Copyright © 2015 - XYTRONFXP Finance Group - All rights reserved
Trading Terms and Conditions
Blue Marine Capital Ltd (hereafter the “Firm”) is a registered and incorporated Investment Firm. The domain name www.xytronfx.com (hereafter referred to as the “Main Website”) is owned by the Firm. The Firm may also create and manage other websites to use for marketing and promotion in languages other than English. The Client accepts and understands that the Firm’s official business language is English. The Client should use the legal documentation posted on the Main Website of the Firm as a reference for all information and disclosures about the Firm and its activities. This agreement will be the governing factor in the relationship between the Firm and The Client. Because this Agreement is a distance contract, it is partly governed by the Distance Marketing of Consumer Financial Services Law N.242(I)/2004 implementing the EU directive 2002/65/EC, which does not require the signing of this document and grants the Agreement the same judicial power as if it were signed. In cases in which Clients prefer to sign an Agreement, The Client must print and send 2 copies to the Firm, where the Firm will sign and stamp the Agreements and return a copy to the Client.
1. Definitions of Terms
Access Codes Refers to any credentials provided by the Firm to access the Firm’s trading platform or to access the Firm’s Client portal;
Authorized Person refers to any person legally authorized on behalf of the Client to perform under the present Agreement;
Balance refers to the net financial sum of all fully completed transactions and Deposits and withdrawals to or from an account;
Base currency is the main currency of the Client’s Account;
Client refers to any legal individual who contracts services for investment or ancillary purposes from the Firm
Refers to any and every account opened for the client by XYTRONFX under the Agreement for trading;
Client’s Bank Account
Refers to an account held by the client in their name and/or the name of the Firm on behalf of the Client with a bank or other institution, as well as electronic payment providers or credit card processors;
Refers to Blue Marine Capital Ltd, (website: www.xytronfx.com)
Refers to any details regarding trading information about financial instruments offered by the Firm (including spreads, swaps, margin requirements, and lot sizes)
Refers to any electronic trading platform offered by XYTRONFX(e.g. MetaTrader platforms, web-based platforms, mobile platforms, etc.), including the Firm’s Client portal;
Refers to the value of securities in a margin account minus what has been deposited by the client, bound with the balance and open positions profit/loss by the following formula: Balance +/- Open Positions +/- Swap - Commission;
Refers to the Financial Instrument described in paragraph 3.1.a of the Agreement;
Refers to the funds in a client’s account that are available for trading. Free Margin = Equity – Margin
Any legal entity or natural person remunerated by The Firm and/or Clients for introducing Clients to the Firm under the provisions of the “Introducers Agreement” agreed upon by the Parties that pertains to a distinct act of mediation for the fulfillment of an agreement between the Firm and its Clients
The funds required for a Client to open a position.
Defined by the formula (Equity / Margin) * 100; Is used to determine the conditions of a Client’s account
Means a multilateral system operated by an Investment Firm
Trading Facility (MTF)
An operator who enables or allows the joining of third-party buying and selling interests in financial instruments (according with nondiscretionary rules) that results in a contract.
Power of Attorney
Refers to the ability by a client to authorize third parties to act on their behalf in any business interaction with the Firm.
Any transaction performed by the Client’s account, including but not limited to sales and purchases of financial instruments, withdrawals or deposits, etc.
2. Scope and Application
2.1 This agreement and any amendments to it hereafter will supersede any previous agreement between the two parties on the same subject and takes full effect between the Client and the Firm.
2.2 This Agreement establishes the framework under which the Firm agrees to the provision of investment and ancillary services, as well as Financial Instruments. On a situational basis (of services provided) the Firm will be subjected to the protection of Personal Data Law and other codes of conduct.
2.3 The Agreement is provided to allow the Client to arrive at an informed decision regarding the Firm and the services it provides, as well as the risks associated with Financial Instruments that are offered.
2.4 Clients should read this agreement in its entirety before deciding whether to acquire or continue holding any financial instrument, or to be provided any investment and/or ancillary service by the Firm.
2.5 The Agreement governs all investment and/or ancillary services provided by the Firm.
3. Provision of Services
3.1 The Firm will provide the following investment services to the Client:
a) The Firm will execute the following orders related to the following Financial Instruments on behalf of the Client:
i. Contracts for Differences on spot foreign exchange, commodity futures, index futures, and shares or any other instruments available for trading.
3.2 The following ancillary services will also be provided by the Firm:
a) The Firm will grant loans of credits to an investor to allow him to execute a transaction in one or multiple financial instruments, if the firm providing the credit or loan is part of the transaction.
b) Foreign Exchange services in cases in which these are related to the provision of Investment Services.
3.3 The services of paragraph 3.1 shall involve transactions in Financial Instruments not admitted to trading in Regulated Markets or an MTF. By accepting this agreement the Client acknowledges, and gives his express consent for executing such transactions.
3.4 The Client acknowledges that the services of paragraph 3.1 are not considered to be provision of investment advice.
4. Acknowledgement of Risks
4.1 Contracts for Differences on spot on spot foreign exchange, commodity futures, index futures, and shares or any other instruments available for trading are leveraged products that carry a high level of risk. The Client can potentially lose all of their invested capital.
These products may thus not be suitable for everyone and the Client should ensure that they are fully aware of all risks involved. The Client should seek independent advice if required.
4.2 The Client is fully aware and completely accepts that despite any information provided by the Firm, the value of any Financial Instrument investment may increase or decrease in value, and there is a possibility that investments may lose all value.
4.3 The Client is fully aware and accepts there is a high risk of incurring losses and damages as a consequence of purchasing or selling any Financial Instruments. The client accepts and declares they are will to undertake this risk.
4.4 As applicable, any general opinions or views related to the Client (either orally or in written form) regarding economic climates, markets, investment and related strategies, suggestions about trades, and any research or like information are not considered to be investment advice or recommendations by the Firm, and will not lead to an advisory relationship. Any decision by the Client to enter into any Contract for Differences or any related trading product offered by the Firm is fully independent of the Firm. The Firm does not act as an advisor, or fiduciary of the client, and specifically disclaims any such responsibility.
4.5 Clients should consider all the risks related to a decision to trade any financial instrument and any related strategies. The client should assess a variety of risk factors including credit and market risk, liquidity risk, interest rates, foreign exchange risks, foreign exchange risk, business, operational and insolvency risk, the risks of “over the counter” (as opposed to on-exchange) trading, etc.
4.6 The previous paragraph is not considered to be investment advice based on the Client’s personal circumstances, and is not a recommendation to enter into any services offered or to invest in any financial instrument. If the Client is unclear regarding any of the preceding disclosures and warnings, they are strongly encouraged to seek independent legal and/or financial counsel.
4.7 The client is aware and accepts that there are risks other than those presented in paragraph 4, and also acknowledges they have read ad accepted the “Risk Disclosure” statement, provided during the registration process and available on the Firm’s main website.
5. Electronic Systems and Trading
5.1 The Firm will provide the Client with credentials and access codes for entering any transactions or interactions with the Firm. These credentials may be used to access the Firm’s Electronic Systems. Any interactions will be handled under the framework established in this section, as well as any additional amendments or agreements the Firm and The Client might enter into.
5.2 The Client acknowledges and accepts that the Firm may restrict any access to its Electronic Systems wherever it deems fit for the smooth operation of its Electronic Systems as well as to protect other client’s interest as well its own. The Client may only access the Firm’s Electronic Systems and carry out dealings for their own internal business and on a non-exclusive and non-transferable basis.
5.3 Any rights and interests, as well as all Intellectual Property (Including, but not limited to, any trademarks and trade names in or related to the Firm) are the sole property of the Firm or its suppliers and will remain the property of our suppliers at all times. The client has no claim to any of these rights outside of accessing the Firm’s Electronic Systems.
5.4 The Client is aware that in any case of an electronic communication that may cause a delay or disruption, including internet or trading platform or electricity, and the client wishes to execute an order at that moment, they are required to call the Firm and place a verbal instruction. The Client is aware and fully accepts that the Firm may refuse to accept any verbal instruction if the Firm’s personnel are unsatisfied of the caller/Client’s identity, or if the caller/Client does not provide clear instructions to the Firm. Any verbal instructions are treated on a first come, first serve basis, and the Firm is not held responsible for any possible delays in the placing of a verbal instruction to the Dealing desk.
5.5 The Client will take the necessary precautions to ensure the confidentiality of all information, including, but not limited to, the access codes of the Firm’s Electronic Systems, transaction activities, account balances, as well as all other information and all orders. The Client is aware that The Firm is NOT responsible in any case where credentials are used without authorization by any third party. The Client is strongly advised against using any public computer to login with their credentials. The client should always log out from the Firm’s Electronic Services.
5.6 The Client will move to immediately notify the Firm in case of an unauthorized use of their Electronic System Access Codes.
5.7 To the extent permitted by the applicable Law:
a) The Firm will not be held liable for any loss, liability or cost (including consequential loss) incurred by the Client because of instructions given, or any other communications being made, via the internet;
b) The Client is solely responsible for any orders and the accuracy of all the information sent via the internet using Credentials; and
c) The Firm will not be held liable for any loss or damages that may be caused to any equipment or software due to any viruses, defects or malfunctions in connection with the access to, or use of, the Firm’s Electronic Systems.
6. Client Instructions and Orders
6.1 The Client is fully aware and accepts that all orders executed between the Client and the Firm are orders executed outside a Regulated Market or MTF.
6.2 The Client can open and close a position via its Firm’s Trading Platform and add or modify orders by placing Buy/Sell, Buy Limit, Buy Stop, Sell Limit, Sell Stop, Stop Loss and/or Take Profit on any Financial Instrument.
6.3 The Client’s orders are executed at the Bid and Ask prices that are offered by the Firm. The Client places his instant execution request at the prices he sees on his client terminal and the execution process is initiated. Owing to the high volatility of the market as well as the internet connectivity between the Client terminal and the server, there may be a change between the price requested by the client and current market prices. If this occurs, the Firm may decline the Client’s requested price and provide a new quote to the Client, which may be accepted or rejected.
6.4 The Client may use Power of attorney to authorize a third party representative to act on their behalf in any business relationship with the Firm (as outlined in this agreement). A notification of Power of Attorney must be presented to the Firm, along with all identifying documents of the representative. In cases where there is no expiry date, Power of attorney will be considered valid until termination is explicitly stated in writing by the Client.
6.5 The Firm shall record telephone conversations, without any prior warning to ensure that the material terms of a Transaction and/or order placed by the Client and/or any other material information pertaining to a Transaction are properly recorded. Such records will be the Firm’s property and will be accepted by the Client as evidence of his orders or instructions. The Firm may use recordings and/or transcripts thereof for any purpose which it deems desirable.
6.6 The Client accepts that the Firm may refuse to accept any orders or instructions by the client where there is lack of clarity regarding the following: Opening or closing a position, modifying, or removing orders.
6.7 If any underlying asset of the Financial Instrument becomes subject to possible
adjustments as a result of any of the events set out in sub-clause 6.8 (referred to as "Corporate Event"), the Firm will determine the appropriate adjustment, if any, to be made to the opening/closing price, size, value and/or quantity of the corresponding transaction (and also the level or size of the corresponding orders).
This action is made in order to (i) account for the diluting or concentrating effect necessary to preserve the economic equivalent of the rights and obligations of the parties under that transaction immediately prior to that Corporate Event, and/or (ii) replicate the effect of the Corporate Event upon someone with an interest in the relevant underlying security, to be effective from the date determined by the Firm.
6.8 The Events referred to by sub-clause 6.7 are any of the following, by the declaration of the issuer of a security:
a) A subdivision, consolidation or reclassification of shares, a share buy-back or cancellation, or a free distribution of bonus shares to existing shareholders, capitalization or share split or reverse share split or similar event;
b) A distribution to existing holders of the underlying shares or additional shares, other share capital or securities, granting the right to payment of dividends and/or proceeds from the liquidation of the issuer equally proportionate to such payments to holders of the underlying shares, securities, or warrants granting the right to receive or purchase shares for less than the current market price per share;
c) Any other event involving shares equivalent to any of the above events or otherwise that dilute or concentrate the market value of shares; or
d) Any event equivalent to any of the aforementioned events otherwise having a diluting or concentrating effect on the market value of any security not based on shares.
e) Any event that is caused by a merger offer made regarding the Firm of the underlying asset.
6.9 If any underlying asset of the Financial Instrument is subjected to a specific risk that results in a predicted fall in value, the Firm reserves the right to restrict short selling or even remove the specific Financial Instrument from the Firm’s trading Platform.
6.10 Determination of any adjustment or amendment to the opening/closing price, size, value and/or quantity of the Transaction (and/or the level or size of any order) shall be at the Firm’s sole discretion and shall be conclusive and binding upon the Client. The Firm will notify the Client of any change or adjustment via its internal mail as soon as reasonably possible.
6.11 In the case where the Client has any open positions on the ex-dividend day for any of the underlying assets of the Financial Instrument, the Firm maintains the right to close such positions at the last price of the previous trading day and open the equivalent volume of the underlying Financial Instrument at the first available price on the ex-dividend day. In such a case, the Firm will notify the Client via the internal mail of the said adjustment and will not require Client consent.
6.12 The Firm will not be held liable for any loss, expense, cost or liability (including consequential loss) suffered or incurred by the Client as a result of instruction delivery or any other communication made through electronic media or the internet. The Client is solely responsible for the accuracy of all orders and instructions delivered through electronic media. The Firm will not be held liable for any delay or inaccuracy in the transmission of an instruction, information, or execution of an order as a result of causes beyond the reasonable control of the Firm.
6.13 The Firm shall not be held responsible for any delays or other errors caused during the transmission of the Client’s order via the Firm’s trading platforms. Delays may be the result of various reasons depending on the current market conditions (e.g. high market volatility) as well as a slow / weak internet connection between the Client’s terminal or any other trading platform offered by the Firm and the Firm’s server.
6.14 As the Firm is dependent on third party technology providers (such as webtrader etc.), shall not be liable for any loss, expense or cost or liability (including consequential loss) suffered or incurred by the Client, as a result of interruption and/or failure of service from such third party technology providers.
6.15 Any orders made by the Client (including Buy/Sell, Buy Limit, Buy Stop, Sell Limit, Sell Stop, Stop Loss and/or Take Profit) on any Financial Instrument will be carried out by the Firm at the Client’s requested prices. In the case there is any technical or communication failure, or any incorrect reflection on the quotes feed (i.e. prices to freeze/stop updating or price spikes), the Firm reserves the right not to execute an order or in case in which the order was completed, to modify the opening and/or closing price of a particular order or to cancel the said completed order.
6.16 The Firm is continuously attempting to provide client orders the best execution possible (within reason) in current market conditions and accounting for levels of market volatility. Any order by the Client (including Buy/Sell, Buy Limit, Buy Stop, Sell Limit, Sell Stop, Stop Loss and/or Take Profit) are executed at the requested/declared price. However, at times of high market volatility, news events, opening gaps, or gaps due to the suspension or restriction of a particular instrument on a market, Stop and Stop Loss orders over or under Buy/Sell Stop orders may not be completed at the declared or requested price, but will be executed at the next best price. In these situations:
- Take Profit orders below/above
- Buy Stop/Sell Stop orders
- Stop Loss orders above/below
- Buy Limit/Sell Limit
orders during activation will be removed. This execution policy extends to situations in which a trading strategy is considered abusive, because it is aiming towards potential riskless profit or another strategy deemed by the Firm to be abusive. As such, a Stop Loss order placement will not necessarily limit the Client’s losses at the intended amount. Conditional upon a client informing the Firm in advance of linked trading accounts with the Firm to be used for a hedging strategy within those accounts (i.e. mirror accounts) the Firm will not consider hedging activity in those mirror accounts as an abusive trading strategy.
6.17 Considering the volume of the Client’s order and the current market conditions, the Firm has the right to proceed with partial execution.
6.18 The Firm retains the right to increase or decrease Financial Instrument spreads at their discretion depending on current market conditions and the Client’s order size.
6.19 The swap rate is mainly dependent on the level of interest rates as well as the Firm’s fee for having an open position overnight. The Firm may change the level of the swap rate on any financial instrument at any time at their own discretion, and the Client understands that he will be notified by the Firm’s Main Website. The Client further understands that he is solely responsible for reviewing any specifications established in the contracts visible on the Firm’s Main Website for being updated on the level of swap rate prior to placing any order with the Firm. In addition, the Firm retains the right to amend the swap values of a specific Client in case of any suspect of a trading abuse.
6.20 The Firm retains the right to enable/disable swap free trading for any Client’s account at any point in time. This may be triggered by situations where the Client abuses the Firm’s trading conditions or systems, or a situation in which the Client’s trading strategy creates a threat to the Firm’s trading facility or where the Firm deems necessary in order to protect the smooth operation of its trading facility. The Client understands that swap free applies for 10 calendar days only. Therefore, swap free accounts holding a position open for more than 10 calendar days, will be credited or debited swap accordingly.
6.21 Any order must be placed by lot size. A lot is defined as a unit measuring the transaction amount and is unique to every Financial Instrument. The Client also accepts that they are solely responsible for reviewing the contract details located on the Firm’s Main Website for being updated on the level of swap rate before placing any order with the Firm.
6.22 The Client may request a change in account leverage at any time by contacting the Firm. The Client accepts that the Firm may modify The Client’s trading account leverage at any given time, without requiring the Client’s consent, either on a permanent basis or for a limited period of time. The Client will be notified by the Firm via its internal mail or by email.
6.23 By accepting this Agreement the Client has read, understood and accepted the “Leverage Levels” as they are readily available on the Firm’s Main Website.
6.24 The Firm will not be held liable when the Client uses additional functionalities/plug-ins such as Expert Adviser or Trailing Stop since they are reliant on the Client’s terminal. In cases where the Firm suspects that a Client is using additional functionalities /plug-ins that impact the reliability and/or smooth operation and/or orderly function of the Firm’s Trading Platform, the Firm has the right to enact any clause specifically under clause 24, including sub-clause 24.4.
6.25 The Firm retains the right to start closing Client’s positions beginning the least profitable, when margin levels reach less than 40%. In cases where the margin level is equal to or less than 20%, the Client’s positions are automatically closed, starting from the least profitable, according to the market price. In a situation where the Client has a zero fixed spread account, the Firm shall have the right to start closing Client’s positions starting from the least profitable, when the margin level is less than 100%. In the case where the margin level is equal to or less than 80%, then the Client’s positions are automatically closed, starting from the least profitable, at the market price. In case the Client has a mirror account then the Firm shall have the right to start closing Client’s positions starting from the least profitable, when the margin level is under 20%. In the case where the margin level is equal to or less than 5%, then the Client’s positions are automatically closed, starting from the least profitable, according to the market price.
6.26 The Client accepts responsibility for reviewing and understanding the distinction between accounts located on the Firm’s Main Website before creating a new account and/or placing any order with the Firm.
6.27 The Firm retains the right to modify the Client’s trading account type depending on the total deposits made on the Client’s account as well as on the current balance of the Client’s trading account.
6.28 The Firm may, at its own discretion, and without the Client’s consent, due to risk management policies transfer the Client’s execution type to STP/ECN execution when the Client’s trading strategy, exposes the Firm to greater risk than the Firm can cope with.
6.29 In a situation where a Client executes trade in an attempt to take advantage of disparities as a result of a rare or occasional price latency, with the purpose of benefiting from a potential arbitrage to the Firm’s disadvantage, be it through the use of additional functionalities or plugins, or through any alternate means, the Firm retains the right to enact any clause under clause 24, including sub-clause 24.4
7. Refusal to Execute Orders
7.1 The Firm may refuse to execute an order with no prior notice and/or explanation to the Client. The cases in which the Firm is allowed to carry this out include (but are not limited to):
a) A lack of required funds in the Client’s trading account;
b) The order negatively affects the smooth operation and/or reliability of the Firm’s Trading Platforms;
c) The orders attempt to manipulate the market in which the specific financial instrument is traded
d) The order comes from the use of Inside Confidential Information (also known as Insider Trading)
- The order is an attempt to legalize the proceeds of illegal activities or
actions (money laundering);
7.2 The Client acknowledges that a refusal from the Firm to execute an order will have not have an impact on any obligations the client might have toward the Firm, or any right the Firm retains against the Client or their assets.
8. Settlement of Transactions
8.1 The Firm shall proceed to a settlement of all transactions upon execution of such transactions. Unless agreed to by both Parties, the settlement of Transactions will follow the framework of the normal practice for the Financial Instrument or market concerned.
8.2 The Firm will provide the Client a monthly statement of account within 5 (five) business days of the previous month’s end. If there are no transactions concluded in a previous month, there will be no statement of account provided. Statements of Account or Certifications or confirmations related to a transaction or other matter and issued by the Firm will be considered final and binding to the Client, unless the Client presents a written objection within 4 (Four) business days following the receipt of any such official document from the Firm.
8.3 The Firm considers its obligation fulfilled under paragraph 8.2, due to the Client’s availability of access to any statement of account or confirmation of any transaction via the Firm’s Trading Platforms. Objections raised by Clients with regards to completed transactions will only be considered valid if delivered, in writing, within 4 (four) business days of the transaction in question.
9. Order Execution Policy
9.1 The Firm takes all reasonable steps to ensure the best possible outcomes for its Clients, either in the execution of client orders or receiving and transmitting orders for execution in relation to financial instruments. The Firm’s Order Execution Policy establishes a general framework on the execution of orders as well as factors that may impact the execution of a financial instrument.
9.2 The Client acknowledges and confirms that he has read and understood the “Order Execution Policy” document, which was provided to him during the registration process and which is available on the Firm’s Main Website.
9.3 Furthermore, the Client shall be deemed to have given his consent to the Firm to receive, transmit, and execute an order or transaction outside a regulated market or an MTF.
10. Client Accounts
10.1 The Client shall open an account with the Firm in order to conduct any Transaction as specified in this Agreement. This Agreement herein is considered effective upon the first funding of the Client’s Account, provided that the Firm has sent the Client written notification of acceptance.
10.2 The Client does not intend to pay third parties utilizing the Account.
10.3 If the Client opens more than one Account, the Firm shall be authorized to deem these different Accounts as a single entity. The Firm reserves the right to handle transferring funds between accounts to in order to cover potential negative balances, without this affecting in any way the other rights of the Firm.
10.4 Any funds received from a Client in a currency for which the Client holds no Account shall be converted by the Firm into the base currency of the Client’s account. The conversion between currencies shall be performed at the exchange rate applied on the day and at the time when the relevant funds are held by the Firm.
11. Safeguarding of Client’s Funds
11.1 When holding Client’s funds, the Firm shall make every possible security measure to safeguard against the use of Client funds for its proprietary accounts.
11.2 Client’s funds will be held in any Client Bank Account which the Firm may denote periodically.
11.3 The Firm will maintain separate records in the accounting system of its own assets and the assets held on behalf of Clients in order to reasonably ensure that assets of one Client are completely distinguishable from proprietary assets and those of other Clients.
12. Transfer of Funds
12.1 The Client shall provide clear documentation and other required information to comply with international regulations related to money laundering and terrorism financing, on the transfer document. It is the Firm’s policy not to accept payments from third parties to be credited to the Client’s Account unless previously prescribed by the Firm.
12.2 All assets transferred by the Client to the Client’s Bank Account will be deposited in the Client’s Bank Account at the “value date” of the received funds and net of any deduction/charges by the Client’s Bank Account providers.
12.3 The Firm has the explicit right to refuse Client funds transferred in any of the following instances (this list is not exhaustive):
- If a third party transferred the funds;
- If person is suspected of not having authorization to transfer the funds and the Firm has reasonable grounds for suspicion;
- If the transfer breaches local legislation.
12.4 In any of the aforementioned situations the Firm will return the funds to the remitter by the same method received with the Client incurring the related Client’s Bank Account provider charges.
12.5 By signing this Agreement the Client gives consent and authorizes the Firm to conduct deposits and withdrawals in a Client’s Bank Account on behalf of the Client including but not limited to settlement of Transactions performed by \the Client or on their behalf, for rendering payment of all amounts due by or on behalf of the Client to the Firm or any other person.
12.6 The Client reserves the right to withdraw funds not applied for margin coverage that remains free from all other obligations related to the Client’s Account without closing the account.
12.7 Unless otherwise agreed upon in writing, any amount transferable from the Firm to the Client shall be directly transferred to the Client’s personal account. Transfer requests are processed by the Firm within the specified time period with the time needed for crediting funds dependent on the Client’s Bank Account provider.
12.8 Client’s withdrawals are to be made employing the same methodology utilized by the Client to fund the Client Account and to the identical remitter. The Firm reserves the right to decline a client withdrawal using a specific payment method, suggest another payment method, request a new withdrawal request, or ask for additional documentation when processing the withdrawal request. The Firm reserves the right to transfer Client’s funds only in the currency in which funds were deposited where applicable. If the Firm is not satisfied with any official client documentation or details, the Firm reserves the right to reverse the withdrawal transaction and redeposit the amount back to the Client’s Account net of any charges or fees incurred from the Client’s Bank Account providers.
12.9 Client asset transfer requests will be conducted from the Firm’s Client portal located on the Main Website. The Firm shall reasonably make every effort to notify clients of all charges, fees and costs prior to any request for a fund transfer.
12.10 The Client acknowledges that in a scenario in which a Client’s Bank Account is frozen for any given period and for any given reason the Firm assumes no responsibility and Client’s funds held by the Firm will also be frozen. Additionally, the Client acknowledges that the Client has read and understood all the information provided on each payment method listed on the Firm’s Client portal.
12.11 By accepting this Agreement the Client consents and authorizes the Firm, when applicable, to transfer funds to another financial institution in which the Client’s funds will be located in a segregated account. The Client also consents to funds being deposited in an omnibus account when relevant.
13. Firm Fees
13.1 For any services provided to the Client as presented under this Agreement, the Firm is entitled to fees and compensation from the Client for the expenses incurred during the execution of services. Periodically, the Firm reserves the right to modify the frequency and amount of fees with Clients notified accordingly.
13.2 The Client agrees that the Firm is entitled to change its fees without consultation or prior written consent from the Client.
13.3 The Client will remunerate the Firm with any amount owed when due, in freely transferable, cleared and available same day funds. The payment will occur in the currency and to the accounts specified without counterclaim, deduction or withholding, unless the Client compliance is required by law.
13.4 The Firm may subtract any sum due and owed by the Client from any and all funds held on behalf of the Client. The Firm will be entitled to merge or conduct transfers from any of the Client’s accounts. The Firm has the right to close any open Client positions for the purpose of settling any obligations owed to the Firm by the Client.
13.5 The Firm is entitled to charge interest on any amounts due and not received from the Client at a rate as representing the cost of funding as reasonably determined by the Firm. Interest will be accruable daily. Additionally, in the event that the Client fails to make the required transfer by the given deadline, the Firm may conduct the sale of Financial Instruments from a Client trading account without advance notification unless previously agreed upon by both the Firm and Client. In such an instance, the Firm will immediately notify the Client of the sale by sending a relevant form of notification.
13.6 The Firm reserves the right to deduct or withhold all forms of tax from any transfer if reasonably obligated according to Applicable Regulations. Should the Client be lawfully required to deduct or withhold any payment, the Client consents to remunerate such an amount to the Firm resulting in the Firm receiving an equivalent amount compared to the full amount which would have conceivably been transferred assuming no deductions or withholdings were required. The Firm may choose to debit sums due from any of the related Client’s accounts.
13.7 The Firm is not liable or responsible for a Client’s tax obligations in relation to potential income taxes, capital gains, or similar taxes imposed by the national jurisdiction on profits or losses related to trading in Financial Instruments.
13.8 The Client acknowledges and accepts that the Firm reserves the right to charge an annual fixed administrative fee in the event no activity, including funding or trading, occurs within one year in cases where funds are insufficient, the Firm will charge a lesser amount and shutter the Client’s account.
13.9 By accepting this Agreement the Client has read, understood and consented to the “Contract Specifications” including all related commission, costs and financing fees as posted on the Firm’s Main Website. The Firm reserves the right to amend commission, costs and financing fees at its discretion with new information immediately made available on the Firm’s Main Website. It is the Client’s responsibility to periodically review the Contracts Specification including prior to placing any orders with the Firm.
14.1 The Firm, further to the fees and charges remunerated by or provided to the Client or on behalf of the Client to another person, as cited in section 13 of this herein Agreement, may remunerate and/or receive fees/commission to/from third-parties, provided that these benefits are designed to enhance the quality of services while not impairing the firms duty to act in the Client’s best interest.
15. Clients Processed by an Introductory Broker
15.1 In the event the Client was referred by an Introductory Broker as defined in the second paragraph of the Agreement based on a prior established Agreement with the Firm, the Firm will provide remuneration to the Introductory Broker as prescribed in the Agreement.
15.2 The Firm compensates Introducing Brokers, or other third parties based on prior written agreements. The structure of compensation is directly related to the frequency and/or volume of transactions performed by Clients referred to the Firm. The Firm is obligated upon Client request to communicate further details regarding the amount of compensation or any other remuneration paid by the Firm to Introductory Brokers, or other third parties.
15.3 The Firm shall not be held liable for any additional fees arising from an existing agreement between the Client and the Introductory Broker.
15.4 The Client understands and acknowledges that the Introductory Broker is not a representative of the Firm nor is the Introductory Broker in any way authorized to provide any performance guarantees on behalf of the Firm or its related services.
15.5 Agreements covering Introductory Brokers prohibit Introductory Brokers from providing any recommendations to clients that could be construed as advisory services.
16.1 Funds credited to a Client’s Account shall not be interest bearing accounts.
16.2 Acceptance of this Agreement requires the Client to provide express consent and waive any rights to receive any interest earned on funds held in the bank accounts of the Firm and additionally consents that any interest earned will benefit the Firm’s efforts to additional charges and fees related to the continued administration of the bank accounts.
17. Force Majeure
17.1 The Firm will not be held liable by the Client for a failure to perform any obligation or discharge any duty owed under this Agreement if the failure results from any cause beyond the Firm’s control, including, without being limited to:
a) Acts of God, war, fire, flood, earthquake or other natural disaster;
b) Terrorist attack, civil war, threat of or preparation for war, imposition of sanctions, explosions;
c) Postal or other strikes or similar industrial actions or disputes;
d) Any law or any action taken by a government or public authority;
e) Any breakdown, or interruption of power supply or failure of utility service or of transmission or communication or computer facilities;
f) Hacker attacks or other illegal actions against the Firm’s electronic Trading Platform or of the equipment of the Firm;
g) The suspension, liquidation or closure of any market or the abandonment or failure of any event to which the Firm relates its Quotes, or the imposition of limits or special or unusual terms on trading in any such market or on any such event
h) the failure of any related party, exchange, clearing house and/or broker to reasonably perform duties duly agreed upon;
17.2 In the event such a scenario occurs and the Firm reasonably believes that Force Majeure Conditions exist, the Firm may, without providing any prior notification to the Client, at any time and without limitations, employ any of the following remedies:
i. Increasing margin requirements;
ii. Determining at the Firm’s discretion the quotes and spreads executable through the Trading Platform;
iii. Decreasing leverage;
iv. Closing out any or all Client’s Open Positions at such prices as the Firm considers in good faith to be applicable;
v. Suspending or freezing or modifying any or all terms of this Agreement to the degree that Force Majeure makes the Firm’s compliance unmanageable or unreasonable;
vi. Suspending the provision of any or all services covered by this Agreement;
vii. Taking or refraining from action the Firm deems reasonable in relation to the position of the Firm, the Client and all the Firm’s other Clients;
18. Conflicts of Interest
18.1 Under Applicable Regulations the Firm is required to prevent and eliminate conflicts of interest between the Firm and its Clients. The Firm will take all reasonable steps to avoid conflicts of interest from arising and in the event conflicts cannot be avoided the Firm will ensure Clients are fairly treated with the highest level of integrity in strict accordance with protection of Client interests.
18.2 The Client acknowledges and accepts that he has read and accepted the “Conflicts of Interest” document.
19. Client Categorization
19.1 The Firm will categorize the Client as a Retail Client in relation to the services offered. This categorization assures the highest level of safeguards in comparison to Professional Clients or Eligible Counterparties.
19.2 The Client may provide written request to be defined as a Professional Client or Eligible Counterparty. However, the final evaluation of changing such a designation lies solely at the Firm’s discretion.
19.3 The Client is responsible for making the firm aware of any change which could materially affect the categorization.
19.4 The Client acknowledges and accepts that he has read and accepted the “Client Categorization” document.
22. Communications Held Between the Firm and Client
22.1 Unless otherwise specified, the Client has to send any notice, instruction, request or other communication in writing to the Firm’s mailing address at Level 5, Development Bank Of Samoa Building, Beach Road, SAMOA or any other address specified by the Firm periodically.
22.2 Notifications may be sent by the Firm to the Client in paper format or by email to a Client’s address provided during registration.
22.3 All notices sent by the Firm or received from Clients should be in the English language unless otherwise specified.
23. Information Provision & Data Protection
23.1 The Client will swiftly deliver any information the Firm may request as evidence for the matters covered in the Agreement or in order to comply with any Applicable Regulations or other material developments, and will provide the Firm with notification should there be any material modifications of the required details.
23.2 The Firm is committed to assuring that personal data held is secured and processed fairly and lawfully in accordance with the Personal Data Law.
23.3 The Firm holds personal data relating to the Client in connection with products and services offered to the extent that the Firm is required or permitted by law. Personal data given to or acquired by the Firm will be utilized to provide the Client with the products and services requested. The Firm reserves the right to notify any third parties of details pertaining to a Client’s personal information and transaction history without warning in situations where the Client is directly or indirectly involved in fraudulent transactions.
24.1 Either party (Firm or Client) can terminate the Agreement by providing five (5) business days of written notice to the other party prior to the termination. During services of the termination notice, a Client is obligated to close all open positions. In the event Client positions remain open during the termination period, the Firm reserves the right to close all of a Client’s open positions.
24.2 Upon termination of this Agreement, the Firm will be entitled to end Client access to the Firm’s Trading Platform, without providing prior notification to the Client.
24.3 The Firm may choose to terminate the Agreement without giving five (5) business days written notification in the following cases:
a) Client death;
b) Bankruptcy related proceedings;
c) Termination as required by a regulatory authority or legal body;
- Violation of any provision of the Agreement and in the Firm’s opinion, the Agreement cannot be applied;
24.4 The Firm may chose to the terminate the Agreement without giving five (5) business days written notification in the following cases and reserves the right to reverse and/or cancel all prior transactions in a Client account, in the following circumstances:
a) Client directly or indirectly involves the firm in any type of fraud, placing the Firm and other Client interests at risk prior to Agreement termination.
b) Firm has reasonable suspicions that Client trading activity affects the reliability and/or orderly operation of the Firm’s Trading Platform.
24.5 Agreement termination will not in any case affect any prior or contractual commitments which were expected to remain in force regardless of the termination. In the event of termination, the Client responsibilities will include:
a) Any pending fees and/or commissions and/or amount payable owed to the Firm;
b) Any additional expenses and/or charges encountered or to be incurred by the Firm as a result of the Agreement termination;
c) Any damages resulting during the arrangement or consequent settlement of pending obligations.
24.6 The Firm reserves the right to deduct all the above listed pending obligations from a Client’s account.
24.7 Upon termination of the Agreement, the Firm shall immediately transfer the Client’s assets in its possession, furthermore providing that the Firm shall be entitled to retain as necessary a Client’s assets required to pay any pending obligations arising from the Agreement.
25. General Provisions
25.1 The Client shall not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer rights or obligations provided by this Agreement or any interest in this Agreement, without the Firm’s prior written consent. Any purported assignment, charge or transfer violating the terms of this clause shall be null and void.
25.2 If the Client is a legal entity or formed by more than one person, liabilities defined under this Agreement shall be held jointly. In the scenario concerning the demise, bankruptcy, winding-up or dissolution of any persons within the legal entity, the obligations and rights of all other such persons under the Agreement remain protected and continue to operate in full force and effect.
25.3 Without prejudice and prior notification, and to any other rights the Firm may be reserved, the Firm may choose to off-set any amount (whether actual or contingent, present or future) at any time, owing to the relationship between the Client and the Firm. The Firm can choose to off-set any owned amounts using any account the Client keeps with the Firm.
25.4 If any provision of this Agreement is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity, or enforceability of the remaining provisions of the Agreement shall be impacted or impaired.
25.5 The Firm’s records, unless shown to be wrong, will provide evidence of Client dealings with the Firm in connection to provided services. The Client will not depend on the Firm’s compliance to assure Client record keeping obligations. Records may nevertheless be made available at the Firm’s discretion upon Client requests.
25.6 The Agreement and all Transactions are subject to Applicable Regulations so that: (i) in the event of any conflict between the Agreement and Applicable Regulations, the second will prevail; (ii) nothing contained in the Agreement shall exclude or prevent any obligation the Firm owes the Client under Applicable Regulations; (iii) the Firm may elects to take or omit action it deems essential to ensure strict compliance with any Applicable Regulations which will be binding for the Client;
25.7 The Agreement may be modified periodically the Firm will provide Clients with notification of the relevant amendments or updated Agreement either in writing or through the Firm’s Main Website. Modifications to the Agreement will not apply to transactions performed prior to the date on which changes become effective unless specifically agreed upon otherwise between the Client and the Firm. Should the Client disagree with the changes, he may terminate the Agreement in accordance with the aforementioned termination paragraph.
26. Representations, Warranties and Covenants:
26.1 The Client represents, warrants, covenants and undertakes to the Firm, both in respect to the Client and any other person for whom the Client acts as an agent, that:
a) The Client is permitted and has the capacity to enter into this Agreement and any Transactions which may arise from this understanding;
b) The Client is over 18 years of age and fully aware of the local laws and regulations governing the entrance into this Agreement.
c) All the information provided in the account registration and compliance processes as well as any other documentation is complete, true and accurate. For any change or modification of the aforementioned information, including change of address, the client remains wholly responsible to notify the Firm of these modifications.
d) The Client confirms that the necessary approvals have been received from related regulatory or legal authorities to apply the services provided for through these Terms and Conditions.
e) The Client has read and fully understood the entirety of the Agreement to which the Client fully acknowledges and agrees;
f) The Client acknowledges that the Firm will not be held responsible for informing the Client for any developments or changes to existing laws, directives, regulations, information and policies implement by any regulatory authority or legal body but the Client should routinely refer to the Firm’s website to review these developments as well as to any other documents that the Firm may periodically publish;
g) The Client approves direct advertising through cold calling by phone, personal representation, e-mail or any other means of electronic communication employed by the Firm;
h) There are no restrictions, conditions or restraints set forth by central banks or any governmental, regulatory or supervisory bodies, dictating Client activities which could preclude or otherwise constrain the Client participation or performance in accordance with this Agreement and/or under any transaction which may arise under the Agreement;
i) Client performance of any transaction in made in accordance with this Agreement does not disrupt or violate any agreement and/or contract with third parties;
j) This Agreement, each Transaction and the obligations created by way of the process are binding upon the Client and enforceable against the Client in accordance with the terms and do not violate the conditions of any Applicable Regulations;
k) To the best of the Client’s knowledge, there exist no pending or anticipated legal proceedings before any court, arbitration court, governmental body, agency or official or any arbitrator that purports to draw into question, or is likely to affect, the legality, validity or enforceability against the Client of this Agreement and any transaction which may arise under them or the Client’s ability to perform obligations duly listed in this Agreement and/or under any transaction which may arise under them in any material respect;
l) Client is not entering into any transaction without a comprehensive understanding of all of the terms, conditions and risks thereof, and the Client is capable of understanding and willing to accept the associated financial risks;
m) Any and all information the Client provides the Firm will be truthful and correct in all material aspects. The Client will have a duty to inform the Firm if the information provided to the Firm becomes false or materially fails to represent the Client’s capacity and ability to transact with the Firm;
n) The Client acknowledges and understands that, participation in any of the Firm’s promotional events will governed bound by the terms and conditions of the applicable promotion at the time in the country of residence by entering into this Agreement;
o) No event of default and bankruptcy has previously occurred or is presently continuing;
27. Firm Liability
27.1 The Firm will not be liable for any losses, liabilities or costs suffered or incurred by the Client as a result of providing the services set forth and described in this Agreement unless the loss, liability or cost is caused by the Firm’s gross negligence, willful default or deceit committed while acting on the Client’s instructions.
27.2 The Firm will not be liable for any losses, liabilities or costs incurred by the Client as a result of the negligence, willful default or fraud of any kind committed by a third party (e.g. bank, electronic payment provider, etc.) which The Firm has carefully (within reason) selected.
27.3 Neither The Firm or any Third party acting on behalf of The Firm in the provision of a service to the Client, be they affiliated with The Firm or not, nor the Directors, officers, agents, or representatives of The Firm, nor The Firm itself, will be held liable to the client (unless there is a case of Fraud) for any loss (incidental, punitive or exemplary), or any liability or cost suffered or incurred by the client stemming from The Firm’s acts or omissions under this agreement, regardless of how the loss, liability, or cost arose and regardless of if it was foreseeable or not. For the purpose of this section, “consequential loss, liability, or cost” is defined as any loss, liability, or cost that stems from the Client’s inability to sell financial instruments where prices are falling, or being unable to purchase financial instruments where prices are rise, or an inability to enter into or execute a trade that requires the Client to dispose or purchase Financial Instruments or other losses stemming from loss of business, profits, goodwill or data and any indirect, special, incidental, consequential, punitive or exemplary loss, liability or costs regardless of whether they arise from negligence, breach of contract or otherwise and if they could be foreseen or not.
27.4 Nothing in this Agreement excludes or limits our liability if any such exclusion or limitation is prohibited by Applicable Law.
28. Governing Language
This agreement and any additional agreement hereafter (both in present and future) will be made in English. Other language translations are only provided as conveniences. If there is an inconsistency or difference in an original English Version of text and their translations, the original English Version will be used as valid.
Made on _______________________, 201____
Sign: _________________________ Sign: _________________________
THE FIRM THE CLIENT