PART A: General Conditions
The terms and conditions set out in this Part A govern the general overall relationship between GIL and the Customer as well as all accounts, products and services provided or made available by GIL to the Customer. Certain of such accounts, products and services are subject to, and governed by, additional terms and conditions as set out in Part B. Such additional terms and conditions as set out in a given Section in Part B as applicable to a particular account, product or service provided or made available by GIL to the Customer, shall be read together with, and regarded as forming a part of, the terms and conditions set out in this Part A, and in the event of any conflict or inconsistency between any term or condition in Part B with any term or condition in Part A, the term or condition in Part B shall prevail to the extent of such conflict or inconsistency.
In this Document, unless the context otherwise requires, the following words and expressions shall bear the following meanings:
“Account” means an account of the Customer opened and maintained with GIL following acceptance by GIL of the Customer’s application or written request under which the Customer effects transactions or uses Primary Services pursuant to this Document (including but not limited to the Managed Account);
“Applicable Laws” means all relevant or applicable statutes, laws, rules, regulations, notices, orders, bye-laws, rulings, directives, circulars, guidelines, practice notes and interpretations (and any and all forms, letters, undertakings, agreements, deeds, contracts and all other documentation prescribed thereunder), whether of a governmental body, regulatory or other authority, market, exchange, clearing house or self-regulatory organisations in relation to which a party or a relevant Account, Primary Service or Transaction is subject to;
“Application Form” means the application form (in the form prescribed by GIL) by which the Customer applies to GIL to open an Account;
“Currency” means money denominated in the lawful currency of any jurisdiction and/or cryptocurrency;
“Customer” in relation to GIL with respect to the Primary Services means the person, corporation, partnership or sole proprietorship named in the Application Form as the applicant(s), and for whom GIL is maintaining or continuing to maintain one or more Account(s) for the Primary Services; and includes such person or corporation’s assignees, successors-in-title and agents;
“Default” shall have the meaning given to it in Clause 12.1 of Part A;
“Document” means this document titled “Conditions Governing GAINSKY INVESTMENTS LTD Accounts” and shall include all the terms and conditions comprised in Part A of this document and Part B of this document, as applicable;
“Instructions” means a Customer’s instruction, request, application or order given to GIL to operate an Account or to execute a Transaction through such medium and in such manner as GIL may approve, and includes any instruction, request or order to revoke, ignore or vary any previous request or order in respect of a Transaction or Account;
“Loss” means any and all actions, claims, liabilities, losses, damage, costs, charges and/or expenses of whatsoever nature and howsoever arising, incurred or suffered, including legal costs, cost of funding and loss or cost incurred as a result of the terminating, liquidating or re-establishing of any hedge or related trading position;
“Nominee” includes a nominee, agent, representative, delegate or correspondent whether in Republic of BVI or elsewhere;
“Primary Service” means any and all of the services and/or facilities provided by or through GIL;
“GIL” means GAINSKY INVESTMENTS LTD;
“Transaction” includes transactions in such Capital Markets Products or such other products as GIL may from time to time permit to be carried out under an Account;
In this Document, and unless the context otherwise requires:
(a) a reference to a Clause, Section or Part is to a clause, section or part of this Document;
(b) a reference to a Clause in respect of a given Part is to a Clause of that Part and a reference to a Clause in a Section is a reference to a Clause of that Section;
(c) a reference to “include”, “includes” and “including” as they appear in this Document are not limiting and are deemed in each instance to be followed by the words “without limitation”;
(d) a reference to any agreement or document is to that agreement or document (and, if applicable, any of its provisions) as amended, novated, supplemented or replaced from time to time;
(e) a reference to any party to this Document or any other document or arrangement includes that party's executors, administrators, permitted substitutes, permitted successors and permitted assigns;
(f) a reference to any legislation or legislative provision includes any statutory modification or re-enactment of, or legislative provision substituted for, and any subordinate legislation issued under, that legislation or legislative provision;
(g) a Default is continuing if it has not been remedied or waived;
(h) the singular includes the plural and vice versa;
(i) a reference to an individual or person includes a corporation, partnership, joint venture, association, authority, trust, state or government and vice versa; and
(j) a reference to any gender shall include all genders.
1. Scope and Application
1.1 The terms and conditions in the Application Form and in Part A shall apply to and govern each Account currently requested for, all Accounts opened and currently maintained, and all Accounts subsequently opened or established with GIL, and in respect of all Transactions and Primary Services.
1.2 If any Primary Service is provided expressly subject to some other terms and conditions, the applicable terms of the Document and the Application Form shall supplement those other terms.
1.3 The terms and conditions comprised in Part A are supplemented by Part B. Part B shall be read together with, and shall form an integral part of this Document.
1.4 In the event of any conflict or inconsistency between the provisions of a Section in Part B and the provisions of Part A, the provision(s) of the Section in Part B shall prevail to the extent of such conflict or inconsistency.
1.5 The terms and conditions in a given Section of Part B which are specified to be applicable to a given Account, Primary Service or Transaction shall (unless otherwise herein expressly stated) apply:
1.6 (where use or operation of the Account or Primary Service, or entry into a Transaction, requires the prior consent and approval of GIL) upon GIL approving the Customer’s application for the use of that Account or Primary Service or entry into that Transaction; or
1.7 The terms and conditions of this Document must be read together with the terms and conditions appearing on the Application Form, GIL’s CAR and/or CKA documentation, confirmation notes relating to Transactions and statements of account. All of the foregoing may from time to time be amended, supplemented or replaced from time to time by GIL. All of the foregoing shall together govern the relationship between GIL and the Customer.
1.8 By completing the Application Form, agreeing to open an Account, maintaining or operating an Account, issuing any Instructions, entering into any Transaction or accessing, acquiring or using any Primary Service from, with or through GIL, the Customer acknowledges to GIL that the Customer has received, read and understood this Document and all its contents, acknowledges and accepts the risks and other matters disclosed in this Document, and agrees to, and undertakes to be bound by, this Document as applicable to the Account, Instructions, Transaction, and Primary Service accessed, acquired or used. The Customer’s acknowledgements, acceptance, agreements and undertakings in this Clause shall be conditions precedent to GIL’s performance of its obligations under this Document.
2. Maintenance of foreign trust account
The Customer authorises and consents to GIL depositing or maintaining moneys and/or any other property received on account of the Customer which are denominated in a foreign currency in a trust or custody account with a custodian outside Republic of BVI which is licensed, registered or authorised to conduct banking business or to act as a custodian, as the case may be, in that jurisdiction.
3. Delegation and Use of Intermediaries
3.1 GIL may use, engage or appoint, directly or indirectly, any person (including another broker, correspondent broker, dealer, market-maker, exchange, clearing house, bank, custodian or other third party) (“Intermediary”), whether in Republic of BVI or elsewhere, whether or not an officer or employer of GIL, and whether or not associated with, connected to or related to GIL, to carry out any Instructions, execute or clear any Transaction, hold or custodise any of the Customer’s funds and assets, or exercise any authority granted to GIL by the Customer under this Document or otherwise. Such use, engagement or appointment of any Intermediary shall be upon such terms and conditions as GIL deems fit in its discretion.
3.2 If GIL has exercised reasonable care in its selection of the Intermediary, the Customer acknowledges, agrees and accepts that GIL has no liability or responsibility for any wrongdoing, act, omission, insolvency, negligence, breach or duty, misconduct, fraud, wilful default or any other failure or default by or in respect of an Intermediary (“Intermediary Default”), the Customer shall bear all risks arising from or consequent from or in relation to the acts or omissions or the Intermediary Default of such Intermediary, and the Customer shall indemnify, keep indemnified and hold harmless GIL from and against any and all Losses (including legal costs on a full indemnity basis) suffered or incurred by GIL whether directly or indirectly in relation to, arising out of or in connection with any act, or omission, or any Intermediary Default, of an Intermediary or such Intermediary’s officers, employees, agents or representatives.
3.3 The Customer further acknowledges and agrees that, where GIL uses, engages or appoints an Intermediary, GIL may have to accept sole and principal responsibility to the Intermediary for the executed Instructions and/or Transactions. This may be notwithstanding that, as between the Customer and GIL, GIL may in fact be the agent of the Customer, and accordingly the Customer shall indemnify, keep indemnified and hold harmless GIL from and against any and all actions taken by GIL in good faith in compliance or performance of GIL’s said principal obligation or responsibility. In this connection, the Customer recognises that GIL may take such measures (including effecting payment and settlement in respect of the Customer’s executed Instructions) as may be necessary to ensure non-default of GIL’s own primary responsibility as aforesaid (notwithstanding that as between the Customer and GIL, the Customer is, or has notified GIL that it will be, in default).
3.4 In view of the fact that GIL may have accepted principal responsibility and/or liability to another Intermediary, the Customer also acknowledges that any cash or other property (which as between GIL and the Customer is to be regarded as that of the Customer, or purchased by or for the Customer) may or will be regarded by such Intermediary as being the cash or other property of GIL or purchased by GIL for itself. This may in some instances result in prejudice to the Customer. The Customer accepts that this is a necessary risk of dealing in any foreign jurisdiction through GIL.
3.5 The rights and remedies of GIL in this Clause will apply even though as between GIL and the Customer, the Customer may be in actual or anticipatory default.
4. Full disclosure of information
4.1 The Customer agrees that the Customer shall be required to, upon demand by GIL and in a timely manner:
(a) provide any form, certification or other information, as may be requested by and in a form acceptable to GIL, that is necessary for GIL
(b) update or replace such form, certification, or other information in accordance with its terms of subsequent amendments; and
(c) otherwise comply with any reporting obligations imposed by the Republic of BVI or any other jurisdiction, including reporting obligations that may be imposed by future legislation.
4.2 The Customer acknowledges and agrees that if, and to the extent that, GIL is required to make any payment, withholding or deduction as a consequence of the Customer failing to comply in a timely manner with the requirement in the preceding representation and warranty, GIL shall be entitled to, at its sole and absolute discretion, withhold all or a portion of the amounts payable in respect thereof to the Customer if GIL is required under Applicable Laws (including the laws of the Republic of BVI) or as a consequence of any agreement between GIL and any tax, regulatory, governmental or quasi-governmental authority or body to withhold any payments as a consequence of the Customer failing to comply in a timely manner with the requirement in the preceding representation and warranty. The Customer agrees to hold harmless, indemnify and to keep GIL fully indemnified from and against any amount of payment, withholding or deduction referred to in this Clause that is in excess of such amount as may be standing to the Customer’s Account.
4.3 The Customer acknowledges and agrees that GIL may in its sole and absolute discretion terminate the Account with immediate or subsequent effect by written notice if the Customer fails to comply in a timely manner with the requirements in this Clause, whereupon GIL shall be entitled to receive all fees and other monies accrued up to the date of such termination.
4.4 The Customer acknowledges and agrees that GIL shall not be responsible for or liable to the Customer for any Loss to the Customer arising as a result of any act or omission or any error of judgment not amounting to actual fraud in complying with GIL’s reporting or other obligations under Applicable Laws.
5. Exclusion of Liability and Force Majeure
5.1 The Customer agrees that neither GIL nor any of its officers, employees or Nominees shall be responsible for or liable to the Customer for any Loss suffered by the Customer, including any Loss resulting from any act or omission in relation to any Account, the operation, provision or termination of any of the Primary Services, the exercise of any of GIL's rights, powers and discretions or the performance of any of its duties and obligations under this Document or the Application Form, any error of judgment or error of fact or delays due to market conditions or changes in market conditions unless it was caused by fraud, gross negligence or wilful default directly attributable to GIL or its authorised officer, employee or Nominee.
5.2 None of GIL or any of its officers, employees or Nominees shall at any time be responsible or liable whether in tort, in contract or otherwise for any indirect or consequential Loss of any kind (including loss of profit and loss of opportunity) or special or punitive damages.
5.3 Neither GIL nor any of its officers, employees or Nominees shall at any time be responsible or liable for any Loss whatsoever suffered or incurred by the Customer (including but not limited to if performance of any of GIL’s duties and obligations is interrupted, delayed or prevented) which may be caused wholly or in part by circumstances, acts or events beyond GIL’s control, including any act of god, war, terrorism, industrial disputes, natural disaster, adverse weather conditions, riots, strikes, lockouts, governmental or supranational organisation action, regulations or restriction, change of law, breakdown, failure or malfunction in communication systems, telecommunications disruption, or computer failure.
6.1 The Customer hereby agrees to fully indemnify, keep indemnified and hold GIL, its officers, employees and/or Nominees harmless from and against any and all Loss (including legal costs on a full indemnity basis) suffered or incurred, or which may be suffered or incurred, by GIL, its officers, employees and/or Nominees arising from, as a result of or in connection with:
(a) any failure by the Customer to comply with the terms and conditions of this Document or the Application Form, or to fully and punctually perform any of its obligations hereunder or in respect of any Transaction;
(b) any of the Customer’s representations, agreements and undertakings in this Document or the Application Form being untrue, incorrect, incomplete or misleading in any material respect;
(c) any actions, claims, demands or proceedings brought by third parties (including Intermediaries) against GIL further to GIL acting in accordance with the Customer's Instructions or otherwise in the exercise of its powers under this Document or the Application Form;
(d) acting or omitting to act in accordance with the Customer’s Instructions (or any communication given or purportedly given by any person authorised to act in relation thereto), or taking any action, exercising any right, power and discretion, performing any of its duties and obligations or otherwise acting in any manner in accordance with or as permitted under this Document or the Application Form;
(e) any change in any Applicable Laws;
(f) any act or thing done or caused to be done by GIL in connection with or referable to this Document, the Application Form or any Account, or any Transaction entered into for or with, or any Primary Services provided to, the Customer;
(g) any dealings with any Account by any person authorised to act in relation thereto; and/or
(h) the Customer’s breach or violation of any third party rights, including violation of any proprietary or intellectual property rights, or the enforcement of any of the terms and conditions of this Document or the Application Form.
6.2 The Customer’s obligation to indemnify GIL under this Clause 6 shall survive the termination of this Document, closure of any Account or termination or cessation of any of the Primary Services. For the avoidance of doubt, this indemnity extends to each of the Accounts and the Primary Services.
7. Notices and communication
7.1 Communications may be transmitted or sent by GIL to the Customer by telephone, electronic mail, facsimile, or to any mailing address of the Customer at such number(s) or address(es) last known to GIL. All written communication shall be deemed received by the Customer:
(a) two (2) days after despatch by post to the last mailing address of the Customer known to GIL if the same is a Germany address or five (5) days after despatch by post to the last mailing address known to GIL if the same is not a Germany address;
(b) immediately upon delivery, if delivered personally to the Customer; and
(c) at the time of despatch or transmission by GIL if sent by facsimile or electronic mail to any of the relevant facsimile or electronic mail addresses of the Customer last known to GIL, whether or not actually received by the Customer.
7.2 The risk of loss or damage to, and the costs of delivery of, any articles or items sent to the Customer shall be borne by the Customer.
8. Notification of change in circumstances
8.1 It shall be the Customer’s duty and the Customer hereby undertakes (without the need to be prompted by or being so requested to do so by GIL) to GIL that the Customer shall promptly notify GIL in writing of any change in:
(a) particulars, circumstances, status of the Customer, including any change in citizenship, residence, tax residency, address(es) on record, telephone and facsimile numbers and email addresses;
(b) where applicable, constitution of the Customer, shareholders, partners, directors or company secretary, or the nature of the Customer’s business;
(c) if the Customer is a corporation or other entity, its corporate or organisational structure; and
(d) any information and/or document relating to any Account or to this Document or the Application Form as supplied to GIL (including valid copies of identification documents such as passport particulars' page and Personal Data relating to any individual).
8.2 The Customer undertakes to provide any relevant supporting documents as GIL may request for verification. If the Customer fails to comply with this Clause, GIL shall be entitled to take such action or refuse to take any action as GIL may see fit (including suspending or closing the Account) and GIL shall not be responsible for any resulting Loss to the Customer. Any change will be effective only upon GIL’s receipt of the Customer’s notification and after GIL’s verification where it deems necessary.
9. Conclusive Evidence
The record(s) of any of GIL’s officers, representatives, agents or employees as to the substance or content of any oral or telephone or other communications between the Customer and GIL, concerning any monies owing from the Customer to GIL or from GIL to the Customer, or any monies or property in any Account, shall be prima facie evidence of the facts stated therein and, in the absence of manifest error, be conclusive and binding on the Customer.
The Customer acknowledges that GIL has the right to charge interest on any and all amount(s) or payments due from the Customer to GIL at such rate and calculated and/or compounded in such manner as GIL may in good faith determine to be appropriate. The Customer shall pay such interest to GIL and (in the event of litigation) such interest shall be payable to GIL both before as well as after judgment.
11.1 GIL may at any time and from time to time without notice set-off any amounts due to the Customer or held in any Account or any other account to which the Customer is beneficially entitled or subject to the control of GIL to reduce or extinguish any liability whether present or future, actual or contingent, primary or as surety, owed by the Customer to GIL.
11.2 For so long as the Customer owes monies or obligations (for whatsoever nature and howsoever arising) to GIL, the Customer may not withdraw any cash, Capital Markets Products or other property from GIL without GIL’s consent. GIL may at any time withhold any cash, Capital Markets Products or other property pending full settlement of all such monies or obligations of the Customer.
12. Default - Suspension / Closure of Account
12.1 The Customer agrees that if any one of the following events occurs (“Default”), GIL will have the immediate right, at its discretion, to suspend or close any and any one or more Account and take any one or more of the actions available to it in this Clause:
(a) the Customer fails to comply with or perform any of its obligations in this Document, the Application Form or in respect of any Account, Transaction or Primary Service;
(b) the Customer fails to make, when due, any payment or delivery required to be made by it under this Document, the Application Form or in respect of any Account, Transaction or Primary Service;
(c) any person (whether one or more individuals or sole proprietorships or any partner of a partnership) constituting the Customer dies, becomes bankrupt, of unsound mind, unable to pay his debts as they fall due or has an action commenced against him to place him in bankruptcy, or if an action is commenced to dissolve and/or alter the partners or the constitution of the Customer (where the Customer is a partnership);
(d) where the Customer is a corporation or any other body corporate, where the Customer becomes unable to pay its debts as and when they are due, or any action or step is commenced or any resolution is passed to place the Customer in liquidation, winding up, insolvency, judicial management, receivership, administrative management, or any similar or analogous proceedings;
(e) the Customer makes any arrangement or composition with his creditors;
(f) any claim, action or proceeding of any nature is commenced against the Customer, or steps are taken by any person to enforce any security against the Customer (or where the Customer comprises two or more persons or where the Account is a joint account, any such person);
(g) GIL in good faith forms the opinion that its interest would be adversely affected if it does not suspend or close the Account;
(h) if GIL becomes aware of suspicious or reasonably possible fraudulent or unauthorized Account activity, which may cause Loss to the Customer or GIL; or
(i) a default, event of default or other similar condition or event (however described) occurs in respect of the Customer or any affiliate of the Customer under one or more agreements of any of them (individually or collectively) with GIL.
12.2 All acts performed by GIL prior to receiving written notice of the Customer’s death, incapacity or incapability (if a natural person) shall be valid and binding upon the Customer and the Customer’s successors in title. In the event of the Customer’s death, GIL shall be absolutely protected in acting under this Document until GIL receives actual notice of death from the legal personal representatives or executors of the Customer. The legal personal representatives or executors will be recognised by GIL as having the sole authority to act under this Document on behalf of the deceased Customer.
12.3 The Customer shall immediately notify GIL if any Default occurs, or if a Default or potential Default is likely to occur.
12.4 Upon the suspension or closure of an Account, no further transactions for that Account may be initiated by the Customer.
12.5 If any of the events of Default occurs, without prejudice to any other rights that GIL may have under this Document or the Application Form, the Customer agrees that GIL will have the right to take any one or more of the following actions without having to give prior notice to the Customer:
(a) terminate its relationship with the Customer and demand that the Customer fully pay GIL all sums owing by the Customer to GIL;
(b) terminate any outstanding Transactions or other open positions in the Account, or close-out or otherwise liquidate the same in such manner and upon such terms as GIL deems fit;
(c) terminate any Primary Service utilised by the Customer;
(d) satisfy any obligation the Customer may have to GIL (either directly or by way of guarantee or suretyship) out of any cash or other property of the Customer in GIL’s custody or control;
(e) net or set off some or all positions and balances in the Accounts;
(f) hedge and/or enter into off-setting or other Transactions in order to establish a spread or straddle to protect against any risk of Loss in respect of such positions;
(g) cancel or complete any outstanding Instructions or other commitments made on behalf of the Customer for the purchase or sale of any property or for any Transaction or Account;
(h) cancel any outstanding Instructions in order to close the Account or Accounts;
(i) suspend (indefinitely or otherwise) or terminate any Account, or GIL’s relationship with the Customer and accelerate any and all liabilities of the Customer to GIL so that they shall become immediately due and payable;
(j) exercise such other authority and powers that may have been conferred upon GIL by this Document and the Application Form, on such terms and conditions as deemed appropriate by GIL. In exercising any one or more of its foregoing rights, GIL shall not be obliged to furnish any reason to the Customer.
13. Transfer between Accounts and Consolidation of Accounts
GIL may, at any time without notice to the Customer, combine and/or consolidate all or any of the Customer’s Accounts with GIL. Without limiting or modifying the general provisions of this Document, GIL is hereby specifically authorised to and may, in its discretion, at any time and from time to time without notice to the Customer apply and/or transfer any sum or sums interchangeably between the different Accounts that the Customer has with GIL in settlement of any or all the Customer’s debts with GIL.
14. Termination by Notice
14.1 The Customer agrees that GIL has in any event the right to terminate any Account(s) or any Primary Service(s) at any time without prior notice to the Customer (“Termination Notice”) and GIL is entitled to cease to provide any Primary Services or do any act in relation to any Transaction or Account after such termination.
14.2 GIL shall be under no obligation to inform the Customer of its reasons for termination.
14.3 The Customer remains liable for any outstanding balance (“Outstanding Balance”) owing to GIL accrued up to the date of closure/termination of the Account or revocation of the Primary Service(s), and upon receipt of the Termination Notice, the Customer must immediately pay such Outstanding Balance.
14.4 Prior to the date of the termination of any Account or Primary Service, the Customer shall instruct GIL as to the proper disposal or transfer of monies and other property of the Customer in relation to such Account or Primary Service.
14.5 Notwithstanding any Termination Notice, if there are any uncompleted Instructions or Transactions in relation to, or intended for any Accounts or Primary Services, GIL may in its discretion complete those Instructions or Transactions and the terms of this Document shall continue to apply in relation to such Instructions or Transactions.
15. Power of Attorney
By trading with or through GIL with respect to the Account(s) or utilising any Primary Service, the Customer hereby confirms its irrevocable appointment of each and every director and officer of GIL (on a several basis), for so long as they are each a director or officer (as the case may be) of GIL, as the attorney of the Customer for each and all of the purposes of this Document and with power to sign and execute all documents and perform all acts in the name and on behalf of the Customer in connection therewith whether in respect of any Transaction relating to any Account, any Primary Service or in respect of anything required to facilitate or give effect and/or substance to the rights conferred on GIL under this Document, and to do anything reasonably ancillary thereto. Further, registration of this power of attorney in any jurisdiction may be effected on the Customer’s behalf by GIL at the Customer’s expense. The Customer undertakes to hold harmless, indemnify and keep indemnified GIL and any of the aforesaid attorneys from and against any and all Losses (including legal costs on a full indemnity basis) suffered or incurred by any of them in the proper exercise of their powers under this Clause.
The Customer agrees to ratify and confirm, and hereby ratifies and confirms, any and all acts and things done or caused to be done by GIL (including pursuant to the power of attorney granted in Clause 15) for and on behalf of the Customer or otherwise in relation to any Account, any of the Transactions or Primary Services or any part or all of the Capital Markets Products custodised with GIL.
17. Introductions, Sharing of Fees, Commissions and/or Other Charges
17.1 The Customer acknowledges that the Customer may have been introduced or referred to GIL by a third party. If so, the Customer accepts that:
(a) no such third party shall in any way be regarded as an agent of GIL and that GIL accepts the Customer as a customer only on the basis that GIL does not accept and will accept no responsibility for any conduct, action, representation or statement of any such third party; and
(b) GIL may however share its fees, commissions and/or charges with such third party or any other third party or otherwise reward such third party for such introduction or any administrative service that the same may perform for GIL in relation to the Customer.
17.2 The Customer may from time to time request GIL to assist him in establishing accounts or transacting with other corporations in the GAINSKY INVESTMENTS LTD, its business partners or other third parties or GIL may of its own initiative inform the Customer of such opportunities or direct such parties to so offer such opportunities to the Customer or host market such parties' offers to the Customer. In such a case, the Customer agrees that he shall be solely responsible for deciding for himself whether and if so to actually contract to open, establish and maintain any such account(s) or concluding any transaction directly with the relevant party and that:
(a) GIL shall not in any way be regarded as an agent of the relevant third party (even if a member of the GAINSKY INVESTMENTS LTD) and that the Customer will establish and/or maintain its account or conclude and effect any transaction with the relevant party only on the basis that GIL will have no liability or responsibility for any representation or statements made to be relied on by the Customer in establishing and/or maintaining such account or effecting such transaction; and
(b) GIL may however receive one or more payments for it having referred the Customer to the relevant party for the Customer to open and/or maintain an account with such party or effect any transaction with such party. The Customer agrees and consents to the foregoing and GIL’s retention and appropriation wholly for its own account and benefit of such payments.
18. Unclaimed Moneys and Assets
If there are any monies, Capital Markets Products or other property standing to the credit of any Account (including a trust or custody account) or otherwise held by GIL or its Nominee or Sub-Custodian for and on behalf of the Customer which are unclaimed by the Customer six (6) years after the Customer’s last transaction with or through GIL and GIL determines in good faith that it is not able to trace the Customer, the Customer hereby irrevocably agrees that all such moneys, Capital Markets Products and other property including any and all accretions and accruals thereon (which in the case of monies shall include all interests earned thereon and all investments and their respective accretions and accruals which may have been made with such monies; and in the case of Capital Markets Products shall include all accretions and accruals thereon) shall be deemed to have been abandoned by the Customer in favour of GIL and may be appropriated by GIL to and for itself to utilise in any manner GIL so wishes for its own benefit. The Customer thereafter shall have no right to claim such moneys, Capital Markets Products or property, or their accretions and accruals with the Customer being deemed to have waived and abandoned all its rights to such moneys, Capital Markets Products or property (and any other property as may accrued to it) in favour of GIL.
19. Customer Assessments
The Customer further acknowledges that its application to open an Account, undertake a Transaction or utilise a Primary Service may be subject to GIL having established that the Customer has the requisite knowledge and competence under Applicable. Where GIL has determined that such Customer Assessments are required in respect of the Customer under Applicable Laws, (a) if the Customer is assessed or is deemed by GIL not to possess the requisite knowledge and competence, GIL may refuse to permit the Customer to open an Account, to enter into any such Transaction or to utilise any such Primary Service, without any liability or responsibility whatsoever to them Customer; and (b) the Customer may be assessed or deemed not to possess the requisite knowledge and competence (i) in accordance with Applicable Laws or (ii) by reason of the Customer’s failure or refusal to provide all relevant information to GIL for such Customer Assessments. To the fullest extent permitted by law, in conducting any Customer Assessment, GIL does not undertake any duty or obligation to ensure that any Transaction or Primary Service is suitable or recommended for the Customer and GIL shall not be regarded as making any recommendation or suitability representation to the Customer by reason only that GIL permitted the Customer to open an Account, enter into any Transaction or utilise any Primary Service.
20. No Waiver
If GIL does not exercise or delays exercising a right whether under the terms and conditions under this Document and the Application Form or otherwise, this does not mean that it has given up or waived the right or that it cannot exercise the right later. No failure to exercise or enforce and no delay in exercising or enforcing on the part of GIL of any right, power or privilege shall operate as a waiver thereof, nor shall it in any way prejudice or affect the right of GIL afterwards to act strictly in accordance with the powers conferred on GIL under the terms and conditions under this Document and the Application Form, nor shall any single or partial exercise of any right, power or privilege of GIL preclude any other or further exercise thereof or the exercise of any other right, power or privilege of GIL. Further, unless otherwise expressly agreed in writing by GIL, no waiver of any provision in this Document, rules and regulations applicable to any exchange or clearing house, or otherwise imposed by GIL relating to all or any Transaction, Primary Service or Account may be implied from any conduct or course of dealing between the Customer and GIL. The only way GIL can waive any of its rights is by way of written notice to the Customer as duly signed by the manager of GIL or his supervisor.
The Customer agrees, acknowledges and accepts that GIL may amend, vary or supplement any terms or conditions hereunder of this Document and/or the Application Form or any additional or specific terms or conditions relating to any Account, Primary Service or Transaction by notice to the Customer by any means GIL deems fit, including notification via the web site and/or Company APP, and any such amendment, variation or supplement shall take effect as from the date of such notice or the date specified in such notice (as the case may be). If the Customer continues to give Instructions in respect of or operate any Account, makes use of any of the Primary Services or to effect any Transaction after receiving such notice, the Customer shall be deemed to have agreed to any such amendments, variations or supplements without reservation.
22. Continuity of Terms
This Document shall be binding on GIL and the Customer and their respective successors in title and assigns, and shall continue to be binding on the Customer notwithstanding any change in the name or constitution of GIL, any change in the ownership structure of GIL, or the consolidation, amalgamation or merger of GIL into or with any other entity.
If any provision of this Document is or becomes illegal, invalid or unenforceable, the same shall not affect the legality, validity or enforceability of any other provision of this Document nor the legality, validity or enforceability of such provisions under the law of any other jurisdiction.
24. Rights and Remedies
All of GIL’s rights and remedies under this Document are cumulative of, in addition to, and not exclusive or in derogation of, any other rights or remedies provided or available to GIL hereunder, by law, in equity or by any other agreement.
If any event occurs (including the introduction, implementation, operation or taking effect of, any Applicable Laws, or any change in Applicable Laws or in their interpretation or application by any governmental authority or agent) which makes or declares it unlawful or impracticable for either GIL or the Customer to exercise its rights or perform its obligations under this Document, GIL shall in good faith determine if this Document may be amended or the trading arrangements restructured in a manner which is lawful. If GIL determines in good faith that this is not reasonably practicable, GIL may terminate any Account(s) or any Primary Service accordingly.
26. Governing Law and Jurisdiction
This Document shall be governed by and construed in accordance with Republic of BVI law. In relation to any legal action or proceedings arising out of or in connection with any Account (including Transactions effected for the Account) or referable to any Primary Service, the Customer hereby submits to the non-exclusive jurisdiction of the courts of the Republic of BVI and the Customer waives any objection to the proceedings on the ground that the proceedings have been brought in an inconvenient forum. Nothing in this Document restricts the right of GIL to submit dispute to any other court of competent jurisdiction and the Customer agrees to submit to the jurisdiction of such other court, whether concurrently or not. The Customer hereby nominates and appoints his trading representative, financial adviser or fund manager as the case may be to be his agent for service of process of any documents commencing and otherwise relating to any such legal action or proceedings brought by GIL.
27. Compliance with Applicable Laws
The Customer’s relationship with GIL hereunder, the opening, maintaining and operation of all Accounts, the provision of all Primary Services, the implementation and execution of all Instructions, and the entry into and settlement of all Transactions, shall be subject at all times to Applicable Laws. Notwithstanding anything herein to the contrary, GIL may take or refrain from taking any action whatsoever and the Customer shall do all things required by GIL (including the giving by the Customer of its full co-operation with any market, exchange or clearing house), in order for GIL to secure, procure or ensure for GIL’s benefit all compliance with Applicable Laws or any order of court/authority and GIL shall have no responsibility or liability whatsoever to the Customer. Further, the Customer shall ensure that all necessary authorisations, licences, approvals and consents of any governmental or other regulatory body or authority applicable to each Transaction are obtained and that the terms thereof and of all Applicable Laws are complied with. GIL may require the Customer to supply, and the Customer shall supply such evidence of compliance with as GIL may require. Notwithstanding the foregoing, the absence or lack of any such authorisation, licence, approval or consent shall not be a bar to any action or proceedings for recovery of payment or delivery by GIL against the Customer in respect of any Account, Primary Service or Transaction. The Customer agrees that GIL shall not be required to inform or obtain prior consent from the Customer to comply with any order or directive of any court or any applicable regulatory authority issued on or in respect of the Customer’s Account. The Customer further agrees that GIL shall not be required to inform the Customer after having complied with such order or directive, and GIL shall not be responsible for any loss whatsoever to the Customer’s Account arising from GIL’s compliance with such order or directive.
PART B : Conditions For The Primary Services
SECTION 1 : Managed Account Services
1. Managed Account Services
GIL agrees that it will, subject to its acceptance on its sole and absolute discretion of the Customer’s request as indicated in the Customer's Application Form for a managed account, open a discretionary account (the “Managed Account”) and undertake on behalf of the Customer, whether individually or jointly with the funds of such other parties as the GIL may at its discretion decide, the investment of the Customer's funds and the management of a portfolio of Capital Markets Products procured through the use of such funds (the “Investments”) and other related services (the “Managed Account Services”), subject to the terms and conditions of this Section 1, which shall apply in addition to all other applicable terms and conditions under this Document and the Application Form.
2. Appointment and Functions of GIL as the Manager
The Customer agrees to appoint GIL as the manager to manage the Managed Account for the benefit of the Customer with full authority from the Customer to invest the Customer’s funds at GIL 's sole and absolute discretion, without reference to the Customer and at such times as GIL thinks fit, in any Investments in accordance with the investment guidelines set out in the Schedule to the extent relevant to the type of Managed Account opened. For this purpose (but without limiting the generality of the foregoing), in connection with the provision of Managed Account Services, GIL is authorised by the Customer to take such other steps including to:
(a) make, purchase, sell, deal, redeem, hold, subscribe for, convert or otherwise deal with any Investments of whatever nature, at such time and at such prices and denominated in such currency and on such terms as it sees fit, and to sign any documentation required in connection with such transactions;
(b) to exercise or refrain from exercising any right (including governance and ownership rights) conferred by a particular Investment to buy, sell, subscribe for, exchange or redeem an Investment;
(c) exchange or convert all or any part of the Managed Account for or into any Investment;
(d) carry out of such foreign exchange transactions in connection with the Investments as GIL may deem necessary or desirable;
(e) pay and collect monies from the Managed Account for any purpose related to the management of the Managed Account pursuant to the terms and conditions under Part A and Section 1 of Part B of this Document;
(f) to monitor scrip and cash positions and to collect dividends, interest and other payments in respect of any of the Investments and the proceeds of any realisations thereof on the Customer’s behalf;
(g) deal with the Managed Account as GIL in its sole and absolute discretion considers advisable and generally to exercise on the Customer’s behalf all powers in relation to the Managed Account which the Customer could exercise if personally managing the Managed Account;
(h) do any act or execute any document or enter into any contract or agreement it deems necessary or desirable for the management of the Managed Account herein, in the name of, binding against, and on behalf of the Customer;
(i) place orders for the execution of Investment transactions with or through such Intermediaries as GIL may select, subject to terms of business agreed with GIL or implied by market practice;
(j) to conduct transactions outside the market in which Investments are normally traded, so long as GIL purchases or sells at terms it considers appropriate and beneficial to the Managed Account having regard to all the circumstances;
(k) to deposit the Investments into one or more bank accounts opened and operated by GIL which will be maintained and designated as Customers' Trust Accounts with any licensed bank or licensed financial institution in and outside Republic of BVI and its branches, offices or branches of such offices in and outside Republic of BVI;
(l) at GIL’s sole and absolute discretion and for the purpose of covering the Customer's or the Managed Account's settlement obligations with respect to short positions in Capital Markets Products effected for the Customer or the Managed Account, to borrow relevant Capital Markets Products and on such terms as GIL deems appropriate provided that the aggregate limit for such borrowing shall not exceed fifty percent (50%) of the value of the assets of the Managed Account at the time of such borrowing as determined by GIL in good faith;
(m) to exercise any and all powers in respect of the Investments as if GIL was the beneficial owner thereof.
3. Documents and Information
The Customer agrees from time to time to sign (or cause to be signed on its behalf) all such documents and to provide all such information or documents as GIL may consider necessary or desirable in connection with management of the Managed Account herein, the terms and conditions set out in this Section 1 and/or the applicable terms and conditions set out in this Document and in the Application Form or which is required by any Applicable Law. The Customer shall be responsible for ensuring that information provided to GIL is true, accurate, complete, up-to-date and not misleading in any respect.
4. Safe Custody/Execution of Instructions
The Customer acknowledges and agrees that GIL, insofar as it provides execution and/or clearing services for dealing transactions for the Managed Account and consequential custodial services, does so separately under its capital markets services licence for dealing in Capital Markets Products and providing custodial services with respect to Capital Markets Products and strictly in accordance with the relevant terms and conditions in this Document and Application Form. The Customer acknowledges and agrees to the relevant terms and conditions in this Document and Application Form for provision of dealing and custodial services.
The Customer hereby makes the following representations to GIL and which GIL has relied on to agree to open the Managed Account for the Customer and provide the Managed Account Services to the Customer:
(a) it has all necessary power and authority to authorise GIL to negotiate, execute, deliver and perform any agreement in connection with the provision of Managed Account Services under this Section 1 on its behalf and to perform its obligations under any such agreements and enter into the transactions contemplated by this Section 1, and has taken all steps necessary to appoint the Investment Manager to perform the services envisaged in this Section 1;
(b) it is acting as principal with respect to the transactions contemplated under this Section 1 and shall accordingly be liable as principal for all obligations under this Section 1;
(c) the Customer understands the Investments involve a degree of risk;
(d) the Customer is tax-compliant in all the jurisdictions that he/she/it operates in and will at all times remain in compliance with all Applicable Laws, including all tax laws and regulations, exchange control requirements and registration requirements with regards the Managed Account(s) and assets of the Customer (“Tax Laws”);
(e) all funds and assets the Customer places and will place with GIL, and any profits that may accrue from their use are placed and will be dealt with in full compliance with the Tax Laws of the countries where the Customer is domiciled (i.e. where the Customer calls as home), resident or deemed resident in, employed, engaged in any business or trade, of which the Customer is a citizen or general or permanent resident, and/or which the Customer is legally otherwise subject to;
(f) the funds deposited in the Managed Account are from legitimate sources in connection with the Customer's regular business activities and which do not constitute the benefits of criminal conduct within the meaning of the Corruption, Drug Trafficking and Other Serious Crimes;
(g) the Customer agrees to instruct and authorise GIL to carry out any foreign exchange transaction in relation to the Managed Account;
(h) the Customer is the beneficial owner of the Investments or is the legal trustee of the Investment on behalf of beneficial owners, and the Customer undertakes (and where the Customer is not the beneficial owner of the Investments, for itself and for each of the beneficial owners) to indemnify GIL fully and keep GIL harmless from and against any and all claims and demands by any person or persons thereto or thereon; and
(i) the Customer's funds are made available for discretionary management by GIL pursuant to the terms and conditions of this Section 1 free from any liens or other encumbrances.
6.1 The provision of the Managed Account Services of GIL to the Customer is not deemed exclusive. Nothing in the terms and conditions of this Section 1 or this Document or Application Form shall in any way be deemed to restrict the right of GIL from performing investment management or other services for any other person or entity, and the performance of such services for others shall not be deemed to violate or give rise to any duty or obligation to the Customer. GIL may retain for its benefit all fees, commissions, brokerages or similar payments and other monies payable thereby. In exercising its rights and discretion under the terms and conditions of this Section 1, GIL is entitled to have regard to the collective interests of all of its Customers as well as the particular interests of the Customer.
6.2 The Customer consents and agrees that, to the extent permitted by Applicable Laws, GIL may (but is not obliged to) aggregate investment sale and purchase orders for the Managed Account with similar orders being made contemporaneously for other accounts managed by GIL if, in GIL’s reasonable judgment, such aggregation is reasonably likely to result in an overall economic benefit to the Managed Account, based on an evaluation that the Managed Account is benefited by relatively better purchase or sale prices, lower commission expenses or beneficial timing of transactions, or a combination of these and other factors. The Customer acknowledges and agrees that aggregation may operate to the advantage or disadvantage of the Customer and that GIL shall not be responsible or liable for any Loss caused to the Customer as a result of aggregation.
7.1 GIL shall use all reasonable efforts to make available to the Customer a report on the Managed Account in such form as it deems appropriate in its sole and absolute discretion and at monthly intervals. These reports shall be sufficient evidence of the Investments held in the Managed Account and of Transactions in connection with the Managed Account. For the avoidance of doubt, any contract or confirmation notes that GIL may receive with respect to transactions for the Managed Account on the Customer’s behalf will be received by and custodised with GIL and may not be provided to the Customer.
7.2 The Customer acknowledges that the value of Investments in the Managed Account stated in the report on the Managed Account provided by GIL shall reflect GIL's good faith effort to ascertain the price of the Investments. The Customer acknowledges that variations in market conditions will mean that the value of Investments shown in the report on the Managed Account and any other reports do not necessarily reflect realisable values.
8. Authority / Mandate Instructions
8.1 The Customer authorises GIL to perform all acts (on its behalf or otherwise) at any time which are in GIL 's sole opinion necessary or desirable to permit it to perform its duties and exercise its rights and discretion under the terms and conditions of Part A and Section 1 of Part B of this Document and to act on the Instructions of the Customer and to comply with the provisions of any Applicable Laws or obligation (including any requirement imposed on it to disclose information relating to the Managed Account to any taxation or other governmental authority) to which GIL may be subjected in relation to the terms and conditions in this Section 1, this Document and the Application Form.
8.2 GIL may act by any of its officers or employees and may delegate the performances and its powers, duties and discretion hereunder to, and may affect any transaction through any agent or broker (“Delegates”) as it deems fit including any such agent or broker that may be an Associate of GIL. GIL and its Delegates, shall, without the need for prior consent of or subsequent notification to the Customer, be entitled to appoint or retain third parties (including any Associate of GIL) to perform any Managed Account Services.
8.3 Where the Customer (i) maintains a Trading Account with GIL in its capacity as a dealer and/or is serviced by a representative (“Representative”) associated with GIL, or (ii) has been referred or advised by a third party financial adviser (“FA”) on the account, the Customer authorises and instructs GIL to provide the Representative or FA with any information within its knowledge relating to the Customer, whether such information has been acquired by GIL pursuant to, or in connection with the terms and conditions of this Section 1 and/or the relevant terms and conditions in this Document and Application Form or otherwise and such other information as the Representative or FA may request relating to the Managed Account and its transactions. The Customer acknowledges and confirms that its said authorization and Instruction is to permit the Representative or FA to have access to information with respect to the Managed Account so as to enable the Representative or FA to be better placed to service the Customer for the Customer’s trading or investment activities.
8.4 The Customer also acknowledges and consents to GIL having the right to pay any fees or commission to third parties (including the Representative or FA) through whom the Customer was informed of the services of GIL available to the Customer both on a one off basis as well as by way of periodic payments and for such third parties to receive and appropriate for themselves such fees or commissions without the need to account for the same to the Customer.
8.5 The Customer also acknowledges and agrees that GIL shall not be imputed with notice or knowledge of any information the Customer may have communicated to his Representative or FA if such information had not in fact been on-ward communicated by the Representative or FA to GIL.
9. Fees, Charges and Expenses
9.1 In consideration of the Managed Account Services agreed to be provided by GIL in accordance with the terms and conditions in this Section 1, Document and Application Form, the Customer agrees to pay GIL management and performance fees. The Customer also agrees to pay all costs and expenses (including all taxes, duties, levies, brokerage, commissions and fees, including all fees due and payable for custodian services rendered from time to time incurred) in connection with the Managed Account (including fees of Delegates or third parties appointed under Clause 8.2).
9.2 GIL may charge to and recover from the Managed Account any costs, expenses and the amounts due to it hereunder. GIL shall have a general lien over the Managed Account or any and all other property and rights of the Customer maintained with or subject to the control of GIL for all amounts payable to it by the Customer whether present or in the future, actual or contingent and in whatever currency. GIL may at all times exercise this lien by effecting a sell out of any or all of the Capital Markets Products (if any) and apply the net proceeds towards settlement or discharge of the Customer’s obligations to GIL. GIL may at any time without prior notice to the Customer realise any part of the Managed Account and may apply the proceeds (or any other amounts held to or payable to the Customer) in or towards settlement of such amounts and may convert any sum from one currency to another at such rates of exchange as it deems fit for this purpose.
9.3 GIL shall be entitled to receive and retain for its absolute use and benefit (without any liability to account to the Customer) any brokerage rebates, commissions, fees, other payments or benefits which it receives in connection with or derives from any transaction involving the Managed Account and may pay such rebates, commissions, fees, payments or benefits to such persons as it deems fit for the purposes of the transactions involving the Managed Account.
10. Exclusion of Liability
10.1 GIL makes no representation, warranty or guarantee as to the performance, returns, increase in or retention of value or profitability of the Managed Account. GIL will manage the Managed Account, subject to this Section 1 and the applicable terms and conditions set out in this Document and in the Application Form, in accordance with its usual business practice and will not be responsible or liable for any loss resulting from any decline in value of the Managed Account, the exercise of any of GIL’s rights and discretions or the performance of any of its duties for the purpose of managing Customer’s Managed Account, an error on judgment or error of fact, except only in the case of GIL’s own wilful default or gross negligence, or any Loss arising whether directly or indirectly out of or in connection with the reports and/or information supplied by GIL.
10.2 GIL shall not be responsible for or liable to investigate the creditworthiness or status of any issuer, guarantor, exchange, broker or other person liable in respect of any authorised investment, the validity or binding effect thereof or of any related document or any similar matter. GIL shall not be liable for the acts or defaults of any agent, broker, custodian or nominee engaged in connection with this Document unless it can be shown that GIL failed to exercise due care in the selection thereof or for any act or omission or any loss arising by reason of any cause beyond the Manager’s reasonable control.
10.3 This exclusion of liability provisions are in addition to all other exclusion of liability provisions in this Document.
11. Withdrawals And Closure of Account
11.1 The Customer may, subject to the Customer having discharged all outstanding obligations (including contingent obligations) to GIL, make withdrawals from the account by giving GIL written notice to that effect.