Terms and Conditions

Last updated: Wednesday, March 15, 2017
  1. Background
    1. Falcon Commodity Markets Limited ("Falcon") is authorised and regulated by the Financial Conduct Authority (the "FCA") and is a member of the National Futures Association (the "NFA"). Falcon is registered in England No. 9903865.
    2. These Terms and Conditions (also referred to as the "Agreement") set out the agreement by which Falcon will provide the "Services" (the services falling within the scope of Clause 2 below) to you (the "Customer"). By using our services, or by clicking the “I Accept” button when logging into the Falcon Physical Screen, or by signing this Agreement below, these Terms and Conditions are deemed to have been accepted.
    3. For the purposes of the FCA rules, we shall treat you as a Professional Client when providing our Services to you. You have the right to request a different client categorisation offering a greater level of regulatory protection, but in that event, we may not be able to provide our Services to you. You are responsible for monitoring and keeping us informed of any changes which may affect your client categorisation.
    4. This Agreement supersedes any previous agreement between the Customer and Falcon on the same subject matter.
    5. We will perform our obligations with reasonable skill and care, subject to applicable laws and requirements.
  2. Broking Services
    1. We will provide you broking services on a name-passing basis in physically and financially settled commodities, including Fertilizer products (the "Transactions").
    2. You agree that at the time you instruct us to arrange any Transaction for you, such Transaction will be subject to these Terms and Conditions.
    3. We deal on an arranging-only basis and do not advise on the merits of any given Transaction. In asking us to arrange any Transaction, you the Customer represent that you have been solely responsible for making your own independent appraisal and investigations into the risks of the Transaction. We give you no warranty as to the suitability of the products traded under these Terms and Conditions and assume no fiduciary duty in our relations with you.
    4. You may give us instructions by telephone, email, IM, or SMS (collectively "Voice Instructions"). If you give instructions by telephone, your conversation may be recorded. When giving us a Voice Instruction you must specify if the price is firm or indicative. For the avoidance of doubt, all Voice Instructions will be deemed indicative unless you have notified us otherwise.
    5. We may, at our discretion, give individual persons ("Users") of the Customer access to Falcon’s web based physical trading platform (the "Falcon Physical Screen"). All prices, quotes and/or instructions entered by a User in the Falcon Physical Screen are firm prices and can be transacted.
  3. Falcon Physical Screen
    1. Where Falcon, at its discretion, provides a Customer access to the Falcon Physical Screen, Falcon grants the Customer (and each User) a limited non-exclusive, non-transferable, revocable licence to use and access the Falcon Physical Screen in accordance with these Terms and Conditions.
    2. To access the Falcon Physical Screen, Falcon will provide a User with a username and password (a "User Login"). The Customer shall maintain and ensure the security and confidentiality of User Logins. The Customer will prevent the unauthorised use of any User Login and will immediately notify Falcon of any suspected unauthorised access to any User Login or to the Falcon Physical Screen.
    3. All bids and offers entered into the Falcon Physical Screen ("Live Orders") are firm bids and offers until effective instructions to withdraw such bids and offers are entered and accepted on the Falcon Physical Screen.
    4. A User may instruct Falcon to enter, remove, amend, hit or take Live Orders on its behalf. All instructions shall be given either or by recorded telephone lines or by electronic messaging systems directly to the broker responsible for the Transaction and shall be deemed received by Falcon only when actually received and read by the broker responsible for the Transaction. All instructions shall only be effective when entered onto the Falcon Physical Screen by Falcon.
    5. A User's Live Orders may at any time be cancelled by Falcon for any reason. Such reasons shall include but not be limited to a technical failure of the Falcon Physical Screen.
    6. Falcon may in its absolute discretion suspend or terminate at any time a Customer's or a User's access to the Falcon Physical Screen.
    7. The Customer must notify Falcon of the Customer's credit matrix specifying the counterparties with whom a Customer will trade, as amended from time to time (the "Credit Matrix"). The Customer may amend their Credit Matrix by giving notice to Falcon of its wish to do so. Notice to amend will only be accepted by Falcon by electronic message to the email address designated by Falcon for such purpose or such other method as agreed between the parties from time to time. Falcon shall input amendments to Credit Matrix properly received, and such amendments shall be effective only when these amendments have been inputted and accepted onto the Falcon Physical Screen.
    8. The Customer shall be solely responsible for:
      1. All Live Orders transmitted through the Falcon Physical Screen by any of its Users, (or transmitted by Falcon at the request of the Users) regardless of whether a Users’ action was beyond his authority, or whether such transmission was the result of an error, accident, fraud, or similar cause; and
      2. the use of any information or services obtained through or with the assistance of the User Login of any of its Users; and
      3. any and all costs, charges, or expenses incurred in connection with, or as a result of, the use of the User Login of its Users, or any improper or fraudulent action in connection therewith.
  4. Clearing Services
    1. If we agree to do so, we will arrange for your Transactions to be cleared by your clearer. Any Transaction that you have requested to be submitted for clearing will be arranged subject to acceptance at the relevant clearing house.
    2. The Customer will provide Falcon with all reasonable assistance to ensure Falcon can submit cleared Transactions according the relevant clearing house’s reporting rules. Falcon is not liable in any way if it must cancel a Transaction if it is unable to submit a cleared Transaction for whatever reason.
  5. Fees
    1. The Customer shall, for each Transaction concluded, pay brokerage commissions at the rates agreed between Falcon and the Customer from time to time. All brokerage commissions shall be payable within 30 days of receipt of an invoice from Falcon.
  6. Confirmations and Disputes
    1. We will email you trade confirmations on the same day of each Transaction. You will notify us immediately upon receipt of such trade confirmations if you are not in agreement with any trade confirmation or other notification from us. In the absence of such immediate notification by you, the trade confirmation will (in the absence of manifest error) be conclusive and binding on you.
    2. In the event that a Transaction is being queried by a Customer for a manifest error in a Transaction ("Transaction Error") the following procedure shall apply:
      1. The Customer shall notify the counterparty to the Transaction and Falcon they believe that there has been a Transaction Error. Such notification shall be on the same day that the Transaction is concluded. The parties to the Transaction shall seek to reach an agreement in relation to the Transaction.
      2. In the event that the parties to the Transaction are unable within 3 business days of the Transaction to reach an agreement, the parties shall notify Falcon.
      3. Once Falcon has been so notified, Falcon shall make its own determination in relation to the Transaction based on the price at which the transaction was concluded and the then market price. Falcon shall endeavour to resolve the query between the parties amicably.
      4. In the event that the parties do not agree with Falcon’s determination in relation to the transaction then Falcon shall convene a committee to determine the Transaction Error. The finding of this committee shall be binding on both parties to the transaction. Falcon shall not be required to indicate how a member of the committee voted.
      5. The committee shall comprise of companies (other than the companies who were party to the Transaction) selected by Falcon from the main market participants (in Falcon’s view) at the time who are willing to act.
      6. The decision of the committee that the Transaction should be:
        1. unwound; or
        2. implemented as transacted; or
        3. where the committee vote by a majority that the price of the Transaction should be revised, the price of the Transaction shall be revised to the arithmetic average of the prices proposed by all the members of the committee; or
        4. such other decision of the committee as it may in its absolute discretion determine
        shall be final and binding upon the parties.
  7. Confidentiality and Data
    1. The Falcon Physical Screen contains "Confidential Information" (including without limitation copyright, trademarks, underlying software, screen design, layout, look and feel, graphics, order data, trade data and product data) belonging Falcon. The Customer shall take all steps reasonably necessary to preserve and protect the Confidential Information and proprietary interest of the Falcon.
    2. All rights in and to data in connection with the Falcon Physical Screen belong to Falcon and Falcon does not grant the Customer any rights in the data transmitted through the Falcon Physical Screen. The Customer will not make any permanent record of this data nor will it re-distribute this data other than to other Users.
    3. The Customer acknowledges and agrees that any and all intellectual property rights which may subsist in the Falcon Physical Platform (including without limitation copyright, trademarks, underlying software, screen design, layout, look and feel, graphics, order data, trade data and product data) are owned by and shall remain the property of Falcon.
  8. Limitations of Liability and Indemnity
    1. Neither Falcon nor our directors, officers, or employees shall be liable for any losses, damages, costs, or expenses incurred or suffered by you under these Terms and Conditions (or as a result of any Transaction) unless arising directly from our or their respective gross negligence, wilful default or fraud.
    2. You undertake that you will indemnify us and keep us indemnified against all actions, claims, costs and damages (including any compensation or damages paid by us on the advice of our legal advisers to compromise or settle any claim) and all legal costs and other expenses arising out of any Transaction that you enter into pursuant to these Terms and Conditions save for claims, costs and damages resulting from our gross negligence, wilful default or fraud.
    3. Falcon does not warrant that the use of the Falcon Physical Screen will be uninterrupted or error free nor does it make any warranty as to the results that may be obtained from use of the Falcon Physical Screen. The Customer acknowledges that the Falcon Physical Screen may not perform in accordance with any specification provided to the Customer, may not meet the needs of the Customer, may cause loss or distortion of data or may cause the Customer's internal computer system(s) to malfunction.
    4. Falcon’s maximum liability in statute, contract, common law, equity and otherwise concerning its performance and/or obligations under this Agreement shall be no more than an amount equal to 125% of the fees received by Falcon from the Customer under this Agreement.
  9. Customer Warranty
    1. The Customer represents and warrants to Falcon that:
      1. it is duly authorised to enter into these Terms and Conditions and has received all due authorisation and corporate power necessary to enter into these Terms and Conditions; and
      2. a User is duly authorised by the Customer to enter into Transactions on the Falcon Physical Screen on a Customer's behalf.
  10. Term
    1. These Terms and Conditions may be terminated or suspended by either party at any time by giving the other party one month's written notice of its intention to terminate.
    2. Termination or suspension shall not relieve the Customer from any payment obligations due and owing to Falcon.
  11. General
    1. Neither party shall be liable for any failure in performance of these Terms and Conditions if such failure arises out of causes beyond its control including but not limited to acts of God or the public enemy, acts of a civil or military authority, fire, flood, labour dispute, unavailability or restriction of computer or data processing facilities or of energy supplies, communications failure, riot or war.
    2. Save where expressly provided to the contrary under these Terms and Conditions, notices may be given orally, and such oral notices are effective immediately. The contents of the oral notice shall, as soon as practicable, be confirmed by an e-mail communication of the contents of the notice.
    3. Any notice or communication to be made under or in connection with these Terms and Conditions in writing (other than modifications) shall be addressed to the party to whom such notice or communication is to be given and shall be deemed to have been delivered to such party when delivered to the registered office of such party 48 hours after being deposited in the post postage pre-paid in an envelope addressed to it at that address. Notices may also be delivered via email and shall be deemed to have been delivered at the time of transmission.
    4. The Customer may not assign or transfer these Terms and Conditions or any rights, obligations or liabilities hereunder, whether in whole or in part, without Falcon’s prior written consent.
    5. These Terms and Conditions are governed by and shall be construed in accordance with the laws of the England and Wales and all disputes in connection with these Terms and Conditions shall be subject to the non-exclusive jurisdiction of the English and Welsh courts.