This Notice is provided by Valbury Capital Limited ("we") a company
registered in England and Wales with registered number 07393159.
Our registered office is at 8 Baden Place, Crosby Row, London SE1
1YW and our principal place of business is at Royal Mint Court
London EC3N 4HJ.
This Notice provides you with information about the nature and risk of
certain investment types and trading strategies and the potential for
risk and loss that arises in respect of trading on the financial markets.
TBefore deciding to invest in or deal in any investment you should
ensure you understand all the risks associated with it and carefully
consider its suitability for you in light of your investment objectives,
level of experience and risk appetite. You should familiarise yourself
with the product that you propose to trade and the way in which
the market operates. If you intend to deal on-exchange you should
ensure you are familiar with the Exchange's rules and conventions.
You should not invest money that you cannot afford to lose and
if you have any questions you may wish to seek advice from an
independent financial advisor.
The instruments we offer
We provide the opportunity for investment and dealing in a wide
range of instruments, including:
• currency trading (FX);
• contracts for differences on shares, bonds and other securities, on
indices, exchange traded funds on commodities, on futures and
on currencies (FX);
• futures on currencies, oil and metals, on other commodities
(including agricultural, softs and metals) energy, financials,
interest rates, and indices;
• exchange-traded bonds, shares and similar assets ("equities")
• exchange-traded warrants.
When you deal in (i) (ii) or (iii) above you are engaging in leveraged
trading (also known as dealing on margin) which provides an
increased exposure to risk and the possibility of loss. When you enter
into a contract you are required to pay or to have on deposit with
us only a small proportion of the overall contract value. Your profits
or losses are determined on the basis of the overall contract value,
that is, on a leveraged or geared basis. If the market moves against
you, you may be called upon to pay substantial additional margin at
short notice to maintain the position. If you fail to do so within the
time required, your position may be liquidated at a loss and you will
be responsible for the resulting deficit. Even if a transaction is not
margined, it may still carry an obligation to make further payments
in certain circumstances over and above any amount paid when you
entered the contract.
When you deal in (i) or (ii) above you are dealing over-the-counter
("OTC") with us. This means we are principal to the deal with you
and it can be closed out only with us. We may also have the only or
a very significant role in deciding the terms of the contract and the
Exchange-traded warrants provide heightened risk because the
price at which they trade tends to be more volatile than that of the
underlying asset. Time to expiry is also a factor in their price. It is
possible to lose the whole of your investment when at the exercise
date the warrant exercise price is higher than the underlying's current
Financial markets are volatile, with the possibility of sharp price
movements and changes of direction (the degree of which varies
between instruments). This is particularly the case in reaction to news
events. This obviously has a direct impact on the prospect of your
profit and loss, and, can lead to apparently sudden losses
Leveraged instruments tend to be more volatile than non-leveraged.
Losses can be made quickly and this can lead to depletion of margin
and a requirement to pay more at short notice or lose the whole of
the investment. Under some market conditions, it may be difficult or
impossible to hedge or liquidate a position. If you cannot hedge or
liquidate your position, any existing losses may continue to mount.
Even if you can hedge or liquidate your position, you may be forced to
do so at a price that involves a large loss.
Foreign markets will involve different risks from markets in your home
or base currency. In some cases the risks will be greater. The potential
for profit or loss from transactions on foreign markets or in foreign
denominated contracts will be affected by fluctuations in exchange
If you deposit collateral as security with us, the way in which it will
be treated will vary according to the type of transaction and where
it is traded. There could be significant differences in the treatment of
your collateral depending on where or how you are trading Deposited
collateral may lose its identity as your property once dealings on your
behalf are undertaken and even if your dealings should ultimately
prove profitable, you may not get back the same assets which you
deposited, and may have to accept payment in cash. You should
ascertain from us how your collateral will be dealt with.
Non-readily realisable investments
We may arrange or enter into transactions in non-readily realisable
investments. These are investments in which the market is limited or
could become so. You may have difficulty selling such an investment
at a reasonable price and, in some circumstances. it may be difficult to
sell it at any price. Do not invest in such investments unless you have
carefully thought about whether they are suitable for you.
Commissions and charges
Before you begin to trade, you should understand all commissions and
other charges for which you will be liable. For example, commissions
may be charged in the form of spreads, or, as a percentage of total
contract value, or, might be levied by an exchange or clearing house
and not simply as a percentage of your initial payment.
Clearing house protections
On many exchanges, the performance of a transaction by us (or of a
third party with whom we are dealing on your behalf) is guaranteed
by the exchange or clearing house. However, this guarantee is unlikely
in most circumstances to cover you and may not protect you if your
firm or another party defaults on its obligations to you. On request,
we must explain any protection provided to you under the clearing
guarantee applicable to any on-exchange derivatives in which you
are dealing. For off-exchange instruments it is usual for there to be no
clearing house protections.
Trading on an electronic trading system may differ not only from
trading in an open-outcry market but also from trading on other
electronic trading systems. You must always ensure you understand
the operation of any such system before you use it. If you undertake
Transactions on an electronic trading system, you will be exposed to
risks associated with the system including the failure of hardware and
software. The result of any system failure may be that your order is
either not executed according to your instructions, is not executed at
all and a lack of capability to keep you informed continuously about
your positions and fulfilment of the Margin requirements.
Our insolvency or default, or that of any other brokers involved with
your transaction, may lead to positions being liquidated or closed out
without your consent.
You should be aware that the price of the financial instruments that
you are dealing with depends on fluctuations in the financial markets
outside of our control and that past performance is no indicator of
Dealing in securities which may be subject to stabilisation
We, and/or our representatives, may from time to time carry out
transactions on your behalf
in securities subject to stabilisation.
Stabilisation enables the market price of a security to be maintained
artificially during the period when a new issue of securities is sold to
the public. Stabilisation may affect not only the price of the new issue
but also the price of other securities relating to it. The FSA allows
stabilisation in order to help counter the fact that, when a new issue
comes onto the market for the first time, the price can sometimes drop
for a time before buyers are found.
Stabilisation is being carried out by a 'stabilisation manager' (normally
the firm chiefly responsible for bringing a new issue to market). As
long as the stabilising manager follows a strict set of rules, he is
entitled to buy back securities that were previously sold to investors
or allotted to institutions, which have decided not to keep them. The
effect of this may be to keep the price at a higher level than it would
otherwise be during the period of stabilisation.
Listed securities where gearing is involved
In relation to listed securities or equities where gearing is involved,
(for example, certain investment trusts or exchange traded funds) the
gearing strategy used by the issuer may result in movements in the
price of the securities being more volatile than the movements in the
price of the underlying investments. Your investment may be subject
to sudden and large falls in value and you may get back nothing at all
if there is a sufficiently large fall in your investment.
For further information please contact our Client Management
Department on + 44 800 1223 150 or by email to [email protected]
Valbury Capital Limited is authorised and regulated by the Financial
Services Authority, registration number 540418.
1 valburycapital.com © 2012 Terms of Business May 2012
Valbury Capital Limited
Terms of Business
2 valburycapital.com © 2012 Terms of Business May 2012
TERMS OF BUSINESS
Registered in England. Company No. 7393159
Authorised and regulated by the Financial Services Authority. Firm
Reference No: 540418
This document sets out the relationship between you and us in relation
to services we provide you. Please read it and all of the accompanying
documents carefully. If there is anything in the documents you do not
understand, please contact us as soon as possible.
Remember that investing in and dealing on the markets is risky
and it is possible to lose some or all of your capital. Investing and
dealing in leveraged instruments such as foreign exchange, contracts
for differences, options, futures and certain types of listed securities
carries a higher level of risk - it is possible to lose the whole of your
initial investment or margin and you may end up owing more and
sometimes your potential losses can be unlimited.
In this document the expressions "our Customer", "you", "your" and
"yourself" refer to you and "VCL", "the Company", "we", "us" and
"our" refer to Valbury Capital Limited..
1 INTRODUCTION AND RISK WARNING 3
2 YOUR RIGHT TO CANCEL 3
3 CLIENT CATEGORISATION 3
4 DEALINGS BETWEEN US AND ABSENCE OF ADVICE 3
5 OUTSOURCING 3
6 COMMUNICATIONS 3
7 PROVISION OF INFORMATION 4
8 INVESTMENT RESEARCH AND OTHER
PUBLISHED INFORMATION 4
9 DATA PROTECTION AND CONFIDENTIALITY
OF YOUR INFORMATION 4
10 BASE CURRENCY 4
11 YOUR MONEY - RETAIL CLIENTS 4
12 YOUR MONEY - PROFESSIONAL CLIENTS
OR ELIGIBLE COUNTERPARTIES 5
13 INTEREST 5
14 COSTS AND CHARGES 5
15 PAYMENTS AND WITHDRAWALS 5
16 RIGHT OF DEDUCTION AND RIGHT OF SET-OFF 6
17 MARGINING ARRANGEMENTS 6
18 SECURITY INTEREST 6
19 ACCOUNT OPERATION: SECURITY AND ACCOUNT
20 ELECTRONIC TRADING 7
21 ORDER EXECUTION POLICY 8
22 ORDERS AND EXECUTION 8
23 CONFIRMATIONS 9
24 CORPORATE ACTIONS 9
25 MARKET OR REGULATORY ACTION 9
26 ERRORS 9
27 MANIFEST ERROR 10
28 FORCE MAJEURE 10
29 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS 10
30 RESTRICTIONS ON DEALING 10
31 DEATH OF CUSTOMER 11
32 EVENTS OF DEFAULT 11
33 RIGHTS ON DEFAULT 11
34 TERMINATION WITHOUT DEFAULT 12
35 EXCLUSIONS AND LIMITATIONS OF LIABILITY 12
36 INDEMNITY 12
37 QUERIES 12
38 COMPLAINTS 12
39 COMPENSATION ARRANGEMENTS 13
40 THIRD PARTY RIGHTS AND ASSIGNMENT 13
41 ENTIRE AGREEMENT 13
42 GOVERNING LAW AND JURISDICTION 13
SCHEDULE A: GLOSSARY AND INTERPRETATION OF TERMS 14
3 valburycapital.com © 2012 Terms of Business May 2012
1 INTRODUCTION AND RISK WARNING
1.1 Valbury Capital Limited is authorised and regulated by the
Financial Services Authority (FSA) for the conduct of investment
business with registration number 540418. The FSA's registered
office is at 25 The North Colonnade, Canary Wharf, London, E14
1.2 Our registered office is at 8 Baden Place, Crosby Row, London,
United Kingdom, SE1 1YW, and our principal place of business
is at Royal Mint Court, London, United Kingdom, EC3N 4HJ. We
can be contacted by email to [email protected]
1.3 These Terms contain terms of the contract between you and
Valbury Capital Limited under which we will provide services
to you. You should read these Terms carefully. These terms
are legally binding and supercede any previous agreement
between us in relation to the services we provide you.
1.4 These Terms come into effect on the day we open your account
or, for subsequent versions, as notified to you. These Terms
can only be amended in writing and except where changes
are required by law or regulation we shall give you at least 5
Business Days written notice of any change to them. By dealing
with us or continuing with us on or after the date we have
notified to you of these Terms coming into effect you are deemed
to have acceoted these Terms.
1.5 Capitalised terms used in these Terms are explained in the
Glossary in Schedule A or within the clause in which they are
1.6 These Terms and all Transactions are subject at all times to
Applicable Laws and Regulations. This means:
(a) if something in these Terms conflicts with any Applicable Laws and
Regulations, the Applicable Laws and Regulations will prevail;
(b) any action we take or omit to take in compliance with any
Applicable Laws and Regulations shall be binding on you and
shall not create any liability for us or any of our Employees; and
(c) nothing in These Terms shall exclude or restrict any duty or
obligation of ours under Applicable Laws and Regulations.
1.7 Time will be of the essence in respect of all your obligations
to us under these Terms and any Transaction. That means that
if you do not do something by the required time you will have
broken your contract with us and we may be able to take
action against you.
1.8 These Terms are supplied to you in English and we will
communicate with you in English.
1.9 Foreign Exchange trading and, in particular, trading on Margin
and in Leveraged Instruments is risky. Please read very carefully
the risk warnings contained in the documents accompanying
these Terms and on our website. You should remember at all
(a) you should not trade unless you are willing to lose the whole
amount committed, which may be substantially more than the
(b) in some Transactions you may be exposed to unlimited losses;
(c) you need to monitor your positions and Free Margin closely;
(d) if using an Electronic Service you must ensure you are fully
including its Order types and characteristics.
2 YOUR RIGHT TO CANCEL
2.1 You have the right to cancel your agreement with us up to
14 days from the day on which these Terms first come into
effect, provided there have been no Transactions relating to an
Instrument whose price is dependent on fluctuations on the
financial market outside VCL's control. To exercise your right of
cancellation, you must notify us in writing within 14 days of the
day on which these Terms first come into effect.
3 CLIENT CATEGORISATION
3.1 The FSA Rules require us to classify each client as one of:
(i) an Eligible counterparty
(ii) a Professional Client; or
(iii) a Retail Client
We will treat you as a Retail Client (as defined under the
FSA Rules), unless we have informed you otherwise in writing.
Retail clients are afforded the highest degree of regulatory
protection under the FSA rules.
3.2 You have the right to request a different client categorisation.
However, if you do so and we agree to such categorisation, you
will lose the protection afforded by certain FSA Rules.
4 DEALINGS BETWEEN US AND ABSENCE OF ADVICE
4.1 Unless otherwise agreed between us in writing, we will act
as principal (and not as agent on your behalf) in respect of
4.2 The prices we provide to you are determined by us and we and/
or our Associates may profit from Transactions with you. You
agree that neither we nor our Associates are liable to account
to you for such profits.
4.3 You will act as principal and not as agent, attorney or
representative for any other person in respect of a Transaction.
Therefore, unless we have otherwise agreed in writing, we will
treat you as our client for all purposes and you are directly and
personally responsible for obligations under the Transaction.
4.4 You will enter into Transactions with us on an execution-only
basis. We will not provide financial, legal or tax advice and will
therefore not advise you about the merits of any particular
Transaction. In addition, we shall not at any time be deemed
to be under any duty to provide such advice and you will not
be entitled to ask us for investment advice. Unless otherwise
agreed with us in writing, we are under no obligation to satisfy
ourselves as to the suitability for you of any Transaction entered
into or contemplated by you, or, to monitor or advise you of the
status of any Transaction.
4.5 Accordingly, you agree that you will rely on your own
judgement (assisted by such third party independent advice
as you consider you need) for all investment decisions and
that we are not responsible for any investment decisions you
make or for advising on them. You also agree to monitor your
positions closely in order to ensure you are able to make your
5.1 We may use external service providers in order to provide you
with Services under these Terms, who may include Associates
or other third parties, and who may be based and operating
from outside the EU or EEA.
6.1 You may transmit Orders to us by telephone to a member of our
dealing staff on a telephone number or extension designated
for that purpose or electronically through an Electronic Service,
and, by no other means.
6.2 In other circumstances you may communicate with us:
(a) in writing, by letter to our Principal Place of Business or by
email to an email account designated by us for that purpose
or by fax to a fax number designated by us or electronically
through an Electronic Service using the means designated for
(b) orally, including by telephone to a telephone number
designated by us for the purpose.
6.3 You authorise us to communicate with you at any time
whatsoever about matters in relation to your account.
4 valburycapital.com © 2012 Terms of Business May 2012
6.4 We may communicate with you by telephone, letter, email, text
message or fax, and, through an electronic Service. We will use
the address, fax number, text number or email address provided
on your account opening application or, as subsequently
notified by you to us according to the procedure established by
us for such amendments. You agree to ensure we are promptly
notified of changes.
6.5 You specifically agree to receiving documents and notices
from us, including notices of amendments to these Terms, in
electronic form, including via email and through an Electronic
Service. It is your responsibility to inform us of any change
to your email address, the non-receipt of a confirmation, or
whether any confirmations are incorrect before settlement.
6.6 Communications made by us shall be deemed to have been
delivered to you: if sent by post, one business day after posting;
if delivered by hand, immediately on being left at your address;
if sent by fax or text message, as soon as transmitted; if emailed,
one hour from our transmitting the email.
6.7 You agree that we may record any telephone conversations
between you and us. Any recordings shall be and will remain
solely our property and will be accepted by you as conclusive
evidence of the Order or conversations so recorded. You agree
that the Company may deliver copies of or transcripts of such
recordings to any court, regulatory or government authority.
7 PROVISION OF INFORMATION
7.1 Any information provided to you on our website or through an
Electronic Service, at any training events or otherwise is generic
and must not be treated as advice that is suitable for you or is
based on a consideration of your personal circumstances.
7.2 If you are ever in any doubt we recommend that you obtain
independent professional advice from a suitably qualified
adviser on any financial, legal or tax matter before entering
into a Transaction with us.
7.3 Where we provide Market Information, we give no
representation, warranty or guarantee as to its accuracy
7.4 You agree that the provision of Market Information is incidental
to the provision of dealing services by us to you under these
Terms, that we are not responsible for the investment decisions
that you make and that you will not seek any recommendation
or advice from us or treat any such Market Information as
being a recommendation or advice.
8 INVESTMENT RESEARCH AND OTHER
8.1 We may from time to time send published research reports and
recommendations and other publications to you.
8.2 If any document or material we provide to you contains a
restriction on the person or category of persons for whom that
document is intended or to whom it is distributed, you agree
that you will not pass it on to any such person or category
of persons. We make no representations as to the time of
receipt by you of research reports or recommendations and
cannot guarantee that you will receive such research reports
or recommendations at the same time as other clients.
8.3 We shall not be liable for any investment decision you make,
based in whole or in part, on any investment research report,
recommendation or other publication we send to you. Any such
published research reports or recommendations may appear in
one or more screen information service.
8.4 Please refer to our Summary Conflicts of Interest Policy for
further information on how we manage conflicts which
would affect the impartiality of investment research or
recommendations we provide to you.
9 DATA PROTECTION AND CONFIDENTIALITY
OF YOUR INFORMATION
9.1 Subject to the following we will treat all information we hold
about you as private and confidential, even when you are
no longer a client. You agree, however, that we and other
companies in our group may:
(a) use your information to administer and operate your account
and monitor and analyse its conduct, provide services to you,
assess any credit limit or other credit decision (and the interest
rate, fees and other charges to be applied to your account) and
enable us to carry out statistical and other analysis;
(b) disclose your information to other companies in our group;
those who provide services to us or act as our agents; anyone
to whom we transfer or propose to transfer any of our rights
or duties under these Terms; credit reference agencies or other
organisations that help us and others make credit decisions and
reduce the incidence of fraud or in the course of carrying out
identity, fraud prevention or credit control checks; where we are
required to do so by Applicable Laws and Regulations, there is a
public duty to disclose or our interests require disclosure; at your
request; or with your consent (and in the case of a joint account,
we may disclose to any of you information obtained by us from
any of you in relation to the account);
(c) use your information, unless you have told us that you do not
wish us to do so, to inform you (by post, telephone, email or
other medium, using the contact details you have given us)
about products and services offered by us, other companies in
our group or selected third parties which we believe may be of
interest to you; and
(d) transfer your information to any country, including countries
outside the European Economic Area which may not have
strong data protection laws, for any of the purposes described
in this clause.
9.2 You may have rights of access to some or all of the information
we hold about you, to have inaccurate information corrected and
to tell us that you do not wish to receive marketing information,
under data protection law. If you wish to exercise any of these
rights, please contact us in writing.
10 BASE CURRENCY
10.1 The Base Currency for your Account will be one of the UK
pound, US dollar or the EU euro as agreed in writing between
you and us.
11 YOUR MONEY - RETAIL CLIENTS
11.1 If we have categorised you as a Retail Client we shall treat
money received from you or held by us on your behalf as Client
Money treated as such under the FSA's Client Money Rules.
This means that money belonging to our Retail Clients is held
in bank accounts separate from our own and cannot be used
by us in our business.
11.2 We can make payments out of such Client Money in respect
of all sums due from you to us, or, under these Terms any
Transaction from you to any other person.
11.3 We may also make payments or allow another person, such as
an exchange, clearing house or intermediate broker, to hold or
control Client Money (a) for the purposes of a Transaction for
you with or through that person; or (b) to meet our obligation
to provide collateral for a Transaction or in relation to a
transaction matching or relating to a Transaction with you (for
example where margin is required).
11.4 You agree that we may cease to treat any money held on your
behalf as Client Money and release it from our Client Money
bank account(s), if you have no Open Positions and have not
placed a Transaction in the previous six (6) years, and we do
5 valburycapital.com © 2012 Terms of Business May 2012
not receive a response within 28 days of writing to you at the
last known address informing you of our intention to no longer
treat such money as Client Money.
11.5 Such money will, however, remain owing to you and we will
make and retain records of all balances released from Client
Money bank accounts under this clause and will undertake to
make good any valid claims against such released balances.
12 YOUR MONEY - PROFESSIONAL CLIENTS
OR ELIGIBLE COUNTERPARTIES
12.1 If we have categorised you as a Professional Client or an
Eligible Counterparty then, as permitted by Applicable Laws
and Regulations, we will acquire full ownership of all amounts
received by us from you, or credited by us to your Account.
12.2 This money is used to cover your potential or contingent
liabilities to us under these Terms. It does not constitute Client
Money for the purposes of Applicable Laws and Regulations
and so will not be segregated from money held in our own
account(s) and may be used by us in the course of our business.
12.3 You will rank as a general creditor of us in respect of this
money in the event of our insolvency.
13.1 We will not pay interest to you on any money held on
14 COSTS AND CHARGES
14.1 You shall pay our charges as notified to you from time to
time, any taxes imposed by any competent authority on any
account opened or Transaction effected by or cleared for you;
any fees or other charges imposed by a Market or any clearing
organisation; interest on any amount due to us at the rates
then charged by us (and which are available on request); and
any other value added or other applicable taxes of any of the
foregoing, including any withholding tax. We will notify you of
our current charges. Any alteration to charges will be notified
to you before the time of the change.
14.2 In addition to the costs set out above, additional costs may
be payable by you by virtue of the fact that these Terms
and Transactions under it may be entered into via email or
telephone or other distance means.
14.3 All amounts due to us under these Terms are due immediately
on our demand.
14.4 Payments shall be made in such currency as we may from
time to time specify and must be made to the bank account
designated by us for such purposes. All payments shall be
made by you without any deduction or withholding.
14.5 We may receive remuneration from, or share charges with, an
Associate or other third party in connection with Transactions
carried out on your behalf.
14.6 We are entitled to deduct or withhold from any payment made
under the Terms or credited to your Account, any tax required
by law to be deducted or withheld from any such payment or
credit. You should be aware of the possibility that other taxes
or costs may exist that are not paid through or imposed by us.
14.7 Your tax treatment may differ according to your personal
circumstances and the tax legislation in your jurisdiction
(which may change). You may also be liable for other taxes
and charges that are not imposed by us, including bank fees
for transfers of money or assets, and fees to internet and
telephone service providers. You are solely responsible for
the timely payment of such taxes and charges. You should
seek independent advice if you are in any doubt as to what
further taxes and charges may apply to you as a result of your
15 PAYMENTS AND WITHDRAWALS
15.1 You are responsible for making payments to us which are
required, from time to time, under these Terms or as required
by Applicable Laws and Regulations, including any payments
(a) to keep the Account Value above the sum of the Margin
Requirements on your Open Positions;
(b) to clear any negative Account Value;
(c) to satisfy any debts to us, including in respect of Financing
(d) to meet any Margin required to open or continue your Account
or any Transaction.
15.2 The procedures setting out our accepted payment methods and
the costs involved, instructions on how to make and correctly
designate payments, and the timings for receipt of payments
are available from our customer management team upon
15.3 We may reject any payment that is not made in accordance
with these Terms and with Applicable Laws and Regulations.
15.4 Payments will be accepted from you only where they are in
respect of a bank account held in your name, and the payment
has originated from you. If there is any inconsistency between
your name (as supplied to us by you) and the name on the
source account from which the payment originates, the
payment may be rejected and returned to the source account.
In any case, payments will only be deemed to have been
received by us once the money has been received as cleared
funds and is shown on an Electronic Service as having been
received by us or credited to your Account.
15.5 You are responsible for any costs incurred in the process of
making any payment to your Account (e.g. transaction costs). If
you make a payment by debit card or credit card or withdraw
funds from your Account, we may charge an administration fee
to process your payment.
15.6 If we are holding an amount on your behalf as Client Money
which exceeds your Margin Requirements, you may make
a request to withdraw money up to that amount from your
Account, subject to the other provisions of these Terms and
Applicable Laws and Regulations. Details on how to make
withdrawals are available on our website or from our customer
management team upon request.
15.7 Unless we agree otherwise in writing, or to comply with
Applicable Laws and Regulations, we will generally only accept
a request for a withdrawal of money from your Account that
is given directly by you and we will not accept any request
for a withdrawal given by any other person. In addition,
withdrawals will only be processed by us where the destination
for the money being withdrawn is the same as the origin of
your payment or payments to us, unless (and subject to our
approval) you have notified us in writing that your payment
details have changed.
15.8 Under certain circumstances there may be a delay in processing
your payment or a withdrawal, including where such delay is
due to the time it takes for our systems to process the payment
or withdrawal, to circumstances outside our control or to an
issue in relation to your payment or withdrawal that we may
be attempting to resolve to comply with Applicable Laws and
15.9 We may in our reasonable discretion refuse or delay giving
effect to your request for a withdrawal (in whole or in part) if
we reasonably consider that:
(a) this money is required to cover any costs, realised losses,
Margin or net unrealised losses in respect of your transactions;
(b) this money may be required on your Account to meet a
payment obligation that is due or reasonably likely to fall due
6 valburycapital.com © 2012 Terms of Business May 2012
within the next five (5) Business Days;
(c) we need the money to make a Deduction or to exercise our
right of Set-off in accordance with these Terms or Applicable
Laws and Regulations (including for tax purposes);
(d) we are required to do so under Applicable Laws and
Regulations or reasonably suspect that there has been a breach
of Applicable Laws and Regulations; or
(e) there is an unresolved dispute, disagreement or query between
us and you in connection with these Terms.
16 RIGHT OF DEDUCTION AND RIGHT OF SET-OFF
16.1 We may deduct, from any of your money held by us, any money
due to us under these Terms, or required to be deducted by
Applicable Laws and Regulations (including for tax purposes),
held by us (this is our right to make a "Deduction").
16.2 In addition to any other right we have to withhold a withdrawal
from your Account or make a Deduction we may, at any time
at our discretion and without notice to you, apply any positive
balance on any Account of yours or on any money due to you
from us against any money due to us (or any of our Associates)
from you (this is our right of "Set-Off").
16.3 If we exercise our right of Set-Off, we will give you notice of
the amount of any debt that remains unsatisfied and you must
immediately pay such amount to us.
16.4 If at any time you owe us and we owe you the same amount
of money in the same currency, then both your and our such
obligation will each be automatically satisfied and discharged.
16.5 If at any time you owe us and we owe you a different amount
of money in the same currency, then whichever of you or us
that owes more may pay the excess to the other party and both
your and our obligations in that currency will be satisfied and
16.6 For the purposes of exercising our rights under this clause, we may
apply the VCL exchange rate to convert the relevant cash balances
and any money due to you or us into the same currency.
17 MARGINING ARRANGEMENTS
17.1 Where you enter into a Transaction in respect of a Leveraged
Instrument, for example, a rolling spot forex contract, you will
be subject to a Margin Requirement. A Margin Requirement
may be a fixed amount or may vary according to the valuation
of the Transaction from time to time.
17.2 The Company is entitled to apply new Margin Requirements to
new positions and to positions which are already open.
17.3 When you propose to enter into a Transaction with us we may
determine whether you have sufficient Free Margin on the
relevant Account in order to meet the Margin Requirement for
the Transaction. If your Free Margin on the relevant Account
is lower than the Margin Requirement for the proposed
transaction we have the right, but not the duty, to refuse to
enter into the Transaction with you or to require the payment
of further Margin.
17.4 If at any time there is a Margin Deficit on an Account of yours,
that is, your Free Margin on that Account is negative, then,
notwithstanding the margin position on any other Account
you hold with us, we have the right but not the obligation,
without notice to you, to close all your Open Transactions on
that Account or on all your Accounts with us and may do so at
our sole discretion within one business day of that time.
17.5 Please note that our right to close your Open Transactions as
set out above may be exercised notwithstanding that at the
time we exercise the right there may be no Margin Deficit.
17.6 Unless we agree otherwise all Margin must be provided in
cash. Where we agree to accept non-cash collateral as Margin,
it must be in a form acceptable to us. The value of the noncash collateral and the proportion of that value to be taken into
account for Margin purposes shall be determined by us in our
18 SECURITY INTEREST
18.1 Where you have been classified as a Professional Client,
as a continuing security for the performance of the Secured
Obligations under or pursuant to these Terms, you grant to us,
with full title guarantee, a first fixed security interest in all noncash Margin now or in the future provided by you to us or to
our order or under our direction or control or that of a Market
or otherwise standing to the credit of your account under
these Terms or otherwise held by us or our Associates or our
nominees on your behalf.
18.2 You agree to execute such further documents and to take such
further steps as we may reasonably require to perfect our
security interest over, be registered as owner of or obtain legal
title to the Margin, secure further the Secured Obligations,
enable us to exercise our rights or to satisfy any market
18.3 You may not withdraw or substitute any property subject to our
security interest without our consent.
18.4 You undertake neither to create nor to have outstanding any
security interest whatsoever over, nor to agree to assign or
transfer, any of the cash or non-cash Margin transferred to us,
except a lien routinely imposed on all securities in a clearing
system in which such securities may be held.
18.5 You agree that we may, to the extent that any of the Margin
constitutes "financial collateral" and these Terms and
your obligations hereunder constitute a "security financial
collateral arrangement" (in each case as defined in, and for
the purposes of, the Financial Collateral Arrangements (No. 2)
Regulations 2003 (SI 2003 No. 3226) (the "Regulations") free
of any adverse interest of yours or any other person, grant a
security interest over Margin provided by you to cover any of
our obligations to an intermediate broker or Market, including
obligations owed by virtue of the positions held by us or other
of our clients.)
18.6 If an Event of Default occurs, we may exercise the power to
sell all or any part of the Margin. The restrictions contained
in Sections 93 and 103 of the Law of Property Act 1925 shall
not apply to these Terms or to any exercise by us of our rights
to consolidate mortgages or our power of sale. We shall
be entitled to apply the proceeds of sale or other disposal
in paying the costs of such sale or other disposal and in or
towards satisfaction of the Secured Obligations.
18.7 To the extent that any of the Margin constitutes "financial
collateral" and these Terms and your obligations hereunder
constitute a "security financial collateral arrangement" under
the Regulations, we shall have the right to appropriate all or
any part of such financial collateral in or towards discharge of
the Secured Obligations. For this purpose, you agree that the
value of such financial collateral so appropriated shall be the
amount of the Margin, together with any accrued but un-posted
interest, at the time the right of appropriation is exercised. The
parties further agree that the method of valuation provided
for in these Terms shall constitute a commercially reasonable
method of valuation for the purposes of the Regulations.
18.8 In addition and without prejudice to any rights to which we
may be entitled under these Terms or any Applicable Laws and
Regulations, we shall have a general lien on all property held
by us or our Associates or our nominees on your behalf until
the satisfaction of the Secured Obligations.
18.9 The term "Secured Obligations" means the net obligation
owed by you to us after the application of set-off under the
7 valburycapital.com © 2012 Terms of Business May 2012
clause headed "Right of Deduction and Right of Set-off " in
19 ACCOUNT OPERATION: SECURITY AND
19.1 It is your responsibility to keep all information that you hold
relating to your Account, including any and all sign in details,
passwords and security answers, and emails and letters that
we send to you, confidential at all times. We rely on this
information being secure to protect you and us against fraud,
as we will normally treat a log in to an Electronic Service as
being made by the holder of the account.
20 ELECTRONIC TRADING
20.1 These clauses apply to your use of any Electronic Service
provided by or made available by or through Valbury Capital
20.2 You agree that before utilising an Electronic Service you will
20.3 You are responsible for making sure that you are able to access
the Electronic Service when you need to and it is available,
and, for maintaining awareness of and complying with all
Applicable Regulations. This includes having access to a device
and to services that can connect to the Electronic Service and
maintaining the device and services: and, for ensuring you
enter the correct user ID and password.
20.4 You will ensure that no computer viruses, worms, software
bombs or similar items are introduced into our computer
system or network and will indemnify us on demand for any
loss that we suffer arising as a result of any such introduction.
20.5 You agree that we may act on instructions and Orders that we
reasonably believe are given by you or on your behalf using
an Electronic Service and that we are not responsible for the
accuracy or completeness of communications between you and
us through the Electronic Service. We shall not be liable for any
loss, liability or cost whatsoever arising from any unauthorised
use of an Electronic Service. You shall on demand indemnify,
protect and hold us harmless from and against all losses,
liabilities, judgements, suits, actions, proceedings, claims,
damages and costs resulting from or arising out of any act or
omission by any person using an Electronic Service by using
your designated passwords, whether or not you authorised
20.6 We can act on Orders and instructions only if we have received
them. Therefore, you agree that we are not obliged to accept
or act upon all or any instructions or Orders that you have
placed or believe you had placed or wished to place through
an Electronic Service (if we have not received them).
20.7 If you cannot access an Electronic Service directly, then you
may be able to contact our customer management team by
telephone to request that we access the Electronic Service on
your behalf. However, this facility is available to you entirely
at our discretion, and you must not rely on our customer
management team being available to assist you to enter into
or close your positions.
20.8 We shall make reasonable efforts to make an Electronic Service
available during trading hours when required by you, but we
cannot promise that it will be available continuously. This is
because from time to time:
a) errors and/or failure may occur in respect of technology, the
internet may be subject to faults or events which may affect
your access, and your systems, our systems or the systems of a
third party you or we rely on may fail to work properly; and
b) we or the Electronic Service provider or operator may need to
suspend availability of the Electronic Service for maintenance,
repairs, upgrades or any development-related issues.
20.9 We may suspend or permanently withdraw an Electronic
Service, by giving you notice.
20.10 Where an Electronic Service or any other content contains
links to other sites and resources provided by third parties,
these links are provided for your information only. We have
no control over the contents of those sites or resources, and
accept no responsibility for them or for any loss or damage that
may arise from your use of them.
20.11 Neither we nor any third party software provider accepts
any liability in respect of any delays, inaccuracies, errors or
omissions in any data provided to you in connection with an
20.12 We shall have no liability to you for damage which you may
suffer as a result of transmission errors, technical faults,
malfunctions, illegal intervention in network equipment,
network overloads, malicious blocking of access by third parties,
internet malfunctions, interruptions or other deficiencies on the
part of internet service providers. You acknowledge that access
to Electronic Services may be limited or unavailable due to such
system errors, and that we reserve the right upon notice to
suspend access to Electronic Services for this reason.
20.13 We shall have no liability to you (whether in contract or in tort,
including negligence) in the event that any viruses, worms,
software bombs or similar items are introduced into the System
via an Electronic Service or any software provided by us to you
in order to enable you to use the Electronic Service, provided
that we have taken reasonable steps to prevent any such
20.14 We shall not be liable for any act taken by or on the instruction
of a Market, clearing house or regulatory body.
20.15 We have the right, unilaterally and with immediate effect,
to suspend or withdraw permanently your ability to use any
Electronic Service, or any part thereof, without notice, where
we consider it necessary or advisable to do so, for example,
due to your non-compliance with the Applicable Laws and
Regulations (or we are uncertain of your compliance), breach
of any provisions of these Terms (or we are uncertain that there
has been no breach), on the occurrence of an Event of Default,
network problems, failure of power supply, for maintenance,
or to protect you when there has been a breach of security. In
addition, the use of an Electronic Service may be terminated
automatically, upon the termination (for whatever reason) of:
(a) any licence granted to us which relates to the Electronic
(b) these Terms of Business ; or,
(c) we are required to withdraw the facility to comply with
Applicable Laws and Regulations.
20.16 In the event of a termination of the use of an Electronic
Service for any reason, upon request by us, you shall, at our
option, return to us or destroy all hardware, software and
documentation we have provided you in connection with such
Electronic Service and any copies thereof.
21 ORDER EXECUTION POLICY
21.1 You confirm that you have read and agree to our Order Execution
Policy Summary which, among other things, incorporates our
policy towards best execution. This is reviewed, updated and
amended by us from time to time and is available on our
21.2 It is your responsibility to check for any other changes to our
order execution policy as published from time to time at www.
valburycapital.com. We will consider the continued placement
of Orders by you to constitute your continued consent to our
8 valburycapital.com © 2012 Terms of Business May 2012
order execution policy as in effect from time to time.
22 ORDERS AND EXECUTION
22.1 The prices that we provide to you through an Electronic Service
or on the telephone are an indication of the price at which we
would be willing to buy and to sell the Instrument at the time at
which we generate the price. They are not firm prices.
22.2 An Order given by you to us is an offer to enter into a Transaction
with us according to the parameters you provide, subject to the
dealing rules of the Electronic Service through
which the Transaction will be facilitated or recorded We have
discretion whether we wish to accept the offer from you to enter
into the transaction. If we decline your offer, we shall not be
obliged to give a reason but we shall notify you accordingly.
22.3 We have the right (but no obligation) to set limits and/
or parameters to control your ability to place Orders at our
absolute discretion. Such limits and/or parameters may be
amended, increased, decreased, removed or added to by us at
our discretion and may include (without limitation):
• controls over maximum order amounts and maximum
• controls over your gross or net Open Positions;
• controls over long and short positions in the same underlying,
where you agree we have discretion (but no obligation) to
close out one against the other
• controls over prices at which orders may be submitted which
may include (without limitation) controls over orders which are
at a price which differs greatly from the market price at the
time the order is submitted;
• controls over the Electronic Services (to include (without
limitation) any verification procedures to ensure that any
particular order or orders has come from you); or
• any other limits, parameters or controls which we may be
required to implement in accordance with Applicable Laws and
22.4 If we receive an Order from you outside Market Hours for the
relevant Instrument we have discretion to ignore or cancel that
Order but if we choose not to exercise that discretion we shall
process that Order when the relevant Market is next open for
22.5 If you use an Electronic Service to place Orders and to give us
instructions the Order types and characteristics and how they
are handled and executed by us will be subject to the operation
of that Electronic Service. Any matter set out in these Terms
of Business is therefore subject to the rules or operational
capabilities or mode of operation of the Electronic Service and
must be construed accordingly.
22.6 You agree that before placing any Order through an Electronic
Service, including giving a telephone or other instruction to
us to input an Order on your behalf, you will ensure you fully
understand the operation of the Electronic Service, including
the order-types it offers and how they are handled.
22.7 When we receive an Order we or the Electronic Service carry
out several checks before it is sent for execution. In the
circumstances listed below, the Company may decline an Offer
or a request to trade and not send the Offer for execution:
• where there are Abnormal Market Conditions;
• Customer's Free Margin is less than the Margin Requirement;
• The Instrument is not tradeable at the level specified in the Order.
22.8 The price at which the Order is then executed depends upon
the rules and parameters of the Electronic Service through
which it is executed; for example, it is possible it will be tested
against a Maximum Permitted Tolerance Level (which prevents
Orders being dealt on stale process); it is possible it will be
executed at our Current Price; it is possible it will be executed
at a price that differs from the price that the Electronic Service
was displaying to you at the time you selected the order.
22.9 We shall use our reasonable endeavours to execute any Order
promptly, but in accepting your orders we do not represent or
warrant that it will be possible to execute such order or that
execution will be possible according to your instructions.
22.10 If we encounter any material difficulty relevant to the proper
carrying out of an Order on your behalf we shall endeavour to
22.11 You agree that we may execute an Order on your behalf
outside a Market. When you give us a specific instruction, our
order execution policy will not apply to any matters covered
by that specific instruction, and we may be unable to take the
steps described in such policy to obtain the best possible result
in executing your order.
22.12 We may, at our entire discretion, arrange for any Transaction
to be effected with or through the agency of an intermediate
broker, who may be an Associate of ours, and may not be in
the United Kingdom. Neither we, nor our respective directors,
officers, employees or agents will be liable to you for any act or
omission of an intermediate broker or agent. No responsibility
will be accepted for intermediate brokers or agents selected by
22.13 You will promptly deliver any instructions, money, documents or
property deliverable by you under a Transaction in accordance
with that Transaction as modified by any instructions given by
us for the purpose of enabling us to perform our obligations
under the relevant matching Transaction on a Market or with an
intermediate broker or counterparty.
23.1 We shall send you confirmations of Orders at the end of the
trading day for any Transactions that we have executed on
your behalf on that trading day, by electronic mail to the email
address on record for you.
23.2 Confirmations shall, in the absence of Manifest Error, be
conclusive and binding on you, unless we receive from
you objection in writing within 24 hours of despatch of the
confirmation to you (or, if earlier, as noted on the confirmation
itself); or, we notify you of an error.
24 CORPORATE ACTIONS
24.1 Where relevant we or a sub-custodian will endeavour to notify
you of any corporate action that requires your instruction and
of the date and time by which we must receive it. Should
we not receive your instruction or receive it outside the time
stipulated or consider your instruction unclear you agree we
may take no action or whatever action we reasonably consider
appropriate in the circumstances.
24.2 We do not always receive timely notice of corporate actions
relevant to the underlyings of derivative financial instruments
and cannot guarantee to provide such notice to you. We shall
endeavour to treat you fairly in the light of the treatment
afforded to us, but we cannot guarantee the holder of a
derivative financial instrument will receive treatment that
matches or is as beneficial as that available to a holder of the
underlying that is subject to a corporate action.
24.3 We shall not give you notice of ordinary or extraordinary general
meetings in relation to securities or financial instruments you
hold; nor shall we make arrangements for you to vote at such
24.4 We do not guarantee that you will be able to deal through
our systems in securities subject to corporate actions or, in
derivatives where the underlying is so subject; even when you
have a holding.
9 valburycapital.com © 2012 Terms of Business May 2012
25 MARKET OR REGULATORY ACTION
25.1 If a Market (or intermediate broker or agent, acting at the
direction of, or as a result of action taken by, a Market) or
regulatory body takes any action which affects a Transaction,
then we may take any action which we, in our reasonable
discretion, consider desirable to correspond with such action
or to mitigate any loss or potential loss we may incur as a
result of such action. Any such action shall be binding on you.
If a Market or regulatory body makes an enquiry in respect of
any of your Transactions, you agree to co-operate with us and
to promptly supply information requested in connection with
26.1 Except in the case of fraudulent activity carried on, without
your knowledge, by a person other than you, we do not accept
responsibility for any loss or damage suffered by you as a result
of your use of money placed in or credited to your Account in
error by or on our behalf.
26.2 We will be entitled at any time to deduct, without notice
or recourse to you, any money placed in or credited to your
Account in error by us or on our behalf.
27 MANIFEST ERROR
27.1 A Manifest Error is an error that we reasonably believe to be
obvious or palpable, in relation to pricing or of some other
determinant or factor affecting a Transaction or the outcome of
one or more Transactions that has an impact upon the profit or
loss or potential for profit or loss of the Transaction or series of
27.2 Examples of Manifest Error include:
(a) Where the bid price for an Instrument is quoted at a higher
level than the offer price (an "inverted quote");
(b) Where a bid or offer price or both have not been updated on an
Electronic Service or by our systems despite underlying market
activity ("frozen prices") or do not properly reflect market
(c) Where our systems or an Electronic Service accepts or processes
an Order in a way or in circumstances they were not intended
to do so (an example, of this would be a Sell Stop Order filling
at the opening price of the order level rather than the Stop
(d) Where the size of the Transaction is outside the normal
parameters of dealing;
(e) Circumstances in which a Transaction or Transactions effected
by a Customer or Customers cause a financial loss to us and
are such that we had no effective means of hedging against
the possibility or prospect of the profit gained or loss avoided.
27.3 Where we reasonably believe there to be a Manifest Error we
have the right to amend, void or reverse relevant Transactions.
You agree to return to us immediately any sums received in
respect of Manifest Error.
28 FORCE MAJEURE
28.1 A Force Majeure Event is an emergency or exceptional event
outside our control which makes it impracticable for us to
comply with the Agreement.
28.2 If we reasonably conclude that there is or has been a Force
Majeure Event then we may cease, suspend or restrict the
provision of our services or any part of them or change the
terms of any Transaction.
29 REPRESENTATIONS, WARRANTIES AND UNDERTAKINGS
29.1 You represent and warrant to us on the date these Terms come
into effect and as of the date of each Transaction that:
(a) you act as principal and sole beneficial owner (but not as
trustee) in entering into these Terms and each Transaction;
(b) you have full capacity to enter into these Terms and, if an
individual, you have reached the age of 18 years;
(c) you have all necessary authority, powers, consents, licences
and authorisations and have taken all necessary action to
enable you lawfully to enter into and perform these Terms and
Transactions pursuant to these Terms and to grant the security
interests and powers referred to in these Terms;
(d) these Terms, each Transaction and the obligations created under
them both are binding upon you and enforceable against you in
accordance with their provisions (subject to applicable principles
of equity) and do not and will not violate the terms of any
regulation, order, charge or agreement by which you, or, to your
knowledge, any other person, are bound;
(e) no Event of Default or any event which may become (with
the passage of time, the giving of notice, the making of any
determination or any combination of the above) an Event of
Default has occurred and is continuing with respect to you or
any Credit Support Provider;
(f) any information which you provide or have provided to us in
respect of your financial position, domicile or other matters is
accurate and not misleading in any material respect;
(g) you are willing and financially able to sustain a total loss of
funds resulting from Transactions;
(h) except as otherwise agreed by us and only to the extent that
title transfer is permitted, you are the sole beneficial owner
of all Margin you transfer under these Terms, free and clear
of any security interest whatsoever other than a lien routinely
imposed on all securities in a clearing system in which such
securities may be held;
29.2 You undertake that:
(a) you will at all times obtain and comply, and do all that is
necessary to maintain in full force and effect, all authority,
powers, consents, licences and authorisations referred to in
(b) you will promptly notify us of the occurrence of any Event of
Default with respect to yourself or of any Credit Support Provider;
(c) you will use all reasonable steps to comply with all Applicable
Laws and Regulations in relation to these Terms and any
Transaction, so far as they are applicable to you or us;
(d) you will not send Orders or otherwise take any action that could
create a false impression of the demand or value for a security
financial Instrument, or send orders which you have reason to
believe are in breach of Applicable Laws and Regulations. You
shall observe the standard of behaviour reasonably expected
of persons in your position and not take any step which
would cause us to fail to observe the standard of behaviour
reasonably expected of persons in our position;
(e) upon demand, you will provide us with such information as
we may reasonably require in order to corroborate the matters
referred to in this clause 31 or for us to comply with Applicable
Laws and Regulations.
(f) you will not distribute our prices to any other person;
(g) you will use our services on a good faith basis and will not in
any way seek to take advantage of pricing anomalies or use any
strategy, method or device that seeks to take advantage of or
has the effect of taking unfair advantage of pricing anomalies
or of the way we construct or display or provide prices or effect
Transactions. This includes circumstances in which a trading
strategy leads to profits with limited or no downside risk. A
pricing anomaly arises where a price is displayed or dealt, but
had we been in possession of all the relevant facts we would
not have displayed that price or transacted at it. Relevant
facts include the fact that we aim that the prices we provide
10 valburycapital.com © 2012 Terms of Business May 2012
or display properly reflect those at which rational buyers and
sellers in the underlying market would be willing to deal.
30 RESTRICTIONS ON DEALING
30.1 We may at our absolute discretion and without explanation
to you refuse to enter into further Transactions with you or
impose restrictions on the type or nature of Transactions we
will engage in with you.
31 DEATH OF CUSTOMER
31.1 We will inform the executors of the value of the account at the
date of death and provide other requested information to the
extent compatible with our other obligations. We are unable to
accept instructions following the death of a Customer until we
are in receipt of a sealed copy of grant of probate
31.2 In the event of death of one party of a joint account please
inform us immediately.
32 EVENTS OF DEFAULT
32.1 An Event of Default arises in the event of the following arising
or our reasonable belief of their arising:
a) you fail to make any payment when due under any provision
of these Terms, or, to make or take delivery of any property
when due under these Terms, or, to observe or perform any
other provision of these Terms, or, otherwise, fail to perform an
obligation due to us;
(b) you commence a voluntary case or other procedure seeking
or proposing liquidation, reorganisation, an arrangement or
composition, a freeze or moratorium, or other similar relief with
respect to you or your debts under any bankruptcy, insolvency,
regulatory, supervisory or similar law (including any corporate
or other law with potential application to you, if insolvent),
or seeking the appointment of a trustee, receiver, liquidator,
conservator, administrator, custodian or other similar official
(each a "Custodian") of you or any substantial part of your
assets, or if you take any corporate action to authorise any of
the foregoing, and in the case of a reorganisation, arrangement
or composition, we do not consent to the proposals;
(c) an involuntary case or other procedure is commenced against
you seeking or proposing liquidation, reorganisation, an
arrangement or composition, a freeze or moratorium, or
other similar relief with respect to you or your debts under
any bankruptcy, insolvency, regulatory, supervisory or similar
law (including any corporate or other law with potential
application to you, if insolvent) or seeking the appointment of
a Custodian of you or any substantial part of your assets and
such involuntary case or other procedure either (a) has not been
dismissed within five days of its institution or presentation or
(b) has been dismissed within such period but solely on the
grounds of an insufficiency of assets to cover the costs of such
case or other procedure;
(d) you die, become of unsound mind, are unable to pay your debts
as they fall due or are bankrupt or insolvent, as defined under
any bankruptcy or insolvency law applicable to you; or any
indebtedness of yours is not paid on the due date therefore,
or becomes capable at any time of being declared, due and
payable under agreements or Instruments evidencing such
indebtedness before it would otherwise have been due and
payable, or any suit, action or other proceedings relating to
these Terms are commenced for any execution, any attachment
or garnishment, or distress against, or an encumbrancer
takes possession of, the whole or any part of your property,
undertaking or assets (tangible and intangible);
(e) any representation, warranty made or given or deemed made
or given by you under these Terms or any Credit Support
Document is or becomes untrue, or, or proves to have been
false or misleading in any material respect as at the time it was
made or given or deemed made or given, or any covenant is
(f) you are dissolved, or, if your capacity or existence is dependent
upon a record in a formal register, the registration is removed
or ends, or any procedure is commenced seeking or proposing
your dissolution, removal from such a register, or the ending of
such a registration;
(g) (i) any Credit Support Provider fails, or you yourself fail to
comply with or perform any agreement or obligation to be
complied with or performed by you or it in accordance with
the applicable Credit Support Document; (ii) any Credit Support
Document expires or ceases to be in full force and effect prior
to the satisfaction of all your obligations under these Terms,
unless we have agreed in writing that this shall not be an
Event of Default; (iii) any representation or warranty made or
given or deemed made or given by any Credit Support Provider
pursuant to any Credit Support Document proves to have been
false or misleading in any material respect as at the time it
was made or given or deemed made or given; or (iv) any event
referred to in paragraphs (b) to (f) of this sub-clause occurs in
respect of any Credit Support Provider of yours;
(h) you or any Credit Support Provider (or any Custodian acting on
behalf of either of you or a Credit Support Provider) disaffirms,
disclaims or repudiates any obligation under these Terms or
any guarantee, hypothecation agreement, Margin or security
agreement or document, or any other document containing an
obligation of a third party ("Credit Support Provider"), or of
you, in favour of us supporting any of your obligations under
these Terms (each a "Credit Support Document");
(i) where we consider it necessary or desirable to prevent what
we consider is or might be a violation of any Applicable Laws
and Regulations or good standard of market practice;
(j) where we consider it necessary or desirable for the protection
of ourselves or all and any of our clients;
(k) an action is taken or event occurs or circumstance arises which
we consider might have a material adverse effect upon your
ability to perform any of your obligations under these Terms;
(l) any event of default (however described) occurs in relation
to you under any other agreement between us to which you
are a party or any other event specified elsewhere for these
32.2 A Potential Event of Default arises in the event that we make
a determination that we have knowledge or suspicion that an
Event of Default in respect of you will arise or is reasonably
likely to arise.
33 RIGHTS ON DEFAULT
33.1 On an Event of Default or Potential Event of Default arising and
at any time thereafter, in addition to any other rights we may
have under these Terms or otherwise we shall be entitled at
any time without prior notice to you:
(a) to close out or part-close any and all of your Transactions, or,
buy, sell, borrow or lend or enter into any other Transaction or
take, or refrain from taking, such other action at such time or
times and in such manner as, at our sole discretion, we consider
necessary or appropriate to cover, reduce or eliminate our loss,
liability or risk under or in respect of any of your contracts,
positions or commitments; and/or
(b) to close any or all of your Accounts with us and/or refuse to
enter into further Transactions with you; and/or
(c) instead of returning to you investments equivalent to those
credited to your account, to pay to you the fair market value of
11 valburycapital.com © 2012 Terms of Business May 2012
such investments at the time we exercise such right, and/or
(d) to sell such of your investments as are in our possession or in
the possession of any nominee or third party appointed under
or pursuant to these Terms, in each case as we may in our
absolute discretion select or and upon such terms as we may
in our absolute discretion think fit (without being responsible
for any loss or diminution in price) in order to realise funds
sufficient to cover any amount due by you hereunder; and/or
(e) to hold or retain any property of yours including money for
a period of 10 business days or such longer period as we
reasonably believe expedient; during such time we may carry
out enquiries into the nature and circumstances of the Event of
Default or Potential Event of Default, and shall not be bound to
explain to you the nature of the Event of Default or Potential
Event of Default
34 TERMINATION WITHOUT DEFAULT
34.1 Unless required by Applicable Laws and Regulations, either
party may terminate these Terms (and the relationship between
us) by giving written notice of termination to the other.
34.2 In the event of Termination we shall close all your Transactions
and all amounts payable by you to us will become immediately
due and payable including (but without limitation):
(a) all outstanding fees, charges and commissions; and
(b) any dealing expenses incurred by terminating these Terms; and
(c) any losses and expenses realised in closing out any Transactions
or settling or concluding outstanding obligations incurred by
us on your behalf.
34.3 Termination shall not affect then outstanding rights and
obligations (nor, in particular, the application of the Default,
Exclusions and Limitation of Liability, Indemnity and Governing
Law Clauses) and Transactions which shall continue to be
governed by these Terms and the particular clauses agreed
between us in relation to such Transactions until all obligations
have been fully performed.
35 EXCLUSIONS AND LIMITATIONS OF LIABILITY
35.1 Without limitation, we do not accept any liability by reason of
any delay or change in market conditions before any particular
Transaction is effected.
35.2 Without limitation, we do not accept liability for any adverse
tax implications of any Transaction whatsoever.
35.3 Neither we nor our Employees shall be liable for any losses,
damages, costs or expenses, whether arising out of negligence,
breach of contract, misrepresentation or otherwise, incurred
or suffered by you under or in connection with these Terms
(including any Transaction or where we have declined to enter
into a proposed Transaction) unless such loss is a reasonably
foreseeable consequence or arises directly from our or their
respective gross negligence, wilful default or fraud. In no
circumstance, shall we have liability for losses suffered by you
or any third party for any special or consequential damage, loss
of profits, loss of goodwill or loss of business opportunity arising
under or in connection with these Terms nor for non-financial
damage (such as emotional distress), in each case whether
arising out of negligence, breach of contract, misrepresentation
or otherwise. Nothing in these Terms will limit our liability for
death or personal injury resulting from our negligence.
35.4 We shall not be liable to you if for any reason you have received
less profit than you hoped for or have incurred a loss as a result
of uncompleted action which you intended to complete.
35.5 We shall not be liable to you for any partial or non-performance
of our obligations hereunder by reason of any cause beyond our
reasonable control, including without limitation any breakdown,
delay, malfunction or failure of transmission, communication
or computer facilities, industrial action, act of terrorism, act of
God, acts and regulations of any governmental or supra-national
bodies or authorities or the failure by the relevant intermediate
broker or agent, counterparty, agent or principal, custodian,
sub-custodian, dealer, Market, clearing house or regulatory
or self-regulatory organisation, for any reason, to perform its
obligations. Nothing in these Terms will exclude or restrict any
duty or liability we may have to you under Applicable Laws and
Regulations which may not be excluded or restricted thereunder.
36.1 You shall pay to us such sums as we may from time to time
require in or towards satisfaction of any debit balance on
any of your Accounts with us and, on a full indemnity basis,
any losses, liabilities, costs or expenses (including legal fees),
taxes, imposts and levies which we may incur or be subjected
to with respect to any of your Accounts or any Transaction or
any matching Transaction on a Market or with an intermediate
broker or counterparty or as a result of any misrepresentation
by you or any violation by you of your obligations under these
Terms (including any Transaction) or by the enforcement of our
37.1 If you have a query about VCL's services to you under these
Terms, you should as a first step contact your Account Executive
or our Customer Services team by letter, fax, telephone, email
or in person.
38.1 We handle complaints according to procedures laid down by
the FSA. A summary of our procedures is available on our
38.2 If you are dissatisfied with our handling or findings in relation
to a complaint, you may be eligible to refer the matter to
the independent disputes' resolution service The Financial
Ombudsman Service of South Quay Plaza, 183 Marsh Wall,
London E14 9SR.
38.3 Please contact us if you require further information about our
complaints' procedures Information about the FOS can be
found on their website (www.fos.org.uk).
39 COMPENSATION ARRANGEMENTS
39.1 In the unlikely event of our being unable to meet our obligations
to you you may be entitled to compensation from the Financial
Services Compensation Scheme. This depends on your status and
the circumstances of any claim. The maximum compensation is
£50,000. Further information about compensation arrangements
is available from the Financial Services Compensation Scheme,
7th Floor, Lloyds Chambers, Portsoken Street, London E1 8BN
40 THIRD PARTY RIGHTS AND ASSIGNMENT
40.1 These 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
these Terms or any interest in these Terms, without our prior
written consent, and any purported assignment, charge or
transfer in violation of this clause shall be void. A person who
is not a party to these Terms has no right under the Contracts
(Rights of Third Parties) Act 1999.
40.2 We may assign the benefit and burden of this Agreement to a
third party, in whole or in part, subject to the agreement of the
FSA and any assignee agreeing to abide by these Terms. We
12 valburycapital.com © 2012 Terms of Business May 2012
shall give you notice of any such assignment.
41 ENTIRE AGREEMENT
41.1 You acknowledge that you have not relied on or been induced
to enter into these Terms by a representation other than those
expressly set out in these Terms. We will not be liable to you (in
equity, contract or tort under the Misrepresentation Act 1967)
for a representation that is not set out in these Terms and that
is not fraudulent.
42 GOVERNING LAW AND JURISDICTION
42.1 A Transaction which is subject to the Rules of a Market shall be
governed by the law applicable to it under those Rules.
42.2 These Terms shall be governed by and construed in accordance
with English law.
42.3 The law applicable to the relationship between us prior to the
conclusion of these Terms is English law.
42.4 Without prejudice to any rights you may have to refer a
complaint to the Financial Ombudsman Service, each of the
(a) agrees for our benefit that the courts of England shall have
jurisdiction to settle any suit, action or other proceedings
relating to these Terms ("Proceedings") and irrevocably
submits to the jurisdiction of such courts (provided that this
shall not prevent us from bringing an action in the courts of
any other jurisdiction); and
(b) waives any objection which it may have at any time to the
laying of venue of any Proceedings brought in any such court
and agrees not to claim that such Proceedings have been
brought in an inconvenient forum or that such court does not
have jurisdiction over it.
41.5 You irrevocably waive to the fullest extent permitted by
Applicable Laws and Regulations, with respect to yourself and
your revenue and assets (irrespective of their use or intended
use) all immunity on the grounds of sovereignty or other
similar grounds from (i) suit, (ii) jurisdiction of any courts, (iii)
relief by way of injunction, order for specific performance or
for recovery of property, (iv) attachment of assets (whether
before or after judgment) and (v) execution or enforcement of
any judgment to which you or your revenues or assets might
otherwise be entitled in any Proceedings in the courts of any
jurisdiction and irrevocably agree that you will not claim any
immunity in any Proceedings. You consent generally in respect
of any Proceedings to the giving of any relief or the issue of
any process in connection with such Proceedings, including,
without limitation, the making, enforcement or execution
against any property whatsoever (irrespective of its use or
intended use) of any order or judgment which may be made or
given in such Proceedings.
41.6 If you are situated outside England and Wales, process by
which any proceedings in England are begun may be served
on you by being delivered to the address in England or Wales
nominated by you for this purpose. This does not affect our
right to serve process in another manner permitted by law.
GLOSSARY AND INTERPRETATION OF TERMS
Abnormal Market Conditions
Circumstances during normal trading hours in which it is not possible
to provide a firm price, for example, because few or no primary price
providers are providing quotes, or, prices would be inverted (with the
bid higher than the ask), or, there are pricing anomalies (for example,
a significant short–term shift or spike), or, during security or system
tests, or, anomalous system conditions (for example, the price has not
An account of yours opened with us.
Your cash ledger balance plus the sum of your floating profits on your
Open Positions less the sum of your floating losses on your Open
Applicable Laws and Regulations
The FSA Rules, the rules of any relevant Market and all other applicable
laws, rules and regulations as in force from time to time.
In relation to us, any holding company or subsidiary company of
ours, or, any company, other entity, or partnership under common
ownership or control.
The currency in which we hold your account balance and into which
we convert all remittances from you to us and into which we convert
the outcome of all transactions for you.
A day which is not a Saturday or Sunday and upon which banks are
open for business in London.
The hours between 9:00 a.m. and 5:30 p.m. on a Business Day.
Money held by us for you within the meaning of that term under the
Client Money Rules
As defined by and contained in the FSA Rules.
Client Offer Price
The level at which a customer makes his offer to deal to us.
Credit Support Provider
A person who has entered into an agreement to guarantee your
obligations to us or provide support in other ways, for example
through providing collateral to us.
At any moment in time the level at which our computerised systems
are indicating we are prepared to enter into transactions with a
Any electronic means we provide to you or to which we facilitate
your access for the purpose of giving instructions to us or making
Transactions or viewing information about your Account.
As defined by the FSA Rules.
Any director, officer, employee or agent of Valbury Capital Limited.
A charge we make to you when a position is held open from one day
13 valburycapital.com © 2012 Terms of Business May 2012
The Financial Services Authority or any replacement regulator or
regulators responsible for the authorisation and regulation of the
investment services business of Valbury Capital Limited in the
The rules and glossary contained in the FSA Handbook of Rules
and Guidance, as amended or replaced from time to time, subject
to any waiver, modification or individual guidance from time to time
applicable to Valbury Capital Limited.
One of the dealing settings available through an Electronic Servicean
Electronic Service .
A "designated investment" as such term is defined within the
An Instrument under the terms of which you may be liable to make
further payments (other than charges, and whether or not secured
by margin) when the transaction falls to be completed or upon the
earlier closing out of the position.
An error that we reasonably believe to be obvious or palpable, in
relation to pricing or of some other determinant or factor affecting
a Transaction or the outcome of one or more Transactions that has
an impact upon the profit or loss or potential for profit or loss of the
Transaction or series of Transactions.
Margin, Margin Requirement
An amount of money or other collateral you are required to have
paid to us as a security payment as a condition of entering into or
continuing to hold open a Transaction with us.
A regulated market, multilateral trading facility (as such terms are
defined by the FSA Rules), organised trading facility or similar venue.
General trading information, themes and views, market commentary
and other information.
Maximum Permitted Tolerance Level
If the calculated Tolerance Level is greater than the Maximum
Permitted Tolerance Level, being a system parameter set by VCL, the
Order will be rejected.
Your position or exposure under any Transaction which has not been
completed and settled.
A Transaction which has not been completed and settled.
An offer submitted by you by telephone or through an Electronic
Service to enter into a transaction with us.
As defined by the FSA Rules.
As defined by the FSA Rules.
This document including all Schedule(s) and the terms relating to any
Electronic Service as amended from time to time.
Order Execution Policy Summary
As published on our website and amended from time to time, and,
which among other matters, explains how we meet our obligation
under the FSA Rules to execute orders in a manner designed to
achieve the best possible result for our clients.
Our 'Conflicts of Interest Policy Summary'
As published on our website and amended from time to time, and
which explains how we handle conflicts of interests in a manner
designed to treat our customers fairly.
As published on our website and amended from time to time, and
which explains how we deal with personal information that you
The difference, either way, between our Current Price and the Client
Offer Price, tested once the Client Offer Price has been received by our
systems or an Electronic Service.
Any transaction subject to these Terms including a future, option
or contract for differences, spot or forward contract of any kind in
relation to currency
Valbury Capital Limited is authorised and regulated by the Financial
Services Authority, registration number 540418.
1 valburycapital.com © 2012 Summary Conflicts Policy
SUMMARY CONFLICTS POLICY
This is a summary of the Valbury Capital Limited Conflicts of Interest
Our aim is to maintain and operate effective organisational and
administrative arrangements so that we have taken all reasonable
steps to prevent conflicts of interest constituting or giving rise to a
material risk of damage to the interests of our clients.
A conflict of interest can arise where there is a conflict between, on
the one hand, the duty the firm owes to a client and, on the other, the
interests of the firm itself, or, of an employee or other person closely
connected to the firm, and, can arise between the differing interests
of two or more of clients (where we owe a duty to both).
For there to be a conflict of interest it is not alone sufficient that the
firm may gain a benefit (there must also be a possible disadvantage
to a client) or that one client to whom the firm owes a duty may make
a gain or avoid a loss (there must also be a possible and concomitant
loss to another client to whom the firm owes a duty).
We maintain a record of the kinds of service or activity we carry out
in which a conflict of interest entailing a material risk of damage
to the interests of one or more clients could arise or has arisen.
We also maintain procedures to manage such conflicts or potential
In particular our procedures are designed to ensure that relevant
persons engaged in business activities that may involve a conflict of
interest carry on those activities in a manner that is sufficiently free of
conflict. Our procedures include:
(i) procedures to prevent or control the exchange of information
between relevant persons engaged in activities involving a risk of
a conflict of interest where the exchange of that information may
harm the interests of one or more clients;
(ii) segregation of duties, for example, procedures for the separate
supervision of relevant persons whose principal functions involve
carrying out activities on behalf of, or, providing services to, clients
whose interests may conflict, and, measures to prevent or control
the simultaneous or sequential involvement of a relevant person in
separate services or activities where such involvement may impair
the proper management of conflicts of interest;
(iii) controls over the personal account dealing of staff;
(iv) controls over remuneration and other incentives; and
(v) measures to prevent or limit any person from exercising
inappropriate influence over the way in which a relevant person
carries out services or activities.
Where our arrangements and procedures are not sufficient to ensure,
with reasonable confidence, that risks of damage to the interests of a
client will be prevented, we aim to disclose the general nature and/
or sources of conflicts of interest before undertaking business for the
Gifts and hospitality
We do not wholly prohibit our staff from receiving gifts and minor
hospitality from persons with which we do business; but, these are
permitted only where, in the opinion of a director or senior manager,
they are not lavish or excessive, and, they will not impair our duty to
act honestly, fairly and professionally in the best interests of clients.
Valbury Capital Limited is authorised and regulated by the Financial
Services Authority, registration number 540418.
1 valburycapital.com © 2012 Summary Execution Policy
SUMMARY EXECUTION POLICY
This summary of our best execution policy applies in respect of clients
we have classified as retail or professional investors, or, to whom we
have otherwise agreed to provide best execution.
Where this policy applies we have a duty to conduct our business
with you honestly, fairly, and professionally, and, to act in your best
interests when executing orders. When we execute orders on your
behalf or transmit them for execution we have a specific duty of "best
execution", that is, to act according to a policy established in order to
take reasonable steps to get the best possible results for our clients.
This document provides a summary of that policy. By agreeing to our
Terms of Business, you are also agreeing to the terms of our execution
policy, as summarised in this document.
When we execute transactions for, we will take all reasonable
steps to achieve the best possible result for you by executing the
trades according to our execution policy and subject to any specific
instructions received from you. Our policy cannot provide a guarantee,
however, that when carrying out transactions for you, our price will
always be better than one which is or might have been available
Determining best execution
We are required to take a number of factors into account when
considering how to give you best execution. Our policy is to be
flexible enough to cater for clients' different priorities and order
requirements, as well as allowing us to take a different factor into
account depending on the nature of the relevant financial instruments,
the relevant markets and the available execution venues.
For retail clients, we have rated price as the most important
consideration in determining best execution, and the other execution
factors in order of importance:
• Costs of execution
• Liquidity of the specific underlying market
• Size and nature of the order
• Speed of execution
• Likelihood of execution and settlement.
In order to deliver best execution to our clients we source a range of
trading platforms, sources of liquidity and order routing mechanisms.
These include smart order routing mechanisms that are not tied to
any particular venue (for example, when we execute orders on behalf
of clients in equities).
Where we deal with you as principal and not as agent we act as the
sole execution venue for the execution of your orders (for example,
where we provide you with an FX dealing service). We may offer you
a choice of platforms. The prices shown on one of these may not at
any one time be identical to those shown on any other. This is because
there is separate calibration from the raw price feeds. Taking account
of closing as well as opening prices and transactions, however, each
Platform is operated according to our policy for best execution. The
types of order available and the detailed transaction mechanisms may
differ from Platform to Platform.
We are required to ensure that client orders are executed in a prompt,
fair and expeditious manner for the type of order in question and that
potential conflicts of interest between clients or between the client
and ourselves are managed effectively. This requirement is satisfied
through implementation of policies and procedures that:
• Execute orders as soon as practical, unless postponing is in the
client's best interest;
• Allow for otherwise comparable client orders to be executed in
order of receipt.
We record and execute otherwise comparable orders sequentially
unless the characteristics of the order or market conditions make it
impractical to do so; or if the client's interests demand.
Where we deal as principal and there is a lapse of time between
our first quote and the client's acceptance which causes delay or in
the case that the market conditions have changed, we will still be
permitted to execute the order; provided the quote is not significantly
out of date and that it still would have met the best execution
If you give us a specific instruction about where or how to execute
an order we will follow it. This may eliminate some of the execution
factors from consideration or modify their importance. Please note
therefore that if you provide us with such instructions, you may
prevent us from following some or all of the steps in our Order
Execution Policy to obtain the best possible result for you in respect
to those aspects affected by your instructions.
We may combine your order with those of other clients of ours for
execution as a single order. This will be where we reasonably believe
that this is in the overall best interests of our clients and is unlikely to
work overall to your disadvantage. However, such aggregation may
work to your disadvantage in relation to a particular order
Our commitment to provide you with "best execution" does not mean
that we owe you any fiduciary responsibilities over and above the
specific regulatory obligations placed upon us or as may be otherwise
contracted between us.
Monitoring and review of our Order Execution Policy
We will monitor the effectiveness of our order execution arrangements
and policy, and the quality of executions achieved and whether we
need to make changes to our execution arrangements.
Valbury Capital Limited