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CONTENTS SECTION 1 - Introduction of Clients and Instructions... 1 SECTION 2 - Introducing Party s Obligations and Acknowledgments... 1 SECTION 3 - Payment of Commission... 3 SECTION 4 - Indemnity... 3 SECTION 5 - Dispute Resolution... 3 SECTION 6 - Termination... 4 SECTION 7 - Representations and Warranties... 4 SECTION 8 - GST... 5 SECTION 9 - Amendment and Assignment... 5 SECTION 10 - Notices... 6 SECTION 11 - General... 8 SCHEDULE 1... 11 0
1. INTRODUCTION OF CLIENTS AND INSTRUCTIONS 1.1 Referrals Only for Restricted Service This document sets out the terms by which Introducing Party introduces clients to ICM and ICM will pay Introducing Party for that service. Under this document the Introducing Party places the client s orders with ICM where necessary. New Clients Under this document, ICM will be referred clients through the course of the Introducing Party s activities. Access to client information Requirements Under certain regulatory or legal requirements, Introducing Party must promptly give ICM access to information to the extent ICM requires to satisfy that legal or regulatory requirement. Use of Client information The Introducing Party must ensure that there are arrangements in place that permit the Introducing Party to disclose the Client information referred to in this document to ICM in the circumstances contemplated by this document. 2. INTRODUCING PARTY S OBLIGATIONS AND ACKNOWLEDGMENTS 2.1. Licence If required to do so by law the Introducing Party must hold a valid Licence or authorisation which authorises the Introducing Party to give instructions to the client and ICM, should the Introducing party provide such services. The Introducing Party must only give instructions to the extent that the Introducing Party is authorised to do so under the Introducing Party s Licence and by the Client. The Introducing Party must notify ICM immediately if the Introducing Party ceases to hold a Licence or the required authorisations if any. 2.2. Laws All Relevant Products entered into between ICM and a Client, are subject to the Corporations Act and the Law. The Introducing Party must comply at its own expense with the Corporations Act, its Licence and any Laws in respect of any instructions the Introducing Party provides to ICM and its Clients. 2.3. Financial services provided by the Introducing Party ICM assumes no responsibility and has no liability for any financial services or financial product advice provided by the Introducing Party or its representatives to any client or third party, nor will ICM perform any supervisory function in respect of any financial services provided by the Introducing Party. 1
2.4 Relationship between ICM and the Introducing Party (d) (e) This document does not amount to any agency or partnership relationship between ICM and the Introducing Party. The Introducing Party acts under this document as part of is own business and not as part of ICM s business. The Introducing Party must not represent itself as a representative of, or a person authorised by ICM, use the name of ICM or any of its related bodies corporate in its advertising activities without obtaining the prior written consent of ICM The Introducing Party must not prepare letters, publish material or place any advertisements that refer to ICM and its relationship with ICM without the prior written consent of ICM. This is not an exclusive relationship and both the Introducing Party and ICM may enter into similar relationships with other persons. 2.5 Privacy The Introducing Party and ICM will comply with their respective obligations under the Privacy Act 1988 (Cth) and any applicable industry codes relating to the protection of personal information. 2.6 Telephone recording Telephone conversations with ICM may be recorded. If necessary, the Introducing Party will notify its representatives and Clients accordingly. 2.7 Fee arrangements The Introducing Party must advise each of the Clients, when required by law to do so, of the Introducing Party s fee arrangements with ICM. 2.8 FSG and PDS Since the Introducing Party is only referring prospective clients to ICM, ICM is responsible for discharging its obligation to provide an FSG and PDS to the Clients who are retail clients. 2.9 Confirmations ICM is responsible for sending the Clients Confirmations, as required by law. 2.10 Record keeping The Introducing Party must maintain any information gathered in accordance with this document on the Introducing Party s files for the relevant statutory period and make such information available to ICM on request. 2.11 Other Client disclosures The Introducing Party must inform any person whom it introduces to ICM under clause 2: 2
that the Relevant Products are offered by or through to ICM and not the Introducing Party; that the Introducing Party is not a representative of ICM; and of any matter ICM reasonably considers necessary for compliance by either or both of the parties with any enactment or regulations, notices, directions, orders, requirements or demands of any government, municipal or other proper authority to which either party is subject. 3. PAYMENT OF COMMISSION 3.1 Commission amounts ICM agrees to pay a Referral Fee or Commission to the Introducing Party, the amount determined on the basis set out in Schedule 1 4. INDEMNITY 4.1 Indemnity The Introducing Party agrees to indemnify ICM against any Loss ICM may suffer or incur arising out of or in connection with any act or omission of the Introducing Party. 5. DISPUTE RESOLUTION 5.1 Dispute resolution If a dispute arises between the parties (Dispute), any party seeking to resolve the Dispute must do so strictly in accordance with the provisions of this clause. 5.2 Notice A party seeking to resolve a Dispute must notify the other party in writing of the existence and nature of the Dispute (Dispute Notice). The Dispute Notice must set out full details of the Dispute. 5.3 Referral to senior representatives Upon receipt of a Dispute Notice the parties must immediately refer the Dispute to a senior representative of each party who must together attempt to resolve the Dispute in good faith within 6 Business Days of the Dispute Notice. 5.4 Other Remedies If the Dispute has not been resolved within 20 Business Days of receipt of the Dispute Notice, either party may pursue its legal remedies including by way of litigation. 6. TERMINATION 3
6.1 Termination Either party may terminate this document immediately on notice if the other party: (d) (e) (f) (g) (h) (i) is in material breach of any term of this document and in the event of a breach capable of being remedied, fails to remedy the breach within 20 Business Days of receipt of notice of the breach; ceases to hold a Licence or authorisation to perform its obligations in respect of Relevant Products arising under this agreement; passes a resolution for winding up (otherwise than for the purpose of a solvent amalgamation or reconstruction where the resulting entity assumes all of the other party s obligations under this document) or if a court makes an order to that effect; ceases to carry on its business; becomes or is declared insolvent or convenes a meeting of or makes or proposes to make any arrangement or composition with its creditors; has a liquidator, receiver, administrator, trustee, manager or similar officer appointed in respect of any of its assets or if any analogous step is taken in connection with its insolvency or dissolution; contravenes its Licence, the Corporations Act or any Law and fails to correct such contravention within 5 Business Days after being notified from any source, and that contravention is considered by the first party (acting reasonably) to result in or to be likely to cause material adverse consequences for it; commits an act or undertakes a course of conduct which both parties reasonably consider may harm the reputation of the first party or may otherwise detrimentally affect the first party; or does not, in the reasonable view of the first party, provide a professional level of service or conduct, and fails to remedy the situation within 20 business days of being officially notified. 6.2 Termination on 14 day s notice Either party may terminate this document upon the provision of 14 day s written notice to the other party. 7. REPRESENTATIONS AND WARRANTIES Subject to clause 6.2 each of ICM and the Introducing Party represents and warrants to and for the benefit of the other that: it is a limited liability company duly incorporated, registered and validly existing under the laws of its place of incorporation; it has the corporate power to own its assets and to carry on its business as it is now being conducted; it has power and authority to enter into and to perform its obligations under this agreement; 4
(d) (e) (f) it has taken all necessary action to authorise the execution, delivery and performance of this agreement to which it is expressed to be a party; this agreement constitutes its legal, valid and binding obligations on it and, subject to any necessary stamping and registration, is enforceable in accordance with its terms subject to laws generally affecting creditors rights and to principles of equity; the execution, delivery and performance by it of this agreement will not breach, or result in a contravention of: (i) (ii) (iii) (iv) (v) (vi) any law, regulation or Authorisation; its constitution or other constituent agreements; or any encumbrance or agreement which is binding it, and will not result in: the creation or imposition of any encumbrance on any of its assets other than as permitted under this agreement; or the acceleration of the date for payment of any obligation under any agreement which is binding on it; (g) (h) (i) each of its representations and warranties contained in this agreement are correct and not misleading when made or repeated; all written information provided to the other by or on its behalf in relation to it, its business or affairs, or this agreement was materially correct and not misleading (by omission or otherwise) as at the time it was provided; and it has not withheld from the other any information reasonably likely to be material to the decision of the other to enter into this agreement. The representations and Warranties in clause 7.1 are subject to any variations in the Schedule. 8. GST Unless specifically agreed otherwise in writing by ICM, any fees payable by ICM to the Introducing Party in connection with this document are exclusive of GST. 9. AMENDMENT AND ASSIGNMENT 9.1 Amendment This document can only be amended, supplemented, replaced or novated by another document signed by the parties. 5
9.2 Assignment Subject to sub-clauses (b and c), a party may only dispose of, declare a trust over or otherwise create an interest in its rights under this document with the consent of each other party. ICM may assign any or all of its rights and entitlements (and be released from its obligations upon that assignment) under this document to a related body corporate of ICM. 2. NOTICES A notice, consent or other communication under this document is only effective if it is in writing, signed and either left at the addressee s address or sent to the addressee by mail or fax. If it is sent by mail, it is taken to have been received 3 Business Days after it is posted. If it sent by fax it is taken to have been received when the addressee actually receives it in full and in legible form. (d) A person s address and fax number are those set out in Schedule 1. 10. GENERAL 10.1 Confidentiality Each party must treat the existence and terms of this document as confidential information and a party must not make or authorise an announcement or communication relating to the negotiations of the parties or to the existence, subject matter or terms of this document unless: the parties have first given their written approval; or the disclosure is made to comply with any applicable law or requirement of any government agency or regulatory body. 10.2 Governing law and jurisdiction (d) This document is governed by the laws in force in New South Wales, Australia. The parties submit to the non-exclusive jurisdiction of the courts of New South Wales. 10.3 Liability for expenses (e) (f) Subject to sub-clause, each party must pay its own expenses incurred in negotiating, executing and registering this document. The Introducing Party must indemnify ICM against, and must pay ICM on demand the amount of, any stamp duty that is payable on or in relation to this document. 10.4 Giving effect to this document Each party must do anything (including execute any document), and must ensure that its employees and agents do anything (including execute any document), that the other party may reasonably require to give full effect to this document. 6
10.5 Waiver of rights A right may only be waived in writing, signed by the party giving the waiver and: (g) (h) (i) no other conduct of a party (including a failure to exercise, or delay in exercising, the right) operates as a waiver of the right or otherwise prevents the exercise of the right; a waiver of a right on one or more occasions does not operate as a waiver of that right if it arises again; and the exercise of a right does not prevent any further exercise of that right or of any other right. 10.6 Operation of this document (j) (k) (l) This document contains the entire agreement between the parties about its subject matter. Any previous understanding, agreement, representation or warranty relating to that subject matter is replaced by this document and has no further effect. Any right that a person may have under this document is in addition to, and does not replace or limit, any other right that the person may have. Any provision of this document which is unenforceable or partly unenforceable is, where possible, to be severed to the extent necessary to make this document enforceable, unless this would materially change the intended effect of this document. 10.7 Operations of indemnities (m) (n) Each indemnity in this document survives the expiry or termination of this document. A party may recover a payment under an indemnity in this document before it makes the payment in respect of which the indemnity is given. 10.8 Consents If this document contemplates that a party may agree or consent to something (however it is described), that party may: (o) (p) agree or consent, or not agree or consent, in its absolute discretion; and agree or consent subject to conditions, unless this document expressly contemplates otherwise. 10.9 No merger Provisions of this document do not merge on the happening of any event. 10.10 Construction not against drafter No rule of law or interpretation to the effect that an ambiguity in a document is to be construed against the party drafting or preparing a document shall apply in respect of this document. 7
10.11 Exclusion of contrary legislation Any legislation that adversely affects an obligation of a party, or the exercise by a party of a right or remedy, under or relating to this document is excluded to the full extent permitted by law. 10.12 Inconsistency with other documents If this document is inconsistent with any other document or agreement between the parties, this document prevails to the extent of the inconsistency. 10.13 Counterparts This document may be executed in counterparts. 10.14 Attorneys Each person who executes this document on behalf of a party under a power of attorney declares that he or she is not aware of any fact or circumstance that might affect his or her authority to do so under that power of attorney. 11. DEFINITIONS AND INTERPRETATIONS 11.1 Definitions The following definitions apply in this document. ASIC means the Australian Securities and Investments Commission. Authorisation means: any consent, registration, filing, agreement, notice of non-objection, notarisation, certificate, licence, approval, permit, authority or exemption; or in relation to anything which a Government Agency may prohibit or restrict within a specific period, the expiry of that period without intervention or action or notice of intended intervention or action. Business Day means a day that is not a Saturday, Sunday or public holiday in Sydney, Australia. Client means a client of ICM as a result of an introduction by the Introducing Party (and, on that basis, becomes a client of ICM). Client Agreement means an agreement between the Client and ICM which governs dealings between them in Relevant Products. Commission means the commission referred to in clause 3.1 8
Confirmation means a confirmation sent by ICM to a Client detailing the sale or purchase of financial products by the Client. Corporation Act means the Corporations Act 2001 (Cth). FSG means a Financial Services Guide and any Supplementary Financial Services Guide, as those expressions are defined under Chapter 7 of the Corporations Act. GST has the same meaning as in A New Tax System (Goods and Services Tax) Act 1999 (Cth). Law means all laws including rules of common law, principals of equity, statutes, regulations, proclamations, ordinances, by-laws, rules, regulatory principles and requirements, policy statements, practice notes, mandatory codes of conduct, writs, orders, injunctions, judgments, determinations and statutory licence conditions. Licence means an Australian financial services licence granted by ASIC pursuant to section 913B of the Corporations Act or an authorised representative of an Australian financial service licensee pursuant to section 916A of the Corporations Act. Loss means, in relation to any person, a damage, loss, cost, expense or liability incurred by the person, or a claim, action, proceeding or demand made against the person, however arising and whether present or future, fixed or unascertained, actual or contingent. PDS means a Product Disclosure Statement and any Supplementary Product Disclosure Statement, as those expressions are defined in Chapter 7 of the Corporations Act. Relevant Product means to the products listed in Schedule 1. 11.2 Rules for interpreting this document Headings are for convenience only, and do not affect interpretation. The following rules also apply in interpreting this document, except where the context makes it clear that a rule is not intended to apply. A reference to: (i) legislation (including subordinate legislation) is to that legislation as amended, re enacted or replaced, and includes any subordinate legislation issued under it; (ii) a document or agreement, or a provision of a document or agreement, is to that document, agreement or provision as amended, supplemented, replaced or novated; 9
(iii) a party to this document or to any other document or agreement includes a permitted substitute or a permitted assign of that party; (iv) a person includes any type of entity or body of persons, whether or not it is incorporated or has a separate legal identity, and any executor, administrator or successor in law of the person; and (v) anything (including a right, obligation or concept) includes each part of it. (d) (e) (f) (g) A singular word includes the plural, and vice versa. A word which suggests one gender includes the other genders. If a word is defined, another part of speech has a corresponding meaning. If an example is given of anything (including a right, obligation or concept), such as by saying it includes something else, the example does not limit the scope of that thing. The word agreement includes an undertaking or other binding arrangement or understanding, whether or not in writing. The words financial product and related body corporate have the same meanings as in the Corporations Act. 11.3 Business Days If the day on or by which a person must do something under this document is not a Business Day: (h) (i) if the act involves a payment that is due on demand, the person must do it on or by the next Business Day; and in any other case, the person must do it on or by the previous Business Day. 10
SCHEDULE 1 1. Parties to this Agreement: (ABN 123 289 109) Introducing Broker - (ICM) - (Introducing Party) 2. Relevant Products: Foreign Exchange Contracts 3. Fees Payable: MetaTrader 4 (MT4) - Commission: o o The Introducing Party will be paid AUD $2 per lot round turn on ECN accounts and 0.4 pips per lot round turn on standard accounts. All commissions are payable in arrears within 20 days after the end of each calendar month. - The above rates are exclusive of any GST. - ICM may impose special arrangements from time to time for particular ICM Products. - Payment is subject to verification of entitlement required by ICM. - Fees payable only apply to MetaTrader 4 trading accounts. - Fees payable only apply to foreign exchange contracts. 4. Term 12 months 5. Requirements a) Payment is subject to verification of entitlement required by ICM. b) This Introducing Broker agreement does not apply to money managers operating MAM / PAMM accounts. 11