Terms and Conditions
1.1 This document referred to as Terms of Business (hereinafter the “Terms”) is part of a wider agreement between you (the “Client”) and FXStorm Limited (the “Company”) in relation to the Client’s activities with the Company.
1.2 The Company’s agreement with the Client consists of several documents that can be accessed through the Company’s website, or upon request, and specifically comprises:
- (a) these Terms
- (c) any application or form that the Client submits to open, maintain or close an Account; and
- (d) any specific terms and conditions relating to the Company’s websites, which will be displayed on the relevant website, which are together referred to as the Agreement. This Agreement constitutes the entire agreement between the Client and the Company with respect to the subject matter hereof and supersedes all prior or contemporaneous oral or written communications, proposals, agreement or representations with respect to the subject matter.
1.3 For the Client’s benefit and protection, the Client should take sufficient time to read the Terms, as well as any additional documents and information (forming part of the Agreement or otherwise) available on the Company’s website or upon request, before the Client opens an Account and connects to a signal provider the Client should contact the Company to ask for further information or seek independent professional advice if it does not understand anything.
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:
- (a) “Access Code” means any password(s), username, passwords other security code issued by the Company to the Client, which would allow the Client to utilise the Company’s services;
- (b) “Account” means any account that the Company maintains for the Client for dealing in the products or services made available under these Terms
- (c) “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;
- (d) “Agency Agreement” means the document, being a simple contract, letter of direction, power of attorney or otherwise, through which the Client appoints an Agent, signal provider or representative to act and/or give instructions on its behalf in respect of the Agreement;
- (e) “Agent” means an individual person or legal entity undertaking a Transaction on behalf of another individual person or legal entity in his/its own name or in the Client’s name;
- (f) “Agreement” has the meaning given to it in clause 1.2 of these Terms;
- (g) “Applicable Regulations” means FCA Rules or any other rules of a relevant regulatory authority or any other rules of a relevant Market and all other applicable laws, rules and regulations as in force from time to time;
- (h) “Associated Company” means, in respect to the Company, the Company’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 (as amended from time to time);
- (i) “Base Currency” is the currency in which the Client’s Account is denominated and in which the Company will report debits and credits to the Client’s Account;
- (j) “Business Day” means any day other than a Saturday or Sunday where the banks are open for general commercial business in London, United Kingdom;
- (k) “Client” means you, the individual person or legal entity who is a party to these Terms and a customer of the Company;
- (l) “Closing Date” means the date on which a Transaction is closed by either the Client, a Clients Agent or a Signal Provider or the Company in accordance with these Terms;
- (m) “Closing Notice” means a notice given to the Client by the Company to close all or part of any Transaction (margined or otherwise) via the Secure Website or by telephone;
- (n) “Closing Price” means:
- (ii) in the case of a Spread Bet, the Settlement Price of a Spread Bet as determined by the Company; or
- (iii) 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;
- (o) “Company” means FXStorm Limited (company number 09032503), a private limited company incorporated under the laws of England and Wales and having its registered office at 54 Clarendon Road, Watford, WD17 1DU, United Kingdom;
- (p) “Complex Product” means certain derivative products such as, without limitation, Rolling Spot Forex Contracts, Spread Bets, CFDs, warrants, covered warrants, and certain shares if they are not listed on a Regulated Market or on a Market which has equivalent standards of regulation as an EEA Market;
- (q) “Confirmation” means a notification from the Company to the Client confirming the Client’s entry into a Transaction;
- (r) “Contract Investment Price” means the current price of an Underlying Instrument as determined by the Company;
- (s) “Contract Quantity” means the total number of shares, contracts or other units of the Underlying Instrument that the Client is notionally buying or selling;
- (t) “Contract Value” means the Contract Quantity multiplied by the Company’s then current quote for closing the Transaction;
- (w) “EEA” means the European Economic Area, which is all the countries in the EU plus Iceland, Norway and Liechtenstein;
- (x) “Eligible Counterparty” has the meaning given to it in the FCA Rules effective from 1 November 2007;
- (y) "EMIR" means Regulation (EU) No 648/2012 of the European Parliament and of the Council on OTC derivatives, central counterparties and trade repositories dated 4 July 2012;
- (aa) “Equity” has the meaning given to the term ‘equity share’ under the FCA Rules, which generally means,shares comprised in a company’s equity share capital;
- (ab) “Event of Default” means any of the events listed in clause 24.1(a) of these Terms;
- (ac) “Exceptional Market Event” means 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 Company reasonably believes that any of the above circumstances are about to occur;
- (ad) “FATCA” means:
- (i) sections 1471 to 1474 of the U.S. Internal Revenue Code of 1986 or any associated regulations or other official guidance;
- (ii) any treaty, law, regulation or other official guidance enacted in any other jurisdiction, or relating to an intergovernmental agreement between the U.S. and any other jurisdiction, which (in either case) facilitates the implementation of paragraph (jj)(i) above;
- (iii) any agreement pursuant to the implementation of paragraphs (jj)(i) or (jj)(ii) above with any Governmental Authority;
- (ae) "FCA" means the United Kingdom Financial Conduct Authority or any successor organisation or authority;
- (af) "FCA Rules" means the Handbook of Rules and Guidance of the United Kingdom Financial Conduct Authority, as amended from time to time;
- (ag) “Force Majeure Event” has the definition given to it in clause 25.1 of these Terms;
- (ah) “Governmental Authority” means any governmental, inter -governmental or supranational body, agency,department or regulatory, self-regulatory or other authority or organisation anywhere in the world with competent jurisdiction;
- (ai) “Hedging Setting” is a optional feature on the Trading Facility allowing the Client to hedge investment positions, which may be enabled or disabled;
- (aj) “HMRC” refers to HM Revenue & Customs of the United Kingdom or any successor organisation established from time to time;
- (ak) “Insolvency Officer” has the definition given to it in clause 24.1(i) of these Terms;
- (al) “Introducing Broker” means a person or firm who acts on behalf of the Client to effectuate an introduction of the Client to the Company, and who is not an Agent of the Company;
- (am) “Manifest Error” has the meaning given to it by clause 26.1 of these Terms;
- (an) “Margin” has the meaning given to it in clause 20.1 of these Terms;
- (ao) “Margined Transaction” means any Transaction liable to Margin;
- (ap) “Market” means 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 and a Multilateral Trading Facility as defined in Article 4 of the Markets in Financial Instruments Directive 2004/39/EC;
- (aq) “Non-Complex Product” means certain products including, without limitation, shares traded on a Regulated Market or an equivalent Market outside Europe, as well as bonds and units in a regulated collective investment scheme;
- (ar) “Open Position” means a Transaction which has not been closed in whole or in part under these Terms;
- (as) “Order” means an instruction to purchase or sell a CFD Contract, a Rolling Spot Forex Contract, a Spread Bet Contract, and/or any other products offered by the Company from time to time, at a price quoted by the Company as appropriate;
- (at) “P&L” means the total of the Client’s profits (whether realised or not) less the Client’s losses (whether realised or not);
- (au) “Principal” means the individual person or legal entity which is a party to a Transaction;
- (av) “Professional Client” has the meaning given to it in the FCA Rules effective from 1 November 2007;
- (aw) “Regulated Market” means a multilateral trading system operated by a market operator in the EEA such as the London Stock Exchange that brings together multiple third party buying and selling interests in financial instruments where the instruments traded are admitted to the Market according to its rules and systems;
- (ax) “Retail Client” has the meaning given to it in the FCA Rules effective from 1 November 2007;
- (ay) “Rolling Spot Forex Contract” means any OTC contract which is a purchase or sale of foreign currency entered into between the Client and the Company, excluding forward contracts;
- (az) “Secure Access Website” means the password protected part of the Company’s website (or any website notified to the Client by the Company) through which the Client can view its Account information;
- (ba) “Security” means investments within articles 76 to 80 of the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001;
- (bb) “Service Provider” means a person or firm who provides a third party service to the Client which is compatible with or enhances the Company’s Services, and who is not an agent of the Company;
- (bc) “Services” means the services to be provided to the Client by the Company under these Terms;
- (bd) Signal Provider means someone engaged in trading that broadcasts their trading signals
- (be) “Spread Bet” means a gaming contract, which under the Financial Services and Markets Act 2000 constitutes the selling or buying of a CFD entered into between the Client and the Company;
- (bf) “Terms” means these Terms of Business between the Company and the Client;
- (bg)“Trading Agent” means an Agent or representative authorised by the Client under an Agency Agreement who the Company agrees may act for the Client and or give instructions to the Company on the Client’s behalf in respect of these Terms;
- (bh) “Transaction” means a Contractual arrangement entered into between the Client and the Company including a Margined Transaction as defined in these Terms; and
- (bi) “Underlying Instrument” means the index, commodity, currency, Equity or other instrument, asset or factor whose price or value provides the basis for the Company or any third party to determine its price or the executable price for a Market or product.
2.2 A reference in these Terms to a “clause” or “Schedule” shall be construed as a reference to, respectively, a clause or Schedule of 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 the Terms, references to an individual person shall include bodies corporate, unincorporated associations, partnerships and individuals.
2.5 Capitalised words and phrases defined in the FCA Rules have the same meaning in these Terms unless expressly defined in these Terms.
2.6 Headings and notes in the Terms are for reference only and shall not affect the contents and interpretation of the Terms.
3. Regulatory Disclosures
3.1 The Company has its registered office at 54 Clarendon Road, Watford WD17 1DU, United Kingdom
3.2 The Company maintains a ‘Complaints Handling Procedure’, which may be provided to the Client upon request. The Client should notify the Company as soon as reasonably practicable if it wants to raise a complaint or dispute by emailing the Company at (email@example.com). The Client should keep its own records of any information which might be cited in the Client’s complaint, as that will assist the Company in investigating such complaints or disputes. The Company will investigate any complaint or dispute and notify the Client of the results of the investigation. The Company has procedures and guidelines designed to enable it to deal with complaints fairly and quickly; the Client may contact the Company at any time for further information on such procedures and guidelines.
4. Risk Acknowledgement
4.1 The Client acknowledges, recognises and understands that trading and investments in leveraged as well as non-leveraged products:
- (a) is highly speculative;
- (b) may involve an extreme degree of risk; and
- (c) is appropriate only for persons 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:
- (a) 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;
- (b) when the Client directs the Company to enter into a Transaction, any profit or loss arising as a result of a fluctuation in the value of the asset or the underlying asset will be entirely for the Client’s account and risk;
- (c) unless it is otherwise specifically agreed, the Company shall not conduct any continuous monitoring of the Transactions already entered into by the Client neither individually nor manually. Hence, the Company cannot be held responsible for any Transactions that may develop differently from what the Client might have presupposed; and
- (d) guarantees of profit or freedom from loss are impossible in investment trading. The Client accepts that it has not received such guarantees or similar representations from the Company, from an Introducing Broker, Service Provider or representatives hereof or any other entity with whom the Client deals with relating to its Account.
7. Products and Services
7.1 Subject to the Client fulfilling its obligations under the Terms, the Company may provide Trading Signals to the
Client in the following investments and instruments:
- (a) currencies
- (b) such other instruments as the Company may from time to time offer.
7.2 The Company may, 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, the Company will provide the Client with reasonable notice in writing, where possible, that it intends to terminate a Service or remove a product. The Company aims to provide the Client with at least ten (10) Business Days notice in which to close any Open Position that it may hold on such affected product or Service. However, where in the Company’s reasonable opinion it is necessary or fair to do so, the Company reserves the right to provide a shorter notice period or no notice at all. Where notice is given, the Positions in respect of such affected product or Service before the time specified in the Company’s notice. If the Client does not do this, the Company will cancel any Orders and close any Open Positions in respect of the affected Service or product at the time and in the manner specified in the notice.
7.3 The Company will not make personal recommendations or advise on the merits of purchasing, selling, or otherwise dealing in particular investments, following and accepting Trading Signals from Signal Providers 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 should bear in mind that any explanation provided by the Company 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 Company provides general trading recommendations, independent research, market commentary, guidance on shareholding disclosure or other information to Clients :
- (a) this is incidental to the Company’s relationship with the Client and is provided solely to enable the Client to make independent investment decisions;
- (b) 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;
- (c) the Company 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
- (d) where 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 to, the Client agrees that it will not pass such information contrary to such restriction.
7.4 Where the Company has agreed in writing that dealings between the Company and the Client are on a non-discretionary advisory basis:
- (a) the Company may advise the Client on Transactions and investments within the range on products notified to the Client by the Company. The Company is not obliged to provide advice on a one-time or continuing basis;
- (b) following the Company’s advice, the Client may (but will not be obliged to) instruct the Company to enter any kind of Transaction or arrangement for the Client;
- (c) all decisions on whether to invest in, hold or dispose of any asset or to enter into any Transaction or to act upon any Trading Signal belong to the Client;
- (d) the Company will only pass on Trading Signals as the Client Instructs;
- (e) the Company will have no ongoing obligation to advise the Client on or monitor any Transaction, Open Positions or portfolio of investments held with the Company; and
- (f) the Company shall not be responsible for the profitability of any advice, information or recommendations.
8. Access and Use of the Secure Access Website
8.1 In order to use the Secure Access Website, the Client will need to request a username and password (“Access Code”) from the Company. The Client will need to provide the Access Code each time it wishes to use the Secure Access Website.
8.2 In relation to the Access Code, the Client acknowledges and undertakes that:
- (a) the Client will be responsible for the confidentiality and use of its Access Code;
- (b) other than with the Company’s prior written consent, the Client will not disclose its Access Code to any third party;
- (c) the Company 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, orders and other communications; and
- (d) the Client will immediately notify the Company if the Client becomes aware of the loss, theft or disclosure to any third party or of any unauthorised use of its Access Code.
8.3 If the Company believes that unauthorised persons are using the Client’s Access Code without the Client’s knowledge, the Company may, without prior notice, suspend the Client’s rights to use the Trading Facility. Further, if the Company believes that the Client supplied its Access Code to other persons in breach of clause 8.2(b) above, the Company may terminate these Terms forthwith.
8.4 Access to the Secure Access Website is provided “as is”. The Company 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 Secure Access Website, their content, any documentation or any hardware or software provided. Technical difficulties could be encountered in connection the 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 Company, any Associated Company, or any of their employees be liable for any possible loss (including loss of profit or revenue whether direct or indirect), cost or damage including, without limitation, consequential, unforeseeable, special or indirect damages or expense which might occur as a result of or arising out of using, accessing, installing, maintaining, modifying, de-activating, or attempting to access the Secure Access Website or otherwise.
9. Account Statements
9.1 The Company will provide the Client with general Account information through the Secure Access Website. Account information will usually include used margin, amounts available for margin trading, statements of profits and losses, current open and pending positions and any other information. Updated Account information will generally be available no more than twenty-four hours after any activity takes place on the Client’s Account.
9.2 Through the Secure Access Website, the Client can generate and/or access daily, monthly and/or yearly reports of its Account. FXStorm solely reproduces the account data from the Clients Broker. If inaccuracies or discrepancies arise then it is the Clients responsibility to inform FXStorm Support (firstname.lastname@example.org) The Client has an obligation to generate and/or access its own Account Statement at least once a month, to be done on the first day of each month for the preceding month
10. Commissions and Charges
10.1 The Company may receive remuneration from, or share commissions and charges with its associates, the Client’s Introducing Broker or other third parties in connection with Transactions carried out on the Client’s behalf. The Company or any associate may benefit from commission, mark-ups, mark-downs or any other remuneration where it acts for the counterparty to a Transaction. Details of such remuneration or sharing arrangements will be made available to the Client following a written request.
11.1 The Company shall not provide any advice to the Client on any tax issue related to any Services. The Client is advised to obtain individual and independent counsel from its financial advisor, auditor or legal counsel with respect to tax implications of the respective Services.
11.2 The Client is responsible for the payment of all taxes that may arise in relation to its Transactions.
12. Conflicts of Interest
12.1 The Company, its associates or Associated Companies may have an interest, relationship or arrangement that is material in relation to any Transaction affected, or advice provided by the Company under the Terms.
12.2 The Company is under no obligation to:
- (a) disclose to the Client that the Company, its associates or Associated Companies have a material interest in a particular Transaction with or for the Client, provided the Company has managed such conflicts in accordance with its Conflicts of Interest Policy;
- (b) disclose to the Client or take into consideration any fact, matter or finding which might involve a breach of confidence to any other person, or which comes to the notice of any of the Company’s directors, officers, employees or agents, where the individual(s) dealing with the Client have no actual notice of such fact, matter or finding; or
- (c) account to the Client for any profit, commission or remuneration made or received from or by reasons of any Transactions or circumstances in which the Company, its associates or Associated Companies have a material interest or where in particular circumstances a conflict of interest may exist.
13. Introducing Brokers and Service Providers
13.1 The Client may have been referred to the Company by an Introducing Broker or may utilize any third party trading system, course, program, software or trading platform offered by a Service Provider. If so, the Company shall not be responsible for any agreement made between the Client and the Client’s Introducing Broker or Service Provider, or lack thereof. The Client acknowledges that any such Introducing Broker or Service Provider will either be acting as an independent intermediary or an Agent for the Client and that the Client’s Introducing Broker or Service Provider is not an Agent or employee of the Company. The Client further acknowledges that its Introducing Broker or Service Provider is not authorised to make any representations concerning the Company or the Company’s Services.
13.2 The Company 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 an Introducing Broker or Service Provider. Moreover, the Company does not endorse or vouch for the services provided by an Introducing Broker or Service Provider. Since an Introducing Broker or Service Provider is not an Agent or employee of the Company, it is the Client’s responsibility to properly evaluate an Introducing Broker or Service Provider before engaging its services.
13.3 The Client is specifically made aware that the Client’s agreement with its Introducing Broker or Service Provider may result in additional costs for the Client as the Company may pay one-off or regularly scheduled fees or commissions to such person or entity from the Client’s Account.
13.4 The Client is also specifically made aware that the Client’s Agreement with its Introducing Broker or Service Provider may result in additional costs for the Client where the Client and Introducing Broker 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 Introducing Broker or Service Provider may require the Client to incur a mark-up, above and beyond the ordinary spread provided by the Company. The Client acknowledges and accepts that frequent transactions may result in a sum of total commissions, fees 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 or charges for trades conducted and paid from the Client’s Account is commercially viable, is the combined responsibility of the Client and the Introducing Broker or Service Provider. The Company only acts as custodian and principal broker, and therefore is not responsible for the size of the commissions, fees or charges paid by the Client.
13.5 Where the Client engages the services of an Introducing Broker or Service Provider, the Client understands and agrees that the Introducing Broker or Service Provider will have access to the Client’s personal information held by the Company including the Client’s trading activity. The Client further understands that its Introducing Broker or Service Provider may have been introduced to the Company by a third party who is compensated in part based on the introduction of the Client to the Company or on the Client's trading history. Where this occurs, the Client agrees that the third party who introduced the Client's Introducing Broker or Service Provider will have access to the Client's personal information held by the Company including the Client's trading activity.
13.6 If the Introducing Broker or Service Provider undertakes any deductions from the Client’s Account according to any agreement between the Client and the Introducing Broker or Service Provider, the Company has no responsibility as to the existence or validity of such an agreement.
13.7 Any commissions, fees or charges may be shared between the Introducing Broker or Service Provider, the Company and third parties according to the Introducing Broker or Service Provider’s written instructions and/or at the Company’s discretion.
13.8 The Client may request the Company to provide, at any time, a breakdown of remuneration paid by the Client to the Introducing Broker or Service Provider, or the compensation scheme charged by the Introducing Broker or Service Provider as applied to the Client.
14. Managed Accounts
14.1 At the Client’s request, the Company may allow a third party, selected by the Client, to be the Client’s Agent and attorney in fact, managing the Client’s Account, for the following purposes:
- (a) to enter into, modify, and/or close Transactions with the Company;
- (b) to set, edit, and/or delete all dealing preferences relating to the Account;
- (c) to enter into any agreements with the Company on behalf of the Client, which relate to transactions on the Account;
- (d) to communicate with the Company on behalf of the Client regarding any complaints or disputes that the Client or Company may have against one another relating to the Account;
- (e) to transfer money between the Account(s) and between any other account that the Client holds with the Company; and
- (f) to accept any amendments to the Company’s terms of business, on behalf of the Client.
14.2 Where a Client wishes to have its Account managed by a third party, the Client must submit an Agency Agreement between the Client and the Trading Agent to the Company in a form acceptable by the Company in its sole and absolute discretion. Both the Company and Client will be bound by these Terms, and the Client shall ensure that the authorisation given to the Trading Agent through the Agency Agreement incorporates the provisions and restrictions of this clause 19.
14.3 The Company reserves the right, at any time and in its sole an absolute discretion, to require the Client to trade its Account. This would require the Client to revoke its grant of authority to its Trading Agent and take all actions on its Account itself. Where the Company so requires, the Company will notify the Client and the Trading Agent of its decision. The Company need not specify its reasons for requiring the Client to trade its Account.
14.4 The Client agrees to reimburse the Company for any loss, damage or expense incurred by the Company as a result of:
- (a) the Company acting on instructions of the Trading Agent that fall outside the power granted in the Agency Agreement; or
- (b) the Trading Agent’s breach of any term of the Agency Agreement.
14.5 The Client authorises the Company to accept all instructions given to it by the Trading Agent, whether orally or in writing, in relation to the Account. The Company shall not be obliged to make any enquiry of the Client or of any other person before acting on such instructions.
14.6 The Client ratifies and accepts full responsibility and liability for all instructions given to the Company by the Trading Agent (and for all Transactions that may be entered into as a result) and will indemnify the Company and keep it indemnified against any loss, damage or expense incurred by the Company as a result of its acting on such instructions. This 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 Company in relation to any other account held by any other person or body (including the Trading Agent) with the Company. The Client further agrees that this indemnity shall extend to loss, damage or expense incurred by the Company in reversing incorrect or erroneous instructions submitted by the Trading Agent that result in a Transaction that must, for the protection of the Company or its other clients or for the reasons of market integrity, be reversed.
14.7 The Company hereby notifies the Client that the Trading Agent is not an employee, Agent or representative of the Company and further that the Trading Agent does not have any power or authority to act on behalf of the Company or to bind the Company in any way.
14.8 Unless otherwise agreed in writing between the Company and the Client, the Company may from time to time communicate with the Trading Agent directly regarding the Account. The Client consents to this and agrees that communications made by the Company to the Trading Agent are deemed to be received by the Client at the same time at which they are received by the Trading Agent
14.9 By submitting an Agency Agreement to the Company, the Client consents to and authorises the Company to disclose to the Trading Agent all information that the Company holds in relation to the Account, including personal information that the Company holds in relation to the Client.
14.10 The Client acknowledges and accepts that, in providing an electronic or online trading system to the Trading Agent, the Company has the right but not the obligation to set limits, controls, parameters and/or other controls on the Trading Agent’s ability to use such a system. The Client accepts that if the Company chooses not to place any such limits or controls on the Trading Agent’s trading, or if such limits or controls fail for any reason, the Company will not exercise oversight or control over instructions given by the Trading Agent and the Client accepts full responsibility and liability for the Trading Agent’s actions in such circumstances.
14.11 If the Client wishes to revoke or amend a grant of authorisation under an Agency Agreement, it must provide written notice of such intention to the Company by submitting the relevant form required by the Company from time to time. Any such notice shall not be effective until two working days after the Company receives it (unless the Company advises the Client that a shorter period will apply). The Client acknowledges that it will remain liable for all instructions given to the Company 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.
14.12 The Company, acting in its sole and absolute discretion, may refuse to accept instructions from the Trading Agent in relation to the Account on a one-off or ongoing basis. The Company need not specify its reasons for refusing instructions from the Trading Agent.
15.1 It is the Clients sole responsibility to ensure that they have enough funds in their account to avoid a margin call by the Clients Broker
15.2 The Company accepts no liability for Trades or Accounts that are closed by the Broker for lack of available margin
16. Representations, Warranties and Covenants
16.1 Representations and warranties are personal statements, assurances or undertakings given by the Client to the Company on which the Company relies when dealing with the Client. The Client makes the following representations and warranties at the time it enters into this Agreement and every time it places a Transaction or gives the Company any other instruction:
- (a) where the Client is a natural person, the Client is of sound mind, and over 18 years old;
- (b) the Client is aware of the risks involved in trading each investment product with the Company;
- (c) 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, licenses 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;
- (d) 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;
- (e) no Event of Default has occurred or is occurring with respect to the Client or any Credit Support Provider;
- (f) 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;
- (g) except where the Company and Client have agreed otherwise in writing, the Client acts as Principal and is not acting as any other person’s agent or representative;
- (h) all information which the Client provides or has provided to the Company (whether in the Account opening process or otherwise) is true, accurate and not misleading in any material respect;
- (i) the Client is willing and financially able to sustain a total loss of funds resulting from Transactions;
- (j) the Client has consistent and uninterrupted access to internet service and any email address provided in its Account opening documentation;
- (k) 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;
- (l) 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
- (m) the Client is not a resident of the United States of America.
16.2 A covenant is a promise to affirmatively do something. The Client covenants to the Company:
- (a) that for the duration of this Agreement, the Client will promptly notify the Company of any change to the details supplied by the Client during the account opening process, including in particular any 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 Company does business with the Client;
- (b) 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, licenses and authorisations referred to in this clause 23;
- (c) the Client will promptly notify the Company of the occurrence of any Event of Default or potential Event of Default with respect to itself or any Credit Support Provider; and
- (d) the Client will use all reasonable steps to comply with all applicable laws and regulations in relation the Agreement.
17. Force Majeure
17.1 Since the Company does not control signal power, its reception or routing via Internet, configuration of the Client’s equipment or reliability of its connections, the Company shall not be liable for any claims, losses, damages, costs 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 Company or its Associated companies, the Client, any Market, or any settlement or clearing system when the Client trades online (via Internet) or for any cause preventing the Company from performing any or all its obligations, any act of God, war, terrorism, 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 Company’s opinion prevent an orderly market in relation to the Client’s Orders (a “Force Majeure Event”).
17.2 Upon the occurrence of a Force Majeure Event, the Company 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 Company’s obligations under these Terms of Business shall be immediately suspended for the duration of such Force Majeure Event. Additionally, the Company may take any one or more of the following steps:
- (a) alter normal trading times;
- (b) alter the Margin Requirements;
- (c) amend or vary these Terms and any Transaction contemplated by these Terms, insofar as it is impractical or impossible for the Company to comply with its obligations;
- (d) close any or all Open Positions, cancel instructions and Orders as the Company deems to be appropriate in the circumstances; and/or
- (e) take or omit to take all such other actions as the Company deems to be reasonably appropriate in the circumstances having regard to the Clients positions and those positions of the Company’s other customers
18. Right to Cancel/Cooling Off
18.1 The provisions of this clause 32 shall only apply to the Client where it is classified as a Retail Client.
18.2 The Client is entitled to cancel the Agreement by giving written notice to the Company within a 14-day cancellation period. Subject to clause 32.4 (below), 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 Company before the cancellation period expires.
18.3 The period for cancellation begins on the date the terms start to apply to the Client.
18.4 As the price of each Transaction depends on fluctuations in the Underlying Instrument which are outside of the Company’s control and which may occur during the cancellation period, the Client has no rights to cancel the Agreement under this clause 32 if any trade placed by the Client has been executed before the Company receives notice of cancellation.
18.6 Unless otherwise specified in the Terms, if the Client does not exercise the right of cancellation, the Agreement will continue in effect until either the Client or the Company terminates the Terms in accordance with clause 34 below, or by the Company’s exercising any of its rights to terminate under these Terms. There is no minimum or fixed duration of the Agreement.
19.1 The Company 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 Company to the contrary in accordance with the details of the amendment notice within 10 business days of the date of the Company’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 its Account as soon as it is reasonably practicable.
19.2 Any amendment to this Agreement will come into effect on the date specified by the Company which will, in most cases, be at least 10 business days from the date of the Company’s amendment notice provided in accordance with clause 33.1 (above).
19.3 Any amended agreement will supersede any previous agreement between us on the same subject matter and will govern any Transaction entered into after, or outstanding on, the date the new edition comes into effect.
20. Suspension and Termination
20.1 The Client may terminate the Agreement immediately by giving written notice to the Company. The Client agrees that at any time after the termination of the Agreement, the Company may, without notice to the Client, close out any or all of the Client’s Open Positions.
20.2 The Company may suspend or terminate these Terms by giving five (5) Business Days written notice to the Client for any reason or no reason whatsoever, except that the Company may 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 Company may, without notice to the Client, close out any or all of the Client’s Open Positions. Where the Company suspends the Client’s Account, the Company may prevent the Client from opening any new positions but the Company will not close the Client’s Open Positions unless otherwise allowed by these Terms. The provisions of this clause 34.2 shall not prevent the Company from exercising any of its rights to terminate or suspend the Agreement as provided elsewhere in these Terms.
20.3 Upon the termination of the Agreement, all amounts payable by the Client to the Company will become immediately due and payable including (but without limitation):
- (a) all outstanding fees, charges and commissions;
- (b) any dealing expenses incurred by terminating these Terms; and
- (c) any losses and expenses realized in closing out any Transactions or settling or concluding outstanding obligations incurred by the Company on the Client’s behalf.
20.4 Termination of the Agreement will not affect any rights or obligations, which may already have arisen between the Company 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.
20.5 If termination occurs, the Company will, as soon as reasonably practicable and subject to these Terms,deliver to the Client any money or investments in the Client’s Account(s) subject to any applicable charges and rights of set-off. A final statement will be issued to the Client where appropriate.
21. In the Event of Death
21.1 In the event of the Client’s death, any person(s) purporting to be the Client’s legal personal representative(s) or surviving joint account holder must provide the Company with formal notice of the Client’s death in a form acceptable to the Company, including but not limited to the provision of an original death certificate in physical form.
21.2 Clauses 35.3 through and including 35.8 will only apply if the Client is a sole account holder (including where the Client is the sole surviving account holder following the earlier death of a joint account holder). In the event of death of a joint account holder (who is not the sole surviving joint account holder), the Client should refer to clause 35.1 above.
21.3 Upon the receipt and acceptance of the Client’s death certificate, the Company will treat the Client’s death as an Event of Default allowing the Company to exercise any of its rights under clause 24.2 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 Company in accordance with these Terms.
21.4 A person shall not be proven to be the Client’s legal personal representative until the Company receives a grant of representation for the Client’s estate. Once the Company receives the grant of representation for the Client’s estate, the Company will carry out the written instructions from the Client’s legal personal representative(s). The Company 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 Company are accounted for. Where the Company has not received any instructions after six months following receipt of the Client’s death certificate, the Company 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.
21.5 If the Client’s estate is too small to warrant a grant of representation, the Company 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.
21.6 Notwithstanding anything in the Agreement, if the Agreement is not terminated within two years after the date of the Client’s death, the Company 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 Company taking this action, or considering taking action, except to the extent that costs arise because of the Company’s negligence, wilful default or fraud.
22. Notices and Communication with the Client
22.1 The Company may notify, instruct, or communicate with the Client by telephone, letter, fax, email, text message,or by posting a message on the Company’s website, and the Client agrees that the Company may contact the Client through any of these mediums at any time. The Company will use the address, fax number, phone number, or email address specified in the Client’s Account opening documentation or such other address (physical or electronic) or number (fax or phone) as the Client may subsequently provide the Company.
22.2 The Client will be deemed to have acknowledged and agreed with the content of any notice, instruction or other communication (except Confirmations, Account Statements, and Margin Call Warnings) unless the Client notifies the Company 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 clause 22.3 below.
22.3 Any notice, instruction or other communication will be deemed to have been properly given by the Company:
- (a) if hand delivered, when left at the Client’s last known home or work address;
- (b) if sent by post to the address last notified by the Client to the Company, on the next business day after being deposited in the post;
- (c) if given verbally over the telephone, immediately where the Company speaks with the Client. If the Company is unable to connect with the Client via phone, the Company 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 hour after the message is left;
- (d) if sent by fax, immediately upon receipt of a successful transmission report;
- (e) if sent by text message, as soon as the Company transmits the message;
- (f) if sent by email, immediately after the email is sent providing the Company does not receive confirmation of a failed delivery from the relevant email provider; and/or
- (g) if posted on the Company’s website, as soon as its has been posted.
22.4 The Client is responsible for reading all notices posted on the Company’s website in a timely manner.
22.5 The Client may notify the Company by letter, fax, or email, each of which shall constitute written notice. The Client will use the Company’s registered address, fax number, or email address specified by the Company from time to time in accordance with any notice requirement.
22.6 Any notice will be deemed to have been properly given by the Client:
- (a) if hand delivered, when left at the Company’s registered office;
- (b) if sent by post to the Company’s registered address, upon receipt by the Company;
- (c) if sent by fax, immediately upon receipt of a successful transmission report; and/or
- (d) if sent by email, one hour after the email is sent providing the Client does not receive confirmation of a failed delivery from the relevant email provider.
22.7 The Client and the Company shall communicate with one another in English. The Company 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 Company. In case of discrepancies between the original English version and other translations in the Client’s possession, the original English version provided by the Company shall prevail.
22.8 The Company shall not be liable for any delay in the Client receiving any communication once dispatched by the Company, except where the delay is caused by the Company’s wilful default, fraud or negligence.
22.9 The Company may record telephone conversations with the Client. Such records will be the Company’s sole property and the Client accepts that such recordings will constitute evidence of the communications between the Client and the Company.
23. Intellectual Property
23.1 The Company’s website, Secure Access Website and any and all information or materials that the Company may supply or make available to the Client (including any software which forms part of those items) are and will remain the Company’s property or that of its service providers. Such service providers may include providers of real-time price data to the Company. In addition:
- (a) all copyrights, trademarks, design rights and other intellectual property rights in those items are and will remain the Company’s property (or those of third parties whose intellectual property the Company uses in relation to products and services the Company provides for the Client’s Account);
- (b) the Company supplies or makes them available to the Client on the basis that:
- (i) the Company can also supply and make them available to other persons; and
- (ii) the Company may cease providing them at its sole and absolute discretion or if the Company’s service providers require the Company to do so;
- (c) 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;
- (d) the Client must not delete, obscure or tamper with copyright or other proprietary notices the Company may have put on any of those items; and/or
- (e) the Client must only use these items for the operation of its Account in accordance with these Terms.
24. Confidentiality and Data Protection
24.3 Subject to the following the Company will treat all information it holds about you as private and
confidential, even when the Client is no longer a customer. The Client agrees, however, that the Company and any of its Associated Companies may:
- (a) use the Client’s information to determine the Client’s identity and background before and during the term of the Agreement for 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 Company’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 Company to carry out statistical and other analysis;
- (b) use the Client’s personal data including its contact details, application details and details of the service the Company provides to the Client and how the Client uses them, to decide what products and Services may be of interest to the Client;
- (c) contact the Client by telephone (including automated calls), post, email and other electronic messages such as short text, video and picture messaging, and fax, with information, news, events and seminars on the Company’s services and those of Associated Companies and other selected partners;
- (d) 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;
- (e) pass, use and disclose the Client’s information as provided under clause 31 of the main body of these Terms above; and
- (f) use the Client’s personal data to comply and cooperate with regulators, Governmental Authorities and the courts and to comply with its legal obligations.
24.4 The Company may share the Client’s personal data with any of its Agents, including data processors, or any Associated Companies in the United States of America, Australia, Israel, China or other jurisdictions in or outside the EEA who may only use it for the same purposes as the Company. Such purposes include those listed in clause 38.3 (above) 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 Companies who share responsibility for managing the Client’s relationship from other offices to view information about the Client. The Company 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 Company’s Data Protection Officer.
24.5 The Client has the right, on payment of a GBP 10 fee, to receive a copy of the information the Company 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.
24.6 If the Client would like to change or modify information previously provided to the Company, to remove information from the Company’s database or elect not to receive certain communications from the Company, the Client should do so by writing to the Data Protection Officer.
26.1 The Company may, but the Client may not, 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.
26.2 The Company’s rights and obligations under these Terms are personal to the Client. This means that the Client cannot assign them without the Company’s prior written consent.
26.3 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.
26.4 The rights and remedies provided under these Terms are cumulative and not exclusive of those provided by law.
26.5 The Company 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 Company 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.
26.6 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.
26.7 The Client accepts that the Company may be closed on significant holidays within the United Kingdom or Europe. This means that the Company may not offer Services, in whole or in part, everyday of the year. The Client should keep itself appraised of the Company’s regular hours of business and closure schedule to avoid any Service disruption or inconvenience when trading.
26.8 The Company’s records, unless shown to be wrong, will be evidence of the Client’s dealings with the Company in connection with the Company’s services. The Client will not object to the admission of the Company’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 Company 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 Company’s sole and absolute discretion.
26.9 The Client and the Company 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.
26.10 If any action or proceeding is brought by or against the Company in relation to these Terms or arising out of any act or omission by the Company, the Client agrees to cooperate with the Company to the fullest extent possible in the defence or prosecution of such action or proceeding.
27. Governing Law
27.1 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, this Agreement shall be governed by and construed in accordance with English law.
27.2 Without prejudice to any rights the Client may have to refer a complaint to the FOS as set out in clause 3.2 above, the Courts of England have exclusive jurisdiction to settle any dispute arising in connection with the Agreement and for such purposes the Company and the Client irrevocably submits to the jurisdiction of the English courts.
27.3 Nothing in this clause 40 shall prevent the Company from bringing proceedings against the Client in any other country which may have jurisdiction to whose jurisdiction the Client irrevocably submits.
27.4 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 Company’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.