FINANCIAL INVESTMENT SERVICES CONTRACT
This contract is concluded between:
XCM Capital Markets Ltd., financial investment services company, with registered office in Port Louis, 23B Raoul Street, registration no. C145041, website www.kappabrokers.com, having a valid license (License No: C116016325) issued by the Financial Services Commission of Mauritius, hereinafter called the Broker/the Company,
The account holder, identified by Account Opening Application Form, hereinafter called the Client.
1.1 This Client Agreement, together with any Schedule(s), and accompanying documents, as amended from time to time, (this “Agreement”) sets out the terms of the contract between you and us. Please read it carefully and let us know as soon as possible if there is anything which you do not understand.
1.2 www.kappabrokers.com is operated by Etilvina Ltd., a company incorporated in Cyprus, with the incorporation number HE361847, located at 46 Christaki Kranou, office 2, 4042, Limassol, Cyprus. www.kappabrokers.com is owned by XCM Capital Markets group of companies. The group includes Etilvina Ltd. HE361847 and XCM Capital Markets Ltd., C145041, 23B Raoul Street, Port Louis Mauritius, authorised by the International Financial Services Commission Mauritius, license number C1160163251.
1.3 This Client Agreement governs each Transaction entered into or outstanding between us on or after the execution of this policy.
1.4 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 Rules and the Applicable Regulations have the same meaning in this Agreement unless expressly defined in this Agreement.
1.5 The clauses contained in the attached Schedule (as amended from time to time) shall apply. We may from time to time send to you further Schedules in respect of 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 Transaction shall not preclude a similar clause being expressed or implied in relation to any other Transaction. You acknowledge having read, understood and agreed to the Schedules to this Agreement.
In this Agreement:
“Account” means the account you hold with us and designated with a particular account number.
“Applicable Regulations” means:
- FSC Rules or any other rules of a relevant regulatory authority; and
- 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.
“AML Act” means the applicable regulation concerning anti money laundering and counter terrorism financing, as amended from time to time.
“AML Authority” means Financial Intelligence Unit of Mauritius.
“Business Day” means a day which is not a Saturday or a Sunday and upon which banks are open for business in Cyprus.
“Central Bank Supervisory Authority” means the Central Bank of Mauritius.
“Client Money Rules” means the rules specified in the standard conditions for trading in securities.
“Commission” means FSC.
“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.
“FSC” is an abbreviation for “Financial Services Commission” of Mauritius.
“FSC Rules” means the applicable regulation which provides for the provision of investment services , the Prevention and Suppression of Money Laundering Activities legislation, the Directives, and all other regulations issued pursuant to these Laws including all guidance notes, administrative notices, newsletters and rules.
“Electronic Services” means a service provided by us, for example an Internet trading service offering clients access to information 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 Clause 14 (Events of Default) of the General Terms and Conditions of Service.
“Execution” means the completion of clients’ orders on XCM Capital Markets Ltd.’s trading platform.
“OTC” means ‘over the counter’ and refers to transactions conducted otherwise than on an exchange.
“XCM Capital Markets Ltd. Trading Desk” means the trading desk operated by us at our premises, the Headquarters of XCM Capital Markets Ltd. .
“XCM Capital Markets Ltd. Online Trading System” means the internet-based trading system available at our website that allows you to provide us with instructions.
“Secured Obligations” means the net obligation owed by you to us after the application of set-off under clause 12 (Margining Arrangements) in the paragraph entitled (Set-off on default).
“FX Contract” means a contract between XCM Capital Markets Ltd. and its Client to exchange two currencies at an agreed exchange rate.
“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 a CFD, or forward contract of any kind, future, option or other derivative contract in relation to any commodity, financial instrument (including any security), currency, interest rate, index or any combination thereof and any other transaction or financial instrument for which we are authorised under our licence from time to time which we both agree shall be a Transaction.
“Merchant” means an entity that conducts the sale of service electronically and receives payments via cards.
Subject to Applicable Regulations
3.1 This Agreement and all Transactions are subject to Applicable Regulations so that:
a. nothing in this Agreement shall exclude or restrict any obligation which we have to you under Applicable Regulations;
b. we may take or omit to take any action we consider necessary to ensure compliance with any Applicable Regulations;
c. all Applicable Regulations and whatever we do or fail to do in order to comply with them will be binding on you; and
d. 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.
3.2 Action by regulatory body. If a 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 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.
4. Scope of contract
4.1 The Broker 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) or in any other trading system agreed and approved by institutions in charge from Mauritius and by means of which the Broker is trading.
4.2 Types of securities which are the scope of this contact are the ones traded on the date of signing this contract or that shall be traded at any given moment during the operation of this contract, by means of the Kappa Brokers 5 e-trading system, managed by the Broker. The derivatives which are the scope of this contract do not request the actual possession of the underlying assets and they shall not end with the actual delivery of the underlying assets.
4.3 Financial investment services provided by the Broker consist of that is undertaking and executing orders and instructions received from the Client in connection with securities admitted to be traded on regulated markets, on an alternative trading system, in OTC regime (over-the-counter) by and through XCM Capital Market.
4.4 In view of facilitating the transmission of Client’s orders and instructions, the Broker grants the Client access by internet to the Kappa Brokers 5 e-trading system, dedicated to services mentioned at art1.1-1.3 above. The broker grants the Client, by means of Kappa Brokers 5, among others, the following instruments:
i. types of securities which are the scope of services supplied by the Broker and description of such securities;
ii. market evolution of securities;
iii. financial statement of Client’s account opened and operated by the Broker, based on the Client’s orders and instructions in connection to securities.
4.5 The Broker does not provide the Client, based on this contract, recommendations or investment consultancy/investment advice regarding securities. Having in mind the risks associated to such margin trades with derivatives, the Client may consider specialized consultancy services from third parties in connection to the operations which are the scope of this contract.
4.6 All documents found on the Broker’s website, in the field “Documentation” are considered to be an integral part of this Contract. They include, but are not limited to:
– Account Opening Application Form
– Securities Details Table – Instruments, Specifications and Rollover Calendar
– Client Category
– Conflicts of Interest
– Complaints Policy
– Rollover Calendar
– Order execution
– Refund and cancellation
– Bonus and Award
– Terms and Conditions
4.7 The Client declares and acknowledges that any amendments to the documents referred to in Section 1.6 shall be deemed acknowledged at the time of publication in the Broker’s website. If the Client does not notify its objections to the Broker in writing within 48 hours of change, they shall be deemed to be accepted by the Client.
4.8 By filling in the Account Opening Application Form and concluding this Contract, the Client states that before its conclusion, he/she acknowledged the following documents from the Broker’s internet page:
– Risk Disclosure;
– General Terms and Conditions of Service;
– documents mentioned at point 4.6.
4.9 The terms and phrases used in this contract shall have the meaning recorded in the Terms and Conditions document, available on the Broker website.
5. Contract duration
5.1 This contract shall come in force upon the validation of the Client’s Registration Form by the Company.
5.2 This contract is concluded based on and as response to the account opening Application Form of the Client’s.
5.3 The Broker reserves his right to refuse or limit the Client’s access to one or more services requested by the account opening Application Form, which represent the scope of this contract. Taking into consideration the risks associated to securities trades, the services provided by the Broker based on this contract are not addressed to untrained or inexperienced investors. By signing this contract, the Client states that he knows, understands and undertakes the risks associated to security trades which represent the scope of services provided by the Broker based on this contract.
5.4 The Client states and guarantees that:
i. he/she has the legal power to conclude this contract and to execute trades with securities
ii. the contract creates valid duties and they can be hold against the Client in court
iii. by signing this contract, the Client does not infringe any legal or statutory provision, which could be in force
5.5 This contract is concluded on an undefined period and it shall be terminated under the circumstances and terms mentioned by the General Terms and Condition of Service.
6. Opening an account
6.1 The Broker opens and operated a distinct account, in the name and on behalf of the Client, where shall be highlighted all possessions and securities and cash operations of the Client’s, made pursuant to this contract.
6.2 By executing this contract, the Broker opens and maintains, in the Client’s name, a distinct margin account, separated by all the other accounts of the Client, in which all possessions and cash and derivatives operations shall be highlighted, operation made by the Client based on this contract (Account or Client’s account).
6.3 The account shall be activated when the minimum amount indicated by the Broker shall be deposited in the “Clients” bank account, indicated by the Broker, and when all the documents requested shall be sent. This minimum amount is 1000 USD, or equivalent.
6.4 In order to make the trades with derivatives, the Client must submit in the account the initial margin for each traded security. The Client undertakes to leave in the Account, during the whole contract period, an amount that is at least equal to the margin for each security owned or traded, brought to the knowledge of the Client by the Kappa Brokers 5 e-trading system or by the Broker’s website.
6.5 The initial margin and the maintenance margin shall be deposited by the Client only in cash. The level of margin and the other specification for each derivative shall be notified to the Client by the Kappa Brokers 5 platform or on the Broker’s website page dedicated to this service and the Broker shall update them periodically.
7. Transmitting, taking over and executing orders
7.1 The Client states that he agrees to communicate the orders and instructions to the Broker via internet and for further communications made between parties. The Broker is authorized expressly by the Client to take over and execute orders and instructions received from the Client by the remote communication system mentioned above.
7.2 The Client can access the e-trading system operated by the Broker, by means of a computer with internet access, by any type of protocol with the username and password protected. The e-trading system must be installed in advance, and it is available for the Client on the Broker’s website (www.kappabrokers.com).
7.3 The Client undertakes full responsibility regarding the orders and instructions received from the Broker, under Client’s username and password on the e-trading platform. The Broker shall not be held liable towards the Client or another person or entity for a loss suffered as result of taking over or executing the orders or instructions received from the Client by this communication system.
7.4 The Client is the only authorized user of this e-trading platform operated by the Broker, based on this contract. It is the exclusive responsibility of the Client to keep the confidentiality of the user name and access code and any other security elements which allow the Client’s access in the system, the operations on the account opened at the Broker and the use of any of the trading system’s functions. The Broker shall never store the Client’s password. He/she shall be informed that in the event of losing the password, a new one shall be created after checking and comparing full data and replying to the security question.
7.5 The Client states that he is aware and agrees with the Broker’s policy to execute orders. The taking over and execution of any trading order received by the Broker by means described in this contract depend upon the existence of securities, upon the necessary amount of money in the Client’s account opened at the Broker and upon the conditions specific to the trading market.
7.6 You may give us instructions in electronic form through the XCM Capital Markets Ltd. Online Trading System. If any instructions are received by us by telephone, computer or other medium we may ask you to confirm such instructions in writing. We shall be authorized to follow instructions notwithstanding your failure to confirm them in writing. In this Agreement “instructions” and “orders” have the same meaning.
7.7 Types of Orders Accepted. Some of the types of orders the Company accepts include, but are not limited to:
• Good till Cancelled (“GTC”) – An order (other than a market order), that by its terms is effective until filled or cancelled by Client. GTC Orders are not automatically cancelled at the end of the Business Day on which they are placed;
• Limit/Stop – An order (other than a market order) to buy or sell the identified market at a specified price. A limit order to buy generally will be executed when the ask price equals the price that you specify in the limit order. A stop order to buy generally will be executed when the ask price the price that you specify in the limit order. A limit order to sell generally will be executed when the bid price equals the price that you specify in the limit order.A stop order to sell generally will be executed when the bid price equals the price that you specify in the limit order. Limit Orders (Buy Limit, Sell Limit, Take Profit) only execute at the entry price (trigger price). If the best available price at the time of execution is not at the entry price, the order resets and waits for execution. Stop Orders (Buy Stop, Sell Stop, Stop Loss) guarantee execution but do not guarantee the specified price. When triggered, stop orders become a market order available for execution at the next available market price. Slippage may be enabled for Pending Orders, as well;
• Market– An order to buy or sell the identified market at the current market price that the Company provides via the Online Trading System. An order to buy is executed at the current market ask price and an order to sell is executed at the current market bid price;
• One Cancels the Other (“OCO”) – An order that is linked to another order. If one of the orders is executed, the other will be automatically cancelled;
• Stop Loss – A stop loss order is an instruction to buy or sell a market at a price which is worse than the opening price of an open position (or worse than the prevailing price when applying the stop loss order to an already open position). It can be used to help protect against losses. Please note that because of market gapping, the best available price that may be achieved could be materially different to the price set on the stop loss order and as such, stop loss orders are not guaranteed to take effect at the price for which they are set;
• Trailing Stop – A trailing stop is the same as a stop loss order with the only difference being that, instead of setting a price at which the order is activated, the trailing stop order is activated at a fixed distance from the market price. For example, if Client has purchased a long open position and the market ask price increases, the trailing stop price will also increase and will trail behind the market ask price at the fixed distance set by Client. If the market ask price then decreases, the trailing stop price will remain fixed at its last position and if the market ask price reaches the trailing stop price, the order will be executed. Please note that because of market gapping, the best available price that may be achieved could be materially different to the price set on the trailing stop order and as such, trailing stop orders are not guaranteed to take effect at the fixed distance for which they are set.
Following submission of an order, it is your sole responsibility to remain available for order and fill confirmations, and other communications regarding your Account until all open orders are completed. Thereafter, you must monitor your Account frequently when you have open positions in the Account. Your order shall be valid in accordance with the type and time of the given order, as specified. If the time of validity or expiration date/time of the order is not specified, it shall be valid for an indefinite period.
7.8 Terms of Acceptance for Orders. It is your sole responsibility to clearly indicate the terms of an order when entered, whether it is a market order, limit order, stop loss order or any other type of order, including the relevant price and lot size. You acknowledge and agree that, despite our best efforts, the price at which execution occurs may be materially different to the price specified in your order. This may result from sudden price movements in the underlying assets that are beyond our control. The Company shall have no liability for failure to execute orders. The Company shall have the right, but not the obligation, to reject any order in whole or in part prior to execution, or to cancel any order, where your Account contains margin that is insufficient to support the entire order or where such order is illegal or otherwise improper.
7.9 Execution Policy. Where you place orders with us, the execution factors that we consider and their relative importance is as set out below:
• Price. The relative importance we attach is “high”.
• Speed. The relative importance we attach is “high”.
• Likelihood of execution and settlement. The relative importance we attach is “high”.
• Size. The relative importance we attach is “high”.
We are the counterparty to every order you place with us and therefore we are the only execution venue.
7.10 Authority. 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 provided such instruction is accompanied by your correct Account number and password. If your Account is a joint account, you agree that we are authorized to act on the instructions of any one person in whose name the Account is held, without further inquiry. We shall have no responsibility for further inquiry into such apparent authority and no liability for the consequences of any actions taken or failed to be taken by us in reliance on any such instructions or on the apparent authority of any such persons.
7.11 Cancellation/withdrawal of instructions. Non-market orders may be cancelled via the XCM Capital Markets Ltd. Online Trading System but we can only cancel your instructions if you explicitly request so, provided that we have not acted up to the time of your request upon those instructions. Executed instructions may only be withdrawn or amended by you with our consent. The Company shall have no liability for any claims, losses, damages, costs or expenses, including legal fees, arising directly or indirectly out of the failure of such order to be cancelled.
7.12 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.
7.13 Control of orders prior to execution. We have the right (but not the 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;
• controls over our total exposure to you;
• 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);
• controls over the Electronic Services (to include (without limitation) any verification procedures to ensure that any particular order or orders has come from you); and/or
• any other limits, parameters or controls which we may be required to implement in accordance with Applicable Regulations.
7.14 Trade Adjustments. Clients must be aware that Forex transactions carry a high degree of risk. The amount of initial margin may be small relative to the value of the foreign currency so that transactions are ‘leveraged’ or ‘geared’. A relatively small market movement may have a proportionately larger impact on the funds that the Client has deposited or will have to deposit. This may work against as well as for the client.
The Company exclusively reserves the right to widen its variable spreads, adjust leverage, change its rollover rates and/or increase the margin requirements without notice under certain market conditions including, but not limited to, when the trading desk is closed, around fundamental announcements, as a result of changes in credit markets and/or at times of extreme market volatility. In such circumstances, the Client agrees to indemnify the Company for any and all losses that may occur due the widening of spreads and the adjustment of leverage.
7.15 Execution of orders. We shall use our reasonable endeavors 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.
7.16 Confirmations. At the end of each trading day, confirmations for all Transactions that we have executed on your behalf on that trading day will be available via your Account on our trading platform, which is updated online as each Transaction is executed. Confirmation of execution and statements of your Account(s), in the absence of manifest error, shall be deemed correct, conclusive and binding upon you if not objected to immediately by email ([email protected]) if orders were placed through XCM Capital Markets Ltd.’s Online Trading System or by telephone to the XCM Capital Markets Ltd. Trading Desk, within one business day of making such conformations available to you via our platform or we notify you of an error in the confirmation within the same period.
In cases where the prevailing market represents prices different from the prices posted by the Company, the Company will attempt, on a best efforts basis and in good faith, to execute market orders on or close to the prevailing market prices. This may or may not adversely affect client’s realized and unrealized gains and losses.
7.17 Improper or Abusive Trading. The Company’s objective is to provide the most efficient trading liquidity available in the form of streaming, tradable prices for most of the financial instruments we offer on the trading platform. As a result of the highly automated nature of the delivery of these streaming, tradable prices, you acknowledge and accept that price misquotations are likely to occur from time to time.
Should you execute trading strategies with the objective of exploiting such misquotation(s) or act in bad faith (commonly known as ‘sniping’), the Company shall consider this as unacceptable behaviour. Should the Company determine, at its sole discretion and in good faith, that you or any representative of yours trading on your behalf is taking advantage, benefitting, attempting to take advantage or to benefit of such misquotation(s) or that you are committing any other improper or abusive trading act such as for example:
a. fraud/illegal actions that led to the transaction;
b. orders placed based on manipulated prices as a result of system errors or system malfunctions;
c. arbitrage trading on prices offered by our platforms as a result of systems errors; and/or
d. coordinated transactions by related parties in order to take advantage of systems errors and delays on systems updates.
Then the Company will have the right to:
a. adjust the price spreads available to you; and/or
b. restrict your access to streaming, instantly tradable quotes, including providing manual quotation only; and/or
c. obtain from your account any historic trading profits that you have gained through such abuse of liquidity as determined by us at any time during our trading relationship; and/or
d. reject an order or to cancel a trade; and/or
e. immediately terminate our trading relationship
7.18 Prohibited Trading
No employee and/or former employee who currently works or used to work on a full time or part time basis for the Company or any of its related entities shall, during the term of the employee and/or former employee’s service to the Company or any of its related entities and after termination of service become a client of any brand of the Company (either directly or indirectly, alone or with partners, associates, affiliates or any other third party) without the Company’s prior written approval. Should the Company consider that the employee and/or former employee is trading with any brand of the Company without the Company’s prior written approval personally and/or via a third party we shall consider all the trading to be abusive and/or improper trading. In such circumstances the employee and/or former employee’s trading account(s) and all open positions shall be closed immediately and any funds held within the account shall be confiscated.
No business associate or former business associate of the Company or any of its related entities shall, during the period of the agreement between the associate/former business associate and the Company and after termination of such agreement, become a client of any brand of the Company (either directly or indirectly, alone or with partners, associates, affiliates or any other third party) without the Company’s prior written approval. Should the Company consider that the associate/former business associate is trading with any brand of the Company without the Company’s prior written approval personally and/or via a third party we shall consider all the trading to be abusive and/or improper trading. In such circumstances the relevant associate/former business associate’s trading account(s) and all open positions shall be closed immediately and any funds held within the account shall be confiscated.
8. Electronic Trading Terms
8.1 Scope. These clauses apply to your use of any Electronic Services.
8.2 Access and Trading Hours
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. All references to the Company’s hours of trading are in Greenwich Mean Time + 2 (“GMT”) using 24-hour format. Our Electronic Services will normally be available continuously from 22:00 GMT Sunday until 22:00 GMT Friday (winter time), every week, excluding public holidays where the Forex market does not operate and cases where the market is closed due to illiquidity in the financial instruments. Please consult our website for more details on operating times for each financial instrument. We reserve the right to suspend or modify the operating hours on our own discretion and on such event our website will be updated without delay in order to inform you accordingly. In this respect the operating hours, as indicated on the websites operated by our company and to which you have trading rights are the applicable, except the case that the operating hours are outside than of the underlying asset market (reference market) trading hours. In this case the underlying asset market trading hours will prevail and all the trades placed in the uncovered interval will be cancelled, at the company sole discretion. We may change our security procedures at any time and we will inform you of any new procedures that apply to you as soon as possible.
8.3 Electronic Order entry for Market Orders equals Order execution
To enter an online order, you must access the Markets window, then click on “BUY/SELL” for the relevant market. A new window will appear in which you enter the price and lot size. The order is filled shortly after you hit the OK button provided you have sufficient funds in your Account. Orders may fail for several reasons including changing dealer prices, insufficient margin, unspecified lot size or unanticipated technical difficulties.
8.4 One-Click Trading
To use one-click trading, you must go to the “Settings” menu and choose “View and Edit”. You should check the “One-Click Trading” box. To enter an online order with one-click trading, you must access the Markets window and enter the price and lot size. The order is filled shortly after you click the BUY/SELL button provided you have sufficient funds in your Account. Orders may fail for several reasons including changing dealer prices, insufficient margin, unspecified lot size or unanticipated technical difficulties. One-Click Trading can also be used when closing positions.
9. Confirmations and reports
9.1 The Broker shall make available for the Client, by the e-trading system operated by him, the following reports:
a. confirmation messages of executing orders right after the trade, but no longer than 24 hours since the date of execution of each order;
b. account statements, containing data regarding securities and the cash amount available in the account, permanently updated;
c. reports regarding trading activity in the e-system, permanently updated.
9.2 Also the Broker shall provide the Client via internet with information regarding securities admitted to be traded on regulated markets, the securities’ issuer and market evolution, as well as specific conditions of type of security or trading market, if necessary.
9.3 The Client states and undertakes to make sure that the informatics systems used by him/her in order to access the trading system allow the download and save of reports sent by the Broker. Also the Client states that he agrees that the reports mentioned in this contract and in the regulations in force to be transmitted by the Broker exclusively online, by the e-trading system operated by the Broker.
9.4 The Client undertakes to notify the Broker in writing regarding any erroneous data and reports received, in maximum 48 hours since their display or since the moment when they were available on the e-trading system. After the expiry of the term, the content of the report shall be considered to be approved by the Client.
10. Record of accounts
10.1 The Broker shall keep separate records regarding the securities and cash from the Client’s account. The amount of money from the “Client’s” margin account:
a. is submitted in the “Client’s” bank account, opened by the Broker on his name and at a bank chosen at his will;
b. can be paid upon the Client’s request, except the amounts needed to terminate the trades which are pending or on verge of reimbursement, as well as the amounts owed to the Broker by the Client based on contracts between them;
c. is not accumulating interest rates in the Client’s benefit.
10.2 The Broker is authorized by the Client to transfer and to exchange currency in the amount which already exists in the Client’s account, foreign currency needed for reimbursement. The exchange rate shall be made at the partner bank’s exchange rate, free of fees from the Broker’s side. The Client shall be able to challenge the exchange rate only if the Broker shall use an exchange rate different from the exchange rate applied to the partner bank.
10.3 Except situation mentioned by art. 6.1 b), the Client expressly requests by this contract to keep the counter value of the sold shares in his account opened at Broker, in view of reinvesting it.
11. Broker’s rights and duties
11.1 the Broker shall fulfill the operations which are the scope of this contract, pursuant to the orders and instructions received from the Client, by complying with the laws of stock markets, of regulations issued by the Financial Services Commision, and market regulations and procedures where the securities are being traded. The Broker shall keep separate records of the securities and cash operations made from the Client’s account, which is open in his name at the Broker.
11.2 The financial investment services which are the scope of this contract are supplied by the Broker upon the Client’s will and they consist exclusively on taking over and executing orders and instructions. When supplying these financial services, the Broker does not have the obligation to evaluate the investment opportunity of the security or the service rendered, thus he can benefit from the rightful protection mentioned by laws in force.
11.3 The Broker shall direct all its efforts to permanently improve the quality of information provided to the Client via website or internet. The Broker does not guarantee in any way, explicitly or implicitly, the reality, the present and the integrity of information provided by this website and shall not be held liable against the Client or another person or entity for any of damages which resulted directly or indirectly from the use of website information or as result of an error or omission, This clause shall not apply in case of information contained in reports referring to operations made in the Client’s account.
11.4 The Broker undertakes to keep the confidentiality of operations made in the name and on behalf of the Client and to not reveal such information to third parties or publicly, except the case when information is or becomes public or if its reveal is demanded by an authority or tribunal authorized by law.
12. Client’s rights and duties
12.1 The Client certifies and undertakes full responsibility for the reality, integrity and update of information mentioned in the account opening application form. The Client undertakes to notify the Broker in writing about any modification of data included in the account opening application form or in a subsequent notification, in maximum 5 working days since the modification took place. Until receiving the notification, the Broker shall be entitled to use the data contained in the account opening application form or in the most recent modification sent as notification.
12.2 The Client undertakes that he was informed that the data, information, statistics and analysis referring to securities, issued units and markets, supplied by the Broker through the website or internet have a general character and are not personalized depending of the financial statement and investment purposes of the Client and do not represent recommendation of investments, indicators or liabilities for future performances of securities. The Client must make his own analysis by which to settle his investment decisions and the Broker shall not be held liable for any type of losses that the Client might suffer in connection with or as result of trades made by the Broker, pursuant to orders received by the Client.
12.3 The Client undertakes and guarantees that his orders shall be issued by complying with the practices and norms against market abuse. Except the case when, before issuing the order, the Client notifies the Broker about his quality of holder of privileged information (“Insider”) in relation with the issuant of the traded securities, the Client shall be considered to not have possessed such information or quality.
12.4 The Client undertakes that he was informed about the conditions to use the Broker’s website, including the fact that some information, statistics, analysis and other materials presented by means of this website are protected by copyright or other intellectual property rights. The Client undertakes to not use these materials or their content for other purposes than the ones mentioned in this contract, without prior written notification of the Broker and/or the copyright author.
12.5 The Client gives his express agreement that his orders regarding CFD securities to be executed outside regulated market or outside an alternative trading system.
13. Client Money
13.1 Client Money. We treat money received from you or held by us on your behalf in accordance with the requirements of the Client Money Rules.
13.2 Interest. You, the client, acknowledge and confirm that no interest will be received on the balance of your account.
13.3 Overseas banks, intermediate broker, settlement agent or OTC counterparty
We will endeavour to hold client money on your behalf within the European Union, however we may also hold your money outside the European Union. We may pass the funds received from the Client to a third party (e.g. an intermediate broker, a bank, a market, a settlement agent, a clearing house or OTC counterparty located outside European Union) to hold or control the funds in order to effect a Transaction through or with that person or to satisfy the Client’s 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 will pass thru the funds sent by you. The third party to whom we may pass the funds you deposit may hold it in an omnibus account and it may not be possible to separate it from other corporate funds, or other third party’s funds. In the event of insolvency or any other analogous proceedings in relation to that third party, we may only have an unsecured claim against the third party on behalf of the Client, and the Client will be exposed to the risk that the money received by the Company from the third party is insufficient to satisfy the claims of the Client in respect of the relevant account. We do not accept any liability or responsibility for any resulting losses. By accepting our Terms and Conditions you accept this settlement risk. We may deposit/pass thru Client funds with a depository/settlement agent who may have a security interest, lien or right of set-off in relation to that money. A Bank/Broker/Settlement Agent through whom we deal with could have interests contrary to the Client’s Interests. The legal and regulatory regime applying to any such bank or entity will be different from the legal and regulatory regime in the European Union 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 European Union. The Broker will not be liable for the insolvency, acts or omissions of any third party referred to in this clause.
13.4 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 two 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.
13.5 Liability and Indemnity
You agree that we shall not be liable for any default of any counterparty, bank, custodian or other entity which holds money on your behalf or with or through whom transactions are conducted. The Company will not be liable for loss suffered by you in connection to your funds held by us, unless such loss directly arises from our gross negligence, wilful default or fraud.
14. Margin Arrangements
14.1 Contingent liability
Where we effect or arrange a Transaction, 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 may 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. We will monitor your margin requirements on a daily basis and we will inform you as soon as it is reasonably practicable of the amount of any margin payment required under this clause.
14.2 Margin call
You agree to pay us on demand such sums by way of margin as are required from time to time 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.
14.3 Failure to meet margin call
Please note that in the event that you fail to meet a margin call, we may immediately close out the position(s). The position(s) shall be closed out (and the margin released, using the Stop Out mechanism) when the Margin Level indicator on your trading account is equal or less with 30%.
14.4 Form of margin
Margin must be paid in cash in currency acceptable by us, as requested from time to time by the Company. Cash Margin paid to us is held as client money in accordance with the requirements of the Client Money Rules. Margin deposits shall be made by wire transfer, credit card, e-wallet or by such other means as the Company may direct.
14.5 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). The net amount, if any, payable between us following such set-off, shall take into account the Liquidation Amount payable under Clause 15 (Netting).
14.6 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 and obtain legal title to the Secured Obligations.
14.7 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 margin transferred to us, except a lien routinely imposed on all securities in a clearing system in which such securities may be held.
14.8 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 cash held by us or our Associates or our nominees on your behalf until the satisfaction of the Secured Obligations.
15. Exclusions, limitation and indemnity
15.1 Changes in the market
Market orders are executed at the bid/ask prices offered through us. Pending orders (stop loss, limit (take profit), entry limit (to buy or to sell), entry stop (to buy or to sell) are executed at the then market price requested by you and offered through us, except stop orders (buy stop,sell stop, buy stop limit, sell stop limit, stop loss) which will be executed at the market price , if the market price triggers the pending order execution. We reserve the right, at our full discretion, not to execute the order, or to change the quoted price of the Transaction, or to offer you a new quote, in case of technical failure of the trading platform or in case of extraordinary or abnormal fluctuations of the price of the financial instrument as offered in the market. In the event we offer you a new quote you have the right to either accept it or refuse it and thus cancel the execution of the Transaction.
Without limitation, we do not accept any liability by reason of any delay or change in market conditions before any particular Transaction is effected.
16. Investment risk
16.1 The Client undertakes that he understands the terms and the risks specific to securities trades, including but not limited to, the fluctuation of market prices, dividends’ uncertainty, of success rate and profits, of fluctuation of exchange rate. The Client states that he has the capacity to understand that past performances do not represent guarantees for future performances of securities.
17.1 The operation mentioned in this contract shall be made pursuant to provisions of law, with regulations and instructions issued by the International Financial Services Commision, as well as with regulations and procedures specific to markets where the securities that are the scope of this contract are being traded on.
18. Contract liability
18.1 The parties of this contract cannot be held liable for the non-execution or wrongful execution, fully or partially, of any of contract duties, if the execution of such duty shall be stopped as result of an unpredictable and inevitable event, independent of the force majeure invoking party’s control.
18.2 In order to be exempted of liability, the force majeure invoking party is forced to notify the other party in writing about this event, in 5 working days since the event took place, when conditions allow it, or since the event stopped, in case it blocked the notification and to act accordingly in order to stop the consequences.
18.3 The Broker shall not be liable for any loss or damage suffered, directly / indirectly by the Client or any other person entity as a result of:
a. infringement by the Client of his contract duties;
b. access of e-trading system by a person unauthorized by the Broker;
c. system failure, the interruption of communication network or problems caused by an event out of the Broker’s control, including as result of bad functioning of internet or mobile phone network service.
18.4 The Client is aware that the access time to his account or the response speed of e-trading platforms can vary due to a variety of factors, such as: Internet connection quality, trading volumes, market conditions, stock markets performance or number of instructions sent to the Broker to be processed.
19. Notifications/communication/official business language
19.1 Notifications and communications between parties in relation to this contract shall be made in writing, in English language, at the addresses mentioned earlier in this contract or in the account opening application form or in any other notification regarding their subsequent modification, if not mentioned otherwise.
In the event of a conflict between XCM Capital Markets Ltd. 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. The official business language used between the Client and the Brokers is the English language. By accepting any other translated version of the Agreement the Client acknowledges that the English version of this Agreement will prevail.
19.2 Written notifications/communications shall be considered valid
a. upon the reception of the receipt signed, for the letters by postal unit, with acknowledgement of receipt
b. upon the reception of the email confirmation, in case of e-mail notifications, but not later than 24 hours since the email was sent, except the case when after the email was sent, it was received an error message.
c. upon the date when the notification becomes public on the Broker’s website, in case of notifications made by e-trading platform, administered by him.
19.3 Urgent communications can be made also by telephone, if later on confirmed in writing.
20.1 The Client can renounce unilaterally to this contract, on a period of 10 days since its conclusion, without any penalties and without justifying his/her decision. In case the Client terminates the contract unilaterally, he/she shall be forced to pay to the Broker all the taxes and fees for the services provided until the date of receiving the written termination notification by the Broker.
20.2 Except the case mentioned by art. 13.1, this contract terminates
a. by parties’ agreement;
b. by unilateral termination of the Contract, by any of the parties, based on a prior notification, sent to the opposing Party minimum 30 (thirty) days in advance;
c. in case the Broker is prevented from supplying financial investment services, as the ones which represent the scope of this contract, for more than 90 days;
d. the bankruptcy of any of the parties or any other similar procedure resulting from the insolvency of one of the parties;
e. in case of Client’s death or if he is declared incapable;
f. by rightful termination of this Contract, by any of the parties, in case of failure to execute, fully or partially, any of the duties resulting from this contract, without delay or Court intervention (commission agreement of IV degree), based on a simple termination notification addressed to the other party, minimum 30 (thirty) days before this date; the settlement of all problems during this period shall render the termination of this Contract invalid.
21. Laws in force. Conflicts
21.1 This Contract is governed by the Republic of Cyprus law.
21.2 Any conflict between parties in connection to the interpretation and/or execution of this contract shall be referred to Courts in charge with the Broker, if not solved in a friendly manner. In order to solve the conflict in Court, both parties shall first meet in view of solving the conflict in a friendly manner, and they shall produce a report for this purpose
21.3 In case a clause from this contract is declared void, it shall be removed and shall not affect the validity of other contract clauses. The parties agree that, once the void clause is removed, it shall be replaced with another one, in accordance with this contract’s character, if this concerns an essential element of the contract.
21.4 Each of the parties irrevocably:
a. agrees for our benefit that the courts of Cyprus 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
b. 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.
21.5 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 suit; jurisdiction of any courts; relief by way of injunction, order for specific performance or for recovery of property; attachment of assets (whether before or after judgment); and 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.
21.6 If you are situated outside Cyprus, process by which any Proceedings in Cyprus are begun may be served on you by being delivered to the address in Cyprus nominated by you for this purpose. This does not affect our right to serve process in another manner permitted by law.
We have the right to amend the terms of the Agreement. If we make any material change to the Agreement, we will give at least ten (10) business days written notice to you. Such amendment will become effective on the date specified in the notice. Unless otherwise agreed, an amendment will not affect any outstanding order or Transaction or any legal rights or obligations which may already have arisen.
Unless otherwise agreed, all notices, instructions and other communications to be given by us under the Agreement shall be given to the address or fax number provided by you to us. Likewise, all notices, instructions and other communications to be given by you under this Agreement shall be given to us in writing at the email address below:
Name: XCM Capital Markets Ltd.
Address: 23B Raoul Street, Port Louis, Mauritius
Telephone No: +7 (495) 6694229
Email Address: [email protected]
You will notify us of any change of your address for the receipt of notices, instructions and other communications immediately.
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. Your email/website acceptance of the Terms and Conditions expressed in this Agreement shall be binding as if they were in writing.
22.3 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. You agree that we may without further notice to you and subject to Applicable Regulations, transfer by whatever means we consider appropriate all or any of our rights, benefits, obligations, risks and/or interests under this Agreement to any person who may enter into a contract with us in connection with such transfer and you agree that we may transfer to such person all information which we hold about you.
22.4 Time of essence
Time shall be of the essence in respect of all obligations of yours under this Agreement (including any Transaction).
22.5 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.
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.
22.7 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.
23. Final provisions
23.1 The Client shall not be able to transfer, fully or partially, to another third party, his rights granted by this contract, without the prior written agreement of the Broker.
23.2 No transfer of any rights made by any of the parties shall be considered valid unless made in writing and personally signed by the parties or by their authorized representatives.