In the event of a conflict between the Company and a Client, terms expressed in English and expressed in any other language, the terms expressed in English shall prevail over those expressed in any other language.
General Terms and Conditions of Service
www.eqtrades.com is operated by T.O.S. Operational Support Ltd., a company incorporated in Cyprus, with the incorporation number HE330214, having its registered office at 42 Dositheou, 2028 Strovolos, Nicosia, Cyprus.
www.eqtrades.com is owned by GEB Global Equity Brokers group of companies. The group includes T.O.S. Operational Support Ltd., a company incorporated in Cyprus, with the incorporation number HE330214, 42 Dositheou, 2028 Strovolos, Nicosia, Cyprus and GEB Global Equity Brokers (Belize) Ltd., a company incorporated in Belize, registration number 153,082, 35 Barrack Road, Belize City, Belize, CA, authorised by the International Financial Services Commission of Belize, license number IFSC/60/395/TS/17.
Scope of this Terms and Conditions of Service
This document sets out the general guidelines of our cooperation with you.
The Company shall provide financial investment services on the Client’s benefit, that is undertaking and executing orders and instructions received from the Client by means of the e-trading system, managed by the Broker, in connection with securities, including agreements on goods, spot or forward, having as support assets, if the case, transferable securities, stock indicators and other indicators, foreign currencies, precious metals or other commodities, admitted to be traded on regulated markets, on an alternative trading system, in OTC regime (over-the-counter).
This document provisions supersedes any previous agreement between you and us on the same subject matter and takes effect when you indicate your acceptance of the Agreement. This document provisions shall apply to all Transactions contemplated under the Agreement.
We will communicate with you in English and we will continue to communicate with you in English for the duration of the Agreement. However, where possible, we will communicate with you in other languages in addition to English.
Communication with us
You may communicate with us in writing (including fax), by email or other electronic means, or orally (including by telephone). Our contact details are set out in the Agreement. The language of communication shall be English, and you will receive documents and other information from us in English. However, where appropriate and for your convenience, we will endeavor to communicate with you in other languages. Our Agreement contains further details about us and our services, and other information relevant to this General Terms and Conditions of Service. In the event of any conflict between the terms of this General Terms and Conditions of Service and our website the Agreement will prevail.
We shall treat you as a retail client for the purposes of the Rules and the Applicable Regulations. You have the right to request a different client categorization. However, if you do request such different categorization and we agree to such categorization, the protection afforded by certain Rules and the other Applicable Regulations may be reduced. This may include, but is not limited to:
a. the requirement for us to act in accordance with your best interests;
b. our obligation to provide appropriate information to you before providing the services;
c. the restriction on the payment or receipt by us of any inducements;
d. our obligation to achieve best execution in respect of your orders;
e. the requirement to implement procedures and arrangements which provide for the prompt, fair and expeditious execution of your orders;
f. our obligation to ensure that all information we provide to you is fair, clear and not misleading; and
g. the requirement that you receive from us adequate reports on the services provided to you.
The Company’s services and products traded are only available to individuals who are at least 18 years old (and at least the legal age in your jurisdiction). You represent and warrant that if you are an individual, you are at least 18 years old and of legal age in your jurisdiction to form a binding contract, and that all registration information you submit is accurate and truthful. The Company reserves the right to ask for proof of age from you and your account may be suspended until satisfactory proof of age is provided. The Company may, in its sole discretion, refuse to offer its products and services to any person or entity and change its eligibility criteria at any time.
COSTS, PAYMENTS AND CHARGES
You shall pay our charges as agreed with you from time to time, any fees or other charges imposed by a clearing organisation and interest on any amount due to us at the rates then charged by us (and which are available on request). A copy of our current charges is published on our website. Any alteration to charges will be notified to you before the time of the change.
You should be aware of the possibility that other taxes or costs may exist that are not paid through or imposed by us.
All payments to us 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.
Remuneration and sharing of charges
We may share charges with partners, affiliates, business introducers and agents in connection with Transactions carried out on your behalf. Business introducers and agents are paid on the basis of the percentage of spread. Partners and affiliates get fixed fees. Details of such remuneration or sharing arrangements are available to you upon request. If you require more information on the fees and commissions that we pay to business introducers and other affiliates, let us know and we will provide you with further information.
A daily financing charge may apply to each FX/CFD open position at the closing of the Company’s trading day as regard to that FX/CFD. If such financing charge is applicable, it will either be requested to be paid by Client directly to the Company or it will be paid by the Company to Client, depending on the type of FX/CFD and the nature of the position Client holds. The method of calculation of the financing charge varies according to the type of FX/CFD to which it applies. Moreover, the amount of the financing charge will vary as it is linked to current interest rates (such as LIBOR). The financing charge will be credited or debited (as appropriate) to Client’s account on the next trading day following the day to which it relates.
The Company reserves the right to change the method of calculating the financing charge, the financing rates and/or the types of FX/CFDs to which the financing charge applies. For certain types of FX/CFDs, a commission is payable by Client to open and close FX/CFD positions. Such commission payable will be debited from Client’s account at the same time as the Company opens or closes the relevant FX/CFD. Changes in our swap interest rates and calculations shall be at our own discretion and without notice. Clients need to always check our website for the then current rates charged. Rates may change quickly due to market conditions (changes in interest rates, volatility, liquidity etc.) and due to various risk related matters that are at the firm’s sole discretion.
RIGHT TO CANCEL
You have a right to cancel the Agreement for a period of fourteen (14) days commencing on the date on which this Agreement is concluded or the date on which you receive this Agreement (whichever is later) (the “ Cancellation Period”). Should you wish to cancel this Agreement within the Cancellation Period, you should send notice in writing or electronically to the addresses found in contact us section of our website. Cancelling this Agreement within the Cancellation Period will not cancel any Transaction entered into by you during the Cancellation Period. If you fail to cancel this Agreement within the Cancellation Period you will be bound by its terms but you may terminate this Agreement in accordance with Termination Without Default clause.
We deal on an execution only basis and do not advise on the merits of particular Transactions, or their taxation consequences.
Own judgement and suitability
Without prejudice to our foregoing obligations, in asking us to enter into any Transaction, you represent that you have been solely responsible for making your own independent appraisal and investigations into the risks of the Transaction. You represent that you have sufficient knowledge, market sophistication, professional advice and experience to make your own evaluation of the merits and risks of any Transaction and that you have read and accepted the Risk Disclosure Statement and guidelines in relation to the financial instruments and the markets which are available in our websites. We give you no warranty as to the suitability of the products traded under this Agreement and assume no fiduciary duty in our relations with you.
Where we do provide generic trading recommendations, market commentary or other information:
a. this is incidental to your dealing relationship with us. It is provided solely to enable you to make your own investment decisions and does not amount to advice;
b. where information is in the form of a document containing 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 category of persons;
c. we give no representation, warranty or guarantee as to the accuracy or completeness of such information or as to the tax consequences of any Transaction;
d. you accept that prior to despatch, we may have acted upon it ourselves or made use of the information on which it is based. We do not make representations as to the time of receipt by you and cannot guarantee that you will receive such information at the same time as other clients. Any published research reports or recommendations may appear in one or more screen information service.
Conflicts of interest policy
Please refer to our conflicts of interest policy for further information on how we manage conflicts which would affect the impartiality of investment research we provide to you. Upon request, we will provide you with any further details in that regard.
CLIENT ACCOUNTS AND INITIAL DEPOSITS
Before you can place an order with the Company, you must read and accept the Client Agreement, including the risk disclosure statement, the trading policies and procedures and all applicable addenda, you must deposit sufficient clear funds in your account and your client registration form and all accompanying documents must be approved by the Company. Upon the approval of your registration, you will be notified by e-mail. The Company may, in its sole discretion, request that in addition to online acceptance of the Agreement, Client must complete and submit any signed documents so required by the Company, including but not limited to the Agreement and the Risk Disclosure Statement.
Currency of Accounts
You will be able to open your trading Account(s) in USD or any currency that may be offered by the Company. Account(s) balances will be calculated and reported to you in the currency in which Account(s) are maintained.
Disabling and Cancelling Deposits
We have the right not to accept funds deposited by you and/or to cancel your deposits in the following circumstances:
a. if you fail to provide the Company with any documents it requests from you either for client identification purposes or for any other reason;
b. if the Company suspects or has concerns that the submitted documents may be false or fake;
c. if the Company suspects you are involved in illegal or fraudulent activity;
d. if the Company is informed that your credit or debit card (or any other payment method used) has been lost or stolen;
e. where the Company considers that there is a chargeback risk; and/or
f. when you deposit $10,000 or more or if you make over 10 separate deposits to your trading Accounts and the Company is unable to verify your credit or debit card details or is unable to verify any other payment method used.
In case of cancelled deposits, and if there is not a confiscation of your funds by a supervisory authority on the grounds of money laundering suspicion or for any other legal infringement, your funds will be returned to the bank account that have been initially received.
Performance and settlement
You will promptly deliver any instructions, money, or documents deliverable by you under a Transaction in accordance with that Transaction as modified by any instructions given by us.
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.
Without prejudice and subject to the terms of the Agreement, all Applicable Regulations and all conditions attaching to any relevant payments made to you under a bonus or rebate scheme operated by us, monies may be withdrawn by you from your Account provided that such monies are not being utilized for margin purposes or have otherwise become owing to us, once your withdrawal request is approved your withdrawal request will be internally processed by us and sent to the same bank, credit card or other source for execution in maximum five working days from the moment you submit to us all the necessary documents. (Note: Some banks and credit card companies may take time to process payments especially in currencies where a correspondent bank is involved in the transaction). The funds will be returned to the bank account/credit card/other source from which the funds were debited.
If you request a withdrawal of monies from your Account and we cannot comply with it without closing some part of your open positions, we will not comply with the request until you have closed sufficient positions to allow you to make the withdrawal. In order to process your withdrawal request please ensure that the funds remaining on your account following your withdrawal is at least twice of your used margin. If you have not met the necessary bonus trading requirements at the time you make a withdrawal request the bonus will be debited from your trading account. Withdrawals will only be made on request by you, based on a valid withdrawal request form which is uploaded on www.eqtrades.com or sent to email@example.com, by bank transfer to an account in your name or such other method as we, in our absolute discretion, may determine.
Inactive and Dormant Account
The Client acknowledges and confirms that any trading account(s), held the Company by a Client where the Client has:
a. not placed a trade;
b. opened or closed positions; and/or
c. made a deposit into the Clients trading account;
for a period of 90 days and more, shall be classified by the Company as an Inactive Account (“Inactive Account”).
Where the Client has and continues to:
a. place a trade;
b. open or close positions; and/or
c. made a deposit into the Clients trading account;
the account shall be classified by the Company as an Active Account (” Active Account“)
The Client further acknowledges and confirms that such Inactive Accounts will be restricted from trading. In order to re-activate an Inactive account the customer needs to send a request to firstname.lastname@example.org. The Client’s Inactive Account will then be reactivated (subject to, if required, up-to-date Know Your Client documentation provided to the Company by Client) and become an Active Account.
The Client further agrees that any Inactive Accounts, holding zero balance/equity, shall be turned to Dormant (” Dormant Account“). For re-activation of Dormant Accounts, the Client must contact the Company and inform that the Client’s wish to reactivate the Dormant Account. The Client’s Dormant Account will then be reactivated (subject to, if required, up-to-date Know Your Client documentation provided to the Company by Client) and become an Active Account. However where the Client has not done the following with the Active Account:
a. place a trade;
b. open or close positions; and/or
c. made a deposit into the Clients trading account;
for a period of 90 days and more, then this account will once again become a Dormant Account.
Where the Client’s account has:
a. Balance equal to zero (no own funds available in the account; AND
b. Equity equal to zero (no Bonus Award available in the account); AND
c. no opened positions;
,the account should be moved to a special group, without the ability to open new positions. For reactivation, the Client needs to request this in writing to email@example.com.
ELECTRONIC TRADING TERMS
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. Please refer to our website for details of the limits imposed upon Transactions carried out through our Electronic Services.
You will be responsible for providing the System (hardware equipment) to enable you to use an Electronic Service (trading platform).
You will be responsible for the installation and proper use of any virus detection/scanning program we require from time to time.
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.
When using an Electronic Service you must:
a. ensure that the System is maintained in good order and is suitable for use with such Electronic Service;
b. 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;
c. carry out virus checks on a regular basis;
d. 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
e. 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.
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.
All rights in patents, copyrights, design rights, trade marks 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 the 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.
Liability and Indemnity
Without prejudice to any other terms of the Agreement, relating to the limitation of liability and provision of indemnities, the following clauses shall apply to our Electronic Services.
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:
a. any licence granted to us which relates to the Electronic Service; or
b. the Agreement.
Suspension or permanent withdrawal with notice.
We may suspend or permanently withdraw an Electronic Service, by giving you 24 hours written notice.
We shall not be liable for any act taken by or on the instruction of an exchange, clearing house or regulatory body.
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.
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.
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.
We shall not be obliged to execute any instruction which has been identified that is based on errors caused by delays of the system to update prices provided by the system price feeder or the third party service providers. We do not accept any liability towards executed trades that have been based and have been the result of delays as described above.
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. We do not accept any liability in respect of any delays, inaccuracies or errors in prices quoted to you if these delays, inaccuracies or errors are caused by third party service providers with which we may collaborate.
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.
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.
REPRESENTATIONS, WARRANTIES AND COVENANTS
You represent and warrant to us on the date the Agreement comes into effect and as of the date of each Transaction that:
a. if you are a natural person, you are of legal age and you have full legal capacity to enter into this Agreement;
b. if you are not a natural person:
• you are duly organized, constituted and validly existing under the applicable laws of the jurisdiction in which you are constituted;
• execution and delivery of this Agreement, all Transactions and the performance of all obligations contemplated under this Agreement have been duly authorized by you; and
• each natural person executing and delivering this Agreement on your behalf, entering Transactions and the performance of all obligations contemplated under this Agreement have been duly authorized by you and have been disclosed to us providing all the necessary information and/or documentation.
• you have all necessary authority, powers, consents, licences 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 the Agreement;
• the persons entering into the Agreement and each Transaction on your behalf have been duly authorised to do so and are disclosed to us giving details of the relationship with you by providing all necessary information and/or documentation;
• the 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;
• 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;
• you act as principal and sole beneficial owner (but not as trustee) in entering into the Agreement and each Transaction and in case you wish to open, either in the present time or in the future, more than one accounts with the Company either as individual client (natural person) or as the beneficial owner of a corporate client (legal person) it is required to immediately disclose to us that you are the beneficial owner of the account(s) during the account opening procedure and to provide us with the necessary information and/or documentation regarding the relationship between the natural and/or legal person(s);
• 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 are willing and financially able to sustain a total loss of funds resulting from Transactions and trading in such Transactions is a suitable investment for you; and
• except as otherwise agreed by us, you are the sole beneficial owner of all margin you transfer under the 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.
You covenant to us:
a. 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, licences and authorisations referred to in this clause;
b. 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;
c. you will use all reasonable steps to comply with all Applicable Regulations in relation to the Agreement and any Transaction, so far as they are applicable to you or us;
d. you will not send orders or otherwise take any action that could create a false impression of the demand or value for a financial instrument. Nor will you send orders which we have reason to believe are in breach of Applicable Regulations or by taking advantage of the account(s) you may maintain with the Company could be considered as system abusive orders, including but not limited to one’s intention to benefit from delays in the prices, to trade at off-market prices and/or outside trading hours and to abuse the system for trading at manipulated prices; and
e. 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.
EVENTS OF DEFAULT
The following shall constitute Events of Default:
a. you fail to make any payment when due under the Agreement or to observe or perform any other provision of the Agreement and such failure continues for one Business Day after notice of non-performance has been given by us to you;
b. 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;
c. 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:
• has not been dismissed within five days of its institution or presentation; or
• 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;
• 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 the Agreement are commenced for any execution, any attachment or garnishment, or distress against, or an encumbrancer takes possession of, the whole or any part of your property, undertaking or assets (tangible and intangible);
d. 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”);
e. any representation or warranty made or given or deemed made or given by you under the Agreement 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;
f. 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;
g. any Credit Support Document expires or ceases to be in full force and effect prior to the satisfaction of all your obligations under the Agreement, unless we have agreed in writing that this shall not be an Event of Default;
h. 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;
i. any event referred to in Clauses 14.2 to Clause 14.4 of this Clause 14 (Events of Default) occurs in respect of any Credit Support Provider;
j. 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 the Agreement;
k. you fail or omit to disclose to us your capacity as the beneficial owner of more than one accounts you may maintain with us and/or your capacity to act as a money manager on behalf of any other client of us;
l. you take advantage of delays occurred in the prices and you place orders at outdated prices, you trade at off-market prices and/or outside trading hours, you manipulate the system to trade at prices not quoted to you by us and you perform any other action that constitutes improper trading; and/or
m. any event of default (however described) occurs in relation to you under any other agreement between us.
Rights on Default
On the occurrence of an Event of Default, we may exercise our rights under this clause, except that in the case of the occurrence of any Event of Default specified in Clause 14.2 or Clause 14.3 of the definition of Events of Default (each a “ Bankruptcy Default”), the automatic termination provision of this clause shall apply.
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 Transactions in accordance with this clause.
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.
Calculation of Liquidation Amount
Upon the occurrence of a Liquidation Date:
a. neither of us shall be obliged to make any further payments or deliveries under any 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 (as defined below);
b. we shall (on, or as soon as reasonably practicable after, the Liquidation Date) determine (discounting if appropriate), in respect of each Transaction the total cost, loss or, as the case may be, gain, in each case expressed in the Base Currency specified by us in writing or, failing any such specification, the lawful currency of the United States (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 the Agreement, of each payment or delivery which would otherwise have been required to be made under such 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 exchange as may be available on, or immediately preceding, the date of calculation); and
c. 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”).
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.
Where termination and 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.
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) plus one (1%) per annum for each day for which such amount remains unpaid.
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.
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 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.
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).
Application of netting to Transactions
This clause applies to each Transaction entered into or outstanding between us on or after the date this Agreement takes effect.
The Agreement, the particular terms applicable to each Transaction entered into under this Agreement, and all amendments to any of them shall together constitute a single agreement between us. We both acknowledge that all Transactions entered into on or after the date the Agreement takes effect are entered into in reliance upon the fact that the Agreement and all such terms constitute a single agreement between us.
RIGHTS ON 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 Clause 15 (Netting) we shall be entitled, without prior notice to you:
a. 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;
b. 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;
c. to 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; and/or
d. to cancel and/or consider void any Transactions and profits or losses either realised or unrealised and/or to close out the account(s) you maintain with us pursuant to the Agreement, immediately and without prior notice.
TERMINATION WITHOUT DEFAULT
Unless required by Applicable Regulations, either party may terminate the Agreement (and the relationship between us) by giving three (3) days written notice of termination to the other. We may terminate the Agreement immediately if you fail to observe or perform any provision of this Agreement or in the event of your insolvency.
Upon terminating the Agreement:
a. all amounts payable by you to us will become immediately due and payable including (but without limitation):
b. all outstanding fees, charges and commissions;
c. any dealing expenses incurred by terminating this Agreement; and
d. any losses and expenses realised in closing out any Transactions or settling or concluding outstanding obligations incurred by us on your behalf.
The Company shall apply best execution rules in cases where you have not provided the Company with specific instructions regarding the closing of your positions.
The Company shall return any funds remaining in your trading account to your bank account, specifically the account from which the funds were debited. Your funds may be returned to another bank account to which you are the beneficiary as long as you provide us with the required documents to verify that the account belongs to you.
Termination shall not affect then outstanding rights and obligations and Transactions which shall continue to be governed by the Agreement and the particular clauses agreed between us in relation to such Transactions until all obligations have been fully performed.
EXCLUSIONS, LIMITATIONS AND INDEMNITY
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 the 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, wilful 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 the Agreement will limit our liability for death or personal injury resulting from our negligence.
Without limitation, we do not accept liability for any adverse tax implications of any Transaction whatsoever.
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, exchange, 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 Applicable Regulations, which may not be excluded or restricted thereunder.
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.
You acknowledge that you have not relied on or been induced to enter into the Agreement by a representation other than those expressly set out in the Agreement. We will not be liable to you (in equity, contract or tort) for a representation that is not set out in the Agreement and that is not fraudulent.
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 as a result of any misrepresentation by you or any violation by you of your obligations under the Agreement (including any Transaction) or by the enforcement of our rights.
Subject to Applicable Regulations, any communication between us using electronic signatures and any communications via our website and/or Electronic Services shall be binding as if they 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.
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 are solely at our decision and accepted by you as evidence of the orders or instructions given.
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 nor are they 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.
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. You can access your statements online at any time via our trading platform. You may request to receive your statement monthly or quarterly via email, by providing such a request to the support department.
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, email, or in person. We will send you a written acknowledgement of your complaint promptly following receipt, enclosing details of our complaints procedures. Please contact us if you would like further details regarding our complaints procedures.