1. Introduction
1.1 This document referred to as Standard Terms of Business for Professional Clients and Eligible Counterparties (these “Terms”) is part of a wider agreement between you (the “Client”) and AT Global Markets (UK) Limited (the “Firm”) in relation to the investment services that the Firm may provide to the Client and any investment activities carried on by the Firm.
1.2 The Firm’s agreement with the Client consists of several documents that can be accessed through the Firm’s website, the Trading Platform, or separately upon request, and specifically compromises of:
1.2.1 these Terms (including the Schedules, and any additional Addendums) as may be amended from time to time;
1.2.2 the Financial Terms;
1.2.3 any application or form that the Client submits to open, maintain, or close an Account with the Firm;
1.2.4 the Notice Letter;
1.2.5 the High-Risk Investment Notice; and
1.2.6 any other specific terms and conditions entered into between the Firm and the Client, which may be displayed on the relevant website, and which may include any of the following Policies:
(i) the Firm’s ‘Order Execution Policy’, which explains certain aspects of how the Firm quotes prices and deals with Orders and Transactions;
(ii) the Firm’s ‘Conflict of Interest Policy’, which explains how the Firm handles conflicts of interest in a manner that treats its clients fairly;
(iii) the Firm’s ‘Privacy Policy’, which explains how the Firm deals with personal information the Client provides to the Firm;
(iv) the Firm’s ‘Complaint Handling Policy’ which details how the Firm deals with the client complaints;
(v) the ‘Title Transfer Collateral Arrangement – Loss of segregation’ letter (where applicable); and
(vi) any instructions, guides and worked samples published or provided by the Firm explaining how to enter into and close Transactions on the Trading Platform, which are together referred to as the “Agreement”.
The Agreement constitutes the entire agreement between the Client and the Firm with respect to the subject matter hereof and supersedes all prior contemporaneous oral or written communications, proposals, agreements or representations with respect to the subject matter. In the event of any conflict or inconsistency between the main body of these Terms and the Policies, the provisions in the Policies shall prevail.
1.3 Prior to the Client opening an Account and placing any Order or Transaction with the Firm, the Client must spend the necessary time to read and understand these Terms, as well as any additional documents and information (forming part of the Agreement or otherwise) available on the Firm’s website or upon request.
2. Definitions and Interpretation
2.1 In these Terms, the following words and phrases shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
“Access Code” shall mean any password(s), username, or any other security code issued by the Firm to the Client, which would allow the Client to utilise the Firm’s Services;
“Account” shall mean any account or accounts opened in MT Program, Multi-Product Platform or other platforms that the Firm may provide from time to time that the Firm maintains for the Client for dealing in the products or services made available under these Terms and in which the Client’s cash and assets (if any) are held, and to which realised profits and/ or losses are debited;
“Account Statement” shall mean a periodic statement of the Transactions and/ or charges credited or debited to an Account at a specific point in time and which will be available to the Client on the Trading Platform;
“Agreement” shall have the meaning as defined in Section 1.2 of these Terms;
“Applicable Regulations” shall mean all laws, rules and/ or regulations of any country (including the FCA Rules), market requirements, as well as the rules, regulations, orders, directives, announcements, decisions, procedures, terms, other requirements and/or customs made, given or issued by, or published under the authority of any regulatory body, or codes of practice with which it is customary to comply, all as amended, supplemented or replaced from time to time;
“Associated Firm” shall mean, in respect to the Firm, the Firm’s subsidiaries or holding companies or subsidiaries of such holding companies with “subsidiary” and “holding company” being as defined in Section 1159 of the Companies Act 2006;
“Attorney” shall mean a Fund Manager or representative authorised by the Client under a Limited Power of Attorney who the Firm agrees may act for the Client and/or give instructions to the Firm on the Client’s behalf in respect of these Terms;
“Base Currency” shall mean the currency in which the Client’s Account is denominated and in which the Firm will debit and credit the Client’s Account;
“Business Day” shall mean any day other than a Saturday or Sunday when the banks are open for general commercial business in London, United Kingdom;
“Business Hours” shall mean 9.00 to 18.00 UK times on a Business Day;
“CFD” shall mean a contract for difference within the meaning of Article 85(1) of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
“Client” shall mean you, the individual person or legal entity who is a party to these Terms and a customer of the Firm;
“Client Money” shall mean, in accordance with the Client Money Rules, money of any currency that the Firm receives or holds for the Client, or on the Client’s behalf, in the course of or in connection with, the business contemplated by the Agreement other than money which is due and payable by the Client to the Firm or any third party;
“Client Money Rules” shall mean those FCA Rules that concern the holding of Client Money;
“Closing Date” shall mean the date on which a Transaction is closed by either the Client or the Firm in accordance with these Terms;
“Closing Notice” shall mean a notice given to the Client by the Firm to close all or part of any Transaction (margined or otherwise) via the Trading Platform or by telephone, as applicable;
“Closing Price” shall mean:
(i) in the case of a Rolling Spot Forex Contract, the exchange rate at which the Client can buy if the Rolling Spot Forex Contract the Client wishes to close was a sell, and/ or the exchange rate at which the Client can sell if the Rolling Spot Forex Contract the Client wishes to close was a buy; or
(ii) in the case of a CFD the Contract Investment Price at the time a Closing Notice is effective as determined by the Firm or the Contract Investment Price at the time a CFD is closed out by the Firm exercising any of its rights under these Terms;
“Confirmation” shall mean a notification from the Firm to the Client confirming the Client’s entry into a Transaction, including the terms of the Transaction;
“Contract Investment Price” shall mean the current price of an Underlying Instrument as determined by the Firm;
“Contract Quantity” shall mean the total number shares, contracts or other units of the Underlying Instrument that the Client is notionally buying or selling;
“Contract Value” shall mean the Contract Quantity multiplied by the Firm’s then current price for closing the Transaction;
“Corporate Action” shall mean the occurrence of any of the following in relation to the issuer of any relevant financial instrument and/ or Underlying Instrument;
(i) any rights, script, bonus, capitalisation, or other issue or offer of shares/ Equities of whatever nature or the issue of any warrants, options or the like giving the rights to subscribe for shares/ Equity;
(ii) an acquisition or cancellation of own shares/ Equities by the issuer;
(iii) any reduction, subdivision, consolidation or reclassification of share/ Equity capital;
(iv) any distribution of cash or shares, including payment of dividend;
(v) a take-over or merger offer;
(vi) any amalgamation or reconstruction affecting the shares/ Equities concerned; and/ or
(vii) any other event which has a diluting or concentrating effect on the market value of any share/ Equity which is an Underlying Instrument or otherwise;
“Credit Support Document” shall have the meaning defined in Section ?23.1.10 of these Terms;
“Credit Support Provider” shall mean any person who has entered into any guarantee, hypothecation agreement, margin or security agreement in the Firm’s favour with respect to the Client’s obligations under these Terms;
“EEA” shall mean the European Economic Area, which is all the countries in the EU including Iceland, Norway and Liechtenstein;
“Elective Professional Client” shall have the meaning defined in the FCA Rules;
“Eligible Counterparty” shall have the meaning defined in the FCA Rules;
“Equity” shall have the same meaning as ‘equity share’ in the FCA Rules, which generally means shares comprised in a company’s equity share capital;
“Event of Default” shall mean any of the events listed in Section ?23.1 of these Terms;
“Exceptional Market Event” shall mean the suspension, closure, liquidation, imposition of limits, special or unusual terms, excessive movement, volatility or loss of liquidity in any relevant Market or Underlying Instrument, or where the Firm reasonably believes that any of the above circumstances are about to occur;
“FCA” shall mean the Financial Conduct Authority in the United Kingdom or any other successor organisation authority for the time being responsible for the regulation of investment business in the United Kingdom;
“FCA Rules” shall mean the Handbook of Rules and Guidance of the FCA;
“Financial Terms” shall mean the details of any interest, costs, fees or other charges, as varied from time to time, which apply to the Client’s Account with the Firm;
“Firm” shall mean AT Global Markets (UK) Limited (company number 09827091), a private limited company incorporated under the laws of England and Wales and having its principal place of business at 32 Cornhill, London, EC3V 3SG, United Kingdom;
“Force Majeure Event” shall have the meaning defined in Section ?24.1 of these Terms;
“Fund Manager” shall mean an individual person or legal entity approved by the Firm and undertaking an Order and/ or Transaction on behalf of the Client whether in their own name or in the Client’s name;
“Futures” shall have the meaning defined in the FCA Rules;
“HMRC” shall mean HM Revenue and Customs of the United Kingdom or any successor organisation established from time to time;
“Insolvency Officer” shall mean as defined in Section ?23.1.9 of these Terms;
“Limited Power of Attorney” shall mean the document through which the Client appoints a Fund Manager or representative to act and/ or give instructions on its behalf in respect of the Agreement;
“Manifest Error” shall mean as defined in Section ?25.1 of these Terms;
“Margin” shall mean as defined in Section ?19.1 of these Terms;
“Margin Call Warning” shall mean a demand for such sums by way of Margin as the Firm may reasonably require for the purpose of protecting itself against loss or risk of loss on present, future or contemplated Transactions in the Account under these Terms;
“Margin Requirement” shall mean the amount of money and/ or other collateral permitted by the Firm that the Client is required to deposit and/ or hold with the Firm for entering into a Transaction and/ or maintaining an Open Position on its Account;
“Margined Transaction” shall mean any Transaction subject to any Margin Requirements;
“Market” shall mean any market or multilateral trading facility subject to government or state regulation with established trading rules and trading hours including without limitation a Regulated Market;
“Market Order” shall mean an Order to enter the Market at the best current price offered by the Firm at that time;
“MT Program” shall mean as defined in Section ?30.1 of these Terms;
“Multi-Product Platform” shall mean the Firm’s multi-product platform as offered from time to time;
“Notice Letter” shall mean the letter which confirms the status and categorisation of the Client to the Firm, and which the Client agrees and acknowledges together with the Terms;
“Open Position” shall mean a Transaction which has not yet been closed in whole under these Terms;
“Options” shall have the meaning defined in the FCA Rules;
“Order” shall mean an instruction to purchase or sell a CFD Contract, a Rolling Spot Forex Contract, a Spread Bet, and/ or any other products offered by the Firm from time to time, at a price quoted by the Firm as appropriate;
“OTC” shall mean ‘Over the Counter’ and includes any Transaction concerning a commodity, security, currency or other financial instrument or property, including any option, future, or CFD which is traded off exchange by the Firm rather than on a regulated stock or commodities exchange;
“P&L” shall mean the total of the Client’s profits (whether realised or not) less the Client’s losses (whether realised or not);
“Per Se Professional Client” shall have the meaning defined in the FCA Rules;
“Professional Client” means a Client that is either a Per Se Professional Client or an Elective Professional Client, in accordance with the FCA Rules;
“Referring Partner” shall mean a person or firm who acts on behalf of the Client to effect an introduction of the Client to the Firm, and who is not a Fund Manager;
“Regulated Market” shall have the meaning defined in the FCA Rules;
“Resident of the United States of America” shall mean any natural person resident in the United States; any company, partnership, or other legal entity created or organised under the laws of any jurisdiction of the United States; a branch or agency of a foreign entity located in the United States; a trust of which the trustee is a United States resident; an estate of which a United States resident is the executor or administrator; or any account held for the benefit of a Resident of the United States of America;
“Retail Client” shall have the meaning defined in the FCA Rules;
“Rolling Spot Forex Contract” shall have the meaning defined by the FCA Rules;
“Secure Access Website” shall mean the password protected part of the Firm’s website (or any website notified to the Client by the Firm) through which the Client can view its Account information;
“Security” shall mean investments within articles 76 to 80 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
“Service Provider” shall mean a person or firm who provides a third-party service to the Client in connection with the Client’s use of the Firm’s Services;
“Services” shall mean the services that may be provided to the Client by the Firm in accordance with these Terms;
“Spread Bet” shall mean a gaming contract, which under the Financial Services and Markets Act 2000 constitutes the selling or buying of a CFD;
“Terms” shall mean these Standard Terms of Business between the Client and the Firm, as amended from time to time;
“Trading Platform” shall mean the password protected online or downloadable electronic facility where the Client can trade with the Firm under these Terms via MT Program, the Multi-Product Platform, and/ or any other platform provided by the Firm from time to time;
“Transaction” shall mean a contract in a financial instrument or any other contractual arrangement entered into between the Client and the Firm including a Margined Transaction; and
“Underlying Instrument” shall mean the index, commodity, currency, Equity or other instrument, asset or factor whose price or value provides the basis for the Firm or any third party to determine the price or the executable price for a Market or product.
2.2 A reference in these Terms to “Section” or “Schedule” shall be construed as a reference to, respectively, a section or schedule in these Terms, unless the context otherwise requires.
2.3 References in these Terms to any law, statute, regulation or enactment shall include references to any modification, amendment, extension, or re-enactment thereof.
2.4 In these Terms, references to an individual person shall include body corporates, unincorporated associations, partnerships, and individuals.
2.5 Headings in these Terms are for reference only and shall not affect the contents and interpretation of these Terms.
3. Regulatory Disclosures
3.1 The Firm has its registered office at 32 Cornhill, London EC3V 3SG United Kingdom, and is authorised and regulated by the FCA. The FCA’s address is 12 Endeavour Square, London, E20 1JN, United Kingdom (www.fca.org.uk). The Firm’s FCA reference number is 760555.
3.2 As noted in Section ?1.2.6, the Firm maintains a ‘Complaints Handling Policy’, which may be provided to the Client upon request. The Client should notify the Firm as soon as reasonably practicable if it wants to raise a complaint or dispute by emailing the Firm. The Firm has procedures and guidelines designed to enable it to deal with complaints fairly and quickly; the Client may contact the Firm at any time for further information of such procedures and guidelines. If after receiving the Firm’s final decision for the relevant complaint or dispute, the Client is dissatisfied with the Firm’s handling or findings in relation to that complaint or dispute, the Client may (if it is an eligible complainant within the meaning of the FCA Rules) refer the matter to the Financial Ombudsman Service, (www.financial-ombudsman.org.uk) for further investigation and resolution.
3.3 As an FCA regulated firm, the Firm participates in the Financial Services Compensation Scheme. Depending on the Client’s status and the circumstances of the Client’s claim against the Firm, the Client may be entitled to compensation from the Financial Services Compensation Scheme if the Firm cannot meet its obligations to the Client. Further information about the compensation is available from the Financial Services Compensation Scheme (www.fscs.org.uk).
4. Risk Acknowledgement
4.1 The Client acknowledges, recognises and understands, as highlighted further in the High-Risk Investment Notice, that trading and investments in leveraged as well as non-leveraged products:
4.1.1 is highly speculative;
4.1.2 may involve a high degree of risk; and
4.1.3 is appropriate only for a Professional Client or Eligible Counterparty who, if they trade on Margin, can assume risk of loss in excess of their Margin deposit.
4.2 The Client acknowledges, recognises and understands that:
4.2.1 because of the low Margin normally required in Margined Transactions, price changes in the underlying asset may result in significant losses, which may substantially exceed the Client’s investment and Margin deposit;
4.2.2 when the Client instructs the Firm to enter into a Transaction, any profit or loss arising out of a fluctuation in the value of the asset or the underlying asset will be entirely for the Client’s account and risk;
4.2.3 unless it is otherwise specifically agreed, the Firm shall not conduct any continuous monitoring of the Transactions already entered into by the Client neither individually or manually. Hence, the Firm cannot be held responsible for any Transactions that may develop differently from what the Client might have presupposed; and
4.2.4 the Client accepts and fully understands that it has not received any guarantees on negative balance protection or similar representations from the Firm, its Associated Firms, or any of their representatives or any other entity with whom the Client deals with relating to its Account.
5. Client Classification
5.1 The Firm provides Services to Professional Clients and Eligible Counterparties only. Importantly, the Firm does not provide Services to Retail Clients. Professional Clients and Eligible Counterparties are considered to be more experienced, knowledgeable and sophisticated and able to assess their own risk; they are thus afforded fewer regulatory protections as furthermore highlighted in the Notice Letter.
5.2 The Firm classifies the Client in accordance with the FCA Rules, and based on the Client’s Account opening documentation.
5.3 Following from classification of the Client, the Client may request in writing to be re-categorised and thus to increase or decrease the level of regulatory protections afforded. Where a Client requests a different categorisation, the Client needs to meet certain quantitative and qualitative criteria specified in the FCA Rules.
5.4 On the basis of the Client’s request, the Firm will undertake an adequate assessment in accordance with the FCA Rules. The Firm reserves the right to choose whether to provide Services under the requested re-categorisation or not.
5.5 The Firm does not provide Services to Retail Clients. If at any time the Client qualifies as a Retail Client, the Client undertakes to notify the Firm immediately.
6. Capacity
6.1 In relation to any Transaction, the Firm will enter into such Transaction as principal but the Firm reserve the right to act as agent on the Client’s behalf where so required or agreed in writing. The Client shall, unless otherwise agreed in writing, relative to the Firm, enter into Transactions as a principal and not as agent for any person.
7. Products and Services
7.1 Subject to the Client fulfilling its obligations under these Terms, the Firm may enter into Transactions with the Client in the following investments and instruments:
7.1.1 Rolling Spot Forex Contracts and forward bullion, currencies, non-deliverable forwards and OTC derivatives;
7.1.2 CFDs on commodities, Securities, indices, currencies and base and precious metals;
7.1.3 options to acquire or dispose of any of the instruments above, including options on options;
7.1.4 Spread Bets; and
7.1.5 such other instruments as the Firm may from time-to-time offer.
7.2 The investments and instruments provided by the Firm may be:
7.2.1 Margined Transactions; or
7.2.2 Transactions in instruments which are: traded on recognised or designated investment exchanges; traded on exchanges which are not recognised or designed investment exchanges; not traded on any stock or investment exchange; and/ or not immediately and readily realisable.
7.3 The Firm may, and at any time, cease to offer any Services and/ or remove products from its then prevailing offering. If the Client has an Open Position under a Service that is being terminated or in a product that is being removed for any reason whatsoever, the Firm will aim to provide the Client with at least ten (10) Business Days’ notice, where possible, in which to close any affected Open Position that it may hold. However, where in the Firm’s reasonable opinion it is necessary or fair to do so, the Firm reserves the right to provide a shorter notice period or no notice at all. Where notice is given, the Client should cancel any Orders and/ or close any Open Positions in respect of such affected Services or products before the time specified in the Firm’s notice. If the Client does not do this, the Firm will cancel any Orders and close down any Open Positions in respect of the affected Service or product at the time and in the manner specified in the notice without incurring any liability whatsoever.
7.4 Dealings with the Client will be carried out by the Firm on a non-advised and execution-only basis.
7.5 The Firm is not required to assess whether a Transaction is appropriate for the Client, monitor or advise the Client on the status of any Transaction; provide any Margin Call Warning; or close any Open Position for the Client (except in circumstances and under the conditions specified under these Terms).
7.6 The Firm will not make any recommendations or advice on the merits of dealing in particular investments or executing particular Transactions, their taxation consequences or the composition of any account or any other rights or obligations attaching to such investments or Transactions. The Client acknowledges that any information provided by the Firm as to the terms of a Transaction or its performance characteristics does not itself amount to advice on the merits of the investment. Where the Firm provides general trading recommendations, independent research, market commentary, guidance of shareholding disclosure or other information to Clients:
7.6.1 this is incidental to the Firm’s relationship with the Client and is provided solely to enable the Client to make independent investment decisions;
7.6.2 the Client acknowledges that where such information is general and not specifically targeted at the Client, the information does not amount to a personal recommendation or advice;
7.6.3 the Firm gives no representation, warranty or guarantee as to the accuracy or completeness of such information or as to the legal, tax, or accountancy consequences of any Transaction; and
7.6.4 where the information is in the form of a document (electronic or otherwise) containing a restriction on the person or category of persons for whom that document is intended or to whom it is to be distributed, the Client agrees that it will not pass on any information contrary to such restriction.
8. Access and Use of the Trading Platform and/ or Secure Access Website
8.1 In order to use the Trading Platform and/ or the Secure Access Website, the Client will need to request an Access Code from the Firm. The Client will need to provide the Access Code each time it wishes to use the Trading Platform and/ or Secure Access Website.
8.2 In relation to the Access Code, the Client acknowledges and undertakes that:
8.2.1 the Client will be responsible for the confidentiality and use of its Access Code;
8.2.2 other than with the Firm’s prior written consent, the Client will not disclose its Access Code to any persons for any purpose whatsoever (including persons within the Client’s organisation who are not authorised to access or use the Trading Platform and/ or Secure Access Website on behalf of the Client);
8.2.3 the Firm may rely on all instructions, orders and other communications entered using the Client’s Access Code, and the Client will be bound by any Transaction entered into or expense incurred on its behalf in reliance on such instructions, order and other communications; and
8.2.4 the Client will immediately notify the Firm if the Client becomes aware of the loss, theft or disclosure of the Access Code to any third party or of any unauthorised use of its Access Code.
8.3 If the Firm believes that unauthorised persons are using the Client’s Access Code without the Client’s knowledge and/ or the Firm’s prior written consent, the Firm may, without prior notice, suspend the Client’s rights to access or use the Trading Platform. Furthermore, if the Firm believes that the Client supplied its Access Code to other persons in breach of Section ?8.2.2 above, the Firm may terminate the Client’s Transactions, Open Positions and/ or these Terms forthwith without incurring any liability for any loss suffered by the Client.
8.4 Access to the Trading Platform and/ or Secure Access Website is provided “as is”. The Firm makes no warranties, express or implied representations or guarantees as to the merchantability and/ or fitness for any particular purpose or otherwise with respect to the Trading Platform and/ or Secure Access Website, their content, any documentation or any hardware of software provided. Technical difficulties could be encountered in connection with either the Trading Platform and/ or Secure Access Website. These difficulties could involve, among others, failures, delays, malfunction, software erosion or hardware damage, which could be the result of hardware, software or communication link inadequacies or other causes. Such difficulties could lead to possible economic and/ or data loss. In no event will the Firm, any of its Associated Firms, or any of their employees be liable for any possible loss (including loss of profit or revenue whether direct or indirect), costs, expenses, fines, penalties or damage including, without limitation, consequential, unforeseeable, special or indirect damages or expenses which might occur as a result of or arising out of using, accessing, installing, maintaining, modifying, de-activating, or attempting to access the Trading Platform and/ or the Secure Access Website or otherwise.
9. Dealing Between the Firm and the Client
9.1 In accordance with these Terms, the Client may request a quote, provide the Firm (or any of its Associated Firms) with oral or electronic instructions (which shall include instructions provided via the internet) to enter into a Transaction or to close all or part of an Open Position, or otherwise trade with the Firm as follows:
9.1.1 generally, all requests for quotes, instructions, Orders for execution of Transactions between the Client and the Firm and other trade matters must be given to the Firm electronically through the Trading Platform or by telephone, where applicable;
9.1.2 where the Client wishes to trade in Rolling Spot Forex Contracts, the Client should deal with the Firm in accordance with the terms of ?Schedule A (Rolling Spot Forex);
9.1.3 where the Client wishes to trade in CFDs, the Client should deal with the Firm in accordance with the terms of ?Schedule B (Contracts for Difference);
9.1.4 where the Client wishes to trade in Spread Bets, the Client should deal with the Firm in accordance with the terms of ?Schedule C (Spread Bets).
9.2 Upon receiving requests for quotes from the Client in accordance with Section ?9.1 above, the Firm may provide the Client with quotes via the Trading Platform, over the telephone or any other means as the Firm may notify to the Client from time to time. The quotes provided by the Firm (or any of its Associated Firms) are indicative only. The quotes are provided for information purposes only and do not constitute an offer to buy or sell any product or instrument at that price. Where the Client places an Order at the Firm’s then offered rate, the Client acknowledges that such rate may differ from the quote provided by the Firm.
9.3 Any instruction sent by the Client via the Trading Platform or by telephone, where applicable, shall only be deemed to have been received and shall only then constitute a valid instruction when such instruction has been recorded by the Firm and confirmed by the Firm to the Client orally or through the Trading Platform. A Transaction will be opened or, as the case may be, closed only when the Client’s instruction has been received and accepted by the Firm. The Firm’s acceptance of an instruction to open or close a Transaction, and thus the execution of the Transaction, will be evidenced by its confirmation of the Transaction’s terms to the Client via a trade Confirmation or the Trading Platform shows that an instruction has been executed (whichever is earlier). When instructions are given over the telephone, the Firm or its agents shall acknowledge the reception of the instructions orally or in writing, as appropriate.
9.4 The Firm shall be entitled to rely upon any instruction given or purporting to be given by the Client, its Attorney, or any other person on the Client’s behalf without further enquiry as to the genuineness, authority or identity of any such person giving or purporting to give such instructions.
9.5 The Firm may, at its discretion, refuse to accept any instruction from the Client, without giving any reasons or notice to the Client. Additionally, the Firm may refuse to execute any instruction with or without reason or notice and the Firm may cancel any instructions as previously given by the Client provided that the Firm has not acted on the Client’s instructions.
9.6 If the Firm offsets positions against other clients/brokers, the Firm reserves the right to do so at different prices.
10. Trading Confirmations and Account Statements
10.1 The Firm will provide the Client with general Account information through the Trading Platform and/ or Secure Access Website. Account information will usually include Confirmations with ticket numbers, purchase and sale rates, used margin, amounts available for margin trading, statements of profits and losses, current open and pending positions and any other information as required by the FCA Rules. Updated Account information will generally be available no later than twenty-four (24) hours after any relevant activity takes place on the Client’s Account on the Trading Platform.
10.2 The Client acknowledges and agrees that the posting of Confirmations will be deemed delivered when made available on the Trading Platform by the Firm to the Client. The Client may request receipt of Confirmations in hard copy or via email at any time by submitting a written request to the Firm. Confirmations shall, in the absence of Manifest Error or grossly obvious inaccuracies, be conclusive and binding on the Client, unless the Client notifies the Firm of its rejection in writing within two (2) Business Days of:
10.2.1 the Firm’s posting of the Confirmation on the Trading Platform and/ or Secure Access Website where the Client has not elected to receive trade Confirmation in hard copy or via email; or
10.2.2 dispatch of the Confirmation to the Client in hard copy or via email, where the Client has elected to receive Confirmations in hard copy or via email, or
10.2.3 if the Firm notifies the Client of an error in the Confirmation within the same period.
10.3 Through the Trading Platform and/ or Secure Access Website, the Client can generate daily, monthly and yearly reports of its Account. The provision of Account information is coupled with the Client’s ability to generate such reports and will be deemed delivery of Account Statements by the Firm to the Client. The Client has an obligation to generate its own Account Statements at least once a month for the preceding month. The Client may request receipt of Account Statements in hard copy or via email at any time by submitting a written request to the Firm. Account Statement shall, in the absence of Manifest Error or grossly obvious inaccuracies, be conclusive and binding on the Client, unless the Client notifies the Firm of its rejection in writing within two (2) Business Days of:
10.3.1 the first day of each month (such rejection to pertain to the previous month in accordance with the Client’s obligations under this Section ?10.3) where the Client has not elected to receive Account Statements in hard copy or via email; or
10.3.2 dispatch of the Account Statement to the Client in hard copy or via email, where the Client has elected to receive Account Statements in hard copy or via email, or if the Firm notifies the Client of an error in the Account Statement within the same period.
11. Commissions, Charges, and other Costs
11.1 The Client shall be obliged to pay the Firm for the commissions and charges set out in the Financial Terms, and any additional commissions and charges agreed between the Firm and Client from time to time whether in the Financial Terms or not.
11.2 The Firm reserves the right to amend the Financial Terms from time to time, with notice to the Client where possible. The Client is responsible for regularly reviewing the Financial Terms for any modifications and agrees to be bound by the same.
11.3 Notwithstanding Sections ?11.1 and ?11.2 above, the Firm shall be entitled to demand that the following expenses are paid separately by the Client with notice:
11.3.1 all extraordinary disbursements resulting from the Client relationship (e.g. telephone, courier, and postal expenses) in cases where the Client requests hard copy Confirmation, Account Statements or other documents which the Firm could have delivered in electronic form;
11.3.2 any expenses of the Firm caused by the Client’s non-performance of its obligations under these Terms, including a fee determined by the Firm in relation to forwarding of reminders, legal assistance, enforcement of the Agreement etc.;
11.3.3 the expenses will be charged either as a fixed amount corresponding to payments effected, or as a percentage or hourly rate corresponding to the Service performed in-house. The methods of calculations may be combined. The Firm reserves the right to introduce new expenses.
11.4 The Firm may receive remuneration from, or share commissions and charges with, its Associated Firms, the Client’s Referring Partner, Fund Manager or other third parties in connection with Transactions carried out on the Client’s behalf.
11.5 Unless specified otherwise in these Terms or FCA Rules, all amounts due to the Firm under the Terms shall be deducted from any monies held by the Firm for the Client.
11.6 If the Firm receives or recovers any commission, cost, expense, fee or any other amount in respect of a Client’s obligations under these Terms in a currency other than that in which the amount was payable, whether pursuant to a judgment of any court or otherwise, the Client shall indemnify the Firm and hold the Firm harmless from and against any cost (including costs of conversion) and loss suffered by the Firm as a result of receiving such amount in a currency other that the currency in which it was due.
12. Payment, Withdrawal and Set-Off
12.1 The Client agrees to comply with the following when making payments to the Firm under these Terms:
12.1.1 payments due to the Firm will be required to be made in Pounds Sterling, United States Dollars, Euros, or any other currency specified by the Firm from time to time;
12.1.2 the Client may make any payment due to the Firm (including payments made into the Account) by bank wire or any other method specified by the Firm from time to time. Unless otherwise agreed between the Firm and the Client, the Firm will not accept payments in the form of cash or cheque;
12.1.3 the Client is responsible for all third party electronic, telegraphic transfer, or other bank fees in respect of payment as well as any fees or charges payable to the Firm, which may be based on the elected payment method. Any fees or charges required by the Firm will be listed on the Financial Terms;
12.1.4 if any payment is not received by the Firm on the date such payment is due, then (without limitation of any other rights the Firm may have) the Firm will be entitled to charge interest on the overdue amount (both before and after judgment) at the interest rate prescribed in the Financial Terms from the date payment was due until the actual date of payment;
12.1.5 any payment made to the Firm will only be deemed to have been received when the Firm receives cleared funds; and
12.1.6 the Client bears the responsibility to ensure that payments made to the Firm are correctly designated in all respects, specifying without limitation the Client’s Account details where required by the Firm.
12.2 The Client will be asked to designate a Base Currency for its Account which shall be Pounds Sterling, United States Dollars, Euros, or any other currency specified by the Firm from time to time. Where the Client wishes to pay funds into its Account in a currency other than its designated Base Currency, the Firm will convert such funds into the Client’s Base Currency unless the Firm accepts alternative instructions from the Client. The terms of this Section ?12.2 will also apply where any interest or payments made by the Firm to the Client’s Account are in a currency other than the Client’s Base Currency.
12.3 Where the Client has a positive balance in its Account, the Client may request a withdrawal for any portion of the positive balance. The Firm may at its sole and absolute discretion withholds, deduct or refuse to make a payment (in whole or in part) due to the Client where:
12.3.1 the Client has Open Positions on the Account showing a loss;
12.3.2 the requested payment would reduce the Client’s Account balance to less than the Margin Requirement for the Client’s Open Positions;
12.3.3 the Firm reasonably considers that funds may be required to meet any current or future Margin Requirement on Open Positions due to underlying market conditions;
12.3.4 the Client has any actual or contingent liability to the Firm or its Associated Firms; and/ or
12.3.5 the Firm reasonably determines that there is an unresolved dispute between the Firm and the Client relating to these Terms or any other agreement between them.
12.4 All payments from the Client’s Account shall be made by bank wire transfer or any other method specified by the Firm from time to time.
12.5 All payments from the Client’s Account will be made in the Base Currency of that Account, unless the Client and the Firm agree in advance that such payment should be made in a different currency. The terms of this Section ?12.5 will also apply where any interest, costs, commissions or other charges to be debited from the Client’s Account are in a currency other than the Client’s Base Currency. Where the Client and the Firm agree that such payment should be made in a different currency, the Firm will convert the relevant payment amount from the Base Currency to the then agreed currency for payment.
12.6 Whenever the Firm conducts currency conversions, the Firm will do so at such reasonable rate of exchange as the Firm selects. The Firm shall be entitled to add a mark-up to the exchange rates.
12.7 Unless the Firm provides the Client with a written notice to the contrary, all payments and deliveries by the Firm to the Client will be made on a net basis and the Firm shall not be obliged to deliver or make payment to the Client unless and until the Client provides the Firm with the appropriate documents or cleared funds.
12.8 Without prejudice to the Firm’s right to require payment from the Client in accordance with these Terms, the Firm will have the right at any time to set off any losses incurred in respect of, or any debit balances in, any accounts (including an account held with an Associated Firm) in which the Client may have an interest. If any loss or debit balance exceeds all amounts so held, the Client must forthwith pay such excess to the Firm whether demanded or not. The Client also authorises the Firm to set off any losses incurred in respect of, or any debit balances in, any account held by the Client with an Associated Firm against any credit on the Client’s Account with the Firm.
13. Client Money
13.1 Where the Firm classifies the Client as an Elective Professional Client:
13.1.1 subject to these Terms, the Firm will treat money received from the Client or held by the Firm on the Client’s behalf in accordance with the Client Money Rules. The Client Money Rules require the Firm to segregate its clients’ money from the Firm’s own money, they do not require the Firm to segregate the money of any individual Client from the money of other clients of the Firm;
13.1.2 the Firm may:
(i) hold Client Money in bank accounts in the United Kingdom, and in other territories that are within or outside the EEA. Client Money held outside the UK or the EEA may be subject to the jurisdiction of that territory and the Client’s rights may differ accordingly. In the event of insolvency or any other equivalent failure of that bank, the Client’s money may be handled differently from the treatment which would apply if the money was held with a bank in the UK or the EEA; and/ or
(ii) allow a third party, such as an exchange, a clearing house, or an intermediate broker, to hold or control Client Money where the Firm transfers the Client Money for the purposes of a Transaction for the Client through or with that party (for example, a Margin Requirement), who may be located either inside or outside of the UK or the EEA;
13.1.3 unless otherwise agreed in writing, the Client acknowledges and agrees that the Firm will not pay the Client interest on Client Money or any other unencumbered funds. The Client expressly waives any entitlement to interest under the Client Money Rules or otherwise;
13.1.4 the Firm is not responsible for the solvency, acts or omissions of any bank or other third party with which Client Money is held; and
13.1.5 the Client agrees that the Firm may, in accordance with FCA Rules, cease to treat as Client Money any balance held by the Firm on the Client’s behalf where the Firm has determined that there has been no movement on the balance for a period of six (6) years (notwithstanding any payments or receipts of charges, interest or similar items) and the Firm is unable to trace the Client after taking reasonable steps to contact.
13.2 Where the Firm classifies the Client as a Per Se Professional Client or an Eligible Counterparty:
13.2.1 the Client acknowledges and agrees that title in and/or ownership of all of the money the Client pays to the Firm (including into the Client’s Account) to cover its Margin Requirement shall be transferred to the Firm for the purpose of securing or covering the Client’s present, future, actual, contingent or prospective obligations, and the Firm will not hold such money in accordance with the Client Money Rules. Any money received by the Firm from the Client or a third party for the Client’s Account will be owed by the Firm to the Client. Since the Client Money Rules do not apply, the Client does not have a proprietary claim over money transferred to the Firm, and the Firm can deal with it in its own right. The Firm will transfer an equivalent amount of money back to the Client where the money is due to be repaid to the Client or, in the Firm’s sole and absolute discretion, the Firm considers that the amount of money the Client has transferred to the Firm is more than what is necessary to cover the Client’s present, future, actual, contingent or prospective obligations to the Firm. In determining the amount of Margin Requirement and the amount of the Firm’s obligations towards the Client, the Firm may apply such methodology (including judgments as to the future movement of markets and values), as the Firm considers appropriate, and consistent with the Applicable Regulations;
13.2.2 by placing money with the Firm, the Client agrees that all money transferred into the Client’s Account is done so in anticipation of a Transaction with the Firm, and therefore has the purpose of securing or covering the Client’s present, future, actual, contingent or prospective obligations to the Firm. The Client should not place any money with the Firm that is not for the purpose of securing or covering the Client’s present, future, actual, contingent or prospective obligations to the Firm, and as a minimum to meet the Margin Requirement with the Firm;
13.2.3 the Client expressly acknowledges that any money the Client transfers to the Firm will not be segregated from the Firm’s own money and that the Client will rank as a general creditor of the Firm in the event of insolvency or an equivalent failure;
13.2.4 the client represents and warrants to the Firm that it is the sole owner of or otherwise has the right to transfer all money it transfers to the Firm free and clean of any security interest, lien, encumbrance, or any other restriction; and
13.2.5 unless otherwise agreed in writing, the Client acknowledges and agrees that the Firm will not pay the Client interest on any money provided to the Firm under this Section ?13 (Client Money). The Client therefore expressly waives any entitlement to any interest.
14. Tax
14.1 The Firm shall not provide any advice to the Client on any tax issues related to any Services. The Client should obtain individual and independent advice with respect to any tax, legal, and financial implications of the respective Services.
14.2 The Client is responsible for the payment of all taxes that may arise in relation to its Transactions.
15. Conflicts of Interest
15.1 The Firm, its associates or Associated Firms, may have an interest in relation to any Transaction effected by the Firm under the Terms.
15.2 The Firm is required to take all appropriate steps to identify and prevent conflicts of interest between the Firm and its customers as well as conflicts of interest between customers that arise in the course of the Firm’s provision of Services. The Firm operates in accordance with a Conflict of Interest Policy it has designed for this purpose (where it identified those situations in which conflicts of interest may arise, and in each case, the steps the Firm has taken to prevent that conflict). The Firm’s Conflict of Interest Policy is available upon written request to the Firm.
15.3 In the event that the Firm’s organisational and administrative arrangements to prevent or manage its conflicts of interest are not sufficient to ensure, with reasonable confidence, that the risks of damage to the interests of the Client will be prevented, the Firm must provide the Client with the following:
15.3.1 a clear statement that the steps taken by it to prevent the conflict are not sufficient to manage the risk of damage to the Client;
15.3.2 specific description of the conflicts that arise from that service;
15.3.3 explanation of the risks that arise and steps taken to mitigate the risks; and
15.3.4 explanation that the Firm’s organisational and administrative arrangements are not sufficient to protect the Client.
16. Order Execution
16.1 The Firm will execute the Client’s orders in accordance with the Firm’s Order Execution Policy, a copy of which is available on the Firm’s website at www.atfxconnect.com and the Client will confirm that they have read it and agreed to it, and the Firm considers the Client’s continued business constitutes the Client’s continued consent to the Order Execution Policy. The Firm may amend the Order Execution Policy from time to time by giving the Client not less than thirty (30) days’ written notice unless otherwise required to comply with Applicable Regulations.
17. Referring Partners, Fund Managers and Service Providers
17.1 The Client may have been referred to the Firm by a Referring Partner and/ or may have utilised any third-party system, course, program, software or trading platform offered by a Service Provider. The Client may also have authorised a Fund Manager to act on its behalf in accordance with these Terms. If so, the Firm shall not be responsible for any agreement made between the Client and the Client’s Referring Partner, Fund Manager and/ or Service Provider, or lack thereof. The Client further acknowledges that its Referring Partner, Fund Manager, and/ or Service Provider is/ are not authorised to make any representations concerning the Firm or the Firm’s Services.
17.2 The Firm does not control, and cannot endorse or vouch for the accuracy or completeness of any information advice or product the Client may have received or may receive in the future from a Referring Partner, Fund Manager and/ or Service Provider. The Client understands and acknowledges that the Referring Partner, Fund Manager and/ or Service Provider may not be regulated by a government agency or regulatory authority. Moreover, the Firm does not endorse or vouch for the services provided by a Referring Partner, Fund Manager and/ or Service Provider. It is the Client’s sole responsibility to properly evaluate a Referring Partner, Fund Manager and/ or Service Provider before engaging its services.
17.3 The Client is specifically made aware that the Client’s agreement with its Referring Partner, Fund Manager and/ or Service Provider may result in additional costs for the Client as the Firm may pay a one-off fee or regularly scheduled fees or commissions to such person or entity from the Client’s Account.
17.4 The Client is also specifically made aware that the Client’s Agreement with its Referring Partner, Fund Manager and/ or Service Provider may result in additional costs for the Client where the Client and Referring Partner, Fund Manager and/ or Service Provider agree to compensation on a per-trade basis to be based on the Client’s trading activity and withdrawn from the Client’s Account. Such compensation to the Referring Partner, Fund Manager and/ or the Service Provider may require the Client to incur a mark-up, above and beyond the ordinary spread provided by the Firm. The Client acknowledges and accepts that frequent transactions may result in a sum of total commissions, fees and/ or charges that may be substantial and may not necessarily be offset by the net profits, if any, achieved from the relevant trades. The responsibility for correctly assessing whether the size of the total commissions, fees and/ or charges for trades conducted and paid from the Client’s Account is commercially viable is the combined responsibility of the Client and the Referring Partner, Fund Manager and/ or Service Provider. The Firm only acts as principal broker, and therefore is not responsible for the size of the commissions, fees and/ or charges paid by the Client.
17.5 Any commissions, fees or charges may be shared between the Referring Partner, Fund Manager and/ or Service Provider, the Firm and third parties according to the Referring Partner, Fund Manager and/ or Service Provider’s writing instructions and/ or the Firm’s discretion.
17.6 The Client may request the Firm to provide, at any time, a breakdown of remuneration paid by the Client to the Referring Partner, Fund Manager and/ or Service Provider, or the compensation scheme charged by the Referring Partner, Fund Manager and/ or Service Provider as applied to the Client.
18. Managed Accounts
18.1 At the Client’s request, the Firm may allow a third party, selected by the Client, to be the Client’s Attorney, managing the Client’s Account, for the following purposes:
18.1.1 to enter into, modify, and/ or close Transactions with the Firm;
18.1.2 to set, edit, and/ or delete all dealing preferences relating to the Account;
18.1.3 to enter into any agreements with the Firm on behalf of the Client, which relate to Transactions on the Account;
18.1.4 to communicate with the Firm on behalf of the Client regarding any complaints or disputes that the Client or Firm may have against one another in relation to the Account; and/ or
18.1.5 to transfer money between the Account(s) and between any other account that the Client holds with the Firm.
18.2 Where a Client wishes to have its Account managed by a third party, the Client must submit a Limited Power of Attorney between the Client and the Attorney to the Firm in a form and containing terms that are acceptable by the Firm in its sole and absolute discretion. The Firm, Client and Attorney will be bound by these Terms.
18.3 The Firm reserves the right, at any time and in its sole and absolute discretion, to require the Client to operate its Account. This would require the Client to revoke its grant of authority to its Attorney and take all actions on its Account itself. Where the Firm so requires, the Firm will notify the Client and the Attorney of its decision. The Firm need not specify its reasons for requiring the Client to operate its Account.
18.4 The Firm’s acceptance of a Limited Power of Attorney between the Client and the Attorney is conditional upon the Attorney opening an account with the Firm in its personal capacity and maintaining that account for the entire period that it acts as an Attorney for the Client.
18.5 The Client agrees to reimburse the Firm for any loss, damage or expense incurred by the Firm as a result of:
18.5.1 the Firm acting on instruction of the Attorney that fall outside power granted in the Limited Power of Attorney; or
18.5.2 the Attorney’s breach of any term of the Limited Power of Attorney or of these Terms.
18.6 The Firm shall allow the Attorney subject to the authorisation granted by the Client in the Limited Power of Attorney to transfer part or all of the Client’s funds back to the originating account held by the Client.
18.7 Where the Client agrees to compensate its Attorney directly from the Account, the Client shall submit to the Firm a compensation schedule in a form acceptable to the Firm.
18.8 Where the Client has appointed a Fund Manager for its Account, the Client may select the type of management module to be used by the Fund Manager, which shall be noted on any Limited Power of Attorney.
18.9 The Client authorises the Firm to accept all instructions given to it by the Attorney, whether orally or in writing, in relation to the Account. The Firm shall not be obliged to make any enquiry of the Client or of any other person before acting on such instructions.
18.10 The Client ratifies and accepts full responsibility and liability for all instructions given to the Firm by the Attorney (and for all Transactions that may be entered into as a result) and will indemnify the Firm and keep it indemnified against any loss, damage or expense incurred by the Firm as a result of its acting on such instructions. The indemnity shall be effective irrespective of the circumstances giving rise to such loss, damage or expense, and irrespective of any knowledge, acts or omissions of the Firm in relation to any other account held by any other person or body (including the Attorney) with the Firm. The Client further agrees that this indemnity shall extend to loss, damage or expense incurred by the Firm in reversing incorrect or erroneous instructions submitted by the Attorney that result in a Transaction that must, for the protection of the Firm or its other clients or for the reasons of market integrity, be reversed.
18.11 The Firm hereby notifies the Client that the Attorney is not an employee or representative of the Firm and further that the Attorney does not have any power or authority to act on behalf of the Firm or to bind the Firm in any way.
18.12 Unless otherwise agreed in writing between the Firm and the Client, the Firm may from time to time communicate with the Attorney directly regarding the Account. The Client consents to this and agrees that communications made by the Firm to the Attorney are deemed to be received by the Client at the same time at which they are received by the Attorney.
18.13 By submitting a Limited Power of Attorney to the Firm, the Client consents to and authorises the Firm to disclose to the Attorney all information that the Firm holds in relation to the Account holds in relation to the Client.
18.14 The Client acknowledges and accepts that, in providing an electronic or online trading system to the Attorney, the Firm has the right but not the obligation to set limits, controls, parameters and/ or other controls on the Attorney’s ability to use such a system. The Client accepts that if the Firm chooses not to place any such limits or controls on the Attorney’s trading, or if such limits or controls fail for any reason, the Firm will not exercise oversight or control over instructions given by the Attorney and the Client accepts full responsibility and liability of the Attorney’s actions in such circumstances.
18.15 If the Client wishes to revoke or amend a grant of authorisation under a Limited Power of Attorney, it must provide a written notice of such intention to the Firm from time to time. Any such notice shall not be effective until two (2) Business Days after the Firm receives it (unless the Firm advises the Client that a shorter period will apply). The Client acknowledges that it will remain liable for all instructions given by the Attorney to the Firm prior to the revocation/ variation being effective, and that it will be responsible for any losses which may arise on any Transactions that are open at such time.
19. Margin
19.1 As a condition of entering into a Margined Transaction, the Firm may in its sole and absolute discretion require the Client to pay or transfer funds into its Account or other collateral acceptable to the Firm as a security for any losses incurred by the Client in respect of any Transaction (“Margin”). The Client must satisfy any and all Margin Requirements immediately as a condition to opening the relevant Margined Transaction and the Firm may decline to open any Margined Transaction if the Client does not have sufficient funds in its Account to satisfy the Margin Requirement for that Margined Transaction at the time the relevant Order is placed, and for the avoidance of doubt, the Margin Requirements are set separately when the Client opens two (2) separate accounts with the Firm on the Trading Platform. Therefore, it is the sole responsibility of the Client to ensure that each Account with the Firm has sufficient Margin on account at all times.
19.2 The Client also has a continuing Margin obligation to the Firm to ensure that its Account balance, taking into account its P&L is equal to or greater than the Margin Requirement for all of the Client’s Open Positions. For the avoidance of doubt, the Client is obliged to maintain in its Account, at all times, sufficient funds to meet all Margin Requirements. If the Client believes that it cannot or will not be able to meet the Margin Requirement, the Client should reduce its open margined positions or transfer adequate funds to the Firm. In the event the Client wishes to transfer funds from one of its Accounts with the Firm to another one of its Accounts with the Firm, then the Client can do so at the Firm’s sole and absolute discretion, and subject to its consent, when given, the Client shall allow not less than three (3) Business Days for the transfer to be effected.
19.3 Where there is any shortfall between the Client’s Account balance (taking into account P&L) and the Client’s Margin Requirement for all Open Positions, the Firm may in its sole and absolute discretion choose to close or terminate one, several, or all of the Client’s Open Positions in Margined Transactions immediately, in any sequence, with or without notice to the Client. If the Firm may close one, several, or all of the Client’s Margined Transactions, the Client should expect that the Firm will close all of the Client’s Margined Transactions.
19.4 Where the Client is near breach or in breach of any Margin Requirements, the Firm may make a Margin Call Warning in accordance with these Terms. The Firm is not obliged to make Margin Call Warnings to the Client at all or within any specific time period. Margin Call Warnings may be made at any time and in any way permitted under these Terms. For this reason, it is in the Client’s best interest to keep the Firm regularly apprised of changes in its contact details. The Firm shall be deemed to have made a Margin Call Warning if it notifies the Client electronically via the Trading Platform.
19.5 The Firm shall not be liable to for any failure to contact the Client with respect to a Margin Call Warning. Should the Firm make a Margin Call Warning, the terms and conditions of the Margin Call Warning will be detailed within such warning and the Firm reserves the right to change the terms and conditions of any Margin Call Warning based on market conditions, including without limitation any actions from third party providers which are outside the Firm’s control, with or without notice to the Client. The Firm’s right to close out the Client’s Open Positions in Margined Transactions as provided in Section ?19.3 above shall not be limited or restricted by any Margin Call Warning if or where made.
19.6 The Client may by a written agreement with the Firm satisfy Margin Requirements and/ or a Margin Call Warning by providing collateral in a form acceptable to the Firm.
19.7 The Client may access details of Margin amounts paid and owing by logging into the Trading Platform. The Client acknowledges that:
19.7.1 the Client is responsible for monitoring and paying the Margin required at all times for all Margined Transactions with the Firm; and
19.7.2 the Client’s obligation to pay Margin will exist whether or not the Firm contacts the Client regarding any outstanding Margin obligations.
19.8 The Firm’s Margin Requirements for different types of Margined Transactions are generally displayed on the Firm’s website, and in certain instances, the Firm may notify the Client of Margin Requirements through alternative means. However, the Firm reserves the right to determine specific Margin Requirements for individual Margined Transactions.
19.9 Margin will not be required where the Firm has expressly agreed to reduce or waive all or part of the Margin that the Firm would otherwise require the Client to pay in respect of a Margined Transaction. The period of such waiver or reduction may be temporary or may be in place until further notified. Any such waiver or reduction must be agreed in writing (including by email) and will not limit, fetter or restrict the Firm’s right to seek further Margin from the Client in respect of that Transaction or any Transaction thereafter.
19.10 The Client is specifically made aware that the Margin Requirements are subject to change without notice including without limitation the Margin rates governing the Client’s Open Positions for Margined Transactions. When a Margined position has been opened, the Firm may close the Margin Transaction at its discretion or at the Client’s instruction where possible, or according to the Firm’s rights under these Terms.
19.11 If the Client has opened more than one Account with the Firm or any Associated Firm, the Firm is entitled to transfer money from one Account to another to satisfy Margin Requirements, in its sole and absolute discretion, even if such transfer will necessitate the closing of Open Positions or cancellation of Orders on the Account from which the transfer takes place.
20. Security
20.1 Without prejudice to any rights that the Firm may be entitled to under these Terms or any Applicable Regulations, the Firm shall have a general lien on all property held by the Firm, its Associated Firms on the Client’s behalf until the satisfaction of all of the Client’s obligations (whether actual, contingent, present or future) to the Firm.
20.2 Any action taken by the Firm in connection with or pursuant to a Transaction by the Firm at a time at which any Event of Default specified in Section ?23.1 of these Terms has occurred (whether or not the Firm has knowledge thereof) shall be entirely without prejudice to the Firm’s right to refuse any further performance thereafter, and shall not in any circumstances be considered as a waiver of that right or as a waiver of any other right that Firm may have should such an Event of Default have occurred.
21. Appropriateness
21.1 If, on the Client’s own initiative, the Client requests the Firm to provide it with execution-only dealing services in non-complex products, the Firm is not required to assess the appropriateness of the instrument or the Service provided or offered to the Client in accordance with the FCA Rules. As a result, the Client will not benefit from the protection of the FCA Rules on assessing appropriateness. Accordingly, when giving Orders or instructions to the Firm, the Client must rely upon its own judgment. The Client should get independent advice from an authorised investment adviser if it has any doubt.
21.2 In accordance with the FCA rules, the Firm will assume that the Client has the necessary knowledge and experience for products, Services or Transactions in respect of which it has been classified as a Professional Client. The Firm is also not required to undertake an appropriate assessment where the client is an Eligible Counterparty. As such, the Firm will not undertake any appropriateness assessment when the Client deals in a complex product in accordance with the FCA Rules.
21.3 Notwithstanding the aforementioned, the Client may wish to seek independent advice from an authorised investment adviser if it has any doubt about dealing in complex products.
22. Representations, Warranties and Covenants
22.1 Representations and warranties are personal statements, assurances or undertakings given by the Client to the Firm on which the Firm relies when dealing with the Client. The Client makes the following representations and warranties at the time it enters into these Terms and every time it places an Order or gives the Firm any other instruction:
22.1.1 where the Client is a natural person, the Client is of sound mind, and over 18 years old;
22.1.2 the Client is aware of the risks involved in trading each investment product with the Firm;
22.1.3 the Client and/ or any person(s) entering into these Terms and performing any Transactions on the Client’s behalf, has all necessary authority, powers, consents, licences and authorisations, and has taken all necessary actions to enable it to lawfully enter into and perform its obligations under these Terms, and/ or to place any Orders or instructions;
22.1.4 these Terms as well as each Transaction and the obligations created under them are binding upon the Client and enforceable against it (subject to applicable principles of equity) and currently do not and in the future will not violate the terms of any regulation, order, charge or agreement by which the Client is bound;
22.1.5 no Event of Default has occurred or is occurring with respect to the Client or any Credit Support Provider;
22.1.6 the Client is in compliance with all laws to which it is subject including, without limitation, all tax laws and regulations, exchange control requirements and registration requirements;
22.1.7 except where the Firm and Client have agreed otherwise in writing, the Client acts as Principal and is not acting as any other person’s agent or representative;
22.1.8 all information which the Client provides or has provided to the Firm (whether in the Account opening process or otherwise) is true, accurate and not misleading in any material respect;
22.1.9 the Client is willing and financially able to sustain a total loss of funds resulting from Transactions;
22.1.10 the Client has consistent and uninterrupted access to internet service and any email address provided in its Account opening documentation;
22.1.11 money, investments or other assets supplied by the Client for any purpose shall, subject to the Terms, at all times be free from any charge, lien, pledge or encumbrance and shall be beneficially owned by the Client, unless otherwise allowed by these Terms;
22.1.12 the Client is now and will be at all times in the future be in compliance with all Applicable Regulations including those concerning anti-money laundering relating to the identification requirements, and if satisfactory evidence of identity has not been obtained by the Firm within a reasonable time period, the Firm reserves the right to cease to deal with the Client;
22.1.13 where the Client is not a resident of the United Kingdom, the Client is solely responsible for ascertaining whether any Transaction entered into under these Terms is lawful under the applicable laws of the jurisdiction where the Client holds residency; and
22.1.14 the Client is not a Resident of the United States of America.
22.2 A covenant is a promise to affirmatively do something. The Client covenants to the Firm:
22.2.1 that for the duration of the Agreement, the Client will promptly notify the Firm of any change to the details supplied by the Client during the Account opening process, including in particular any change of contact details, change of address, any such occasions where the Client moves to another territory or country, and any change or anticipated change in the Client’s financial circumstances or employment status (including redundancy and/ or unemployment) which may affect the basis on which the Firm does business with the Client;
22.2.2 the Client will at all times obtain, comply and do all that is necessary to maintain in full force and effect, all authority, powers, consents, licences and authorisations referred to in this Section ?22 (Representations, Warranties and Covenants);
22.2.3 the Client will promptly notify the Firm of the occurrence of any Event of Default or potential Event of Default with respect to itself or any Credit Support Provider;
22.2.4 upon demand, the Client will provide the Firm with such information as the Firm may reasonably require from time to time; and
22.2.5 the Client will use all reasonable steps to comply with all Applicable Regulations in relation the Agreement.
23. Default and Default Remedies
23.1 Each and any of the following shall constitute an Event of Default:
23.1.1 if the Firm has reasonable grounds to believe that the Client failed to make any payment or that the Client is in material breach of any part of the Agreement;
23.1.2 if the Client fails to remit funds necessary to enable the Firm to take delivery under any Transaction on the first due date;
23.1.3 if the Client fails to provide assets for delivery, or take delivery of assets, under any Transaction on the first due date;
23.1.4 if the Client dies or becomes of unsound mind;
23.1.5 the Firm considers it necessary or desirable to prevent what is considered to be or might be a violation of any Applicable Regulations, or good standard of market practice;
23.1.6 if any representations or warranties given by the Client or any Credit Support Provider in these Terms or any Credit Support Document, are or become untrue;
23.1.7 if the Firm reasonably considers it necessary for its own protection or the protection of any Associated Firm, or if any action is taken or event occurs which the Firm considers might have a material adverse effect on the Client’s ability to perform any of its obligations under the Agreement;
23.1.8 if the Client is unable to pay its debts as they fall due, or is bankrupt or insolvent as defined under any bankruptcy or insolvency law applicable to the Client;
23.1.9 if the Client or any Credit Support Provider commences a voluntary case or other procedure, or an involuntary case or procedure is commenced against the Client, seeking or proposing liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or other similar relief with respect to the Client or its debts under any bankruptcy, insolvency, regulatory, supervisory or similar law (including any corporate law or other law applicable to the Client, if insolvent) or seeking the appointment of a trustee, receiver, liquidator, conservator, administrator, insolvency officer, or other similar official (each an “Insolvency Officer”) of the Client or any part of the Client’s assets, or if the Client takes any corporate action to authorise the foregoing;
23.1.10 if the Client or any Credit Support Provider or any Insolvency Officer acting on either behalf, disaffirms, disclaims or repudiates any obligation under this Agreement or any guarantee, hypothecation agreement, margin or security agreement, or any other document containing an obligation of a third party or of the Client in favour of the Firm supporting any of the Client’s obligations under these Terms (individually a “Credit Support Document”);
23.1.11 if the Client or any Credit Support Provider fails to comply with or perform any obligation under an applicable Credit Support Document;
23.1.12 if any Credit Support Document expires or ceases to be in full force and effect prior to the satisfaction of all of the Client’s obligations under these Terms, unless otherwise agreed by the Firm; or
23.1.13 if any Event of Default (however described) occurs in relation to any other agreement that the Client may have with the Firm.
23.2 Upon the occurrence of an Event of Default, the Firm may, in its sole and absolute discretion, take all or any of the following actions:
23.2.1 close any Open Positions or cancel any Orders on the Client’s Account;
23.2.2 prohibit the Client or any of its Attorneys from accessing or using the Client’s Account;
23.2.3 suspend or in any way limit or restrict the Client or the Attorney’s ability to place any Order, give any instruction or effectuate any Transaction in relation to the Client’s Account;
23.2.4 vary the Margin Requirements applicable to the Client;
23.2.5 reverse any Transactions (as if they had never been entered into in the first place) and the effect of such Transactions on the Client’s Account;
23.2.6 sell or charge in any way any or all of the Client’s securities, assets and property which may from time to time be in the possession or control of the Firm or any of its Associated Firms or call on any guarantee;
23.2.7 require the Client to close any or all of its Open Positions by a specified date selected by the Firm;
23.2.8 make appropriate deductions or credits;
23.2.9 terminate these Terms immediately without notice, or with notice with termination occurring on a specified date selected by the Firm;
23.2.10 exercise the Firm’s right of set-off; and/ or
23.2.11 pay to the Client the fair market value at the time the Firm exercises the right to terminate these Terms, of any investments held by the Firm or its Associated Firms, instead of returning to the Client investments equivalent to those credited on its Account.
23.3 The Client authorises the Firm to take any or all of the actions described in Section ?23.2 of these Terms without notice to the Client and in any sequence, and the Client acknowledges that the Firm shall not be liable for any consequences of taking such actions, unless the Firm has exercised gross negligence in connection herewith. The Client shall execute the documents and take any action as the Firm may request in order to protect the rights of the Firm and its Associated Firms under the Terms or under any agreement the Client may have entered into with any Associated Firm.
23.4 If the Firm exercises its rights to sell any security or property of the Client under Section ?23.2, it will effect such sale, without notice or liability to the Client, on behalf of the Client and apply the proceeds of sale in or towards discharge of any of the Client’s obligations to the Firm or any Associated Firm.
24. Force Majeure
24.1 Since the Firm does not control signal power, its reception or routing via Internet, configuration of the Client’s equipment or reliability of its connections, the Firm shall not be liable for any claims, losses, damages, costs, penalties or expenses, including attorney’s fees, caused directly or indirectly, by any breakdown or failure of any transmission or communication system or equipment or computer facility or trading software, whether belonging to the Firm or its Associated Firms, the Client, any Market, or any settlement or clearing system when the Client trades online (via Internet) or for any cause preventing the Firm from performing any or all its obligations, any act of God, war, terrorism, pandemics or epidemics, malicious damage, civil commotion, industrial acts, any Exceptional Market Event, or acts and regulations of any governmental or supra national bodies or authorities which in the Firm’s opinion prevent an orderly market in relation to the Client’s Orders (a “Force Majeure Event”).
24.2 Upon the occurrence of a Force Majeure Event, the Firm shall use commercially reasonable efforts to resume performance and it may give the Client written notice that a Force Majeure Event has occurred. Upon occurrence of a Force Majeure Event, all of the Firm’s obligations under these Terms shall be immediately suspended for the duration of such Force Majeure Event. Additionally, the Firm may take any one or more of the following steps:
24.2.1 alter normal trading times;
24.2.2 alter the Margin Requirements;
24.2.3 amend, vary or terminate these Terms and any Transaction contemplated by these Terms, insofar as it is impractical or impossible for the Firm to comply with its obligations;
24.2.4 close any or all Open Positions, cancel instructions and Orders as the Firm deems to be appropriate in the circumstances; and/ or
24.2.5 take or omit to take all such other actions as the Firm deems to be reasonably appropriate in the circumstances having regard to the Clients positions and those positions of the Firm’s other customers.
25. Manifest Errors
25.1 A “Manifest Error” means a manifest or obvious misquote by the Firm, or any Market, exchange, price providing bank, Service Provider, information source, commentator, official, and other third party on whom the Firm reasonably relies, having regard to the current market conditions at the time an Order is placed. When determining whether a situation amounts to a Manifest Error, the Firm may take into account all information in its possession including, without limitation, information concerning all relevant market conditions and any error in, or lack of clarity of, any information source or announcement.
25.2 The Firm will, when making a determination as to whether a situation amounts to a Manifest Error, act fairly towards the Client but the fact that the Client may have entered into, or refrained from entering into, a corresponding financial commitment, contract or Transaction in reliance on an Order placed with the Firm (or that the Client has suffered or may suffer any loss of profit, consequential or indirect loss) shall not be taken into account by the Firm in determining whether there has been a Manifest Error. The Firm reserves the right, without prior notice, to do the following:
25.2.1 amend the details of such a Transaction to reflect what the Firm considers in its discretion, acting in good faith, to be the correct or fair terms of such Transaction absent such Manifest Error(s);
25.2.2 if the Client does not promptly agree to any amendment made under Section ?25.2 herein the Firm may void from its inception any Transaction resulting from or deriving from a Manifest Error; and/ or
25.2.3 refrain from taking any action at all to amend the details of such a Transaction or void such Transaction.
25.3 The Firm shall not be liable to the Client for any loss, cost, claim, demand or expense the Client suffers (including loss of profits or any indirect or consequential losses) resulting from a Manifest Error or the Firm’s decision to enforce the details of a Transaction notwithstanding any Manifest Error, except to the extent caused by the Firm’s own fraud, wilful default or gross negligence. In the event that a Manifest Error is made by any Market, exchange, price providing bank, Service Provider, information source, commentator, official, any other third party on whom the Firm reasonably relies, the Firm will not be liable to the Client for any loss, cost, claim, demand, or expense, except to the extent caused by the Firm’s own fraud, wilful default or gross negligence.
26. Gaming and/ or Abusive Strategies and/ or Arbitrage
26.1 The Firm does not permit the deliberate practice of gaming and/ or use of abusive trading practices on the Trading Platform. Transactions that rely on price latency opportunities may be revoked, without prior notice. The Firm reserves the right to make the necessary corrections or adjustments on the Account involved, without prior notice. Accounts that rely on gaming and/ or abusive strategies may at the Firm’s sole discretion be subject to intervention by the Firm and the Firm’s approval of any Orders. Any dispute arising from such quoting or execution errors will be resolved by the Firm in its sole and absolute discretion.
26.2 The Firm shall not have any obligation to contact the Client and advise the Client upon appropriate action in light of changes in market conditions or otherwise. The Client acknowledges that the Market is highly speculative and volatile and that, following execution of any Transaction, the Client is solely responsible for making and maintaining contact with the Firm for the purpose of monitoring the position and ensuring that any further instructions are given on a timely basis. In the event of any failure to do so, the Firm can give no assurance that it will be possible for them to contact the Client and the Firm accepts no liability for loss alleged to be suffered as a result of any failure by the Client to do so.
26.3 The Client agrees to fully reimburse and hold the Firm, its Associated Firms and any of their directors, officers, employees and agents harmless from and against any and all liabilities, losses, damages, costs and expenses, including legal fees incurred in connection with the provision of the services under these Terms to the Client provided that any such liabilities, losses, damages, costs and expenses have not arisen from the Firm’s gross negligence, fraud or wilful default.
27. Market Abuse
27.1 When the Firm enters into a Transaction with the Client, the Firm may buy or sell such securities or Underlying Instrument on exchanges or directly from or to other financial institutions shares or units in the relevant instrument. The result is that when the Client places Transactions with the Firm the Client’s Transactions can have an impact on the market for that instrument in addition to the impact it might have on the Firm’s own pricing. This creates a possibility of market abuse and the purpose of this Section ?27 is to prevent such abuse.
27.2 The Client represents and warrants to the Firm at the time the Client enters into these Terms and every time the Client places an Order or gives the Firm any other instruction that:
27.2.1 the Client will not place and has not placed an Order with the Firm if to do so would result in the Client, or others with whom the Client is acting in concert having an interest in the price of the instrument which is equal to or exceeds the amount of a declarable interest in the instrument;
27.2.2 the Client will not place, and has not placed an Order in connection with:
(i) a placing, issue, distribution or other similar event;
(ii) an offer, takeover, merger or other similar event; or
(iii) any corporate finance activity;
27.2.3 the Client will not place and has not placed an Order that contravenes Applicable Regulations prohibiting insider dealing, market manipulation or any other form of market abuse or market misconduct. The Client will act in accordance with all Applicable Regulations.
27.3 In the event that the Client places any Order or otherwise acts in breach of the representations and warranties given in this Section ?27 (Market Abuse) or any other section of these Terms or the Firm has reasonable grounds for believing that the Client has done so, in addition to any rights the Firm may have under the Terms, the Firm may:
27.3.1 enforce the resultant Transaction(s) against the Client if it is a Transaction(s) which results in the Client owing money to the Firm; and/ or
27.3.2 treat all of the Client’s resultant Transactions as void if they are Transactions which result in the Firm owing money to the Client, unless and until the Client produces conclusive evidence within thirty (30) days of the Firm’s request that the Client has not in fact committed any breach of warranty, misrepresentation or undertaking under these Terms.
27.4 The Client acknowledges that it would be improper for the Client to deal in the instrument if the sole purpose of such a transaction was to manipulate the Firm’s pricing, and the Client agrees not to conduct any such transactions.
27.5 The Firm is entitled (and in some cases required) to report to any relevant regulatory authority details of any Transaction or instruction. The Client may also be required to make appropriate disclosures and the Client undertakes that it will do so where so required.
28. Exclusions and Limitations of Liability
28.1 Nothing in these Terms shall exclude or restrict any duty or liability owed by the Firm to the Client under Applicable Regulations which cannot be excluded or restricted. Apart from the foregoing, neither the Firm, nor its Associated Firms, or the directors, officers, or employees of the Firm or its Associated Firms shall be liable to the Client or any third party for any losses, damages, costs, fines, penalties or expenses (including direct, indirect, special, incidental, punitive, or consequential loss, loss of profits, loss of goodwill or reputation, lost data, loss of use of the Trading Platform, business interruption, business opportunity, costs of substitute, services or downtime costs), whether arising out of negligence, breach of contract, misrepresentation or otherwise, incurred or suffered by the Client under these Terms (including any Transaction or where the Firm has declined to enter into a proposed Transaction) unless such loss arises directly from the Firm or its Associated Firm’s respective gross negligence, wilful default or fraud.
28.2 Without limitation, the Firm does not accept liability:
28.2.1 for any partial or non-performance of the Firm’s obligations hereunder by reason of any cause beyond the Firm’s reasonable control, including without limitation any breakdown, delay, malfunction or failure of transmission, communication or computer facilities, industrial action, act of terrorism, act of God, pandemics and epidemics, acts and regulations of any governmental or supra-national bodies or authorities or the failure by the relevant intermediate broker or agent, agent or principal of the Firm’s custodian, sub-custodian, dealer, Market, clearing house, or regulatory or self-regulatory organisation, for any reason, to perform its obligations;
28.2.2 by reason of any delay or change in the market conditions before any particular Transaction is effected;
28.2.3 for any loss that the Client suffers in an event where any computer viruses, worms, software bombs, or similar items are introduced into the Client’s computer hardware or software via the Trading Platform, provided the Firm has taken reasonable steps to prevent any such introduction;
28.2.4 for any actions the Firm may take pursuant to its rights under these Terms;
28.2.5 for any losses or other costs or expenses of any kind arising out of or in connection with the placement of Orders by the Client or the execution of Transactions with the Firm;
28.2.6 for any adverse tax implications of any Transaction whatsoever;
28.2.7 by reason of any delay or change in market conditions before any particular Transaction is affected; and
28.2.8 for communication failures, distortions or delays when using the Trading Platform.
28.3 Nothing in these Terms will limit the Firm’s liability for death or personal injury resulting from its gross negligence.
29. Reimbursement and Indemnity
29.1 The Client will reimburse the Firm, and keep it indemnified on demand, in respect of all liabilities, losses or costs of any kind or nature whatsoever that may be incurred by the Firm as a direct or indirect result of:
29.1.1 any failure of the Client or its Attorney to perform any of its obligations under these Terms, in relation to any Transaction or in relation to any false information or declaration made either to the Firm or any third party, in particular to any exchange;
29.1.2 the Client or its Attorney’s use of programmable trading systems, whether built by the Client or by any third party and executed on or using the Trading Platform; and
29.1.3 any act or omission by any person obtaining access to the Client’s Account, by using the Client’s designated Account number and/ or password, whether or not the Client authorised such access.
29.1.4 If the Client incurs a negative balance through trading activity on its Account, the Client must forthwith pay such amounts that equals to the negative balance on its Account to the Firm whether demanded or not.
30. Third Party MT Letter of Instruction
30.1 The Firm offers Metatrader 4 platforms utilising a third-party bridge. The provisions of this Section ?30 (Third Party MT Letter of Instruction) apply to customers using the Metatrader 4 platforms and any other Metatrader platforms incorporating the third-party bridge (the “MT Program”). If the Client utilises the MT Program, the Client agrees to the provisions of this Section ?30 (Third Party MT Letter of Instruction) and authorises the Firm to act accordingly. The Client understands that its trading access to the MT Program is provided by MetaQuotes Software Corporation, and not by the Firm. The Client acknowledges that MetaQuotes Software Corporation is an independent third party unrelated to the Firm.
30.2 The Client wishes to utilise the MT Program to execute trades and to direct trade orders and trade details to the Firm. Where the Client uses the MT Program, the Client will not be entering trade orders and trade details directly with the Firm, but rather will be entering trade orders and trade details via the MT Program, a third party. The Client hereby authorises and directs the Firm to enter trades for the Client’s Account in accordance with trading signals generated and sent to the Firm by the MT Program. The Client acknowledges and agrees to the additional terms and conditions as follows:
30.2.1 the Client fully understands that the trade orders and trade details are generated by the MT Program and not by the Firm and that the Firm’s responsibility is to use commercially reasonable efforts to enter into Transactions pursuant to the trade orders and trade details generated by the MT Program as received by the Firm. The Client confirms that the Firm has not solicited, or in any other way recommended, the Client’s use of the MT Program. The Client has made inquiries and conducted research into the MT Program sufficient to make an informed investment decision. The Firm cannot imply or guarantee that the Client will make a profit from the MT Program and the Client agrees that the Firm will not be held responsible for the MT Program’s performance or trading losses incurred by the Client as a result of trading pursuant to the MT Program;
30.2.2 the Firm will enter into Transactions in accordance with the trade orders and trade details generated by the MT Program, and the Firm shall treat all trade orders in the MT Program separately. Therefore, opening a new trade order in the same market in the MT Program will not have any impact on any existing trade order in the MT Program;
30.2.3 the Client understands and acknowledges that the Firm will only be responsible for using its commercially reasonable efforts to execute, in a timely fashion, the trade orders and trade details generated by the MT Program. The Firm shall not be responsible for any error or malfunction of the MT Program, mechanical or communication line failure, system errors, data failure or any other causes beyond its control. The Client acknowledges that the Firm can accept and execute Orders only if actually received or generated and then on a “not held” basis (i.e. the Firm shall not be held responsible for the execution of the Order at the price indicated or otherwise);
30.2.4 the Firm may act upon the authority given by this Section ?30 (Third Party MT Letter of Instruction) until the Client revokes the authority by written notice addressed and actually delivered to the Firm in accordance with the Terms. The Firm may also terminate the authorisation over the MT Program at any time for any reason in its sole discretion and will provide the Client with written notice. The Client shall be responsible for any Open Positions in the Client’s Account at the time the MT Program is terminated. The Client shall permit the Firm to execute offsetting orders for any Open Positions in Client’s Account at the time the letter of direction is terminated; and
30.2.5 the Client agrees that, in the absence of wilful or gross misconduct, neither the Firm, its Associated Firms nor any of its or the Firm’s officers, directors, employees, consultants, agents or affiliates will be held liable for any act or omission in the course of or in connection with the Client’s use of the MT Program. The Client shall fully reimburse the Firm, its principals, officers, directors, employees, agents, successor and/ or assigns from all losses and/ or liability (including reasonable attorney’s and/ or accountant’s fees) incurred or resulting from the Client’s use of the MT Program or the Firm’s fulfilment of its authority under this Section ?30 (Third Party MT Letter of Instruction), provided that there has been no judicial determination that such liability was the result of gross negligence or recklessness or intentional misconduct by the Firm.
31. Rights to Cancel/ Cooling Off
31.1 In accordance with the FCA Rules, if the Client is a private individual and any part of the Agreement constitutes a distance contract, the Client may be entitled to cancel the Agreement by giving written notice to the Firm within a fourteen (14) day cancellation period. Subject to Section ?31.3, the Client need not give any reason for the cancellation and the right to cancel applies even if the Client has already received Services from the Firm before the cancellation period expires.
31.2 The period for cancellation begins on the date the terms start to apply to the Client.
31.3 As the price of each Transaction depends on fluctuations in the Underlying Instrument which are outside of the Firm’s control and which may occur during the cancellation period, the Client has no rights to cancel the Agreement under this Section ?31 (Rights to Cancel/ Cooling Off) if any trade placed by the Client has been executed before the Firm receives notice of cancellation.
31.4 Following a valid cancellation, the Firm will return any amounts the Client has paid into its Account with the Firm prior to receipt of the cancellation notice, subject to the Firm’s right of set-off for any properly incurred charges incurred prior to cancellation.
31.5 If the Client does not exercise the right of cancellation, the Agreement will continue in effect until either the Client or the Firm terminates the Terms in accordance with Section ?33 (Suspension and Termination) below, or by the Firm’s exercising any of its rights to terminate under these Terms. There is no minimum or fixed duration of the Agreement.
32. Amendments
32.1 The Firm may amend these Terms and any arrangements made hereunder at any time by written notice to the Client. The Client will be deemed to accept and agree to the amendment unless the Client notifies the Firm to the contrary in accordance with the details of the amendment notice within ten (10) Business Days of the date of the Firm’s amendment notice. Where the Client objects to the amendment, the amendment will not be binding on the Client, but the Client’s Account will be suspended and the Client will be required to close all Open Positions and its Account as soon as it is reasonably practicable and by the end of the notice period at the latest.
32.2 Any amendment to these Terms will come into effect on the date specified by the Firm which will, in most cases, be at least ten (10) Business Days from the date of the Firm’s amendment notice provided in accordance with Section ?32.1.
32.3 Any amended agreement will supersede any previous agreement between the Firm and the Client on the same subject matter and will govern any Transaction entered into after or outstanding on, the date the new edition comes into effect.
33. Suspension and Termination
33.1 The Client may terminate the Agreement immediately by giving written notice to the Firm. The Client agrees that at any time after the termination of the Agreement, the Firm may, without notice to the Client, close out any or all of the Client’s Open Positions.
33.2 The Firm may suspend or terminate these Terms by giving thirty (30) Business Days written notice to the Client. The Firm may also terminate the Agreement immediately, upon written notice to the Client for any reason or no reason whatsoever, if the Client has no Open Positions in its Account at the time when the notice of termination is sent. The Client agrees that at any time after the termination of the Agreement, the Firm may, without notice to the Client, close out any or all of the Client’s Open Positions. Where the Firm suspends the Client’s Account, the Firm may prevent the Client from opening any new positions but the Firm will not close the Client’s Open Positions unless otherwise allowed by these Terms. The provisions of this Section ?33.2 shall not prevent the Firm from exercising any of its rights to terminate or suspend the Agreement as provided elsewhere in these Terms.
33.3 Upon the termination of the Agreement, all amounts payable by the Client to the Firm will become immediately due and payable including (but without limitation):
33.3.1 all outstanding fees, charges and commissions;
33.3.2 any dealing expenses incurred by terminating these Terms; and
33.3.3 any losses and expenses realised in closing out any positions or settling or concluding outstanding obligations incurred by the Firm on the Client’s behalf.
33.4 Termination of the Agreement will not affect any rights or obligations, which may already have arisen between the Firm and the Client. The termination of these Terms will not affect the coming into force or the continuance in force of any provision in these Terms which is expressly, or by implication, intended to come into, or continue in force, on or after such termination.
33.5 If termination occurs, the Firm will, as soon as reasonably practicable and subject to these Terms, deliver to the Client any money in the Client’s Account(s) subject to any applicable charges and rights of set-off as set out on the Firm’s Financial Terms, and for the avoidance of doubt, in the event one of the Client’s Accounts is in negative, the Firm is entitled to the right of set-off between the Client’s Accounts at any time. The Client is therefore urged to settle all floating debits as soon as possible. A final statement will be issued to the Client where appropriate.
34. In the Event of Death
34.1 Where the Client is a natural person, in the event of the Client’s death, any person(s) purporting to be the Client’s legal personal representative(s) must provide the Firm with formal notice of the Client’s death in a form acceptable to the Firm, including but not limited to the provision of an original death certificate in physical form.
34.2 Upon the receipt and acceptance of the Client’s death certificate, the Firm will treat the Client’s death as an Event of Default allowing the Firm to exercise any of its rights under Section ?23.2 of these Terms including but not limited to closing any and all Open Positions within the Client’s Account. The Agreement will continue to bind the Client’s estate until terminated by the Client’s legal personal representative or by the Firm in accordance with these Terms.
34.3 Where the Firm provides the Client with an execution-only dealing service, the Firm will be under no obligation to assume management of the Client’s Account following his or her death.
34.4 A person shall not be proven to be the Client’s legal personal representative until the Firm receives a grant of representation for the Client’s estate. Once the Firm receives the grant of representation for the Client’s estate, the Firm will carry out the written instructions from the Client’s legal personal representative(s). The Firm will only accept instructions that aim to wind-down and/ or close the Account. No registered asset may be sold until any re-registration process is completed and all fees, charges and expenses which may be owed by the Client to the Firm are accounted for. Where the Firm has not received any instructions after six (6) months following receipt of the Client’s death certificate, the Firm may (but shall not be obliged) re-register the Client’s holdings into the name of its legal personal representative, re-materialise any electronic holdings and send such holdings in certificated form to the registered correspondence address for the Client’s estate, subject to appropriate charges detailed from time to time in the Financial Terms.
34.5 If the Client’s estate is too small to warrant a grant of representation, the Firm may in its sole and absolute discretion, require any person(s) purporting to be the Client’s legal personal representative(s) to obtain a grant of representation or request an appropriate indemnity.
34.6 Any applicable charges as detailed in the Financial Terms will continue to be charged until the Account is closed.
34.7 Notwithstanding anything in the Agreement, if the Agreement is not terminated within two (2) years after the date of the Client’s death, the Firm may take such action as it considers appropriate to close the Client’s Account. The Client’s estate or its legal personal representative(s) will be liable for all costs associated with the Firm taking this action, or considering taking action, except to the extent that costs arise because of the Firm’s gross negligence, wilful default or fraud.
35. Notices and Communication with the Client
35.1 The Firm may notify, instruct, or communicate with the Client by telephone, letter, email or Trading Platform, and the Client agrees that the Firm may contact the Client through any of these mediums at any time. The Firm will use the address, phone number, or email address specified in the Client’s Account opening documentation or such other address (physical or electronic) or telephone number as the Client may subsequently provide the Firm.
35.2 The Client will be deemed to have acknowledged and agreed with the content of any notice, instruction or other communication (except Confirmations, Account Statements, amendment notice under Section ?32, and Margin Call Warnings) unless the Client notifies the Firm to the contrary in writing within five (5) Business Days of the date on which the Client is deemed to have received it in accordance with Section ?35.3.
35.3 Any notice, instruction or other communication will be deemed to have been properly given by the Firm and received by the Client:
35.3.1 if hand delivered, when left at the Client or its Attorney’s last known home or work address;
35.3.2 if sent by post to the address last notified by the Client or its Attorney to the Firm, on the next Business Day after being deposited in the post;
35.3.3 if given verbally over the telephone, immediately where the Firm speaks with the Client or its Attorney. If the Firm is unable to connect with the Client or Attorney via phone, the Firm may leave a message on the Client’s answering machine. In such an event, the notice, instruction or other communication will be deemed to have been properly given one (1) hour after the message is left;
35.3.4 if sent by email, immediately after the email is sent to the Client or its Attorney providing the Firm does not receive confirmation of a failed delivery from the relevant email provider; and/ or
35.3.5 if posted on the Firm’s website or Trading Platform, as soon as it has been posted.
35.4 The Client is responsible for reading all notices posted on the Firm’s website and Trading Platform in a timely manner.
35.5 The Client may notify the Firm by letter email, each of which shall constitute written notice. The Client will use the Firm’s registered address or email address specified by the Firm from time to time in accordance with any notice requirement.
35.6 Any notice will be deemed to have been properly given by the Client:
35.6.1 if hand delivered, when left at the Firm’s registered office;
35.6.2 if sent by post to the Firm’s registered address, upon receipt by the Firm; and/ or
35.6.3 if sent by email during Business Hours, one hour after the email is sent providing the Client does not receive confirmation of a failed delivery from the relevant email provider.
35.7 The Client and the Firm shall communicate with one another in English. The Firm or third parties may have provided the Client with translations of the Terms. The original English version shall be the only legally binding version for the Client and the Firm. In case of discrepancies between the original English version and other translations in the Client’s possession, the original English version provided by the Firm shall prevail.
35.8 The Firm shall not be liable for any delay in the Client receiving any communication once dispatched by the Firm, except where the delay is caused by the Firm’s wilful default, fraud or gross negligence.
35.9 The Firm may record any and all telephone conversations between the Client and the Firm’s personnel including but not limited to principals, agents, employees or associate, and at the sole option and discretion of the Firm, be recorded electronically with or without the use of an audible, automatic warning tone. The Client further agrees to the use of such recordings and transcripts thereof as evidence by either party in connection with any dispute or proceedings that may arise involving the Client or Firm. The Client understands that the Firm destroys such recordings in accordance with its established business procedures, and the Client hereby consents to such destruction.
36. Intellectual Property
36.1 The Firm’s website, Trading Platform, Secure Access Website, MT Program, Multi-Product Platform, and any and all information or materials that the Firm may supply or make available to the Client (including any software which forms part of those items) from time to time, are and will remain the Firm’s property or that of its service providers. Such service providers may include providers of real-time price data to the Firm. In addition:
36.1.1 all copyrights, trademarks, design rights and other intellectual property rights in those items are and will remain the Firm’s property (or those of third parties whose intellectual property the Firm uses in relation to products and services the Firm provides for the Client’s Account);
36.1.2 the Firm supplies or makes them available to the Client on the basis that:
(i) the Firm can also supply and make them available to other persons; and
(ii) the Firm may cease providing them at its sole and absolute discretion or if the Firm’s service providers require the Firm to do so;
36.1.3 the Client must not supply all or part of them to anyone else and the Client must not copy all or any part of them;
36.1.4 the Client must not delete, obscure or tamper with copyright or other proprietary notices the Firm may have put on any of those items; and/ or
36.1.5 the Client must only use these items for the operation of its Account in accordance with these Terms.
37. Confidentiality, Data Protection and Information Collection
37.1 The Firm may obtain information (including personal data) from the Client during the course of its relationship with the Client. This Section ?37 (Confidentiality and Data Protection) describes some of the key issues in relation to how the Firm processes this personal data, which the Client should be aware of. Please note that this description is not comprehensive and the Firm’s Privacy Policy contains additional information. The Firm’s Privacy Policy is available online and should be read alongside this Section ?37 (Confidentiality and Data Protection) as it sets out types of personal data which the Firm collects about the Client and additional ways in which the Firm safeguards and uses such personal data.
37.2 The Firm (and its Associated Firms where required) is/ are registered as a data controller under the Data Protection Act 2018 and it will process the Client’s personal data only in accordance with these Terms and the Firm’s Privacy Policy.
37.3 Subject to the following, the Firm will treat all information it holds about the Client as private and confidential, even when the Client is no longer a customer. The Client agrees, however, that the Firm and any of its Associated Firms may:
37.3.1 use the Client’s information to determine the Client’s identity and background before and during the term of the Agreement for anti-money laundering and regulatory purposes, administer and operate the Client’s Account and monitor and analyse its conduct, provide Services to the Client, improve any of the Firm’s operations, procedures, products and/ or Services during the term of the Agreement, assess any credit limit or other credit decision (and the interest rate, fees and other charges to be applied to the Client’s Account) and enable the Firm to carry out statistical and other analysis;
37.3.2 use the Client’s personal data including its contact details, application details and details of the service the Firm provides to the Client and how the Client uses them, to decide what products and Services may be of interest to the Client;
37.3.3 contact the Client by telephone (including automated calls), post, email and other electronic messages such as short text, video and picture messaging, with information, news, events and seminars on the Firm’s Services and those of Associated Firms and other selected partners;
37.3.4 with the Client’s express consent, pass the Client’s personal data to selected third parties for them to contact the Client for marketing purposes similar to those set out above; and
37.3.5 use the Client’s personal data to comply and cooperate with regulators and the courts and to comply with its legal obligations.
37.4 The Firm may share the Client’s personal data with any of the Client’s Fund Managers, Referring Partners, including data processors, which may only use it for the same purposes as the Firm. Such purposes include those listed in Section ?37.2 in addition to the processing of instructions and generation of Confirmations, the operation of control systems, the operation of management information systems and allowing staff of Associated Firms who share responsibility for managing the Client’s relationship from other offices to view information about the Client. The Firm will take appropriate measures to protect the security of the Client’s personal data and details of the companies and countries involved in processing the Client’s personal data will be provided upon request to the Firm’s Data Protection Officer.
37.5 The Client has the right to receive a copy of the information the Firm holds about the Client, to the extent that it constitutes the Client’s personal information. If the Client wishes to exercise this right, the Client should write to the Data Protection Officer.
37.6 If the Client would like to change or modify information previously provided to the Firm, to remove information from the Firm’s database or elect not to receive certain communications from the Firm, the Client should do so by writing to the Data Protection Officer.
37.7 The Firm, its Associated Firms and their agents and service providers may collect, store and process information obtained from the Client or otherwise in connection with these Terms for complying with Applicable Regulations. The Client acknowledges that this may include transfers of information to jurisdictions which do not have strict data protection, data privacy laws or banking secrecy laws, inside or outside of the UK. The Client shall ensure that, before they or anyone on their behalf discloses information relating to any third party to the Firm, the Firm’s Associated Firms or their agents or service providers in connection with these Terms or any Transactions, that said third party has been provided with such information and has given such consents or waivers as are necessary to allow the Firm, our Associated Firms or their agents and service providers to collect, store, process and disclose his, her or its information as described in this Section ?37.7.
38. Miscellaneous
38.1 The Firm may at any time transfer or assign absolutely its rights, benefits and/ or obligations under these Terms by providing the Client with not less than ten (10) Business Days written notice. Any such transfer or assignment shall be subject to the assignee undertaking in writing to be bound by and perform our obligations under these Terms.
38.2 The Client shall not assign any of its rights, benefits and/ or obligations under these Terms without the Firm’s prior written consent.
38.3 In order to comply with its obligations under Applicable Regulations , the Firm may be required to make certain disclosures relating to the Client’s Transactions, which may or may not involve disclosing the Client’s identity. In addition to complying with such obligations, the Firm may comply with any request for information pertaining to the Client from any relevant regulatory or government authority. The Client agrees that such compliance does not constitute a breach of any obligation of confidentiality, which the Firm owes to the Client pursuant to these Terms.
38.4 Time is of the essence in respect of all the Client’s obligations under these Terms and any Transaction. This means that specified times and dates in the Terms are vital and mandatory. Any delay, reasonable or not, may be grounds for terminating a Transaction, multiple Transactions or the Agreement.
38.5 The rights and remedies provided under these Terms are cumulative and not exclusive of those provided by law.
38.6 The Firm is under no obligation to exercise any right or remedy either at all or in a manner or at a time beneficial to the Client. No delay or failure by the Firm to exercise any of its rights under these Terms (including any Transaction) or otherwise shall operate as a waiver of those or any other rights or remedies. No single or partial exercise of a right or remedy shall prevent further exercise of that right or remedy or the exercise of any other rights or remedies. No course of conduct or previous dealings shall create any future obligation to perform in the same manner.
38.7 If, at any time, any provision of these Terms is or becomes illegal, invalid, or unenforceable in any respect under the law of any jurisdiction, then such provision or part thereof will, to that extent, be deemed severable and not form part of these Terms. Neither the legality, validity or enforceability of the remaining provisions of the Terms under the law of that jurisdiction nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall be in any way affected.
38.8 The Client accepts that the Firm may be closed on significant holidays within the United Kingdom. This means that the Firm may not offer Services, in whole or in part, every day of the year. The Client should keep itself appraised of the Firm’s regular hours of business and closure schedule to avoid any Service disruption or inconvenience when trading.
38.9 The Firm’s records, unless shown to be wrong, will be evidence of the Client’s dealings with the Firm in connection with the Firm’s Services. The Client will not object to the admission of the Firm’s records in any legal proceedings because such records are not originals, are not in writing or are produced by a computer. The Client will not rely on the Firm to comply with its record keeping obligations, although records may be made available to the Client upon request, the provision of which is subject to the Firm’s sole and absolute discretion.
38.10 The Client and the Firm do not intend that any provision of these Terms should be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person who is not a party to these Terms (except any Associated Firm may enforce any provision, right or benefit that they may have under these Terms).
38.11 If any action or proceeding is brought by or against the Firm in relation to these Terms or arising out of any act or omission by the Firm, the Client agrees to cooperate with the Firm to the fullest extent possible in the defence or prosecution of such action or proceeding.
39. Governing Law
39.1 A transaction which is subject to the rules of a Market shall be governed by the law applicable to it under those rules. Subject thereto, the Agreement shall be governed by and construed in accordance with English law.
39.2 The courts of England have exclusive jurisdiction to settle any dispute arising in connection with the Agreement and for such purposes the Firm and the Client irrevocably submits to the jurisdiction of the English courts.
39.3 Nothing in this Section ?39 (Governing Law) shall prevent the Firm from bringing proceedings against the Client in any other country which may have jurisdiction to whose jurisdiction the Client irrevocably submits.
39.4 Irrespective of the Client’s location, the Client agrees to the service of legal process or any other documents in connection with proceedings in any court by the registered mailing of copies to the Client’s last address shown in the Firm’s records, or in any other manner permitted by English law, the law of the place of service or the law of the jurisdiction where proceedings are instituted.
Schedule A – Rolling Spot Forex
1. Scope
1.1 This ?Schedule A (Rolling Spot Forex) supplements the Terms as expressly provided below. In the event of any conflict or inconsistency between the main body of the Terms and this Schedule, the provisions in this Schedule shall prevail. The Client acknowledges and agrees that, by executing the Notice Letter, the Client will be bound by the provisions of this ?Schedule A.
1.2 This Schedule together with the main body of the Terms shall govern the relationship between the Client and the Firm when the Client enters into a Rolling Spot Forex Contract.
1.3 The Firm has set out a general description of the nature and risks associated with the products and investments it offers in the High-Risk Investment Notice. The Client must review this information before trading under these Terms (including this Schedule).
2. Definitions
2.1 Words or phrases defined in the main body of the Terms shall be assigned the same meaning in this ?Schedule A (Rolling Spot Forex) unless otherwise defined.
2.2 In this ?Schedule A (Rolling Spot Forex), the following words and phrases shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
“Entry Order” shall mean an Order, stop or limit, initiating an open position and executed when a specific price level is reached as specified in the Order;
“Roll-Over Fee” shall mean as defined in Section ?5.4 of this Schedule.
3. Opening Rolling Spot Forex Contracts
3.1 A Rolling Spot Forex Contract will only be formed when the Client provides an instruction to place an Order on a quote provided by the Firm, and the Firm executes the instruction in accordance with Section ?9 (Dealings Between the Firm and the Client) of the main body of the Terms.
3.2 The Client may cancel an Order at any time by providing notice to the Firm unless and until the Order has been executed in whole or in part, only if the Order is an Entry Order. If an Order has been executed in whole or in part it will not be possible for the Client to cancel the Order to the extent that the Order has been executed. If an Order is a Market Order, it will not be possible for the Client to cancel the Order at any time.
4. Closing a Rolling Spot Forex Contract
4.1 On any Business Day on which the Client wishes to close any Rolling Spot Forex Contract (whether in whole or in part) the Client may give a Closing Notice to the Firm specifying the Rolling Spot Forex Contract it wishes to close, the related currency pair, the Contract Quantity and the Closing Date.
4.2 Following receipt of a Closing Notice, the Firm shall inform the Client of the Closing Price of the Rolling Spot Forex Contract and the Rolling Spot Forex Contract will be closed at that price on the Closing Date. Any amounts payable by the Client to the Firm as a result of the closed Rolling Spot Forex Contract are immediately due and payable on the Closing Date. Conversely, any amounts payable by the Firm to the Client as a result of the closed Rolling Spot Forex Contract are immediately due and payable on the Closing Date, and will be paid into the Client’s Account.
5. Rollover
5.1 A Rolling Spot Forex Contract is generally considered an open-ended contract with no definitive close date. Open ended Rolling Spot Forex Contracts will roll over each trading day until the Client instructs the Firm to close the Rolling Spot Forex Contract (and the Firm accepts and acts on that instruction).
5.2 For the purposes of determining and fulfilling the Client’s obligations with respect to a Rolling Spot Forex Contract, including but not limited to the Client’s Margin obligations under the main body of the Terms, a Rolling Spot Forex Contract shall be deemed to be a single Rolling Spot Forex Contract which is initiated when the Rolling Spot Forex Contract is first opened and closed when the Client instructs the Firm to close the Rolling Spot Forex Contract (and the Firm accepts and acts on that instruction).
5.3 The Firm reserves the right to discontinue a rolling Market facility at any time. The Firm will notify the Client as soon as is reasonably practicable should it decide for whatever reason to discontinue the roll over facility.
5.4 Where the Client enters into a Rolling Spot Forex Contract with the Firm and the Client rolls that contract from one day to the next, the Firm will charge the Client a Roll-Over Fee relative to that Transaction, which:
5.4.1 will vary between currency pairs;
5.4.2 depend on the Contract Quantity; and
5.4.3 is subject to change from time to time.
5.5 The Roll-Over Fee may be positive or negative, meaning that the Client will either owe money to the Firm or receive money from the Firm each night a Rolling Spot Forex Contract is rolled over. Details about the Roll-Over Fee may be communicated to the Client through a variety of means including but not limited to notification via the Trading Platform, telephone, the Firm’s website, and/ or the Financial Terms.
5.6 Unless the Client closes a Rolling Spot Forex Contract before 22:00 UK time, the Firm will automatically roll over such open Rolling Spot Forex Contracts on the Client’s Account to the following Business Day, and subsequently charge the Client the relevant Roll-Over Fee.
Schedule B – Contracts for Difference
1. Scope
1.1 This ?Schedule B (Contracts for Difference) supplements the main body of the Terms as expressly provided below. In the event of any conflict or inconsistency between the main body of the Terms and this Schedule, the provisions in this Schedule shall prevail. The Client acknowledges and agrees that, by executing the Notice Letter, the Client will be bound by the provisions of this ?Schedule B.
1.2 This ?Schedule B together with the main body of the Terms shall govern the relationship between the Client and the Firm when the Client enters into a CFD Contract.
1.3 The Firm has set out a general description of the nature and risks associated with the products and investments it offers in the High-Risk Investment Notice. The Client must review this information before trading under these Terms (including this Schedule).
2. Definitions
2.1 Words or phrases defined in the main body of the Terms shall be assigned the same meaning in this Schedule unless otherwise defined.
2.2 In this Schedule, the following words and phrases shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
“Calculation Adjustment” shall have the meaning given to it in Section ?7.4 of this Schedule;
“CFD Contract” shall mean any CFD entered into between the Client and the Firm;
“Entry Order” shall mean an Order, stop or limit, initiating an open position and executed when a specific price level is reached as specified in the Order;
“Financial Instrument” shall mean an investment within articles 76 through 80 or 83 through 85 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
“Finance Charge” shall mean the fee charged by the Firm to the Client for rolling a CFD Contract from one day to the next;
“Merger Event” shall have the meaning given to it in Section ?7.5 of this Schedule;
“Single Share CFD” shall mean a CFD Contract where the Underlying Instrument relates to one Equity rather than a basket of Equities;
“Take-over Offer” shall mean with respect to any CFD Contract that relates to an Equity, a takeover offer, tender offer, exchange offer, solicitation, proposal or other event by any entity or person that results in such entity or person purchasing or otherwise obtaining or having the right to obtain (by conversion or other means) 50% or more of the outstanding voting shares of the issuer of the relevant Equity or share; and
“Transaction Charge” shall mean the fee charged by the Firm to the Client for opening and/ or closing a CFD Contract where the Underlying Instrument is a Security.
3. Services
3.1 A CFD is a cash-settled contract, which seeks to confer similar economic benefits to an investment in the relevant Underlying Instrument, without the usual costs and rights associated with an investment in the Underlying Instrument, although other costs and rights will apply to a CFD. Therefore, unless otherwise agreed in writing by the Firm and the Client, the Client acknowledges and agrees that it will not be entitled to delivery of, or be required to deliver, the Underlying Instrument to which a CFD Contract relates, nor will the Client acquire any interest in the relevant Underlying Instrument or be entitled to receive dividends or any equivalent thereof, to exercise voting rights, to receive any rights pursuant to any rights or bonus issue, or to participate in any placing or open offer by virtue of its CFD Contract where an Underlying Instrument is a Security. The payment of any dividend or occurrence of any rights or bonus issue, placing, open offer or take-over in respect of a CFD Contract where the Underlying Instrument is a Security, shall be dealt with in accordance with these terms.
4. Obtaining a Quote and Order Placement
4.1 At any time that the Client wishes to obtain a quote or place an Order to open a CFD Contract, the Client may contact the Firm (or an Associated Firm) in accordance with the provisions of Section ?4.3 of this Schedule.
4.2 Where requested by the Client, the Firm may, but shall not be obliged to, provide quotes or receive Orders outside the normal hours of trading.
4.3 Where the Client wishes to deal in a CFD, the Client may request a quote, place an Order or otherwise trade with the Firm electronically through the Trading Platform or by telephoning the Firm’s office. Orders by telephone will only be accepted by the Firm during specified hours which will be notified to the Client from time to time and subject to inability to execute Orders via the Trading Platform. The Client can only place an Order via telephone by talking directly to the authorised personnel of the Firm. No messages may be left, and no Orders may be placed using an answering machine or voicemail phone facilities via facsimile.
4.4 The Firm may stipulate a minimum and/ or maximum Contract Quantity per Underlying Instrument from time to time and the Firm reserves the right to vary such stipulations according to market conditions.
5. Opening CFD Contracts
5.1 A CFD Contract will only be formed when the Client provides an instruction to place an Order on a quote provided by the Firm, and the Firm executes the instruction in accordance with Section ?9 (Dealings between the Firm and the Client) of the main body of the Terms and Section ?4 (Obtaining a Quote and Order Placement) of this Schedule.
5.2 The Client may cancel an Order at any time by providing notice to the Firm unless and until the Order has been executed in whole or in part, only if the Order is an Entry Order. If an Order has been executed in whole or in part it will not be possible for the Client to cancel the Order to the extent that the Order has been executed. If an Order is a Market Order, it will not be possible for the Client to cancel the Order at any time.
6. Closing CFD Contracts
6.1 On any Business Day on which the Client wishes to close any CFD Contract (whether in whole or in part) the Client may give a Closing Notice to the Firm specifying the CFD Contract it wishes to close, the related Underlying Instrument, the Contract Quantity and the Closing Date.
6.2 Following receipt of a Closing Notice, the Firm shall inform the Client of the Closing Price of the CFD Contract and the CFD Contract will be closed at that price on the Closing Date. Any amounts payable by the Client to the Firm as a result of the closed CFD Contract are immediately due and payable on the Closing Date. Conversely, any amounts payable by the Firm to the Client as a result of the closed CFD Contract are immediately due and payable on the Closing Date, and will be paid into the Client’s Account.
7. CFD Contracts on Securities
7.1 This Section ?7 (CFD Contracts on Securities) of this Schedule will apply to the Client when it enters into a CFD Contract with the Firm, the Underlying Instrument of which is formed by Securities.
7.2 If any Securities become subject to possible adjustments as the result of any of the events set out in Section ?7.3 of this Schedule, the Firm shall determine the appropriate adjustment, if any, to be made to the current Contract Value or Contract Quantity of any related CFD Contract to account for the dilutive or concentrative effect as necessary to preserve the economic equivalent of the CFD Contract prior to the relevant event or to reflect the effect of the event on the relevant Underlying Instrument. Such adjustments will be effective as of the date determined by the Firm.
7.3 The events to which Section ?7.2 of this Schedule refers may include, without limitation, the declaration by the issuer of the Securities of the terms of any of the following:
7.3.1 a subdivision, consolidation or reclassification of shares, or a free distribution of shares to existing holders by way of bonus, capitalisation or similar issue;
7.3.2 distribution to existing holders of the underlying Securities of additional shares, other share capital or Securities granting the right to payment of dividends and/ or proceeds of liquidation of the issuer, or Securities, rights or warrants granting the right to a distribution of shares or to purchase, subscribe, or receive shares, in any case for payment (in cash or otherwise) at less than the prevailing Market price per share; or
7.3.3 any event in respect of the Securities analogous to any of the foregoing events or otherwise having a dilutive or concentrative effect on the Market value of the Security.
7.4 If at any time a Merger Event as defined below occurs or a Take-over Offer is made in respect of any relevant Underlying Instrument where the subject is a Security, then on or after the date of the Merger Event or at any time prior to the Closing Date of such Take-over Offer, a “Calculation Adjustment” (as defined herein) may be made. Calculation Adjustment means that the Firm shall either:
7.4.1 make such adjustment to the exercise, settlement, payment or any other terms of the CFD Contract as the Firm may determine is appropriate to account for the economic effect, if any, on the Security as a result of such Merger Event or Take- over Offer (provided that no adjustments will be made to account solely for changes in volatility) expected dividends, stock loan rate or liquidity relevant to the Security, which may, but need not, be determined by reference to adjustment(s) made in respect of such Merger Event or Take-over Offer by an exchange to futures or options on the relevant Security traded on such exchange; or
7.4.2 determine the effective date of that adjustment (if any).
7.5 If the Firm determines that no adjustment could be made under Section ?7.4 of this Schedule, which would produce a commercially reasonable result, the Firm will issue a Closing Notice to the Client. The date of such notice will be the Closing Date. The Closing Price shall be such price as is notified by the Firm to the Client. For the purposes of this section, Merger Event means in respect of any CFD the Underlying Instrument of which is formed by Securities:
7.5.1 any reclassification or change of the Security that results in a transfer of or an irrevocable commitment to transfer all outstanding Securities of the same class as the Underlying Instrument to another entity or person, whether by consolidation, amalgamation, merger or binding share exchange of the issuer of the relevant Security with or into another entity or person (other than a consolidation, amalgamation, merger or binding share exchange in which such issuer is the continuing entity and which does not result in a reclassification or change of all such outstanding Securities);
7.5.2 Take-over Offer of the outstanding Securities of the issuer that results in a transfer of or an irrevocable commitment to transfer all of them (other than those Securities already owned or controlled by such other entity or person); or
7.5.3 consolidation, amalgamation, merger or binding share exchange of the issuer of the relevant Securities or its subsidiaries with or into another entity in which the issuer is the continuing entity and which does not result in a reclassification or change of all such Securities but results in the outstanding Securities (other than those Securities owned or controlled by such other entity) immediately prior to such event collectively representing less than 50% of the outstanding Securities immediately following such event.
7.6 If all or substantially all the shares or assets of an issuer of Securities (such issuer and Securities being the subject of an existing CFD Contract) are nationalised, expropriated or are otherwise required to be transferred to any governmental agency, authority, entity or instrumentality thereof, the day on which such event occurs, or is declared shall be the Closing Date. The Closing Price shall be such price as is notified by the Firm to the Client.
8. Exchange Suspensions and Delisting
8.1 If at any time trading on an exchange or market is suspended which affects the Underlying Instrument to a CFD Contract, the Firm shall calculate the value of the CFD Contract with reference to the last traded price before the time of suspension, or the Closing Price if no trading in that Financial Instrument is undertaken during the Business Day on which a suspension occurs. In the event that the aforesaid suspension continues for five (5) Business Days, the Client and the Firm may agree, in good faith, a Closing Date and a value of the CFD Contract. In the absence of such agreement, the CFD Contract shall remain open in accordance with the provisions of this section until such time as the aforesaid suspension is lifted or the CFD Contract is otherwise closed. During the term of a CFD Contract, in the event that the Underlying Instrument is suspended, the Firm has the right to terminate the CFD Contract at its discretion and/ or to amend or vary any Margin Requirements and Margin rates for that CFD Contract.
8.2 If a Regulated Market on which a Financial Instrument is principally traded announces that pursuant to the rules of such Market the relevant shares have ceased, or will cease to be listed, traded or publicly quoted on the Market for any reason (other than a Merger Event or Take-over Offer) and are not immediately re-listed, re- traded or re-quoted on a Market or quotation system located in the same country as the Market (or where the Market is within the European Union, in any member state of the European Union), or already so issued, quoted or traded, and the Client has a CFD Contract relating to the affected Financial instrument, the day on which such an event occurs, or (if earlier) is announced, shall be the Closing Date. The Closing Price will be such price as notified by the Firm to the Client.
9. Transaction Costs and Rollover
9.1 In respect of Transactions in certain CFD Contracts, the Firm may charge the Client a Transaction Charge and/ or a Finance Charge. Transaction Charges will be specified in the Financial Terms as amended from time to time. Transaction Charges and Finance Charges will be deducted from the Client’s Account following such times delineated in Section ?9.7 of this Schedule. The Client must have sufficient money on its Account at the relevant time to meet such obligations.
9.2 Where the Client opens a CFD Contract with the Firm and the Underlying Instrument of that contract is a Security, the Firm will charge the Client a Transaction Charge to open and close the CFD Contract. Details behind the Transaction Charge, including its calculation, are located in the Financial Terms.
9.3 A CFD Contract is generally considered an open-ended contract with no definitive close date unless the Underlying Instrument, the Market or the Firm otherwise requires. Both open ended and fixed-term CFD Contracts will roll over each trading day until the Client instructs the Firm to close the open CFD Contract (and the Firm accepts and acts on that instruction) or the definitive close date is reached. The Contract Value of an open CFD Contract is adjusted with reference to the Market price of the Underlying Instrument each trading day that a CFD Contract remains open.
9.4 For the purposes of determining and fulfilling the Client’s obligations with respect to a CFD Contract, including but not limited to the Client’s Margin obligations under the main body of the Terms, a rolling CFD Contract shall be deemed to be a single CFD Contract which is initiated when the CFD Contract is first opened and closed when the Client instructs the Firm to close the open CFD Contract (and the Firm accepts and acts on that instruction) or the definitive close date is reached.
9.5 The Firm reserves the right to discontinue a rolling market facility at any time. The Firm will notify the Client as soon as is reasonably practicable should it decide for whatever reason to discontinue the rolling market facility.
9.6 Where the Client enters into a CFD Contract with the Firm and the Client rolls that CFD Contract from one day to the next, the Firm will charge the Client a Finance Charge relative to that Transaction, which:
9.6.1 will vary between Underlying Instruments;
9.6.2 depend on the Contract Quantity; and
9.6.3 is subject to change from time to time. The Finance Charge may be positive or negative, meaning that the Client will either owe money to the Firm or receive money from the Firm each night a CFD Contract is rolled over. Details about the Finance Charge may be communicated to the Client through a variety of means including but not limited to notification via the Trading Platform, telephone, the Firm’s website, and/ or the Financial Terms.
9.7 Depending on the Underlying Instrument, the Client may incur the Finance Charge at different times. Unless the Client:
9.7.1 closes a CFD Contract (the Underlying Instrument of such contract being anything other than a Security) before 22:00 UK time, the Firm will automatically roll over such open CFD Contracts on the Client’s Account to the following Business Day, and subsequently charge the Client the relevant Finance Charge; or
9.7.2 closes a CFD Contract (the Underlying Instrument of such contract being a Security) before the close of the Market where the Underlying Instrument is traded, the Firm will automatically roll over such open CFD Contracts on the Client’s Account to the following Business Day, and subsequently charge the Client the relevant Finance Charge.
9.8 Where the Client opens a CFD Contract and the Underlying Instrument of such CFD Contract is an oil future, the Client acknowledges that such CFD Contract is a fixed term contract. This means that the contract will have a definitive Closing Date, which will be notified to the Client via the Firm’s website or any other means available to the Firm under the main body of the Terms. If the Client fails to close such CFD Contract before the definitive Closing Date, the Firm will automatically close that CFD Contract. Following a request by the Client, the Firm may, but is not obliged to, reopen that CFD Contract on the following Business Day subject to the relevant Finance Charge.
10. Payment, Withdrawal and Set-Off
10.1 Sections ?12.2 and ?12.5 of the main body of the Terms shall not apply to the Client when it enters into Transactions in CFDs where the Underlying Instrument is a Security. Rather, for the purposes of trading in such CFDs, the Firm offers its customers multi-currency accounts. The Client acknowledges and agrees to the following:
10.1.1 all funds transferred into the Client’s Account (by either the Client or the Firm) will be remain in the currency of transfer unless the Firm accepts alternative instructions from the Client. Where the Firm accepts alternative instructions, the Firm will convert such funds into the currency of the Client’s choice;
10.1.2 all payments from the Client’s Account will be made in the currency of the payment obligation unless the Client and the Firm otherwise agree. Where the Client does not hold the relevant currency for payment and the Client and the Firm do not agree to convert all or a portion of the Client’s funds to meet the payment obligation, the Firm will charge the Client’s Account with a floating debit in the amount and currency of the relevant payment obligation; the Firm will not remove any funds or force the currency conversion. The floating debit will accrue interest at the relevant rate prescribed in the Financial Terms. It is the Client’s responsibility to extinguish this obligation by either asking the Firm to convert available funds, or to transfer sufficient funds in the relevant currency. Until the Client takes such action, the Firm will continue to charge interest. Where the Client has such floating debit balances on its Account, the Firm will not allow the Client to enter into Transactions with its available funds in excess of the net balance (available funds less floating debit obligations at the Firm’s elected rate of exchange); and
10.1.3 the provisions of this Section ?10 (Payment, Withdrawal and Set-Off) of this Schedule does not restrict the Firm’s right of set-off at Section ?12.8 of the main body of the Terms or where otherwise provided under the Terms. The Client should be aware that the Firm can exercise its right of set¬off at any time and for any reason irrespective of the provisions of this Section ?10 (Payment, Withdrawal and Set-Off) of this Schedule. The Client is therefore urged to settle all floating debits as soon as possible.
Schedule C – Spread Bets
1. Scope
1.1 This ?Schedule C (Spread Bets) supplements the main body of the Terms as expressly provided below. In the event of any conflict or inconsistency between the main body of the Terms and this Schedule, the provisions in this Schedule shall prevail. The Client acknowledges and agrees that, by executing the Notice Letter, the Client will be bound by the provisions of this ?Schedule C.
1.2 This ?Schedule C together with the main body of the Terms governs the relationship between the Client and the Firm when the Client deals with the Firm in Spread Bet Contracts.
1.3 The Firm has set out a general description of the nature and risks associated with the products and investments it offers in the High-Risk Investment Notice. The Client must review this information before trading under these Terms (including this Schedule).
2. Definitions
2.1 Words or phrases defined in the main body of the Terms shall be assigned the same meaning in this ?Schedule C unless otherwise defined.
2.2 In this ?Schedule C, the following words and phrases shall, unless the context otherwise requires, have the following meanings and may be used in the singular or plural as appropriate:
“Merger Event” has the meaning given to it in Section ?7.5 of ?Schedule B;
“Spread Bet Contract” means any Spread Bet entered into between the Client and the Firm;
“Roll-Over Fee” has the meaning given to it in Sections ?8.4 to ?8.6 of this ?Schedule C; and
“Take-over Offer” has the meaning given to it in ?Schedule B with respect to Spread Bet Contracts.
3. Services
3.1 The Firm will only enter into Spread Bet Contracts with residents of the United Kingdom and Ireland.
3.2 A Spread Bet is a cash-settled gaming contract. Therefore, unless otherwise agreed in writing by the Firm and the Client, the Client acknowledges and agrees that it will not be entitled to delivery of, or be required to deliver, the Underlying Instrument to which a Spread Bet Contract relates, nor will the Client acquire any interest in the relevant Underlying Instrument or be entitled to receive dividends or any equivalent thereof, to exercise voting rights, to receive any rights pursuant to any rights or bonus issue, or to participate in any placing or open offer by virtue of its Spread Bet Contract where the Underlying Instrument is a Security.
4. Obtaining a Quote and Order Placement
4.1 At any time that the Client wishes to obtain a quote or place an Order to open a Spread Bet Contract, the Client may contact the Firm (or an Associated Firm where so instructed by the Firm) in accordance with the provisions of Section ?9 of the main body of the Terms.
4.2 Where requested by the Client, the Firm may, but shall not be obliged to, provide quotes or receive Orders outside the normal hours of trading.
4.3 The Firm may stipulate a minimum and/or maximum Contract Quantity per Underlying Instrument from time to time and the Firm reserves the right to vary such stipulations according to Market conditions.
5. Opening of Spread Bets
5.1 A Spread Bet Contract will only be formed when the Client provides an instruction to place an Order on a quote provided by the Firm (either through the Trading Facility or via telephone), and the Firm executes the instruction in accordance with Section ?9 of the main body of the main body of the Terms and Section ?5 of this ?Schedule C.
5.2 The Client may cancel an Order at any time by providing notice to the Firm unless and until the Order has been executed in whole or in part, only if the Order is an Entry Order. If an Order has been executed in whole or in part it will not be possible for the Client to cancel the Order to the extent that the Order has been executed. If an Order is a Market Order, it will not be possible for the Client to cancel the Order at any time.
6. Closing a Spread Bet
6.1 On any Business Day on which the Client wishes to close any Spread Bet Contract (whether in whole or in part) the Client may give a Closing Notice to the Firm specifying the Spread Bet Contract it wishes to close, the related Underlying Instrument, the Contract Quantity and the Closing Date.
6.2 Following receipt of a Closing Notice, the Firm shall inform the Client of the Closing Price of the Spread Bet Contract and the Spread Bet Contract will be closed at that price on the Closing Date. Any amounts payable by the Client to the Firm as a result of the closed Spread Bet Contract are immediately due and payable on the Closing Date. Conversely, any amounts payable by the Firm to the Client as a result of the closed Spread Bet Contract are immediately due and payable on the Closing Date, and will be paid into the Client’s Account.
7. Exchange Suspensions and Delisting
7.1 If at any time trading on an exchange or market is suspended which affects the Underlying Instrument to a Spread Bet Contract, the Firm shall calculate the value of the Spread Bet Contract with reference to the last traded price before the time of suspension, or the Closing Price if no trading in that Financial Instrument is undertaken during the Business Day on which a suspension occurs. In the event that the aforesaid suspension continues for five (5) Business Days, the Client and the Firm may agree, in good faith, a Closing Date and a value of the Spread Bet Contract. In the absence of such agreement, the Spread Bet Contract shall remain open in accordance with the provisions of this section until such time as the aforesaid suspension is lifted or the Spread Bet Contract is otherwise closed. During the term of a Spread Bet Contract, in the event that the Underlying Instrument is suspended, the Firm has the right to terminate the Spread Bet Contract at its discretion and/or to amend or vary any Margin Requirements and Margin rates for that Spread Bet Contract.
7.2 If a Regulated Market on which a Financial Instrument is principally traded announces that pursuant to the rules of such Market the relevant shares have ceased, or will cease to be listed, traded or publicly quoted on the Market for any reason (other than a Merger Event or Take-over Offer) and are not immediately re-listed, re-traded or re-quoted on a Market or quotation system located in the same country as the Market (or where the Market is within the European Union, in any member state of the European Union), or already so issued, quoted or traded, and the Client has a Spread Bet Contract relating to the affected financial instrument, the day on which such an event occurs, or (if earlier) is announced, shall be the Closing Date. The Closing Price will be such price as notified by the Firm to the Client.
8. Rollover
8.1 Both open ended and fixed-term Spread Bet Contracts will roll over each trading day until the Client instructs the Firm to close the open Spread Bet Contract (and the Firm accepts and acts on that instruction) or the definitive close date is reached. The Contract Value of an open Spread Bet Contract is adjusted with reference to the Market price of the Underlying Instrument each trading day that a Spread Bet Contract remains open.
8.2 For the purposes of determining and fulfilling the Client’s obligations with respect to a Spread Bet Contract, including but not limited to the Client’s Margin obligations under the main body of the Terms, a rolling Spread Bet Contract shall be deemed to be a single Spread Bet Contract which is initiated when the Spread Bet Contract is first opened and closed when the Client instructs the Firm to close the open Spread Bet Contract (and the Firm accepts and acts on that instruction) or the definitive close date is reached.
8.3 The Firm reserves the right to discontinue a rolling market facility at any time. The Firm will notify the Client as soon as is reasonably practicable should it decide for whatever reason to discontinue the rolling market facility.
8.4 In respect of Transactions in certain Spread Bet Contracts, the Firm may charge the Client a Rollover Fee. The Rollover Fee will be deducted from the Client’s Account following the times delineated in Section ?8.7 of this ?Schedule C below. The Client must have sufficient money on its Account at the relevant time to meet such obligations.
8.5 Where the Client enters into a Spread Bet Contract with the Firm and the Client rolls that contract from one day to the next, the Firm will charge the Client a Rollover Fee relative to that Transaction, which:
8.5.1 will vary between Underlying Instruments;
8.5.2 depend on the Contract Quantity; and
8.5.3 is subject to change from time to time.
8.6 The Rollover Fee may be positive or negative, meaning that the Client will either owe money to the Firm or receive money from the Firm each night a Spread Bet Contract is rolled over. Details about the Rollover Fee may be communicated to the Client through a variety of means including but not limited to notification via the Trading Facility, telephone, the Firm’s website.
8.7 Unless the Client closes a Spread Bet Contract before 17:00 GMT, the Firm will automatically roll over such open the Spread Bet Contracts on the Client’s Account to the following Business Day, and subsequently charge the Client the relevant Rollover Fee.
8.8 Where the Client opens a Spread Bet Contract and the Underlying Instrument of such contract is a CFD on an oil future, the Client acknowledges that the Spread Bet Contract is a fixed term contract. This means that the contract will have a definitive close date, which will be notified to the Client via the Firm’s website or any other means available to the Firm under the main body of the Terms. If the Client fails to close such Spread Bet Contract before the definitive close date, the Firm will automatically close that Spread Bet Contract. Following a request by the Client, the Firm may, but is not obliged to, reopen that Spread Bet Contract on the following Business Day subject to the relevant Rollover Fee.
9. Tax
9.1 The Firm is responsible for the payment of betting duty in relation to each Spread Bet Contract that the Client opens. The Client will not be liable for betting duty and the Firm will not charge the Client a fee or commission specifically intended to cover the betting duty. However, in the event of change on the basis of taxation, the Firm reserves the right to vary this provision with thirty (30) days written notice, and the Client may terminate the Agreement in accordance with Section ?33 of the main body of these Terms.
9.2 The Firm does not advise the Client on any tax issues. If the Client has any questions or concerns relating to the taxation of any Transactions, the Client should seek its own independent tax advice.
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