Risk Warning: Please note that Trading in foreign exchange (FX or Forex) and contracts for differences (CFDs) on margin involves a high degree of risk to your capital and may not be suitable for all investors. You may profit or incur losses much greater than the amount of money you deposit with ServiceCom Ltd.. Please also note that:
(i) You may sustain a total loss of the initial margin funds and any additional funds deposited with ServiceCom Ltd. to maintain your position, in addition to any liabilities detailed in Section 5 and any other clauses in this Agreement;
(ii) If the market moves against your position, or if margin levels are increased, you may be called to pay substantial additional funds on short notice to maintain your position;
(iii) If you fail to comply with a request for additional funds within the prescribed time, ServiceCom Ltd. in its sole discretion may liquidate any or all of your positions at a loss;
(iv) Whether you make a profit or a loss will depend on the fluctuations in currencies, commodities or other underlying factors which may be outside ServiceCom Ltd.’s control; and
(v) Full entitlement to and/or ownership of a portion, or all of the money you deposit with ServiceCom Ltd. will be transferred to ServiceCom Ltd. to the extent that it represents an amount necessary to secure your open positions or to cover your actual or future contingent or prospective obligations. Such that you will not have a proprietary claim over that portion or any of your money deposited, and ServiceCom Ltd. can deal with it on its own right.
(vi) Internet trading has associated risks, including but not limited to: the failure of Internet connection, hardware and/or software. As ServiceCom Ltd. does not control the speed at which signals are sent between your computer and its servers; therefore, ServiceCom Ltd. cannot be responsible for communication failures, delays or alterations when you are trading via the Internet. Please check that the device you are using meets the requirements of any software used, as ServiceCom Ltd. cannot be held responsible for this.
(vii) It is your responsibility to ensure that access to your trading platform including username and password is kept safe and you accept that it is reasonable for ServiceCom Ltd. to accept an order in the event these are entered correctly.
You must read carefully the terms and conditions of this Agreement (along with the relevant Appendices) as well as any other document issued by ServiceCom Ltd. in connection with this Agreement including, without limitation, the Risk Disclosure, which may either be supplied to you or made available by us on our Website. These documents contain important information concerning your's and our rights and obligations in relation to the services we will provide to you on the basis of this Agreement. We suggest you devote particular attention to Section 1 below, which serves as initial guidance to understand such rights and obligations.
By signing the Application Form, you acknowledge and confirm that the terms and conditions on which you will enter into are clear to you and that you understand and accept the terms of this Agreement and the other documents supplied to you or otherwise made available by ServiceCom Ltd. on its Website in connection with this Agreement. You should not sign the Application Form if you are not sure as to the effect of this Agreement or the nature of the risks involved. If you fill out, sign and submit the Application Form to us, you acknowledge that you have read the documents supplied to you or otherwise made available by us on our Website in connection with this Agreement and that you understand and agree that our relationship will be governed by the terms and conditions set out in this Agreement.
Please make sure you fully understand the risks involved and take the necessary precautions if necessary. Trading in contracts for differences may not be suitable for every costumer.
1. General Information
These (the ServiceCom Ltd. Terms of Business) are entered into by and between ServiceCom Ltd. (“ServiceCom Ltd.”), an investment firm authorised and regulated by International Financial Services Commission Belize () and you (the “Client”). These Terms together with the Application Form are the basis of our relationship.
Any additional terms and conditions issued by ServiceCom Ltd. and expressly stated to be an integral part of these (as available on the Website and whether or not referred to herein) describe the terms and conditions applicable to the contractual relationship between ServiceCom Ltd. and the Client (the “Agreement”).
The Risk Disclosure, the Conflicts of Interest Policy, the Best Execution Policy and any other document supplied or otherwise made available to the Client on the Website, which is not expressly stated to be an integral part of these do not contain terms governing the contractual relationship between ServiceCom Ltd. and the Client. They are intended to give the Client important information in relation to the services provided by us on the basis of the Agreement. The Client should carefully read and consider such information before entering into this Agreement.
1.2 Information about ServiceCom Ltd. and its Investment and Ancillary Services The registered offices of ServiceCom Ltd. are: License no: IFSC/60/270/TS/14, and our website address is: https://mtrading.com/th/ (the “Website”).
ServiceCom Ltd. is authorised by , to provide the investment and ancillary services. Please refer to the website to view our permitted activities and products.
ServiceCom Ltd. provides investment and ancillary services in the UK and may also provide one or more of such services in the others EU countries on a cross border basis (Passporting) with in accordance with the EU Directives on markets in financial instruments (“MiFID”) in force, subject to any amendments from time to time. When providing investment or ancillary services in other EU countries with the establishment of a local branch, ServiceCom Ltd. is required to comply with the rules of conduct governing such services under local Law and Regulations. The list of EU countries where ServiceCom Ltd. qualifies to provide one or more of the above investment and ancillary services on a cross border basis is available upon request. Information about the services, which ServiceCom Ltd. qualifies to provide in other EU countries, may also be obtained from the local regulatory authorities with supervisory responsibilities over investment firms.
The registered office of The Internatioal Financial Services Commission Belize is Sir Edney Cain Building, 2nd Floor, Belmopan, Belize, C. A.. The website may be found at www..gov.bz 1.3 All amounts handed over by the Client to the Company or which the Company holds on behalf of the Client, for the provision of Investment Services, shall be held in the name of the Client and/or in the name of the Company on behalf of the Client in an account institution. The Company will not be liable for any failure or insolvency of any bank or third party; however, applicable investor compensation or deposit protection schemes (FSCS, the Financial Services Compensation Scheme and FOS the Financial Ombudsman Service) may protect a proportion of Client Funds with any bank or third party.
1.4 Classification and Appropriateness:
Before acting upon the Application Form submitted by the Client, ServiceCom Ltd. will classify all the Clients as a “Retail Client”. If a client wishes to be upgraded to a “Professional Client” or “Eligible Counterparty” they have to submit the relevant questionnaire (which can be provided by us, on request). The Client will benefit from the regulatory protections afforded to the relevant category under UK Law and Regulations (or the Law and Regulations of the other EU country where we will provide its services, as applicable). In general, “Retail Clients” benefit from more regulatory protections than “Professional Clients”, and the protections afforded to “Eligible Counterparties” are limited. The Client may request a re-classification, from “Retail Client” to or “Professional Client” s (subject to some conditions) vice versa, which ServiceCom Ltd. may or may not accept. If the Client is classified as a “Retail Client”, we will assess your knowledge and experience in trading in the financial instruments covered by this Agreement based on information provided by the Client, and where appropriate, will inform the Client that the investment services provided by us under this Agreement are not appropriate for it.
1.5 Risk Warning
Before entering into this Agreement, the Client should carefully read and consider the Risk Disclosure, which is available on the Website. The Risk Disclosure sets forth the particular risks of investing in foreign exchange and contracts for differences. ServiceCom Ltd. will consider the request to open an account by the Client and its acceptance of this request, as unequivocal evidence that the Client has read and is prepared to accept the risks set out in the Risk Disclosure is helpful but does not describe all of the risks related to trading in contracts for differences. It is the Client’s responsibility to make sure it is fully aware of all these risks and to take appropriate advice, if necessary, before entering into this Agreement.
1.6 Conflict of Interest Policy
The Client should be aware that, when providing investment services to the Client under this Agreement, ServiceCom Ltd. will have interests (including interests deriving from duties we owe other clients or parties) in conflict with the Client’s interests, and some conflicts could not be effectively avoided or mitigated without altering the discretionary nature of the prices quoted by us. Indeed, by trading in contracts for differences the Client will make gains or incur losses as a result of a difference in prices (or exchange rates, as applicable) at which trading positions are respectively opened or closed.
ServiceCom Ltd. does not normally owe best execution duties to the Client as ServiceCom Ltd. deals with the Client “on quotes”, so it does not execute orders “on behalf” of the Client. When the Client wants to enter into a particular contract with ServiceCom Ltd., it may decide whether or not to do so based on the price (or exchange rate, as applicable) quoted by ServiceCom Ltd. for that contract. ServiceCom Ltd. determines the prices (or exchange rates, as applicable) at which it is prepared to enter into a contract with the Client (and the relevant bid-ask spread) in its absolute discretion, taking into account the price levels quoted by competitors and other intermediaries, general market conditions as well as other factors such as the exposure of ServiceCom Ltd. to the underlying financial instruments. Please refer to the Best Execution Policy on our website.
The Client realises and accepts that this pricing process involves conflicting interests of ServiceCom Ltd., which are intrinsic in the investment business ServiceCom Ltd. carries out under this Agreement. ServiceCom Ltd. will provide trading services to the Client on the basis that the Client is satisfied with the pricing policies and practices of ServiceCom Ltd. and believes that ServiceCom Ltd.’s pricing provides a fair treatment of the Client’s interests.
Where ServiceCom Ltd. may reasonably take steps to avoid or mitigate conflicts arising in the supply of its services which are likely to significantly affect the Client’s interests, ServiceCom Ltd. will do so in accordance with its Conflict of Interest Policy which contains provisions, among others, designed to:
(a) Describe the main sources of conflicts or potential conflicts with the Client’s interests, which may arise in the supply of services by us under this Agreement;
(b) Establish the procedures by which such conflicts will be identified and managed by ServiceCom Ltd. from time to time;
(c) Express the cases where the existence of a conflict must be disclosed to the Client before ServiceCom Ltd. can execute an order under this Agreement, so that the Client may decide whether or not to confirm the order; and
(d) Establish the procedures by which the Conflict of Interest Policy will be revised when needed or periodically updated.
A summary of the Conflicts of Interest Policy is available on the Website. Further details will be provided upon the Client’s request.
1.7 Services covered by the Agreement
This Agreement will only apply to the services described in Section 2. Other activities carried out by ServiceCom Ltd. – within the investment and ancillary services contemplated by Section 1.2 - fall outside the scope of this Agreement.
1.8 Charges and Commissions
All charges and commissions of ServiceCom Ltd. applicable under this Agreement are set out in the Rates Schedule.
1.9 Amendments to the Agreement
This Agreement (including any Appendices) may be amended by ServiceCom Ltd., in whole or in part, from time to time as set forth in Section 16.3. Any amendment will be made by us at our discretion either on notice or, in specified circumstances, without prior notice. Please refer to Section 16.3 for further details.
The Client may communicate with us in English. The Agreement and all documents issued by ServiceCom Ltd. in connection with the Agreement (whether supplied to the Client or available on the Website: collectively with the Agreement, the “ServiceCom Ltd. Documents” will be in English. When providing services in EU countries (on a cross border basis), ServiceCom Ltd. may agree to communicate with the Client in the local language and the ServiceCom Ltd. Documents (or some of them) may be translated in such language as determined by us in its discretion. Where documents are translated, these are to be used as a guide only and where there are any conflicts in information and/or wording the English version prevails.
1.11 Additional Information
For additional material information concerning this Agreement and the services provided by ServiceCom Ltd. hereunder please refer to the following Sections and the Appendices referred to within:
(a) Best Execution Policy: Section 2;
(b) Reporting duties of ServiceCom Ltd.: Section 9; and
(c) Management of Client’s complaints: Section 17.
1.12 Definitions: The words and expressions with uppercase initials used in this Agreement have the meanings indicated in the provisions referred to in Section 18.
2. ServiceCom Ltd. Services
2.1 Subject to the Client fulfilling its obligations under this Agreement, ServiceCom Ltd. may provide the following services to the Client (the “Services”):
(i) entering into spot contracts for differences with the Client on currencies, indices, precious metals, oil, commodities and financial instruments and products as listed in Underlying List (respectively, “Contracts” or “trading positions” and the “Underlying”) acting as principal and not as a Client’s agent; and
(ii) receiving and transmitting orders relating to Contracts to other investment firms or authorised intermediaries acting on behalf of the Client.
The Services shall be deemed to include, if ServiceCom Ltd. so agrees in its sole discretion from time to time, any such ancillary services, which ServiceCom Ltd. is authorised to provide under the authorisation as the Client may request. Unless otherwise expressly agreed to in writing by ServiceCom Ltd., when fulfilling Client orders ServiceCom Ltd. shall be treated as providing the Service under (i) above (“dealing on own account”).
2.2 Unless otherwise expressly agreed to in writing, ServiceCom Ltd. shall provide the Service under Section 2.1 (i) by fulfilling Client’s orders for its own account but not on behalf of the Client. ServiceCom Ltd. shall quote (either through the Platform or otherwise) the price (or exchange rate, as applicable) at which it is willing to enter into a particular Contract and the Client may decide whether or not to enter into such Contract at the price (or exchange rate, as applicable) quoted by us and on the terms contemplated by this Agreement. As a consequence, ServiceCom Ltd. shall not owe best execution duties to the Client under applicable MiFID rules save where it expressly agrees in writing to provide a Service on behalf of the Client. When ServiceCom Ltd. executes an Order on behalf of the Client, it will generally act in accordance with its order execution policy (the “Best Execution Policy”) as may be amended from time to time. The current Best Execution Policy has been provided to the Client and is also available on the Website.
ServiceCom Ltd. shall not provide the Client with any tax or other advice in relation to the Orders placed under this Agreement, the Contracts or otherwise in connection with this Agreement except that ServiceCom Ltd. will assess the appropriateness of the Services and the merits of the Client entering into this Agreement under applicable MiFID rules and in compliance with Sections 1.4 and 3.2. The Client may wish to seek independent advice before entering into this Agreement and placing any Orders or entering into any Contracts under this agreement.
2.3 The Client shall enter into this Agreement as a principal and not as an agent for any other person unless otherwise agreed to in writing by ServiceCom Ltd..
2.4 The Client acknowledges and agrees that ServiceCom Ltd. will carry out its trading business 24 hours a day, 5 days a week, from Sunday at 10 pm GMT through to Friday at 10 pm GMT or during such other trading hours as are disclosed on the Website, as applicable in relation to each Underlying or market. Subject to Section 2.6 and to the terms of this Agreement generally, ServiceCom Ltd. will only quote prices and accept Orders or instructions in respect of any Contract during those hours.
2.5 Where, in ServiceCom Ltd.’s reasonable opinion, a public holiday in any jurisdiction affects the relevant underlying market, ServiceCom Ltd. shall not be obliged to quote prices and will not accept Orders or instructions in respect of any Contract related to that market. ServiceCom Ltd. shall, from time to time, give reasonable notice of such public holidays and the affected Contracts on its website and/or within the Platform. In some cases, Contracts may only be traded during the time when the relevant exchange, where the Underlying is traded, is open. Where trading relates to any such Contract, ServiceCom Ltd. shall not be obliged to quote prices and will not accept Orders or instructions during any time when the relevant exchange is closed for business. ServiceCom Ltd. shall endeavour to inform the Client of the Contracts that are subject to such limited trading hours on its website and/or within the Platform.
2.6 Any change to the trading hours or other information contemplated by Sections 2.5 and 2.6 shall not be treated as an amendment to this Agreement and shall take effect as and when the relevant determination of ServiceCom Ltd. or event occurs with no need for prior notice to the Client (without prejudice to the obligations of ServiceCom Ltd. under Section 2.6)
3.1. The Client shall open an account with ServiceCom Ltd. (the “Account”) before placing any Orders or instructions or entering into any Contract with ServiceCom Ltd. under this Agreement. No Orders can be placed and no Contract may be entered into until an Account is opened and cleared funds have been deposited in accordance with this Agreement.
3.2 For opening an Account, the Client must complete and sign the Application Form, as well as sign this Agreement for acceptance (subject to ServiceCom Ltd.’s rights under Section 3.3. Following receipt of the Application Form and the additional documents indicated above, ServiceCom Ltd. may carry out all the searches and enquiries that ServiceCom Ltd. deems to be appropriate from time to time to assess the Client’s credit worthiness, including, without limitation, checks from banks, credit reference agencies and other reputable sources. ServiceCom Ltd. may use credit-scoring methods to assess the Client’s Application Form, to verify the Client identity and to consider any changes to the way in which the Client operates the Account. The information may be also used for debt tracing and the prevention of money laundering or terrorism financing as well as for the management of the Account. The Client authorises ServiceCom Ltd. to use the information to perform the above checks in relation to the Application Form and this Agreement generally.
The Client shall inform ServiceCom Ltd. in writing immediately of any material changes to the information provided to ServiceCom Ltd. by means of the Application Form, for example in relation to contact details or any adverse matter relating to the Client’ s financial status.
3.3 ServiceCom Ltd. may or may not accept the Application Form. If the Application Form is accepted by ServiceCom Ltd., the Client shall be notified of the Account number and invited to make an initial deposit in accordance with the instructions contained in the Application Form and any other operative indications available on the Website (the “Initial Deposit”). The Initial Deposit may be made by means of an accepted credit card, wire transfer to our Barclays Client Money Account(s) or Skrill to ServiceCom Ltd..
3.4 The Client may only start trading with ServiceCom Ltd. after the Initial Deposit is credited to the Client's Money bank account of ServiceCom Ltd. as set out in Section 3.7, however ServiceCom Ltd. may at its discretion authorise the Client to trade immediately for up to 2 business days preceding the date of crediting of the Initial Deposit if satisfactory evidence of the wire order is available to it by loaning the part or the full amount of the deposit made.
3.5 The Account shall be opened in the name of the Client (as shown on the clients valid recent ID/Passport). The Client may also open one or more additional Accounts in its own name. If the Client opens two or more Accounts, ServiceCom Ltd. will treat such Accounts separately subject to the provisions of this Agreement, and any reference to the Account contained herein shall be deemed as a reference to a single Account and not to all Accounts taken together.
At the Client’s request, ServiceCom Ltd. may, in its absolute discretion, agree to treat two or more Accounts opened by the Client as a single Account, giving notice to the Client in writing. In such a case, any reference to the relevant Account contained in this Agreement shall be deemed as a reference to all Accounts so aggregated by ServiceCom Ltd..
3.6 The Client may, by means of the Limited Power of Attorney, appoint another person to trade on the Account (the “Attorney”), giving Orders and/or instructions to ServiceCom Ltd. on behalf of the Client. The Client will need to complete the Limited Power of Attorney form available by contacting us. Any variation in the person who is authorised by the Client to trade on the Account shall be notified in writing to ServiceCom Ltd.. Unless and until we receive written notice of termination or substitution of the Attorney from the Client, ServiceCom Ltd. shall be entitled to accept Orders and/or instructions to trade on the Account from the Attorney, and the Client shall recognise such Orders and/or instructions as valid and binding.
For the avoidance of doubt, the appointment of the Attorney shall not prevent the Client from operating the Account directly and ServiceCom Ltd. may not be required to reject or disregard Orders or instructions of the Client in reliance on agreements reached by the Client and the Attorney, if any, which shall not be binding on ServiceCom Ltd..
ServiceCom Ltd. shall be authorised to act upon the oral, written or electronic instructions transmitted by the Attorney or by a person who appears to be the Client or the Attorney even if that person is neither the Client nor an Attorney. In particular, ServiceCom Ltd. shall be entitled to carry out any instructions or Orders transmitted using Client’s username, password and Account number. The Client may request ServiceCom Ltd. to make payments to the Attorney by debiting the Account to the extent cleared funds is available at the time of the request.
3.7 The Initial Deposit and any additional funds deposited by the Client on its own initiative or at the request of ServiceCom Ltd. under this Agreement (the “Client Deposits”) shall be credited to a client bank account of ServiceCom Ltd. (the “ServiceCom Ltd. Client Money Account”) and shall be administered on behalf of the Client subject to Section 3.9.
3.8 Any crediting of Client Deposits to the Client Money Account shall be made by the Client net of any bank fees, commissions or other charges or costs. The Client agrees to waive any right to receive interest on any positive balance of the Client Deposits standing to the credit of the ServiceCom Ltd. Client Money Account, provided that no bank fee, commission, expense or cost shall be charged to the ServiceCom Ltd. Client Money Account or otherwise deducted from such balance and that any transfer of funds to the Client made or allowed to be made by ServiceCom Ltd. pursuant to a permitted withdrawal under this Agreement shall be net of any bank fee, commission, expense, cost or other charge.
3.9 Subject to the following provisions of this Section 3.9, any and all Client Deposits shall be treated as “Client Money” in accordance with applicable UK Law and Regulations ( Client Assets “CASS” portion of the handbook), and ServiceCom Ltd. shall deal with Client Money in compliance with the CASS rules. The Client acknowledges and agrees that a portion of all Client Deposits determined by ServiceCom Ltd. in accordance with Section 8.2 shall not represent Client Money and the Client shall be deemed as having transferred to ServiceCom Ltd. full ownership of and title to that portion of the Client Deposits such that the Client will not have any proprietary claim over that portion of the Client Deposits which will not be segregated. ServiceCom Ltd. may deal with the portion of the Client Deposits which does not represent Client Money on its own account including, without limitation, transferring such money to any bank account other than the ServiceCom Ltd. Client Account subject however to the Client’s rights, waivers and obligations set forth in this Agreement (including the rights and waivers of the Client under Section 3.8 but excluding the rights under Sections 8.1 and 8.3).
3.10 The Account shall be denominated in the currency expressly agreed to in writing by the Client and ServiceCom Ltd. or, in the absence of such an agreement, in Euros (the “Base Currency”). Any payment owed by a party to the other as a result of any gain, earning, loss, cost, liability or otherwise which is made, incurred, accrued or howsoever arising under or in connection with this Agreement and is denominated in a currency other than the Base Currency shall be converted into the Base Currency at the then prevailing exchange rates as established by ServiceCom Ltd. in its sole discretion.
3.11 All gains, earnings, losses, costs and liabilities made or incurred by the Client under or in relation to any Contract or any Service provided by ServiceCom Ltd. or otherwise in connection with this Agreement (including commissions charged by ServiceCom Ltd. hereunder and exchange gains or losses under Section 3.10) shall be credited or debited to the Account, as applicable.
3.12 The Client may, at any time, withdraw funds from the Account by submitting a written request to ServiceCom Ltd.. The amount requested must be available funds, with these available funds subject to the current margin requirements of open positions. ServiceCom Ltd. may, at its discretion, elect to withhold payment (or deduct an amount from it, as applicable) if:
(i) Open Contracts show notional losses;
(ii) The relevant funds may reasonably be required to meet future Margin requirements due to underlying market conditions;
(iii) The Client has any contingent liability to ServiceCom Ltd. in respect of any other Account;
(iv) ServiceCom Ltd. is required by applicable law or regulations to deduct or withhold such payment; or
(v) There is an unresolved dispute between ServiceCom Ltd. and the Client in connection with this Agreement or any related contract.
The relevant payments shall be made by ServiceCom Ltd. in accordance with Section 3.8. No payment shall be made by ServiceCom Ltd. to any third party (other than Attorney, as applicable) out of the Account.
3.13 The Client shall give notice of Client Deposits and submit withdrawal requests to ServiceCom Ltd. using a form available on its website to be sent to ServiceCom Ltd. by facsimile or email.
4.1 The Client shall at all times ensure that the balance of the Account is equal to or greater than the sum of all Client Deposits required by ServiceCom Ltd. (each a “Margin”) in relation to open Contracts and any other exposure of the Client related to a Service provided by ServiceCom Ltd.. The margin requirement needed in relation to each trading position is available under the trading specifications of each product. ServiceCom Ltd. may vary the Margins in its absolute discretion at any time and the new Margins shall be disclosed as indicated above and shall apply immediately to any new trading position opened by the Client. If ServiceCom Ltd. notifies the Client in writing of the new Margin requirements; these shall also apply immediately to all trading positions of the Client, which were already open at the time of such notice. 4.2 The Client acknowledges and agrees as follows:
(i) The balance of the Account must at all times satisfy the Margin requirements established in accordance with Section 4.1;
(ii) Section 4.3 shall apply in determining whether the above Margin requirements are satisfied;
(iii) The Client must at all times monitor the Account balance against the Margin requirements;
(iv) ServiceCom Ltd. may, but shall not be obliged to, inform the Client that the Account balance is insufficient to meet the Margin requirements in relation to existing trading positions and/or for the opening of any new trading position;
(v) Failure to meet the Margin requirements constitutes an Event of Default and may have adverse consequences for the Client under this Agreement; and
(vi)The Margin requirements are not intended to represent the Client’s entire liability in relation to open trading positions.
4.3 The Client’s open trading positions shall be marked to market on an on-going basis during trading hours. The Client acknowledges and agrees that the Account balance may become insufficient due to:
(i) the market moving against the Client on one or more open trading positions (as a result of which mark-to-market losses will be entered in the Account);
(ii) ServiceCom Ltd. re-setting Margin requirements (subject to Section 4.1); and
(iii) The Client being allowed to trade by ServiceCom Ltd. notwithstanding Margin requirements are not met.
If the Account balance becomes insufficient to meet Margin requirements, then ServiceCom Ltd.:
(a) shall not accept new trading orders (however ServiceCom Ltd. may permit the Client to trade, in its absolute discretion, without prejudice to any rights and remedies of ServiceCom Ltd. under this Agreement which will not be deemed to be waived by this decision);
(b) May but shall not be required to claim the deposit of additional Margins by the Client; and (c) Shall have a right to close one or more open trading positions of the Client as necessary to reduce Margin requirements below the Account balance.
4.4 The Client acknowledges and agrees that:
(i) the Platform settings may automatically stop trading activities which would result in a breach of Margin requirements (without prejudice to all rights and remedies of ServiceCom Ltd. under this Agreement where the automatic stop mechanisms fail to work properly or ServiceCom Ltd. elects to permit the Client to trade) or in cleared funds in the Account reducing below a set percentage of the Margin requirements; and
(ii) close-out of open trading positions will be made starting from those showing the largest losses (however ServiceCom Ltd. may change this close-out Order as it sees fit in its absolute discretion from time to time).
5.1 Upon opening the Account, ServiceCom Ltd. shall provide the Client with a User ID and an Account number. The Client shall set its username and password (the “Access Codes”) to access the trading platform of ServiceCom Ltd. (the “Platform”). The Client can change its password at any such time as the Client deems it necessary. The Access Codes may only be used by the Client or the Attorney (if appointed) to the exclusion of any other person. The Client shall not disclose the User ID, the Account number and the Access Codes (collectively, the “Account Access Information”) to any person (but the Client may disclose the Access Codes to the Attorney, if appointed) and shall use best efforts to preserve (and ensure that the Attorney, if appointed, preserves) the full confidentiality of the Access Codes. The Client shall inform promptly ServiceCom Ltd. in writing if the Client knows or suspects that any unauthorised person has acquired (or has attempted to acquire) knowledge of the Account Access Information.
ServiceCom Ltd. may rely on any access to the Platform with the Access Codes as being made by the Client or the Attorney (if appointed). In order to protect your computer and person data, ServiceCom Ltd. recommends the use of anti-virus software with regular updates and scans being carried out. ServiceCom Ltd. is not responsible for access gained to the Platform through the Client’s password being ‘stolen’ through virus or other such software. ServiceCom Ltd. strongly recommends against the use of password management software (whether browser based or third party software). Any access to the Platform, gained through such software, will be the Client's responsibility, regardless of whether the Client authorises this. Furthermore, ServiceCom Ltd. strongly recommends locking devices when not in use at all times, and where possible, making use of a password only known by the Client as again ServiceCom Ltd. may rely on the use of the Platform as signalling trades carried out by the Client.
5.2 Unless a different agreement is made with ServiceCom Ltd., the Client (and the Attorney, as applicable) shall send all orders relating to a Service provided by ServiceCom Ltd. under this Agreement (the “Orders”) using the Platform in accordance with any terms or instructions relating to the use of the Platform, which may be published on the Website. Where ServiceCom Ltd. agrees to act upon an Order transmitted by phone or in writing, it shall be regarded as doing so on the basis that:
(i) the price or the exchange rate (the “Price”) at which the relevant Contract would be entered into is the Price quoted by ServiceCom Ltd. as displayed on the Platform or otherwise, and any such Order will be for a Contract to be entered into at such Price; and
(ii) ServiceCom Ltd. will process the Order by entering the relevant Contract into the Platform trading system using the Access Codes provided by the Client (or the Attorney, as applicable), in each case unless a different intention is expressly and clearly stated by ServiceCom Ltd. in writing.
5.3 Where ServiceCom Ltd. accepts an Order transmitted by phone, it shall be regarded as doing so on the basis that:
(i) ServiceCom Ltd. believes in its exclusive judgement to be in a position to identify the Client (or the Attorney, as applicable) in accordance with its internal procedures, but ServiceCom Ltd. will not be liable for accepting an Order transmitted by an unauthorised person other than in case of gross negligence, wilful default or fraud; and
(ii) The Client is aware and agrees that the phone call will be recorded by ServiceCom Ltd. and the recording and any transcript of it will be accepted as conclusive evidence of the Order.
5.4 Any Order shall be treated as an offer from the Client to enter into a Contract subject to the provisions of Section 2.2. When the Client wishes to enter into a particular Contract, it may request a quote for such Contract from ServiceCom Ltd. either by accessing the Platform (where ServiceCom Ltd. quotes bid and ask Prices for such Contract by displaying them on the Platform during trading hours) or by submitting a verbal or written request to ServiceCom Ltd. (in any other case).
ServiceCom Ltd. may or may not accept an Order in its absolute discretion, except that we may not refuse to fulfil an Order to close out an open trading position issued by the Client in accordance with this Agreement. ServiceCom Ltd. may also quote a new Price for a Contract, after receiving an Order, whenever it believes re-quoting is appropriate in consideration of market conditions or for any other reason. If ServiceCom Ltd. re-quotes the Price for a particular Contract, the original Order shall no longer be considered valid and binding and the Client may or may not send a new Order at the new Price quoted by us. The Client may revoke any Order at any time before acceptance by us, and ServiceCom Ltd. may delay the acceptance of an Order as it sees fit without giving notice to the Client and shall not be held liable to the Client for late acceptance of an Order. Any Order accepted by ServiceCom Ltd. shall be displayed as such on the Platform (if it relates to a Contract which may be traded on the Platform) and shall no longer be revocable by the Client.
5. 5 The Client acknowledges and agrees that:
(i) ServiceCom Ltd. will quote Prices under this Agreement based on (but, for the avoidance of doubt, with no fixed or binding relationship with) the prevailing prices and rates at which an Underlying is traded on the interbank market or other financial market which ServiceCom Ltd. regards as a reference market in consideration of trading volumes, bid-ask spreads and/or any other factor judged relevant by ServiceCom Ltd.;
(ii) the Prices quoted by ServiceCom Ltd. including bid-ask spreads may be changed by ServiceCom Ltd. at any time in its absolute discretion; and
(iii) ServiceCom Ltd. may discretionally set Margins and minimum or maximum size for each tradable Contract and may vary them at any time in its absolute discretion (provided that any variation in minimum or maximum Contract size shall not retroactively apply to open trading positions).
5.6 The Client acknowledges and agrees that software engineering, telecoms and electricity services affecting the use of the Platform are not under the control of ServiceCom Ltd. and that we shall not be responsible for:
(i) Any error in the transmission of an Order;
(ii) Any misinterpretation or mistake affecting an Order sent through the Platform (including technical and/or mechanical damage);
(iii) Any access to Client data by unauthorised persons;
(iv) The Client’s inability to access or use the Platform at any time; and
(v) More generally, any loss or damage incurred or suffered by the Client as a result of failures in the services supplied to ServiceCom Ltd. by software engineering, telecom and electricity service providers; in each case, unless there is evidence given by the Client that this was caused by the gross negligence, wilful default or fraud of ServiceCom Ltd.. In such circumstances, ServiceCom Ltd. will only be liable for damages or losses suffered or incurred by the Client which the Client proves to be the direct consequence of such gross negligence, wilful default or fraud (subject to Sections 10.4 and 10.5). ServiceCom Ltd. shall be responsible for the regular updating of the Platform software.
5.7 If the Client wishes to challenge a Contract or to dispute the way in which an Order has been fulfilled by ServiceCom Ltd. or to object to ServiceCom Ltd. not accepting to fulfil an Order, it must do so by oral or written notice to ServiceCom Ltd. within 2 business days as of the date of the Contract or the Order, as applicable. If the Client fails to deliver such a written notice to ServiceCom Ltd. within the above term, ServiceCom Ltd. shall be entitled to reject or disregard any verbal or late notice and the Client will be barred from any right to raise a valid judicial claim against ServiceCom Ltd. for the relevant matter.
5.8 The Client and ServiceCom Ltd. acknowledge and agree that:
(i) Any Contract which may be entered into under this Agreement will be a spot contract for differences (“CFD”) in nature relating to an Underlying listed on the website; and (ii) Under a CFD (a) neither ServiceCom Ltd. nor the Client may acquire any interest in or right to acquire or be obliged to sell, purchase, hold, deliver or receive an Underlying and (b) the rights and obligations of each party are principally to make and receive payments as provided for by or under this Agreement.
5.9 The parties agree that the following rules shall apply to CFDs:
(i) Any trading position opened by the Client shall automatically be rolled over until it closes in accordance with point (iii) below;
(ii) If two or more trading positions concerning the same Underlying are open on same Account, these shall be closed on a First In/ First Out (FIFO) basis unless Section 4.4 applies;
(iii) The new trading position under (i) above may be entered into (a) by the Client (by issuing a specific Order or by operation of a pending stop or limit Order) or (b) by ServiceCom Ltd. in the cases contemplated by Section 6.1 or (c) where close-out levels linked to Margin requirements are reached (subject to Sections 4.3 and 4.4); and
(iv) Without prejudice to mark-to market entries made in accordance with Section 4.3 (i), any gain or loss resulting from a closed trading position (which gain or loss will be the difference between the ServiceCom Ltd.-quoted bid or ask Prices, as applicable, at which the Contract was entered into and subsequently closed in accordance with point (iii) above, multiplied by the number of lots included in the Contract size) shall become due and payable by ServiceCom Ltd. to the Client or vice versa at the time the trading position is closed and shall be credited or debited to the Account, as applicable.
5.10 For so long as a trading position is open, a commission (the “Commission”) - calculated on a daily basis as set forth in the most updated Rates Schedule published on the Website - shall accrue to the benefit of the Client or ServiceCom Ltd., as applicable, but the Commission shall become due and payable as set forth below. The Account shall be debited or credited with the amount of the accrued Commission every calendar day, provided however that the Commission shall only become due and payable by the Client to ServiceCom Ltd. or vice versa when a trading position is closed.
5.11 Technical terms and instructions regulating the use of the platform and the Orders may be published by ServiceCom Ltd. on the Website, and such terms and instructions shall be deemed as an integral part of this Agreement subject to Section 16.3.
5.12 The parties acknowledge that errors may occur in the Prices quoted by ServiceCom Ltd. due to internet or connectivity failures or delays, price feed mistakes or otherwise resulting in quoted Prices materially deviating from market rates. In such circumstances, without prejudice to any rights either ServiceCom Ltd. or the Client may have under common law, neither the Client nor ServiceCom Ltd. will be bound by any Contract which purports to have been made (whether or not confirmed by ServiceCom Ltd.) at a Price which was, or ought reasonably to have been, known to either the Client or ServiceCom Ltd. to be materially incorrect at the time the Contract was entered into. Except for the case of fraud, ServiceCom Ltd. shall not be liable for any loss or damage suffered by the Client as a result of the reliance of the Client on a Price which the Client knew, or ought reasonably to have known, to be materially incorrect. ServiceCom Ltd. shall not permit any arbitrage practice or strategy designed to take advantage of price latency or other manifest errors and reserves the right to revoke any Contract entered into by the Client relying on such errors.
6. ServiceCom Ltd.’s Right to Close Out Contracts
6.1 ServiceCom Ltd. may close out all or some of the Client’s trading positions in the following cases:
(i) ServiceCom Ltd. is required to do so by any regulatory or other authority;
(ii) ServiceCom Ltd. knows or has reasons to suspect that the trading positions concerned have been opened by the Client in breach of any applicable Law and Regulations;
(iii) The Client fails to make Margin or other payments due to ServiceCom Ltd. under this Agreement or does not perform any other obligation owed to ServiceCom Ltd. under this Agreement or any transaction contemplated by this Agreement;
(iv)The Account balance falls below the Margin requirements established by ServiceCom Ltd. in compliance with Sections 4.1 and 4.3;
(v) A Force Majeure Event occurs;
(vi) A Hedging Event occurs with respect to one or more trading positions; or
(vii) ServiceCom Ltd. exercises closing-out rights subsequent to variation of this Agreement.
6.2 Any decision to close out all or some of the Client’s trading positions under Section 6.1 shall be made by ServiceCom Ltd. in its sole discretion.
7. Payments and Set-off
7.1 The Client shall be required to pay to ServiceCom Ltd., without limitation:
(i) The Margins set out in accordance with Sections 4.1 and 4.3 (subject to a minimum Initial Deposit as indicated in the Rates Schedule);
(ii) The amounts due under any Contracts (including trading losses and the Commissions provided for by this Agreement);
(iii) The amount of any taxes paid by ServiceCom Ltd. on behalf of the Client (if any);
(iv)Any indemnity due by the Client under this Agreement;
(v) Such additional amounts as ServiceCom Ltd. may reasonably require from time to time to secure the Client’s obligations to ServiceCom Ltd.; and
(vi)Any debit balance on any Account (without duplication).
7.2 All charges and Commissions due by the Client under this Agreement are set out in the Rates Schedule and may vary from time to time as determined by ServiceCom Ltd. in its full discretion.
7.3 The Client shall be responsible for payment (or reimbursement to ServiceCom Ltd., as applicable) of all VAT, stamp duty or other taxes levied or claimed by any taxing authority or otherwise arising in any jurisdiction in relation to any Contract entered into under this Agreement.
7.4 ServiceCom Ltd. shall have the right to withhold or deduct from any payment made to the Client under this Agreement or credited to the Account any amount required by applicable law to be withheld or deducted from any such payment or credit.
7.5 The Client shall be required to indemnify ServiceCom Ltd. from and against all costs, claims, actions, proceedings, damages, expenses and liabilities arising as a consequence of the Client failing to make a tax payment as and when due in relation to any Contract entered into under this Agreement or to reimburse ServiceCom Ltd. for any tax payment made by it on behalf of Client.
7.6 ServiceCom Ltd. shall have the right to set off any credit balance on the Account or other sum due by ServiceCom Ltd. to the Client against any debit balance or other sum due by the Client to it. This set off right may be exercised by ServiceCom Ltd. in its absolute discretion and without notice to the Client.
8. Client Money
8.1 All Client Deposits except the amounts set out in Section 8.2 shall be treated as Client Money. ServiceCom Ltd. shall deal with Client Money in compliance with applicable UK Law and Regulations (as stated above) and in accordance with Section 8.3.
8.2 ServiceCom Ltd. shall determine in its sole discretion the portion of the Client Deposits which is required to secure the present or future, actual or contingent liabilities and obligations of the Client to ServiceCom Ltd. on a daily basis (which determination shall be based on the Client’s open trading positions and shall take account of market conditions as well as any other event or circumstance believed to be relevant by ServiceCom Ltd. in its exclusive judgement). The portion of the Client Deposits not qualifying as Client Money shall include but may be greater than the Margin requirements under this Agreement. ServiceCom Ltd. shall notify the Client in writing of the portion of the Client Deposits not qualifying as Client Money from time to time (if greater than the Margin requirements under this Agreement) and shall deal with such portion of the Client Deposits in accordance with Section 3.9.
8.3 The Client Deposits qualifying as Client Money shall remain deposited in the ServiceCom Ltd. Client Money Account which ServiceCom Ltd. may hold either at an approved bank in the UK or at a bank in any other country in the EU (and in such latter case the Client acknowledges that the legal and regulatory requirements applying to the bank at which Client Money is held may be different from those of the UK). Section 3.8 shall apply to Client Deposits held in the ServiceCom Ltd. Client Account.
9. Reporting to the Client
9.1 In respect of each Contract entered into under this Agreement, ServiceCom Ltd. shall send the Client a note (the “Contract Note”) and, after closing out of the trading position, a balance of the account (the “Difference Account”). Such reports shall contain the information required by the applicable MiFID and UK CASS rules and shall be delivered to the Client, electronically by email no later than close of business of the next business day following the day on which a Contract is concluded or closed out.
9.2 In respect of each Account, ServiceCom Ltd. shall send the Client an annual statement of Account (the “Annual Statement of Account” and, together with Contract Notes and Difference Accounts, the “Reports”) containing the information required by the applicable MiFID rules to be delivered electronically by email no later than 2 weeks after the end of each calendar year.
9.3 Any Report to be delivered to the Client under this Agreement may be sent by ServiceCom Ltd. in electronic form and, where permitted by the applicable UK rules, may also be made available to the Client on the Platform with the reporting duties of ServiceCom Ltd. being accomplished by a notice delivered by ServiceCom Ltd. in accordance with Section 16.9 advising the Client that the Report is available on the Platform.
9.4 The Client should verify the contents of each Report without delay. In the absence of manifest error, each Report shall be conclusive evidence of the trading activities and other facts stated therein unless the Client notifies ServiceCom Ltd. of any mistake, error or inaccuracy within 3 business days of receipt of the Report or the notice under Section 9.3. 10. Indemnity and Liability
10.1 The Client shall indemnify ServiceCom Ltd., its affiliates, employees, agents, successors and assigns (each an “Indemnified Party”) on demand from and against all costs, claims, actions, proceedings, damages, expenses and liabilities of any nature whatsoever (whether present, future, contingent or otherwise and including legal fees) which an Indemnified Party may suffer or incur (collectively, the “Indemnified Party Losses”) as a direct or indirect consequence of:
(i) Any false representation or breach of warranty given by the Client under or in connection with this Agreement (including, without limitation, in the Application Form);
(ii) A breach by the Client of any of its obligations under this Agreement;
(iii) ServiceCom Ltd. exercising its rights under Section 13 (Events of Default); or
(iv)Any other event contemplated by this Agreement as being subject to indemnification by the Client unless and to the extent such Indemnified Client Losses are suffered or incurred as a result of the gross negligence, wilful default or fraud of ServiceCom Ltd..
10.2 Without prejudice to the generality of the foregoing, the Client shall indemnify ServiceCom Ltd. and any other Indemnified Party from and against all direct and indirect Indemnified Party Losses resulting from (a) the use of programmable trading systems (whether e-signed/manufactured by the Client or any third party) executed on or using the Platform, or (b) any claims against an Indemnified Party raised by a Client’s customer or other person in whose interest or behalf the Client has traded with ServiceCom Ltd. under this Agreement (whether in breach of this Agreement or otherwise).
10.3 Any liability of ServiceCom Ltd. to the Client under applicable law for breach of this Agreement or any representation, statement, act or omission including negligence arising under or in relation to this Agreement (including any liability for acts or omissions of employees, agents and sub-contractors of ServiceCom Ltd.) shall be subject to the imitations set out in Section 10.4 (subject to Section 10.5). 10.4 ServiceCom Ltd. shall not be liable to the Client for:
(i) Costs, claims, actions, proceedings, damages, expenses and liabilities which the Client may suffer or incur (collectively, the “Client Losses”) unless and to the extent that such Client Losses are suffered or incurred as a result of the gross negligence, wilful default or fraud of ServiceCom Ltd.;
(ii) Any Client Losses being the indirect or consequential effect of any act or omission for which ServiceCom Ltd. is liable to the Client including, without limitation, loss of profit, loss of business, loss of goodwill or reputation or other claims for consequential compensation;
(iii) Any Client Losses suffered or incurred as a direct, indirect or consequential result of any error in any Order, instruction, information given by the Client (or the Attorney, as applicable) or of ServiceCom Ltd. acting upon any Order or instruction given, or which appears to be given, by the Client (or the Attorney, as applicable);
(iv)Any adverse tax consequences of any trade; and
(v) Any other fact, circumstance, event or situation for or in respect of which ServiceCom Ltd. is not liable pursuant to specific exclusions or other terms of this Agreement.
10.5 Nothing in Section 10.4 may exclude or limit the liability of ServiceCom Ltd. for death or personal injury caused by its negligence or any liability owed by ServiceCom Ltd. to the Client under UK or other applicable law or regulations governing investment services and other financial activities performed by ServiceCom Ltd. under this Agreement (the “Law and Regulations”) which ServiceCom Ltd. is not entitled to contract out. ServiceCom Ltd. reserves the right to take any action it considers necessary to comply with applicable Law and Regulations. In the event of conflict or inconsistencies between any term of Agreement and any applicable Law and Regulations, the latter shall prevail.
11. Representations, Warranties and Covenants of the Client
11.1 The Client represents and warrants that:
(i) All information supplied by the Client to ServiceCom Ltd. is complete, true, accurate and not misleading in any material respect;
(ii) The Client has entered into this Agreement and will enter into any Contract thereunder as a principal and not as another party’s agent or representative;
(iii) The Client is not subject to any legal disability and is not subject to any law or regulation preventing performance of this Agreement or any Contract or transaction entered into thereunder by the Client;
(iv)The Client has obtained all necessary consents, licenses and authorisations and has full power and authority to enter into this Agreement and any Contract or transaction thereunder;
(v) The Client is in compliance with all laws and regulations to which the Client is subject in relation to this Agreement and any Contract or transaction thereunder including, without limitation, all tax laws and regulations, exchange control requirements, and registration requirements;
(vi) This Agreement and any Contract or transaction entered into thereunder create valid and binding obligations which are enforceable against the Client in accordance with their terms (subject to applicable principles of equity) in the jurisdiction in which the Client is resident and do not violate the terms of any law, regulation, order, charge, agreement or instrument by which the Client is bound or to which the Client’s assets are subject;
(vii) No Event of Default or any other event which may become (with the passage of time, the giving of notice, the making of any determination or any combination of these) an Event of Default (a “Potential Event of Default”) has occurred and is continuing with respect to the Client; (viii) The Client is fully aware of the financial and other risks involved with trading under this Agreement and is willing and financially able to sustain a total loss of funds resulting from the Contracts and transactions entered into thereunder;
(ix) All cash given to ServiceCom Ltd. by the Client to satisfy Margin requirements or for any other purpose is and will be free from any charge, lien, pledge or encumbrance and is also beneficially held by the Client;
(x) The Client has consistent and uninterrupted access to internet service and the e-mail address provided to ServiceCom Ltd. on the Application Form;
(xi) the Client will not enter into any Contract or transaction under this Agreement for the purposes of or in connection with any placing, issue, distribution, offer, take-over, merger or other similar corporate finance-type transaction, as applicable;
(xii) The Client will act in accordance with applicable law and regulations regarding market abuse, manipulation or misconduct, insider dealing and similar offences, as applicable; and
(xiii) The Client will not undertake any act nor engage in any activity, other than in the normal course of business, which seeks to or may alter, distort or otherwise manipulate the relevant market or Underlying in relation to a Contract or transaction entered into under this Agreement.
11.2 The representations and warranties under Section 11.1 shall be deemed to be repeated each time the Client provides ServiceCom Ltd. with Orders or instructions to enter into any Contract or transaction under this Agreement. The Client acknowledges and agrees that the above representations and warranties have been a material inducement to the decision of ServiceCom Ltd. to enter into this Agreement with the Client.
11.3 The Client covenants to ServiceCom Ltd. and undertakes that:
(i) The Client will at all times obtain and comply with, and do all that is necessary to maintain in full force and effect, all powers, authority, consents, licenses and authorisations referred to in Section 11.1;
(ii) The Client will promptly notify ServiceCom Ltd. of the occurrence of any Event of Default or Potential Event of Default;
(iii) The Client will use all reasonable endeavours to ensure compliance with Law and Regulations as applicable in relation to this Agreement and any Contract or transaction entered into thereunder;
(iv) The Client will promptly notify ServiceCom Ltd. of any change to the information provided to ServiceCom Ltd. upon entering into, or otherwise in connection with, this Agreement; and
(v) Upon demand, the Client will promptly provide ServiceCom Ltd. with any additional information ServiceCom Ltd. may reasonably require to comply with applicable Law and Regulations or any other legal requirement applicable to ServiceCom Ltd. including, without limitation, under AML and rules or otherwise in connection with this Agreement.
12.1 This Agreement may be terminated by the Client at any time by giving written notice to ServiceCom Ltd..
This Agreement may be terminated by ServiceCom Ltd. at any time by giving 10 business days’ notice to the Client except that ServiceCom Ltd. may terminate this Agreement immediately:
(i) If the Client fails to perform any provision of this Agreement;
(ii) Upon the occurrence of any Event of Default; or
(iii) If the Client has no open positions on the Account at the time when the notice of termination is sent.
12.2 The termination of this Agreement shall be without prejudice to any accrued rights and remedies of the parties and the existence and enforceability of any open Contract, which will continue in full force and effect until close in accordance with this Agreement unless otherwise determined by ServiceCom Ltd..
12.3 No penalty shall be payable by either party on termination of this Agreement. Any amount payable by the Client to ServiceCom Ltd. shall become immediately due and payable including, without limitation:
(i) All outstanding fees, charges and commissions;
(ii) Any dealing expenses incurred by us in terminating this Agreement;
(iii) Any losses and expenses realised in closing out any Contract or settling outstanding obligations incurred by us on behalf of the Client; and
(iv)Any indemnification owed by the Client to ServiceCom Ltd. under this Agreement.
ServiceCom Ltd. may consolidate all or any of the Accounts into one Account and deduct all amounts due to ServiceCom Ltd. before transferring any credit balance on the Account(s) (net of Margin requirements on continuing trading positions, if any) to the Client.
12.4 The obligations under Sections 10 (Indemnity and Limitation of Liability), 14 (Confidentiality) and 16.10 (Governing Law and Jurisdiction) will survive the termination of this Agreement.
13. Events of Default
13.1 If at any time:
(i) The Client fails to make any payment when due under this Agreement or to perform any other material obligation under this Agreement or any Contract or transaction entered into thereunder;
(ii) Any action is taken or event occurs which ServiceCom Ltd. reasonably considers might have a material adverse effect upon the Client’s ability to perform any of its material obligations under this Agreement;
(iii) Any action is taken or event occurs which ServiceCom Ltd. reasonably considers to be or might be a violation of any applicable Law and Regulations or good standards of market practice;
(iv) The Client dies or becomes of unsound mind or, where the Client is a legal entity, the Client is dissolved or any registration required for its capacity or existence is revoked, terminated or otherwise ends, or proceedings are commenced seeking or proposing the Client’s dissolution or the revocation, termination or end of such registration;
(v) The Client becomes unable to pay its debts as they fall due or is bankrupt or insolvent (as defined under any bankruptcy or insolvency law applicable to the Client) or any indebtedness of the Client is not paid on the due date therefor or becomes capable at any time of being declared due and payable before the due date of payment set forth in any agreement or instrument;
(vi) Any voluntary or involuntary procedure is commenced by or against the Client seeking or proposing liquidation, reorganisation, an arrangement or composition with creditors, a freezing action or moratorium or other similar relief with respect to the Client or the Client’s debts under any bankruptcy, insolvency, regulatory, supervisory, corporate, tax or similar law, or seeking the appointment of a trustee, receiver, liquidator, conservator, administrator, insolvency officer or other similar official with respect to the Client or any substantial part of the Client’s assets, or the Client takes any corporate steps to authorise any of the foregoing;
(vii) Any representation or warranty given by the Client proves to have been or becomes untrue, false or misleading in any material respect;
(viii) Any regulator of the business of ServiceCom Ltd. requires us to take any of the actions under Section 13.2; or
(ix) ServiceCom Ltd. reasonably considers that any of the circumstances set out in points (i)-(viii) above are likely to occur, then, we may exercise all or any of its rights under Section 13.2. Each of the circumstances contemplated in this Section 13.1 shall be referred to as an “Event of Default”.
13.2 Upon the occurrence of an Event of Default ServiceCom Ltd. may, in its absolute discretion and without notice to the Client:
(i) Close, combine or consolidate any or all of the open Contracts of the Client (in whole or in part) at such time or times and at such Price or Prices as are reasonably determined by ServiceCom Ltd., retain any sum owed by the Client to ServiceCom Ltd. and exercise its rights of set-off under Section 7.6 (provided that this will not limit the cases where ServiceCom Ltd. may exercise its rights of set-off under this Agreement);
(ii) Consolidate all or any of the Accounts and close or suspend any or all of such Accounts;
(iii) Refuse to accept any further Order from the Client and/or terminate this Agreement (provided that this will not limit the cases where ServiceCom Ltd. may exercise such rights under this Agreement);
(iv) Enter into any transaction, at such rate and at such time as is necessary to enable ServiceCom Ltd. to meet the obligations incurred under a Contract entered into by the Client hereunder; and/or
(v) Treat any or all of the Contracts as having been repudiated by the Client, in which event the obligations of ServiceCom Ltd. under such Contracts will be cancelled and terminated.
14 Upon the occurrence of an Event of Default, ServiceCom Ltd. may exercise all or any of its rights under Section 13.2 as it sees fit with a view to protecting its interests and without being accountable to the Client for any adverse consequences on the Client of its exercising such rights. ServiceCom Ltd. shall not lose any of its rights under Section 13.2 if the exercise of such rights is delayed for any reason. The rights of ServiceCom Ltd. under Section 13.2 shall be in addition to any other right and remedy ServiceCom Ltd. may have under applicable law. ServiceCom Ltd. shall endeavour to notify the Client of all actions and steps taken pursuant to its rights under Section 13.2 as soon as reasonably practicable.
14. Force Majeure and Hedging Events
14.1 Any events beyond the control of ServiceCom Ltd. will be deemed as “Force Majeure Events” including, without limitation, the following:
(i) Any breakdown or failure of any transmission or communication system or equipment or computer facility or trading software, whether belonging to ServiceCom Ltd., the Client, any market or any settlement or clearing system occurs;
(ii) ServiceCom Ltd. is unable to maintain an orderly market, in respect of one or more of the Underlying, as a result of the occurrence of any act, omission or event (including, but not limited to, any circumstances beyond the control of ServiceCom Ltd. such as strike, riot, war, terrorism, civil unrest or failure of power to supply, communications or other infrastructure); and
(iii) Any underlying market or Underlying is subject to, or affected by, suspension, closure, liquidation, abandonment, imposition of limits or special or unusual terms, or excessive movement, volatility or loss of liquidity.
14.2 If any Force Majeure Event arises, ServiceCom Ltd. shall not be liable to the Client for any failure, hindrance or delay in performing its obligations under this Agreement for the duration of the Force Majeure Event or for taking or omitting to take any action set out in this Section 14.2 below. ServiceCom Ltd. may additionally, at its reasonable discretion and without prejudice to any other rights:
(i) Alter normal trading times;
(ii) Modify Margin requirements (which may result in the Client being required to provide additional Margins);
(iii) Depart or derogate from this Agreement or any Contract entered into insofar as it is impractical or impossible for ServiceCom Ltd. to comply with its obligations;
(iv) Close any or all open Contracts and/or cancel Orders or instructions as ServiceCom Ltd. reasonably deems to be appropriate in the circumstances; and
(v) Take or omit to take all such other actions as ServiceCom Ltd. reasonably deems to be appropriate in the circumstances having regard to the position of ServiceCom Ltd., the Client or other customers. ServiceCom Ltd. shall inform the Client as soon as reasonably practicable if it determines that a Force Majeure Event exists or has existed.
14.3 A “Hedging Event” shall be deemed to occur, in respect of any Contract entered into hereunder, if ServiceCom Ltd. is unable or where it is impractical for us, after using reasonable efforts, to acquire, establish, re-establish, substitute, maintain, unwind, or dispose of any transaction or asset we deems necessary or appropriate to hedge its price risk relating to the Contract. If ServiceCom Ltd. determines, in its reasonable opinion, that a Hedging Event exists in relation to any open Contract, ServiceCom Ltd. may (without prejudice to any other rights and in its sole discretion), close the relevant Contract as it deems to be appropriate in the circumstances. In such a case, ServiceCom Ltd. shall provide the Client with 1 business day notice of its intention to exercise its rights under this Section 14.3.
15. Data Protection and Confidentiality
15.1 Personal information (possibly including sensitive data) within the meaning of the UK Data Protection Act 1998 provided by Client to ServiceCom Ltd. by opening the Account, placing Orders and entering into Contracts may be processed by ServiceCom Ltd. for the purposes of performing its obligations under this Agreement, administering the relationship with the Client and analysing, improving and developing the trade products and services of ServiceCom Ltd.. The above data may be disclosed to service providers and other suppliers (within the European Economic Area or otherwise including countries which do not offer “adequate protection” within the meaning of the EU Directives on data protection) for any purpose relating to the operation of the Account including, but not limited to, processing of instructions, generation of confirmations, operation of control systems and management of information systems, allowing staff of service providers and other suppliers who share the responsibility for managing the relationship between ServiceCom Ltd. and the Client to view such data. ServiceCom Ltd. may also disclose the above data to the Client’s introducing broker or agent, if any, as necessary to enable them to administer the relationship with the Client or to take any action in connection therewith.
15.2 Unless the Client requires ServiceCom Ltd. not to do so, personal information may also be used by ServiceCom Ltd. (and shared with the parties indicated above, as necessary) for marketing to the Client our products and services, as well as those of third parties which we believes may be of interest to the Client.
15.3 ServiceCom Ltd. has security procedures covering the storage and disclosure of the Client’s personal information to prevent unauthorised access and to comply with legal obligations. Before transferring personal data to service providers, other suppliers or parties for processing or other purposes, we shall ensure that adequate contractual arrangements complying with applicable legal standards are in place to protect the confidentiality of the information.
15.4 The Client may require ServiceCom Ltd. to provide details of the personal information held about the Client, the purposes for which the information is processed and the persons or class of persons to whom the information is disclosed. ServiceCom Ltd. may charge a fee to provide these details, the amount of which is available upon request. The Client may also require ServiceCom Ltd. to correct, delete and/or block personal information from further processing if that information is inaccurate.
15.5 Subject to the foregoing, neither party may disclose to any person any information relating to the business, investments, finances or other matters of a confidential nature of the other party of which it may become possessed in connection with this Agreement and its performance by the other party, and each party shall use all reasonable endeavours to prevent such disclosure. Notwithstanding the above, each party (the “Disclosing Party”) may disclose information about the other party, this Agreement, the Account and any trade thereon as the Disclosing Party may be required by any law, rule or regulatory, law enforcement or tax authority or as the Disclosing Party reasonably believes to be necessary to properly perform its obligations under this Agreement or to exercise and enforce its rights thereunder (including, without limitation, as set forth in Section 16.4) without prior notice to the other party.
16.1 Illegality: If at any time any provision of this Agreement becomes illegal, invalid or unenforceable under applicable law, the legality, validity and enforceability of the other provisions of this Agreement shall not be affected thereby.
16.2 Entire Agreement: This Agreement, together with any Appendices and any Contract Notes, Difference Accounts and other Reports sent by ServiceCom Ltd. to the Client in respect of each Contract contemplated by this Agreement and the Account(s), forms the entire agreement between ServiceCom Ltd. and the Client in relation to the FX and CFD activities of ServiceCom Ltd.. This Agreement supersedes all prior oral or written representations, arrangements, understandings and/or agreements between the Client and ServiceCom Ltd. in relation to the FX and CFD activities of ServiceCom Ltd. (including any agreement between the Client and any third party which has been assigned to ServiceCom Ltd., if any). ServiceCom Ltd. has not made (and the Client may not rely on) any representation; arrangement, understanding or agreement not expressly referred to or set out in this Agreement.
16.3 Variation: ServiceCom Ltd. may vary this Agreement at any time, including the Rates Schedule, by written notice to the Client. Without prejudice to Section 4.1, any change to the Margin requirements and the summary of the Best Execution Policy may apply with immediate effect. All other changes shall become effective on the date specified in the notice, which may not be less than 10 business days after delivery of the notice to the Client (which has the right, after the notice, to close out open trading positions and/or to terminate this Agreement at any time in accordance with the terms of this Agreement). ServiceCom Ltd. may also at any time, by written notice to the Client, cease to accept trading positions in respect of a specified Underlying. The date on which ServiceCom Ltd. ceases to accept Orders for such Underlying shall be specified in the notice and shall at least be 10 business days after delivery of the notice. The Client is required to close out all open positions relating to such Underlying before the effective date specified in the notice and, if the Client fails to do so, ServiceCom Ltd. may close out all remaining trading positions effective from the close of trading on the effective date indicated in the notice in accordance with the terms of this Agreement.
16.4 Assignment and Delegation: The Client may not assign (or purport to assign) rights or delegate (or purport to delegate) obligations under this Agreement to any person without the consent of ServiceCom Ltd., nor charge (or purport to charge) any of the Client’s rights under this Agreement (including any rights to deposits held with ServiceCom Ltd.). ServiceCom Ltd. may assign rights and delegate obligations under this Agreement and Contracts entered into thereunder to any person on giving the Client not less than 1 months’ notice. However, where the Client is in default of its obligations under this Agreement, ServiceCom Ltd. may assign to other persons with immediate effect all or any of its rights in respect of monies owing to ServiceCom Ltd. or remedies available to us under this Agreement. If ServiceCom Ltd. makes such an assignment of rights or delegation of obligations, the Client may be required to acknowledge in writing that the assignee or delegate has assumed the relevant rights and obligations of ServiceCom Ltd.. Notwithstanding anything to the contrary contained in this Agreement, ServiceCom Ltd. may disclose to any actual or potential assignee or delegate such information relating to the Client and the relationship between the Client and ServiceCom Ltd. as ServiceCom Ltd. sees fit.
16.5 Rights and Remedies: The rights and remedies set forth in this Agreement are cumulative and not exclusive of any other rights and remedies provided for by applicable law. ServiceCom Ltd. is under no obligation to exercise any rights and remedies in a manner or at a time beneficial to the Client.
16.6 Delay, Omission and Waiver: No delay or omission on the part of ServiceCom Ltd. in exercising any right, power or remedy provided by law or under this Agreement, or any partial or defective exercise thereof, may (a) impair or prevent any further or other exercise of such right, power or remedy, or (b) operate as a waiver of such right, power or remedy. No waiver or relaxation of any right, power or remedy relating to any term of this Agreement or breach thereof may (unless expressly agreed in writing by the waiving party) be construed as a waiver or relaxation of rights, powers or remedies relating to the same term or a future breach thereof or as authorising a continuation of a particular breach.
16.7 Records: The records of ServiceCom Ltd., unless proved to be wrong, shall be proper evidence of the Client’s dealings with ServiceCom Ltd. under this Agreement. The Client shall not object to the admission of such records as evidence in legal proceedings because the records are not originals, are not in writing or are documents produced by a computer. The Client shall not rely on ServiceCom Ltd. to comply with its record keeping obligations although the records of ServiceCom Ltd. may be made available to the Client on request, in the absolute discretion of ServiceCom Ltd..
16.8 Third Party Rights: No provision of this Agreement is intended to be enforceable by any person who is not a party to this Agreement.
16.9 Notices and Communications:
16.9.1. Subject to Section 16.9.2, any notice or other communication given or made under or in connection with the matters contemplated under this Agreement shall, except where oral communication is expressly provided for, be in writing and shall be sent to the address below:
(i) Where ServiceCom Ltd. is the intended recipient:
ServiceCom Ltd. วันแปซิฟิคเพลส อาคารเลขที่ 140 ชั้น14 ห้อง 1402 ถนนสุขุมวิท เขตคลองเตย กรุงเทพมหานคร 10110 ประเทศไทย. E-mail address: Dealing-related communications to firstname.lastname@example.org
(ii) Where the Client is the intended recipient: the address, the telephone, the facsimile numbers and the e-mail address the Client provided to ServiceCom Ltd. for this purposes on the Application Form 16.9.2 Any such notice shall be deemed (in absence of evidence to the contrary) to have been received:
(i) If delivered personally or by hand, at the time of delivery;
(ii) If posted, within five (5) business days after posting;
(iii) If verbal, by telephone, when actually given;
(iv) If by leaving a message on a telephone answering machine or voice mail, when the message was left;
(v) If sent by facsimile, upon receiving confirmation of its transmission; and
(vi) If sent by electronic mail, when the message is sent unless a “not sent” message or “not received” message is received from the sender’s electronic mail provider.
16.9.3 The Client confirms that it has a regular access to the Internet and consents to ServiceCom Ltd. providing information, including but not limited to the information concerning the Best Execution Policy, Risk Disclosure Statement, or any other relevant Policy which affects the relationship between the Client and ServiceCom Ltd. by e-mail or by posting it on the Website as ServiceCom Ltd. may from time to time notify to the Client.
16.9.4 The Client may change the address, facsimile number and e-mail address indicated above to which we will send any notice or communication relating to this Agreement and ServiceCom Ltd. may change the contact details indicated above, provided that in either cases the change will be effective on the date specified in the relevant notice (subject to Section 16.9.2).
16.9.5 Any written notice (including the notice to terminate this Agreement) or other written communication to be given to the Client by ServiceCom Ltd., including the Reports, may be sent to the Client in an electronic form (without prejudice to Section 9.3). The Client should verify the contents of each document sent by ServiceCom Ltd. as, in absence of any manifest error, the notice shall be conclusive unless the Client notifies ServiceCom Ltd. in writing within 3 business days of the date of receipt of the relevant notice of any mistake, error or inaccuracy in such document.
16.9.6 The Client irrevocably authorises ServiceCom Ltd. to communicate with the Client by letter, e-mail, facsimile or telephone to discuss matters in relation to the Account, at any time whatsoever unless specifically requested otherwise in writing by the Client.
16.10 Governing Law and Jurisdiction: This Agreement and any Contracts and transaction contemplated by this Agreement shall be governed by and construed in accordance with United Kingdom law. ServiceCom Ltd. and the Client irrevocably agree that the courts of the United Kingdom shall have jurisdiction to hear all and any disputes, controversies or claims (of any and every kind of type, whether based on this Agreement, tort, statute, regulation or otherwise) arising out of, relating to, or connected with this Agreement, including as to its construction, validity, interpretation and enforceability or breach (a “Dispute”) and, for such purposes, irrevocably submit to the jurisdiction of the courts of the United Kingdom.
The Client agrees to waive any right the Client may have now or in the future to object to the courts of the United Kingdom being nominated as a forum to hear any Dispute, and the Client irrevocably agrees only to bring proceedings in the courts of the United Kingdom. The submission to the jurisdiction of the courts of the United Kingdom shall not limit the right of ServiceCom Ltd. to take proceedings against the Client in relation to any Disputes in any jurisdiction that ServiceCom Ltd. considers appropriate nor shall the taking of proceedings in one or more jurisdictions prelude us from taking proceedings in any other jurisdictions, whether concurrently or not, if and to the extent permitted by applicable law.
17. Disputes and Complaints
The Client shall immediately inform the ServiceCom Ltd. Compliance Officer of any dispute and complaint the Client may have in relation to this Agreement. Such complaint (along with all the relevant details) will be dealt with in accordance with the ServiceCom Ltd. internal procedures concerning handling of complaints, details of which can be found on the Website.
ServiceCom Ltd. will endeavour to investigate any dispute or complaint as soon as reasonably practicable and will notify the Client of the results of such investigation. If the Client is classified as a Retail Customer within the definition of the ServiceCom Ltd. Classification of Clients document found on our website and is not satisfied with the handling of a complaint or the results of ServiceCom Ltd.’s investigations in relation to the complaint, the Client may refer the matter to the Financial Ombudsman Service for further investigation within the time limits prescribed by applicable law.
TRADING IN CURRENCIES INVOLVES AN EXTREMELY HIGH DEGREE OF RISK. INVESTORS CAN AND FREQUENTLY DO LOSE ALL OR PART OF THE MONEY THEY DEPOSIT. PLEASE READ, UNDERSTAND AND CAREFULLY CONSIDER THE RISK DISCLOSURE STATEMENT BEFORE MAKING A DECISION TO TRADE CURRENCIES OR CFDs.