by RainFin is only the Business Location. RainFin does not provide its services or conduct business in any other location (even if the Client is outside of the Business Location).
20.5These Terms are governed by and construed in accordance with the laws in force in the Governing Jurisdiction. The parties submit to the exclusive jurisdiction of the courts of the Governing Jurisdiction.
20.6We may vary these Terms by giving you notice of any variation by any combination of the document in writing, by updating our website to show the revised version of these Terms, by posting a message in the Platform, by email or by other social media channel that you have expressly or by custom of usage agreed to use to receive communications from RainFin. The notice of variation is effective even if you are unaware of the notice or, having received it, do not read all or any it. The minimum period of notice will be the lesser of:
(a) any minimum period of notice required by Applicable Laws.
(b) if no such minimum period is required by the Applicable Laws, then not less than two (2) Business Days’ notice (unless paragraph (c) applies); and
(c) subject to paragraph (a), if we believe a variation is necessary to maintain or restore the security of any Accounts or of our systems or to comply with any legal or regulatory requirement, we may make the variation without prior notice and will notify you of the change as soon as practicable after the change.
20.7Each part of these Terms is severable from the balance of these Terms and if any part of these Terms is illegal, void, invalid or unenforceable, then that will not affect the legality, effectiveness, validity, or enforceability of the balance of these Terms.
20.8No failure by us to exercise, and no delay by us in exercising, any right, power, or remedy in connection with these Terms will operate as a waiver of that right, power or remedy. No single or partial exercise of any right, power or remedy will preclude any other or further exercise of such right, power or remedy or the exercise of any other right, power or remedy.
20.9These Terms are not to be interpreted against our interests merely because we proposed these Terms or some provision in it or because we rely on a provision of these Terms to protect our interests.
20.10You may not assign or otherwise transfer any of your rights under these Terms to another person without our prior written consent. RainFin may assign, novate, or otherwise transfer any of its rights under these Terms to another person without your prior written consent including, without limitation, in connection with a sale or transfer of all or part of our business to another person.
21.1Unless the context otherwise requires, any expressions or phrases not otherwise defined within these Terms have the meaning given to them in the Applicable Laws relevant to the Financial Product or Financial Service.
21.2In these Terms, unless otherwise indicated, the words and expressions defined in an Appendix have the meanings given to them in the relevant Appendix.
21.3 The following rules also apply in interpreting these Terms, except if the context makes it clear that a rule is not intended to apply.
(a) Headings used in these Terms are used for convenience only, and do not affect interpretation.
(b) A reference to legislation (including subordinate legislation) is to that legislation as amended, re-enacted, or replaced, and includes any subordinate legislation issued under it.
(c) A singular word includes the plural and vice versa.
(d) A word which suggests one gender includes the other gender.
(e) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.
(f) A reference to time is to local time in Cape Town, South Africa, unless otherwise specified.
(g) Anything permitted to be done by RainFin in accordance with these Terms may be done in its absolute discretion, and any opinion or view required to be formed by RainFin may be formed in its absolute discretion.
(h) For the avoidance of doubt, time will continue to run on days which are not Business Days.
(i) The English version of these Terms prevails over any other translated version of these Terms.
21.4If a specific provision in an Appendix is inconsistent with another provision in these Terms, the specific provision prevails over the other provision to the extent of the inconsistency.
Appendix 1 GLOSSARY - TERMS
For convenience, the Glossary in this Appendix has defined expressions which are mainly in general use in these Terms.
(See Appendix 2 for defined expressions generally used in Transactions. Other defined expressions for specific kinds of Transactions may be in a Term Sheet for those specific transactions. Please note that all defined expressions in all appendix’s apply to all the Terms. This separation across appendix is only for convenience.)
Unless otherwise indicated, the following words and expressions have the meaning set out below:
Account means an account held in your name or for your benefit with RainFin including all Transactions recorded in them, for the purposes of these Terms.
Account Value means the current value of your Account which is calculated by RainFin by combining:
(a) Asset valuations; Outstanding liabilities
(b) if applicable at the time, indicative costs to Close Out a Transaction early (e.g., Transaction Fees); and
(c) if RainFin chooses provision (by a debit entry) for the amounts of any fees, charges, or costs which RainFin determines is reasonably likely to be incurred by you and which ought to be considered for fairly and reasonably calculating Account Value.
Applicable Laws means, in relation to a matter, all laws, legislation, regulation and subsidiary regulation, instruments and directions of a regulatory authority or a court, rules and procedures of a Payment System which apply to the relevant matter including for example, and without limitation, the Business Law and regulations made pursuant to the Business Law, Business Regulator Legislative Instruments and other instruments. Applicable Law is a reference to any of them.
Applicable Tax means tax that is imposed as a goods and services tax, value added tax, sales tax, or analogous tax under any Applicable Law.
Application Form means the application form by which a person applies to become a Client of RainFin and to open an Account. It can be in electronic form.
Asset means property (including Digital Assets even if not ordinarily considered by law to be transferrable property), rights or choses in action of Client deposited with, vested in, or controlled by RainFin from time to time in accordance with these Terms and any rights and income arising from that.
Authorized Person means the person (if any) described as your authorized person in the Application Form or another person notified by you to us from time to time.
Business Day means a weekday which is not a gazette public holiday in Cape Town, South Africa.
Business Law means the statutory laws and regulations made under them, all as amended from time to time applicable to us under the Governing Jurisdiction.
Business Regulator Legislative Instrument means an instrument issued by Business Regulator from time to time which is designated a “Legislative Instrument”.
Business Location means the Cape Town South Africa.
Business Regulator means Financial Services Conduct Authority of South Africa.
Calculation Time means the time that RainFin performs the calculation, generally being 4:00 p.m. Cape Town.
Claim means any or all, actual or potential claim, action, complaint, suit, cause of action, arbitration, debt due, costs, claim, entitlement, allegation, demand in respect of damages and any other benefit verdict and judgment whether both at law or in equity or arising under the provisions of any statute, award or determination whether known at the date of these Terms or not.
Client means the person who is (or persons who are) recorded as having an Account.
Close Out, Closed Out and Closing Out in relation to a Transaction means discharging or satisfying the obligations of Client and RainFin under the transaction and this includes matching up the Transaction with a Transaction of the same kind under which Client has assumed an offsetting opposite position.
Confirmation means any confirmation of a Transaction issued by us to you and includes an electronically transmitted confirmation or a substantially continuously.
available account which contains or allows access to the information which would be in a confirmation.
Deal has the meaning given in the Business Law.
Default has the meaning in clause 18.1 and, if applicable, as supplemented by a term in an Appendix.
Digital Asset means an asset, software code or software-based instruction that is issued and transferred using distributed ledger or blockchain technology and any other thing notified by RainFin from time to time is a Digital Asset.
Disclosure Statement is defined in clause 1.9.
Exchange means an exchange or market in any financial products (whether they include the same as or like Financial Products). It includes decentralized exchanges and market facilities.
Financial Product means a financial product made available by us (whether an individual Transaction or a series of more than one Transaction which is netted under the Terms). It includes a Non-cash Payment Financial Product. This includes Transactions which are not regulated as financial products under Applicable Laws, or which involve Digital Assets which are not regulated as financial products under Applicable Laws.
Financial Service means a financial service (which is not a Financial Product) which is made available by us (whether an individual Transaction or a series of more than one Transaction which is netted under the Terms). This includes a service which is not regulated as a financial service under Applicable Laws or a service which involves Digital Assets which are regulated as financial products under Applicable Laws.
Force Majeure means an event that is beyond the reasonable control of a party (other than Market Risk) including but not limited to (without any implied limitation) change of Applicable Law (including taxation), change of interpretation of Applicable Law by a government agency nationalization, expropriation, currency restrictions, national law restrictions on using or transacting with Digital Assets, disruption of normal procedures and practices of any markets or Exchanges, acts of war or terrorism, riots, disruption, revolution, occupation, theft, sabotage, strikes, cyberattacks, hacks and other similar events or acts (whether or not directly or indirectly impacting on Client, RainFin).
Governing Jurisdiction means South Africa.
Loss means a damage, loss, cost, expense, or liability incurred by the person concerned, however it arises and whether it is present or future, fixed or unascertained, actual, or contingent.
Market Risk means risks inherent in Transactions or any part of any asset or procedures relevant to the Transaction which risks are outside of the reasonable control of RainFin, and which relate to the nature of the Digital Asset, or a Reference for the Transaction (including Digital Assets) or a protocol, market, Exchange, or other trading context relevant to their Transaction including (but not limited to):
a) risks inherently associated with:
(a) Digital Assets (including no verification or auditing of them by RainFin).
(b) coding of Digital Assets and protocols that use them.
(c) collateralizing for Digital Assets.
(d) collateralizing for Transactions including for protocols that use Digital Assets.
(e) Transactions with Digital Assets.
(f) staking Digital Assets.
(g) lending and borrowing Digital Assets.
(h) custody of Digital Assets.
(i) using digital currency exchanges.
(j) counterparty risks (including credit and solvency).
(k) third party data flows, internet or power connections, routing via internet.
(l) configuration of Client’s equipment or reliability of its connection.
(m) using blockchain-based transaction or platform for delivery of services systems,
(n) which include, but are not limited to:
(o) Digital Assets may not be recognized by some Applicable Laws.
(p) the governing law for all or any part of a transactions or Digital Assets might be unknown, uncertain, or contested.
(q) the person or address nominated by Client for settlement of a Transaction brokered by RainFin is not under the control of RainFin, so Client takes all risk of custody or control by Client’s nominated settlement address.
(r) the solvency of counterparties to Client’s Transactions brokered by RainFin or the solvency of OTC Counterparties.
(s) the governing law of The Mandate and Master Agreement might not be recognized by, or relevant to, counterparties to brokered Transactions for Client.
(t) minting and issuance policies for Digital Assets.
(u) taxation relating to Transactions in some Digital Assets may be unknown, emerging, or subject to change of law or of interpretation.
(v) blockchain transaction costs (including mining costs, however described), including those blockchain transaction costs which can vary (rapidly and in significant amounts).
(w) unknown errors, limits or features of blockchains and distributed ledger technology that use blockchains.
(x) flaws in the integrity of Digital Assets.
(y) laws in protocols that use Digital Assets.
(z) flaws in protocols or in Digital Assets that claim stability or pegging in performance features.
(aa) communication failures, disruptions, distortions, or delays when dealing (including processing payments) with any Digital Asset (including custody of them) or via any blockchain.
(bb) coding of Digital Assets and protocols that use them.
(cc) unintended flaws or features or being exploited by anyone or being hacked by unauthorized persons.
(dd) unknown or undisclosed collateralization for Digital Assets failing, being depleted, or being hacked or exploited.
(ee) changes, failures, and disruptions to blockchain platforms.
(ff) delays in blockchain transactions.
(gg) base layer transactions on a blockchain based distributed ledger or other distributed ledger are irreversible and the history of transactions on them is impractical to modify so it will be impossible to identify the recipient and reverse the defective or unintended transaction if Client initiates or requests a transfer of Digital Assets using an incorrect distributed ledger address.
(hh) any transaction in Digital Assets may be stored in a public distributed ledger and may be visible to the public (which is neither the property of RainFin nor under its control) and so information which is available on a public ledger may be exploited or misused in unforeseen ways.
(ii) delays or disruptions by taking control of Digital Assets technology including but not limited to managing or manipulating processing power for the Digital Assets network or making the network unavailable or dysfunctional.
(jj) fraud, theft and attack on wallets, Exchanges, or service providers with impact on Digital Assets or protocols in relation to them.
(kk) non-compliance or change of legal frameworks affecting other persons in relation to Digital Assets or services relevant to them.
(ll) failure of hardware to access the blockchain, software, and internet connection to the systems for managing Digital Assets, protocols for them, blockchain based platforms.
(mm) the lack of central or obvious central governing bodies or government agencies can lead to unclear, uncertain, or critical changes and decisions regarding Digital Assets and their networks, including delays, suspensions and forking.
(nn) forking can lead to several versions of the Digital Assets and that can lead to flaws in integrity, unavailability, or impaired acceptance by network users.
(oo) market slippage, so the Entry Price for the Transaction differs from the indicative Entry Price given to Client or Orders to Close Out positions might not be able to be executed at or around the levels given at the time of the Order.
(pp) the transactions of other persons in Digital Assets or protocols, including by other clients of RainFin, may impact pricing or performance of Digital Assets or protocols involving them in relation to Transactions for Client; and
(qq) foreign exchange rates and exchange rates as between Digital Assets.
(rr) unknown liquidity in markets, Exchanges, or protocol participants; and
(ss) banking processes, payment services processes and performance.
The above list is not exhaustive. These Terms do not attempt to list all specific Market Risks including all risks and features of Digital Assets and blockchain based risks.
Non-cash Payment Financial Product means a Financial Product which provides for arranging payment other than by dealing in cash.
Non-excluded Liability means:
(a) material breach by RainFin of an express provision of The Mandate and Master Agreement.
(b) fraud, dishonesty, negligence by or on behalf of RainFin; and
(c) any other liability imposed by Applicable Law on RainFin which by that law may not be excluded by these Terms and is not excluded by these Terms.
Order means any instruction placed by you with us to purchase or to sell or otherwise deal in Financial Products.
Platform is defined in clause 4.1.
Payment System means a payment clearing and settlement system.
Master Agreement means the agreement of that name made by you and us on which is pursuant to these Terms.
Rules, in relation to a Payment System, means the operating rules, procedures, customs and usages of the of the Payment System.
Security Information means any of your email address, logon code, password, or access password.
Tax means any present or future tax, levy, impost, deduction, charge, duty, compulsory loan or withholding (together with any related interest, penalty, fine or expense in connection with any of them) levied or imposed by any Government agency, other than any imposed on overall net income.
Term Sheet means a document (whether with that express name) which sets out contract specifications for a proposed specific Transaction or a class of proposed Transactions. A Term Sheet may be updated, varied, superseded, or ended at any time (but that does not affect any previously executed Transaction). A Transaction may be on terms which partly include a Term Sheet and partly on terms in these Terms (including an Appendix) and partly in an Order.
Terms is defined in clause 1.1.
Transaction Fee means the fee or commission from time to time specified by RainFin to be the amount payable by you to RainFin in respect of each Transaction.
we, us, or our means RainFin Pty 2008/029213/07: FSP NO. 45756 and its successors and assignees.
you mean Client, being the person or persons in whose name we open an Account, following our acceptance of an application by that person or those persons.
RainFin means RainFin Pty Ltd RainFin Pty 2008/029213/07: FSP NO. 45756.
Appendix 2 GLOSSARY - TRANSACTIONS
For convenience, the Glossary in this Appendix has defined expressions which are mainly used in Transactions.
(See Appendix 1 for defined expressions which are mainly generally used in the Terms. Other defined expressions for specific kinds of Transactions may be in other Appendix for those specific transactions. Please note that all defined expressions in all appendixes apply to all the Terms. This separation across appendix is only for convenience.)
Unless otherwise indicated, the following words and expressions have the meaning set out below:
Contract Date means the date that the Transaction was agreed to by RainFin.
Digital Asset Loan means a Transaction of with the specific terms set out in or incorporated by reference in Appendix 4.
Foreign Exchange means currency including South Africa Rands n Dollars and foreign currency.
Price means, in relation to a Transaction, the price or rate quoted by RainFin as finally determined when an Transaction is implemented.
Settlement Time means the time by which a Transaction must be settled, as set out in the Confirmation for the Transaction or through the Platform.
Transaction means any:
(a) Digital Asset Purchase.
(b) Digital Asset Loan.
(c) Digital Asset Sale.
(d) any other Financial Product or Financial Service specifically agreed by us from time to time.
USD means United States dollar or the lawful currency of the United States of America.
Appendix 3 PURCHASE AND EXTERNAL SETTLEMENT
(a) The following terms will apply to you, and you agree to be bound by them, each time you place an Order with RainFin to acquire a Digital Asset and nominate settlement to a person other than RainFin.
(b) Any term defined in this Appendix prevails over any other definition of the term elsewhere in the Terms.
(c) Any term not defined in this Appendix has the same meaning given to it elsewhere in the Terms.
(a) The purchase of the Digital Asset may be by RainFin as agent for you or as principal.
(b) RainFin will promptly arrange the settlement of your purchase Transaction by delivery of your purchased Digital Asset to the settlement address provided by you or on your behalf or provided to RainFin at your direction. RainFin will use the settlement address without verifying it. RainFin is not responsible for any delays in settlement to the address arising in the ordinary course of transactions in the kind of assets, including the Digital Asset.
(c) RainFin may charge you a fee to cover the transaction costs.
3. Client’s acknowledgments
You acknowledge that:
(a) You are solely responsible for ensuring that the correct settlement address is provided to RainFin. RainFin will not make any enquiries as to the accuracy of the settlement details provided to RainFin.
(b) RainFin may at any time refuse to accept instructions for, or settlement of, a Transaction to be made pursuant to this Appendix. RainFin may at any time and from time-to-time conduct checks on the settlement address or any person who is reasonable considered by RainFin to be associated with the nominated settlement address. Whether or not RainFin conducts any such enquiries, RainFin is not responsible to Client, or have any liability to Client or to any other person, for checking the settlement address, the identity of such persons, to disclose RainFin’s enquiries or to advise Client of the risks of the settlement requested by or on behalf of Client.
(c) RainFin is not liable for the conduct of the person who controls the settlement address in relation to the delivered Digital Asset. RainFin is not acting as their agent. RainFin has no contractual or fiduciary responsibility to you for the control of custody of the Digital Asset on and from delivery to the settlement address.
Appendix 4 DIGITAL ASSET LOANS
(a) The following terms will apply to you, and you agree to be bound by them, each time you Apply for a Digital Asset Loan with RainFin using Digital Asset as Collateral .
(b) Any term defined in this Appendix prevails over any other definition of the term elsewhere in the Terms.
(c) Any term not defined in this Appendix has the same meaning given to it elsewhere in the Terms.
(d) Any other provision in this Appendix prevails over any other provision elsewhere in the Terms which is inconsistent with this Appendix.
2. Lending Digital Assets
(a) A loan of Digital Assets which is made pursuant to The Mandate and Master Agreement is a Transaction on the terms of The Mandate and Master Agreement, the specific terms in this Appendix and the variables agreed by the parties for the loan.
(b) A Digital Assets Loan Transaction between client and RainFin, however it is labelled or referred to by the parties, is automatically pursuant to The Mandate and Master Agreement including this Appendix, even if the Order or Confirmation for it does not expressly refer to The Mandate and Master Agreement or to it as a Digital Asset Loan.
(c) A loan may be the entire Transaction and it may also be part of one or more related Transactions. Each is a separate Transaction unless expressly agreed otherwise.
(d) Despite the use of the words “loan, “lending”, “borrow”, “return” and their related expressions, the lending of Digital Assets and the delivery of Equivalent Digital Assets always only involves the absolute transfers to the other party all rights and title to and interest in the Digital Assets, free and clear of any liens, claims, charges or encumbrances or any other interest of the party or of any other person.
(e) A loan of Digital Assets involves the staking of a Collateral Digital Assets by the Borrower as Surety foe the Digital Asset Loan aAdvsn ed to the any deposit of the Digital Asset nor any encumbrance, claim or claw back on any other Digital Asset of any party.
(f) A loan Transaction:
(i) obliges the party who is identified for the transaction as Lender to lend the specified Digital Assets to the other party (identified as Borrower); and
(ii) obliges Borrower to deliver Equivalent Digital Assets to Lender, on the terms of this Appendix and the variables agreed for the Transaction.
(iii) This is referred to as Lender lending the Digital Assets and Borrower borrowing the Digital Assets. Borrower delivers Equivalent Digital Assets by transferring to Lender all title to Equivalent Digital Assets in accordance with the Transaction.
(g) The variables for a Transaction to be agreed include:
(i) the specific type of Digital Assets to be lent.
(ii) the number of Digital Assets.
(iii) the currency denomination of the loan.
(iv) the date the loan commences.
(v) the term of the loan (or expressed by way of the specific date the loan ends) or whether it is a continuing loan.
(vi) any Collateral or Collateral Cover; and
(vii) any Fee (including specified by a rate).
The terms of the agreed Transaction may specify other variables or conditions.
(h) RainFin may require Collateral or Collateral Cover for the Transaction (regardless of whether RainFin is Borrower or Lender).
3. Delivery of Digital Assets and Equivalent Digital Assets