TMSCAPITAL. Investment Management Agreement Anios Elixir Managed FX programme. Not available to US persons as defined in Regulation S

Transcription

1 TMSCAPITAL Investment Management Agreement Anios Elixir Managed FX programme Not available to US persons as defined in Regulation S TMS Capital Limited Cranfield Innovation Centre, University Way Cranfield Technology Park Cranfield MK43 0BT Tel +44 (0) [email protected] TMS Capital Limited is authorised and regulated by the Financial Conduct Authority

2 Dear applicant, Thank you for your application. In order to open a managed account you are required to open a trading account with FXCM and complete the TMS Capital Limited investment management agreement. Firstly, you must apply for a trading account with FXCM, the Derivative Provider. Please visit the website by following this link - Secondly, to support your application, you must complete certain other documents giving TMS Capital the authority to manage your trading account. These documents are found below and must be completed and signed where appropriate. Please note: In order to accept your application, you must be able demonstrate a certain level of knowledge and experience trading the financial markets. If you are in any doubt as to your eligibility, please contact the trading desk on +44 (0) Finally, in order to satisfy anti-money laundering regulations, applicants are required by law to prove their identity and place of address. Before you return your completed documents above, please ensure you have enclosed the appropriate documents as detailed below. Please return all completed documentation to [email protected] or send them in the post to: TMS Capital Limited The Innovation Centre University Way Cranfield Beds MK43 0BT Should you have any questions regarding your application or the risks involved with a managed account, please contact us. Yours faithfully. TMS Capital Limited [email protected] +44 (0) Page 2 Investment Management Agreement Ariolus Capital Managed Futures

3 Overview TMS Capital Limited is a company incorporated in the United Kingdom, company reference number The firm is authorised and regulated by the Financial Conduct Authority in the conduct of investment business. TMS Capital Limited provides investment advice, acts as an arranger and provides discretionary investment management services in shares, spread bets, CFDs, futures, options and foreign exchange. Discretionary Trading Programme In signing the declaration on page 8 you are agreeing to open a margined account with the Derivative Provider and authorising TMS Capital Limited to manage the account in accordance with the investment objectives set out in the Managed Account Investment Agreement. Discretionary Managed Account Documentation TMS is providing you with the following documents in relation to the account: a) Managed Account Investment Agreement this is a legally binding contract between yourself and TMS which sets out our respective duties with respect to the managed account; b) Client Details and Appropriateness Questionnaire please complete these details carefully as TMS will only act for you if the programme is appropriate; c) Consent and Declaration this is where you sign up to programme, so please read carefully what you have signed up to; d) Risk Warning Notice it is a condition of our doing business with you that you have read and understood the risk warnings sets out in this notice; e) Client Classification the FCA Rules apply different levels of protection depending on your classification. Please ensure you are clear as to what is your classification before signing up with us; f) Order Placing Policy this sets out our arrangements for ensuring you get the best possible result when trading for your account g) AML Documentation Request this sets out the documentation we need from you to meet our obligation to identify our clients; h) Complaints Procedure this tells you what you need to do if you are not satisfied with the service from TMS and how we will deal with your complaint. In addition to the above in order to utilise this service you will need to open an account with the Derivatives Provider as set out on page 2. Investment Objectives You confirm that your decision to open a Discretionary Managed Account is to achieve speculative gains through the trading of margined products as outlined in the Managed Account Investment Agreement. The performance of the account will be benchmarked against the performance of the Newedge CTA Index. You can see the historic performance of this benchmark by going to the following website: There can be no guarantee that the programme will achieve its objectives and you should pay close attention to the risk warnings before considering opening an account. Risk Disclosure Trading margined products can quickly lead to large losses as well as gains. For further details, please read the Risk Warning notice starting from page 9. Prospective clients should consider whether they can Page 3 Investment Management Agreement Ariolus Capital Managed Futures

4 afford to bear the risks associated with a margined trading account. If you are in any doubt please seek independent advice where necessary. Capitalised terms not otherwise defined in the documents have the meaning ascribed to them in the FCA Handbook of Rules and Guidance (the FCA Rules ) Page 4 Investment Management Agreement Ariolus Capital Managed Futures

5 Client Details and Appropriateness Questionnaire Personal Details First Name Surname Date of Birth Address Phone Number Mobile Number Address Financial Information If you are applying in joint names, please provide combined information in the boxes below: APPROX. ANNUAL INCOME: HOMEOWNER EQUITY (LESS MORTGAGE) SAVINGS & INVESTMENTS BORROWINGS & LIABILITIES Trading and investment experience 1) In which of the following products have you invested over the past year? Shares & Bonds Warrants & Options CFDs & Spread Betting 2) If you ticked any of the above boxes, please give the following details: Page 5 Investment Management Agreement Ariolus Capital Managed Futures

6 NATURE (Growth, Speculation or hedging) AVERAGE TRADE SIZE (Full consideration) AVERAGE FREQUENCY (Over the last year) YEARS TRADED (Years and months) SHARES & BONDS FUTURES, WARRANTS & OPTIONS CFDS & SPREAD BETTING 3) How have you mostly traded these products? Execution-only Advised Managed Account 4) Are you currently working or have you recently worked in the financial services industry? * Tick the one that applies to you: No Yes, I am registered with the FCA Yes, I am working/have worked for.. (firm name) but in a back office/middle office role so am not FCA registered 5) How much do you want to invest in the managed programme? 6) Please confirm the maximum amount you are prepared to lose in the programme in order to have the opportunity to make speculative gains: 7) Please detail in your own words why TMS should consider that this is appropriate to you and why you believe that you understand the risks inherent in the programme Page 6 Investment Management Agreement Ariolus Capital Managed Futures

7 FOR INTERNAL USE ONLY Having read the answers to the appropriateness questionnaire I am satisfied that the Anios Elixir Managed FX Programme is/is not * (delete as necessary) appropriate to the applicant I have also checked the responses to Q4 against the FCA Register where appropriate Name: Signature: Date: Confirmation of acceptance sent on: (date); or Rejection notice with alternative service sent on (date) Page 7

8 Declaration In signing below, you agree that you have read, understood and agree to our: 1. Declaration & Disclosure 2. Risk Warning Notice 3. Client Classification Procedures 4. Order Placing Policy 5. Managed Account Investment Agreement Signature Full Name Date Declaration & Disclosure It is important that before you apply to open an account you read and understand the Risk Warning Notice and our Order Placing Policy. The provider of this agreement and the services you will receive under it is TMS Capital Limited (TMS). If there is anything you do not understand or do not wish to agree to, please call us on In completing and returning this application you confirm that you: Consent to the Order Placing Policy Are over 18 and that the information provided in this application is correct Agree to the General Terms in relation to use of the personal information you provide to the Company. You understand that the Company may use your personal information, for example, for responding to credit reference enquiries, searching the electoral register and making enquiries of credit reference and other agencies who may retain a record of the enquiry and information given to them and who may also use your information in the future to assist other organisations for crime prevention and credit purposes Wish to open a joint account (if you are applying for a joint account) with the person(s) who sign(s) the application form (supplement) in relation to this application. Understand the main risks of trading in these instruments, as set out in the Risk Warning Notice; and Have regular access to the internet and consent to us providing you with information, including, without limitation, information about amendments to our Order Placing Policy, information about the nature and risks of investments and information on our conflicts of interest policy by posting such information on the Company s website: The Company will add your details (including details) to its database and will occasionally send you newsletters and other information about its products/services by various forms of communications, including electronically or by posting on our website at If there is anything you do not understand or do not wish to agree to, please call us on Page 8

9 To comply with the current money laundering regulations, the Company is required to undertake checks on your identity and residential address. The Company will request supporting documents from you to confirm these details. Please see Appendix for details of our requirements. If you are not a UK citizen or are non-uk resident (or if you trade from outside the UK) you may also be subject to laws other than English law (including other tax laws), and this may impact our ability to do business with you. The Company does not provide legal or tax advice. If you have any doubt about your circumstances, please seek independent legal or tax advice. You are not a US person as such term is defined in Regulation S in the US Securities Act of TMS has introduced you to a third party Derivative Provider. For the purposes of Margined Trading the contract is between you and your nominated Derivative Provider. TMS is authorised and regulated by the Financial Conduct Authority and are entered on the Financial Conduct Authority s register under number Any references to we us and our in this application form refers to TMS (Company no ). Risk Warning Notice You should not consider signing up to the programme unless you can afford to lose all the money invested and understand that you may be required to deposit additional margin. Introduction You are considering dealing with us in spread bets, and/or contracts for differences ( CFDs ), and/or exchange traded futures, and/or options and/or warrants and rolling spot foreign exchange (including where we offer these services in connection with discretionary investment management services) which we term collectively Dealing Services. This notice is designed to explain in general terms the nature of and risks particular to Dealing Services to help you to take investment decisions on an informed basis. However, please note that this notice cannot and does not explain all the risks. Dealing Services carry a higher risk of loss than trading many traditional instruments, such as most large cap equities or fixed income securities. For many members of the public our Dealing Services will not be suitable. You should not receive Dealing Services unless you know and understand the features and risks of the transactions you wish to carry on and are also satisfied that the relevant transactions are suitable for you in light of your circumstances and financial resources. In considering whether to engage in Dealing Services, you should be aware of the following: Risks and Leverage A high degree of gearing or leverage is associated with Dealing Services. This stems from the margining system applicable to Dealing Services, which generally involves a comparatively modest deposit of the overall contract value to open a margined transaction. This can work for you and against you. A small price movement in your favour can result in a high return on the money placed on deposit; however, a small price movement against you may result in substantial losses, possibly more than the money placed on deposit. Prices can move quickly. You may be called upon to deposit substantial additional margin, at short notice, to maintain your margined transaction. If you do not do so within the time required, your margined transaction may be closed at a loss and you will be liable for that loss. Page 9

10 Volatility As mentioned above whether you make a profit or a loss will depend on the prices set and fluctuations in the price of the Underlying to which your transaction relates. Neither you nor we will have any control over movements in the Underlying. Movements in the Underlying can be volatile and unpredictable. Movement of the Underlying may affect your or our ability to close a transaction, making it difficult or impossible to close a transaction. This may occur, for example, if the Underlying is suspended or restricted from trading on an exchange. Nature of Dealing Services The terms and conditions of the Derivative Provider will explain in detail how the relevant Dealing Services operate. Dealing Services involve a bet/trade on price movements. Those prices are set by your Derivative Provider; please see our Order Placing Policy. Whether you make a profit or loss will depend on the prices set by the Derivative Provider and fluctuations in the underlying financial instrument ( Underlying ) to which your Dealing Service relates. You are appointing TMS with discretionary authority to manage your account with a view to achieving the investment objective. TMS s belief in its ability to achieve the investment objective is based on historic performance of this and similar programme but market movements are unpredictable and accordingly there can be no guarantee that the investment objective will be achieved or that you will receive your money back. In certain circumstances your losses in connection with Dealing Services may be unlimited. For instance, if the programme shorts a market and the price rises, it is impossible to know the limit of your potential losses until the programme exits the transaction. You must ensure that you understand the potential consequences of the programme and be prepared to accept that degree of risk. Dealing Services are not necessarily executed on a recognised or designated investment exchange. If you open a transaction with a Derivative Provider, you are likely to have to close it with that broker. You will not necessarily acquire the Underlying or any rights or delivery obligations in relation to the Underlying as Dealing Services are usually settled only in cash. Transactions which settle in a currency other than your base currency may be affected by the conversion of any profit or loss into your base currency. Dealing services are legally enforceable. Client Classification For the purposes of the FCA Rules, TMS will classify you as a Retail Client unless you have elected to be treated as a Professional Client and TMS are satisfied as to your knowledge and experience in the products being traded. Page 10

11 Order Placing Policy Purpose The FCA Rules require that when executing trades in securities for or on behalf of its clients, a firm must have policies and procedures in place to ensure Best Execution. As TMS does not execute trades, instead it merely passes orders to the Derivative Provider appointed by you, it does not have a Best Execution policy but does have in place this order placing policy. You should review this policy in conjunction with the Best Execution policy that will have been provided by the Derivative Provider. When placing an order with, or transmitting an order to, another entity for execution, TMS is required to take all reasonable steps to obtain the best possible result for its clients taking into account the Execution Factors. TMS is required to establish and implement effective arrangements for complying with its obligations to take all reasonable steps to obtain the best possible result for its clients. Scope TMS s order placing policy applies to all clients in the programme. TMS s order placing policy applies where TMS receives and transmits client orders to the Derivative Provider for execution. How TMS seeks to obtain the best possible result In seeking to obtain the best possible result for its clients, TMS will place all orders with the Derivative Provider. How TMS s approach achieves the best possible result The instruments that are traded by TMS in the programme are highly liquid and trade in very high volume and accordingly the any price advantage that could be obtained from seeking alternative Derivative would be minimal. The dealing charges are fixed by the Derivative Provider that is appointed by you. As price and dealing charges are fixed, TMS places your orders with the Derivative Provider so as to ensure the speed of execution is as fast as possible and the trade will settle promptly. This approach achieves the best possible result since it means once an investment decision is made the decision can be implemented as soon as practicable reducing the potential impact of market movements after the decision is made. Monitoring TMS will review its order placing arrangements and this order placing policy annually and whenever a material change occurs that affects TMS s ability to continue to achieve the best possible result on a consistent basis using the Derivative Providers included in TMS s order placing policy. TMS will notify clients of any material changes to its order placing policy. Anti-Money Laundering Supporting Documentation To satisfy our legal requirements in compliance with the Terrorism Act 2000 and the Proceeds of Crime Act 2002, we are required to check the identity and address of all applicants of TMS. In order to do this, we require one document proving your identity and one document proofing your current address. Please see suitable supporting documentation below: Proof of Identity (UK Residents) 1. Current Passport showing a clear picture and your standard signature Page 11

12 2. Current UK driving licence showing a clear picture and your standard signature 3. Other official identification card showing a clear picture and your standard signature (e.g. armed forced) 4. Firearms certificate showing a clear picture and your standard signature Proof of Address (UK Residents) 1. Copy of Building society, bank account statement or passbook received within the last 3 months. (We cannot accept Credit Card Statements) 2. Copy of Utility Bill (e.g. water, gas, electricity & telephone) received within the last 3 months. (We cannot accept mobile phone statements) For security reasons, do not send an original passport or driving licence, a photocopy will suffice. Please ensure the copy is of good quality and clearly shows the photo and all text. Failure to send the correct documentation will result in a delayed application. If you are resident outside the European Union, we may require extra documentation. If you have any questions or concerns regarding your supporting documentation, please contact TMS s Money Laundering Reporting Officer (MLRO), Adrian Buthee on +44 (0) Complaints Information In the unlikely event of you having any reason to feel dissatisfied with any aspect of our service, in the first instance you should contact our client services team on or [email protected]. If our client services team is unable to resolve the matter you may refer it as a complaint to our compliance department. Please set out the complaint clearly, ideally in writing. The compliance department will carry out an impartial review of the complaint with a view to understanding what did or did not happen and to assess whether we have acted fairly within our rights and have met our contractual and other obligations. A full written response will be provided within eight weeks of receiving the complaint. Please write to: [email protected] or Compliance Department TMS Capital Limited The Innovation Centre University Way Cranfield Beds MK43 0BT If you are classified as a retail client, and you do not feel that your complaint has been resolved satisfactorily by the compliance department, you are able to refer your complaint to the Financial Ombudsman Service. The Financial Ombudsman Service is an independent organisation that was established to resolve disputes between financial institutions and their customers. Details of the Financial Page 12

13 Ombudsman Service will be provided by the Compliance department in their final response to your complaint. Any reference to the Financial Ombudsman Service must take place within six months of the Compliance department's final response letter, and you should also note that the Financial Ombudsman Service will not consider a complaint until we have had the opportunity to address the complaint. The address of the Financial Ombudsman Service is: Financial Ombudsman Service South Quay Plaza 183 Marsh Wall London E14 9SR Managed Account Investment Agreement It is agreed that: The client establishes with the Derivative Provider, which has been selected by both you and TMS, a margin trading account in the amount of. The client hereby constitutes and appoints TMS as his/her agent and attorney-in-fact, with full power and authority, to buy, sell and trade in the Investment Programme(s)/Account(s) specified on page 1 according to conditions set out by the Derivative Provider in documents and contracts to be signed between the client and the Derivative Provider on margin or otherwise, for the client s account and risk. Such transactions may be of any nature and shall relate to all such instruments which are now traded, or which may be traded within the definition(s) of the Investment Programme(s)/Account(s) specified. The Derivative Provider is accordingly authorised and empowered to follow the instructions of TMS, as agent and attorney-in-fact for the client, in every respect with regard to any such trades, purchases or sales, on margin or otherwise, and the client hereby ratifies any and all transactions, trades or dealings effected for the client by TMS. Instruments Traded No transactions are allowed other than the transactions listed below, except with the precise written instructions of the client. Rolling Spot Foreign Exchange The client acknowledges that in interbank trading the Derivative Provider generally acts as principal in the transaction and that he includes his anticipated profit (the spread between the bid and the offer) and in some instances a transaction charge, in the prices he quotes for such a contract. The client understands that interbank market transactions, not being of standard size, are subject to individual negotiation between parties involved, and that the interbank market is not a formally organised exchange but an informal network of trading relationships among world participants, which include primarily central banks, major commercial banks, investment brokers, securities brokers and dealers, pension funds, insurance companies, multinational corporations, investment funds, hedge funds and sophisticated individuals. Risk Threshold Managed Accounts Only Should losses in the Account exceed 30% of the Total Trading Level as at the end of any trading day (5.30 UK time) TMS will liquidate any and all open positions as soon as possible, cease trading in the Account and confer with the client about further action. However, TMS cannot guarantee in any capacity that this risk threshold will not be exceeded by any financial amount with due consideration to fast Page 13

14 moving market conditions and slippage over which TMS may have no material control, and hereby indemnifies itself against any resultant losses of any amount beyond the risk threshold specified herewith. Profits Profits shall not be used for expanding the trading parameters of the client s Account without the client s express permission. The client may withdraw profits at any point but TMS must be notified. Any profits withdrawn will correspondingly reduce the client s Net Peak Value of the Account. Investment Objective The investment objective of the Account is to achieve speculative gains through the trading of instruments under the section Instruments Traded above. There can be no assurance that the investment objective will be achieved. Risk Acknowledgement The client herewith confirms that trading in any of the Investment Programmes/Accounts aforementioned involves a considerable degree of risk of loss and is suitable only for persons who can assume such risk. All of the financial instruments specified within this agreement are of a contingent liability in nature. The client will or maybe liable to make future payments (other than charges, and whether or not secured by margin) to the Derivative Provider when the transaction falls to be completed or upon the earlier closing out of the client s position. The client also hereby acknowledges that the investment approach(es) adopted by TMS may necessitate a high degree of transactions and resultant commission charges payable by the Account. The client understands TMS s trading strategies are aimed at long term capital appreciation and should judge performance on the basis of at least 12 months. Change of Account size The client may increase the Investment in the Account by communicating with TMS by or letter his intention to do so but TMS will not be permitted to trade an increased trading size until funds are confirmed as cleared with the Derivative Provider. Default currency of the Account The default currency in which account and performance reports will be issued by the Derivative Provider will be the currency specifically stated when then account was set up, although the Derivative Provider may issue statements in the currency in which the relevant instrument is/are denominated. Currency conversions from one currency into another will be conducted at the discretion of the Derivative Provider or at the direction of TMS for month ending-accounting purposes at the prevailing bid/offer spread dictated by the Derivative Provider. The client, however, may agree with TMS that the Account be calculated in the currency of choice upon the prior agreement of both TMS and the Derivative Provider. Obligations and Rights a) The client confirms that the client understands the financial risks that can be the result of transactions executed in the context of this Agreement; in particular, the client confirms that he/she understands the volatile character of the Investment Programmes/Account selected. b) Any credit balances available in the client s cash Account can only be withdrawn after the settlement of the transactions in process; the client undertakes to pre-advise TMS of any withdrawals that would cause the overall balance in the Account to fall below the amount initially deposited at the time of the Account opening. c) The client acknowledges that he does not have the intention to actively involve him/herself in the management exercised for his/her account by TMS; the client will confirm in writing any order that he/she wishes to execute for his/her Account and will not hold TMS responsible for the possible consequences for the performance of the Account. d) TMS is expected to dedicate its care, skill and experience in obtaining a good execution of the mandate that has been given to it, while acting according to prevailing professional standards. Page 14

15 Any loss of value on any specific investments or transactions will be born by the client. TMS declares to be in complete compliance with the laws and regulations that apply to its activities. e) This Agreement is explicitly linked to the signing parties; any cause affecting the full capacity of the client and TMS puts immediate end to this Agreement, as soon as such a clause comes to the knowledge of one of the parties; however, in this event any transactions already in process will be executed and settled. f) TMS cannot be held responsible in case of breach by the Derivative Provider of the Derivative Provider s obligations to the clien to supply certain information. g) The client and TMS are committed to keep any information that they may have received in the execution of this Agreement completely confidential. Reporting The client shall receive from TMS a quarterly report listing the quarter-end valuation of the Account (marked-to market, based on the account information supplied by the Derivative Provider), his profit (or loss) for the quarter and resultant performance fee, if any. The client is advised that transactions conducted on behalf of the Account may be monitored through the standard reporting procedure of the appointed Derivative Provider and that TMS does not undertake to compile detailed transaction reporting on behalf of the Account, other than for the purpose of Net Asset Valuation performance fees. Indemnification The client hereby agrees to indemnify and hold harmless TMS, its officers, directors, shareholders and employers from any and all trading losses, costs, expenses (including reasonable legal fees), indebtedness and liabilities arising there from, including any acts, omissions or errors of the Derivative Provider in executing orders in the Account. Account Forms with the Derivative Provider The client acknowledges that he/she has to sign separate Account Opening Forms for the relevant Investment Programme/Account specified, with the Derivative Provider. Notifications and Communications Communications may be sent to the client at the address(s) and fax numbers given above, or at such other address, or fax number, as the client may hereafter give TMS in writing, and all communications so sent, whether by mail, fax, , or otherwise, shall be deemed given to the client personally, whether actually received or not, the client agrees to advise TMS promptly in writing of any change in address, phone number, fax number, or address. Duration and Termination The client, giving notice by , may terminate this Agreement at any time. Any such notice shall be acknowledged by TMS via , and all positions in the account shall be liquidated as soon as practically possible with the Derivatives Provider. The client will remain responsible vis-à-vis the Derivative Provider for the transactions that were initiated by TMS before the termination. Continuous Agreement This Agreement and its validity, construction, enforcement and provisions shall be continuous until revoked as per paragraph 12 (Termination), shall cover individually and collectively all account(s) which the client may open or reopen with TMS and shall inure to the benefit of TMS, its successors, and assigns by merger, consolidation or otherwise. Waivers No waiver of any provision of this Agreement shall be deemed a waiver of any other provision, or a continuing waiver of the provisions so waived. Page 15

16 Applicable Law In the case of dispute with regards to the interpretation, the application or the execution of this mandate, the parties agree to recognise the law of the United Kingdom as applicable. Fees In consideration for TMS s services hereunder the client agrees to have deducted directly from the Account for the benefit of TMS, 25% of any Net New Profits (the Performance Fee ) realised on behalf of the Account, calculated at the closing valuation of the Account at the close of the last business day of each calendar month. (This calculation will be made after the deduction of all execution transaction costs and any interest rate credits/debits which may be applicable to the Account, have been taken into consideration). These charges (if any) will be payable to TMS within 7 calendar days following the previous months end close of business to an account held at the Derivative Provider for that purpose. If the Account incurs a net loss after a performance fee is paid, TMS will retain the performance fee already paid. TMS will not receive any further performance fees until new profits accumulated for the Account are greater than the previous Net Peak Value (defined as being the value of the Account at the end of the most recent calendar month for which a Performance Fee, less the Performance Fee paid, less any withdrawals by you and add any additional margin deposited by you) of the Account. The client also agrees to have deducted directly from the Account for the benefit of TMS, 2% Annual Management Fee of the account value, calculated at the closing valuation of the Account at the close of the last business day of each calendar month (0.166% per month). (This calculation will be made after the deduction of all execution transaction costs and any interest rate credits/debits which may be applicable to the Account, have been taken into consideration). These charges will be payable to TMS within 7 calendar days following the previous month s end close of business to an account held at the Derivative Provider for that purpose. In addition, TMS is entitled to receive a share of the transaction fees charged to you by the Derivative Provider. Each position is subject to a Dealing Charge. These dealing charges are charged per trade, when opening and closing the transaction. You will see these fees below. The client agrees to pay these fees to the Derivative Provider. TMS will not earn from any commission or mark-up charged to your account. Market Forex Dealing Charge $2 per $100,000 USD traded For example: If a position is opened with a notional value of $100,000, the dealing charge will be $2. Non-Exclusive Service and Conflicts of Interest TMS s services are not exclusive and TMS shall be free to render the same or similar services to others, in any form it chooses, even if based on the same advice. The client acknowledges that the service given by TMS is the confidential property of TMS and the client will not disclose the same to third parties without the prior written consent of TMS. Where TMS shares in commissions or commission rebates from another firm or third party this information will be provided on written request. In providing the service, there may arise conflicts of interest between TMS and you or between you and other clients of TMS. TMS will always seek to resolve such conflicts of interest fairly and in your best Page 16

17 interests. Where it is unable to do so TMS will not act until it has explained the conflict and sought instructions from you as to how to resolve the matter. Miscellaneous Matters The relationship between the client and TMS shall be limited to that of Advisor and Client for the purposes of managing the Account for the benefit and risk of the client. TMS is an independent contractor and this Agreement shall not be deemed to establish a joint venture between TMS and the client and nothing herein contained shall be construed as creating a general partnership or similar relationship or as the authorising of any party to act as a general agent, or to enter into any contract or other agreement on behalf of any other party. No party shall be liable to any third party in any way for any such unauthorised contract or other negligent act or omission of the other party. The client is fully aware of the risks involved and associated with the speculative operations requested, authorised and instructed herein and the client acknowledges, understands and accepts the consequences of the Power of Attorney hereby granted and recognises that any losses shall be to the client s Account and at the client s expense. This agreement may be terminated, at any time, by either party by giving twenty-four hours written notice to the other party at any time during the term of this agreement. In the event that any provisions of this Agreement are invalid for any reason whatsoever, all other conditions and provisions of this Agreement shall, nevertheless remain in full effect.. Page 17