This client agreement, together with any Schedule(s), Annexes, and other accompanying
documents, as amended from time to time, (this “Agreement”) sets out the terms of the contract
between you and us. It is, therefore, very much in your interest to read it carefully.
Client Classification
Each client with whom the firm does business is categorised to identify the level of regulatory protection to be applied. There are three possible client classifications that must apply, retail, professional and eligible counterparty.
1. GENERAL INFORMATION
1.1 Information about us: We, Foreign Currency Innovations Limited (“FCI”), are authorised and
regulated by the Financial Conduct Authority (“FCA”) with registration number 616985. Our
registered office is Suite 1C, Union House, 117 High Street, Billericay, CM12 9AH, United Kingdom.
The FCA’s registered office is Financial Conduct Authority, 12 Endeavour Square, London E20 1JN.
1.2 Communication with us: You may communicate with us in writing (including fax), by email or
other electronic means, or orally (including by telephone). The main language of communication
shall be English, and you will receive documents and other information from us in English, unless
otherwise requested by you and provided to you in our sole discretion and within available
resources. Our website contains further details about us and our services, and other information
relevant to this Agreement. In the event of any conflict between the terms of this Agreement and
our website, this Agreement will prevail.
1.3 Capacity: We act as matched principal and in an agency capacity on your behalf in respect of
Spot forex, contracts for differences and over the counter products. We have classified you as a
Professional, Retail or Eligible Counterparty client for the purposes of the FCA Rules. We will notify
you of such classification based on the information you have provided us in your application form or
in any other subsequent form we have requested you to complete
1.4 You have the right to request a different client categorization but we may decline such a request
1.5 You confirm that you act as principal and not as agent or trustee on behalf of someone else. We
may agree for you to act as an agent or trustee on behalf of the client. If we agree it will be in writing
and you will be notified of the same.
1.6 Commencement: This Agreement supersedes any previous agreement between you and us on
the same subject matter, and takes effect when you signify acceptance of this Agreement or when
you give us an order to enter into a Transaction. This Agreement shall apply to all Transactions
contemplated under this Agreement. In the event of any conflict between the clauses of this
Agreement and the terms of any other material distributed by us the clauses of this Agreement shall
prevail.
1.7 Subject to Applicable Regulations: This Agreement and all Transactions are subject to Applicable
Regulations so that:
(i) if there is any conflict between this Agreement and any Applicable Regulations, the latter will prevail;
(ii) nothing in this Agreement shall exclude or restrict any obligation which we have to you under Applicable Regulations;
(iii) we may take or omit to take any action we consider necessary to ensure compliance with any Applicable Regulations;
(iv) all Applicable Regulations and whatever we do or fail to do in order to comply with them will be binding on you; and
(v) such actions that we take or fail to take for the purpose of compliance with any Applicable Regulations shall not render us or any of our directors, officers, employees or agents liable.
1.8 Market action: If a Market (or intermediate broker or agent, acting at the direction of, or as a
result of action taken by, a Market) or regulatory body takes any action which affects a Transaction,
then we may take any action which we, in our reasonable discretion, consider desirable to
correspond with such action or to mitigate any loss incurred as a result of such action. Any such
action shall be binding on you. If a Market or regulatory body makes an enquiry in respect of any of
your Transactions, you agree to co-operate with us and to promptly supply information requested in
connection with the enquiry.
1.9 Scope of this Agreement: This Agreement sets out the basis on which we will provide services to
you. This Agreement governs each Transaction entered into or outstanding between us on or after
the execution of this Agreement.
1.10 Charges: You shall pay our charges as agreed with you from time to time, any taxes imposed by
any competent authority on any account opened or Transaction effected by or cleared for you; any
fees or other charges imposed by a Market or any clearing organisation; interest on any amount due
to us at the rates then charged by us (and which are available on request); and any other value
added or other applicable taxes of any of the foregoing, including any withholding tax. We will notify
you of our current charges. Any alteration to charges will be notified to you before the time of the
change.
1.11 Costs resulting from use of distance means: In addition to the costs set out above, additional
costs may be payable by you by virtue of the fact that this contract is entered into via email,
telephone or fax or other distance means.
1.12 Additional costs: You should be aware of the possibility that other taxes or costs may exist that are not paid through or imposed by us.
1.13 Payments: All payments to us under this Agreement shall be made in such currency as we may from time to time specify to the bank account designated by us for such purposes. All such payments shall be made by you without any deduction or withholding.
1.14 Remuneration and sharing of charges: We may receive remuneration from, or share charges with, an Associate or other third party in connection with Transactions carried out on your behalf.
1.15 Description of Service: A description of the main characteristics of the service we will provide is enclosed.
1.16 Language and minimum duration: This Agreement is supplied to you in English and we will
continue to communicate with you in English for the duration of this Agreement. The minimum duration of this Agreement shall be the earlier of settlement of the first trade in respect of which
you instruct us or the occurrence of an Event of Default.
1.17 Conflicts of Interest: We, our Associates or other persons or companies connected with us may
have a relationship or arrangement that is material in relation to any transaction or Contract
affected, or advice provided by us, under the terms of this Agreement. By accepting the terms of this
Agreement. You agree that we may transact such business without prior reference to any potential
specific conflict of interest.
2. ADVICE
2.1 Information from you: WE DO NOT PROVIDE AN ADVISORY SERVICE
2.2 Investment research and other published information: We may from time to time send published
research reports and other publications to you. If the document contains a restriction on the person
or category of persons for whom that document is intended or to whom it is distributed, you agree
that you will not pass it on to any such person or 8.1 category of persons. We make no
representations as to the time of receipt by you of research reports and cannot guarantee that you
will receive such research reports at the same time as other clients. We shall not be liable for any
investment decision you make, based in whole or in part, on any investment research report or
other publication we send to you. Any such published research reports or publications may appear in
one or more information services.
2.3 Tax advice: We will not provide any tax advice. In addition, we shall not at any time be deemed to be under any duty to provide tax advice.
3. YOUR INFORMATION
3.1 Confidentiality and data protection: Subject to the following we will treat all information we hold
about you as private and confidential. You agree, however, that we and other companies in our
group may:
(i) use your information to administer and operate your account and monitor and analyse its
conduct, provide services to you, assess any credit limit or other credit decision (and the
interest rate, fees and other charges to be applied to your account) and enable us to carry
out statistical and other analysis;
(ii) disclose your information to other companies in our group; those who provide services to
us or act as our agents; anyone to whom we transfer or propose to transfer any of our rights
or duties under this Agreement; credit reference agencies or other organisations that help
us and others make credit decisions and reduce the incidence of fraud or in the course of
carrying out identity, fraud prevention or credit control checks; where we are required to do
so by Applicable Regulations, there is a public duty to disclose or our interests require
disclosure; at your request; or with your consent (and in the case of a joint account, we may
disclose to any of you information obtained by us from any of you in relation to the
account);
(iii) use your information, unless you have told us that you do not wish us to do so, to inform
you (by post, telephone, email or other medium, using the contact details you have given us)
about products and services offered by us, other companies in our group or selected third
parties which we believe may be of interest to you; and
(iv) transfer your information to any country, including countries outside the European
Economic Area which may not have strong data protection laws, for any of the purposes
described in this clause.3.2 Your rights: You may have rights of access to some or all of the
information we hold about you, to have inaccurate information corrected and to tell us that
you do not wish to receive marketing information, under data protection law. If you wish to
exercise any of these rights, please contact us in writing.
4. INSTRUCTIONS & BASIS OF DEALING
4.1 Placing of instructions: You may give us instructions for Transactions by electronic means
on the electronic trading system, or orally (including by telephone), unless we tell you that
instructions can only be given in a particular way. If you give instructions by telephone, your
conversation may be recorded. If any instructions are received by us by telephone,
computer or other medium we may ask you to confirm such instructions in writing or by
other electronic means. We shall be authorised to follow instructions notwithstanding your
failure to confirm them in writing or by other electronic means. In this Agreement
“instructions” and “orders” have the same meaning.
4.2 Authority: Electronic Services includes any trading, direct market access order routing or
information services that we grant you access to or make available to you directly or through
a third party service provider, and used by you to view the information and/or enter into
Transactions. We shall be entitled to act for you upon instructions given or purporting to be
given by you or any person authorised on your behalf without further enquiry as to the
genuineness, authority or identity of the person giving or purporting to give such
instructions.
4.3 Cancellation/withdrawal of instructions: We can only cancel your instructions if we have
not acted upon those instructions. Instructions may only be withdrawn or amended by you
with our consent.
4.4 Right not to accept orders: We may, but shall not be obliged to, accept instructions to
enter into a Transaction. If we decline to enter into a proposed Transaction, we shall not be
obliged to give a reason but we shall promptly notify you accordingly. We make no
obligation to accept, or to execute or cancel, all or any part of a transaction that you seek to
execute or cancel through the Electronic Service. We have no responsibility for transmissions
that are inaccurate or are not received by us, and may execute any transaction on the terms
actually received by us.
4.5 Control of orders prior to execution: We have the right (but no obligation) to set limits
and/or parameters to control your ability to place orders at our absolute discretion. Such
limits and/or parameters may be amended, increased, decreased, removed or added to by
us at our absolute discretion and may include (without limitation):
controls over maximum order amounts and maximum order sizes;
(ii) controls over our total exposure to you;
(iii) controls over prices at which orders may be submitted (to include (without
limitation) controls over orders which are at a price which differs greatly from the
market price at the time the order is submitted to the order book);
(iv) controls over the Electronic Services (to include (without limitation) any
verification procedures to ensure that any particular order or orders has come from
you); or
(v) any other limits, parameters or controls which we may be required to implement
in accordance with Applicable Regulations.
4.6 Execution of orders: We provide execution-only services. Your orders may be routed to
an affiliate of FCI, or subsidiary of FCI. We shall use our reasonable endeavours to execute
any order promptly, but in accepting your orders we do not represent or warrant that it will
be possible to execute such order or that execution will be possible according to your
instructions. If we encounter any material difficulty relevant to the proper carrying out of an
order on your behalf we shall notify you promptly. We shall carry out an order on your
behalf only when the relevant Market is open for dealings, and we shall deal with any
instructions received outside Market hours as soon as possible when that relevant Market is
next open for business (in accordance with the rules of that Market). You agree that we may
execute an order on your behalf outside a Market. When you give us a specific instruction,
our order execution policy will not apply, and we may be unable to take the steps described
in such policy to obtain the best possible result in executing your order. You confirm that
you have read and agree to our order execution policy and best execution policy contained
in the Schedule to this Agreement. We will notify you of any material changes to our order
execution policy, but it is your responsibility to check for any other changes to our order
execution policy as published from time to time. We will consider the continued placement
of orders by you to constitute your continued consent to our order execution policy as in
effect from time to time.
4.7 Crossing of orders: We may arrange for a Transaction to be executed, either in whole or
in part, by selling an investment to you from another client, or a client of an Associate of
ours, or vice-versa. We shall not give you prior notice if we arrange for a Transaction to be
executed in this manner.
4.8 Aggregation of orders: We may combine your order with our own orders and orders of
other clients. By combining your orders with those of other clients, we must reasonably
believe that this is in the overall best interests of our clients. However, aggregation may
result in you obtaining a less favourable price in relation to a particular order.
4.9 Confirmations: We may provide you access to view your account at any time with an
online login via the Internet. You may run reports of the confirmation of orders and
statements of accounts. It is your responsibility to inform us of the non- receipt of a
confirmation, or whether any confirmations are incorrect before settlement. Confirmations
shall, in the absence of manifest error, be conclusive and binding on you, unless we receive
from you objection in writing within one (1) Business Day after the execution of your order
or we notify you of an error in the confirmation within the same period. We reserve the
right to reverse trades in the event of manifest error or fraud.
4.10 Performance and settlement: When appropriate, you will promptly deliver any
instructions, money, documents or property deliverable by you under a Transaction in
accordance with that Transaction as modified by any instructions given by us for the purpose
of enabling us to perform our obligations under the relevant matching Transaction on a
Market or with an intermediate broker.
4.11 Intermediate brokers and other agents: We may, at our entire discretion, arrange for
any Transaction to be effected with or through the agency of an intermediate broker, who
may be an Associate of ours, and may not be in the United Kingdom. Neither we, nor our
respective directors, officers, employees or agents will be liable to you for any act or
omission of an intermediate broker or agent. No responsibility will be accepted for
intermediate brokers or agents selected by you.
4.12 Position limits: We may require you to limit the number of open positions which you
may have with us at any time and we may in our sole discretion close out any one or more
Transactions in order to ensure that such position limits are maintained.
4.13 Trade Reporting: Under Applicable Regulations, we may be obliged to make
information about certain Transactions public. You agree and acknowledge that any and all
proprietary rights in such Transaction information are owned by us and you waive any duty
of confidentiality attaching to the information which we reasonably disclose.
5. ELECTRONIC TRADING TERMS
5.1 Scope: These clauses apply to your use of any Electronic Services.
5.2 Access: Once you have gone through the security procedures associated with an Electronic
Service provided by us, you will get access to such service, unless agreed otherwise or stated on our
website. Please consult our website for more details on operating times. We may change our
security procedures at any time and we will tell you of any new procedures that apply to you as soon
as possible.
5.3 Restrictions on services provided: There may be restrictions on the number of Transactions that
you can enter into on any one day and also in terms of the total value of those Transactions when
using an Electronic Service. You acknowledge that some Markets place restrictions on the types of
orders that can be directly transmitted to their electronic trading systems. These types of orders are
sometimes described on synthetic orders. The transmission of synthetic orders to the Market is
dependent upon the accurate and timely receipt of prices or quotes from the relevant Market or
market data provider. You acknowledge that a Market may cancel a synthetic order when upgrading
its systems, trading screens may drop the record of such an order, and you enter such orders at your
own risk.
5.4 Right Of Access: In respect of any Market to which we allow you to submit orders or receive
information or data using Electronic Services, we may at any time or times, on reasonable notice
(which, in certain circumstances, may be immediate) enter (or instruct our or the Market’s
subcontractors to enter) your premises and inspect your System to ensure that it complies with the
requirements notified by us to you from time to time and that you are using Electronic Services in
accordance with this Agreement and any requirements of any relevant Market or Applicable
Regulations.
5.5 Access requirements: You will be responsible for providing the System to enable you to use an
Electronic Service.
5.6 Virus detection: You will be responsible for the installation and proper use of any virus
detection/scanning program we may require from time to time.
5.7 Use of information, data and software: In the event that you receive any data, information or
software via an Electronic Service other than that which you are entitled to receive pursuant to this
Agreement, you will immediately notify us and will not use, in any way whatsoever, such data,
information or software.
5.8 Maintaining standards: When using any FCI Electronic Service you must:
(i)ensure that the System is maintained in good order and is suitable for use with such
Electronic Service;
(ii) run such tests and provide such information to us as we shall reasonably consider
necessary to establish that the System satisfies the requirements notified by us to you from
time to time;
(iii) carry out virus checks on a regular basis;
(iv) inform us immediately of any unauthorised access to an Electronic Service or any
unauthorised transaction or instruction which you know of or suspect and, if within your
control, cause such unauthorised use to cease; and
(v) not at any time leave the terminal from which you have accessed such Electronic Service
or let anyone else use the terminal until you have logged off such Electronic Service
5.9 System defects: In the event you become aware of a material defect, malfunction or virus in the
System or in an Electronic Service, you will immediately notify us of such defect, malfunction or virus
and cease all use of such Electronic Service until you have received permission from us to resume
use.
5.10 Intellectual Property: All rights in patents, copyrights, design rights, trademarks and any other
intellectual property rights (whether registered or unregistered) relating to the Electronic Services
remain vested in us or our licensors. You will not copy, interfere with, tamper with, alter, amend or
modify the Electronic Services or any part or parts thereof unless expressly permitted by us in
writing, reverse compile or disassemble the Electronic Services, nor purport to do any of the same or
permit any of the same to be done, except in so far as such acts are expressly permitted by law. Any
copies of the Electronic Services made in accordance with law are subject to the terms and
conditions of this Agreement. You shall ensure that all the licensors’ trademarks and copyright and
restricted rights notices are reproduced on these copies. You shall maintain an up-to-date written
record of the number of copies of the Electronic Services made by you. If we so request, you shall as
soon as reasonably practical, provide to us a statement of the number and whereabouts of copies of
the Electronic Services.
5.11 Liability and Indemnity: Without prejudice to any other terms of this Agreement, relating to the
limitation of liability and provision of indemnities, the following clauses shall apply to our Electronic
Services.
(i) System errors: We shall have no liability to you for damage which you may suffer as a
result of transmission errors, technical faults, malfunctions, illegal intervention in network
equipment, network overloads, malicious blocking of access by third parties, internet
malfunctions, interruptions or other deficiencies on the part of internet service providers.
You acknowledge that access to Electronic Services may be limited or unavailable due to
such system errors, and that we reserve the right upon notice to suspend access to
Electronic Services for this reason.
(ii) Delays: Neither we nor any third party software provider accepts any liability in respect
of any delays, inaccuracies, errors or omissions in any data provided to you in connection
with an Electronic Service
(iii) Viruses from an Electronic Service: We shall have no liability to you (whether in contract
or in tort, including negligence) in the event that any viruses, worms, software bombs or
similar items are introduced into the System via an Electronic Service or any software
provided by us to you in order to enable you to use the Electronic Service, provided that we
have taken reasonable steps to prevent any such introduction.
(iv) Viruses from your System: You will ensure that no computer viruses, worms, software
bombs or similar items are introduced into our computer system or network and will
indemnify us on demand for any loss that we suffer arising as a result of any such
introduction
(v) Unauthorised use: We shall not be liable for any loss, liability or cost whatsoever arising
from any unauthorised use of the Electronic Service. You shall on demand indemnify, protect
and hold us harmless from and against all losses, liabilities, judgements, suits, actions,
proceedings, claims, damages and costs resulting from or arising out of any act or omission
by any person using an Electronic Service by using your designated passwords, whether or
not you authorised such use
(vi) Markets: We shall not be liable for any act taken by or on the instruction of a Market,
clearing house or regulatory body.
5.12 Suspension or permanent withdrawal with notice: We may suspend or permanently withdraw
an Electronic Service, by giving you one day written notice.
5.13 Immediate suspension or permanent withdrawal: We have the right, unilaterally and with
immediate effect, to suspend or withdraw permanently your ability to use any Electronic Service, or
any part thereof, without notice, where we consider it necessary or advisable to do so, for example
due to your non-compliance with the Applicable Regulations, breach of any provisions of this
Agreement, on the occurrence of an Event of Default, network problems, failure of power supply, for
maintenance, or to protect you when there has been a breach of security. In addition, the use of an
Electronic Service may be terminated automatically, upon the termination (for whatever reason) of
(i) any license granted to us which relates to the Electronic Service; or (ii) this Agreement. The use of
an Electronic Service may be terminated immediately if an Electronic Service is withdrawn by any
Market or we are required to withdraw the facility to comply with Applicable Regulations.
5.14 Effects of termination: In the event of a termination of the use of an Electronic Service for any
reason, upon request by us, you shall, at our option, return to us or destroy all hardware, software
and documentation we have provided you in connection with such Electronic Service and any copies
thereof.
6. CLIENT MONEY
FCI is authorised to receive or hold and control client funds. Only for this clause 6 Client Money the words “we”, “us” shall mean FCI Markets Ltd
6.1 Client money: You agree and acknowledge that full title to and ownership of all Relevant
Amounts that has been transferred by you to us or otherwise passed to us for the purpose of
securing or otherwise covering your present or future, actual or contingent or prospective
obligations, and that such funds do not constitute and shall not at any time be deemed to constitute
client money for purposes of the FCA Rules. Your funds will not be segregated in furtherance of FCA
Client Money Rules. You will rank as a general creditor of FCI. Should you request us to segregate
your funds, and we agreed to do so, then FCA Client Money Rules will apply.
6.2 Subject to the following paragraph, Where we agree to hold money transferred to us by you as
“client money”, we shall treat this money as defined by the FCA Rules.
6.3 We shall treat money received from you or held by us on your behalf in accordance with the FCA
Rules in respect of client money. Accordingly, subject to these Terms, we will segregate upon your
written request and our written consent, your money from ours in a bank account at an approved
bank within the FCA Rules. This is a client money account held by Foreign Currency Innovations
Limited as trustee and the bank is not entitled to combine it with any other account or to exercise
any right of set-off or counterclaim against money in that account in respect of any sum we owe the
bank.
6.4 Use of margin: In light of your classification as a Professional Client or Eligible Counterparty, you
agree that we will treat all margin payments made by you to us (including margin transferred from
sums previously held by us on deposit for you) as having been transferred to us for the purpose of
securing or covering your present, future, actual, contingent or prospective obligations. Accordingly,
where you pay margin money to us, we will thereby acquire full ownership of it and we will not hold
such money in accordance with the Client Money Rules. You will not have any interest in or
proprietary claim over money transferred to us pursuant to this clause and we can deal with it as our
own. In the event of our insolvency you will have no rights or claim in relation to this money. We will
transfer an equivalent amount of money back to you where, in our reasonable discretion, we
consider that it is no longer necessary for us to retain the money you have paid to us. In determining
the amount of money you will be required to pay to us pursuant to this clause and whether it is
necessary to retain such money, we may apply such a methodology (including your trading history,
judgements as to the future movement of markets and value) as we consider appropriate, consistent
with this Agreement and applicable law and regulations.
6.5 Passing money to third parties: We may pass money received from you to a third party (e.g. a
market, intermediate broker, OTC counterparty or clearing house) to hold or control in order to
effect a Transaction through or with that person or to satisfy your obligation to provide collateral
(e.g. initial margin requirement) in respect of a Transaction. We have no responsibility for any acts or
omissions of any third party to whom we pass money received from you. The third party to whom
we pass money may hold it in an omnibus account and it may not be possible to separate it from our
money, or the third party’s money. In the event of the insolvency or any other analogous
proceedings in relation to that third party, we will only have an unsecured claim against the
thirdparty on behalf of you and our other clients, and you will be exposed to the risk that the money
received by us from the third party is insufficient to satisfy the claims of you and all other clients
with claims in respect of the relevant account.
6.6 Overseas banks, intermediate broker, settlement agent or OTC counterparty: We may hold client
money on your behalf outside the EEA. The legal and regulatory regime applying to any such bank or
person will be different from that of the United Kingdom and in the event of the insolvency or any
other analogous proceedings in relation to that bank or person, your money may be treated
differently from the treatment which would apply if the money was held with a bank in an account
in the United Kingdom. We will not be liable for the insolvency, acts or omissions of any third party
referred to in this sub-clause.
6.7 Unclaimed client money: You agree that we may cease to treat your money as client money if
there has been no movement on your balance for six years. We shall write to you at your last known
address informing you of our intention of no longer treating your balance as client money and giving
you 28 days to make a claim.
7. MARGINING ARRANGEMENTS
7.1 Contingent liability: Where we effect or arrange a Transaction involving an option, future or
contract for differences you should note that, depending upon the nature of the Transaction, you
may be liable to make further payments when the Transaction fails to be completed or upon the
earlier settlement or closing out of your position. You will be required to make further variable
payments by way of margin against the purchase price of the investment, instead of paying (or
receiving) the whole purchase (or sale) price immediately. The movement in the market price of
your investment will affect the amount of margin payment you will be required to make. For
margining arrangements of forex accounts please refer to the Forex Annex.
7.2 Margin call: You agree to pay us on demand such sums by way of margin as are required from
time to time under the Rules of any relevant Market (if applicable) or as we may in our discretion
reasonably require for the purpose of protecting ourselves against loss or risk of loss on present,
future or contemplated Transactions under this Agreement.
7.3 Failure to meet margin call: Please note that in the event that you fail to meet a margin call, we
may close the position unless we have previously granted you a loan or credit in accordance with
Applicable Regulations.
7.4 Form of margin: Unless otherwise agreed, margin must be paid in cash. The currency of the cash
margin you pay to us shall be the currency of the relevant underlying Transaction (if applicable) or as
we may in our discretion reasonably decide from time to time. Cash margin is paid to us as an
outright transfer of title and you will not retain any interest in it. Cash margin received by us will be
recorded by us as a cash repayment obligation owed by us to you.
7.5 Set-off on default: If there is an Event of Default or this Agreement terminates, we shall set-off
the balance of cash margin owed by us to you against your obligations (as reasonably valued by us)
to us. The net amount, if any, payable between us following such set-off, shall take into account the
Liquidation Amount payable under the Clause headed “Netting” of this Agreement.
7.6 Security interest: As a continuing security for the performance of the Secured Obligations under
or pursuant to this Agreement, you grant to us, with full title guarantee, a first fixed security interest
in all non-cash margin now or in the future provided by you to us or to our order or under our
direction or control or that of a Market or otherwise standing to the credit of your account under
this Agreement or otherwise held by us or our Associates or our nominees on your behalf.
7.7 Further assurance: You agree to execute such further documents and to take such further steps
as we may reasonably require to perfect our security interest over, be registered as owner of or
obtain legal title to the margin, secure further the Secured Obligations, enable us to exercise our
rights or to satisfy any market requirement.
7.8 Substitution: You may not withdraw or substitute any property subject to our security interest
without our consent.
7.9 Negative pledge: You undertake neither to create nor to have outstanding any security interest
whatsoever over, nor to agree to assign or transfer, any of the cash or non-cash margin transferred
to us, except a lien routinely imposed on all securities in a clearing system in which such securities
may be held.
7.10 Power to charge: You agree that we may, to the extent that any of the margin constitutes
“financial collateral” and this Agreement and your obligations hereunder constitute a “security
financial collateral arrangement” (in each case as defined in, and for the purposes of, the Financial
Collateral Arrangements (No. 2) Regulations 2003 (SI 2003 No. 3226), free of any adverse interest of
yours or any other person, grant a security interest over margin provided by you to cover any of our
obligations to an intermediate broker or Market, including obligations owed by virtue of the
positions held by us or other of our clients.
7.11 Power of sale: If an Event of Default occurs, we may exercise the power to sell all or any part of
the margin. The restrictions contained in Sections 93 and 103 of the Law of Property Act 1925 shall
not apply to this Agreement or to any exercise by us of our rights to consolidate mortgages or our
power of sale. We shall be entitled to apply the proceeds of sale or other disposal in paying the costs
of such sale or other disposal and in or towards satisfaction of the Secured Obligations.
7.12 Power of appropriation: To the extent that any of the margin constitutes “financial collateral”
and this Agreement and your obligations hereunder constitute a “security financial collateral
arrangement” under the Regulations, we shall have the right to appropriate all or any part of such
financial collateral in or towards discharge of the Secured Obligations. For this purpose, you agree
that the value of such financial collateral so appropriated shall be the amount of the margin,
together with any accrued but unposted interest, at the time the right of appropriation is exercised.
The parties further agree that the method of valuation provided for in this Agreement shall
constitute a commercially reasonable method of valuation for the purposes of the Regulations.
7.13 General lien: In addition and without prejudice to any rights to which we may be entitled under
this Agreement or any Applicable Regulations, we shall have a general lien on all property held by us
or our Associates or our nominees on your behalf until the satisfaction of the Secured Obligations.
7.14 Definition: “Secured Obligations” means the net obligation owed by you to us after the
application of set-off under the clause headed “Set-off on default” in this Clause.
8. REPRESENTATIONS, WARRANTIES AND COVENANTS
8.1 Representations and warranties: You represent and warrant to us on the date this Agreement
comes into effect and as of the date of each Transaction that:
(i) if you are an individual you warrant that you have reached the age of 18 years or over and
have full capacity to enter into this Agreement;
(ii) if you are a company or body corporate you are properly empowered and have obtained
all necessary corporate or other authority under your memorandum and articles of
association or other constitutional documents;
(iii) you have all necessary authority, powers, consents, licenses and authorisations and have
taken all necessary action to enable you lawfully to enter into and perform this Agreement
and such Transaction and to grant the security interests and powers referred to in this
Agreement;
(iv) the persons entering into this Agreement and each Transaction on your behalf have
been duly authorised to do so;
(v) this Agreement, each Transaction and the obligations created under them both are
binding upon you and enforceable against you in accordance with their terms (subject to
applicable principles of equity) and do not and will not violate the terms of any regulation,
order, charge or agreement by which you are bound;
(vi) no Event of Default or any event which may become (with the passage of time, the giving
of notice, the making of any determination or any combination of the above) an Event of
Default (a “Potential Event of Default”) has occurred and is continuing with respect to you or
any Credit Support Provider;
(vii) you act as principal and sole beneficial owner (but not as trustee) in entering into this
Agreement and each Transaction;
(viii) any information which you provide or have provided to us in respect of your financial
position, domicile or other matters is accurate and not misleading in any material respect.
You will be responsible to notify us of any change in ownership, domicile;
· (ix) You agree that for the duration of this Agreement you will promptly notify us of any
change to the details supplied by you on your Application Form, or any subsequent
information form, including in particular moving to another country or territory or any
change or anticipated change in your financial circumstances, regulatory status,
shareholders, directors or Traders which may affect the basis on which we do business with
you
(x) you are willing and financially able to sustain a total loss of funds resulting from
Transactions;
(xi) you have sought and received independent tax advice from a competent licensed tax
professional;
(xii) except as otherwise agreed by us, you are the sole beneficial owner of all margin you
transfer under this Agreement, free and clear of any security interest whatsoever other than
a lien routinely imposed on all securities in a clearing system in which such securities may be
held.
8.2 Covenants: You covenant to us that:
(i) you will at all times obtain and 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;
(ii) you will promptly notify us of the occurrence of any Event of Default or Potential Event of
Default with respect to yourself or any Credit Support Provider;
(iii) you will use all reasonable steps to comply with all Applicable Regulations in relation to
this Agreement and any Transaction, so far as they are applicable to you or us;
(iv) you will not send orders or otherwise take any action that could create a false
impression of the demand or value for a security financial instrument, or send orders which
you have reason to believe are in breach of Applicable Regulations. You shall observe the
standard of behaviour reasonably expected of persons in your position and not take any step
which would cause us to fail to observe the standard of behaviour reasonably expected of
persons in our position; and
(v) upon demand, you will provide us with such information as we may reasonably require to
evidence the matters referred to in this clause or to comply with any Applicable Regulations.
9. EVENTS OF DEFAULT
9.1 Events of Default: The following shall constitute Events of Default:
(i) you fail to make any payment when due under this Agreement or to make or take delivery
of any property when due under, or to observe or perform any other provision of this
Agreement and such failure continues for one Business Day after notice of non-performance
has been given by the Non-Defaulting Party to the Defaulting Party;
(ii) you commence a voluntary case or other procedure seeking or proposing liquidation,
reorganisation, an arrangement or composition, a freeze or moratorium, or other similar
relief with respect to you or your debts under any bankruptcy, insolvency, regulatory,
supervisory or similar law (including any corporate or other law with potential application to
you, if insolvent), or seeking the appointment of a trustee, receiver, liquidator, conservator,
administrator, custodian or other similar official (each a “Custodian”) of you or any
substantial part of your assets, or if you take any corporate action to authorise any of the
foregoing, and in the case of a reorganisation, arrangement or composition, we do not
consent to the proposals;
(iii) an involuntary case or other procedure is commenced against you seeking or proposing
liquidation, reorganisation, an arrangement or composition, a freeze or moratorium, or
other similar relief with respect to you or your debts under any bankruptcy, insolvency,
regulatory, supervisory or similar law (including any corporate or other law with potential
application to you, if insolvent) or seeking the appointment of a Custodian of you or any
substantial part of your assets and such involuntary case or other procedure either (a) has
not been dismissed within five days of its institution or presentation or (b) has been
dismissed within such period but solely on the grounds of an insufficiency of assets to cover
the costs of such case or other procedure;
(iv) you die, become of unsound mind, are unable to pay your debts as they fall due or are
bankrupt or insolvent, as defined under any bankruptcy or insolvency law applicable to you;
or any indebtedness of yours is not paid on the due date therefore, or becomes capable at
any time of being declared, due and payable under agreements or instruments evidencing
such indebtedness before it would otherwise have been due and payable, or any suit, action
or other proceedings relating to this Agreement are commenced for any execution, any
attachment or garnishment, or distress against, or an encumbrance takes possession of, the
whole or any part of your property, undertaking or assets (tangible and intangible);
(v) you or any Credit Support Provider (or any Custodian acting on behalf of either of you or
a Credit Support Provider) disaffirms, disclaims or repudiates any obligation under this
Agreement or any guarantee, hypothecation agreement, margin or security agreement or
document, or any other document containing an obligation of a third party (“Credit Support
Provider”), or of you, in favour of us supporting any of your obligations under this
Agreement (each a “Credit Support Document”);
(vi) any representation or warranty made or given or deemed made or given by you under
this Agreement and any information included in the supporting documentation provided by
you, or any Credit Support Document proves to have been false or misleading in any
material respect as at the time it was made or given or deemed made or given;
(vii) (a)any Credit Support Provider fails, or you yourself fail to comply with or perform any
agreement or obligation to be complied with or performed by you or it in accordance with
the applicable Credit Support Document;(b) any Credit Support Document expires or ceases
to be in full force and effect prior to the satisfaction of all your obligations under this
Agreement, unless we have agreed in writing that this shall not be an Event of Default;(c)
any representation or warranty made or given or deemed made or given by any Credit
Support Provider pursuant to any Credit Support Document proves to have been false or
misleading in any material respect as at the time it was made or given or deemed made or
given; or(iv) any event referred to in paragraphs (b) to (d) or (h) of this sub-clause occurs in
respect of any Credit Support Provider;
(viii) you are dissolved, or, if your capacity or existence is dependent upon a record in a
formal register, the registration is removed or ends, or any procedure is commenced seeking
or proposing your dissolution, removal from such a register, or the ending of such a
registration;
(ix) where you or your Credit Support Provider is a partnership, any of the events referred to
in paragraphs (b) to (d) or (h) of sub-clause 1 of this clause occurs in respect of one or more
of your or its partners;
(x) we consider it necessary or desirable to prevent what we consider is or might be a
violation of any Applicable Regulation or good standard of market practice;
(xi) we consider it necessary or desirable for our own protection or any action is taken or
event occurs which we consider might have a material adverse effect upon your ability to
perform any of your obligations under this Agreement;
(xii) any event of default (however described) occurs in relation to you under any other
agreement between us which you are a party to or any other event specified.
10. NETTING
10.1 Rights on Default: On the occurrence of an Event of Default, we may exercise our rights under
this clause, except that, if so specified by us, in the case of the occurrence of any Event of Default
specified in paragraphs (b) or (c) of the definition of Events of Default (each a “Bankruptcy Default”),
the automatic termination provision of this clause shall apply.
10.2 Liquidation Date: Subject to the following sub-clause, at any time following the occurrence of
an Event of Default, we may, by notice to you, specify a date (the “Liquidation Date”) for the
termination and liquidation of Netting Transactions in accordance with this clause.
10.3 Automatic termination: Where so specified, the date of the occurrence of any Bankruptcy
Default shall automatically constitute a Liquidation Date, without the need for any notice by us and
the provisions of the following sub-clause shall then apply.
10.4 Calculation of Liquidation Amount: Upon the occurrence of a Liquidation Date:
(i) neither of us shall be obliged to make any further payments or deliveries under any
Netting Transactions which would, but for this clause, have fallen due for performance on or
after the Liquidation Date and such obligations shall be satisfied by settlement (whether by
payment, set- off or otherwise) of the Liquidation Amount;
(ii) we shall (on, or as soon as reasonably practicable after, the Liquidation Date) determine
(discounting if appropriate), in respect of each Netting Transaction referred to in paragraph
(a) the total cost, loss or, as the case may be, gain, in each case expressed in the Base
Currency specified by us or otherwise in writing or, failing any such specification, the lawful
Currency of the United Kingdom (and, if appropriate, including any loss of bargain, cost of
funding or, without duplication, cost, loss or, as the case may be, gain as a result of the
termination, liquidation, obtaining, performing or re-establishing of any hedge or related
trading position)as a result of the termination, pursuant to this Agreement, of each payment
or delivery which would otherwise have been required to be made under such Netting
Transaction (assuming satisfaction of each applicable condition precedent and having due
regard, if appropriate, to such market quotations published on, or official settlement prices
set by the relevant Market as may be available on, or immediately preceding, the date of
calculation); and
(iii) we shall treat each cost or loss to us, determined as above, as a positive amount and
each gain by us, so determined, as a negative amount and aggregate all of such amounts to
produce a single, net positive or negative amount, denominated in the Base Currency (the
“Liquidation Amount”).
10.5 Payer: If the Liquidation Amount determined pursuant to this clause is a positive amount, you
shall pay it to us and if it is a negative amount, we shall pay it to you. We shall notify you of the
Liquidation Amount, and by whom it is payable, immediately after the calculation of such amount.
10.6 Other transactions: Where termination or liquidation occurs in accordance with this clause, we
shall also be entitled, at our discretion, to terminate and liquidate, in accordance with the provisions
of this clause, any other transactions entered into between us which are then outstanding.
10.7 Payment: The Liquidation Amount shall be paid in the Base Currency by the close of business on
the Business Day following the completion of the termination and liquidation under this clause
(converted as required by applicable law into any other currency, any costs of such conversion to be
borne by you, and (if applicable) deducted from any payment to you). Any Liquidation Amount not
paid on the due date shall be treated as an unpaid such amount and bear interest, at the average
rate at which overnight deposits in the currency of such payment are offered by major banks in the
London interbank market as of 11.00 am (London time) (or, if no such rate is available, at such
reasonable rate as we may select) one 1% per annum for each day for which such amount remains
unpaid.
10.8 Base Currency: For the purposes of any calculation hereunder, we may convert amounts
denominated in any other currency into the Base Currency at such rate prevailing at the time of the
calculation as we shall reasonably select.
10.9 Payments: Unless a Liquidation Date has occurred or has been effectively set, we shall not be
obliged to make any payment or delivery scheduled to be made by us under a Netting Transaction
for as long as an Event of Default or any event which may become (with the passage of time, the
giving of notice, the making of any determination hereunder, or any combination thereof) an Event
of Default with respect to you has occurred and is continuing.
10.10 Additional rights: Our rights under this clause shall be in addition to, and not in limitation or
exclusion of, any other rights which we may have (whether by agreement, operation of law or
otherwise).
10.11 Application of netting to Netting Transactions: Subject to the Individually Agreed Terms
Schedule, this clause applies to each Netting Transaction entered into or outstanding between us on
or after the date this Agreement takes effect.
10.12 Single agreement: This Agreement, the particular terms applicable to each Netting
Transaction, and all amendments to any of them shall together constitute a single agreement
between us. We both acknowledge that all Netting Transactions entered into on or after the date
this Agreement takes effect are entered into in reliance upon the fact that the Agreement and all
such terms constitute a single agreement between us.
10.13 Other agreements: Subject to sub-clause 6 of this clause, the provisions of this clause shall not
apply to any Transaction which is subject to liquidation and termination under another agreement.
However, any sum resulting from a liquidation and termination under another agreement, may be
set-off against the Liquidation Amount.
11. RIGHTS ON DEFAULT
11.1 Default: On an Event of Default or at any time after we have determined, in our absolute
discretion, that you have not performed (or we reasonably believe that you will not be able or willing in the future to perform) any of your obligations to us, in addition to any rights under the Netting
Clause we shall be entitled without prior notice to you:
(i) instead of returning to you investments equivalent to those credited to your account, to
pay to you the fair market value of such investments at the time we exercise such right,
and/or
(ii) to sell such of your investments as are in our possession or in the possession of any
nominee or third party appointed under or pursuant to this Agreement, in each case as we
may in our absolute discretion select or and upon such terms as we may in our absolute
discretion think fit (without being responsible for any loss or diminution in price) in order to
realise funds sufficient to cover any amount due by you hereunder, and/or
(iii) to freeze, close out, replace or reverse any Transaction, buy, sell, borrow or lend or enter
into any other Transaction or take, or refrain from taking, such other action at such time or
times and in such manner as, at our sole discretion, we consider necessary or appropriate to
cover, reduce or eliminate our loss or liability under or in respect of any of your contracts,
positions or commitments.
12. TERMINATION WITHOUT DEFAULT
12.1 Termination: Unless required by Applicable Regulations, either party may terminate this
Agreement (and the relationship between us) at any time by giving written notice of termination to
the other. We may terminate this Agreement immediately if you fail to observe or perform any
provision of this Agreement or in the event of your insolvency other than in the case of force
majeure.
Upon terminating this Agreement, all amounts payable by you to us will become
immediately due and payable including (but without limitation):
(i) all outstanding fees, charges and commissions; and
(ii) any dealing expenses incurred by terminating this Agreement; and
(iii) any losses and expenses realised in closing out any Transactions or settling or
concluding outstanding obligations incurred by us on your behalf.
12.2 Existing rights: Termination shall not affect then outstanding rights and obligations (in particular
relating to the Indemnities and Limitation of Liability Clause and the Miscellaneous and Governing
Law Clause) and Transactions which shall continue to be governed by this Agreement and the
particular clauses agreed between us in relation to such Transactions until all obligations have been
fully performed.
13. EXCLUSIONS, LIMITATIONS AND INDEMNITY
13.1 General Exclusion: Neither we nor our directors, officers, employees, or agents shall be liable
for any losses, damages, costs or expenses, whether arising out of negligence, breach of contract,
misrepresentation or otherwise, incurred or suffered by you under this Agreement (including any
Transaction or where we have declined to enter into a proposed Transaction) unless such loss is a
reasonably foreseeable consequence or arises directly from our or their respective gross negligence,
willful default or fraud.In no circumstance, shall we have liability for losses suffered by you or any
third party for any special or consequential damage, loss of profits, loss of goodwill or loss of
business opportunity arising under or in connection with this Agreement, whether arising out of
negligence, breach of contract, misrepresentation or otherwise. Nothing in this Agreement will limit
our liability for death or personal injury resulting from our negligence.
13.2 Tax implications: Without limitation, we do not accept liability for any adverse tax implications
of any Transaction whatsoever.
13.3 Changes in the market: Without limitation, we do not accept any liability by reason of any delay
or change in market conditions before any particular Transaction is affected.
13.4 Limitation of Liability: We shall not be liable to you for any partial or non- performance of our
obligations hereunder by reason of any cause beyond our reasonable control, including without
limitation any breakdown, delay, malfunction or failure of transmission, communication or computer
facilities, industrial action, act of terrorism, act of God, acts and regulations of any governmental or
supra national bodies or authorities or the failure by the relevant intermediate broker or agent,
agent or principal of our custodian, sub-custodian, dealer, Market, clearing house or regulatory or
self-regulatory organisation, for any reason, to perform its obligations. Nothing in this Agreement
will exclude or restrict any duty or liability we may have to you under the regulatory system (as
defined in the FCA Rules), which may not be excluded or restricted thereunder.
13.5 Responsibility for orders: You will be responsible for all orders entered on your behalf via an
Electronic Service and you will be fully liable to us for the settlement of any Transaction arising from
it.
13.6 Entire Agreement: You acknowledge that you have not relied on or been induced to enter into
this Agreement by a representation other than those expressly set out in this Agreement. We will
not be liable to you (in equity, contract or tort under the Misrepresentation Act 1967) for a
representation that is not set out in this Agreement and that is not fraudulent
13.7 Indemnity: You shall pay to us such sums as we may from time to time require in or towards
satisfaction of any debit balance on any of your accounts with us and, on a full indemnity basis, any
losses, liabilities, costs or expenses (including legal fees), taxes, imposts and levies which we may
incur or be subjected to with respect to any of your accounts or any Transaction or any matching
Transaction on a Market or with an intermediate broker or as a result of any misrepresentation by
you or any violation by you of your obligations under this Agreement (including any Transaction) or
by the enforcement of our rights.
14. MISCELLANEOUS
14.1 Amendments: We have the right to amend this Agreement without obtaining your prior
consent unless required by any Applicable Regulations. If we make any material change to this
Agreement, we will give at least seven business days notice to you. Such amendment will become
effective on the date specified in the notice. Any other amendment must be agreed in writing
between us. Unless otherwise agreed, an amendment will not affect any outstanding order or
Transaction or any legal rights or obligations which may already have arisen.
14.2 Notices: Unless otherwise agreed, all notices, instructions and other communications to be
given by us under this Agreement shall be given to the e-mail address provided by you to us.
Likewise, all notices, instructions and other communications to be given by you under this
Agreement shall be given to the e-mail address and/or by notice in writing by either party. You will
notify us of any change of your e-mail address in accordance with this clause.
14.3 Electronic Communications: Subject to Applicable Regulations, any communication between us
using electronic signatures shall be binding as if it were in writing. Orders or instructions given to you
via e-mail or other electronic means will constitute evidence of the orders or instructions given.
14.4 Recording of calls: We may record telephone conversations without use of a warning tone to
ensure that the material terms of the Transaction, and any other material information relating to the
Transaction is promptly and accurately recorded. Such records will be our sole property and
accepted by you as evidence of the orders or instructions given.
14.5 Our records: Our records, unless shown to be wrong, will be evidence of your dealings with us
in connection with our services. You will not object to the admission of our records as evidence in
any legal proceedings because such records are not originals, are not in writing or are documents
produced by a computer. You will not rely on us to comply with your record keeping obligations,
although records may be made available to you on request at our absolute discretion.
14.6 Your records: You agree to keep adequate records in accordance with Applicable Regulations to
demonstrate the nature of orders submitted and the time at which such orders are submitted.
14.7 Investor Protection Schemes: Foreign Currency Innovations Limited are a member of the
Financial Services Compensation Scheme (the “Scheme”) in the United Kingdom. The Scheme is only
available to certain types of claimants and claims. Payments to eligible claimants under the Scheme
will vary depending on the type of protected claim (e.g. deposits or investments) the claimants hold
with respect to the relevant institution. Payments under the Scheme in respect of investments are
subject to a maximum payment to any eligible investor of GBP 50,000. Further details of the Scheme
are available on request or at the Scheme’s official website at www.fscs.org.uk.
14.8 Complaints procedure: We are obliged to put in place internal procedures for handling
complaints fairly and promptly. You may submit a complaint to us, for example by letter, telephone,
e-mail, or in person. We will send you a written acknowledgement of your complaint promptly
following receipt, enclosing details of our complaints procedures including when and how you may
be able to refer your complaint to the Financial Ombudsman Service, provided that you are an
eligible complainant as defined by the FCA rules. Please contact us if you would like further details
regarding our complaints procedures.
14.9 Third Party Rights: This Agreement shall be for the benefit of and binding upon us both and our
respective successors and assigns. You shall not assign, charge or otherwise transfer or purport to
assign, charge or otherwise transfer your rights or obligations under this Agreement or any interest
in this Agreement, without our prior written consent, and any purported assignment, charge or
transfer in violation of this clause shall be void. A person who is not a party to this Agreement has no
right under the Contracts (Rights of Third Parties) Act 1999.
14.10 Time of essence: Time shall be of the essence in respect of all obligations of yours under this
Agreement (including any Transaction).
14.11 Rights and remedies: The rights and remedies provided under this Agreement are cumulative
and not exclusive of those provided by law. We shall be under no obligation to exercise any right or
remedy either at all or in a manner or at a time beneficial to you. No failure by us to exercise or
delay by us in exercising any of our rights under this Agreement (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
another right or remedy.
14.12 Set-off: Without prejudice to any other rights to which we may be entitled, we may at any
time and without notice to you set off any amount (whether actual or contingent, present or future)
owed by you to us against any amount (whether actual or contingent, present or future) owed by us to you. For these purposes, we may ascribe a commercially reasonable value to any amount which is
contingent or which for any other reason is unascertained.
14.13 Partial invalidity: If, at any time, 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 this Agreement nor the legality, validity or
enforceability of such provision under the law of any other jurisdiction shall in any way be affected
or impaired.
15. GOVERNING LAW AND JURISDICTION
15.1 Governing law: 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.
15.2 Law applicable to relationship prior to the conclusion of the Agreement: The law applicable to
the relationship between us prior to the conclusion of this Agreement is English law.
15.3 Jurisdiction: Each of the parties irrevocably:
(i) agrees for our benefit that the courts of England shall have jurisdiction to settle any suit,
action or other proceedings relating to this Agreement (“Proceedings”) and irrevocably
submits to the jurisdiction of such courts (provided that this shall not prevent us from
bringing an action in the courts of any other jurisdiction); and
(ii) waives any objection which it may have at any time to the laying of venue of any
Proceedings brought in any such court and agrees not to claim that such Proceedings have
been brought in an inconvenient forum or that such court does not have jurisdiction over it.
15.4 Waiver of immunity and consent to enforcement: You irrevocably waive to the fullest extent
permitted by applicable law, with respect to yourself and your revenue and assets (irrespective of
their use or intended use) all immunity on the grounds of sovereignty or other similar grounds from
(i) suit,
(ii) jurisdiction of any courts
(iii) relief by way of injunction, order for specific performance or for recovery of property,
(iv) attachment of assets (whether before or after judgment) and
(v) execution or enforcement of any judgment to which you or your revenues or assets
might otherwise be entitled in any Proceedings in the courts of any jurisdiction and
irrevocably agree that you will not claim any immunity in any Proceedings. You consent
generally in respect of any Proceedings to the giving of any relief or the issue of any process
in connection with such Proceedings, including, without limitation, the making, enforcement
or execution against any property whatsoever (irrespective of its use or intended use) of any
order or judgment which may be made or given in such Proceedings.
15.5 Service of process: If you are situated outside England and Wales, process by which any
Proceedings in England are begun may be served on you by being delivered to the address in
England or Wales nominated by you for this purpose in the Individually Agreed Terms Schedule. This
does not affect our right to serve process in another manner permitted by law.
16. INTERPRETATION
Interpretation: In this Agreement: “Applicable Regulations” means:
a) FCA Rules or any other rules of a relevant regulatory authority;
b) the Rules of the relevant Market; and
c) all other applicable laws, rules and regulations as in force from time to time;
“Associate” means an undertaking in the same group as us, a representative whom we or an
undertaking in the same group as us appoint, or any other person with whom we have a relationship
that might reasonably be expected to give rise to a community of interest between us and them;
“Business Day” means a day which is not a Saturday or a Sunday and upon which banks are open for
business in London;
“Credit Support Provider” means any person who has entered into any guarantee, hypothecation,
agreement, margin or security agreement in our favour in respect of your obligations under this
Agreement;
“Electronic Services” means a service provided by us, for example an internet trading service
offering clients access to information, electronic trading platform and trading facilities, via an
internet service, a WAP service and/or an electronic order routing system.
“Event of Default” means any of the events of default as listed in the “Events of Default” provision;
“FCA Rules” means the rules contained in the Handbook of Rules and Guidance produced by the
Financial Conduct Authority as from time to time in force (as varied by any waiver, dispensations or
individual guidance granted by the Financial Conduct Authority and applicable to FCI)
“Market” means any regulated market, or multilateral trading facility (as such terms are defined in
the FCA Rules)
“Netting Transaction” means a Transaction which is intended to be subject to the clause entitled
“Netting” and for such purposes is identified as a “Netting Transaction” in the Individually Agreed
Terms Schedule or by its own terms;
“Rules” means articles, rules, regulations, procedures and customs, as in force from time to time;
and
“System” means all computer hardware and software, equipment, network facilities and other
resources and facilities needed to enable you to use an Electronic Service.
“Transaction” means any transaction subject to this Agreement, and includes:
(i) a contract made on a Market or pursuant to the Rules of a Market;
(ii) contract which is subject to the Rules of a Market;
(iii) a contract which would (but for its term to maturity only) be a contract made on,
or subject to the Rules of a Market and which, at the appropriate time, is to be
submitted for clearing as a contract made on, or subject to the Rules of a Market;in any of cases (i), (ii) and (iii) being a future, option, contract for differences, spot or
forward contract of any kind in relation to any commodity, metal, financial instrument
(including any security), currency, interest rate, index or any combination thereof;
(iv) a transaction which is matched with any transaction within paragraph (i), (ii) or (iii) of
this definition; or
(v) any other transaction which we both agree, in any specific Clause, or otherwise, shall be a
Transaction.
“Website” means our internet address which comprises information about us, our services and may
provide you with a link to the agreed Trading Platform.
General interpretation: A reference in this Agreement to a “clause” or “Schedule” shall be construed
as a reference to, respectively, a clause or Schedule of this Agreement, unless the context requires
otherwise. References in this Agreement to any statute or statutory instrument or Applicable
Regulations include any modification, amendment, extension or re-enactment thereof. A reference
in this Agreement to “document” shall be construed to include any electronic document. The
masculine includes the feminine and the neuter and the singular includes the plural and vice versa as
the context admits or requires. Words and phrases defined in the FCA’s Rules have the same
meaning in this Agreement unless expressly defined in this Agreement
Schedules: The clauses contained in the attached Schedule(s) (as amended from time to time) shall
apply. We may from time to time send to you further Schedules in respect of Markets or
Transactions. In the event of any conflict between the clauses of any Schedule and this Agreement,
the clauses of the Schedule shall prevail. The fact that a clause is specifically included in a Schedule
in respect of one Market or Transaction shall not preclude a similar clause being expressed or
implied in relation to any other Market or Transaction.
Headings: Headings are for ease of reference only and do not form part of this Agreement.
APPENDIX A FOREX & PRECIOUS METALS ANNEX
1. SCOPE
The clauses in this Annex of the Agreement apply to Transactions in forex and Precious Metals.
1.1 In this Annex “Transaction” means a transaction for the purposes of sub-clause (v) of the
definition of Transaction in the interpretation clause of the Agreement.
1.2 Our Transactions in forex with you will normally constitute a spot transaction in respect of
currency pair exchange rates unless we agree expressly that delivery of the relevant currencies is
contemplated in a particular Transaction. Spot transactions are due for delivery two days, after
dealing, however, as a service to our customers, we will automatically roll clients positions over
every day until they are closed out and delivery will not normally occur unless we agree expressly
that delivery of the relevant currency will occur in relation to a particular Transaction. If delivery of
the currency does occur you will be liable to make or to receive delivery of the currency and to pay
for all associated costs
1.3 A Precious Metals Contract is a margined over the counter (i.e not executed on an exchange)
trade between you and us where the price is determined by reference to the precious metal that
underlies the contract (“Bullion Contract”).
1.4 Bullion Contracts are classified in the UK as investments and firms offering to deal in them are
required to be authorised and regulated by the FCA.
1.5 Precious Metals or Bullion refer to Gold = XAU, Silver = XAG, Platinum = PLT and Palladium = PLA.
1.6 You should be aware that the product information contained in this Annex is not necessarily a
comprehensive description of all aspects of the product. Additionally, specific products may be
tailored for a particular client or market and may differ in detail from the outline set forth in this
Annex. The terms of the particular Transactions will prevail over the product description and
information given in this disclosure.
2. IMPORTANT: RISKS ASSOCIATED WITH DEALING IN FOREX AND PRECIOUS METALS
2.1 This Annex does not disclose all of the risks in dealing in forex. You should not deal in forex
unless you understand the nature of the contract you are entering into and the extent of your
exposure to risk. You should also be satisfied that the contract is suitable for you in the light of your
circumstances and financial position. Importantly you should only trade forex on margin if you are to
sustain a total loss of the money you have invested.
2.2 Forex trading is high risk and you may lose your entire investment.
2.3 Placing contingent orders, such as “stop-loss” or “stop-limit” orders, will not necessarily limit
your losses to the intended amounts, since market conditions may make it impossible to execute
such orders.
2.4 The leverage often obtainable in forex trading means that a small margin can lead to large losses
as well as gains. It also means that a relatively small movement can lead to a proportionately much
larger movement in the value of your investment, and this can work against you as well as for you.
2.5 there are costs associated with financing positions held overnight. These costs (which are
mentioned in section 8) are an important aspect of trading in forex and must be taken into account
by you in advance of deciding whether to trade.
2.6 Any payments made or received in relation to any investment may be subject to tax and you
should seek professional advice in this respect.
2.7 In light of the above you should consider carefully whether or not this product is suitable for you
in light of your circumstances and financial position, and if in any doubt please seek professional
advice.
3. FOREX AND PRECIOUS METALS TRANSACTIONS
3.1 In respect of every Transaction made between us we shall act as principal with you. We will
engage in foreign exchange contract transactions with you in accordance with your oral, written or
electronic instructions.
3.2 QUOTES: Upon your request we provide a price quote for each transaction contemplated by you.
The prices quoted are determined by us and may represent a mark-up or markdown of inter-bank
dealing rates. We may provide a quote either orally by telephone or electronically via an electronic
trading system provided by us, or by such other means as we may from time to time notify you. You
may request a quote to open a transaction or to close all or any part of a transaction at any time
during our normal hours of trading for the instrument in respect of which you wish to open or close
a Transaction. We may reject your offer at any time until the Transaction has been executed or we
have acknowledged that your offer has been withdrawn. A Transaction will be deemed to have been
opened or closed only when your offer has been received and accepted by us. Our acceptance of an
offer to open or close a Transaction will be evidenced by a confirmation of its terms to you. All prices
shown are indicative and are subject to constant change.
3.3 Opening and closing a Transaction: You may open a Transaction by ‘buying’ or ‘selling’. A
Transaction that is opened by ‘buying’ can also be referred to as a “Buy”, “Long” or “Long Position”;
a Transaction that is opened by ‘selling’ can also be referred to as a “Sell”, Short” or “Short Position”.
A Transaction must always be made for a specified number of contracts and currency pair. We may
offer a variety of contract sizes (lots) to be available for trading in your account. Please see our
website for the current terms, span of currency pairs available for trading, hedging functionality
features, overnight interest/rollover and the rates on spread. These trading terms are subject to
change at our sole discretion. Upon closing a Transaction, and subject to any applicable adjustments
for interest that may be appropriate you will pay us such charges as may be applicable to the
Transaction(s). We reserve the right to close a Transaction, in part or in whole.
3.4 Transactions in forex involve you taking a position with regard to what you consider the price of
one currency will be against the price of another currency in the future. In order to do this you will
trade in a currency pair with us, for example Euro/US Dollar (EUR/USD) or US Dollar/Japanese Yen
(USD/JPY).
3.5 Currency pairings are expressed as two codes usually separated by a division symbol (e.g.
GBP/USD), the first representing the “base currency” and the other the “secondary currency”. The
price quoted is the value of the secondary currency expressed in terms of one unit of the base
currency. For example GBP/USD = 1.6 denotes that one unit of sterling(the base currency) can be
exchanged for 1.6 US Dollars (the secondary currency). The prices that we quote for each currency
pair are normally labelled as the “Bid Price” and the “Ask Price”
3.6 The Bid Price is the price that we will pay you in the secondary currency for the position in the
base currency. The Ask Price is the price you will pay us in the secondary currency for the position in
the base currency. The Bid Price will always be less than the Ask Price. The difference between the
Bid and the Ask price is known as the “Spread”. We make a profit from the spread. In general the
wider the spread the greater our profit.
3.7 You can take a view on the price of the base currency increasing by “Going Long” or you can take
a view on the price of the base currency decreasing by “Going Short”. For example, if you consider
that the price of Sterling will increase against the price of the US Dollar you will decide to take a
position with us where you will Go Long (or buy) GBP/USD, if by contrast, you consider that the price
of Sterling will drop against the price of the US Dollar you will decide to take a position with us
whereby you Go Short (or sell) GBP/USD.
3.8 If you were Going Long, the opening price of the currency pair would be fixed at our Ask Price. If
our Bid Price as the end of the contract is greater than our Ask Price at the commencement of the
contract then, subject to the deduction of applicable charges, you will receive a sum calculated by
multiplying the number of units of the base currency by the difference between the opening Ask
Price and the closing Bid Price of the currency pair. Regardless of how the price of the currency pair
moves you will also be required to pay us applicable interest charges, ticket charges in respect of
certain platform(which you will be notified about separately), and Tom/Next financing charges.
3.9 If however, you were Going Short, the opening price of the currency pair would be fixed at our
Bid Price. If the Ask Price of the currency pair at the end of the contract is less than the Bid Price at
the commencement of the contract then, subject to the deduction of applicable charges, you will
receive a sum calculated by multiplying the number of units of the base currency by the difference
between the opening Bid Price and the closing Ask Price of the currency pair. However, if the Ask
Price for the currency pair at the end of the contract exceeds the Bid Price for the currency pair at
the commencement of the contract you will be required to pay us a sum calculated by multiplying
the number of units of the base currency by the difference between the opening Bid Price and the
closing Ask Price of the currency pair. Again, regardless of how the price of the currency pair moves
you will also be required to pay us applicable interest charges, ticket charges in respect of certain
platforms (which you will be notified about separately), and Tom/Next financing charges.
3.10 Transactions in forex involve the obligation to settle a position at a future date. At 10pm
London time (which is the standard forex market value-date change time) each day, we may
offset/settle your open spot transactions/positions by closing the trade at current market rate, roll
over your open positions into the next settlement time period, or make or receive delivery on your
behalf upon any terms and by any methods deemed reasonable by us, and reopen your spot
transaction/position for the following days spot date at a rate that will reflect the interest rate
differential. Terms and/or methods for delivering, offsetting, settling, or rolling over your open
positions may differ on a customer-by-customer basis. Offset instructions on currency positions
open prior to settlement arriving at settlement date must be given to us at least one (1) business day
prior to settlement or value date. Alternatively, sufficient funds to take delivery or the necessary
delivery documents must be in our possession within the same period described above
3.11 Whenever any Transaction is entered into to close out any existing Transaction, then the
obligations of each of us under both sets of Transactions shall automatically and immediately be
terminated upon entering into the second Transaction, except for any settlement difference
payment due in respect of such closed out Transactions.
3.12 It may not be possible to cancel or modify a Transaction. If a Transaction cannot be cancelled or
modified, you are bound by any execution of the original order. We are not liable to you if we are
unable to cancel or modify a Transaction. Attempts to modify or cancel and replace a Transaction
can result in an over-execution of an order or the execution of duplicate orders. Our system does not
prevent over- execution on duplicate orders from occurring and you are responsible for all such
executions. You agree not to assume that any order has been executed or cancelled until you have
received confirmation from us with regard to order execution. You are responsible for knowing the
status of your pending orders before entering additional orders. You agree to contact us in the event
you are unclear on the status of an order. You agree to regularly review your online trading activity
to confirm the status of your orders.
3.13 Charges: We may charge a spread, the difference between the bid and ask price, or/and charge
a fixed commission per amount traded currently $40 per $1mio traded or part thereof. You may also
pay such charges(including, without limitation, markups and markdowns, statement charges, idle
account charges, order cancellation charges, account transfer charges or other charges) arising out
of our services to you. We may change our charges without notice. All such charges shall be paid by
you as they are incurred, or as we in our sole and absolute discretion may determine, and you
hereby authorise us to withdraw the amount of any such charges from your account.
3.14 Deposits/Withdrawals: We shall neither receive nor disburse your funds in cash currency or
cash equivalents. All transactions between you and us shall be performed by wire, cheque or other
method in which the identities of both the sending and receiving parties can be verified by us and
which we, in our sole discretion, shall deem appropriate. We shall perform deposit/withdrawal
transactions only between your account and another account which is held in your name or of which
you clearly demonstrate ownership to us. In order to prevent money laundering, fraud and other
unauthorised activity, we may limit your withdrawal options.
APPENDIX B BEST EXECUTION POLICY
Under the FCA rules FCI is required to implement an Order Execution Policy and a Best Execution
Policy in order to obtain the best results for its clients. The aim of this document is to provide our
client with the appropriate details of these policies in accordance with the Financial Conduct
Authority’s rules requirements and in order to extend to our clients a transparent overview to our
business practices.
FCI has put in place Order Execution Policy and Best Execution Policy with a view to provide the best
possible results to our clients depending upon the circumstances and market conditions on a best
endeavour basis. These policies take into consideration the relevant execution factors with due
diligence paid to their comparative importance.
The disclosure schedule forms part of our terms of business. Therefore, by agreeing to the terms of
our Client Agreement, you are also agreeing to the terms of our execution policy, as summarised in
this document
1. SCOPE
FCI understands there is to be a duty of Best Execution owed to the client when orders are executed
having arisen from either contractual or agency obligations, on the client’s behalf. The duty is not
owed when FCI offers prices at which it will be prepared to buy or sell, nor when FCI provides a
quote in an answer to such a request.
2. OUR SERVICE
In dealings between us FCI act as agent on your behalf and we therefore act as the sole execution
venue on the provided trading platform for the execution of your orders
3. DISCRETION
The general market understanding is that the best possible results for a client would be determined
by the price and/or the liquidity of the market. However, FCI may decide, in their absolute
discretion, that in certain circumstances, other factors e.g. the need for timely execution of the
order is more important in determining the best possible results. This may depend on the type of
order, the financial instrument or the market involved
4. ORDER CAPTURE
FCI will endeavour to execute the order received in a prompt, fair and expeditious manner, ensuring
that potential conflicts of interest between clients or between the client and FCI are managed
effectively. Where there is a lapse of time between FCI’s first quote and the clients acceptance which
causes delay or in the case that the market conditions have changed, FCI will still be within its rights
to execute the order, provided the quote is not significantly out of date and that its still would have
met the best execution requirements.
5. ORDER HANDLING
FCI records and executes otherwise comparable orders sequentially and timed to coincide with
receipt of the order unless the characteristics of the order or market conditions make it impractical
to do so; or if the client’s interests demand otherwise. Orders received in a different media cannot
be termed otherwise comparable.
6. ORDER ALLOCATION
Depending upon the circumstances, market conditions and order size, FCI may aggregate the client
order with those of other clients or transactions on behalf of FCI. This aggregation is not considered
to compromise the client interest although some disadvantage, in relation to a particular order, may occur. In the case of such aggregated orders being partially executed, FCI will allocate the executed
orders in terms of its Order Allocation Policy.
7. EXECUTION VENUES
FCI executes client orders at various execution venues. Selecting the execution venues provide the
best execution for the client requires consideration of the relative importance of the execution
The execution factors that FCI consider are:
*Price
FCI will assess which venues within this list are likely to provide the best possible results for you on a
product by product basis and depending on other considerations. FCI will monitor the execution
venues and other execution arrangements regularly for their effectiveness and consistency in
providing best results.
8. METHODS OF EXECUTION
Depending upon circumstances, FCI may execute orders outside Regulated Markets or Multilateral
Trading Facilities (‘MTFs’). FCI believe restricting the execution of orders to Regulated Markets and
MTF’s may adversely affect the quality of the execution and liquidity. By signing this agreement you
expressly consent to our executing your orders outside Regulated Markets and MTF’s.
9. CLIENT LIMIT ORDERS
We are required to publish limits orders given by you should we not be able to execute your order
immediately. Please sign and return the attached form to confirm that you agree that when you
place a limit order with us that is not immediately executable, we are authorised to exercise our
discretion to not publish such an order to a Regulated Market or MTF.
10. SPECIFIC CLIENT INSTRUCTIONS
Where you provide FCI with specific instructions in relation to your entire order, or any aspect of
your order, for example a preferred execution venue, FCI may execute your order in accordance with
your instructions, and to that extent FCI will not owe you a duty of best execution. To the extent that
your specific instructions relate to only one or some aspects of the order, FCI will determine any
unspecified aspects in accordance with its Order Execution Policy.
You should be aware that where you provide FCI with specific instructions in relation to the
execution of your order, you may prevent FCI from following some or all of the steps in our Order
Execution Policy to obtain the best possible result for you in respect to those aspects affected by
your instructions.
While we take all reasonable steps based on the resources available to us and depending upon the
market conditions and circumstance as then prevalent to enable us to provide best possible results
for you, we cannot guarantee that we will always be able to provide best execution to each and
every order executed on your behalf particularly where you give us specific instructions as to all or
part of your order.
11. FCI’S COMMITMENT
FCI’s commitment to provide you with Best Execution does not mean that we owe you any fiduciary
responsibility over and above the specific regulatory obligations placed upon us or as may be
otherwise contracted between us.
12. MONITORING AND REVIEWING OF OUR EXECUTION POLICY
We periodically monitor the effectiveness of our order execution arrangements and Order Execution
Policy. We will assess from time to time whether the venues relied upon by us in pricing our
Transactions allow us to achieve best execution on a consistent basis or whether we need to make
changes to our execution arrangements. Will we also review our order execution arrangements and
Order Execution Policy in respect of material changes either in respect of one of our chosen pricing
venues or otherwise that affects our ability to continue to achieve best execution. Should there be
any material changes to our Order Execution arrangements or Order Execution Policy, we will notify
you as soon as it is practically possible.
13. CLIENT CONSENT
Under FCA Rules we are required to obtain your consent to our Best Execution Policy and other
matters as outlined above. We will consider that you have consented to agreeing to such Best
Execution Policy by your placing an order with us. We are however required to obtain your express
consent for execution of your order outside Regulated Markets or MTF’s and for exercising our
judgement in the matter of publishing your Limit Orders. We would request you to please provide
such consent by signing this agreement.
APPENDIX C LIMITED POWER OF ATTORNEY
This authorisation will continue in full force and effect until terminated by the Client and the
Attorneys receive written notification of the termination.
