General Terms of Business
These terms, as amended from time to time, defines the basis on which we provide certain services.
These terms are deemed to be accepted by you every time you enter into a transaction with (including transmitting an order to) us,
For the purposes of these terms, AFS shall be deemed to be the relevant AFS Group Company set out in clause 2 providing the service to you from time to time. Any rights you may have in respect of such services shall only be against the relevant AFS Group Company. Notwithstanding this, each AFS Group Company shall be entitled to enforce the terms of these terms on its own behalf or on behalf of any AFS Group Company against you.
These terms incorporate any Execution Policy as we may agree with you from time to time. Your entry into transactions with us deems your continued consent to such Execution Policy.
The following entities are regulated by their domestic authorities, and where appropriate, foreign regulators:
- AFS Interest BV
- AFS Equity & Derivatives BV
- AFS Energy BV
This list may be amended by us from time to time.
The relevant AFS Group Company arranging your transaction shall be notified to you in writing from time to time.
We may provide investment and dealing services which may include the following investments:
i) Transferable Securities.
ii) Money market Instruments.
iii) Options, futures, swaps, forward rate agreements and any other derivative contracts relating to securities, currencies, interest rates and yields or other derivative instruments, financial indices or financial measures which may be settled physically or in cash.
iv) Derivative instruments for the transfer of credit risk.
v) Commodities, listed or non-listed, relating to renewable energy. We may also provide other services as agreed between us from time to time.
Unless agreed in writing we will not provide you with specific advice or personal recommendations. You acknowledge that you enter into any transaction solely on the basis of your own judgment and have not relied on any investment research or advice provided by us.
We may enter into any transaction with you as principal or may act on your behalf as name passing or introducing broker or agent, these terms apply to all methods or mechanisms used to provide our services, including, where applicable, electronic mechanisms and systems.
We may, when you have instructed us to do so, deal for you in non-readily realisable investments. These are investments in which the market is limited or could become so; they can be difficult to deal in and it can be difficult to assess what would be a proper market price or value for them.
We may enter into transactions on a ‘matched-principle’ basis. In the matched principal model, we facilitate clients in anonymous trading activity in securities products by taking part in a matched transaction as principal, by using a clearer on our behalf.
We may enter into transactions on an exchange give-up basis. Upon receiving the relevant price information from the broker, clients will instruct us to place an order on the appropriate exchange. Once the execution has occurred, the executed position is then given-up to you through the clearing services of the exchange clearing house. This process typically occurs within the day and so we will have no house position at the end of each day.
In the course of providing broker services for Swaps transactions, we will enter these transactions or report the transactions to a Swap Execution Facility depending on applicability. By transacting with us you pursuant to these Terms of Business you agree to have Swap transactions reported or entered to trade over a Swap Execution Facility where applicable under the rules of the Dodd Franks Act 2010 and the relevant Swap Execution Facility.
Authority and Instructions
We may act upon any transaction which we reasonably believe to have been given by an authorised representative of you. No liability shall attach to us if a transaction which we reasonably believe to have been given by an authorised representative of you. No liability shall attach to us if a transaction which we have accepted and acted upon bona fide is subsequently discovered to have been given forged, falsified or amended without your authority.
Unless otherwise agreed and where we are not acting as principal, our charges will be levied in accordance with our rates in effect at the time the charges are incurred or as otherwise notified to you (including those relating to holding custody investments), verbally or in writing prior to dealing. Any alteration to these charges will be notified to you at or before the time of the change.
We may share our charges or commission with or receive remuneration from intermediaries introducing business to us, associated companies or other third parties and will provide details to you on request.
All amounts (including without limitation all fees and charges) payable by you shall be due on demand without set-off, counterclaim or deduction.
Unless otherwise agreed in writing, you will be responsible for any applicable taxes apply to or levied in respect of any transactions.
During the undertaking of our matched principal broking services, we may place a spread between buy side and sell side counterparties as payment for our services. This will not affect the price you are quoted. By accepting these terms of business, you agree that you are aware of these charges.
Reporting to you
You will be deemed to have received a trade confirmation or other notification from us at the time of the conversation in respect of a verbal notification or confirmation and in the case of a written notification or confirmation, not more than one (or, in the case of overseas clients, three) business days from the date of dispatch.
You will notify us within the same day of receipt if you are not in agreement with any trade confirmation or other notification from us. In the absence of such immediate notification by you, the trade confirmation or notification will (in the absence of manifest error) be binding on you.
You represent, warrant and undertake to us that, both at the date of these terms and at the time of any transaction we may enter into with or for you:
(a) you have full power and authority to enter into these terms and to instruct us to execute or arrange any transaction in investments specified in clause 3.1 above and to perform all your obligations hereunder. You have adequate resources to enter into and perform any such transaction which you decide to undertake;
(b) all information you have given to us is true and complete at the time of any transaction and any changes to the information given to us will be promptly notified to us;
(c) you will ensure that all relevant investments or any documents of title and/or transfer forms and/or any relevant payments are delivered, paid or transferred to us or to whomever we may direct in sufficient time on or before the contractual settlement date to enable us to settle the transaction in accordance with market requirements;
(d) unless otherwise agreed In writing, you will always be liable as principal and no person other than yourself has or will have any interest in any transaction or in any account that we hold on your behalf;
(e) unless otherwise agreed In writing, all cash, securities or other assets transferred to us pursuant to the terms of these terms are to be treated as your sole and beneficial property and will be transferred to or held by us free and clear of any lien, charge or other encumbrance and that you will not charge, assign or otherwise dispose of or create any interest therein.
You consent to disclosure by us to the relevant domestic regulatory authority, any relevant exchange, judicial, tax or other regulatory body or authority in Europe or elsewhere and to any of our associated companies of such information relating to services provided to you pursuant to these terms as may be requested by them or we may otherwise be required to disclose.
We shall not be liable for any loss of opportunity whereby the value of your account may have been increased nor for any reduction in the value of your account as a result of market movements. We shall not be liable for the taxation consequences of any transaction nor shall we be liable for taxation charges arising for any reason.
Neither we nor any person connected with us nor any of our agents shall be under any liability whatsoever for any loss or damage sustained by you as a result of or in connection with the services to which these terms applies and the provisions of these terms except insofar as and then only to the extent that such loss or damage is caused by negligence or willful default or any failure by comply with all applicable rules of the relevant authorities.
You irrevocably and unconditionally agree to indemnify us and our agents on demand and keep us fully and effectively indemnified against any claims, liabilities or expenses of any kind which may be incurred by us as a direct or indirect result of our acting under these terms. However, this indemnity shall not apply to any loss or liability to the extent it arises or results from our negligence or willful default or any contravention by us of the rules of the relevant authorities.
We shall not be in breach of our obligations under these terms if there is any total or partial failure of performance of our duties and obligations occasioned by any act of God, fire, act of government or state, war, civil commotion, insurrection, embargo, inability to communicate with counterparties, exchanges, clearing houses or other trading venues for whatever reason, failure of any computer dealing or settlement system, prevention from or hindrance in obtaining any energy or other supplies, labour disputes of whatever nature or late or mistaken delivery or payment by any bank or counterparty or any other reason (whether or not similar in kind to any of the above) beyond our control.
We may, from time to time, by written notice to you, make such modifications, amendments and additions to these terms as we consider necessary or desirable to comply with any applicable law or the requirements of any governmental or other regulatory body or to comply with the rules of an exchange or clearing house.
All such modifications, amendments or additions shall be effective on a date specified in the notice which will not unless it is impracticable in the circumstances, be less than ten business days after provision of the notice, save that amendments or additions required for regulatory purposes shall, if we so determine, have immediate effect.
All notices between us shall be in writing and may be served personally or by fax, or by first class post to us at the address of the AFS Group Company providing the service to you or as we may provide in writing from time to time:
With the exception of dealing instructions to us (which must be communicated in accordance with paragraph 7) notices shall be deemed to have been served three (or, in the case of overseas clients, seven) business days after having been posted, or if sent by fax, one business day after transmission. A business day is any day when investment business is generally conducted in the relevant country.
These terms and any dispute arising out of or in connection with it or its subject matter shall be governed by and construed in accordance with Dutch law.
You may communicate your dealing instructions to us in writing (for example by letter or fax) verbally or electronically. If you give us instruction in writing, such instructions must be received by us during normal business hours allowing sufficient time for us to act upon them. You agree that acceptance of an instruction to withdraw or amend an existing instruction is always subject to our receiving the instruction in time for the appropriate action to be taken. You agree that we may in our absolute discretion and without liability, refuse to accept an order or any other instruction for your account or execute it in part only.
We shall be entitled to rely on and treat as binding any instructions which we believe to be from you or from your agent(s) (whether received by telephone, electronically, telex, fax or otherwise in writing) which we have accepted in good faith.
We shall have no liability in respect of any and all consequences which may result from the use of telephone or fax transmission, in particular where arising from a technical default, error, deficiency or lack of precision of the instructions, as well as from any abusive or fraudulent use which may be made of the said instructions.
You agree that all telephone conversations which we may have with you (or any third party) may be recorded and such recordings may be used as evidence in the event of a dispute. Such recordings will be accepted by you as conclusive evidence of instructions received from you.
When we accept a dealing instruction from you we will seek to action it as soon as reasonably practicable in the circumstances and in line with our execution policy.
All dealings with or for you are subject to the rules, provisions and usages of the markets, exchanges and associations being used for the trading of your account.
If for any reason a conflict or dispute arises between us in relation to our services we will endeavour to resolve these informally. If however this is not possible and you wish to make a formal complaint this should be made in writing. Your formal complaint will then be investigated internally.
Power to Sell or Close Out
If, at any time, we have any reason to believe that you may be unable or unwilling to meet any liabilities which you have incurred to us or which we may have incurred on your behalf or to comply with any other obligations under these terms, we shall be entitled (and are irrevocably authorised by you) to take all or any of the following actions without prior notice to you:
(a) sell any investments bought on your behalf but for which you have not paid on or before the relevant settlement day;
(b) buy any investments sold on your behalf but for which you have not delivered the security on or before relevant settlement date;
(c) close or rescind open positions on your account, We may do so, for example, if any cash or investments have not been delivered by you on or before the relevant settlement day; and
(d) take any other steps (whether or not similar to the above) we may consider to be necessary to meet any obligations which you have to comply with under these terms or otherwise to protect our position.
Any costs or losses incurred by us in effecting any or all of paragraph 3.1(a), (b), (c) or (d) will be paid by you to us.
Unless otherwise specifically agreed with you, settlement of all transactions with or for you must be made in accordance with the usual terms for settlement of the appropriate exchange, market or clearing house where applicable and/or market convention.
Unless we expressly agree to the contrary, all amounts of every kind which are payable by you to us and vice versa in relation to the settlement of trades will be payable on delivery against payment basis.
We are not obliged to settle any transactions whether we are acting as principal or as agent or account to you unless and until we (or our settlement agents) have received all necessary documents or cleared funds. Our obligations to deliver investments to you or to your account or to account to you for the proceeds of the disposal of investments are conditional on prior receipt by us of appropriate documents or cleared funds from you.
You will indemnify us and our employees and agents against any cost, loss, liability, penalty or expense arising from your failure to deliver securities or funds to us when they are due.