Terms of Business relating to the provision of ‘internet services’

1. Definitions & Interpretation

In these Terms of Business ‘we’ means Capital International Limited whose registered office and principal place of business is Capital House, Circular Road, Douglas, Isle of Man, IM1 1AG, British Isles and ‘you’ means the Client to whom they are addressed.  In addition certain words are used with a specific meaning. These words are set in italics in the text and their meanings are as set out below:

“Authorised Representative” – any person authorised by you to be its representative in a Schedule of Authorised Representatives or otherwise

“Business Day” – a weekday, other than a Saturday, on which the London Stock Exchange shall be open for business;

“Business Hours” – 08.00 am to 17.30 pm GMT/BST on any Business Day or such other hours as may be notified from time to time and normally restricted to the hours that the London Stock Exchange is open for business

“Cash Accounts” – the accounts held from time to time at Pershing for the purposes of this Agreement;

“CIL Terms of Business” – the CIL Terms of Business entered into by CIL and you from time to time

“the Rulebook” – means the Isle of Man Financial Services Act 2008 Financial Services Rulebook as amended from time to time;

“Connectivity” – direct electronic communication including e.g. the World Wide Web, host-to-host systems, CIL Website, or other relevant third party connectivity providers

“FSA” – the Isle of Man Government Financial Services Authority;

“Orders” – Instructions by you to CIL to effect a Transaction

“Pershing” – Pershing Securities Limited, a company incorporated in England, which is a member of The London Stock Exchange and regulated by UK The Financial Conduct Authority and whose place of business is situate at Capstan House, One Clove Crescent, East India Dock, London E14 2BH;

“Pershing Agreement” – the agreement between CIL and Pershing relating to the provision of clearing and settlement and custody facilities dated 14th August 1996;

“Portfolio” – collectively those customer accounts which you maintain with CIL from time to time to include the underlying cash and assets whether in pooled or designated accounts

“Schedule of Authorised Representatives” – a separate written schedule which is used to record the name, address and contact information of Authorised Representatives of yours

“Security Codes” – user names, passwords, access codes, individual user identification numbers or other identification measures assigned by CIL to you for use by Authorised Representatives duly authorised by You to use the Website

“£” and/or “Sterling” – the lawful currency for the time being of the United Kingdom.

“Transaction(s)” – means transaction(s) for the sale, purchase or subscription of investment(s)

“The Website” – the Internet website provided by CIL for viewing and use by inter alia you and your Authorised Representatives

1.2  References to a clause, Schedule or paragraph are (unless otherwise stated) to a clause of and Schedule to this Agreement and to a paragraph of the relevant Schedule.

1.3  You have previously entered into the CIL Terms of Business

1.4  CIL currently provides you with execution only dealing services (where you place Orders either in writing or verbally) together with custody and administration services         

1.5  It is now intended that CIL shall provide to you ‘online’ or ‘internet’ dealing services, view only Portfolio trade and settlement history together with information, advice, recommendations and research via the Internet, particularly via CIL’s Website and the sites of CIL’s Affiliates on the World Wide Web (together “Connectivity”) in the manner set out in this Agreement.   

1.6  The parties have agreed that their relationship in connection with such matters shall be governed by the terms and conditions set out in this Agreement and to the extent that they do not conflict with the same, CIL’s Terms of Business.

1.7  For the purposes of this agreement, reference to ‘you’ shall where appropriate be deemed to include reference to your Authorised Representatives.

2.  Use of the Internet & Intellectual Property rights

2.1  You will only be entitled to access Connectivity and if appropriate place Orders via the Website for your own internal business use by way of revocable licence on a non-exclusive, non-transferable basis. The content of the Website may not be altered or modified in any way nor should it be used other than for the purpose of your use of the Website.

2.2  You acknowledge that the Website contains copyrighted material and other proprietary information and that You do not acquire any ownership or intellectual property rights by downloading such material. All rights and interests and all intellectual property rights (including, without limitation, all trademarks and trade names in or relating to CIL or the Website) are owned by CIL or its suppliers and will remain it’s property or that of its suppliers at all times. You will have no right or interest in those intellectual property rights other than the right to access the Website and to use the Services provided via the Website.

2.3  You may download copyrighted material from the Website in order to use it for its designated purpose only. Except as otherwise expressly permitted under copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material is permitted without CIL’s prior written consent.

3.  Access to Connectivity

3.1  The means by which you send Orders to CIL shall be as agreed from time to time between you and CIL.

For the purpose of access to Connectivity or any part thereof CIL may assign or provide, as appropriate and necessary, user names, passwords, access codes, individual user identification numbers or other identification measures (‘Security Codes’) to you for use by representatives duly authorised by you to use Connectivity. CIL may from time to time change or prevent or restrict the use of any Security Codes relating to Connectivity without notice or liability.

3.2  You may be asked to comply with separate terms of business in relation to specific connectivity solutions.  Such terms will be in addition to these Terms.

3.3  You shall promptly notify CIL immediately in writing of any loss or theft of any Security Codes relating to Connectivity or if you believe (or have reason to suspect) that the confidentiality of any Security Codes has been compromised or that there has been, or may be, any unauthorised use of Connectivity.

3.4  You shall be solely responsible for all uses of Security Codes assigned or provided to you and for any acts or omissions during such use, and CIL shall be entitled to treat any access to or use of Connectivity as having been duly authorised by you where it appears that the appropriate Security Codes have been used and, accordingly, you shall comply with all obligations to CIL in respect of an Order or Transaction executed through Connectivity

3.5  You warrant that it shall: –

3.5.1  have developed and thereafter maintain adequate and effective security procedures to prevent access to Connectivity by persons other than Authorised Representatives or the use of Connectivity to place Orders that have not been duly authorised on you behalf or the transmission of incorrect Orders and/or access to Connectivity by any unauthorised person or entity.;

3.5.2  Keep secure and procure that it’s Authorised Representatives shall keep secure any Security Codes issued to it or them by CIL. You shall not and shall procure that your Authorised Representatives shall not disclose the Security Codes to any third party or any unauthorised person in its organisation (except as may be expressly agreed in writing by CIL) and that the Security Codes shall not be retained anywhere on your computers in plain text: and

3.5.3  Ensure that all Authorised Representatives use Connectivity only in accordance with these Terms                                                                                                       

3.6  Subject to the above, you shall be solely responsible for providing and maintaining any equipment and software and for making all appropriate arrangements with any telecommunications suppliers necessary in order to use Connectivity. CIL make no representation or warranty, as to the suitability or otherwise of any such equipment, software or arrangements that you may provide or maintain.

4.  Provision of Electronic Dealing and Information Services

4.1  CIL currently provide inter alia (execution only) dealing services where you provide Orders either in writing or verbally.  CIL now intend to provide to You dealing services, information, advice, recommendations and research (Services) via Connectivity

In the event that CIL provides to you facilities from time to time to place Orders or otherwise carry on dealings with CIL via the Website such Orders or dealings will be effected on the terms set out in this Agreement and any variation by way of notice or additional agreement in order to regulate such activity 

4.2  Subject to the procedures set out at Clause 5 below. CIL will normally execute your Orders to buy or sell investments as soon as is practicable after receipt of those Orders during Business Hours on any Business Day. If CIL receives an Order or Orders outside Business Hours or with insufficient time to execute them that Business day (having regard to the normal market trading hours for the exchange in which the Order is to be executed) CIL will execute them at the earliest practical opportunity on the next Business Day following the start of normal market trading hours (unless the Order is time limited and has expired) although CIL may not necessarily be able to obtain the opening market price. You should note that the volatility in price movements and the spread between buying and selling prices may be greater when the market first opens than at other times of day.

4.3  Orders may be subject to any price limits or restrictions that you may specify either electronically or in writing from time to time, (each such notice shall hereinafter be referred to as “Your Requirement”) and any Transaction that CIL enters into will be subject to the rules and customs of the relevant exchange and/or market and, in particular, in relation to equity investments, to the practices of Pershing. In the event that such practices of Pershing have the effect that any reasonable Your Requirement cannot be met, CIL shall take all reasonable steps to accommodate you and to provide appropriate solutions to such Your requirement either by procuring the provision of the appropriate solution by Pershing, or otherwise. CIL will use its reasonable endeavours to comply with its obligations of timely execution under the Rulebook. In providing such execution services, CIL shall not advise about the merits of a particular order.

5.  Use of the Website ‘Online Trader’© Order entry system

5.1  Where CIL may make available to You the ability to place Orders through the Website any Content that CIL include on the Website in respect of an Order does not constitute an offer to You that CIL will enter into a Order on the terms set out. CIL may amend that Content at any time at its sole discretion, including, without limitation, after You have submitted an Order to CIL. In the event of any such amendment, CIL shall use its best endeavours to communicate that amendment to you by any reasonable means at its disposal and with due regard to these terms.

5.2  CIL may act on any Order sent to CIL through the Website in reliance upon the use of any of your passwords or security devices, irrespective of the identity of the person sending the Order. CIL may ask you to confirm any such Order/s in writing before CIL act on it, but CIL are not obliged to do so. Once you have sent CIL an Order indicating that you wish to proceed with the Order, that Order will constitute Your irrevocable offer to CIL (which will bind You) to enter into an Order on the terms set out in Your instructions, these Terms: and any general terms that are set out in the Content or which would otherwise apply in respect of that Order, including without limitation, any exclusions or limitations of our liability.

5.3  You authorise CIL to act upon, and you agree to be bound by, any Order howsoever transmitted (oral, written, fax or other electronic instructions (excluding e-mail) being transmitted at your sole risk with respect to legibility, ambiguity and unauthorised transmission).

5.4  CIL may act on any Order sent to CIL through the Website which purport, or which CIL reasonably believes, to come from any person named on the Authorised Representatives List, and in reliance upon the Security Codes used by you in sending the Order, whether or not such Orders are confirmed in writing, and irrespective of the actual identity of the person sending the Order.  Any notice to vary the list of Authorised Representatives must be in writing and CIL will not be bound by the same until in receipt of the actual notice that any person or persons is or are no longer an Authorised Representative.

5.6  CIL may require you to confirm Orders in writing before CIL act on it (but CIL are not obliged to do so) and may refuse an Order in relation to any particular Transaction.  In the event that CIL shall refuse to accept an Order CIL shall use its best endeavours to communicate that refusal to you by any reasonable means at its disposal and with due regard to these terms.

5.7  If You send CIL an Order through the Website, You agree that the act of sending CIL that Order electronically is evidence of your intention to be legally bound to the same extent as if you had manually executed that Order and that You will not contest the validity, legally binding nature or enforceability of the Order on the basis that it was made electronically.

5.8  An Order can only be placed by you in respect of an Investment which is contained in the Authorised Stock List displayed on the Website from time to time by CIL. 

In the event that you wish to place an Order in respect of an investment not so listed, you shall first send a request either electronically, or in writing, or in such other form as CIL may require for the new Investment to be considered for inclusion in the Authorised Stock List. You shall in this regard meet and assist with such requests for additional information as CIL may require.

5.9  CIL will not be bound in respect of any Order until it has confirmed to You that it has accepted that Order.  CIL will provide you with an electronic confirmation of acceptance of the Order on the Website and of each resultant Transaction that CIL enter into and may also provide you with a written confirmation of any Transaction. It is your responsibility to monitor the Website to ensure that Orders are accepted by CIL.

5.10  No commitment:  sending CIL an Order will not in any way entitle you to purchase or sell any Investments. CIL cannot assure you that you will be able to acquire or dispose of all of the Investments for which you have instructed CIL that you wish to purchase or sell

5.11  You may not amend an Order on the Website. You may only cancel an Order on the Website if CIL has not at the time of the cancellation accepted the Order. An amendment should be effected by cancellation and re-instruction by way of a new Order.

In all other circumstances any amendment or cancellation must be sought in writing, or over the telephone during a Normal Business day, and if the relevant Transaction has been effected by the time of the proposed cancellation or amendment only with the consent of CIL and at your cost.

5.12  You undertake to fully indemnify CIL and keep CIL indemnified against all reasonable costs, expenses, liabilities and losses which CIL or any affiliated company may incur and claims which may be made against CIL or any affiliated company, as a result of CIL acting in accordance with your authorisation contained in any section of Clause 5 above.

5.13  In respect of the provision of such services

5.13.1  CIL shall not be responsible for any delays or inaccuracies in the transmission of Orders or other information or the execution of orders due to any cause whatsoever beyond CIL’s reasonable control.

5.13.2  CIL will send you with due despatch a written confirmation or contract note in respect of each Transaction effected on behalf of you

5.13.3  Confirmation notes and contract notes, in the absence of manifest error, shall be conclusive and deemed acknowledged by you as correct once You have settled the transaction in the normal course of business and in any event within seven days of despatch, unless

5.13.3.1  CIL receives from you notice to the contrary;

5.13.3.2  CIL notifies you of an error therein;

5.13.3.3  in the absence of either of the above CIL settles the transaction in the normal course of business.

6.  Continuing Obligations

6.1  CIL hereby agrees and undertakes as follows:-

6.1.1  throughout the duration of this Agreement CIL shall retain all documentation and records received by it in connection with this Agreement for a period of six years. After any such record or document has been held by CIL for a six year period CIL shall consult with and take instructions from You, either generally or in respect of individual records, as to whether such records or documents should be returned to You or destroyed.

6.1.2  all records and documents held by CIL for the purposes of this Agreement and in respect of the Portfolio shall be accessible to You either (in respect of all computer records) remotely from Your offices (if practicable) or (in respect of paper documents) for personal inspection at the offices of CIL on reasonable notice and for reasonable cause provided that if exceptional circumstances arise, a personal inspection may be requested during normal office hours on one Business Day’s notice. All reasonable costs not in the normal course of business incurred by CIL in terms of staff or management time in relation to such personal inspection shall be paid by you.

6.2  You hereby agree and undertake fully to comply with the terms of the Pershing Agreement for the duration of this Agreement, in all respects. Any default by you shall constitute a breach of this Agreement and notwithstanding Clause 3.1, shall entitle CIL to terminate this Agreement on three months’ prior written notice such notice to be served at any time after such breach and neither any delay on the part of CIL to serve such notice or the continuing provision of all or any part of the services in accordance with the terms of this Agreement shall preclude CIL from serving such notice whilst such breach is continuing and has not been, or is not in the process of being remedied to CIL’s satisfaction (if  capable of remedy).

6.3  Without prejudice to the generality of the foregoing in the event that as a result of CIL’s on-going relationship with Pershing, CIL is required to indemnify Pershing as a result of any failure by You to make any payment or delivery when it becomes due, You hereby agree and undertake to indemnify CIL in the same amount plus costs and reasonable expenses and interest to the extent that the same have been incurred by CIL for that purpose.

7.  Limit on Liability & Force Majeure

7.1  CIL may at any time without notice or liability change limit suspend discontinue or terminate Your access to the Website and any information service feature or function provided by means of Connectivity (including without limitation the securities that may be dealt through the Website, the limit or quantity of any such security and the equipment and software requirements to use the Connectivity)

7.2  You acknowledge that the Internet is not a secure medium for communication of sensitive information. You expressly agree that any use by it of CIL’s Website and Connectivity shall be at your sole risk. 

7.3  Except as expressly set out in these Terms and to the extent permitted by applicable law and regulatory rules CIL exclude any conditions, warranties and representations, express or implied, statutory or otherwise as to condition, satisfactory quality, performance, and fitness for purposes or otherwise regarding the Website, the Content and the Services offered. This disclaimer of liability applies to any damage or loss (including consequential loss) caused by any failure of performance, error, omission, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure or alteration or use of record.

7.4  CIL are not liable for any damage or loss that may be caused to any equipment or software due to any viruses, defects or malfunctions in connection with the access to or use of the Website and the Content or in connection with the Transactions or the Services

7.5  CIL makes no representation or warranty express or implied as to Connectivity or its capabilities or the results that may be obtained by you from using Connectivity.

7.5.1  You will be solely responsible for all orders, and the accuracy of all information, sent via the Internet using Your name or any security code issued to You.

7.5.2  CIL will not be responsible for any delay or inaccuracy resulting from technical errors or problems including, without limitation, in respect of your transmission of Orders that CIL does not receive or cannot send due to malfunction of communications equipment Connectivity or the Website

7.6  Neither party shall be held liable for any loss incurred by the other party which arises either wholly or in part as a result of any event or state of affairs which is beyond its control to prevent and the effect of which is beyond its power to avoid in relation to the administration, investment, dealing and safe custody of the Portfolio and which may arise inter alia, from delays or changes in market conditions whether before or after any transaction, market fluctuation, currency fluctuation, computer failure or labour dispute occurring within any organisation other than CIL, Pershing, or Your,  inability to communicate with market makers, or for any other reason and whereby the party in question is unable to take or refrain from taking, or shall not be obliged to take or refrain from taking, any action as a consequence thereof.

7.7  You acknowledge that the nature of electronic communications can be such that it is subject to delay and/or corruption and that Content may not be provided in real time or updated. The Website and any content on the Website is provided to You on an ‘as is’ basis. 

7.7.1  CIL does not guarantee that the Website or the Content is error free, accurate, up to date or available at all times. The provisions set out in this Agreement in respect of research apply to all Content made available to You on or through the Website.

7.7.2  Certain links may be included on the Website. Inclusion of these links does not imply CIL’s endorsement of or association with any products, services, content, information or materials offered by or accessible to you at the linked website. CIL are not liable for the content of any third party websites to which links are included in the Website. 

7.7.3  Certain information services and news feeds may be available on the Website. The information services and news feeds are not supplied, monitored or checked in any way by CIL. CIL are not liable for their content, truth, accuracy or completeness.

7.8  Use of the Website shall be on the basis that CIL shall not be liable if the contents of this Website or any viewing of it by you or any Authorised Representative is contrary to the laws applying in the jurisdiction where such access occurs.

7.9  You agree that the limitations and exclusions set out in this Paragraph 7 are reasonable having regard to the fact that the provision of the Services through the Website is a new and developing business activity that affords you greater convenience and ease of availability of information, the levels of risk associated with each of your and CIL’s obligations hereunder and all other relevant circumstances.

8.  Confidentiality

8.1  Each of the parties hereto undertakes to keep confidential and, except insofar as CIL may be required by necessity to disclose to Pershing in order for Pershing to perform its obligations under the Pershing Agreement in relation to You, not at any time to disclose or make known to anyone whomsoever or use for their own or any other person’s benefit any confidential information (including, but not limited to any information relating to operational procedures and computer systems) relating to each other’s businesses as the same may be conducted from time to time during the term of this Agreement and, in particular ( but without prejudice to the generality of the foregoing),  the Portfolio other than to the extent that the information in question:

8.1.1  is or comes into the public domain without fault on the part of the party to whom the same was disclosed or to whose attention the same has come;

8.1.2  was already known to the relevant party at the time the same was disclosed to it or came to its attention; or

8.1.3  has been disclosed to the relevant party by a third party which was able lawfully to disclose the same; or

8.1.4  is required to be disclosed for the purpose of enabling either party to perform its obligations under this Agreement, in which case CIL will give you reasonable notice of such disclosure.

8.2  CIL shall take all reasonable steps to ensure that Pershing and its officers and employees comply with the necessary undertakings contained in this clause 8 and any other person authorised by it to receive information regarding the Portfolio and any other confidential information.

9. General

9.1.  This Agreement, together with the Pershing Agreement and insofar as the terms of the same do not conflict with the terms hereof, the CIL Terms of Business, constitutes the entire and only legally binding agreements between the parties relating to the provision of services relating to the Portfolio and no variation of this Agreement shall be effective unless made in writing signed by or on behalf of all the parties and expressed to be such a variation. In the event of any conflict between this Agreement and the CIL Terms of Business (other than in respect of any terms contained in the Pershing Notice, in which case the terms of the Pershing Notice shall prevail), the terms of this Agreement shall prevail.

9.2   This Agreement may be executed in two or more counterparts and execution by each of the parties of any one of such counterparts will constitute due execution of this Agreement.

9.3   No failure or delay by either of the parties or time or indulgences given by either of them in or before exercising any remedy or right under or in relation to this Agreement shall operate as a waiver of the same nor shall any single or partial exercise of any remedy or right preclude any further exercise of the same or the exercise of any other remedy or right.

9.4   Time shall be of the essence in this Agreement, both as regards the dates and periods specifically mentioned and as to any dates and periods which may, by agreement in writing between the parties, be substituted for any of them.

9.5   In the event that any one or more of the provisions contained in this Agreement shall be invalid, illegal or unenforceable in any respect under any law, the validity, legality and enforceability of the remaining provisions shall not in any way be affected.

10.   Applicable Law and Jurisdiction

10.1  Unless otherwise indicated: (a) the Website is not targeted at the residents of any particular country and is not be intended for distribution to, or use by, any person in any jurisdiction or country where that distribution or use would be contrary to local law or regulation; (b) no Services will be available, and offering circulars or other information in respect of them will not be distributed, to persons resident in any country or jurisdiction where that offering or distribution would be contrary to local law or regulation or which would subject CIL to any registration or licensing requirement within that jurisdiction; and (c) no action has been or will be taken in any jurisdiction that would permit a public offering of any Investment described on the Website where that action is required.

10.2  In particular, CIL are not a registered broker-dealer or an investment adviser in the United States of America. CIL does not offer or seek to offer or substitute any services of a registered broker-dealer or an investment adviser in the United States of America.

10.3  This Agreement shall be governed by and construed in accordance with the laws of the Isle of Man.

10.4  The parties irrevocably submit to the exclusive jurisdiction of the Courts of the Isle of Man in respect of any claim, dispute or difference arising out of or in connection with this Agreement.

For access to confidential areas