General Terms and Conditions
These general terms and conditions (hereinafter the “General Terms and Conditions”) contain important provisions governing the contractual relationship between the client (hereinafter the “Client”) and Swissinvestor (hereinafter the “Company”). For ease of reading, terms in the masculine gender are also used in the feminine gender.
BASIS OF THE BUSINESS RELATIONSHIP
1.1 These General Terms and Conditions, together with the Account Opening Form, the terms and conditions applicable to a specific service (as defined below) provided by Swissinvestor (hereinafter the “Special Terms and Conditions”) and any other documents to which they refer, if any, as well as any documents expressly amending and/or supplementing them, are hereinafter collectively referred to as the “Contract” and collectively govern the business relationship between Swissinvestor and the Client.
1.2 Unless otherwise agreed, the Agreement applies to all accounts (hereinafter individually the “Account” and collectively the “Accounts”) opened by the Client with Swissinvestor at any time.
1.3 Swissinvestor decides, in its sole discretion, whether to accept or reject any new business relationship, including the opening of an Account and the provision of additional Services (as defined below). Swissinvestor is only committed under the Agreement once it has confirmed to the Client the acceptance of the new business relationship.
SERVICES PROVIDED BY SWISSINVESTOR
2.1 Swissinvestor may offer the Client various Services (hereinafter referred to as the “Services”), the terms and conditions of which shall be defined by Swissinvestor in Special Conditions in a manner it deems appropriate. Swissinvestor may, at its sole discretion, decide not to provide certain Services to certain Clients or groups of Clients or to provide them with restricted access only.
2.2 In particular, Swissinvestor may offer platforms (hereinafter referred to as “Trading Platforms”) for the execution of transactions (hereinafter referred to as “Transactions”) relating to all types of financial instruments, such as securities, unincorporated rights, investment fund units, commodities and all associated derivatives, contracts and options, etc. (hereinafter referred to as the “Financial Instruments”).
3.1 Unless otherwise agreed, the Client acknowledges that Swissinvestor does not provide any legal, tax or other advice or investment advice or any other recommendation to proceed with a Transaction or other transaction.
3.2 Unless otherwise indicated, information provided on the Swissinvestor website (such as, but not limited to, research reports, investment ideas and the results of selection tools or otherwise), on a Trading Platform or in any other form (e. g. paper or electronic document) does not constitute a solicitation, offer, investment advice or recommendation by Swissinvestor. Swissinvestor does not guarantee that this information is correct, accurate or complete. Swissinvestor disclaims all liability for loss, lost profit, moral prejudice, liability, tax liability, costs (including legal or other professional fees) and other adverse consequences of any kind (hereinafter referred to as “Damages”) incurred as a result of information that Swissinvestor communicates exclusively through distribution channels or to the general public.
3.3 The instructions and orders given by the Client or a person authorized by the Client (hereinafter referred to as the “Instructions”) are based on the Client’s or such person’s personal assessment of the Client’s personal situation (including financial and tax) and investment objectives, as well as on their own interpretation of the information to which the Client or such person has access.
3.4 Unless otherwise specified by the Company, the Company understands, in accordance with the information provided by the Client, that the Financial Instruments that the Client negotiates are appropriate for it. The Client confirms this understanding of Swissinvestor and confirms that it has the necessary knowledge and experience with respect to the Transactions it carries out. The Client also confirms that it is fully informed of and undertakes to comply with the regulations, directives, contractual clauses, customary practices and other rules applicable to trading in Financial Instruments.
3.5 The Client acknowledges that having the necessary knowledge and experience does not guarantee the success of its Transactions. The Client understands and accepts that past performance and profits are not indicators of future performance and that Swissinvestor does not guarantee any profit or absence of loss.
3.6 The Client is aware that, unless otherwise requested by Swissinvestor, Swissinvestor has no knowledge or only partial knowledge of his personal situation (in particular financial and tax).
3.7 The Client acknowledges that he/she assumes full responsibility for the investment decisions he/she makes and for the adequacy of the transactions to his/her personal situation (in particular financial and tax), investment objectives and other relevant circumstances. The client further understands and acknowledges that he/she alone bears all the consequences (financial, tax and other) of his/her investment decisions. The fact that the Company agrees to execute a transaction on behalf of the Client does not in any way imply that Swissinvestor recommends such a transaction or that it considers it appropriate or adequate for the Client. Swissinvestor does not in any way examine the adequacy or appropriateness of the Transactions carried out by the Client and Swissinvestor is under no obligation to provide advice in this respect.
3.8 The Client acknowledges that, unless otherwise agreed in writing, it is solely responsible for the management and control of any open position following a transaction (hereinafter an “Open Position”). The Client agrees to frequently consult the Trading Platform and/or its Account and to monitor open Positions on an ongoing basis.
4.1 The Client acknowledges that Transactions in Financial Instruments may be highly speculative and involve significant financial risks that may result in losses that may equal or exceed the amount deposited by the Client. For a description of the risks associated with each Service, reference is made to the relevant Special Conditions.
4.2 All Transactions are carried out at the risk of the Client, who is in any case solely responsible for the Transactions and the results they produce. The Client agrees to assume the risks associated with the Transactions it carries out.
PROVISION OF CROSS-BORDER SERVICES (LOCAL RESTRICTIONS)
5.1 The Client understands and accepts that it is Swissinvestor’s policy not to encourage foreign residents to subscribe to its Services. The Client confirms that it has requested the opening of an Account on its own initiative and confirms that Swissinvestor has not requested it in this respect; otherwise, the Client undertakes not to complete the account opening process.
5.2 The Client is aware that Swissinvestor may not be able to provide all or some of its Services and/or products to the Client due to its place of residence and/or status.
5.3 Similarly, it is possible that all or part of the Swissinvestor website may not be accessible to him/her due to his/her place of residence or whereabouts. This applies in particular to clients residing in a country where the dissemination of the information contained on the Swissinvestor website is contrary to current legislation.
DECLARATION OF STATUS “NON-US PERSON” OR “US PERSON”.
6.1 If the Client is a natural person, he has confirmed to the Company:
a) that he is a “Non-US Person”, i.e. he is not a citizen of the United States (single, dual or multiple nationality) and does not have the status of a resident alien (e.g. as a holder of a Green Card or as a person who has been in the United States frequently this year and in the last two years). It also confirms that, within the meaning of US tax law, it is the beneficial owner of the assets it holds and their income. Insofar as there is a double taxation agreement between the United States and the Client’s country of domicile, the Client requests and Swissinvestor grants him, in principle, a reduction in US withholding tax on US source income. In this context, and depending on the circumstances, Swissinvestor reserves the right to request additional documents. Swissinvestor is also entitled to request additional documents if there is any indication of a relationship with the United States; OR
b) that he is a “US Person”, i. e. that he is a citizen of the United States (single, dual or multiple nationality) or that he has the status of a foreign resident (“resident alien”) (for example as a holder of a “Green Card” or person who has been in the United States frequently this year and in the last two years). It also confirms that, within the meaning of US tax law, it is the beneficial owner of the assets it holds and their income. If the Client is or becomes a “US Person”, he is required by FATCA regulations to provide Swissinvestor with a W-9 form. In doing so, the Client agrees that Swissinvestor (Crowdforex) may provide, directly or indirectly, to the IRS, the Company’s withholding tax agents and the custodians of Swissinvestor, or any related party, confidential and personal information about the Client and its accounts with Swissinvestor. This information may include, but is not limited to, the Client’s identity, name and address, tax identification number, account number, account balance, income and earnings, and documents such as IRS forms. The Client irrevocably consents to such communication and thereby releases Swissinvestor from all its obligations in terms of banking secrecy, confidentiality and/or data protection under Swiss law or other applicable laws prohibiting such communication in principle (“Banking secrecy waiver clause”).
6.2 If the Client is not a natural person, he has confirmed to Swissinvestor:
that he is a “Non-US Person”, i.e. he has not been created, registered or incorporated in the United States and is not a “US person” for any other reason. It also confirms that, within the meaning of US tax law, it is the beneficial owner of the assets it holds and their income. To the extent that there is a double taxation agreement between the United States and the country of incorporation of the Client, the latter requests and Swissinvestor grants a reduction in US withholding tax on US-source income only if Swissinvestor receives the requested documents. In this case, and depending on the circumstances, Swissinvestor reserves the right to request additional documents;
b) that he is a “US Person”, i. e. that he has been created, registered or incorporated in the United States or that he is a “US person” for any other reason. It also confirms that, within the meaning of US tax law, it is the beneficial owner of the assets it holds and their income. If the Client is or becomes a “US Person”, it is required by FATCA regulations to provide Swissinvestor with a Form W-9. In doing so, the Client agrees that Swissinvestor may provide, directly or indirectly, to the IRS, Swissinvestor’s withholding tax agents and Swissinvestor’s custodians, or any related party, confidential and personal information about the Client and its accounts with Swissinvestor. This information may include, but is not limited to, the Client’s identity, name and address, tax identification number, account number, account balance, income and earnings, and documents such as IRS forms. In doing so, the Client agrees that Swissinvestor may provide, directly or indirectly, to the IRS, Swissinvestor’s withholding tax agents and Swissinvestor’s custodians, or any related party, confidential and personal information about the Client and its accounts with Swissinvestor.
6.3 In the event that the Client is not, within the meaning of US tax law, the beneficial owner of the assets it holds and their income, it must inform Swissinvestor and provide the details of the beneficial owner.
6.4 If the Client is a natural person and in the event that his status as a “Non-US Person” should change, he undertakes to inform Swissinvestor without delay. In such a case, the Client is required, under FATCA regulations, to provide the Company with a Form W-9 within
90 days. The above-mentioned Banking Secrecy Waiver Clause will come into force upon receipt of Form W-9 by Swissinvestor. If the Client waives the right to provide a Form W-9, the Client agrees that, in accordance with FATCA regulations, Swissinvestor (a) provides its account data in aggregate form to the IRS, (b) provides, in the context of a mutual assistance procedure, specific information relating to its accounts to the Federal Tax Administration, which may exchange such information under the double taxation agreement with the IRS; and (c), in the circumstances defined in the FATCA regulations, levies a withholding tax of 30% on its income and profits, in accordance with US tax legislation.
6.5 If the Client is not a natural person and if his status as a “Non-US Person” or his FATCA status should change, he undertakes to inform Swissinvestor without delay. In such a case, the Client is required, under FATCA regulations, to provide Swissinvestor, within 90 days, with a Form W-9 if it has acquired US Person status or a Form W-8 if its FATCA status has changed. If the Client has acquired the status of “US Person”, the above-mentioned Banking Secrecy Waiver Clause shall come into force upon receipt of Form W-9 by Swissinvestor. If the Client waives the right to provide a W-9 or W-8 form, the Client agrees that, in accordance with FATCA regulations, Swissinvestor (a) may be required to provide its account data in aggregate form to the IRS, (b) may be required to provide, in the context of a mutual assistance procedure, specific information relating to its accounts to the Federal Tax Administration, which may exchange such information under the double taxation agreement with the IRS; and (c), in the circumstances defined in the FATCA regulations, may levy a withholding tax of 30% on its income and profits, in accordance with US tax legislation.
6.6 The Client accepts that, for legal and operational reasons, Swissinvestor reserves the right to prevent any “US Person” from trading any securities from a US source (listed on a US market or on another market), as well as investment funds offered on its trading platform. Pursuant to the foregoing, the Client agrees that Swissinvestor may in particular request the Client to sell all US securities in its account at the time it becomes a “US Person” and that, in the absence of a Form W-9 submitted within 90 days, the proceeds of the sale may be subject to a US Backup Withholding Tax at the rate in effect at the time of the sale (currently 28%), which shall be paid to the IRS.
7.1 On 21 July 2014, the Organization for Economic Co-operation and Development (OECD) published a Standard for the Automatic Exchange of Information on Financial Accounts in Tax Matters (the “Standard”). The Standard and current and future national and international legislation relating to it (collectively referred to as the “RGE Regulation
“) require governments that have signed at least one automatic tax information exchange agreement (the “Reporting Jurisdictions”):
(a) obtain detailed account information from their financial institutions; and
(b) ensure that their respective competent authorities automatically exchange this information annually with the other Reporting Jurisdictions once the two jurisdictions concerned have entered into an agreement for the reciprocal exchange of such tax information.
As Switzerland is a Reporting Jurisdiction, Swissinvestor, as a Swiss financial institution, is required to implement enhanced due diligence procedures and may be required to provide certain information relating to financial accounts to the competent Swiss authority, the Federal Tax Administration (“FTA”), in accordance with the EAR Regulations.
7.2 The Client understands that Swissinvestor may have to apply enhanced due diligence procedures to register the Client’s tax residence, even when the Client is not a tax resident of a Reporting Jurisdiction. In the above-mentioned context and in particular in the context of the account opening process, the Client:
(a) confirms his or her tax residence(s) (i.e. the jurisdiction(s) in which he or she is treated as a tax resident under the national tax legislation of each of these jurisdictions);
(b) provides Swissinvestor with one or more valid tax identification number(s) or other high integrity number(s) with an equivalent level of identification (as determined by each jurisdiction under the EAR Regulations);
(c) informs Swissinvestor of his date of birth; and
(d) upon request by the Company, provide any reasonable justification or explanation in support of the above information.
In addition, if the Client is to be considered as an entity, it:
(e) confirms its status as a reporting financial institution (“Reporting Financial Institution”, “RFI”), a non-reporting financial institution (“Non-Reporting Financial Institution”, “NRFI”), an active non-financial entity (“Active Non-Financial Entity”; “ANFE”) or a passive non-financial entity (“Passive Non-Financial Entity”, “PNFE”);
(f) ensure that it discloses the tax residence(s), tax identification numbers and date of birth of any controlling person (as defined by the EAR Regulations and whether the entity should be considered to have one or more controlling persons under the EAR Regulations); and
(g) upon request by the Company, provide any reasonable justification or explanation in support of the above information.
7.3 The Client understands that Swissinvestor may be required to disclose to the FTA certain information relating to the Client and, where applicable, certain information relating to persons controlling the entity (including, without limitation, their name, address and date of birth) and information relating to the Client’s account(s) (including, without limitation, the balance, interest, dividends and proceeds from the sale of financial assets). The Client understands that the FTA may then forward this information to the tax authorities of any Reporting Jurisdiction of which the Client is considered to be a tax resident under the EAR Regulations, but only to the extent that a tax information exchange agreement has been concluded between Switzerland and the other Reporting Jurisdiction(s). By accepting the General Terms and Conditions, the Client is aware that such information may be disclosed to the FTA, provided that Swissinvestor determines, in its sole discretion, that such information must be disclosed pursuant to the EAR Regulations.
7.4 The Client is aware that the information concerning him may then be used by the competent authorities of these Reporting Jurisdictions for purposes other than those set out in the EAR Regulations, within the limits of applicable laws.
7.5 The Client shall immediately inform the Company in the event of a change in its tax residence(s), tax identification number(s) or any other relevant change in circumstances. In such a case, the Client shall communicate to Swissinvestor, in good time, any proof or explanation that Swissinvestor may reasonably expect in order to comply with the EAR Regulations. The Client understands that, if the information provided to Swissinvestor is inaccurate or incomplete, Swissinvestor may be required to report it as a tax resident of several Reporting Jurisdictions.
7.6 The Client understands that if it communicates incorrect information to Swissinvestor, whether intentionally or negligently, it is liable to a fine imposed by any competent authority.
7.7 The Client understands that if it communicates incorrect information to Swissinvestor, whether intentionally or negligently, it is liable to a fine imposed by any competent authority.
7.8 Without prejudice to the foregoing, the Customer may also be considered a U.S. Person. This Section should therefore be read in conjunction with Section 6.
8.1 The Client acknowledges that a Transaction may be subject to the market rules imposed by the articles, rules, provisions, customs and practices of an exchange, market, clearing house, agency or other organization (including, where applicable, entities of the group to which Swissinvestor belongs) involved in its execution, clearing and/or settlement and/or in the deposit of the Financial Instruments related to such Transaction. The Client acknowledges that these Market Rules may confer significant powers on the organizations involved, particularly in exceptional circumstances or undesirable situations.
8.2 If any of these organizations makes decisions or actions affecting a Transaction or Open Position, Swissinvestor is entitled to take any action (including liquidating any Client Open Position) that it deems desirable, in its sole discretion, to protect the interests of the Client and/or those of Swissinvestor. The Client is bound by such a measure and Swissinvestor assumes no liability for any Damage suffered by the Client.
9.1 On the date of opening of the Account, on the date of any Transaction or other transaction (e. g. payment) relating to the Account and on any date on which the Agreement or any part thereof is revised, updated or amended, the Client confirms to Swissinvestor and accepts the following for the benefit of Swissinvestor
a) The Client is not legally incapable or prohibited from acting with respect to the establishment of a business relationship with Swissinvestor or the conclusion of any Transaction or other transaction and there is no law or regulation preventing it from establishing a business relationship, accessing the Trading Platforms or the Swissinvestor website or entering into any form of Transaction or other transaction with
b) If the Client is a company, limited liability company, trust, partnership, association, unincorporated entity or other legal entity, it is duly incorporated and validly exists under the laws of the country in which it is incorporated and Swissinvestor will be informed in writing of any change in the powers held by its representatives or The Client confirms that in the absence of such written notice, Swissinvestor will not assume any liability and that no official publication will bind Swissinvestor.
c) The Client has obtained all necessary approvals and authorizations (internal or otherwise) and is competent to establish a business relationship with
d) The sums and assets credited to the Account are and shall remain, subject to the provisions of the Agreement, free of charge, right of retention, pledge, pledge, pledge, constraint or any other form of security.
e) The Client has taken note of all laws, market rules and regulations applicable to it, in particular with respect to its place of residence or nationality, and undertakes to comply with them, including, without limitation, all regulations and obligations relating to the control of
f) The Client confirms that it complies with all tax regulations and obligations imposed by the tax authorities of the country or countries in which it assumes fiscal responsibility. Article 2 shall apply mutatis mutandis to the Client’s obligation to provide Swissinvestor with information and evidence relating to its tax integrity.
is not required to advise the Client on any tax liabilities or obligations of any kind that may be directly or indirectly related to the Accounts. If necessary, the Client will seek advice from tax experts.
g) The information provided by the Client to Swissinvestor is complete, accurate, current and not misleading.
9.2 The Client undertakes to immediately inform Swissinvestor in writing of any change in the information it has provided to Swissinvestor hereunder, in the Account Opening Form or otherwise, whether such change concerns it or any person authorised by it or the beneficial owner.
10.1 Swissinvestor may, but is not obliged to, convert all sums it holds for the Client into any currency it deems necessary or desirable to hedge the Client’s obligations and liabilities in that currency, using the exchange rate chosen by Swissinvestor.
10.2 If the Client instructs Swissinvestor to execute a Transaction, Swissinvestor is entitled to use the Client’s assets to secure the Client’s actual or potential obligations to Swissinvestor under such Transaction.
10.3 If assets are credited to the Client’s Account and the Client knows, or should have known in good faith, that such assets were credited in error, the Client must immediately notify Swissinvestor and transfer the funds to the account indicated by Swissinvestor. If assets are credited to the Client’s Account and the Client should in good faith question the validity of this credit, it must immediately inform Swissinvestor.
RIGHT OF PLEDGE AND SET-OFF
11.1 In order to secure any present or future (including purely hypothetical) debt or other obligation that the Client has at any time towards Swissinvestor, the Client grants Swissinvestor a right of pledge and set-off in respect of all Client Accounts and all sums, open positions and financial instruments held with Swissinvestor or elsewhere and any other property held in the Client’s Accounts and all proceeds thereof.
11.2 The Company is entitled, at any time and without prior notice (as defined below), to offset any amount due by it against its receivables from the Client, whether or not such receivables are due and payable, and regardless of the currency in which they are denominated or, if Swissinvestor has granted a loan to the Client, whether or not such loan is secured by a guarantee. Swissinvestor is entitled to offset even if the claims of Swissinvestor and those of the Client are not identical. Swissinvestor must inform the Client of any
compensation made under this Article.
11.3 If the Client breaches any of its obligations to Swissinvestor, Swissinvestor is also entitled, at any time and, where applicable, without notice or further formality, to exercise or use in any manner and in any order, as it deems appropriate, the right of pledge over the Client’s assets, by forced sale or private agreement. To the extent permitted by applicable law, including legal provisions relating to the realization of guarantees, for the purpose of selling or appropriating the Financial Instruments, the value of the Financial Instruments shall correspond to the market value of such Financial Instrument, reasonably determined by Swissinvestor by reference to a public index or by any other process that Swissinvestor may choose. It is agreed that the valuation method contemplated herein is deemed to be commercially reasonable.
11.4 The Company is also entitled to clear the Client’s Accounts at any time, regardless of their nature or the currency in which they are denominated (netting transaction). Swissinvestor is entitled to offset even if the claims of Swissinvestor and the Client are not identical, if the claim to be offset constitutes the return of an object or security deposited with Swissinvestor or its custodians, or is subject to disputes or exceptions. Swissinvestor must inform the Client of any compensation made under the terms of this Article. If the amounts due are denominated in a currency other than Swiss Francs, they will be converted into Swiss Francs at the exchange rate to be determined by Swissinvestor.
12.1 If more than one person signs this Agreement as a Client, they will collectively hold the joint account. Each holder of the joint account is a joint and several creditor and a joint and several debtor within the meaning of the Swiss Code of Obligations (CO) with regard to any claim and obligation assumed in accordance with the Contract or any part thereof, including any amounts due to Swissinvestor, now or in the future, even if such commitments arise from the fact that a holder of the joint account has acted on his own initiative.
12.2 Swissinvestor is entitled to send and communicate all Notices and other communications to one of the joint account holders and such Notices and other communications shall be deemed to have been duly delivered to all joint account holders.
12.3 Unless otherwise agreed in writing with Swissinvestor, each joint account holder has full powers to manage the Account and is entitled to dispose individually and without restriction of all or part of the assets held in the Account. In particular, each joint account holder is individually authorized to issue Instructions to Swissinvestor, to designate any person authorized to act on behalf of the joint account holders and to terminate
the relationship with Swissinvestor. Any such Instruction or action shall be binding on all other holders of the joint account and Swissinvestor shall not be liable for any damage resulting therefrom. Notwithstanding the foregoing and regardless of the single signature authorization, Swissinvestor is entitled, but not obliged, to request a joint instruction from all account holders when it considers it appropriate.
12.4 In the event of the death of one of the joint account holders, Swissinvestor shall in particular have the right to carry out any Instruction it has received individually from the surviving account holder(s) or the heirs of the deceased account holder, including the right to balance the account. However, if Swissinvestor were to decide, for any reason whatsoever, not to comply with the Instructions received from the surviving joint account holder(s) or heirs of the deceased account holder, it would not be liable for any Damage that may result, unless it is established that the Company was guilty of gross negligence or wilful misconduct. Swissinvestor also remains free to take any action, request any document and restrict Transactions and other transactions on the Account as it deems appropriate in order to protect Swissinvestor from any Damage. The beneficiary(ies) of the deceased holder will be liable and the surviving joint account holder(s) will remain liable to Swissinvestor for any negative balance or loss recorded on the Account as a result of Instructions received prior to Swissinvestor receiving written notice of death or the liquidation of the Account.
POWER OF DISPOSAL
13.1 Only signatures communicated to the Company shall be deemed valid until the date on which the Client notifies Swissinvestor that they must be amended or revoked, notwithstanding any official registration (including in any commercial register) or other communication. If several persons have signing authority for an Account or on behalf of the Client, the signing authority for the Account shall, unless otherwise agreed in writing with Swissinvestor, be deemed to be individual.
13.2 The Client may, using the standard Swissinvestor form available on its website, grant a third party a full power of attorney (without power of substitution), allowing the person so authorized to represent it in all aspects of the business relationship with Swissinvestor, provided that Swissinvestor accepts such power of attorney. In principle, Swissinvestor does not accept proxies granted without using the form provided by Swissinvestor.
13.3 Swissinvestor may require that the signatures concerned be certified. Once the power of attorney has been granted, it remains in effect until Swissinvestor receives written notice from the Client that it has been revoked. The power of attorney does not expire in the event of the Client’s death or legal incapacity.
13.4 The Client must immediately notify Swissinvestor in writing
if a person authorized by him becomes legally or otherwise incapable of acting. Until such written notice is received, or if the Client becomes incapable of acting without Swissinvestor being duly informed, any Damage related to such incapacity shall be borne by the Client. Swissinvestor is not bound by any official publication.
COMMUNICATIONS AND INSTRUCTIONS
Opinion of Swissinvestor
14.1 All notices or communications (hereinafter referred to as
“Notices”) that Swissinvestor sends to the Client will normally be made by posting a Notice on the Client’s Account (including on a Trading Platform). The Company may, at its sole discretion, send a Notice by other means of communication, p. e. g. by mail, e-mail, fax or telephone. The Client expressly agrees to receive correspondence electronically and is aware of and accepts all the consequences, losses and risks that may arise from the transmission of information electronically.
14.2 The Client must ensure that he or she or any person authorised by him or her can be contacted by Swissinvestor at any time by telephone, fax or e-mail. If, in its sole discretion, Swissinvestor considers that this is in its and/or the Client’s interest, it may, but is not obliged to, contact the Client even if it has given contrary instructions, without assuming any liability to the Client as a result of such contact (or lack thereof).
14.3 All Notices addressed by the Company to the Client shall be deemed to have been duly addressed to the Client when sent to the address, e-mail address or fax number most recently communicated by the Client, when addressed by telephone or when posted on a Trading Platform, on the Account or on the Swissinvestor website.
14.4 Notices sent by mail by Swissinvestor shall be deemed to have been duly received on a Business Day (as defined below) after being sent to a Swiss address or four Business Days after being sent to a foreign address. If Swissinvestor does not have a valid address for the Client, the address of Swissinvestor will be considered to be the address of the Client; in this case, the date of dispatch is the one mentioned on the copy of the Notice in Swissinvestor’s possession, the date of the mailing list or any other relevant date mentioned in the Notice.
14.5 Notices sent by fax by Swissinvestor shall be deemed to have been duly received upon receipt of a positive transmission report. Notices that the Company posts, sends or communicates, as the case may be, on a Trading Platform, on the Account or on the Swissinvestor website, by e-mail or telephone shall be deemed to have been duly received as soon as they are posted, sent or communicated. The Client is required to regularly consult the Trading Platform, his Account and the Swissinvestor website in order to become aware of any Notice sent by Swissinvestor.
14.6 At the Client’s specific request, Swissinvestor may exceptionally agree to retain its Notices. Notices kept by Swissinvestor shall be deemed to have been duly communicated to and received by the Client on the date stated on the Notices. The Client undertakes to collect the said Notices kept at least once every twelve months and accepts that Swissinvestor may destroy the Notices it keeps for the Client at the end of a twelve-month period. The Client releases Swissinvestor from any liability whatsoever in this respect.
14.7 Instructions from the Client will generally be transmitted through the Account or a Trading Platform. If the Client transmits an Instruction by mail or fax, Swissinvestor will verify the signature by comparing it with the specimen it holds, applying the required diligence.
14.8 Swissinvestor is entitled, but not obliged, to execute all Instructions transmitted by telephone, e-mail, fax or other electronic means of communication, even if these Instructions are not subsequently confirmed in writing with an original signature. However, the Company reserves the right to execute such Instructions only after having obtained written confirmation with an original signature or in a form requested by Swissinvestor or after having taken other identification measures. Swissinvestor assumes no responsibility for any Damage that may result from any delay involved in such a request for confirmation or additional measures. Unless a Notice clearly indicates that it confirms a previously issued Instruction, Swissinvestor assumes no responsibility for the duplicate execution of an Instruction.
14.9 The Client is solely responsible for all Instructions and communications issued by means of passwords and other personal identification codes (hereinafter the “Identification Codes”), as well as for all Transactions and other operations carried out using its Identification Codes. Any person using the Client’s Identification Codes or who identifies himself by telephone or on the Internet (as defined below) using the Identification Codes is considered by Swissinvestor to be authorized to act on behalf of the Client, notwithstanding the absence of a power of attorney in his favor. Swissinvestor assumes no responsibility for any damage suffered by the Client as a result of Instructions, communications, Transactions or other operations (such as payments) carried out using its Identification Codes, even when they have been used fraudulently, illegally or against the Client’s wishes.
14.10 The Customer must take all necessary measures to protect its Identification Codes and ensure that an unauthorized third party does not have access to the Platforms
that Swissinvestor makes available to him or her or his or her Account. Swissinvestor strongly recommends that the Client regularly change his passwords. If the Customer registers his Identification Codes or other confidential information on his computer or elsewhere in a manner that makes it accessible, he does so at his own risk. The Client must immediately notify the Company if he believes that his Identification Codes are known to an unauthorized third party and if access to the Trading Platforms and/or his Account is to be blocked. The Client shall bear all the consequences, direct or indirect, of blocking and unblocking the Trading Platforms or its Account.
14.11 Swissinvestor may, at its sole discretion, without being required to provide any reason or answer for any Damage arising from such a decision, refuse to execute any Instructions that it considers contrary to any applicable legal provision, market rules or Swissinvestor’s internal or external rules.
14.12 Swissinvestor is entitled at any time to reverse a Transaction or other transaction (such as a payment or transfer of a Financial Instrument) made in error.
14.13 The Client acknowledges that it may not be possible to cancel, withdraw or modify a given Instruction, even if it has not yet been executed at the time of the Client’s request. The Client acknowledges that it is solely responsible for any Damage that may result from the cancellation, withdrawal or modification of an Instruction in progress.
14.14 Subject to other provisions of the Agreement, all instructions and other communications from the Client must be in a language proposed by Swissinvestor.
14.15 Any price that Swissinvestor communicates by telephone prior to the execution of a Transaction is deemed to be indicative. Swissinvestor does not guarantee that a Transaction executed by telephone will be executed at the price displayed on a Trading Platform. The relevant price is the one recorded on the Client’s Account.
14.16 Swissinvestor assumes no liability for any Damage suffered by the Client due to misunderstanding of the telephone due to, but not limited to, poor or faulty connection, background noise at the location of the Client, language used, etc.
14.17 The Company offers the Client the possibility of executing Transactions and other transactions (e. g. payments) via the Internet as well as, where applicable, by other means of electronic communication, such as mobile applications (hereinafter collectively “Internet”). Swissinvestor reserves the right, at its sole discretion, to carry out technical maintenance operations, during which access to a Trading Platform, the Swissinvestor website or the execution of Transactions or other operations may not be possible.
14.18 The Client assumes responsibility for any Damage related to its technical access to the Trading Platforms and/or its Account. The Customer must use the appropriate hardware and software to connect to the Trading Platforms and/or his Account.
14.19 The Client is aware of the risks inherent in the use of a Trading Platform or the Swissinvestor website or any other use of the Internet, including the risk associated with the use of public networks for the transmission of data from the Client to Swissinvestor and from Swissinvestor to the Client. It is also aware that data are regularly transmitted in an uncontrolled manner outside Switzerland, even if both the sender and the recipient are located in Switzerland. Even if the data is encrypted, data concerning the sender and recipient may sometimes not be encrypted, so that a third party may be able to deduce their identity.
14.20 Swissinvestor expressly disclaims any liability for any Damage suffered by the Client as a result of a transmission error or failure (including delays in transmission of Instructions, misunderstandings, duplicates, etc.), interruption (e. g. maintenance), slowdown, overload, transmission interruption, technical failure, service interruption (e. g. maintenance), transmission failure, etc. in the event of system maintenance), interruption, interference, unlawful attack (e. g. hacking) and deliberate blocking of telecommunications devices and networks (e. g. mail bombing, refusal of service) or other malfunctions, errors or failures by telecommunications or network operators, exchanges, clearing or settlement houses, other financial service providers or the Customer (including the Customer’s hardware and software).
14.21 The Company declines all responsibility and gives no guarantee that the data transmitted and published via the Internet are correct, accurate and complete. In particular, data relating to an account (e. g. the balance of the Account) and information in the public domain (e. g. stock prices or exchange rates) are not liable. In particular, the Client is informed of the following specific risks related to the Internet, for which Swissinvestor declines all responsibility:
(a) Poor knowledge of the system and insufficient security measures can facilitate unauthorized access. The Customer is aware of the risk that his Account may be affected by computer viruses and other malicious programs that have infected his hardware or software (e. g. via the Internet, e-mail or the exchange of data media) or may be used inappropriately by an unauthorized third party. The hardware and software used
by the Client must always come from a reliable source. The Customer is required to inform itself of the necessary security measures (e. g. anti-virus programs, firewalls) and to implement them;
b) The preparation by Internet service providers of user statistics allowing to deduce that the Client has contacted Swissinvestor;
c) The use of the Customer’s hardware and software by persons other than the Customer involves additional risks. If the Customer uses and records any information (including his password, user ID, portfolio information, account statements, etc.) on his computer equipment in a manner that makes it accessible, he does so at his own risk and fully assumes all the consequences thereof.
14.22 The Customer acknowledges that certain software components, such as coding algorithms, may be subject to restrictions (including import and export) in certain countries. The Customer must inform himself accordingly and assumes full responsibility for the related risks. Swissinvestor accepts no liability for any violation of the provisions relating to the import, export and use of prohibited software components.
Common provisions / Responsibility
14.23 The Company shall verify the signature of the Client or the person authorized by the Client appearing on any Written Instruction by applying due diligence. Swissinvestor is not required to take any further steps for identification purposes and assumes no liability for any Damage resulting from falsification, misidentification or improper use by third parties.
14.24 The Customer shall bear any Damage resulting from the use of postal services, couriers, telephone, e-mail, fax or any other means of communication, in particular delays, misunderstandings, transmission or other errors, data loss, duplication, technical errors, overloads, (system) interruptions, malfunctions, interference, etc.
CONFIRMATIONS, DECLARATIONS AND COMPLAINTS
15.1 Unless otherwise agreed, confirmations of Transactions and other transactions will only be communicated to the Account.
15.2 The Client shall immediately verify the content of any statement, confirmation, report and other similar document (hereinafter referred to as the “Reports”) received from Swissinvestor or communicated on its Account. Any complaint by the Client (e. g. regarding the execution or non-execution of an order and any objection to a Report or Notice from Swissinvestor) must be made in writing upon receipt of the Report and the notice concerned, but no later than thirty days after receipt. At the end of this period, the execution or non execution or, if applicable, the Report or Notice concerned shall be deemed to have been approved. The Customer shall bear the consequences of any delay in making a complaint.
15.3 If the Client does not receive a Report or Notice that it expected to receive, it must inform Swissinvestor without delay.
15.4 The express or implied acknowledgement of a Report shall be deemed to constitute approval of all the elements contained therein, as well as of any reservation made by Swissinvestor.
16.1 The Company shall fulfill its contractual and legal obligations to the Client by applying the ordinary diligence expected of a Company in Switzerland. Swissinvestor shall only be liable to the Client for direct losses caused intentionally or by gross negligence in the performance of its obligations under Swiss law or the Contract. In particular, Swissinvestor declines any liability with regard to:
a) Damage resulting from access to, use of or any prohibition on access to or use of the Swissinvestor website, the Client’s Account and any Trading Platform or use of the information and Services provided therein;
b) Damages resulting from Swissinvestor’s lawful intervention in respect of its legal obligations and/or the Contract, including the liquidation of Open Positions;
c) Damage resulting from events such as those described in Articles 20 and 14.21 or any other materialization of a risk associated with the Internet;
d) Damages resulting, directly or indirectly, from exceptional circumstances beyond the reasonable control of Swissinvestor, which it may reasonably determine in its sole discretion and which may affect only part of Swissinvestor, including (but not limited to) (i) technical difficulties (such as power outages, failures or interruptions in information technology or communication channels and equipment), (ii) the unavailability and/or malfunction of the Swissinvestor website or the Trading Platform and/or the unavailability and/or malfunction of the software allowing access to this Trading Platform, for any reason whatsoever, (iii) declared or imminent wars, terrorist attacks, revolutions, civil unrest, hurricanes, earthquakes, floods and other natural disasters, (iv) mandatory provisions, measures taken by authorities, riots, strikes, lockouts, boycotts, blockages and other major labor disputes, whether or not Swissinvestor is a party to the conflict, (v) the suspension, termination or closing of any market, (vi) the imposition of special or unusual trading limits or conditions on any market, (vii) market disruptions or an exceptional movement of any market or Financial Instrument, (viii) any other act or event that Swissinvestor considers to be an obstacle to the maintenance of an orderly market, including the bankruptcy or default of a counterpart or a significant business relationship of Swissinvestor, and (ix) any other situation that may be defined as a “Force Majeure Event” (hereinafter collectively referred to as the “Force Majeure Event”).
16.2 Swissinvestor shall not assume any liability of any kind for indirect, cumulative or consequential Damage, or for Damage caused by the Client’s failure to reduce such Damage, including by failing to take immediate action to prevent potential Damage or to reduce existing Damage known or foreseeable or that the Client should have known or foreseen if it had exercised reasonable care and diligence. For example, if the Swissinvestor website, Account and/or Trading Platforms are unavailable (including due to technical problems), the Client should use all possible means to communicate Instructions (e. g. by telephone) or use the services of another Company or broker (e. g. to cover its open positions or similar positions).
16.3 Swissinvestor may use the services of third parties; in this case, Swissinvestor will select and designate third parties who have the ability and capacity and are duly authorised to perform the functions and services for which they are appointed. However, in the event of damage resulting from an act or omission of such a third party, Swissinvestor declines all liability once it has carefully selected and appointed such third party and, at the Client’s request, it may assign its rights against the third party, if and to the extent permitted by law.
16.4 If Swissinvestor has not carried out the required due diligence, its liability for damage suffered by the Client as a result of the Instructions not being carried out in a timely or correct manner shall in any event be limited to an amount equal to the loss of interest suffered by the Client.
17.1 The Client agrees to indemnify and hold Swissinvestor harmless from and against any and all damages, other costs (including, without limitation, travel expenses, fees of a debt collection agency and internal processing costs, as defined by Swissinvestor, as determined by Swissinvestor in its sole discretion) and liabilities (present, future, hypothetical, unexpected or otherwise) that Swissinvestor may incur as a result of (i) that the Customer does not fully and regularly fulfill its obligations under the Agreement or any part thereof, (ii) that the Customer does not comply with the laws and regulations applicable to it, (iii) any action that Swissinvestor takes to safeguard its interests or otherwise enforce any provision of the Contract and any other agreement between Swissinvestor and the Client and any Transaction hereunder, (iv) a Case of
Failure (as defined below), (v) the communication by the Client of inaccurate, incomplete and/or misleading confirmations or information, in particular concerning its tax situation, for example the status of
“US Person”, and similar information, (vi) a receiver’s order, detention, seizure or similar proceeding, whether civil, criminal or administrative, relating to the Account; or (vii) any event comparable to those described in points (i) to (ii) (vi).
17.2 The indemnities are in addition to any other rights, indemnities or claims that Swissinvestor may have under the Contract or applicable law.
17.3 The obligations set out in this Section 17 shall remain in effect notwithstanding the termination of the Contract or any part thereof.
FEES AND CONDITIONS
18.1 Swissinvestor is entitled to debit any Account with the fees, commissions and costs stipulated in the current fee schedule on the Swissinvestor website or agreed separately in writing.
18.2 Swissinvestor reserves the right to change its fees, commissions and costs at any time and the Client will be notified of such changes accordingly. Unless otherwise specified by Swissinvestor in its Notice, such amendments shall be deemed to have been approved if they are not contested in writing within thirty days of the date of the Notice.
18.3 For all non-standard Services performed on the Client’s instructions or in its presumed interests for which no indication appears on the Swissinvestor website but which, on the basis of general experience, are normally invoiced, Swissinvestor may, at its sole discretion, calculate a reasonable remuneration and debit it from the Account.
FINANCIAL ADVANTAGES OF SWISSINVESTOR
19.1 The Client acknowledges that Swissinvestor may receive, directly or indirectly, fees, commissions (e. g. sales, distribution, monitoring or acquisition), retrocessions, indemnities, discounts and other benefits (hereinafter the “Financial Benefits”) from third parties (including entities of the Swissinvestor Group) in connection with the Services provided to the Client. The Client acknowledges that the nature, amount and calculation of the Financial Benefits may vary. Further information on Financial Benefits can be found in the information sheet published on the fees and commissions pages on the Company’s website. The Client may request additional information from the Company regarding the Financial Benefits.
19.2 The Client waives any claim relating to the Financial Benefits and agrees that the Company may retain them as additional remuneration for its Services or redistribute them to third parties as it deems appropriate. In the event of a conflict of interest due to the payment of Financial Benefits, Swissinvestor ensures that the Client’s interests are protected.
CONFIDENTIALITY BETWEEN SWISSINVESTOR AND THE CLIENT AND DATA PROTECTION
20.1 Swissinvestor is legally obliged to keep the relationship between the Client and Swissinvestor confidential. Swissinvestor . may be required to disclose to authorities, brokers, custodians, issuers of certain products, etc. personal, financial and other data concerning the Customer, the Account, the beneficial owner of the Account and any other person related to the Account (hereinafter referred to as “Personal Data”) in accordance with applicable law, market rules or contracts concluded with third parties.
20.2 The Client releases Swissinvestor from its duty of confidentiality (including banking secrecy) if this is necessary in view of Article 20.1 or in order to preserve the legitimate interests of Swissinvestor and/or the Client. This applies in particular:
a) if the Client brings a legal action against the Company ;
b) if Swissinvestor is to guarantee the claims and carry out the guarantee provided by the Client or by third parties;
c) in the context of debt collection proceedings or other proceedings that Swissinvestor initiates against the Client;
d) if Swissinvestor is the subject of allegations by the Client in public or with Swiss or foreign authorities;
(e) for national or cross-border payments or transfers. Swissinvestor is authorised to communicate information relating to the Client, in particular his name and address, his IBAN (international bank account number) or account number, to the Companies concerned (in particular the corresponding Swissinvestor Companies in Switzerland and abroad), to operators of transaction and payment systems in Switzerland and abroad (e. g. Swiss Interbank Clearing (SIC)), SWIFT (Society for Worldwide Interbank Financial Telecommunication) and to beneficiaries;
(f) for Transactions and other domestic and cross-border transactions (in securities or other transactions), as well as for transactions executed by SIC/SWIFT. Swissinvestor is authorised to communicate to the relevant Swiss and foreign Companies, Central Depositories and System Operators the name, address, IBAN code, account number or custody account number of the final beneficiary, registered shareholder or other parties involved in the Transaction or other transaction;
g) for disclosures of Personal Data to the Swissinvestor counterpart, the authority or any other relevant third party when, as a result of the Client’s Transactions in Financial Instruments subject to domestic or foreign market rules, such disclosures are necessary for that transaction or related transactions executed in accordance with the applicable market rules and/or prevent that (i) the Client’s account or Swissinvestor’s account is blocked, (ii) the contract that Swissinvestor enters into with a counterpart must be terminated, (iii) Swissinvestor is exposed to legal action, and/or (iv) an event likely to have negative consequences for Swissinvestor occurs;
(h) for any other case described in the dedicated notice posted on the Swissinvestor website, as amended from time to time, without prior notice to the(h) for any other case described in the dedicated notice posted on the Swissinvestor website, as amended from time to time, without prior notice to the
20.3 The Client agrees that Swissinvestor may process, in accordance with the Swiss Federal Data Protection Act, the Personal Data it has obtained, in particular for the purpose of executing Transactions and other operations, providing Services under the Contract, fulfilling its legal obligations, maintaining the relationship with the Client, marketing its products and Services and improving the quality of products and Services.
20.4 The Client expressly accepts and authorizes Swissinvestor to exchange information concerning the Client (including Personal Data) with other entities of the Swissinvestor Group in Switzerland or abroad, subject to the terms of the dedicated notice available on the Swissinvestor website pursuant to Article 20.2 h). Such consent and authorization shall also be deemed to have been given to the relevant Swissinvestor Group entity, which is also authorized to process such information concerning the Client in accordance with applicable law.
20.5 The Client acknowledges that, once Personal Data has been transferred outside Switzerland, it is generally no longer protected by Swiss law, subject to applicable law, and may be transmitted to third parties or authorities in accordance with applicable law.
20.6 The Customer is also aware that data transmitted via the Internet is regularly transmitted in an uncontrolled manner outside Switzerland, even if both the sender and the recipient are located in Switzerland. Even if the data is encrypted, data concerning the sender and recipient may sometimes not be encrypted, so that a third party may be able to deduce their identity.
20.7 The Client also acknowledges that Swissinvestor may use software from a third party supplier and that the IP address of the computer or device on which the Client uses such software may be communicated to such third party supplier, which may not be located in Switzerland. The Client accepts all related consequences, in particular in terms of confidentiality and data protection.
CUSTOMERS BROUGHT IN BY A THIRD PARTY
21.1 If a third party, such as a business provider, asset manager or external advisor, has introduced the Client to Swissinvestor, the Client understands and acknowledges that Swissinvestor may pay such third party fees, commissions, retrocessions, allowances or other benefits for the introduction or provision of other Services. These fees may be calculated on the basis of the transactions carried out or otherwise, in particular on the basis of the fees and commissions that Swissinvestor charges to the Client or on the basis of the Client’s assets deposited with Swissinvestor. The Customer understands and acknowledges that such a third party has the right to access information relating to the Customer and his Account.
21.2 Swissinvestor does not control and cannot guarantee the accuracy and completeness of any information or advice that the Client may have received or may in the future receive from such third party. If the Client receives investment information or advice from a business contributor, asset manager or other third party, Swissinvestor assumes no liability for any Damage resulting from the Client’s use of such information or advice.
21.3 The Client acknowledges that this third party does not represent or act on behalf of Swissinvestor in any way and is absolutely independent of Swissinvestor or any entity of the Swissinvestor Group.
21.4 The Client understands that this third party may not be
supervised by a supervisory authority.
21.5 The activities of any person (such as, but not limited to, a third party mentioned above) who is authorized to execute Transactions or other transactions on the Client’s Account must be regularly monitored by the Client. Swissinvestor is not liable for any Damage caused by the Instructions that these authorized persons give to Swissinvestor
22.1 The Client confirms that it is aware of the requirements imposed by laws and regulations relating to the fight against money laundering and that it is required to cooperate fully with Swissinvestor in order to comply with all applicable requirements. Any other obligations arising from or related to legal and regulatory measures to combat money laundering under applicable law remain reserved.
22.2 The Client is required to, and undertakes to, provide Swissinvestor with all requested information and supporting documents concerning its person or, if necessary, the identity of any third party in whose name or on whose behalf it acts (such as the beneficial owner), in particular in its capacity as agent.
22.3 In particular, Swissinvestor may request information and further details as to the justification and
in the economic background of the Client, the assets deposited on the Account and any Transaction or other transaction associated with its Account. If this information is not provided or is, in Swissinvestor’s opinion, insufficient, it may, without notice, refuse to execute the Client’s Instructions, postpone their execution, block the assets deposited in the Account, notify the relevant authorities and/or terminate the relationship with the Client. Provided that Swissinvestor has complied with the relevant legal provisions or internal or external rules and regulations, Swissinvestor is not liable for any Damage caused by any or all of these measures.
23.1 The Client expressly accepts and gives its consent to the Company so that the Company may, but is not obliged to, record conversations between Swissinvestor and the Client via the Internet and telephone and produce transcripts of such conversations and other exchanges between Swissinvestor and the Client, the Client’s representatives and other signatories to the Account.
23.2 These recordings and transcripts remain the property of Swissinvestor and the Client accepts that Swissinvestor may use them as evidence, in particular in the event of a dispute or a request from an authority. Swissinvestor may, at its sole discretion, disclose such recordings and transcripts to the extent it deems necessary or appropriate.
23.3 All recordings and transcripts produced by the Company shall be processed in accordance with its standard practice and may, if necessary, be destroyed in accordance with that practice. Swissinvestor assumes no responsibility for the fact that telephone or Internet conversations have not been recorded for any reason whatsoever.
24.1 The Client undertakes to pay as soon as possible any amount necessary, under the terms of the Agreement, for Swissinvestor to execute the Transactions or other transactions on behalf of the Client and to cover all obligations arising from or related to the Transactions or other transactions.
24.2 Swissinvestor is not obliged to execute Client Instructions for which there is no cover or credit limit. If the Client has given Instructions in excess of the total amount of the available balance or credit facilities granted, Swissinvestor may decide, at its sole discretion and regardless of the date or time of their receipt by Swissinvestor, which Instructions will, if any, be executed in whole or in part. Swissinvestor may also decide to reject all relevant Instructions.
24.3 The Customer is informed that the specific characteristics of the existing systems in each country may slow down or even prevent the execution of payments or transfers.
24.4 Swissinvestor is not required to execute payment instructions or process incoming payments that contravene applicable legislation, regulations or orders issued by authorities or that may otherwise not be compatible with rules and regulations within or outside Swissinvestor.
24.5 The Client is aware that payments denominated in a foreign currency are generally made through a Company established in a country issuing that currency. The Customer is also informed that certain countries (in particular the USA) apply embargoes or similar measures with regard to certain other countries. The Client shall review its Payment Instructions in light of such embargoes or similar measures and shall refrain from giving such Payment Instructions if such payment may be blocked or subject to other similar measures by a Company or other body. Swissinvestor is not obliged to examine the Client’s Payment Instruction in the light of embargoes or similar measures and is not liable for any damage suffered by the Client as a result of the application of an embargo or similar measures.
25.1 In the context of the outsourcing of all or part of its activities, Swissinvestor reserves the right to use the services of third parties, including entities of the Swissinvestor Group, in Switzerland and abroad. These outsourced activities remain under the responsibility and supervision of Swissinvestor to the extent required by applicable laws and regulations. If such an operation involves the disclosure of Customer Personal Data, Swissinvestor will ensure that it is treated confidentially in accordance with applicable legislation.
25.2 The activities currently outsourced are the storage and archiving of account opening documents and the maintenance of computer databases; these activities are outsourced to Switzerland. Relevant information on outsourced activities can be found in the notice available on the Swissinvestor website. The latter may be modified if necessary, without prior notice to the Client.
26.1 All copyrights, trademarks, trade secrets and other intellectual property rights relating to the Trading Platforms and the Swissinvestor website remain at all times the exclusive property of Swissinvestor or third party owners. The Customer has no right or interest in these intellectual property rights, with the exception of the non-exclusive right to access and use them as specified in the Agreement. The Client shall not copy, modify, decompile, reverse engineer, alter or draw derivative works
the intellectual property rights of Swissinvestor or their operation. Any failure to comply with this obligation will result in legal action.
26.2 The Client is expressly prohibited from using, directly or indirectly, any device, software or other device to manipulate or attempt to manipulate the operation of any electronic system, interface, device, data flow or software of any kind or nature that Swissinvestor makes available to it in connection with any Trading Platform or Account.
CASE OF FAILURE
27.1 At its sole discretion and without prior notice to the Client, Swissinvestor is entitled to (i) to terminate the Contract or any part thereof, (ii) to liquidate any Open Position, in whole or in part, immediately or within a specified period of time, (iii) in accordance with the right of pledge and set-off granted to Swissinvestor under these General Terms and Conditions, to realize any assets held by the Client with Swissinvestor, (iv) to cancel any or all pending Instructions, (v) to block any assets held in the Customer’s Account(s), (vi) to suspend the performance of its own obligations or (vii) to take any other action, if Swissinvestor considers it necessary for its own protection, in particular, at the time of or following a Force Majeure Event or if one of the events set out below (hereinafter individually a “Event of Default”) or at any time after the occurrence of an Event of Default:
a) The Client does not make any payment due to Swissinvestor (e. g. additional margin, if any) for any reason whatsoever, or does not provide any security of any kind on its due date.
b) The Client breaches or fails to comply with any provision of the Agreement or any part thereof or any provision of any other applicable agreement between Swissinvestor and the Client or the terms of a Transaction.
c) The Client fails to fulfill any obligation to Swissinvestor or contravenes its representations, warranties, confirmations or
d) The Client dies, is missing or is otherwise the subject of an inability or prohibition.
e) The Customer becomes insolvent, ceases to operate or commences insolvency or other comparable proceedings.
f) The Client is subject to bankruptcy, restructuring or other comparable proceedings, including a protective measure pursuant to Article 27 of the Swiss Federal Companies Act, and/or restructuring proceedings pursuant to Articles 47 et seq. of the FINMA Ordinance on the Insolvency of Companies and Securities Dealers.
g) A debt collection procedure (including seizure) is initiated against the Client or the Client is unable or refuses to settle all or part of its debts or to fulfill its financial obligations.
h) The Client is subject to any other liquidation proceedings or an administrator, liquidator or judicial representative is appointed at the request of or by a supervisory authority or a judicial representative.
i) The Client is subject to a procedure equivalent or comparable to those envisaged in points (e) to (h) above.
j) Swissinvestor or the Client is obliged by a competent authority to liquidate an Open Position or part of a Position
27.2 Unless otherwise decided by Swissinvestor, if an Event of Default set out in points (e), (f) or (h) above occurs, the Agreement shall be deemed to have been terminated immediately prior to the occurrence of such Event of Default and the Service due on or after the termination date shall be replaced by the obligation to pay a Settlement Amount (as defined below) in the currency chosen by Swissinvestor.
27.3 If Swissinvestor terminates the Agreement with the Client or any part thereof as a result of an Event of Default, Swissinvestor is entitled to have the performance of its Service(s) and obligations due on the date of termination or thereafter by the obligation to pay a Liquidation Amount denominated in the currency chosen by Swissinvestor replaced.
27.4 The “Liquidation Amount” is calculated by Swissinvestor and consists of :
(a) the difference between the income that Swissinvestor would have earned and the costs that it would have incurred (replacement values) if it had carried out the Replacement Transactions (as defined below) on the market on the termination date. A “Replacement Transaction” is considered to be a Transaction whose financial effects for Swissinvestor would have been the same as those of the closed Transaction;
(b) increased by any amount due to Swissinvestor prior to the termination date;
(c) reduced by any amount already due by Swissinvestor prior to the termination date.
27.5 If the amounts concerned are denominated in a currency other than the one chosen by Swissinvestor, they will be converted into the chosen currency at the exchange rate to be determined by Swissinvestor.
27.6 Apart from any other guarantee specifically agreed for this purpose, Swissinvestor is entitled to offset the Settlement Amount in accordance with these General Terms and Conditions.
28.1 Swissinvestor or the Client may, at any time and without giving any reason, terminate the business relationship arising from or related to the Agreement. Notice of termination by the Client shall be given in writing to Swissinvestor; Swissinvestor is entitled to give notice of termination to the Client also by one of the means mentioned in Section 13, including through the Account or a Trading Platform. Unless expressly stated otherwise in this Notice, the business relationship will be terminated with immediate effect.
28.2 If the Account still contains Open Positions at the time of notification of termination, the Client has a period of ten Business Days to liquidate or transfer all of its Open Positions, failing which Swissinvestor reserves the right to liquidate all of the Client’s Open Positions at the end of this period, regardless of whether such liquidation may generate a gain or loss. The Agreement shall continue to bind both Swissinvestor and the Client with respect to the aforementioned Transactions.
28.3 Upon termination of the business relationship, the Client shall inform Swissinvestor where its assets are to be transferred. If the Client fails to provide relevant Instructions within the time limit set by Swissinvestor, Swissinvestor is entitled to (i) charge a reasonable fee for the maintenance of the Account, (ii) provide for the physical or electronic delivery of Financial Instruments to the Client’s address and/or to a securities custody account held by the Client with another Company, if known to Swissinvestor, and/or to (iii) liquidate any Financial Instrument and deposit the proceeds and any balance at the location designated by a competent court or send them to the last address known to the Client in the form of a cheque in full discharge. The Client shall bear all costs related to this transfer of assets and the consequences thereof.
29.1 The Client shall take all appropriate measures to prevent the sums and assets deposited with Swissinvestor from becoming contactless. In particular, the Client shall maintain regular contact with Swissinvestor and shall notify it without delay of any change in name, address, residence (including tax domicile), correspondence address, e-mail address and telephone number or any other aspect of its situation that may lead to the termination of relations between Swissinvestor and the Client, and shall take the necessary measures to enable it to resume contact in such cases.
29.2 The Client authorizes Swissinvestor to take all appropriate or necessary measures to locate it or its beneficiaries if it notes that communications addressed to the Client do not reach it or if it has no further contact with the Client for a given period of time, which Swissinvestor determines in its sole discretion. If this investigation is unsuccessful and the assets are deemed to be contactless within the meaning of applicable law, the Client acknowledges that Swissinvestor may notify third parties of the existence of the relationship in accordance with applicable law.
29.3 Swissinvestor will debit the Client’s Account for the costs incurred in connection with the above-mentioned investigation and for the processing and monitoring of the Client’s dormant assets. Other fees and expenses that Swissinvestor generally charges during the course of the business relationship between Swissinvestor and the Client shall apply for as long as the relationship exists.
29.4 Swissinvestor is entitled to take measures deviating from these General Terms and Conditions if it is in the presumed interest of the Client, which Swissinvestor determines in its sole discretion.
30.1 Swissinvestor reserves the right to amend the Agreement or any part thereof at any time. The Customer will be notified accordingly. Unless otherwise indicated by Swissinvestor in its Notice, such amendments shall be deemed to have been approved if the Client uses the Trading Platform after the publication of such amendments or if they are not disputed in writing within thirty days of the date of the Notice, whichever occurs first.
30.2 If any provision of the Agreement is illegal, void or unenforceable in any way under the laws of any particular country, this shall not affect the legality, validity or enforceability of the remaining provisions of the Agreement, and Swissinvestor and the Client undertake to reach an agreement and/or replace the illegal, void or unenforceable provision with a legal, valid and enforceable alternative as close as possible to the effect sought by the provision concerned.
30.3 In the event of the Client’s death, Swissinvestor reserves the right to request information and to require that supporting documents, in particular the certificate of inheritance and the death certificate, be communicated to Swissinvestor.
30.4 The Client may not assign any of its rights and obligations under the Agreement or any Transaction (or any part thereof) without the prior written consent of Swissinvestor.
30.5 The failure or delay by Swissinvestor in exercising or enforcing its rights under the Agreement shall not be construed as a waiver of such rights nor shall it affect the exercise or enforcement of such rights, now or in the future.
30.6 Unless otherwise agreed, the Special Conditions and any other regulations or special agreements shall prevail over the General Conditions. With regard to all the above-mentioned documents, unless otherwise agreed, a special rule shall prevail over a general rule.
30.7 The days on which Swissinvestor offers its Services are referred to as “Business Days”. Saturdays, Sundays and public holidays at Swissinvestor’s headquarters in Lausanne (canton of Vaud, Switzerland) are not considered as Working Days.
30.8 Words in the singular include the plural and vice versa and words in the masculine gender refer to the feminine gender.
30.9 Any reference in the Contract or any part thereof to a person refers to both natural and legal persons.
30.10 Any reference in the Agreement or any part thereof to Swissinvestor shall be construed as referring, where applicable, to the directors, officers, directors, employees, successors, agents and other representatives of Swissinvestor and to the Group Entities and their directors, officers, directors, employees, successors, agents and other representatives.
30.11 Any reference in the Contract or any part thereof to any law, rule or provision of law shall include any subsequent amendment thereto.
30.12 For convenience, Swissinvestor makes available to the Client translations of the Contract or part thereof. In the event of any discrepancy and/or inconsistency between the original English, French or German language version (regardless of the one used when the Account was opened) and the translations made, as well as for interpretation purposes, the original version shall prevail.
APPLICABLE LAW AND COMPETENT JURISDICTION
31.1 The Agreement and any part thereof shall be governed exclusively by and interpreted in accordance with Swiss substantive law. This applies in particular to Financial Instruments held by an intermediary.
31.2 The place of performance, the place of jurisdiction for proceedings against Clients domiciled abroad and the exclusive place of jurisdiction for any dispute arising out of or in connection with the Contract or any part thereof shall be Swissinvestor’s registered office in Lausanne (Canton of Vaud, Switzerland). However, Swissinvestor reserves the right to bring proceedings before the competent courts of the Customer’s place of residence or domicile or before any other competent court, in which case Swiss substantive law shall remain exclusively applicable.