Terms and conditions applicable between IMC's Dutch ETF desk and its approved counterparties

Applicability

These terms and conditions ("Terms") govern the relationship between the ETF desk of IMC Trading B.V. located in Amsterdam, the Netherlands ("IMC") and a counterparty that has been approved by IMC ("Counterparty"), including (i) each individual transaction in financial instruments (such as Exchange Traded Products (“ETP’s”) and shares) entered into between IMC and a Counterparty, and (ii) a Counterparty’s access to and use of the IMC Trading System (as defined in Part IV below).  

These Terms consist of four parts.

Part I of these Terms contain general terms that are applicable to (i) the relationship and transactions entered into between IMC and a Counterparty on a request-for-quote (“RFQ”) basis and/or via IMC acting in its capacity of Systematic Internaliser (“SI”), and (ii) a Counterparty’s access to and use of the IMC Trading System.

Part II of these Terms contain specific terms applicable to trading on an RFQ basis.

Part III of these Terms contain specific terms applicable to IMC acting in its capacity of SI.

Part IV of these Terms contain specific terms applicable to the IMC Trading System.

These Terms are the only terms that govern the relationship and transactions entered into between IMC and a Counterparty, and a Counterparty’s access to and use of the IMC Trading System. Any other terms and conditions, including terms and conditions of a Counterparty, shall not apply. Notwithstanding the above, IMC will abide by any applicable rules of any trading venue that is used by IMC and a Counterparty to enter into a transaction.   

When entering into a transaction, or entering into negotiations that may lead to a transaction, with IMC, or when accessing or using the IMC Trading System, a Counterparty unconditionally accepts and agrees to be bound by these Terms and any amendments thereto, as available at https://www.imc.com/eu/terms-conditions-etf-desk/.

These Terms may be amended from time to time. Any amendments to these Terms will be notified to a Counterparty by email and will be applicable thirty (30) calendar days after such notification.

These Terms do not apply to transactions entered into between a Counterparty and any other trading desk of IMC.

IMC Trading B.V. is registered as an investment firm with the Netherlands Authority for the Financial Markets to trade for its own risk and on its own account as market maker: https://www.afm.nl/en/professionals/registers/vergunningenregisters/beleggingsondernemingen/details?q=imc+trading&index=0&id=6308F58C-68A1-E011-A203-005056BE6692&all=1.

These Terms were last amended in August 2019.

PART I – GENERAL TERMS

Relationship

A Counterparty acknowledges and agrees that:

  • IMC always acts as principal, for its own risk and account, in each transaction entered into with a Counterparty;
  • nothing in these Terms is intended to, or shall be deemed to, establish any partnership, joint venture or agency relationship between IMC and a Counterparty; any transaction between IMC and a Counterparty will not create or imply a client, agency or fiduciary relationship;
  • IMC does not provide any investment or ancillary services, as defined in the Markets in Financial Instruments Directive ("MiFID II", 65/2014/EU, as amended, substituted or replaced from time to time). This means that, for instance, IMC is not required to apply, and does not apply, the MiFID II conduct of business and organizational rules to the relationship and transactions entered into between IMC and a Counterparty, and to a Counterparty’s access to and use of the IMC Trading System;
  • as a result of what is stated in the previous bullet:
  1. rules on client order handling and conflicts of interest do not apply to the relationship and transactions entered into between IMC and a Counterparty, and to a Counterparty’s access to and use of the IMC Trading System;
  2. IMC does not owe a Counterparty a ‘best execution’ obligation, and a Counterparty cannot rely on IMC to protect a Counterparty’s interests in relation to the pricing and other elements of a transaction, such as quantity, speed or likelihood of execution and settlement;
  3. although a Counterparty may request IMC to qualify it as a professional client, this does not alter the fact that IMC does not provide an investment service to a Counterparty nor does it alter the fact that IMC is not required to apply, and does not apply, MiFID II conduct of business and organizational rules to the relationship and transactions entered into between IMC and a Counterparty, and to a Counterparty’s access to and use of the IMC Trading System;
  4. IMC is not responsible for any of a Counterparty’s pre- or post-trade obligations, such as reportings (which may be different if IMC acts as SI), disclosures or payment of taxes;
  5. any communications by IMC should not be regarded as investment advice, or a recommendation regarding any particular financial instrument, transaction or course of action, and should not be considered as an offer or the solicitation of an offer to sell, buy or subscribe for financial instruments; and
  6. if IMC acts in its capacity of SI, IMC does not perform the MiFID II investment service of 'execution of orders on behalf of clients' but only deals on its own account. In such case, the previous bullets apply equally;
  • regardless of whether a Counterparty acts as agent for or on behalf of one or more underlying parties, IMC will consider only the Counterparty as its counterparty. Under no circumstances will there be any relationship between IMC and a party for or on whose behalf a Counterparty is acting, whether a client, agency or fiduciary relationship. IMC does not assume nor accept any responsibilities, obligations or liabilities towards any such underlying party; and the Counterparty alone will be liable towards any such underlying party;
  • communications may be recorded, processed, stored and used by IMC for compliance and regulatory purposes, and a Counterparty is entitled to do the same; and
  • IMC will make reasonable efforts to ensure that the details of any transaction agreed between parties and any trade confirmation is communicated correctly to a Counterparty. However, IMC cannot guarantee accuracy and/or completeness, and a Counterparty should always verify the details of any transaction agreed between parties and any trade confirmation.

Costs and charges

IMC does not apply any separate costs or charges to its Counterparties for any transaction entered into between IMC and a Counterparty, for access to and use of the IMC Trading System, or for receipt of Information (as defined in Part IV below). Quotes offered by IMC reflect the net price that IMC will charge its Counterparty. A Counterparty may request IMC to charge the Counterparty a commission in addition.  

Representations and warranties

Each party represents and warrants to the other party that it has all requisite regulatory and legal authority to enter into and be bound by transactions with the other party.

If a Counterparty is a U.S. person as such term is used in the securities laws and regulations of the U.S., and seeks to enter, acting as principal for its own account or as agent for others, into a transaction in securities as defined in the U.S. Securities Exchange Act of 1934, as amended (“Exchange Act”), with IMC, such Counterparty represents and warrants that it is registered with the U.S. Securities and Exchange Commission (“SEC”) as a broker or dealer under Section 15 of the Exchange Act, with each State Securities Commission under the securities laws of each state in which such Counterparty’s activities require such registration, and is a member in good standing of the Financial Industry Regulatory Authority (“FINRA”). 

Each party represents and warrants to the other party that it is not subject to any international sanctions or embargoes.

Each time IMC and a Counterparty enter into a transaction, each party shall be deemed to have made the above representations and warranties to the other party. 

Each party undertakes to promptly notify the other party by email (in case of notifications to IMC to: onboarding@imc.com) if any of the representations and warranties as provided above are no longer correct.  

Liability

Neither party shall be liable to the other party for losses, liabilities, costs and expenses, except for direct losses incurred by a party as a result of the other party’s gross negligence, fraud or wilful default. Neither party shall be liable to the other party for any indirect or consequential damages.

Force Majeure

In case of any circumstances beyond a party’s reasonable control that has an impact on the performance of such party’s obligations vis-à-vis the other party, such party shall (i) promptly notify the other party by email (in case of notifications to IMC to: stockmanager@imc.com), and (ii) perform (part of) its obligations vis-à-vis the other party to the extent that can be reasonably expected from such party in such circumstances.

Confidentiality

Without the prior approval of the other party, neither party shall:

(i)            disclose to any person (other than to (a) persons on a bona fide “need to know” basis, provided that such persons are subject to an obligation of confidentiality, and (b) a Third Party Provider (as defined in Part IV below) that has been approved by IMC) any Information (as defined in Part IV below) and any Orders (as defined in Part IV below) transmitted by a User (as defined in Part IV below) through the IMC Trading System, unless such party is required to do so by applicable law or a competent authority or as permitted under these Terms;

(ii)           disclose to any person (other than to any end clients of the Counterparty for whom (part of) the relevant transaction was entered into by the Counterparty) the terms of any transaction negotiated or agreed between parties or a trade confirmation (including in both cases, IMC’s MIC code) unless such party is required to do so by applicable law or a competent authority;

(iii)          disclose to any person (other than to any (prospective) end clients of the Counterparty) the name of IMC as market maker or SI engaged by the Counterparty, unless the Counterparty is required to do so by applicable law or a competent authority; or

(iv)         use the name or the logo of the other party for any purposes.

Privacy statement

IMC’s privacy statement is available here.

Governing law and jurisdiction

These Terms, as amended from time to time, each transaction entered into between IMC and a Counterparty, a Counterparty’s access to and use of the IMC Trading System and Information, any non-contractual obligations, and any disputes are governed by Dutch law.

The competent court in Amsterdam, the Netherlands, shall have exclusive jurisdiction to settle any dispute.

PART II – RFQ TRADING

Introduction

A Counterparty may request IMC for a quote for a financial instrument via any of these trading venues: https://www.imc.com/eu/RFQ_venues/ (either on-exchange or off-exchange), or via telephone, chat or other recorded medium.

In an RFQ for ETP’s, a Counterparty may request that IMC acts as an SI. IMC will always act in its capacity of SI when entering into a transaction in shares. In both cases, the terms included in Part III of these Terms also apply.  

Transactions

A Counterparty acknowledges and agrees that:

  • neither IMC nor a Counterparty is required to enter into a transaction; and
  • a transaction with IMC shall only be legally binding for both parties as soon as both parties have agreed upon all transaction details as recorded during the trade negotiations process (“Agreed RFQ Transaction”).

IMC reserves the right to cancel or adjust an Agreed RFQ Transaction if it contains a quoting error due to a typographical error or obvious mistake, and such cancellation or adjustment will be binding between IMC and a Counterparty, provided that IMC notifies a Counterparty of such cancellation or adjustment as soon as possible but no later than the close of the relevant market on the date of the Agreed RFQ Transaction.

A Counterparty may request IMC to confirm an Agreed RFQ Transaction by means of a trade confirmation.

Unless agreed otherwise, IMC will submit Agreed RFQ Transactions to its clearing member for settlement on the basis of delivery versus payment, in accordance with relevant market standards and IMC’s standard settlement instructions (https://www.imc.com/eu/settlement-instructions/).

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Authorised traders

A Counterparty may request IMC to provide it with a list of persons who are authorised to enter into transactions on behalf of IMC (“IMC Authorised Traders”). A Counterparty may assume that each IMC Authorised Trader is individually authorised to enter into binding transactions with a Counterparty without any further inquiry.

A Counterparty may provide IMC with a list of persons who are authorised to enter into transactions on behalf of the Counterparty (“Counterparty Authorised Traders”). IMC may assume that each Counterparty Authorised Trader is individually authorised to enter into binding transactions with IMC without any further inquiry. A Counterparty shall promptly notify IMC by email (to: onboarding@imc.com) in case of any changes to Counterparty Authorised Traders.

If no list of IMC Authorised Traders or Counterparty Authorised Traders has been shared, the following will apply: when a person reasonably appears to be authorised to enter into transactions on behalf of IMC or a Counterparty, the other party may rely on such appearance to enter into binding transactions with IMC or a Counterparty without any further inquiry.

PART III – SI TRADING

IMC is registered as an SI (as defined in article 4(1)(20) MiFID II) in the following financial instruments: https://www.imc.com/eu/si-traded-securities/, under the Market Identifier Code (MIC): IMCT.

IMC is included in ESMA’s SI register: 
https://registers.esma.europa.eu/publication/details?core=esma_registers_upreg&docId=ae31941.

A Counterparty may enter into transactions with IMC in IMC’s capacity of SI (i) on an RFQ basis, in which case the terms included in Part II of these Terms also apply, or (ii) via the IMC Trading System, in which case the terms included in Part IV of these Terms also apply.  

As an SI, IMC does not perform the MiFID II investment service of 'execution of orders on behalf of clients' but only deals on its own account.

IMC will comply with the MiFID II rules that are applicable to IMC as an SI. In each transaction entered into between a Counterparty and IMC in IMC’s capacity of SI, IMC will always be considered to act in the capacity of executing client orders and a Counterparty will always be considered to act in a client capacity. Any such transaction will be made public by IMC through an APA under article 20 MiFIR and RTS 1. In addition, IMC will publish on its website quality of execution reports under article 27 MiFID II and RTS 27.

Since IMC has voluntarily opted-in to the SI-regime, IMC retains the right, at any time and in its sole discretion, to cease being an SI in a particular financial instrument.

PART IV – IMC TRADING SYSTEM

Introduction

IMC operates an electronic trading system (“IMC Trading System”). A Counterparty that has been granted access by IMC to the IMC Trading System (“User”) may, subject to these Terms, (i) transmit bids to purchase or offers to sell financial instruments (“Orders”) through the IMC Trading System in response to indications of interest (“IOI”) being streamed by IMC through the IMC Trading System and (ii) receive Information (as defined below).     

Information means any data or other information in connection with IMC’s operation of, or a User’s use of, the IMC Trading System, including without limitation, IOI’s, updates, modifications, confirmations, acknowledgements, cancellations, executions or reports, which is transmitted to a User by IMC or a Third Party Provider.  

A User shall not be required to report any usage of Information to IMC. 

IMC will always act in its capacity of SI in each transaction in financial instruments executed on the IMC Trading System. As a result, the terms included in Part III of these Terms also apply.

Access to IMC Trading System

IMC may, in its reasonable discretion, grant access to the IMC Trading System to a User.

Prior to access to the production environment of the IMC Trading System being granted, a User must (i) perform conformance testing in relation to such User’s utilisation to the IMC Trading System, and (ii) comply with any other reasonable request of IMC in relation to User’s utilisation of the IMC Trading System. Utilisation of the IMC Trading System is subject to IMC’s technical specification guide, as may be amended from time to time and as available here.

Upon granting access to the IMC Trading System to a User and for as long as IMC allows such User to access the IMC Trading System, IMC grants to the User, subject to these Terms, a personal, limited, revocable, non-exclusive, non-transferable and non-sublicensable license to access and use the IMC Trading System for the purposes of transmitting Orders in response to an IOI, and to receive Information (“License”). 

A User can access the IMC Trading System by logging in with access details provided to the User by IMC (“Access Details”).

A User shall take reasonable security precautions to prevent unauthorised access to or use of the IMC Trading System. A User acknowledges and agrees that it is solely responsible for any unauthorised use of the IMC Trading System, and a User shall immediately cease use of the IMC Trading System if it becomes aware of, or suspects, a technical failure or security breach of the IMC Trading System or User’s access thereto, or if it is notified by IMC. A User shall promptly notify IMC by email (to: europeriskmanagement@imc.com) of any suspected or actual failure or breach of security.

IMC shall have the right, in its reasonable discretion, to suspend or terminate access of a User to the IMC Trading System and/or the Information and to terminate the License.

Use of a Third Party Provider

A Third Party Provider means a third party provider that provides software, connectivity and/or hosting services to a User (“Third Party Provider Services”) in order for such User to interface and connect with the IMC Trading System through such Third Party Provider and/or to receive Information or Derived Data (as defined below) through such Third Party Provider.     

Derived Data means a work or product created or derived from the Information by a Third Party Provider, which Derived Data is transmitted by such Third Party Provider to a User.

IMC must approve any Third Party Provider prior to a User using such Third Party Provider to interface and connect with the IMC Trading System and/or to receive Information or Derived Data. IMC may determine in its reasonable discretion whether or not to approve a Third Party Provider. 

If a User uses a Third Party Provider, such User acknowledges and agrees that:

  • IMC shall not be responsible for any such Third Party Provider’s compliance with applicable law;
  • IMC has no control over, or responsibility for, any Third Party Provider Services or the scope, timing, content, method of delivery or any other aspect of Information distributed to a User through a Third Party Provider or a User’s use of a Third Party Provider to interface and connect with the IMC Trading System;
  • Derived Data is a work or product created or derived from the Information by a Third Party Provider, and transmitted by such Third Party Provider to a User, without any involvement whatsoever of IMC. A User further acknowledges and agrees that what is stated in the previous bullet applies mutatis mutandis to Derived Data;
  • it will use the Third Party Provider at its own risk and expense;
  • IMC shall not be liable to a User for any losses, liabilities, costs and expenses incurred by such User due to its use of a Third Party Provider;
  • IMC’s relationship with a Third Party Provider will be subject to the “Terms and conditions applicable between IMC and third party providers in relation to the IMC Trading System” (“Third Party Terms”). A User further acknowledges and agrees that the Third Party Terms are not applicable to a User, nor is a User granted any rights under the Third Party Terms with respect to its use of a Third Party Provider to interface and connect with the IMC Trading System and/or to receive Information or Derived Data; and
  • IMC retains the right, at any time and in its reasonable discretion, to no longer allow a User using a Third Party Provider to interface and connect with the IMC Trading System and/or to receive Information or Derived Data.

Use of IMC Trading System and Information

A User represents and warrants that:

  • it will only use the IMC Trading System and the Information for its own internal business purposes;
  • it will not provide, directly or indirectly, access to the IMC Trading System to any person other than User’s employees, a Third Party Provider approved by IMC or as otherwise permitted by IMC; and
  • it will not use the IMC Trading System or the Information in a manner that attempts to reverse engineer, discover, or replicate IMC’s trading strategies, models and infrastructure or for any purpose other than as permitted under these Terms;

A User acknowledges and agrees that:

  • IMC’s intellectual property rights in or in relation to, and ownership of the IMC Trading System, including its design, formulas, format and processes, and the Information (“IMC Intellectual Property”) is proprietary and confidential to IMC. A User further acknowledges and agrees that it has no interest in, or right, claim or title to the IMC Intellectual Property;  
  • nothing in these Terms constitutes an undertaking by IMC to maintain the IMC Trading System in the present form or configuration. IMC, in its sole discretion, may from time to time modify the IMC Trading System. Any modification that has an impact on Users will be notified to Users by email and will be applicable thirty (30) calendar days after such notification, provided that any modification that has an impact on Users may be made effective immediately on notice to Users where in IMC’s reasonable opinion it is necessary to permit the IMC Trading System and/or IMC to comply with any applicable law, or to facilitate the continued operation or use of the IMC Trading System; and
  • IMC retains the right, at any time and in its sole discretion, to discontinue the availability of a financial instrument or make additional financial instruments available for trading through the IMC Trading System.

Orders & Transactions

A User acknowledges and agrees that:

  • it is responsible for any and all Orders and instructions transmitted through the IMC Trading System under its Access Details;
  • all instructions or Orders transmitted to the IMC Trading System by it or any person accessing the IMC Trading System using the User’s Access Details may be relied upon by IMC as being duly authorised, valid and binding, without any further inquiry;
  • it will only submit Orders through the IMC Trading System with the sole intention to have such Orders accepted by IMC, and not for any other purposes;
  • IMC is not and will not be, by virtue of providing access to the IMC Trading System, providing any investment or ancillary services, as defined in MiFID II. As a result, IMC is not responsible for determining whether any Order that a User transmits through the IMC Trading System is suitable, appropriate or advisable;
  • IMC has no obligation to accept an Order that a User transmits through the IMC Trading System;
  • IMC has no responsibility for transmissions that are inaccurate or not received by IMC, and IMC may accept any Order on the terms actually received by the IMC Trading System;
  • IMC is the counterparty to each transaction executed on the IMC Trading System. The IMC Trading System does not match Orders between Users and does not route Orders externally; and
  • a transaction with IMC shall only be legally binding for both parties as soon as IMC has accepted the Order transmitted by the User through the IMC Trading System (“Agreed Transaction”).

IMC reserves the right to cancel or adjust an Agreed Transaction if it contains a quoting error due to a typographical error or obvious mistake, and such cancellation or adjustment will be binding between IMC and a User, provided that IMC notifies a User of such cancellation or adjustment as soon as possible but no later than the close of the relevant market on the date of the Agreed Transaction.

IMC will confirm an Agreed Transaction by means of a trade confirmation.

Unless agreed otherwise, IMC will submit Agreed Transactions to its clearing member for settlement on the basis of delivery versus payment, in accordance with relevant market standards and IMC’s standard settlement instructions (https://www.imc.com/eu/settlement-instructions/).