Terms of Business
These terms of business (including the “Client Acceptance Form”), set out the entire
terms upon which we will provide the Services to you and supersede any agreement
previously in force concerning the matters covered by these terms of business (“TOBs”).
In the event of a conflict between these TOBs and any other document, these TOBs shall
prevail.
1
OUR DETAILS
Exane Ltd ("we" and "us" in these TOBs) is authorised and regulated by the Financial
Services Authority ("FSA"). Our registered office is 1 Hanover Street, London, W1S
1YZ.
2
THE SERVICES
2.1
We agree to provide you with general investment advisory and dealing services (the
"Services") in respect of Investments as defined below. We may also provide other
services if agreed between us.
2.2
We will provide such investment services as may be agreed from time to time between
us, including purchasing and selling investments (as defined in the Financial Services
and Markets Act 2000) (the “Investments”).
2.3
All dealing will be on an execution-only basis. Accordingly, we do not make personal
recommendations and so are not in a position to consider the suitability of transactions.
Except in circumstances where we expressly agree otherwise, any comments we make
about the merits of Investments relate to the intrinsic merits of the Investment generally
and do not imply that the Investment is suitable for your particular circumstances.
3
CLIENT CLASSIFICATION
As stated in the Client Acceptance Form, we shall treat you as a "professional client" for
the purposes of the Markets in Financial Instruments Directive ("MiFID"). You have the
right to request a different client categorisation. If you request categorisation as an
"eligible counterparty" and we agree to such categorisation, we would no longer be
required by regulatory rules to provide certain protections granted to professional clients.
If you request to be categorised as a retail client, thereby requiring a higher level of
regulatory protection, we will be unable to provide the Services to you. You agree and
acknowledge that you are responsible for keeping us informed about any change that
could affect your categorisation as a professional client.
4
OPENING AND OPERATING YOUR ACCOUNT(S)
We will open one or more accounts in your name. Unless agreed otherwise, any new
account we open in your name will be governed by the provisions of these TOBs.
-1-
5
PLACING ORDERS WITH US
5.1
You may give us instructions in writing (including fax), by email or other electronic means
or orally (including by telephone), unless we tell you that instructions can only be given in
a particular way. If you give instructions by telephone, your conversation may be
recorded. If any instructions are received by us by telephone, computer or other medium
we may ask you to confirm such instructions in writing. We shall be authorised to follow
instructions notwithstanding your failure to confirm them in writing.
5.2
Instructions may only be withdrawn or amended by you with our consent.
5.3
We may, but shall not be obliged to, accept instructions to enter into a transaction. If we
decline to enter into a proposed transaction, we shall not be obliged to give a reason but
we shall notify you accordingly and shall not be responsible for any losses, costs,
damages or expenses incurred by you as a result of such refusal.
6
OUR CHARGES
6.1
You will pay our charges as agreed with you from time to time, pay or reimburse us for
any taxes (including, without limitation, any withholding tax imposed on payments to us)
imposed by any tax authority on any account opened or transaction effected by or
cleared for you or effected pursuant to your instructions and pay or reimburse us for any
fees or other charges imposed by a regulated market, multilateral trading facility or any
clearing organisation. If we are (or another member of our group is) required to account
for any value added tax (or any other consumption, sales, use, goods or services tax) to
any tax authority in relation to or in respect of any of the Services or any of the foregoing,
you will pay us, in addition, an amount equal to any such value added tax (or other tax).
6.2
We may receive remuneration from, or share our charges with, a third party in
connection with transactions with or for you (for example, in respect of "commission
sharing arrangements"). The amount so received or shared will be disclosed to you on
request where required by all applicable law, rules, regulations and codes of conduct
(collectively, "Applicable Rules").
7
INTEREST
If you default in paying any amount when it is due, you will pay interest to us on such
overdue amount at a rate per annum equal to the 3 month EURIBOR rate prevailing at
such time plus 2%, for the period from (and including) the original due date for payment
to (but excluding) the date of actual payment. "EURIBOR" for these purposes means the
percentage rate determined by the Banking Federation of the European Union, as
displayed on the appropriate page of the Reuters screen.
8
OUR MANNER OF DEALING
8.1
We may assume that you are acting as principal in relation to all transactions on which
you instruct us and you agree that you alone will be our customer for the purposes of the
applicable rules by which the MiFID has been implemented (the "MiFID Rules"). For the
avoidance of doubt, where you use the Services in your capacity as agent for a third
party, we shall not be liable to any such third party for any trading losses or other losses
sustained by such third party as a result of your use of the Services.
8.2
We shall be entitled to act for you upon instructions given by any person authorised on
your behalf without further enquiry as to the genuineness, authority or identity of the
-2-
person giving such instructions, providing that we reasonably believe such person is
authorised by you to give instructions on your behalf. For the avoidance of doubt, in
circumstances where a person is initially authorised to give us instructions on your behalf
but subsequently loses such authority (for example, by virtue of leaving your
employment), we shall nevertheless be entitled to act for you upon such person's
instructions until such time as you have notified us in writing that such person no longer
has the authority to provide instructions on your behalf.
8.3
Where we purchase Investments to your order our normal practice (unless we notify you
to the contrary) is that we will acquire the Investments as principal and, once you have
fully paid the purchase price of the Investments plus any commissions, taxes, duties or
other amounts due to us in connection with the purchase, we will transfer the
Investments to your account (whereupon the Investments will become your property).
You are obliged to pay to us the purchase price for the Investments once we are
ourselves committed to acquire the Investments.
8.4
Our obligation to account to you for any asset or monies is conditional upon receipt by us
of the relevant documentation or proceeds of sale from the third party and the delivery by
you of the relevant documentation or monies to settle the transaction.
8.5
We shall be entitled, without prior notice to you, to make any currency conversions we
consider necessary or desirable for the purpose of complying with our obligations or
exercising our rights under these TOBs. Any such conversion shall be effected by us in
such manner and at such times as we may in our discretion determine having due regard
to the prevailing rates for freely convertible currencies.
9
ORDER TRANSMISSION
9.1
If we are not a member of the relevant market or of the multilateral system relevant to
your order, we will transmit related orders as soon as possible to a service provider for
execution in your best interests and in accordance with our execution policy.
9.2
You expressly agree that transmission of an order for execution will not necessarily
result in its execution. An order will only be executed:
(a)
If market conditions permit; and
(b)
If execution is permitted by the rules and customs of the exchange, market,
multi-lateral trading facility and/or any clearing house through which
transactions are executed and/or cleared and in accordance with all Applicable
Rules and relevant contractual conditions.
9.3
If we cannot transmit an order, we will inform you as soon as possible, whereupon such
order will expire. In such cases it is your responsibility to issue a new order if so desired.
10
ORDER EXECUTION
10.1
You confirm that you have read, and agree to, our order execution policy, which is
available online or in writing by request. It is your responsibility to check for any changes
to our order execution policy as published from time to time at www.exane.com. We will
consider the continued placement of orders by you to constitute your continued consent
to our order execution policy as in effect from time to time.
10.2
We shall use our reasonable endeavours to execute any order as reasonably practicable
in the circumstances, but in accepting your orders we do not represent or warrant that it
-3-
will be possible to execute such order or that execution will be possible according to your
instructions. You agree that we may execute transactions on your behalf outside a
regulated market or multilateral trading facility (as both terms are defined in MiFID) and
that we shall not be responsible for any losses, costs, damages or expenses incurred by
you as a result of any delay or any change in market conditions before the transaction is
effected.
10.3
We may combine your order with our own orders and orders of other clients. We may
only combine your orders with those of other clients if it is unlikely that the aggregation of
orders will work overall to your disadvantage. However, the effect of aggregation may
work to your disadvantage in relation to a particular order.
10.4
Market conditions may not permit your order (whether or not aggregated) to be executed
at once or in a single transaction. We may therefore execute your order as multiple
transactions over such a period as we deem appropriate and may report to you a volume
weighted average price for a series of transactions so executed instead of the actual
price of each transaction.
11
SETTLEMENT
11.1
Unless otherwise agreed between you and us, settlement of transactions we undertake
for you will occur on the terms and within the time limits set out in the rules and customs
of the exchange, market, multi-lateral trading facility and/or any clearing house through
which transactions are executed and/or cleared and in accordance with all Applicable
Rules. Settlement of a transaction will discharge our obligations to you in respect of the
transaction to which it relates.
11.2
Delivery or payment by third parties in settlement of your transactions will be at your risk.
12
INFORMING YOU OF EXECUTED ORDERS
We shall send you confirmations on a trade date for any order that we have fully
executed on your behalf on that trading day, and in relation to which you have provided
us with the allocation details required to book the relevant trade. We shall send such
confirmation by any agreed electronic means, or by other means as may be agreed, to
the contact details we hold on record for you. It is your responsibility to inform us of any
change to your contact details, the non-receipt of a confirmation, or whether any
confirmations are incorrect before settlement.
13
CONTESTING EXECUTED ORDERS
13.1
If you wish to contest an executed order, you must notify us in writing, giving reasons for
your dispute, within 24 hours of receiving the trade confirmation we send you in respect
of such order. Failure to contest a transaction within such timeframe shall be deemed as
your agreement to the information specified in such trade confirmation. You shall not
hold us responsible for any loss caused by you as a result of not contesting a transaction
within the timeframe stipulated herein.
13.2
Following such written notice, we may, at our sole discretion, take such actions as may
be necessary in order to put you in the position you would have been had we not carried
out the relevant transaction. If your objection proves to be unfounded, you shall bear the
cost of such action, which cost shall be immediately due and payable.
-4-
14
TRANSACTIONS ON-EXCHANGE AND WITH THIRD PARTIES
14.1
We may carry out a transaction with or for you directly or, at our entire discretion, with or
through a broker, intermediary, member of an exchange/clearing house or other third
party (a "third party"). Such third party may be an undertaking in the same group as us,
a representative whom we or an undertaking in the same group as us appoint, or any
other person with whom we have a relationship that might reasonably be expected to
give rise to a community of interest between us and them (an "Associate"), and may not
be in the United Kingdom. Neither we nor our respective directors, officers, employees
or agents will be liable to you for any act or omission of an intermediate broker or agent.
No responsibility will be accepted for intermediate brokers or agents selected by you.
14.2
When carrying out transactions on certain exchanges and in other cases where we so
choose, you will enter into a contract with us (the "Client Contract") and we will enter
into a matching contract on the exchange or with or through a third party (the "Market
Contract"). The Market Contract will be on the same conditions as the Client Contract
except as to price and parties. "Market Contract" also refers to any contract under which
we have a liability to an exchange, clearing house or third party in consequence of
carrying out your instructions.
14.3
If the relevant exchange, clearing house or third party requires any alteration in the terms
of any Market Contract (including the assets subject to it), we may without referring to
you take all actions as may, in our absolute discretion, be desirable to comply with those
requirements or as a result of them or to avoid or mitigate our loss and all such actions
will be binding on you and such alterations deemed incorporated into the corresponding
Client Contract.
14.4
Without prejudice to the foregoing, we may take such action in relation to a Client
Contract, including cancelling or modifying our obligations under it, as may be necessary
to avoid any loss on our part resulting from a failure by any exchange, clearing house or
third party to perform the corresponding Market Contract as initially envisaged or at all.
15
CUSTODY
We will not hold Investments on your behalf. Any Investments we receive in respect of
transactions we effect for you will be treated as our property absolutely for the period
they remain in our hands, subject to Applicable Rules.
16
YOUR MONEY
Business conducted between us is carried out on a delivery versus payment basis. We
usually do not hold client money as defined by Financial Services Authority rules. Hence,
it is very unlikely that in the normal course of business we receive or hold money on your
behalf in the course of or in connection with the Services. In the unlikely event that we do
receive money belonging to you and which is not payment under a delivery versus
payment transaction between us, we will return it to you.
17
YOUR OBLIGATIONS
17.1
You represent that you have full legal power required as well as all necessary licences,
authorisations, consents and approvals to enter into this relationship and to enable all
transactions in Investments under these TOBs to be effected and to perform your
obligations hereunder.
-5-
17.2
These TOBs and any transactions entered into hereunder are your valid and binding
obligations enforceable against you in accordance with these TOBs, subject to
bankruptcy or other Applicable Rules.
17.3
You undertake, in respect of each transaction in Investments under these TOBs, that you
will comply with all Applicable Rules, including (but not limited to) any Applicable Rules in
respect of short selling, market abuse and anti-money laundering. Further, you agree
that we may refuse to accept an order or complete a transaction if, in our reasonable
opinion, to do so would put either us or you in breach of any Applicable Rules.
17.4
You will ensure that all relevant Investments or any documents of title and / or transfer
forms and / or any relevant payments are delivered, paid or transferred to us or to
whomever we may direct in sufficient time on or before the contractual settlement date to
enable us to settle the transaction in accordance with Applicable Rules.
17.5
As, unless we expressly agree to do so, we will not provide you with any specific advice
or personal recommendation, you acknowledge that you will enter into transactions
solely on the basis of your own judgement and have not relied on any advice or
recommendations provided by us.
17.6
Where we offer you direct market access through an electronic system which enables
you to place orders which are routed directly to an exchange’s order book ("DMA"), you
undertake to comply with any applicable rules and regulations of such exchange and any
such requirement that we may impose from time to time in respect of such rules and
regulations. You are solely responsible for ensuring the security of your DMA password
or other access methods specified by us, and that such password or other access
methods are known to and used only by individuals authorised by you. Further, you will
be solely responsible for all acts or omissions of any person using DMA through your
password or other access methods, and all related orders will be deemed to be
authorised by you.
17.7
You shall inform us of the following as soon as reasonably practicable:
17.8
(a)
Any event which has resulted, or may result, in any of the representations
referred to in this clause becoming untrue;
(b)
Any change to your corporate form;
(c)
Any termination of office of one of your legal representatives;
(d)
Any event which could materially affect your financial capacity and ability to
perform your obligations under this Agreement;
(e)
Any event which could affect the validity of your classification as a professional
client under clause 3 of this Agreement.
Upon our request, you shall provide us with all information we may reasonably require
for "know your customer" ("KYC") or anti-money laundering purposes (including but not
limited to your financial statements), as may be required by MiFID or other Applicable
Rules and for the purposes of establishing the business relationship between us.
Subject to clause 9 of this Agreement, we shall keep any such information in the strictest
confidence and use it only for the purposes for which it was provided by you to us. All
the information held by us will be retained for a period of time consistent with the
requirements of MiFID.
-6-
17.9
You shall pay to us such sums as we may from time to time require towards satisfaction
of any debit balance on any of your accounts with us.
17.10 You shall indemnify us in respect of any losses (including legal fees) and taxes which we
may incur with respect to any of your accounts or any transaction we effect for you as a
result of (i) any misrepresentation by you, (ii) any violation by you of your obligations
under this Agreement (including, without limitation, your failure to deliver securities or
funds to us when they are due or the obligation to comply with Applicable Rules) or (iii)
by the enforcement of our rights under this Agreement.
18
OUR OBLIGATIONS AND LIABILITY
18.1
In respect of providing the Services to you, we shall comply with any Applicable Rules
and in conformity with common and accepted market practices.
18.2
Neither we nor our directors, officers, employees, or agents shall be liable for any losses,
damages, costs or expenses (whether arising out of negligence, breach of contract,
misrepresentation or otherwise) incurred or suffered by you under these TOBS unless
such loss is finally determined by a court or by binding arbitration to arise primarily and
directly from our or their respective gross negligence, wilful default or fraud. In no
circumstance shall we have liability for losses suffered by you or any third party for any
special or consequential damage, loss of profits, loss of goodwill or loss of business
opportunity arising under or in connection with these TOBS, whether arising out of
negligence, breach of contract, misrepresentation or otherwise. Nothing in these TOBs
will limit our liability for death or personal injury resulting from our negligence. Our liability
shall not in any circumstances exceed the amount of the market value of any Investment
to which the loss relates.
18.3
We shall not be liable to you for any partial or non-performance of our obligations
hereunder by reason of any cause beyond our reasonable control, including without
limitation any breakdown, delay, inaccuracies or omissions in the receipt of your
instructions, malfunction or failure of transmission, communication or computer facilities,
industrial action, act of terrorism, act of God, acts and regulations of any governmental or
supra national bodies or authorities or the failure by the relevant intermediate broker or
agent, agent or principal of our custodian, sub-custodian, dealer, market, clearing house
or regulatory or self-regulatory organisation, for any reason, to perform its obligations.
Nothing in these TOBS will exclude or restrict any duty or liability we may have to you
under Applicable Rules, which may not be excluded or restricted thereunder.
18.4
We shall not be liable for any loss of opportunity whereby the value of your account may
have been increased nor for any reduction in the value of your account as a result of
market movements. We shall not be liable for the taxation consequences of any
transaction nor shall we be liable for taxation charges arising for any reason.
18.5
Neither we nor our directors, officers, employees, agents nor any other company of the
Exane Group shall be liable for any loss arising from any act or omission of any agent or
third party who performs services pursuant to these TOBs except to the extent that such
loss is caused by wilful default, fraud or negligence on the part of us or our directors,
officers, employees, agents or any other company of the Exane Group.
18.6
We deal with you on the basis that you accept ultimate responsibility for your investment
decisions, and although we may give advice or make recommendations in respect of
individual investments or in respect of investments generally, we do not accept any
responsibility to satisfy ourselves as to the suitability of such advice or recommendation
-7-
in your particular circumstances or to verify the appropriateness or otherwise of any
transaction in respect of your overall investment strategy.
18.7
Any information provided by us to you, either in the form of published research reports or
otherwise, is believed by us to be, and/or is compiled by us from sources believed by us
to be accurate. However no representation is made or warranty given that such
information is in fact accurate at the time when it is given. Statements of opinion are
likewise statements of our opinion at the time at which they are given, but we accept no
responsibility to notify you of any change in such opinion. Before publishing a research
recommendation, we or an Associate may have acted upon it or made use of information
on which it is based, where we are permitted to do so by Applicable Rules.
18.8
We shall not be responsible for fulfilling any tax formalities (statutory or otherwise) on
your behalf or for advising you in respect of any tax matters.
19
DEFAULT REMEDIES
19.1
If any of the following happens:
(a)
you, when acting as principal, fail to make any payment due to us or to deliver
any securities due to us (or to our agents); or
(b)
any representation or warranty you make to us proves false or misleading either
under these TOBs or under any other agreement agreed between you and us;
or
(c)
you become unable to pay your debts as they fall due or become insolvent or
bankrupt or become the subject of any insolvency, bankruptcy, administration or
similar proceedings; or
(d)
a winding-up resolution is passed or a winding up or administration order is
made in respect of you or any of your property;
We shall be entitled, without prior written notice to you, to take any of the following actions:
-
to treat any or all outstanding transactions between you (as principal and not as agent)
and us as having been cancelled or terminated;
-
to sell any or all Investments or other property which we are holding or are entitled to
receive on your behalf (but not on behalf of your clients) and to apply the proceeds in or
towards satisfaction of any obligation or liability you may have to us or our associated
companies (including any contingent or prospective liability);
-
to set off any obligation we owe to you (as principal and not as agent), and/or to apply
any cash we hold for your account, against any obligation or liability you may have to us
or any other company of the Exane Group (including any contingent or prospective
liability). For these purposes, we may ascribe a commercially reasonable value to any
amount which is contingent or which for any other reason is unascertained;
-
to close out, replace or reverse any transaction, enter into any other transaction or take,
or refrain from taking, such other action at such time or times in such manner as, at our
sole discretion, we consider necessary or appropriate to cover, reduce or eliminate our
loss or liability under or in respect of any contracts, positions or commitments; or
-
to terminate these TOBs.
-8-
19.2
Where you act as agent, if any of the following happens in respect of any client of yours
(a “defaulting client”):
-
you fail to make any payment due to us or deliver any securities due to us (or our
agents) on behalf of defaulting client; or
-
any representation or warranty you make to us on behalf of your clients proves false or
misleading either under this TOBs or any other agreement between you and us;
We shall be entitled, without prior notice to you, to take any of the actions set out in
provision 20.1 in respect of such defaulting client.
19.3
Where you act as agent you will notify us as such as reasonably practicable if, at any
time you have any reason to believe that any warranty or representation you have
provided in respect of your clients under these TOBs is, or with the passage of time shall
prove, false or misleading.
20
COMPLAINTS
20.1
If you have a complaint about us you should raise it in the first instance with our
employee acting for you. We will endeavour to resolve it informally. If however you are
not satisfied with the response of our employee (or if you prefer not to raise the matter
with our employee) you may raise the matter with our Head of Compliance.
20.2
If you wish to make a formal complaint this should be made in writing and addressed to
Exane Limited’s Head of Compliance. Your formal complaint will then be investigated
internally by employees who were not involved with the subject matter of your complaint
and have been trained in complaints handling.
21
RISK WARNING
Any Investment involves a degree of risk and some Investments are more risky than
others. Prices can fall as well as rise, involving a risk of loss of all the unvested money.
Prior to any decision to enter into transaction you should then consider the risks inherent
to any transaction and associated financial instrument (including, but not limited to, credit
risk, market risk, liquidity risk, interest rate risk, foreign exchange risk, operational risk,
insolvency risk, regulatory risk, legal risk). You should also read any relevant
documentation, including but not limited to, terms sheets, information memoranda or
prospectus and any disclaimers or warnings set out thereunder.
22
EVIDENCE
22.1
Electronic Communications: Orders or instructions given by you via e-mail or other
electronic means will constitute evidence of the orders or instructions given.
22.2
Telephone Calls: We may record telephone conversations without use of a warning tone
to ensure that the material terms of a transaction, and any other material information
relating to a transaction, is promptly and accurately recorded. Such records will be our
sole property and accepted by you as evidence of the orders or instructions given.
22.3
Our Records: Our records, unless shown to be materially incorrect, will be evidence of
your dealings with us in connection with our Services. You will not object to the
admission of our records as evidence in any legal proceedings because such records
are not originals, are not in writing or are documents produced by a computer. You will
-9-
not rely on us to comply with your record keeping obligations, although records may be
made available to you on request at our absolute discretion.
23
Your Records: You agree to keep adequate records in accordance with Applicable Rules
to demonstrate the nature of orders submitted and the time at which such orders are
submitted.
24
TERM AND CANCELLATION OF THE AGREEMENT
24.1
This Agreement will commence with effect from the earlier of the following events:
(a)
The date you sign this Agreement; or
(b)
The date you place your first order with us.
24.2
Either party may terminate this Agreement by giving ten days written notice of
termination to the other.
24.3
We may terminate this Agreement immediately if you fail to observe or perform any
provision of this Agreement or in accordance with the provisions of clause 19. We may
also terminate this Agreement immediately in response to any change to your condition
(financial or otherwise) which is likely to impair your ability to perform your obligations
under this Agreement.
24.4
Upon terminating this Agreement, all amounts payable by you to us will become
immediately due and payable including (but not limited to):
(a)
All outstanding fees, charges and commissions;
(b)
Any dealing expenses incurred by terminating this Agreement; and
(c)
Any losses and expenses realised in closing out any transactions or settling or
concluding outstanding obligations incurred by us on your behalf.
24.5
Termination shall not affect outstanding rights, obligations and transactions which shall
continue to be governed by this Agreement until all obligations have been fully
performed.
25
CONFLICTS OF INTEREST
25.1
Your attention is drawn to the fact that when we deal with or for you or give you
investment advice, we or an Associate may have an interest, relationship or arrangement
that is material in relation to the transaction or Investment concerned. We operate our
business on the principle that we must manage any conflicts of interest between us,
including our employees and associates, and clients, and between one client and
another, in a fair and commercial manner. Our conflicts policy is available on our website
at www.exane.com.
25.2
Your attention is also drawn to the fact that when we recommend a transaction to you,
we or an Associate:
(a)
Could be dealing as principal for our or its own account by selling the
Investment concerned to you or buying it from you; or
(b)
Matching your order with that of another customer by acting on his behalf as
well as yours.
- 10 -
25.3
You consent to our acting in any of the foregoing ways and we will not be accountable to
you for any commissions or profits that we or an Associate make while so acting.
26
DATA PROTECTION
26.1
You acknowledge that we may obtain information (including personal data and sensitive
personal data, as defined in the Data Protection Act 1998) about your employees or
agents or affiliates and consent to disclosure of information by us to the FSA or any
relevant exchange or other regulatory body.
26.2
Before providing us with any personal information, you should ensure that relevant
individuals are aware that we may use their information to administer and operate your
account(s) and that this may involve transfer of their information to any country, including
countries outside the European Economic Area which may not have strong data
protection laws. Such individuals may access, and correct, personal information which
we hold in respect of them by contacting us.
26.3
Equally, if you wish to access information we hold about you, have inaccurate
information corrected, or tell us that you do not wish to receive marketing information we
may send you, please let us know.
27
CONFIDENTIALITY
We will treat all information we hold about you, your account or your transactions as
confidential, even when you are no longer a client. You agree, however, that we may
disclose this information to other companies in our group and that we and they may
disclose it to: (i) those who provide services to us or act as our agents; (ii) anyone to
whom we transfer or propose to transfer any of our rights or duties under this
Agreement; (iii) credit reference agencies or other organisations that help us and others
make credit decisions and reduce the incidence of fraud or in the course of carrying out
identity, fraud prevention or credit control checks; (iv) regulators and governmental
agencies, in any jurisdiction, where we are required or requested to do so under
Applicable Rules, or (v) any other person where there is a public duty to disclose, where
our interests require disclosure, upon your request or otherwise where you consent to
such disclosure.
28
AML AND OTHER REPORTING REQUIREMENTS
Please be informed that, pursuant to Applicable Rules, especially in respect of the
prevention of money laundering, the financing of terrorism and market abuses, we may
be obliged to declare certain transactions carried out by you to various authorities.
29
COMMUNICATIONS
29.1
All communications will be sent to your address as shown on our records, unless you
have advised us to send them to another address. Delivery of communications shall be
proved by showing that we addressed it to you via the contact details you most recently
provided to us.
29.2
Any communication to us in relation to these TOBs must be sent to, and marked for the
attention of our Compliance Officer at our address as set out in clause 1 above.
- 11 -
30
NOTICES
Unless otherwise specified, any notice given by us by post will be deemed given two
calendar days after posting to you at an address in the UK and five calendar days after
posting to an address abroad. Any notice given by delivery or by telecommunications or
electronically will be deemed given upon delivery or transmission. In proving service or
delivery of the relevant communication it shall be sufficient for us to prove that it was
correctly addressed to the last address notified in writing by you to us and posted and
where sent by facsimile, telex or other means of telecommunication, or electronically,
that it was transmitted to the correct number or contact point as last notified in writing by
you to us.
31
TRANSFER AND ASSIGNMENT
31.1
This Agreement shall be for the benefit of and binding upon us both and our respective
successors and assigns. Subject to clause 31.2 below, neither you nor we may assign,
charge or otherwise transfer rights or obligations under this Agreement, any
corresponding transactions or any related contract without the prior written consent of
the other. Any purported assignment, charge or transfer in violation of this clause shall
be void.
31.2
You hereby give your consent to us assigning, charging or otherwise transferring at any
time all or any part of our rights and/or obligations under this Agreement to any entity
which Controls or is Controlled by us. We shall notify you of any such action we take, but
we shall not be obliged to give you prior, or written, notice. To the extent required by, or
consequential to, any such transfer you agree to enter into further documentation and/or
particular terms as we or any transferee may reasonably require solely in order to make
or facilitate the action envisaged in this clause. "Control" for these purposes means
either (i) holding, directly or indirectly, a majority of the voting rights in an entity or (ii)
having the power, directly or indirectly, to exercise dominant influence or control over an
entity.
31.3
A person who is not a party to this Agreement has no right under the Contracts (Rights of
Third Parties) Act 1999.
32
AMENDMENT TO THESE TERMS OF BUSINESS
You consent to us amending these TOBs by providing written notice to you specifying
any amendment. Any such amendment will become effective on the date specified in
such notice, but no amendment will affect any outstanding orders, transactions or legal
rights or obligations before such date.
33
PARTIAL INVALIDITY
If, at any time, any provision of this Agreement is or becomes illegal, invalid or
unenforceable in any respect under the law of any jurisdiction, neither the legality,
validity or enforceability of the remaining provisions of this Agreement nor the legality,
validity or enforceability of such provision under the law of any other jurisdiction shall in
any way be affected or impaired.
- 12 -
34
GOVERNING LAW AND JURISDICTION
These TOBs and all non-contractual obligations and other matters arising from it or in
connection with it shall be governed by English law and the parties hereto hereby
irrevocably submit to the non-exclusive jurisdiction of the Courts of England and Wales.
35
AGENT FOR SERVICE OF PROCESS
You agree that if you are not a resident in England you shall at all times maintain an
agent for service of process in England and that any writ, judgement or other notice of
legal process shall be sufficiently served on you if delivered to such agent at its current
address. You agree to provide details of such agent upon demand.
- 13 -