1. This Client Agreement (also referred to as “the/this Agreement”, or “Terms and Conditions”) is entered by and between SmartGoldenFx (referred to as “we”, “us”, “our”, “ours”, “ourselves” and ‘’the Company”) and the Client (referred to as the “Client”, “you”, “your” and “yourself”).
2. SmartGoldenFx is authorised and regulated by the Cyprus Securities and Exchange Commission (“CySEC”) as a Cyprus Investment Firm (“CIF”) with CIF license number 921/18, to conduct designated Investment and Ancillary Services and Activities to the Client under the Provision of Investment Services, the Exercise of Investment Activities, the Operation of Regulated Markets and Other Related Matters Law of 2017, Law 87(Ι)/2017, as subsequently amended or replaced from time to time (“the Law”) and authorised by the Financial Sector Conduct Authority (“FSCA”) of South Africa with license number FSP 47857.
3. The Company is registered in Cyprus under the Companies Law, with registration number HE 414092. Its registered office is at 4c Olympou 4820 Platres Pano, 4820 Limassol, Cyprus, email: email@example.com.
4. This Agreement constitutes the entire agreement between you and the Company and supersedes and cancels all previous agreements, promises, assurances, representations and understandings between the parties, whether written or oral. The Company shall have no liability towards you for any innocent or negligent statement, representation assurance or warranty that is not net in the Agreement.
5. This Agreement is supplied to you in English, which is the Company’s official language, and in your own language where necessary and/or available. However, the English language content always prevails. We will communicate with you in English language and provide a translation where necessary and/or possible, for the duration of this Agreement.
6. In this Agreement, all capitalised words and expressions have the meanings set out in Term 41 ‘Definitions & Interpretation’.
Scope of the Agreement
1. This Agreement sets out the basis on which we will enter into Transactions with you and governs each Transaction entered into or outstanding between you and us on or after the date that this Agreement comes into effect.
2. You should read and understand this Agreement carefully including the Assets Section, alongside with the Company’s Policies which can be found on the Company’s website on the Regulation Section, as amended from time to time, and any other documents that we have supplied or supply to you in the future and contain important information about our relationship with you under this Agreement such as:
1. The ‘Client Categorisation Policy' which specifies how a Client is being categorised in accordance with applicable legislation;
2. The ‘Order Execution Policy’ which explains how trades are executed;
3. The ‘Complaints Handling Policy’ which sets out the procedure that needs to be followed when the Client wishes to complain about the Company;
4. The ‘Key Investor Information Documents’ (“KIDs”) which provides you with key information about the products we offer;
5. The ‘Investor Compensation Fund Policy’ which provides you with information regarding the Financial Services Compensation Scheme (“ICF”);
6. The ‘Risk Disclosure Notice’ that summarises the risks involved when trading in CFDs, Stocks, Options, Futures, Exchange Traded Funds (“ETFs”), Warrants, Structured Products, Fixed Income Products, Mutual Funds and Thematic Portfolios;
7. The ‘Conflict of Interests Policy’ which explains how we handle any conflicts of interest in order to treat our Clients fairly, and
3. Commencement, Duration of the Agreement and Right to Cancel
1. The Agreement shall take effect and commence once the Client completes the account opening application procedure and we have informed you that we have accepted your application to open an account with us.
2. This Agreement is a distance contract and it is, amongst others, governed by the Distance Marketing of Consumer Financial Services Law N.242(I)/2004 implementing the EU Directive 2002/65/EC, under which signing the Agreement is not required and the Agreement has the same judicial power and rights as a regularly signed one.
3. You are entitled to cancel this Agreement by giving us notice in writing within the first fourteen (14) days after commencement date. Right to cancel the Agreement will not stand if you have entered into any trade, such trade has been affected by any price fluctuation in the market or in case the Client received by us, upon his request, any investment or ancillary services. If you have not entered any trade, the Company will return to you any amount you have deposited. If you do not cancel the Agreement as described above, the Agreement will continue to be in effect unless terminated in accordance with the relevant provisions of the Agreement.
4. The Agreement shall be effective from the commencement day described in Term 3(1) for an indeterminate /unlimited time until it is terminated in accordance with the provisions described in the Agreement.
4. Provision of services
1. The provision of all of our services is on a “non-advised basis” i.e. investment services other than portfolio management and investment advice.
2. We will offer you, on an execution-only basis, access to trading a number of instruments in the form of CFDs (also referred as “Leverage Products”).
3. For the provision of Contracts for Difference (“CFDs”) we shall act as “Matched Principal” to your Transactions, except where we agree otherwise with you. Therefore, you accept that we are the only execution venue in relation to your CFD trades; which means that we quote both Bid and Ask prices. We may transmit your orders for onward execution to third party liquidity providers, however contractually we are the sole counterparty to your trades and any execution is done in our name. We shall disclose any conflicts that may arise, as well as how we manage such conflicts in our Conflicts of Interest Policy.
4. You understand that CFDs are derivative products, and therefore you will not be entitled to own any underlying instrument. You also understand that no physical delivery of any underlying asset shall occur.
5. We will offer you direct access to the market through a registered system for trading stocks, options, futures, exchange trades funds, warrants, structured products, fixed income products and mutual funds. We will offer you these services through a Financial Intermediary the Company partners with.
6. For the provision of stocks, options, futures, exchange trades funds, warrants, structured products, fixed income products and mutual funds you will be given access through an automated order routing (“AOR” or “Smart Routing”). Risks of “AOR” are explained in our Risk Disclosure Notice.
7. For the provision of the Thematic Portfolio accounts we will transmit your orders for onward execution to a Financial Intermediary the Company partners with.
8. Information, such as stock prices, is not real-time and the past performance results of a security or thematic portfolio available for purchase through the website is not an indication of future performance. Share prices used to value individual positions, or contribute to other performance information, are provided by third-party data providers and may not be timely and may not reflect certain activities such as corporate actions, fees and commissions. Neither the Company’s nor the Financial Intermediary’s website can guarantee the accuracy, timeliness or completeness of the information provided by third-party data sources of information and posted on the Company’s or Financial Intermediary’s website. This information should not be relied upon for making any investment or other decisions, therefore reliance on it is the Client’s own risk. The Company may cause pricing, performance or other information to be unavailable with respect to a particular security or thematic portfolio from time to time if the Company determines that such information is inaccurate.
9. The information or content contained on or posted to the website is subject to change without prior notice.
10. Investing is risky, and not all investments are suitable for all investors. You agree to view the content posted on the website and/or the platform for informational purposes only. While you may be able to access market data and other financial information from the website and/or the platform, the availability of such information does not constitute a recommendation to buy or sell any of the products made available for trading (including weights and securities on each thematic area appearing in any thematic portfolio account) or to engage in any investment strategy.
11. Thus, neither the Company nor the Financial Intermediary the Company partners with issues any investment advice, portfolio management, legal, financial, tax or any other advice, recommendation or opinion. Any statement, recommendation or opinion provided to any Client is not designed with respect to the individual Client’s personal profile, financial situation or trading experience, and therefore should not be construed as investment advice, recommendation, opinion and/or as a solicitation for any Transactions in financial instruments. You are required to rely on your own judgement (with or without the assistance of an advisor) in entering into, or refraining from entering into Transactions. You are not entitled to ask us to provide you with investment advice relating to a Transaction or to make any statement of opinion to encourage you to open a particular Transaction.
12. We do not offer investment research, and any material containing market analysis is considered marketing communication and should not constructed as advice, recommendation or research.
13. You will act as principal and not as agent (or trustee) on behalf of someone else. This means that you may not enter into Transactions on behalf of other parties without our express consent. If you act as an agent, we will not accept your principal as a Client unless otherwise agreed in writing.
14. You agree that, unless otherwise provided in this Agreement, we are under no obligation:
1. to satisfy ourselves as to the suitability of any Transaction for you;
2. to monitor or advise you on the status of any Transaction;
3. to make Margin calls; or
4. where the Applicable Regulations require – to close any Transaction that you have opened notwithstanding that we may have previously taken such similar action in relation to that Transaction or any other.
5. Provision of Services by Third Parties
1. We may use other members of our Group or third parties in undertaking work on our behalf with respect to Services we provide in relation to this Agreement, including execution of marketing campaigns, gathering and processing of Client information, specialized software and IT services or other Client support services. Such Service Providers may be located within or outside the European Union and where we choose to co-operate with them, we shall do so in accordance with the Applicable Laws and Regulations.
2. We shall remain always responsible to you for the Services provided in accordance with the terms of this Agreement, except in the case of a Force Majeure event, where we are responsible for the conduct of work of such Service providers in relation to the work and activities they undertake on our behalf. We shall use reputable and competent Service Providers and shall have in place adequate controls as to the selection and monitoring of the performance of the work they execute on our behalf.
6. Client Categorisation
1. According to Applicable Regulations, the Company has to categorise its Clients in one of the following categories: Retail Client, Professional Client (per se or Elective Professional) or Eligible Counterparty. The categorisation shall depend on the information provided by you during the Account Opening Application Form.
2. Your categorisation type will determine the level of protection at your disposal under the Applicable Laws. A ‘Retail Client’ is afforded with the highest regulatory protections available. We shall treat you as a Retail Client subject to the following:
2.1. if you satisfy the definition of Professional Client or Eligible Counterparty, we may notify you that we will treat you as such;
2.2. you may request a different Client categorisation from the one we have allocated to you but be aware that we may decline such a request. If you do request a different categorisation and we agree to such a request, you may lose the protection afforded by certain CySEC Rules. We will consider such requests at our discretion and after reviewing your circumstances. Should your circumstances change, you are responsible for notifying us of the change; and
2.3. if we elect to treat you, or you request to be treated, as a Professional Client or as an Eligible Counterparty, we will provide you with full details of any limitations to the level of regulatory protection that such a different categorisation would entail.
3. The Client categorisation may be amended, at any time, at the Company’s discretion. The Client shall be notified in writing by the Company in relation to any amendments.
7. Assessment of Appropriateness
1. At SmartGoldenFx, in order to ensure that the Client knows and understands the nature and risks of the contract products, regardless of the fact that the purchase of the financial product is always made at the Client's initiative, we provide our Clients with detailed information about the associated risks and we assess the Client’s knowledge and experience. The latter process is known in the MiFID II Directive as ‘Appropriateness Test’.
2. The Appropriateness Test is an integrative part of the Registration process. The purpose of the Appropriateness Test is for us to hold the means to assess whether complex products are deemed appropriate for you to invest in depending on your circumstances, including knowledge, experience and financial resources. Therefore, you are kindly requested to provide us with truthful and accurate information and to take into serious consideration any risk disclosure provided to you as a result of your assessment of appropriateness.
3. Notwithstanding our obligation to perform the assessment of appropriateness, this does not excuse you of the need of making your own consideration whether to trade in complex products or not. It is your responsibility to understand the risks involved with our products or services.
4. The Company warns that failure to provide truthful and accurate information during the assessment of Appropriateness prevents us from estimating whether the product is appropriate for you.
5. Stocks and bonds are non-complex products and therefore Trade Capital Markets is not obliged to perform appropriateness or suitability of those products since any future operation is done by your initiative and not by the Company.
6. Trade Capital Markets makes all warnings about the high risk of complex financial instruments:
7.2.1. CFDs are complex instruments and come with a high risk of losing money rapidly due to leverage. You should consider whether you understand how CFDs work and whether you can afford to take the high risk of losing your money.
7.2.2. The value of stocks, ETFs, Fixed Income products and Mutual Funds can fall as well as rise, which could mean getting back less than you originally put in.
7.2.3. Options, warrants and structured products are complex financial instruments and are not suitable for all investors. Your capital is at risk.
7.2.4. Futures are not suitable for all investors. The amount you may lose may be greater than your initial investment.
7.2.5. Security Futures are highly leveraged instruments and are not suitable for all investors.
7.2.6. The value of the Thematic Portfolios accounts can fall as well as rise, which could mean getting back less than you originally put in. You should consider whether you understand the financial products you wish to invest in and whether you can afford to risk losing your invested capital. If you don’t understand any product, you should seek for independent financial advice. Past performance is no guarantee of future results. The Company provides no investment advice of any kind, nor gives advice or offers any opinion with respect to the nature, potential value or suitability of any particular securities Transaction or investment strategy.
7.2.7. Professional Clients can lose more than they deposit.
8. Client Money
1. We will treat money received from you or held by us on your behalf in accordance with the applicable Client Money Rules.
2. If you are a Retail Client funds which you transfer to us in connection with your Account will be treated as Client money for the purposes of the Guidelines. This means that such funds will be segregated from our money and will not be used by us in the course of our business. The funds will be placed into either:
2.1. a Client money bank account at an approved bank in the EEA; and/or
2.2. an approved Client money bank account, outside the EEA. In such circumstances, the local legal and regulatory regime may result in a lower level of protection for you in the event of the insolvency or equivalent event of the entity with whom your money is held, than you would receive within the EEA.
3. You agree that when opening a position, we have the right to transfer ownership of the amount equivalent to the Required Margin from your Account to us, which we will keep as a security in the event of a repayment obligation by you. Any Required Margin transferred shall be considered as our debt due to you and not as Client Money, therefore it will be returned to you on completion of your trade(s), subject to any repayment obligation by you. Irrespective of the above, note that the Balance, Equity, and free Margin of your Account(s) shall remain unaffected and you should be able to normally continue with your activity with us
4. Without prejudice to the above, our services to Clients are provided on the understanding that where the Client transfers monetary funds and/or Collateral to the Company by way of Margin or otherwise, and chiefly in the case where the client’s orders will be executed by a Financial Intermediary, we will treat this as a transfer of full ownership of such monetary funds and/or Collateral to the Company for the purpose of securing or covering the Client’s present, future, actual, contingent or prospective obligations, and we will not treat such money and/or Collateral as ‘Client Funds’. Accordingly, without prejudice to any other provisions of this Agreement, we shall have the right to pledge, charge, loan or otherwise use or dispose of all or part of such money and/or Collateral provided to us by way of Margin, as if we were the beneficial owner thereof. We will transfer an equivalent amount of money and/or Collateral back to the Client where, at the Company’s sole discretion, it considers that the amount of money and/or Collateral the Client has transferred to itis more than is necessary to cover the Client’s present and future obligations to the Company. The Client agrees that Collateral provided in the form of investments will be returned to him in the form of investments of the same description and amount as those accepted by the Company as Collateral, but that any such Collateral returned to the Client need not be the actual investments provided by the Client. Cash Margin received by the Company will be recorded by the Company as a cash repayment obligation owed by the Company to the Client.
5. If there has been no action by you in respect of movement on your Account for a period of at least six (6) years and we have been unable to contact you, we may cease to treat any money held on your behalf as Client money and, accordingly, release it from our Client bank accounts. Such money will, however, remain owing to you and we will make and retain records of all balances released from Client bank accounts and will undertake to make good any valid claims against any released balances.
6. It is not our policy to pay interest to you on any Client money that we hold on your behalf and by entering into this Agreement you acknowledge that you therefore waive any entitlement to interest under the Client Money Rules or otherwise.
7. If you have been classified as a Professional Client or an Eligible Counterparty, you agree that in relation to any money received by us from you, or received by us on your behalf: (a) full ownership of such money is transferred by you to us for the purpose of securing or covering all your present or future, actual or contingent, or prospective, obligations to us under this Agreement or otherwise; (b) we acquire full ownership of such money and we will not hold such money in accordance with the Client Money Rules; (c) you will have no proprietary claim over such money and we can deal with it as our own; (d) we will owe you a debt equal to the amount of such money received by us, subject to any set-off rights under, or other terms of, this Agreement, or under general law; (e) in the event of our insolvency you will rank as a general creditor of ours in relation to such money; (f) we shall pay to you all or part of any amount owed by us to you under this clause to the extent that we consider, in our discretion, that the amount of money you have transferred to us exceeds the amount required by us to secure or cover all your present or future, actual or contingent, or prospective, obligations to us under this Agreement or otherwise; (g) we shall be obliged to pay to you all amounts owed by us to you under this clause upon the earliest of: (i) termination of the title transfer arrangement in accordance with this clause; (ii) termination of this Agreement subject to any set-off rights under, or other terms of, this Agreement. Any title transfer of cash under this clause may be terminated by us at any time by notice to you, and shall terminate in the event of termination of this Agreement. 8.1. Deposits and Payments
1. You must comply with the following when making payments to us:
1.1. Payments due (including Margin payments) will, unless otherwise agreed or specified by us, be required in currencies specified by us.
1.2. You may make any payment due to us by any of the following methods: debit or credit card or direct bank transfer. Please note that we reserve the right to levy a reasonable administration charge for processing your payments.
1.3. We do not accept payments from you by cash or cheque.
1.4. In determining whether to accept payments from you under this clause, we will have utmost regard to our duties under the Law regarding the prevention of fraud and money laundering. To this end, we may at our absolute discretion, having regard to the Law, reject payments from you or a Third party or any other person other than yourself and return funds to source. In particular, we will not accept payments from a bank account if it is not evident to us that the bank account is in your name.
2. You should be aware of the following when you open a Transaction or deposit money into your account in a Currency other than your base Currency (i.e. the currency in which your Account with us is denominated):
2.1. It is your responsibility to make yourself aware of the Currency that is designated as your base currency. Details of your base currency are available on our Electronic Trading Service.
2.2. Some Transactions will result in profit/loss being accrued in a Currency other than your Base Currency. The Assets Section specify the Currencies in which various Transactions are denominated, or alternatively such information is available from our Client support team on request; and
2.3. Conversion fees may apply when your account currency is different than the quoted currency of the underlying asset being traded.
3. We reserve the right to change the way in which we manage and/or convert your non-Base Currency balances at any time in the future by providing you with ten (10) calendar days prior written notice. We will be under no obligation to remit any money to you if that would reduce your account balance (taking into account running profits and losses) to less than the Margin payments required on your open Transactions. Money standing to the credit of your account will be remitted to you if requested by you. Where you do not make such a request, we will be under no obligation to, but may, at our absolute discretion, remit such monies to you. All bank charges howsoever arising will, unless otherwise agreed, be for your account. The manner in which we remit monies to you will be at our absolute discretion, having utmost regard to our duties under the Law regarding the prevention of fraud and money laundering. We will normally remit money in the same method and to the same place from which it was received. However, in exceptional circumstances we may, at our absolute discretion, consider a suitable alternative.
4. You may deposit funds into your Account at any time during the course of this Agreement. Deposits will be accepted via bitcoin, ethereum, bank transfer, debit/credit card (MasterCard, Visa) or any other method of electronic money transfer (where the originator is yourself) acceptable by the Company from time to time. The Company will not accept third party or anonymous payments in the Client Account. 5. We have the right not to accept funds deposited by you and/or to cancel your deposits and remit them back to you in the following:
5.1. if you fail to provide us with any documents which we request from you either for Client identification purposes or for any other reason, including with respect to verifying the source of your wealth;
5.2. if we suspect or have concerns that the submitted documents may be false or fake;
5.3. if we suspect you are involved in illegal or fraudulent activity or you engage in abusive trading practices;
5.4. if we have been informed that your credit or debit card (or any other payment method used) has been lost or stolen;
5.5. where we consider that there is a chargeback risk;
5.6. where we cannot identify you as an original remitter of the funds or where we are unable to return the funds to the same source of payment; and/or
5.7. where we do so in order, in our reasonable judgment, to comply with Applicable Laws and Regulations. 6. All payment and transfer charges will be borne by you and the Company shall debit the Client Account for these charges.
7. If you make a payment by bank transfer, by credit card or any other method of electronic money transfer, the Company shall credit the Client Account with the relevant amount within one Business Day after the amount is cleared in the bank account of the Company.
8.2.1. Without prejudice and subject to the terms of this Agreement, all Applicable Regulations and all conditions attaching to any relevant payments made to you under an award or rebate scheme operated by us, you may withdraw funds from your Account provided that such funds are not being utilised for margin purposes or have otherwise become owed to us. Once your withdrawal request is approved, your withdrawal request will be processed by us and sent to the same bank, credit card or other source for execution on the same day that the request to withdraw funds was made, or the next working day if the Client’s request is received outside of normal trading hours. (Note: Some banks and credit card companies may take time to process payments especially in currencies where a correspondent bank is involved in the Transaction).
8.2.2. The funds will be returned to the bank account/credit card/other source from which the funds were debited. You are fully responsible for the payment details that you provided to us and we accept no responsibility if you have provided false or inaccurate bank details. Further, withdrawals bare third party charges which may vary in accordance with the terms and conditions of the third parties. These charges may be verified upon request.
8.2.3. The minimum withdrawal amount for all methods (excluding the wire transfer) is $100. The minimum withdrawal amount request for wire transfer is $1000. Any withdrawal request for an amount below the two mentioned above, will incur handling and processing charges as follows: minimum $10 for all methods (excluding wire transfer) and minimum $50 for the wire transfer.
8.2.4. If you request a withdrawal of funds from your Account and we cannot comply with it without closing some part of your open positions, we will not comply with the request until you have closed sufficient positions to allow you to make the withdrawal. Withdrawals will only be made on request by you, by bank transfer to an account in your name or such other method as we, in our absolute discretion, may determine.
8.2.5. In the event that it is not possible for the funds to be withdrawn without delay, the Company, in meeting its MiFID obligations to act in the Client’s Best Interest, will keep the Client informed, including about the reasons for any delay and the expected timeframe before the funds will be withdrawn. Information provided to the Client about any delays in withdrawing funds will be fair, clear and not misleading.
8.2.6. The Company will endeavour to process your withdrawal requests promptly, however the time needed for the requested funds to be processed and appear in your account will depend upon the method used for depositing the funds and the third parties which are executing the payments.
9. Transaction Reporting
1. In basis of MIFID II requirements, we are obliged to report all Transactions traded on Financial