These terms of business (the “Terms”) and any attached annexes (“Annexes”) are issued by Bound Rates Limited and its parent and subsidiary undertakings and affiliates under common ultimate beneficial ownership (each such undertaking and affiliate, an “Affiliate” and the Affiliates, collectively with Bound Rates Limited, “we” or “us”) to its clients and (save to the extent set out herein) will apply to and govern our relationship with you as our client (hereinafter referred to as “you”). The Terms apply to the services listed in Schedule 1 we provide from within the UK. If you are not a client of Bound Rates Limited, then the Terms and any protections or rights stated herein will not apply to our relationship with you.
The Terms are legally binding and shall take effect on the date that we first provide any services to you under them. Amendments to the Terms may be made by us in accordance with clause 13.1. Save where agreed between you and us to the contrary in writing, this version supersedes and replaces all prior versions of these terms. Capitalised words and phrases in the Terms are defined in clause 15, unless explicitly defined in the body of the Terms.
You should be aware that Financial Products and the services referred to in the Terms carry varying levels of risk regarding losses, value and liability, you should ensure that you understand fully the nature of the relevant investments and the potential risks relevant to each. You should also be satisfied that all investments and transactions into which you enter are suitable and appropriate for you in terms of your circumstances, knowledge and financial position.
- GENERAL INFORMATION
- Information about us: Bound Rates Limited (FRN 953177) is an Appointed Representative of MJ Hudson Advisers Limited (FRN 692447) which is authorised and regulated by the FCA to act as Principal Firm to Appointed Representatives. Bound Rates Limited is a private limited company registered in England & Wales under number 13036275 with registered offices at 16 Great Chapel Street, London W1F 8FL.
- Applicability: The Terms supersede any previous agreement between us on the same subject matter. Save where we notify you to the contrary in writing, as may be otherwise agreed between you and us in writing or as required by and subject to Applicable Regulations, the Terms shall govern, alone, all services provided by us under the Terms. Additional or alternative terms, terms of business, rule books or other agreements between us may apply from time to time (each, a “Secondary Agreement”). In the event of a conflict between the Terms and the Secondary Agreement, the terms of the Secondary Agreement shall prevail unless stated to the contrary in the Secondary Agreement.
- Our capacity: We shall act as an introducer to third party brokers or as arranger of Transactions on the terms more fully set out in clauses 3 and 7. We shall not act and shall never agree to act as agent for you in any capacity, nor shall we deal as principal, execute orders on your behalf or advise on any investments.
- Your capacity: You will inform us of the capacity in which you are acting. We will assume that you are acting as principal on your own account unless you notify us specifically that you are acting as an agent for an Underlying Principal or in another capacity. For the avoidance of doubt, “you” shall not mean an individual authorised representative, director or senior manager of our client; it always shall mean the legal person/company, our client.
- Underlying Principal: Where you have notified us that you are acting on behalf of an Underlying Principal, at any time we may request you to inform us of the identity, address and any other details (such as a Legal Entity Identifier) which we require in respect of such Underlying Principal. References to “you” in the Terms shall apply to the Underlying Principal as well as to you on your own behalf (to the extent applicable to you) without it being necessary to state this in each clause (subject to such amendments as may be required to give meaning to the applicable clause). In any event, to the extent applicable and in addition to the representations, warranties and covenants in clause 10.1.3, the following provisions shall apply specifically to our relationship with you and any Underlying Principal:
- you are entering into the Terms on behalf of the Underlying Principal;
- you agree not to request us to act on behalf of any Underlying Principal which is subject to any applicable sanctions restrictions (including on the UK Government’s and/or EU list of sanctioned persons and/or the US Department of Treasury’s Office of Foreign Assets Control (OFAC) list) nor to give us instructions on behalf of an Underlying Principal which would cause us to breach any Applicable Regulations;
- we shall treat you alone as our client and we shall not treat any Underlying Principal as our client for the purposes of the FCA Rules;
- you agree to forward to each Underlying Principal any documentation in relation to such Underlying Principal that we are required to provide under the FCA Rules and which we make available to you for that purpose; and
- without prejudice to any of our rights hereunder, where you act in breach of your authority from any Underlying Principal, you shall indemnify and hold us harmless in relation to any claims, loss, damages, costs or expenses suffered by us or our Affiliates which arise from such breach.
- APPLICABLE REGULATIONS AND MARKET REQUIREMENTS
- Subject to Applicable Regulations: The Terms and all Transactions are subject to Applicable Regulations so that:
- if there is any conflict between the Terms and any Applicable Regulations, the latter will prevail; and
- we may take or omit to take any action we consider necessary or desirable to ensure compliance with any Applicable Regulations and whatever we do or omit to do in order to comply with them will be binding on you. Actions that we take or omit to take for the purpose of compliance with any Applicable Regulations shall not render us or any of our Staff or agents liable to you or be deemed to be a breach of the Terms.
- Market action: If a Market (or a Broker, intermediate broker or agent, acting at the direction of, or as a result of action taken by, a Market) takes any action which affects the Terms or the services provided by us to you pursuant to them, then we may take any action which we, at our discretion, consider desirable to correspond with such action or to mitigate any loss incurred as a result of such action. Any such action shall be binding on you.
- OUR ROLE
- General: Pursuant to the Terms, you have access to information and pricing for foreign exchange transactions in spot, forwards and options and you may apply to become a client of one of a number of brokers (subject to their own onboarding, know-your-client and other policies and procedures) with which we have a direct relationship to be able to introduce you (a “Broker”). The information we collect from you during our own onboarding process will be shared with the Broker(s) to which you seek to onboard direct. We may provide (at our discretion) the means (via our website or a dedicated, Broker-branded online portal) for the Broker(s) to display their prices, size and other data to you in order that you can view and select to enter into Transactions through those Broker(s).
- No advice: Unless agreed otherwise in writing, we do not provide advice of any nature in relation to any matters arising under the Terms or otherwise, including but not limited in relation to of which of the Broker(s) we introduce you for you to become a client, any decision to enter into Transactions, choose or acquire any Financial Products or services or in relation to any matter regarding taxation. Explanation or discussion of the price, timing, venue, size, terms or risks of a Financial Product or Transaction or its performance characteristics does not amount to advice and should not be relied upon by you. You should consult your own independent business advisers, lawyer, corporate treasury departments and tax and accounting advisers concerning any contemplated Transactions. If we do agree in writing to provide you with formal advice, such advice will, unless otherwise agreed, be confined to the investment merits of the relevant Transaction and we will not be responsible for giving you tax, legal or accountancy advice.
- No dealing: Unless otherwise agreed in writing, we shall not act in any capacity (either for ourselves or for you or any person) to deal in Financial Products or enter into Transactions. For the avoidance of doubt, any access we provide to Broker(s) for any purposes, including but not limited to those in clause 3.1, shall be provided on the basis that we are providing the technological wherewithal and/or online infrastructure to the Broker(s) (not to you) for them to do so. This is sometimes known as “white labelling”.
- Own judgement and suitability: We do not advise on or warrant the suitability or appropriateness of the Financial Products traded or services obtained by you pursuant to the Terms or the terms or suitability or appropriateness of any Transaction entered into by you. We assume no fiduciary duty in any of our relations with you. You represent that (i) you have sufficient knowledge, experience, market sophistication and understanding to issue us with appropriate instructions and to understand your and our respective duties and rights under the Terms and to make your own legal and business evaluation of the merits and risks of choosing a Broker, entering into a relationship with a Broker(s), any Transaction, (ii) you have made such evaluation (including but not limited as to credit, the market, liquidity, inherent risks, interest rates, insolvency, foreign exchange, contingent liabilities, execution venue, settlement, legal and tax); and (iii) you are financially able to bear any related investment risks consistent with your investment objectives.
- Margin: At our absolute discretion and in such circumstances and pursuant to such terms and methodology as we may determine in our absolute discretion, we may from time to time offer to transfer some or all of any initial margin and variable margin required from you by a Broker to open or maintain an account with it on your behalf. You accept and acknowledge that even in the event we do so, we are not liable for any margin calls in relation to your accounts with any Broker. Our sole intention is to minimize cost and operational expense to you. We will not indemnify you or make you whole for any losses (including lost profits), costs (including opportunity costs), expenses (including late payment or settlement fees or foreign exchange costs) howsoever caused. In the event we do decide to transfer some or all of any initial of variable margin to a Broker on your behalf, we shall not be a client of the Broker. You accept and acknowledge that the foregoing is subject to the express written consent of the relevant Broker and may lead to amendments to the Broker’s standard terms and conditions and/or give rise to a monetary or non-monetary benefit to us. You are under no obligation to accept any offer we make.
- The capacity in which we act:
- without prejudice to clause 7 below, we offer services to our clients whereby we act as an intermediary or arranger of Transactions and as an introducer to the Brokers; we do not serve as a fiduciary or agent to you or any of our other clients;
- if we offer you the ability to access data which are the means of which to agree Transactions: to receive Data; or to receive or submit indications or interest (“IOI”) or requests for quotes (“RFQ”), via our website or any portal, graphical or application programmable interface provided to you by us (the “Interface”);
- we are not acting as operator of any market or Trading Venue and we are not responsible for (and provide no representation or warranty in relation to) the prices, quotes, IOI or RFQ;
- any orders, IOI, RFQ submitted or received and Transaction entered into by you shall be subject to the Broker’s terms and conditions of business and the rules and regulations applicable to the relevant trading and execution venue;
- without prejudice to clause 7, we have no obligations and owe no duties to you in relation to any particular Transaction: those are owed to you by the Broker;
- to the extent we agree with you in advance are owed, any obligations to you in relation to any particular Broker and any Transaction cease at the point you become a direct client of the Broker and/or agree the terms of the Transaction are acceptable to you. The point at which the terms of a Transaction are acceptable to you may (and most often will) occur prior to execution of the Transaction. Terms for an alternative potential Transaction which are better (in your view) than the terms which have been accepted may become known to you prior to execution, but we have no obligation to seek them once the terms of the Transaction have been agreed. In the event that you (or the intended counterparty) determine in your (or its) absolute discretion that you (or it) do not wish to execute the Transaction (or the Transaction does not complete for any other reason), we shall treat any further services as relating to a new Transaction.
- COSTS, CHARGES AND PAYMENTS
- Charges: In the ordinary course, unless expressly disclosed to you, all costs and charges associated with any services are invoiced to you. If this is not the case, prior to our providing services to you we will disclose rates and charges which you may incur in accordance with Applicable Regulations and such disclosure may be by way of limited application. You will promptly pay our charges as notified to you or agreed with you from time to time without deduction, counterclaim or set off. For certain services we are only able to provide estimates of our rates and any such disclosure will not obligate us to provide our services at the estimated rate. Unless otherwise agreed with you in writing, any applicable tax (including sales or VAT), duty and fees and all other liabilities, charges, costs and expenses payable in connection with Transactions effected on your behalf shall be payable by you in addition to our own charges. We may charge you interest (both before and after any judgement) on any amount you fail to pay us when due at such rate as is permitted by English law.
- Remuneration and sharing charges: We may receive fees or remuneration from, or share charges with, an Affiliate or other third party (including a Broker) in connection with your entry into contractual arrangements with them and into Transactions. Subject to clause 6.3, to the extent applicable and required by Applicable Regulations, details of such remuneration or sharing arrangements may be made available to you on written request.
- PRODUCT GOVERNANCE
Where applicable, we are subject to the FCA product governance rules and regulations and will act in accordance with those rules and regulations, provided that you agree to provide us with such information as you are required to provide to us or as we require in order to meet our regulatory or contractual obligations.
- CONFLICTS OF INTEREST
- Conflicts of Interest: You acknowledge and agree that in the course of carrying on our respective businesses, we and our Affiliates may provide services to other clients whose interests may conflict with the services provided by us to, or the interests of, you and your Affiliates or we or our Affiliates may have some other interest, relationship or arrangement that conflicts with the services provided by us to you (“Conflicts of Interest”). We are required by the FCA Rules to have a policy for identifying, preventing and managing conflicts (a “Conflicts of Interest Policy”). Our Conflicts of Interest Policy does not constitute or create any legal rights for you under the Terms against us or our Affiliates. You acknowledge and accept that, subject to our compliance with Applicable Regulations and our Conflicts of Interest Policy, that: we may act in any manner which we consider appropriate in relation to any Conflict of Interest, including management or disclosure; we will be under no obligation to disclose any Conflict of Interest unless we are unable to ensure with reasonable confidence that risks to your interests can be appropriately managed or otherwise prevented (in the event of such disclosure we will disclose in writing the general nature and/or source of the Conflict of Interest the steps taken to mitigate the risks to you); and as we act as an intermediary or arranger, any Conflict of Interest which relates to acting as an agent does not arise. Please note specifically that no Conflicts of Interest will arise if we (or our Affiliates) receive remuneration from you and a Broker for providing introductions or arranging or intermediary services if we have complied with the Terms.
- Disclosure to you: We shall not be obliged to disclose to you or take into consideration any fact, matter or finding which might involve a breach of duty or confidence to any other person, or which comes to the notice of any of our Staff or agents but does not come to the actual notice of the individual or individuals dealing with you.
- No liability to disclose or account: We will comply with Applicable Regulations binding on us, but we shall be under no further duty to disclose any interest to you (including but not limited to any benefit, profit, commission or other remuneration made or received by reason of any service provided by us pursuant to the Terms (whether arising under a Conflict of Interest or otherwise)) or account to you for any such interest.
- Information Barriers: We maintain arrangements which restrict access by our Staff to information relating to areas of our business and the affairs of clients (and that of Affiliates) with which they are not directly concerned. Accordingly, we shall not be required to have regard to, or disclose to you, or make use of any information which belongs to, or is confidential to another customer or to us or any Affiliate, and we may be unable to deal with you in relation to particular matters without disclosing the reason for this.
- Inducements and Benefits: We may provide or receive minor benefits, non-minor benefits or monetary benefits (“Benefits”) in relation to the services we provide to you. Any Benefits will where required be disclosed to you prior to our providing services to you.
- Data: In the event that Data is supplied to you and/or your Affiliates, through whatever medium, you agree that the Data is supplied on the following provisions (save where we have agreed to the contrary in writing):
- we, our Affiliates or Sources may send or make available the Data to you and/or your Affiliates by such method(s) and with such content from time to time and at such times as we in our sole discretion decide or as we from time to time otherwise agree with you and/or any of your Affiliates. Methods of delivery and content may vary from time to time in our discretion;
- you undertake to keep the Data confidential and not to disclose the Data or any part of it to any person (and for the purposes of this clause 6.6 “person” shall include without limitation any individual, partnership, company or corporation), except that you may disclose the Data to (i) your Staff who use the services provided by or through us or our Affiliates; or (ii) those permissioned by us, provided in each case: (i) you inform them of the confidential nature of the Data; and (ii) you procure that they comply with the Terms as if they were a party to the Terms. If you or your Affiliates become aware of any unauthorised use, access to, storage or redistribution of the Data, you shall notify us in writing immediately;
- you and your Affiliates undertake not to use the Data or permit or suffer the same to be used for any purpose other than as we have specifically permissioned you but otherwise only for you or your Affiliates’ internal use and to receive and/or use the services provided by or through us or our Affiliates. You undertake not to and shall procure that your Affiliates shall not derive further data from the Data, sell, transfer or sub-licence the Data to any third party or permit or suffer the same to be sold, transferred or sub-licensed;
- you undertake not to, and shall procure that your Affiliates shall not, without our prior written consent disclose to any person the fact that we are supplying the Data to you and/or your Affiliates;
- you agree that the Data belongs to, and is the intellectual property of, us, our Affiliates and/or our or their Sources;
- we, our Affiliates and/or our Sources may charge for the use of Data on such basis as we notify you or agree with you in writing from time to time;
- in order to ensure compliance with contractual restrictions and obligations imposed by us, our Affiliates or our Sources regarding such Data, you and your Affiliates shall promptly respond to any and all requests for information from us or such Sources, allow us, our Affiliates or those representing the Sources access to premises and distribution networks, and shall cooperate with other measures we or our Affiliates may take in good faith to fulfil our obligations including to third parties and / or Source(s). We reserve the right to provide, amend or restrict the provision of Data and the terms thereof in our discretion; and
- without prejudice to clause 12, you agree that we, our Affiliates and/or our Sources shall not be liable for any losses, costs, expenses or damages arising directly or indirectly out of your and/or your Affiliates’ use of or reliance on the Data. We make no warranty, express or implied, regarding the Data including, but not limited to, warranties as to the correctness, quality or accuracy of the Data.
- INSTRUCTIONS AND BASIS OF INTERACTING WITH YOU
- Instructions: We are not involved in or a party (in any capacity) to any Transaction (or in any correspondence, messages or orders relating or leading to a Transaction). The capacity in which we act is limited solely to that of arranger and introducer to the Broker(s). Any order or Transaction shall be subject to Applicable Regulations, the rules and regulations of the Broker(s) and the relevant trading or execution venues in all circumstances: even where messages (orders, cancellations, amendments, IOI or RFQ) are reviewed, sent or received via the Interface. We assume no (and expressly disclaim any) liability or obligation to you or any other person in relation to such messages and are not “sending and receiving orders” (as such is defined in the FCA Rules and Applicable Regulations).
- Security: The security of your log-in or other credentials and the binding or effective nature of any such messages are a matter solely for you.
- General: Without prejudice to the generality of the foregoing, we shall not: transmit to or receive from you any confirmations containing details of any messages or executed Transactions (notwithstanding that we may provide third parties (including the Broker(s)) and you the systems or infrastructure to send and receive those confirmations); take responsibility for best or timely execution of any Transaction or cancellation or amendment of any instructions; take responsibility for the entry or execution of any orders; credit, counterparty, market, execution, settlement or any other risk assumed by you explicitly or implicitly; any position or other limits applicable between you and a Broker (or the monitoring thereof); or any applicable regulatory reporting. Notwithstanding the foregoing, under Applicable Regulations, we may be obliged to make certain information about you and Transactions public or provide them to appropriate regulatory, quasi-regulatory and law enforcement agencies.
- CLIENT MONEY AND CLIENT ASSETS
We do not hold or provide Client Money or Client Asset protection to you or any other person.
- MARKET COMMENTARY/COLOUR AND ANCILLARY BENEFITS
Any market commentary, information, data, rates calculators, cost estimators, analysis or other data (“Minor Non-Monetary Benefits”) we give you is provided solely for information purposes and to enable you to make your own investment decisions and is not otherwise to be relied upon by you. Unless stated expressly to the contrary in writing, such Minor Non-Monetary Benefit is incidental to your relationship with us and does not amount to advice. It will not take account of your personal circumstances and may not be suitable for you. Our Minor Non-Monetary Benefits should not be construed as a solicitation or an offer to buy or sell any Financial Products in any jurisdiction and they do not amount to advice or a personal recommendation. We give no representation, warranty or guarantee, express or implied, as to the accuracy, completeness or reliability of such Minor Non-Monetary Benefits or as to the legal, regulatory or tax consequences of any Transaction effected on the basis of our Minor Non-Monetary Benefits. We are under no obligation to update or keep current the information contained in such document. Any opinions expressed in our Minor Non-Monetary Benefits are subject to change without notice and may differ or be contrary to opinions expressed by our other business areas or those of our Affiliates. Analysis contained in our Minor Non-Monetary Benefits (if any) is based on numerous assumptions and different assumptions could result in materially different results. We shall not be obliged to ensure that any Minor Non-Monetary Benefits we provide to you, or any information on which it is based, will be given to you before or at the same time as such is made available to any other person, including, without limitation, any Affiliate or other customers. We shall not be under any obligation when we deal in Financial Products for or with you to take account of any such Minor Non-Monetary Benefits. No Minor Non-Monetary Benefit issued by us may be reproduced by you for any purpose except with our written permission. When our Minor Non-Monetary Benefits contain a restriction on the person or category of person for whom that document is intended or to whom it may be distributed, you agree that you will not pass it on to any such person or category of persons. In addition, the receipt of Minor Non-Monetary Benefits may be restricted by law and you are only able to receive them if you are “qualified” in the country in which you are incorporated or conduct business to receive them due to your experience, profession, activity, classification or other relevant qualification or exemption. If this is not the case then you are not permitted to use or act in relation to the Minor Non-Monetary Benefits.
- REPRESENTATIONS, WARRANTIES AND COVENANTS
- Representations and warranties:
- We each represent and warrant to the other that on the date that the Terms come into effect and as of the date of each Transaction that we each have all necessary authority, powers, consents, licences, approvals and authorisations and have taken all necessary action to enable you and us to lawfully to enter into and perform the Terms and such Transaction.
- Subject to the representations and warranties in clause 10.1.3 (where applicable), you represent and warrant to us on the date the Terms come into effect and as of the date of each Transaction that:
- the persons entering into the Terms on your behalf have been duly authorised to do so;
- the Terms and the obligations created under them are binding upon you and enforceable against you in accordance with their terms and do not and will not violate the terms of any regulation, order, charge or agreement by which you are bound;
- (unless you act for an Underlying Principal) you act as principal and sole beneficial owner (but not as trustee) in entering into the Terms;
- any information which you provide or have provided to us in respect of your financial position or other matters is accurate and not misleading in any material respect;
- you are willing and financially able to sustain a total loss of funds resulting from any Transactions;
- you have adequate resources to enter into and perform any such Transaction which you decide to undertake; and
- you are not a State or a separate entity within the meaning of the State Immunity Act 1978.
- Where you have notified us that you are acting on behalf of an Underlying Principal (as agent or otherwise), you represent and warrant to us on the date the Terms come into effect and as of the date of each Transaction that (to the extent applicable):
- you are duly authorised to act on behalf of the Underlying Principal upon whose behalf you are giving us instructions (including but not limited to entering into the Terms on behalf of yourself and the Underlying Principal and entering into any Transactions on behalf of such Underlying Principal);
- the Terms, each Transaction and the obligations created under each of them are binding upon, and are enforceable against, you and/or the Underlying Principal (as applicable) in accordance with their terms and do not and will not violate the terms of any regulation, order, charge, agreement, or obligation by which you or the Underlying Principal is bound;
- you and each Underlying Principal are now and at all material times will be in the future in compliance with Applicable Regulations concerning money laundering and know your client obligations; and
- (i) you shall at our request notify us of the identity of the Underlying Principal or beneficial owner on whose behalf you are acting; (ii) you shall at our request make available copies of the verification documents or other information that you hold in relation to these parties (including completing any pro forma customer due diligence forms we provide to you); (iii) you shall retain such records for a minimum period of seven years from the end of your relationship with such parties; and (iv) you shall provide us with your customer due diligence procedures upon request. In such circumstances, you further represent, warrant and undertake that we may rely on the due diligence measures that you have undertaken to identify the Underlying Principal on whose behalf you are acting in an agency capacity; and, you have applied customer due diligence measures which meet Financial Action Task Force and/or EU regulatory standards.
- Anti-bribery: You represent, warrant and undertake to us that:
- you are now and will be at all material times in the future in compliance with all Applicable Regulations concerning bribery, including but not limited to the Bribery Act 2010 (as amended from time to time) (the “Bribery Act”);
- neither you nor any of your Affiliates has been or will be engaged in any activity, practice or conduct which would constitute an offence under the Bribery Act if it had been carried out in the United Kingdom;
- no associated person (within the meaning of section 8 of the Bribery Act) of yours or any of your Affiliates will solicit or accept a bribe or bribe another person (within the meaning given in section 7(3) of the Bribery Act) intending to obtain or retain business or an advantage in the conduct of business for you and/or any of your Affiliates; and you and each of your Affiliates has in place adequate procedures designed to prevent associated persons from undertaking any such conduct; and
- you will promptly report to us any request or demand for any illicit or undue financial or other advantage of any kind received by you in connection with the Terms.
- Anti-bribery (evidence): We are required to follow the Applicable Regulations concerning bribery. Accordingly, we may require you to provide satisfactory evidence of your own anti-bribery procedures and evidence of enforcement of your procedures. If this is not provided to us within a reasonable time period after request, we reserve the right to terminate the Terms.
- Covenants: You covenant to us that:
- you will at all times obtain and comply, and do all that is necessary to maintain in full force and effect, all authority, powers, consents, licences and authorisations referred to in this clause 10;
- you will promptly notify us of the occurrence of any event of default or potential default with respect to you or an Underlying Principal under clause 11;
- you will use all reasonable steps to comply with all Applicable Regulations in relation to the Terms and any Transaction, so far as they are applicable to you or us;
- upon demand, you will provide us with such information as we may reasonably require to evidence the matters referred to in this clause 10.4 or to comply with any Applicable Regulations;
- you will not give orders or otherwise take any action that could constitute market abuse or otherwise amount to a breach of Applicable Regulations.
- DEFAULT AND TERMINATION
- Default: If any of the following happens:
- you fail to make any payment due to us or any of our Affiliates on or before the due date; or
- you fail to perform any other obligation owed to a Broker or pursuant to a Transaction (including the delivery or receipt of any Financial Products) on or before the due date; or
- any representation or warranty you make to us or any of our Affiliates proves false or misleading either under the Terms or under any Secondary Agreement between you and us or any of our Affiliates; or
- you become unable to pay your debts as they fall due or become insolvent or bankrupt or become the subject of any insolvency, bankruptcy, administration or similar proceedings; or
- a winding-up resolution is passed or a winding-up or administration order is made in respect of you or a receiver,
- liquidator, administrator or similar official is appointed in respect of you or any of your property; or
- anything of a similar nature takes place in any other relevant jurisdiction takes place in relation to you (including in the place you are incorporated or do business),
we shall be entitled, without prior notice to you, to take such actions as we deem necessary including but not limited to terminating the Terms and our relationship with you with immediate effect and in all cases you will immediately indemnify us on demand for any losses, costs or expenses which we suffer or incur as a result.
- Termination: Either you or we may notify the other in writing that it wishes to terminate the relationship governed by the Terms on no less than [seven] days’ prior notice (subject to clause 11.3 below). Where you are an agent for an Underlying Principal, then you or the Underlying Principal may give notice of termination in relation to that Underlying Principal without affecting the validity of the Terms in relation to other Underlying Principals. An Underlying Principal may notify us in writing that your agency has been terminated and another agent appointed in its place but until we have accepted such agent as our customer we shall not be obliged to accept any Instructions from it.
- Existing rights: Termination shall not affect either party’s outstanding rights and obligations under the Terms (in particular those in clauses 12 (Exclusions, Limitations and Indemnity), 13 (Miscellaneous) and 14 (Governing Law and Jurisdiction) and Transactions which shall continue to be governed by the Terms and the particular terms agreed between us in relation to such Transactions until all obligations have been fully performed.
- EXCLUSIONS, LIMITATION AND INDEMNITY
- General exclusion: We assume no greater responsibility than that imposed by the FCA Rules or the express terms of the Terms. Save to the extent that any losses, damages, cost or expense (collectively “Loss”) may not be excluded under English law or under Applicable Regulations, neither we nor our Affiliates or our respective Staff or our agents shall be liable for any Loss caused by any of the foregoing’s negligence, material breach of contract, misrepresentation or otherwise which is incurred or suffered by you under the Terms (including any Transaction) unless such Loss is caused directly from our, our Affiliates’ or our or their Staff’s or our agents’ respective gross negligence, wilful default or fraud.
- Exclusion for loss of profit: Notwithstanding clause 12.1, we shall not in any circumstances whatsoever be liable for any loss of profit, business, revenue or opportunity (direct or indirect) or any special, indirect or consequential losses arising under or in connection with the Terms or in relation to any services provided hereunder and whether arising out of negligence, breach of contract, misrepresentation, breach of Applicable Regulations or law or otherwise (and such exclusion shall apply to any third party including your customers).
- Tax implications: Without limitation, we do not accept liability for any tax implications of any services provided hereunder. You acknowledge and agree that we may be required to make withholdings on payments made to you by reason of Applicable Regulations. Where any withholding is made against us by any third party in relation to a Transaction or other matter for any reason, in circumstances where we are to make payments to you in relation to the same, similar or back to back Transactions you acknowledge and agree that we may pass on to you such amounts as we have received net of the amount withheld.
- Changes in the market or counterparty or Broker breach: Without limitation of the foregoing, we do not accept any liability by reason of any delay or change in market conditions before any particular Transaction is effected or any failure by a Broker or a counterparty to fulfil its obligations to you (whether such breach is remediable or otherwise).
- Force majeure: If we are prevented from performing any of our obligations under the Terms by Force Majeure, we shall serve notice in writing on you specifying the nature and extent of the circumstances. There will no obligation to perform any of our obligations under the Terms on the occurrence of a Force Majeure event or while a Force Majeure event is continuing. We shall use commercially reasonable endeavours to bring the Force Majeure event to a close or to find a solution by which the Terms may be performed despite the continuance of a Force Majeure event and/or we shall take all reasonable steps to resume performance as soon as is reasonably possible following the cessation of a Force Majeure event. In any event we shall not be liable to you for any delayed, partial or non-performance of our obligations hereunder by reason of Force Majeure.
- Indemnity: You shall indemnify and hold us, our Affiliates and any of our respective Staff and agents harmless from and against any (i) third party claims for Loss made against us or our Affiliates or respective Staff, or (ii) any Loss which we or any of our Affiliates suffer, which arises out of or in connection with your breach of the terms of this Agreement or any Transaction entered into with us, our Affiliates or any third party pursuant to the Terms.
- Third party claims: To the extent you have entered orders or into Transactions for the account of an Underlying Principal or to hedge the foreign exchange risk of a third party invoice in any currency or to pay a third party in any currency or for any reason (whether you have notified us of such reason or otherwise), you shall on demand indemnify, protect and hold us harmless from and against all losses, liabilities, judgments, suits, actions, proceedings, claims, damages and costs we may incur or suffer resulting from, relating to or arising out of claims raised by them regarding or relating to their relationship with you.
- Amendments: We may amend the Terms by written notice to you. Amendments will become effective on the date specified by us. Unless otherwise stated by us when making amendments, the amendments will be binding upon you from the date of such amendment. Unless otherwise agreed, an amendment will not affect any outstanding order or Transaction or any legal rights or obligations which may already have arisen. Certain amendments may be made by posting on our website at https://www.bound.co/
- Notices: Unless otherwise agreed in writing or otherwise stated herein, all notices to be given by us to you under the Terms shall be given to your last known address or email in writing by us. You must notify us in writing of any change of your address in accordance with this clause 13.2. All notices to be given by you to us shall be sent to 16 Great Chapel Street, London W1F 8FL. Notices given under this clause 13.2 should be addressed: (i) for the attention of the office of [General Counsel] if the notice is a legal or contractual notice (by email to email@example.com); (ii) for the attention of the Head of Compliance if the notice is a regulatory notice (firstname.lastname@example.org); and (iii) the business or other relevant department for any other notices. Further: any notice, instruction or other communication to you shall be deemed to take effect, in the case of airmail or first class pre-paid post, five Business Days after dispatching and the case of notices given by electronic mail upon confirmation by us of the email leaving our systems; each notice, instruction or other communication to you shall be conclusive unless written notice of objection is received by us within five Business Days of the date on which such document was deemed to have been received; and unless otherwise specified, any notice, instruction or other communication sent by you to us shall be deemed to take effect upon receipt by us.
- Assignment: The Terms shall be for the benefit of and binding upon us both and our respective successors and assigns. You shall not assign, charge or otherwise transfer or purport to assign, charge or otherwise transfer your rights or obligations under the Terms or any interest in the Terms, without our prior written consent, and any purported assignment, charge or transfer in violation of this clause 13.3 shall be void. We shall be entitled to assign or transfer all or part of our rights and obligations under the Terms as we may, in our sole discretion, determine.
- Time of essence: Time shall be of the essence in respect of all obligations of yours under the Terms (including any Transaction).
- Rights and remedies: The rights and remedies provided under the Terms are cumulative and not exclusive of those provided by law. We shall be under no obligation to exercise any right or remedy either at all or in a manner or at a time beneficial to you. No failure by us to exercise or delay by us in exercising any of our rights under the Terms (including any Transaction) or otherwise shall operate as a waiver of those or any other rights or remedies. No single or partial exercise of a right or remedy shall prevent further exercise of that right or remedy or the exercise of another right or remedy.
- Set-off: Without prejudice to any other rights to which we and/or any of our Affiliates may be entitled we and/or our Affiliates may at any time and without notice to you set off any amount (whether actual or contingent, present or future) which we and /or any of our Affiliates owe to you against any amounts you owe to us and/or any of our Affiliates until all amounts for which you are indebted or liable to each of us and/or our Affiliates, present or future, actual or contingent, whether under the Terms or otherwise (“Indebtedness”), shall have been ascertained and repaid or discharged in full. If any such Indebtedness and liabilities are not repaid or discharged in full when due and so long as any such Indebtedness and liabilities may subsequently accrue or arise, each of us and our Affiliates may, to the extent of such Indebtedness and liabilities remain unpaid, undischarged or unascertained, appropriate or retain without appropriation any amount so owing to you in or toward repayment or discharge of such Indebtedness or liabilities (including the purchase of any Financial Products or other assets which you may be liable to deliver to us and/or our Affiliates).
- Partial invalidity: If, at any time, any provision of the Terms is or becomes illegal, invalid or unenforceable in any respect under the law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of the Terms nor the legality, validity or enforceability of such provision under the law of any other jurisdiction shall in any way be affected or impaired.
- Electronic signatures: Subject to Applicable Regulations, any communication between us using electronic signatures shall be binding as if it were in writing.
- Recording and monitoring of calls and other electronic communications: We will record and monitor all communications without use of a warning tone pursuant to our obligations under Applicable Regulations. Such records will be our sole property.
- Electronic communications: You will accept instructions given via e-mail or other electronic means as evidence of the instructions given.
- Our records: Our records, unless shown to be wrong, will be evidence of your dealings with us in connection with our services. You will not object to the admission of our records as evidence in any legal proceedings because such records are not originals, are not in writing or are documents produced by a computer. You will not rely on us to comply with your record keeping obligations, although records may be made available to you on request at our absolute discretion. In the event you request records from us we reserve the right to charge you for any records we may provide in response to such request.
- Third party rights: A person who is not a party to the Terms has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of the Terms, except that our Affiliates shall be entitled to invoke any of the provisions of the Terms.
- Co-operation for proceedings: If any action or proceeding is brought by or against us by a third party including an Underlying Principal in relation to the Terms or arising out of any act or omission by us required or permitted under the Terms, you agree to co-operate with us to the fullest extent possible in the defence or prosecution of such action or proceeding.
- Investor protection schemes: We are covered currently by the Financial Services Compensation Scheme. You may be entitled to compensation from the scheme if we cannot meet our obligations. This depends on the type of business and circumstances of the claim. Most types of investment business are covered for 100% of the first £75,000. The monetary limit of compensation under the Scheme may vary from time to time. Further, information concerning the conditions governing compensation and the formalities which must be completed to obtain compensation is available from us on request.
- Complaints procedure: In the unlikely event that you have a complaint, we have internal procedures for handling complaints fairly and promptly. You may submit a complaint to the Compliance Department in accordance with clause 13.2, for example by letter, telephone, e-mail, or in person. We will send you a written acknowledgement of your complaint within five days of receipt enclosing details of our complaints procedure. Please contact us if you would like further details regarding our complaints procedures. If you are a Professional Client or Eligible Counterparty, you will have no right of complaint to the Financial Ombudsman Service in respect of any act or omission on our part which is alleged to be in breach of FCA Rules.
- Data Protection:
- You acknowledge that (subject to clause 13.16.2 below):
- in the course of providing services pursuant to the Terms and/or our business relationship with you and your Affiliates, that we and our Affiliates (and third parties appointed by us) may process personal data (as defined below) in relation to you, your Affiliates, your Staff, your customers or clients and Underlying Principals;
- subject to clause 13.16.3, such processing of personal data will be carried out pursuant to one or more Privacy Notices that are applicable to such processing and which may be found at https://www.bound.co/t-c-s or such other place as we may determine and provide notice of (and such Privacy Notices do not form part of the Terms) (as such Privacy Notices may be updated from time to time without notice by us);
- unless we have specifically agreed to the contrary with you under a mutually executed agreement, where we and our Affiliates process personal data we do so as a ‘data controller’ and not as a ‘data processor or ‘sub-processor’ of you, your Affiliates or any other person;
- to the extent required, the provision of personal data by you, your Affiliates or any member of your Staff will comply with Applicable Data Regulations (as further defined below) including, having in place appropriate fair processing notices and consent mechanisms (where applicable) to ensure that your Staff whose personal data you disclose to us is made aware of such disclosure and provided a copy of our Privacy Notice and you will indemnify us against any Loss arising out of any breach of the foregoing.
- Each party acknowledges and agrees that it shall comply with its obligations under Applicable Data Regulations in relation to personal data.
- You covenant to us (and shall indemnify us and keep us indemnified for any and all losses, costs, claims, damages, penalties or fines in the event of a breach of such covenant) that you have all necessary or desirable consents, permissions and approvals to provide us with any data relating to any person other than you.
For the purposes of this clause 13.16, “Applicable Data Regulations” shall mean the Data Protection Act 2018 (as amended). The terms “processing”, “personal data”, “controller”, “processor” and “sub-processor” bear the meanings set out in that Act.
- Confidentiality: You agree to keep confidential any information which you acquire pursuant to the Terms regarding the business and affairs of us and our Affiliates (the “Confidential Information”). For the purpose of the Terms, Confidential Information expressly excludes any information which is in the public domain or which is already in your lawful possession, in either case other than as a result of a breach of confidentiality. Any Confidential Information acquired by you (including your Affiliates and Staff,) will be solely for your confidential use in relation to the supply by us of the services provided to you under this or any other Secondary Agreement with you. You must keep any Confidential Information in the strictest confidence, and accord the same protection as you would with respect to your own confidential information. You must not, without our or our Affiliates’ prior written consent, reproduce any Confidential Information or discuss, release or disclose such information to any person, other than: (a) your Staff who have a need to know and are subject to the same confidentiality obligations; (b) your auditors, or (c) as required by Applicable Regulations or orders issued by any governmental agencies provided that, to the extent permitted, you shall notify us reasonably in advance of such disclosure. Distribution or disclosure of any Confidential Information to any other person or under any other circumstances is unauthorised and strictly prohibited. You acknowledge that any non-compliance with, violation or breach of the Terms with respect to any Confidential Information may result in serious and irreparable harm to us and our Affiliates and we are therefore entitled to seek all necessary and available legal remedies (including injunctive relief) against you to protect our interests or to prevent any such injuries.
- Additional Disclosure: You consent to the provision of information via email, pdf documents or by any other durable medium that is not paper. You also consent to the provision of information not personally addressed to you via our website (or such other website as we may notify you from time to time).
- GOVERNING LAW AND JURISDICTION
- Law: The Terms and any non-contractual obligations arising out of or in connection with them are governed by and are to be construed in accordance with the laws of England.
- Jurisdiction – UK: it is agreed that, where you are incorporated in the United Kingdom, the courts of England shall have exclusive jurisdiction in relation to any claim or dispute under the Terms or in relation to any non-contractual obligations arising out of or in connection with them.
- Jurisdiction – EEA: It is agreed that, where you are incorporated in the EU or EEA or any other country which has current reciprocal arrangements in place with respect to the recognition and enforcement of English court judgments, then the courts of England shall have exclusive jurisdiction in relation to any claim or dispute under the Terms or in relation to any non-contractual obligations arising out of or in connection with them.
- Jurisdiction – Non EEA: Where you are not incorporated in the EU or EEA, then you agree the following:
- any dispute arising out of or in connection with the Terms and any non-contractual obligations arising out of or in connection with them, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the London Court of International Arbitration Rules, which rules are deemed to be incorporated by reference in this clause 14.4;
- the number of arbitrators shall be one;
- the seat, or legal place, of arbitration shall be London, England; and 126.96.36.199. the language to be used in the arbitral proceedings shall be English.
- Additional relief: Notwithstanding clauses 14.2 and clause 14.3, we shall not be prevented from taking such steps as we may deem necessary to enforce our rights under the Terms or otherwise (including injunctive relief) whether in England or in any other jurisdiction.
- Waiver of immunity: You irrevocably waive to the fullest extent permitted by applicable law, with respect to yourself and your revenues and assets (irrespective of their use or intended use) all immunity on the grounds of sovereignty or other similar grounds from (i) suit, (ii) jurisdiction of any court, (iii) relief by way of injunction, order for specific performance or for recovery of property, (iv) attachment of your assets (whether before or after judgment) and (v) execution or enforcement of any judgement to which you or your revenues or assets might otherwise be entitled in any proceedings in the courts of any jurisdiction and irrevocably agrees, to the extent permitted by applicable law, that you will not claim any such immunity in any proceedings.
- Interpretation: In the Terms:
“Affiliates” means in relation to (i): us, Bound Rates Limited, its parent undertaking, any other subsidiaries of its parent undertaking and its Subsidiaries existing now or in the future, (ii) you, any person, company, fund, partnership or entity controlled by, controlling or in common control with you or the Underlying Principal. A person, company, partnership or entity shall be deemed to control another person, company, partnership or entity if the former person, company, partnership or entity possesses, directly or indirectly, the power to direct, or cause the direction of, the management and policies of the other person, company, partnership or entity whether through ownership of voting securities or partnership interests, representation on its board of directors or similar governing body, by contract or otherwise;
“Applicable Regulations” means:
- FCA Rules or any other rules of a relevant regulatory authority;
- the Rules of the relevant Market; and
- all other applicable laws, rules and regulations as in force from time to time (including in relation to taxation), as applicable to the Terms;
“Benefits” means minor benefits, non-minor benefits or monetary benefits;
“Business Day” means a day (other than a Saturday or Sunday) on which:
- in relation to a date for the payment of any sum denominated in (a) any Currency (other than euro), banks generally are open for business in the principal financial centre of the country of such Currency; or (b) Euros, settlement of payments denominated in Euros is generally possible in London or any other financial centre in Europe selected by us; and
- in relation to a date for the delivery of any property, property of such type is capable of being delivered in satisfaction of obligations incurred in the market in which the obligation to deliver such first property was incurred; and
- for all other purposes, is not a bank holiday or public holiday in London;
“Confidential Information” bears the meaning in clause 13.17;
“Conflicts of Interest” and “Conflicts of Interest Policy” each bear the meaning in clause 6.1;
“Data” means any and all statements, confirmations, account information and materials, market data, news, documents provided in electronic format and other information (including, without limitation, identifying information), reports, analytics, calculators, data, valuations, ratings and content (including bids, offers and prices),in each case, emanating directly or indirectly from us, our Affiliates or other third parties used or permissioned by any of us (and includes Minor Non-Monetary Benefits);
“Eligible Counterparties” bears the meaning in the FCA Rules;
“FCA” means the UK Financial Conduct Authority and any successor body;
“FCA Rules” means articles, rules, regulations and procedures, as in force from time to time;
“Financial Products” means such securities, equities, commodities, investments or other financial instruments howsoever described as we may agree shall be the subject of the services we provide to you under the Terms, as exhaustively set out in Schedule 2;
“Force Majeure” shall mean any cause preventing either party from performing any or all of its obligations which arise from or are attributable to either acts, events or omissions or accidents beyond the reasonable control of the party so prevented, including but without limitation any breakdown, malfunction or failure of transmission, act of God, war, terrorism, malicious damage, civil commotion, communication or computer facilities, industrial action, acts and regulations of any governmental or supra national bodies or authorities or the failure of any relevant intermediate broker, agent or principal of ourselves, custodian, sub-custodian, dealer, exchange, multilateral trading facility, clearing house or regulatory or self-regulatory organisation;
“Indebtedness” bears the meaning in clause 13.6;
“Loss” bears the meaning in clause 12.1;
“Market” means, any and all exchanges, markets, ECNs (electronic trading networks), ATSs (alternative trading systems), MTFs (multilateral trading facilities), OTFs (organised trading facilities), SEFs (swap execution facilities), DCMs (designated contract markets) or order matching system;
“Minor Non-Monetary Benefit” bears the meaning in clause 9;
“Retail Client” bears the meaning in the FCA Rules;
“Secondary Agreement” bears the meaning in clause 1.2;
“Sources” means collectively, the direct and indirect third party or affiliated licensors, vendors, service providers, subcontractors and sources of any Data whether the same is provided directly to you or your Affiliates or through us, our Affiliates or any third party;
“Staff” means all directors, officers, partners, employees, consultants, contractors and sub-contractors of you or your Underlying Principals or us or any of our respective Affiliates, as the case may be;
“Subsidiaries” means, as of the relevant date of determination, with respect to any person, any other person of which 50% or more of the voting power of the outstanding voting equity securities (which, for the avoidance of doubt, shall include a general partner interest) or 50% or more of the outstanding economic equity interest is held, directly or indirectly, by such person;
"Transaction" means a contract in an investment within scope offf the Financial Services and Markets Act 2000 (Regulated Activities) Order 2001 (as amended) or any other contractual arrangement entered into between you and any person; and
“Underlying Principal" means any person agreed to in writing by us from time to time on whose behalf you act (as agent or otherwise) and enter into Transactions with or through us or our Affiliates; and where such underlying principal does not constitute a single legal person, means the trustees, individuals or other persons who are the primary representatives of the organisation, trust or fund on whose behalf they are dealing. For the avoidance of doubt, if any communications or access to services pursuant to the Terms are completed by any of your authorised representatives, directors or senior managers, you shall not be deemed to be an Underlying Principal and if you are receiving services pursuant to the Terms in order to hedge the foreign exchange risk in any currency or to pay a third party for any reason in any currency or for any other reason, that third party/ies shall not be an Underlying Principal.
- General interpretation: A reference in the Terms to a "clause" or "Schedule" shall be construed as a reference to, respectively, a clause or Schedule of the Terms, unless the context requires otherwise. References in the Terms to any statute or statutory instrument or Applicable Regulations include any modification, amendment, extension or re-enactment thereof. A reference in the Terms to "document" shall be construed to include any electronic document. References to persons include bodies corporate, unincorporated associations and partnerships/persons, firms, companies, corporations, governments, states or agencies of a state or any associations or partnerships (whether or not having separate legal personality) of two or more of the foregoing. The masculine includes the feminine and the neuter and the singular includes the plural and vice versa as the context admits or requires. Words and phrases defined in the FCA's Rules have the same meaning in the Terms unless expressly defined in the Terms.
- Schedules: The clauses contained in any Schedule(s) to the Terms (if any) (as amended from time to time) shall apply. We may from time to time issue further schedules in respect of Markets or Transactions. In the event of any conflict between the clauses of any Schedule and the Terms, the clauses of the Schedule shall prevail. The fact that a clause is specifically included in a Schedule in respect of one Market or Transaction shall not preclude a similar clause being expressed or implied in relation to any other Market or Transaction.
- Headings: Headings are for ease of reference only and do not form part of the Terms.