Trader Client Agreement
Last amended in February 2016
Trader Client Agreement
1. Parties and background
1.1 Tradeslide Trading Tech Limited is a company incorporated in England and Wales with Company Number 08061368 having its registered office at Acre House, 11-15 William Road, NW1 3ER, London (the “Company”). The Company is authorised and regulated for the conduct of investment business by the Financial Conduct Authority of 25 The North Colonnade, Canary Wharf, London, E14 5HS (the “FCA”). Tradeslide Trading Tech Limited is listed in the Financial Services Register under Firm Registration Number 586466.
1.2 The Company provides internet based services, including (i) brokerage, (ii) software, (iii) investment and (iv) ancillary services through the Company’s Website(s) under the commercial name “Darwinex”.
1.3 The Company operates an online trading platform for trading in financial instruments (the "Trading Platform").
1.3 Further information about the Company can be found on the FCA’s website or by contacting the FCA directly at 25 The North Colonnade, Canary Wharf, London, E14 5HS.
1.4 The Client is, as defined below, either the natural or legal person of legal age who opens a Trading Account on the Company’s website(s).
1.5 Unless indicated to the contrary, the defined terms included in the Client Agreement shall have a specific meaning ascribed to them in clause 38 below and may be used in the singular or plural as appropriate.
2. Acknowledgement and Acceptance
2.1 By opening a Trading Account, the Client expressly acknowledges and accepts that he/she has read, understood and accepted this agreement, including all the schedules thereto (jointly, the “Agreement” or the “Client Agreement”). The Company expressly states its intention to rely on the terms set forth in this Agreement, which shall govern all transactions between the Client and the Company after the Client has signified acceptance of this Agreement, either electronically or in writing.
2.3 By accepting the terms contained in this Agreement, the Client enters into a binding legal agreement with the Company.
2.4 By entering into this Agreement, the Client expressly grants the Company the irrevocable right during the term of this Agreement to monitor and evaluate the Trader’s trading activity in the Trading Account by means of the Company’s own evaluation methods. In this connection, the Client expressly grants the Company the right to contact the Client as a prospective DARWIN Provider.
2.5 For the avoidance of doubt, nothing in this Agreement will exclude or restrict any duty or liability owed by the Company to the Client under the Financial Services and Markets Act 2000 or the FCA Rules and if there is any conflict between this Agreement and the FCA Rules, the FCA Rules will prevail.
2.6 The Client acknowledges that the Company’s official language is the English language.
2.7 Abbreviated or particular terms used in this Agreement are defined in clause 37 unless defined at the point at which they are first introduced.
3. Scope and Commencement of the Agreement
3.1 The Client Agreement forms the basis on which the Company provides investment, software and ancillary services to the Client.
3.2 The Client Agreement is non-negotiable and overrides any other agreements, arrangements, express or implied statements made by the Company unless the Company, in its sole discretion, determines otherwise. If the Client Agreement were to be materially amended, reasonable notice shall be given to the Client.
3.3 The Client Agreement shall commence on the date the Company opens a Trading Account (as defined below) for the Client. The Agreement supersedes any previous Agreement between the Client and the Company.
3.4 For the avoidance of doubt, the Client expressly acknowledges that the Distance EU Directive 2002/65/EC does not require the Client Agreement to be signed by either the Client or the Company in order for both the Client and the Company to be legally bound by it.
4. Client’s Obligations
In addition to any other provisions in the Client Agreement, the Client must:
(i) Immediately notify the Company in writing of any change to the Client’s contact details, including, without limitation, all contact telephone numbers; email address(es); facsimile numbers and addresses and of any other information relevant to the performance of, and compliance with, this Client Agreement.
(ii) Post Margin in advance of trading with Darwinex and immediately post additional Margin upon receipt of a Margin Call from the Company.
(iii) Immediately on demand, indemnify the Company for all and any losses suffered by it in connection with the Company’s provision of the services regulated hereunder to the Client.
(iv) Pay the commissions when due and ensure the Client’s Account is sufficiently funded for this purpose.
(v) Immediately pay the necessary amounts to clear any Shortfall on the Client’s Trading Account on the earlier of: (i) the Client becoming aware; and (ii) the Company notifying the Client.
(vi) Regularly check the Client’s Account Statements and promptly inform the Company of any errors in the statements, as failure to notify the Company of any error within seventy-two (72) hours of the execution of a transaction shall constitute an acceptance by the Client of the description of the transaction(s) as set out in the Account Statements and the Client shall be bound by such description;
(vii) Agree that any net loss on any Negative Mark-to-Market Transaction may be deducted from the Client’s Trading Account on a real-time basis, or when the Transaction is closed (as determined by the Company).
(viii) Use the data displayed at the Company’s website(s) solely for the purposes set out in this Agreement and the Client acknowledges that such data or information is proprietary to the Company and any such provider and the Client will not retransmit, redistribute, publish, disclose or display in whole or in part such data or information to third parties except as required by applicable Laws; and to use such data or information solely in compliance with the applicable Laws.
(ix) In connection with the Client’s Account and associated trading activity, comply with all applicable Laws.
5. Provision of services
5.1 The Company is authorised by the FCA. Details of the Company’s designated investment business and ancillary services can be found on the FCA register.
5.2 The trading conditions and execution rules of the financial instruments on offer by the Company can be found online at www.darwinex.com at any given time. The Company operates on an execution only mandate and unless agreed otherwise is under no obligation to monitor or advise the Client on the suitability of their trading decision, therefore, the Company may execute an instruction received by the Client even if such transaction is not suitable for the Client.
5.3 Upon notice to the Client, the Company reserves the right to amend, from time to time, both the trading conditions and execution rules. Even if the Company amends any part of the trading conditions and/ or execution rules the Client continues to be bound by the Client Agreement, including but not limited to any amendments that have been implemented.
5.4 The Company does not and will not provide investment advice or recommendations to the Client or state an opinion in relation to any particular transaction. The Client understands that if necessary, independent advice should be sought in relation to trading financial instruments, including but not limited to trading specific financial instruments, investment strategies pursued, charges and tax implications.
5.5 The Company, from time to time and as often as it deems appropriate, may issue materials (the “Information Materials”), which contain information including but not limited to the conditions of the financial market, posted through its website and other media. It should be noted that the Information Materials are considered to be marketing communication only and do not contain, and should not be construed as containing, investment advice or an investment recommendation or, an offer of or solicitation for any transactions in financial instruments. The Company makes no representation and assumes no liability as to the accuracy or completeness of the information provided, nor any loss arising from any investment based on a statement, forecast or other information supplied by any employee of the Company, a third party or otherwise. The Information Materials are not prepared in accordance with legal requirements promoting the independence of investment research and they are not subject to any prohibition on dealing ahead of the dissemination of investment research. All expressions of opinion included in the Information Materials are subject to change without notice. Any opinions made are personal to the author and do not reflect the opinions of the Company.
5.6 The Client understands that no physical delivery of a CFD’s underlying instrument (or reference instrument) that the Client trades through his/her Trading Account shall occur.
5.7 The Client accepts that the Company acts as the execution venue, by sourcing liquidity over-the-counter (OTC) from market counterparties which may or may not be a regulated market.
5.8 The Client may trade through its Trading Account from 17:00 Sunday to 16:55 Friday New York City time, except for XAUUSD, which may be traded from 18:00 Sunday to 16:55 Friday New York City time with a daily trading break during weekdays from 18:00 to 18:01 New York City time. It should be noted that trading of certain financial instruments occurs during specific timeframes; the Client is responsible for looking at the contract specifications of such instruments for further details, prior to trading. The Client shall be notified of any Company holidays through the internal e-mailing system.
5.9 The Company is entitled to refuse the provision of any investment or ancillary service to the Client, at any time, without being obliged to inform the Client of the reasons to do so in order to protect the legitimate interests of both the Client and the Company.
5.10 Part of the personal information the Client provides to the Company allows the Company to assess whether the Trading Platform is appropriate for the Client.
5.11 The Company is entitled to rely on the information the Client provides the Company with unless the Company becomes aware that such information is manifestly out of date, inaccurate or incomplete. The Company has no responsibility for the information which the Client provides to the Company and the Company may assess the Client's knowledge, experience and appropriateness on the basis of the information the Client provides to the Company.
5.12 If the Company determines that the Trading Platform is not appropriate for the Client's level of experience and/or knowledge of CFDs, the Company will notify the Client and the Client may not be able to open a Trading Account.
5.13 If the Client elects not to provide the information required to allow the Company to assess appropriateness, or if the Client provides insufficient information, the Company may be unable to determine whether the Trading Platform is appropriate for the Client and therefore may decline the Client's application to open a Trading Account.
5.14 The Client acknowledges and understands that laws regarding financial services vary throughout the different jurisdictions and it is the Client’s obligation alone to ensure that the Client fully complies with any law, regulation or directive relevant to the Client’s country of residence with regards to the use of the services offered by the Company. For the avoidance of doubt, the ability to access the services provided by the Company does not necessarily mean that these services and/or the Client’s activities through it are legal under the laws, regulations or directives relevant to the Client’s country of residence.
The Company’s Website(s) does not constitute and may not be used for the purposes of an offer or solicitation to anyone in any jurisdiction in which such offer or solicitation is not authorised or to any person to whom it is unlawful to make such an offer or solicitation.
Access to the Company’s Website(s) and the offering of financial instruments via these site(s) may be restricted in certain jurisdictions and, accordingly, users accessing the Company’s Website(s) are required to observe and to inform themselves of such restrictions.
6. Client categorisation
6.1 The type of client category will determine the levels of protection afforded to the Client under the Financial Services and Markets Act 2000. The services provided by the Company under this Agreement will be on the basis that the Client is a Retail Client as defined in the FCA Handbook. This means that the Client is entitled to the protections that must be provided to Retail Clients under the rules contained in the FCA Handbook and under relevant legislation.
6.2 If a Client desires to be re-classified then he/ she needs to send the Company a written request; to firstname.lastname@example.org; the Company shall consider such request at its discretion after reviewing the Client’s change in circumstances. The Client is responsible for notifying the Company if his/ her personal circumstances change.
6.3 The Client shall be bound by the Client Categorisation Notice. Further details are available online at www.darwinex.com.
7.1 The Company shall act, at all times, as principal for all trades entered into by the Client and not as agent on the Client's behalf.
7.2 The Client authorises the Company to rely and/or act on any instructions sent by the former to the latter, without the need of the Company’s part for confirming the authenticity of the instruction or the identity of the person communicating the instruction.
8.1 The Client agrees that:
(i) the client's funds ("Funds"), according to clause 9 below, belong to the Client and are free of any lien, charge, pledge or other encumbrance;
(ii) the Funds, according to clause 9 below, are not the direct or indirect proceeds of any illegal act or omission or product of any criminal activity; and
(iii) the Client acts for his/ herself and is not a representative or trustee of a third person.
8.2 The Client guarantees the authenticity and validity of any document sent to the Company during (i) the account opening process; and (ii) the life of the Trading Account.
9. Client Money
9.1 In addition to the terms contained herein, the Client acknowledges that the terms & conditions set forth on Company’s Website apply to the different deposit / withdrawal methods accepted by the Company. Unless otherwise indicated, the Company will deposit any Client Money in one or more segregated account(s) held with one or more institution(s), separated from the Company’s money; this means that Client Money is treated as belonging to the Client and under no circumstances the Company will use Client Money, at any time, to meet any of its obligations. A Client’s claim will be against the Client Money pool in general. The Company will exercise all due skill, care and diligence in the selection, appointment and periodic review of the institution where the Client Money is deposited. It should be noted, that segregated account(s) will be established, maintained and operated according to the applicable rules and regulations. Darwinex will give instructions to the institution(s) regarding the transfer and movement(s) of the Client Money. If the Client has an Open Position the Company reserves the right, at any time and at the Company’s sole discretion, to set-off any unrealized losses incurred in respect of an Open Position against any of the Client Money that is held by the Company to the Client’s credit. In effect, this means that the Company, based on the conditions referred to above, may transfer any part of any unrealized losses from an institution to an account of the Company. At the same time, the Company may transfer any unrealised profit incurred as a result of an Open Position from a Company account to a Client Money account held in an institution.
9.2 The Client Money will be pooled with money belonging to other Clients so an individual Client will not have a claim against a specific sum in a specific account, in the event of insolvency
9.3 Once received, the Funds shall be deposited in an institution specified by the Company (the “Institution”) on the Client’s behalf, segregated from any of the Company’s funds.
9.4 The Company will not pay interest to the Client in respect of Client Money.
9.5 The Company may, from time to time, without the Client’s permission merge the Funds held in different Trading Accounts; under no circumstances, does this imply that the client has the right to a credit facility.
9.6 The Client has the right to withdraw, at any time, any part of the Funds on the Client’s Wallet, provided that there are Funds available. It should be noted that such request may take up to 3 (three) Business Days in order to be processed. The Company reserves the right to request additional information and/ or documentation to satisfy itself that the request is legitimate. In addition, the Company reserves the right to reject such a request if it deems that this may not be legitimate. The Client accepts that under such circumstances there may be a delay in processing the request.
9.7 The Client accepts that the Funds shall be deposited in the Client’s Wallet on the later date of either the Value Date on which the Funds are received by the Company or the Value Date on which the Funds are received by the Institution. The Funds deposited in the Client's Wallet shall be net of any transfer fees or other charges incurred by or charged to the Company that are imposed by the Institution (or intermediary involved in the process) that holds the Funds. On withdrawals, the Company reserves the right to charge all the commissions borne by the Company on the customer's deposit(s).
9.8 Where any Funds required to be deposited by a Client are deposited into his/her Trading Account and the Company suspects that the sender of the funds is not the Client or his/ her authorised representative, the Company may reject the Funds and return them to the remitter net of any transfer fees or other charges incurred by or charged to the Company, using the same transfer method as the one through which it originally received the Funds.
9.9 The Client accepts that withdrawal of any part of the Funds shall be concluded using the same transfer method and the same remitter as the one which the Company originally received the Funds from; under such circumstances, the Company shall return the part of the Funds requested net of any transfer fees or other charges incurred by or charged to the Company.
9.10 The Company reserves the right to decline a withdrawal that the client requested using a specific transfer method and has the right to suggest an alternative.
9.11 If, at any time, the Company is not satisfied with the documentation provided by the Client in relation to the withdrawal/ deposit, the Company reserves the right to reverse to the remitter any part of the Funds net of any transfer fees or other charges incurred by the Company, using the same transfer method as the one through which it originally received the Funds.
9.12 The Client accepts that the Institution may reverse any part of the Funds, for any reason; as a result, the Company shall immediately reverse the respective amount from the Trading Account net of any transfer fees or other charges incurred by or charged to the Company, using the same transfer method as the one through which it originally received the Funds. The Client accepts that this may result to a negative balance in the Trading Account; under such circumstances, the Company may merge the Funds held in different Trading Accounts as described in clause 9.5, above.
9.13 The client accepts that any requests he or she wishes to make relating to the administration of the Trading Account shall be made through the Client’s Wallet at www.darwinex.com.
9.14 The Company shall take all reasonable steps to ensure that the Client is informed regarding the progress of any requests referred to in the Client Money section, specifically in relation to the expected processing time and the need for any, or any further, documentation that if not in place may delay the processing.
9.15 If at any time the Client’s Trading Account has Funds of less than USD15 (or currency equivalent), the Company reserves the right to close the Trading Account and transfer the Client’s money to the Client’s Wallet at a fee, after notifying the Client accordingly.
9.16 The Company reserves the right to close an account in connection with an unclaimed Client money balance and release any Client money balances from Client bank accounts if:
(1) there has been no movement on the Client's balance for a period of six (6) years; and
(2) the Company has sent written notice to the Client at the last known address informing the Client of the Company's intention of no longer treating that balance as Client money and giving the Client twenty-eight (28) days to make a claim.
10.1 If the Client’s Trading Account is inactive for a calendar year, the Company reserves the right to charge an annual account maintenance fee of USD15 (or currency equivalent) in order to maintain the Trading Account open.
10.2 Prior to trading CFDs the Client needs to consider any applicable charges such as spreads, commissions, swaps and dividends. The Client is solely responsible for requiring clarifications from the Company in relation to the above, if necessary.
10.3 The Client should note that not all charges are represented in monetary terms (for example, charges may appear as a percentage of the value of a CFD); therefore, the Client needs to ensure that he/ she understands the amount that the percentage amounts to.
10.4 The Client should note that any applicable charges shall be instantly deducted from his/ her Trading Account.
11. Spreads and commissions
The applicable spreads and commissions charged when conducting a trade are available online at www.darwinex.com.
12.1 The swap is the interest added or deducted for holding an Open Position overnight.
12.2 Depending on the position held and the interest rates of the currency pair involved in a transaction the Client may either be credited or debited with financing; the operation is conducted at 17:00 New York City time and the resulting amount is automatically converted into the Client’s balance currency.
12.3 In case of currencies and indices, swaps are charged once from Monday to Thursday and in triple size on Fridays. In case of commodities, swaps are charged once on Mondays, Tuesdays, Thursdays and Fridays and in triple size on Wednesdays. It should be noted that the Company charges its own interest; the rollover interest rates of the Company are based on the overnight rate provided by its liquidity providers; the Company updates such rate as often as it deems necessary.
12.4 Further information regarding swaps can be found on www.darwinex.com
13.1 Dividends applicable to CFDs shall be reflected as a cash adjustment as calculated by the relevant calculation agent.
13.2 The Client is solely responsible for requiring clarifications from the Company in relation to the dividends applied, if necessary.
13.3 The Client may request the Company to provide information about dividends applied to the Company by its liquidity providers.
14. Limitation of Liability
14.1 The Company shall, at all times, conclude Client’s transactions in good faith.
14.2 The Company bears no responsibility for any acts or omissions concluded by either a natural or legal person that provides the Company with information in relation to the execution of the Client’s transactions in financial instruments, unless such acts or omissions were the result of negligence or fraud on behalf of the Company.
14.3 The Company bears no responsibility for any loss of opportunity that results in reduction in the value of the Client’s transactions in financial instruments, regardless of the cause of such reduction, except to the extent that reduction occurred as a direct consequence of the Company’s deliberate actions or omissions.
14.4 The Company shall have no liability to the Client in connection with the trading activity within the Client’s Trading Account whatsoever, including, without limitation, for transmissions that are inaccurate or not received by the Company, for any delay or defect in or failure of the whole or any part of the Company’s Electronic Trading System software or any systems or network links or any other means of communication. The Company will have no liability to the Client, whether in contract or in tort (including negligence) in the event that any computer viruses, worms, software bombs or similar items are introduced into the Client’s computer hardware or software via the Company’s Electronic Trading System, provided that the Company has taken reasonable steps to prevent any such introduction.
14.5 If and to the extent that the Company is found liable for any losses or damages in relation to a Transaction then, unless the Company is prohibited from limiting such liability by law, the maximum amount of the Company’s liability will be limited to four (4) times the amount of commission or spread paid or payable by the Client in respect of that Transaction.
14.6 Unless the Company is prohibited from excluding such liability by law (for example, for losses relating to death or personal injury or caused by our fraud), the Company will not be liable for any direct, indirect, special, incidental, punitive or consequential damages (including, without limitation, loss of business, loss of profits, failure to avoid a loss, loss of data, loss or corruption of data, loss of goodwill or reputation) caused by any act or omission of ours under this Client Agreement.
14.7 The Company shall have no obligation to monitor the Client’s trading activity, including without limitation, the Client’s Trading Account. The Company shall further have no liability for any failure to advise or warn the Client at any point or for any failure to do so promptly or at all that a Shortfall has occurred.
14.8 The Company bears no responsibility for any loss incurred as a result of the acts or omissions of the Institution or its employees, including but not limited to instances of false or misleading information provided by the Client.
The Company may net or set-off all amounts due by the Client to the Company immediately by deduction of such amount from the Client’s Wallet, which right shall extend to the ability to net across each Account and/or sub-account legally and/or beneficially owned by the Client or in which the Client has an ownership interest.
16. Financial Services Compensation Scheme
16.1 The Company subscribes to the Financial Services Compensation Scheme. The Client may be entitled to compensation from the scheme if the Company is unable to meet its obligations. This depends on the type of business and the circumstances of the claim. Details are available from the FSCS online at http://www.fscs.org.uk.
16.2 The Client may request the Company to provide information about the conditions governing compensation and the formalities which to be satisfied to obtain compensation.
The Client shall indemnify, or indemnify on demand, the Company for any costs incurred under the provision of investment or ancillary services by the latter, including but not limited to (i) the Client’s breach of the Client Agreement or (ii) false or misleading information provided by the Client to the Company.
18. Duration of the Client Agreement
The Client Agreement shall be effective from the day described in the Scope and Commencement of the Agreement section, until its termination or default under clause 20.1 – Termination and default below.
19. Notification and amendments to the Client Agreement
19.1 The Company will notify the Client in good time about any material change to the information provided under this section, which is relevant to a service that the Company is providing to that Client.
19.2 The Company reserves the right to amend, from time to time, any part of the Client Agreement, including where the Company deems that such amendments are necessary given an announcement by a regulatory authority of a competent jurisdiction. Under such circumstances, the Client shall be notified either in writing (which, for the avoidance of doubt includes email or other electronic communications) or through the Company’s Website(s) accordingly and shall reserve the right to accept or deny the amendments; it should be noted that the Client’s consent is not required for any amendment to be effective immediately.
Communications to an e-mail address provided by the Client to the Company shall be deemed to be communicated to the Client and the Client hereby accepts this.
20. Termination and Default
20.1 The Client may terminate the Client Agreement, for any reason, having provided a 15 (fifteen) Business Days written notice by sending a notification specifying the termination date to email@example.com provided only that there are no Open Positions traded through the relevant Trading Account and the Client has no amounts due for payment to the Company.
20.2 The Company may terminate the Client Agreement by giving the Client at least 7 (seven) Business Days written notice, specifying the termination date.
20.3 The Client accepts that the Company reserves the right to terminate the Client Agreement immediately by providing the former with a written notice, if clause 20.4, below, becomes effective.
20.4 The Company may terminate the Client Agreement immediately, in the event of:
(i) a breach of any part of the Client Agreement by the Client;
(ii) an issuance of an application, order, resolution or other announcement in relation to bankruptcy or winding-up proceedings of the Client;
(iii) a Client’s death;
(iv) a Client fails to make any payment due to the Company; and
(v) a Client is reasonably suspected of participating in any form of financial or other crime, including fraud, bribery, money laundering, market abuse or cyber crime.
20.5 A termination of the Client Agreement shall not imply that any of the Client’s responsibilities cease to exist; the latter shall still be liable to pay to the Company:
(i) any amount that is due to the Company;
(ii) any expenses that are incurred by or charged to the Company, as a result of the termination of the Client Agreement; and
(iii) any damage or loss that has arisen because of an arrangement or settlement.
20.6 Upon termination of the Client Agreement under clause 20.1, above, the Company shall immediately transfer to the Client via the Client’s Wallet any amount available in the relevant Trading Account minus any outstanding amount that is due to the Company by the Client.
20.7 If clause 20.4, above, becomes effective the Company reserves the right to reverse any transactions that are deemed to be contrary to the Company’s interests.
21. Risk Disclosure
Details relating to the risks involved in trading CFDs are contained in our Risk Warnings Statement. Please make sure you have read, understood and accepted the aforementioned statement before entering into this Agreement.
22. Confidentiality and Personal Data Protection
22.1 The Company is registered with the Information Commissioner’s Office (http://www.ico.gov.uk/) under the Data Protection Act 1998 (registration Z351556X). The Company agrees to treat information provided in connection with an application on this website as confidential. The Company will provide the Client with investment and ancillary services on the basis of information provided by the Client and the Client represents and warrants that all information given is true and accurate.
22.2 The Client’s personal information may be maintained on computer records and will not be disclosed to other parties except where the Company is expressly permitted to on a ‘need to know’ basis:
(i) Disclose information to the institution holding Client assets, their successors in business, and other institutions with which agreements are entered in order to provide our services to the Client.
(ii) Disclose information as required by Law or instructed by the FCA or any other regulatory body.
(iii) Disclose information to the Company’s compliance advisers, auditors and other such organisations.
22.3 Under the circumstances above, the Company shall expressly inform the third party regarding the confidential nature of the information.
22.4 The Company may carry out credit and other checks (including but not limited to identity, fraud prevention checks and checks into your current and past investment activity) from time to time as the Company deems appropriate. The Client's personal information or other information may be used in the prevention of money laundering as well as for the management of the Client's Trading Account. The Client authorises the Company to use the Client's personal information and other information to perform the above checks in relation to the Client's application to open a Trading Account.
22.5 The Company may also disclose Client’s information to any other company within the Company’s Group.
22.6 The Company uses a card processing company for its deposits and withdrawals to and from the Client’s account. This company does not retain, share, store or use personally identifiable information for any other purposes.
22.7 The Company may from time to time in the interests of proper administration of the Client’s account and for related purposes communicate an unsolicited real time financial promotion, as defined by FCA rules. The Company may from time to time engage companies for statistical purposes in order to improve the Company’s marketing; as a result, some or all of the clients’ data may be disclosed on an anonymous and aggregated basis only.
22.8 The Company cannot be held responsible for the information held on the Client’s file becoming inaccurate due to the Client’s change of circumstances if the Client fails to inform the Company of those changes. The Company wants to make sure the Client’s personal information is accurate and up to date. The Client may ask the Company to correct or remove information the Client thinks is inaccurate.
22.9 The Company keeps records of its business transactions, client categorisations and financial promotions, for at least five (5) years.
22.10 With the Client’s consent, the Client’s personal information may be used by the Company in order to provide the Client with information and marketing materials in relation to the Company’s other products and services. By entering into this Agreement the Client confirms his/her wish for his/her personal information to be processed for these additional purposes. If the Client does not wish his/her personal information to be processed in this way, the Client should notify the Company by contacting the Data Protection Officer at firstname.lastname@example.org.
22.11 The Client may request a copy of the information that the Company holds about the Client. If the Client would like a copy of all or some of the information, he should kindly write to email@example.com.
23. Recordings of Telephone Calls
23.1 The content of any telephone call between the Client and the Company may be recorded and saved as a magnetic or electronic record (the “Telephone records”). The Client agrees that the Company has the right to use the Telephone Records as it deems necessary including but not limited to training or regulatory purposes or in connection with any dispute involving the Company.
23.2 All instructions received from the Client, during a telephone call, in relation to trading financial instruments shall be conclusive and binding unless conditions in the Terms and Conditions are triggered.
23.3 The Company may provide copies of such recordings of telephone calls as required by Law or to a regulatory authority of a competent authority, without informing the Client.
24. Conflicts of Interest
24.1 The Company is committed to taking measures to recognise, supervise, examine and resolve conflicts of interest. The Company recognises that it is not possible to eliminate all sources of conflict of interest; however, safeguarding customers' welfare remains the Company’s primary objective. This policy encompasses the relationships with customers and third party contacts.
24.2 Specifically, the Client accepts that the Company may pay commission or any other related fee to a third party as a result of either (i) introducing the Client or (ii) the Client’s trading activity (under such circumstances the client shall be notified in writing).
24.3 Please make sure you have read, understood and accepted our Conflict Policy before entering into this Agreement.
25. Direct Contact Consent
The Client consents that any communication received by the Company, from time to time, in relation to the Client Agreement - or any other communication in relation to marketing (if applicable) - does not breach any of the Client’s rights and obligations under the Client Agreement.
26.1 The Client represents that he/ she has not been coerced or otherwise persuaded to enter into the Client Agreement.
26.2 The Client declares that he/ she is over 18 (eighteen) years of age (in case the client is a natural person) or has full capacity (in case the client is a legal person); therefore, the Client may enter into the Client Agreement.
26.3 The Client accepts that the Company reserves the right to revoke at any time, without prior written notice, any power of attorney documents that govern the relationship of the Client with his/ her authorised representative.
26.4 The Client declares that he/ she is fully aware of any implications, including but not limited to any restrictions, set by his/ her local jurisdiction in relation to entering into the Client Agreement.
26.5 The Client declares that any trading in financial instruments is proportional and/ or reasonable to his/ her specific financial situation and that independent financial advice has been sought, or will be if necessary.
26.6 The Client accepts that the trading of any transactions in financial instruments will occur only through the Trading Platform or other platform available to the Company at any given time to the Client.
26.7 The Client accepts the contract specifications for each financial instrument as such specifications, available online at www.darwinex.com. In addition, the Client accepts that the Company reserves the right to change the contract specifications without giving him/ her prior written notice.
26.8 If the Client is more than one natural or legal persons, the Client’s obligations and liability under the Client Agreement shall be joint and several; under the above mentioned circumstances any communication, including but not limited to a notice and order, shall be construed as delivered to all natural or legal persons that together form the Client.
26.9 The Client accepts that the Company shall take all reasonable steps to ensure compliance with the Law; such reasonable steps shall be binding upon the Client.
26.10 The Client accepts the fact that the Company shall have a lien on any amount that is deposited in his/ her Trading Account that is due for payment by the former to the latter. Although the Company does not need the Client’s consent in order to exercise the lien the former shall notify the latter of its intention, accordingly.
26.11 The Client represents that if an amount is due for payment to the Company, the later shall be entitled to debit the relevant amount from the client’s Trading Account immediately.
26.12 The Client consents that if his/ her Trading Account is inactive for three (3) months and its balance is less than USD15 (fifteen), or currency equivalent, then the Company may at its discretion disable the Trading Account. The Client may enable his/ her Trading Account, at any time; the msg of a Trading Account can be viewed through the Client’s Wallet (www.darwinex.com). In case of disabling the Client’s Trading Account as set forth on this Clause, the Client’s Funds will be deposited in the Client’s Wallet.
27. Force Majeure Event
27.1 The Company shall, in its reasonable opinion, determine that a force majeure event occurred; under such circumstances the Company shall take all reasonable steps in order to inform the Client.
27.2 A force majeure event is as an event or circumstance, including but not limited to any natural, technological, political, governmental, social, economical (including without limitation to the suspension of a currency) or similar event or circumstance that occurred after a transaction in a financial instrument occurred and such event or circumstance has not been anticipated at the date of entering into the transaction. In addition to the above, a force majeure event may include instances of illegitimate actions against the Company’s servers that may be outside the control of with the Client or the Company.
27.3 If the Company determines that a force majeure event occurred, without prejudice to any other rights of the client under the Client Agreement, the Company may:
(i) increase margin requirements; and/ or
(ii) increase spreads; and/ or
(iii) decrease leverage; and/ or
(iv) close-out, in good faith, any Open Positions at a price that the Company considers reasonable; and/ or
(v) request amendments to any closed positions; and/ or
(vi) suspend the provision of investment and/ or ancillary services to the client; and/ or
(vii) amend any of the content of the Client Agreement on the basis that it is impossible for the Company to comply with it.
27.4 Unless required by Law, the Company is entitled to refuse the provision of any investment or ancillary service to the Client, at any time, without being obliged to inform the client of the reasons to do so in order to protect the legitimate interests of the Company.
28. Margin Account and Requirements
28.1 The Client needs to ensure that he/ she has sufficient margin on his/ her Trading Account, at all times, in order to maintain an Open Position. In addition, the Client needs to continuously monitor any Open Positions in order to avoid positions being closed due to the unavailability of funds; it should be noted that the Company is not responsible for notifying the Client for any such instances.
28.2 At margin levels of 100% (hundred) the Company has the discretion to begin closing positions starting from the most unprofitable one. In addition at margin levels of 50% (fifty) the Company shall automatically begin closing positions at market price, starting from the most unprofitable one.
28.3 At margin levels of 100% (hundred) Darwinex MetaTrader 4, the Company will be entitled to notify the Client of a change in the Client’s margin level. Any increase to the Client’s margin level will be due and payable immediately on the Company’s demand. The Company will only increase the Client’s margin level where the Company reasonably considers it necessary.
28.4 The Company shall inform the Client, if applicable, about the existence of and the terms of any security interest or lien which the Company has or may have over the Client's designated investments or Client money or any right of set-off it holds in relation to the client's designated investments or Client money and if applicable, that a depositary may have a security interest or lien over or right of set-off in relation to this instruments or money.
29. Abnormal Market Conditions
29.1 Under abnormal market conditions, CFDs may fluctuate rapidly to reflect unforeseeable events that cannot be controlled either by the Company or the Client. As a result, the Company may be unable to execute the Client’s instructions at the declared price and a ‘stop loss’ instruction cannot guarantee to limit the latter’s loss. This may occur, for example, at the following cases:
(i) During Market opening;
(ii) During news times;
(iii) During volatile markets where prices may move significantly up or down and away from declared price;
(iv) Where there is rapid price movement, if the price rises or falls in one trading session to such an extent that under the rules of the relevant exchange, trading is suspended or restricted;
(v) If there is insufficient liquidity for the execution of the specific volume at the declared price.
29.2 CFD prices are influenced by, amongst other things, implementation of governmental, agricultural, commercial and trade programs and policies and national and international socioeconomic and political events.
30. Trading Platform Conditions
30.1 The Client accepts that the only reliable source of price related information is the Quotes represented on the real/ live server; this service may be disrupted and as a result price related information may not reach the Client.
30.2 The Client shall regularly consult the Help menu or User Guide of the Trading Platform; if a conflict arises the Client Agreement shall prevail unless the Company determines, in its sole discretion, otherwise.
31.1 The Company bears no responsibility for any loss that arises as a result of delayed or unreceived communication sent by the Company.
31.2 In addition, the Company bears no responsibility for any loss that arises as a result of unencrypted information sent by the Company that has been accessed via unauthorised means.
31.3 The Company bears no responsibility for any unreceived or unread internal messages sent to the Client through the Trading Platform; in case a message is not received or read within 7 (seven) Business Days the message may get automatically deleted.
31.4 The Client is solely responsible for the privacy of any information contained within the communication received by the Company.
31.5 Moreover, the Client accepts that any loss that arises as a result of unauthorised access of a third party to the Client’s Trading Account is not the responsibility of the Company.
32. Account review
Through the Trading Platform, the Client may review any of his/ her Trading Accounts, including but not limited to open and closed positions. In addition, through the Client’s Wallet (www.darwinex.com) the Client may safely manage his/ her account and deposit or withdraw money depending on his/ her trading needs.
33. Technical Issues
33.1 The Company bears no responsibility for any loss that arises as a result of a system failure, including but not limited to:
(i) hardware or software failure, malfunction or misuse either on the Client’s side or the Company’s or both;
(ii) poor internet connection either on the Client’s side or the Company’s or both;
(iii) incorrect settings in the Client terminal;
(iv) delayed updates of the Client terminal;
(v) loss to or corruption of any of the Client's data or records, whether stored on the Trading Account or not, or lack of back-up thereof; and
(vi) security breaches resulting in part or in whole from third-party software or networking goods or services or from actions or events outside the Company’s reasonable control.
33.2 The Client accepts that at times of excessive transaction flow there might be some delay in contacting a member of the Dealing Department, especially when there are important market announcements.
34. Governing Law, Jurisdiction and Dispute Resolution
34.1 The Client accepts that the Client Agreement and any investment and/ or ancillary services and transactions provided under it by the Company shall be governed by the law of England & Wales.
34.2 Any proceedings and their settlement that may involve the Company and the Client shall take place in the competent courts of England & Wales
34.3 The Client may raise a complaint in writing to the Complaints Officer at firstname.lastname@example.org. If following the Company’s subsequent investigation and response the Client is still not satisfied, the Client may contact the Financial Ombudsman Service. Full details are contained within the Company’s internal complaints procedure, which is available to the Client on request at any time.
35.1 Unless specifically instructed otherwise any notice, instruction, request or other communication shall be given by the Client to the Company in writing and shall be sent to the Company’s Office address, which appears on the Contact Us page (www.darwinex.com). Any notice, instruction, request or other communication sent to Company shall be effective when received by the Company.
35.2 The Client shall not, under any circumstance, assign or transfer any of the Client’s rights and/ or obligations under the Client Agreement to another natural or legal person.
35.3 The Company may, by way of written notice to the Client, assign or transfer any of the Client’s rights and/ or obligations under the Client Agreement to another natural or legal person, in whole or in part provided that such natural or legal person agrees to abide by the Client Agreement.
35.4 If, for any reason, a part of the Client Agreement is deemed to be unenforceable by a court of a competent jurisdiction then such part shall be severed from the Client Agreement and the remainder of the Client Agreement shall remain unaffected.
36. Relevant Information
CFDs are not eligible for sale in certain jurisdictions or countries. The Risk Disclosure Notice is not directed to any jurisdiction or country where its publication, availability or distribution would be contrary to local laws or regulations, including the United States of America. The Risk Disclosure Notice does not constitute an offer, invitation or solicitation to buy or sell CFDs. It may not be reproduced or disclosed (in whole or in part) to any other person without prior written permission from the Company. The Risk Disclosure Notice is not intended to constitute the sole basis for the evaluation of the Client’s decision to trade in CFDs.
37. Frequently Asked Questions
Questions regarding this Client Agreement or Darwinex's Terms and Conditions should be addressed, in the first instance, to the Customer Support Department (email@example.com).
Other questions related to Darwinex should be addressed to:
38. Definitions and Interpretation
Unless otherwise defined the terms used in this Client Agreement shall have the same meaning given in the FCA Handbook.
“Account Statement” means the Transaction history on the Client’s Trading Account available on www.darwinex.com and/or on the Trading Platform. A summary of the Transaction History may be emailed to the Client periodically.
“Authorised Representative” means either the natural or legal person who is expressly authorised by the Client to act on his/ her behalf; the abovementioned relationship is documented through a Power of Attorney, a copy of which is held by the Company.
“Balance” means the funds available in a Trading Account that may be used for trading financial instruments.
“Balance Currency” means the currency that the Trading Account is denominated in; it should be noted that all charges including spreads, commissions and swaps, are calculated in that currency.
“Business Day” means a day on which banks are generally open for foreign exchange transaction in London.
“Client” means either the natural or legal person of legal age who opens a Trading Account on the Company’s website(s).
“Client Money” means money that is paid into the Company pursuant to the FCA’s rules and is held for the Client. It is calculated as money deposited by the Client in his/ her Trading Account, plus or minus any unrealised or realised profit or loss, plus or minus any amount that is due by the Client to the Company and vice versa.
“Closed Position” means the opposite of an Open Position.
“Company’s website(s)” means www.darwinex.com and any other website owned by the Company.
“Company’s Group” means the Company and any other group company, oncludinh any parent, shareholder and/or subsidiary of the Company.
“Contract for Difference or CFD” means a CFD on spot foreign exchange (“FX”), or a CFD on shares, or a CFD on spot metals, or a CFD on futures or any other CFD related instrument that is available for trading through the Trading Platform; a full list of the financial instruments is available online at www.darwinex.com
“DARWIN” stands for dynamically allocated and risk weighted investments. These are financial assets designed by the Company based on the trading strategies of the DARWIN Providers, which are processed through the Company’s proprietary software in order to meet other investors’ individual risk profile.
“DARWIN Providers” are Clients who consent the Company to process their trading and/or investment strategies in order to transform them to DARWINs in exchange for a compensation set forth in the DARWIN Provider Agreement.
“Electronic Trading System” means the electronic spread betting, CFD and foreign exchange trading facility/ system provided by the Company which can be downloaded from www.darwinex.com.
“Equity” means the balance plus or minus any profit or loss that derives from any Open Positions.
“Free Margin” means funds that are available for opening a position. It is
Free Margin = Equity - Margin
“FCA Handbook” means the handbook of rules and guidance issued by the FCA, as amended or reissued from time to time.
“Law” means any applicable statutes, laws, regulations, rules and codes of practice, whether in the United Kingdom or elsewhere.
“Margin” means the required funds available in a Trading Account for the purposes of maintaining an Open Position.
“Margin Call” means a request from the Company to the Client however communicated, including, without limitation, by way of an electronic or pop-up message on the Trading Platform, SMS, letter; telephone call; facsimile transmission; email, to post Margin to the Client’s Trading Account;
“Margin Level” means the Equity to Margin ratio calculated as:
Margin Level = Equity / Margin
“Matched Principal Broker” means an investment firm with permission to deal in investments as principal with respect to investments that are BIPRU designated investments and ensures it deals as principal only to fulfil customer orders.
“Negative Mark-to-Market Transaction” means, with respect to the Client’s Trading Account at any time, each Transaction which is shown as a net loss to the Client on the Electronic Trading System, taking into account the applicable spread;
“Open Position” means any position that has not been closed. For example, an open long position not covered by the opposite short position and vice versa.
“Over the Counter or OTC” means the execution venue for any financial instruments whose trading is governed by the relevant Terms and Conditions of Business for MT4.
“Prospective Client” means either a natural or legal person who completed the application form that can be found online at www.darwinex.com.
“Shortfall” means, from time to time and for any reason, a negative balance in the Client’s Trading Account.
“Trading Account” means the trading account (either demo or real) which has a unique number, maintained by the Client with the Company for the purposes of trading financial instruments through the Trading Platform.
“Transaction” means any spread bet, CFD and/or foreign exchange trade the Client executes in his/her Trading Account from time to time.
“Terms and Conditions” means the “Terms and Conditions of Business” governing the actions that relate to the execution of the client’s orders; available online at www.darwinex.com.
“Value Date” means the delivery date of funds.
“Wallet” or “Client’s Wallet” means the tool at www.darwinex.com by means of which the Client may safely manage his/ her account and deposit or withdraw money depending on his/ her trading needs, as set forth on Schedule 1 to the Client Agreement.
1. About the Darwinex Wallet
1.1 This schedule of the Client Agreement forms the basis for the provision of the Client’s Darwinex Wallet (the “Darwinex Wallet”) from the Company to the Client. In effect, the Darwinex Wallet is a control tool designed for the secure management of the Client’s Money. Clients may choose to create a maximum of one (1) Darwinex Wallet denominated in one specific currency out of the range of currencies on offer by the Company. The Client may at his/ her discretion determine the amount of Client money that needs to be transferred from the Wallet to his/ her Trading Account(s), depending on his/ her investment objectives. It should be noted that any ‘in’ and/ or ‘out’ payments ‘to’ and/ or ‘from’ the Client’s Trading Account(s) should be done through the Client’s Darwinex Wallet only.
1.2 Any Client Money should remain, at all times, unaffected from any negative and/ or positive movement(s) of the Client’s Trading Account(s).
2.1 The Client understands and accepts that any transfers from his/her Trading Account(s) to his/her Darwinex Wallet are determined on whether the Client has any Open Positions:
(i) If a Client has no Open Positions, then transfers from the Trading Account(s) to the Wallet are permitted during any time.
(ii) If a Client has Open Positions, transfers from the Trading Account(s) to the Wallet are permitted up to 0.8 times the Client’s Free Margin on the relevant Trading Account(s).
2.2 Any currency conversion shall be made real-time based on the rate displayed in the pop-up screen at the time the Client gives the relevant instruction. It is important to note that there may be a fluctuation (either positive or negative for the Client) to the currency conversion rate displayed in the pop-up screen and the rate used by the Company to execute the instruction; this is due to latency that arises during the time of pressing the button in order for the instruction to go through and the time of actual execution of the instruction.
2.3 All transfers are completed real-time.
2.4 Any deposit(s) or withdrawal(s) from the Wallet to the Client’s bank or other account shall be processed according to section 9 of the Client Agreement.
LIMITATION OF LIABILITY
The Client remains fully responsible for the monitoring of the Client Money available in the Wallet and Trading Account(s) and for any ‘in’ and/ or ‘out’ payments that need to be made accordingly in order to commence trading or sustain any existing Open Position(s); such monitoring can be done through the Client’s Darwinex Wallet.
4. IMPORTANT NOTES
4.1 A Darwinex Wallet will be opened for every legal or natural person that becomes a Client.
4.2 It is understood and accepted by the Client that once a Darwinex Wallet is created it cannot be de-activated as this forms an inherent part of the Trading Account; this can only be achieved if the Client chooses to close his/ her Trading Account.
4.3 Further information about the Darwinex Wallet is available at www.darwinex.com