Intermediary Terms of Business
In these Terms of Business ‘we’ or ‘us’ means one or more of the Capital International group of companies (“Capital International” or “CI”) specified below and ‘you’ means the independent intermediary as defined below to whom they are addressed (together ‘Parties’). In addition, certain words are used with a specific meaning, these words and their meanings are as set out below:
Agreement – means the Agreement contained in this document, including any appendices thereto.
CI - means one or more of the following companies; Capital International Limited (“CIL”) and Capital Financial Markets Limited (“CFM”); both incorporated in the Isle of Man and licensed by the Isle of Man Financial Services Authority and whose principal place of business and registered office is Capital House, Circular Road, Douglas, Isle of Man, IM1 1AG and CILSA Investments (Pty) Ltd, incorporated in South Africa and authorised by the Financial Sector Conduct Authority.
CI Solutions – The range of CI products and services by virtue of it acting as investment manager, administrator, custodian or in any other regulated activity.
Business Day - a weekday, other than a Saturday, on which the global foreign exchange markets shall be open for business.
Client/s – means a mutual client of the Intermediary and CI in respect of whom the former acts as an intermediary by providing inter alia investment advice or investment management services.
Intermediary - means an independent intermediary who deals in investments or arranges such deals, manages investments or gives investment advice.
Party / Parties – means CI and the Intermediary as defined herein.
1.0 Purpose
1.1 CI has an interest in the marketing of CI Solutions by virtue of it acting as investment manager, administrator, custodian, or in any other regulated activity thereof.
1.2 The Intermediary intends to make available CI Solutions to its Clients where appropriate.
2.0 General Principles of Conduct
2.1 You have the following responsibilities to CI and its/your Clients.
2.2 You must:
2.2.1 Act in a professional and ethical manner at all times.
2.2.2 Act for the benefit of Clients.
2.2.3 Act with independence and objectivity.
2.2.4 Act with the necessary skill, competence, and diligence expected from an intermediary acting reasonably and in accordance with industry standards.
2.2.5 Communicate with Clients in a timely and accurate manner.
2.2.6 Uphold the applicable rules governing capital markets.
3.0 Intermediary Activities
3.1 CI agrees with the Intermediary that the Intermediary will act as a non-exclusive Intermediary in respect of CI Solutions and in doing so will use its best endeavours to promote the CI Solutions to its Clients.
3.2 In the event that the Intermediary is also acting as an investment adviser or manager to the Clients who are to be introduced, the Intermediary shall for the purposes of this Agreement be the agent of the Client and will be solely responsible for undertaking the necessary assessment(s) of suitability of the CI Solution for the Client(s) and will provide CI with relevant duly completed and executed application forms.
3.3 Where the Intermediary recommends an execution only trading account for a Client, the Intermediary will not only be responsible for ensuring such an account is appropriate for the Client but the Intermediary will also be responsible for ensuring the securities that are bought and sold in the execution only account are also suitable for the Client. For the avoidance of doubt, CI takes no responsibility or liability for any security bought or sold in an execution only account.
3.4 The Intermediary will endeavour to service Clients’ requirements to ensure the Clients’ continuing commitment to the CI Solutions; and promptly provide CI with such information relating to Clients introduced to CI as CI may reasonably require from time to time.
3.5 The Intermediary shall use its best endeavours to coordinate with CI:
3.5.1 Its approach to and the manner in which it conducts its business with respect to:
3.5.1.1 The CI Solutions;
3.5.1.2 The Clients introduced by the Intermediary; and
3.5.1.2 To other intermediaries.
4.0 Scope
4.1 The Intermediary acknowledges that:
4.1.1 It shall operate as an independent contractor and shall not (and shall have no authority to) act as agent to CI or to incur any liability on behalf of CI or accept or make any contract binding upon CI or give or make or purport to give or make any warranty on behalf of CI.
4.1.2 It shall observe and ensure that its agents and employees observe the Terms of Business from time to time relating to the distribution or promotion of the CI Solutions whether contained in:
4.1.2.1 This Agreement;
4.1.2.2 In any prospectus or other document with respect thereto;
4.1.2.3 Imposed by law or regulations having the force of law in any country or territory in which:
4.1.2.3.1 The Intermediary is promoting the CI Solutions;
4.1.2.3.2 Any Client or potential Client is resident, is a citizen, or is a national.
4.1.3 In particular, but without derogating the generality of the foregoing, the Intermediary shall not directly or indirectly, without the prior written consent of CI, promote or market the CI Solutions in the United States of America, its territories and possessions and all other areas subject to its jurisdiction or to any citizen, national, or resident of the United States or to any corporation, partnership, or other entity created or organised in or under the laws of the United States of America or any political subdivision thereof or any estate or trust, the income of which is subject to United States federal income taxation, regardless of its source.
4.1.4 It shall observe the confidentiality of all matters relating to or concerning the business of CI, the CI Solutions, Intermediaries and Clients and not make disclosure thereof or in relation thereto, without the prior written consent of CI, except as may be required by law.
4.1.5 It shall observe and respect the commercial interests and reputation of CI and will not engage in any action or course of actions that might damage CI or CI’s reputation.
4.1.6 It shall only promote CI Solutions to Clients with whom the Intermediary has a client agreement and whose identity the Intermediary is able to verify for the purpose of relevant laws and regulations relating to money laundering.
4.1.7 CI reserves the right, at its discretion, not to accept business from the Intermediary.
5.0 Advertising, Promotional & Other Materials
5.1 In order to permit CI at all times to monitor compliance with local and other laws and regulations, the Intermediary shall not without the prior written consent of CI:
5.1.1 Circulate written information relating to the CI Solutions.
5.1.2 Issue any advertisement in relation to the CI Solutions or in relation to any trading or investment advisor or consultant or any management company or any other Party connected with any such CI Solutions.
5.1.3 Make or purport to make any representation on behalf of CI or the CI Solutions.
5.1.4 Provide information of any kind relating to the CI Solutions to the press, by way of interview, press releases or otherwise.
5.2 Provided that such written consent shall be deemed to be given in respect of the circulation or issue of any written information consisting of any prospectus or other document or any report issued or approved by CI and in respect of the making by the Intermediary of any representation which is contained in any such prospectus or other document or in any such report.
5.3 The Intermediary shall provide CI with drafts of all written information, advertisements and other material intended to be circulated by it which relate to the CI Solutions or CI or any other parties connected with such CI Solutions prior to the proposed date of publication.
5.4 The Intermediary is not authorised to respond on behalf of CI to any enquiries or requests for information received from the press relating to CI or the CI Solutions and the Intermediary shall, unless otherwise notified in writing by CI, decline to answer such enquires or requests but shall instead refer all such enquiries to CI.
5.5 The Intermediary shall ensure that all Clients introduced by the Intermediary are supplied with a copy of the most up to date CI product documentation (and relevant supplements), relating thereto and any other materials which CI may from time to time direct.
6.0 Intellectual Property Rights
6.1 Any and all Intellectual Property Rights (the “IPR”), arising as a result of, or as a consequence of the Intermediary activity in conjunction with this Agreement shall belong to CI for the full term of such rights and for all renewals or extensions of such rights. The Intermediary hereby assigns its full right, title and interest, past, present and future in and to the IPR to CI.
6.2 The Intermediary shall forthwith communicate to CI any designs, discoveries or other matters potentially the subject of the IPR arising as a result of, or as a consequence of the Intermediary’s activity in conjunction with this Agreement and shall not disclose them to any third party without the prior written consent of CI. CI shall own and the Intermediary shall deliver to CI, all documents, drawings, models, samples, prototypes and the like prepared by the Intermediary or for the Intermediary which relate to the IPR.
6.3 The Intermediary hereby agrees that it shall, at CI’s request but at no cost to CI, execute or procure the execution of any document CI requires to vest in CI, the full legal title to CI of the IPR and to enable CI to enjoy the full benefit thereof.
6.4 Any IPR shall be original and shall not be copied from any third party. The Intermediary shall indemnify and hold harmless CI, its servants and agents against any and all claims, damages, actions, or losses whatsoever incurred or suffered by CI, its servants and agents, arising in any way due to any claim by a third party that the IPR infringes the Intellectual Property Rights of the third party.
6.5 In the event that specific IPR is developed by the Parties for the purpose of pursuing this Agreement, it is agreed that such IPR shall be excluded from the terms of this Agreement but only if there is a specific written Agreement entered into by the parties in respect of that IPR at the outset of the development of the IPR.
7.0 Provision of Information by Capital International
7.1 CI shall from time to time provide the Intermediary with such information or advice relating to or in connection with the CI Solutions as may be reasonably requested by the Intermediary in connection with its duties and functions under the Agreement, provided that CI shall not be obliged to provide or supply the Intermediary with information which is not generally available to other intermediaries receiving fees from CI in connection with the promotion of the CI Solutions.
8.0 Warranty
8.1 The Intermediary and CI each hereby represent and warrant:
8.1.1 That it is and will at all times remain duly authorised or otherwise permitted under any relevant laws, rules and regulations to perform all of its services under the Agreement and that it has obtained and will maintain in force all requisite government and other regulatory consents, licences and approvals in relation thereto.
8.1.2 That it will notify the other Party in the event that its regulatory status changes, if it ceases to hold all or any of the government and other regulatory consents, licences and approvals in relation to its business.
8.2 The Intermediary hereby represents and warrants:
8.2.1 That the information provided by it within the application form is true and accurate and forms part of the Agreement between us.
8.2.2 That it will inform CI immediately in writing of any changes to the details or circumstances as given either in the course of application or at any subsequent date including but not limited to any change of name, address or contact details, and if you are a company or partnership, any change in your constitution or equivalent or in the composition, identity or addresses of parties connected to your account such as your officers, signatories, owner(s), controllers and beneficiaries as are applicable, and to provide us with documentary evidence of the change upon request.
8.2.3 That any materials and/or advertisements issued by the Intermediary in connection with the CI Solutions will comply in all respects with the provisions of any applicable rules, laws and regulations relating to such CI Solutions.
8.2.4 That if it is providing investment advice to any client that it will have completed a relevant assessment of the suitability of the Client for the chosen product or investments and will notify CI in the event that any such client relationship ceases or the Client’s circumstances change to such an extent as to affect the suitability of the product or service for the Client.
8.2.5 That it will disclose to its Clients the arrangements as to remuneration pursuant to this Agreement.
8.3 Each Party shall whenever requested to do so by the other Party, provide documentation or other evidence of the matters which are the subject of the warranty set out in Clause 8.1 above, and shall forthwith notify the other Party if any of the warranties contained in Clause 8.1 above cease at any time to be true.
9.0 No Partnership
9.1 Nothing in this Agreement shall constitute a partnership between the Parties or constitute either Party thereto, the employer or agent of the other.
10.0 Non-Exclusive
10.1 Subject to a written Agreement to the contrary, during the period of the Agreement the Intermediary may act in any capacity whatsoever, for or on behalf of, or be involved whether as principal agent or otherwise in the incorporation of or promotion or sale of shares or securities or interests in any company, trust, partnership, mutual fund or other investment body corporate or unincorporated, in addition to the CI Solutions as long as the services provided to third parties do not result in a conflict between the interests of CI and the interests of the third parties.
10.2 Similarly, CI may appoint such other intermediaries as it thinks fit to assist in the promotion, distribution and selling of the CI Solutions and CI may promote and distribute the CI Solutions directly or indirectly as it thinks fit.
11.0 Term
11.1 Save as hereinafter provided, the Agreement shall commence on the date thereof and shall continue for an initial term of 1 year and thereafter unless and until terminated by either Party giving to the other not less than one month’s notice in writing expiring at any time provided that in the case of an Intermediary such termination will not affect any transactions already initiated or any other outstanding rights and obligations and the terms of this Agreement will continue to apply for so long as the Parties have any outstanding obligations to each other.
11.2 Notwithstanding the foregoing, the Agreement may be terminated by either Party forthwith by notice in writing to the other Party if at any time and without liability on the part of the notifying Party if:
11.2.1 The other Party shall commit any breach of this Agreement which is incapable of being remedied by damages or otherwise; or if such breach that is capable of remedy shall not have remedied such breach to the satisfaction of the other Party within thirty days from the date on which such breach is notified in writing by one Party to the other.
11.2.2 The other Party shall have its authorisation under any legislation cancelled, suspended or restriction placed thereon.
11.2.3 The notifying Party shall go into liquidation or administration (except a voluntary liquidation for the purpose of reconstruction or amalgamation upon terms previously approved in writing by the other Party).
11.3 Without limiting any right to terminate this Agreement at any time, we may terminate this Agreement in the following circumstances:
11.3.1 Any information supplied by you during the application process or at any other time is found or believed to be misleading or false;
11.3.2 We are in an ongoing dispute with you and decide that we are unable to continue to provide services to you; or
11.3.3 You are abusive to our staff, which for the avoidance of doubt shall include activity which inter alia includes bullying or the exertion of undue influence or pressure in the exercise of their duties.
11.3.4 If we, in our sole and absolute discretion, determine that the continuation of our agreement with you is no longer commercially viable. For the purposes of this clause, a determination of “commercial viability” shall be made by CI acting in good faith and shall include (without limitation) considerations relating to:
11.3.4.1 Profitability or anticipated profitability of the relationship;
11.3.4.2 Operational, compliance, or risk management burdens;
11.3.4.3 Regulatory or legal developments affecting CI or the CI Solutions; and
11.3.4.4 Reputational or strategic considerations.
11.3.5 You acknowledge and agree that our rights under clause 11.3.4 are reasonable and necessary for the protection of our legitimate business interests and you shall have no claim against us arising solely out of our exercise of such rights, save in the case of fraud, wilful misconduct, or bad faith.
11.4 Upon termination for any reason the Intermediary will immediately return to CI all advertising, promotional and other materials which may have been provided to them by CI pursuant to Clause 5 hereof.
12.0 Anti-Money Laundering & Countering the Financing of Terrorism
12.1 You represent and warrant that you comply with and will at all times in the future comply with all and any local regulations relating to money laundering or countering the financing of terrorism (ML /CFT) from time to time.
12.2 In the conduct of our business we are bound by the provisions of the Isle of Man’s Anti-Money Laundering and Countering the Financing of Terrorism Code 2019 (“the Code”), as amended or updated from time to time, and you acknowledge and agree, in appropriate circumstances, to be subjected to a broadened risk assessment in accordance with paragraphs 6 and 9(4) of the Code which will take into account a risk assessment of yourself, whether you have met the customer, whether any elements of CDD provided by you were obtained either directly from the Client or from third parties. If elements of CDD provided by you were obtained from any third parties, the risk assessment will also indicate how many third parties were involved in the process, who those third parties were, whether any of those third parties have met the Client, whether any third party is a trusted person and whether, in the case of any third parties located outside of the Isle of Man, they are located in a List C jurisdiction.
12.3 You further agree and acknowledge that, in terms of paragraph 9(9) of the Code, if we cannot be satisfied as to the identity of the Client in accordance with the relevant provisions of the Code, the business relationship and / or relevant occasional transaction must proceed no further, in which circumstances we may terminate the Agreement on a summary basis, as well as make an internal disclosure in terms of the Code.
12.4 If in the course of business you become aware of any suspicious or unusual activity or information relating to the introduced account you will, if permitted to do so, inform us of the same.
13.0 Remuneration
13.1 CI shall pay, on behalf of the Client(s) and from the account of the Client(s), the Intermediary’s remuneration for the distribution of CI Solutions to the Intermediary’s Clients, and for the effective servicing of those Clients of the Intermediary holding such CI Solutions. The level of compensation shall be in accordance with the published charging structure for each CI Solution or otherwise as may be amended and supplemented from time to time and agreed between CI and the Intermediary on a client-by-client basis.
13.2 Initial remuneration (if any) shall be payable following the receipt by CI of cleared funds from or on behalf of a Client in respect of a new investment and shall be calculated as soon as reasonably practicable thereafter and normally payable on the 1st day (or the next business day thereafter) of the following month, unless otherwise agreed.
13.3 Annual remuneration (if any) shall be calculated on a monthly basis, after the relevant month, and shall normally be payable on or around the 12th day (or the next Business Day thereafter) of the following month, unless otherwise notified by CI from time to time.
13.4 All remuneration shall cease to accrue in respect of any CI account that is overdrawn, redeemed, transferred or otherwise closed as well as where the assets held in the Client’s portfolio are no longer deemed liquid, including where the Client has relinquished ownership.
13.5 All fees shall cease to accrue immediately on either (a) the termination of the Agreement pursuant to Clause 11 hereof; or (b) in respect of any investment in a CI Solution by any Client to the extent that such investments are redeemed or transferred or otherwise disposed of by such Client; PROVIDED THAT:
13.5.1 Upon termination of this Agreement pursuant to Clause 11.2.3 hereof (“Termination for Insolvency”):
13.5.1.1 All rights, liabilities, and obligations accrued prior to the date of termination shall remain unaffected.
13.5.1.2 Any commission accrued but unpaid as of the termination date to the Intermediary shall be held in a bare trust and subject to the directions of the duly appointed liquidator of the Intermediary.
13.5.1.3 The liquidator shall have the authority to determine the distribution of such accrued commission in accordance with applicable insolvency laws and the terms of this Agreement.
13.6 Remuneration shall only become due and payable to the Intermediary upon receipt by CI of the corresponding fees, being no less than £400 or currency equivalent. CI shall not be obliged to pay any remuneration where such corresponding account fees and remuneration have not been received by CI and will not arrange to collect or pay any such fees on a backdated basis. Intermediary fees are calculated and paid in the Client’s base currency, irrespective of the currency of the Intermediary bank account details. It is the Intermediary’s responsibility to inform CI of any relevant currency accounts, otherwise payments will be made to your default bank account. CI will not be held responsible for any FX conversion charges or payment failures.
13.7 The Intermediary agrees to repay to CI any remuneration that it has received in error from CI. In the event that CI may repay an amount to a client account for whatever reasonable reason, the Intermediary agrees to repay to CI any corresponding remuneration that it has received from CI.
13.8 Upon written notice to the Intermediary, CI may elect no longer to pay fees to the Intermediary under the Agreement in connection with the promotion and sale of CI Solutions to the class or classes of persons and to the territory or territories stipulated in the said notice. Such notice shall take effect from the date specified in such notice.
13.9 The Intermediary shall be responsible for (and shall have no right to reimbursement from CI in respect of) any overhead or out of pocket fees or expenses incurred by the Intermediary in respect of its duties hereunder.
14.0 Agents & Delegation
14.1 Subject to Clause 4.1.2 and 14.2, the Intermediary may employ and pay an agent or agents at the expense of the Intermediary to perform or concur in performing any of the activities permitted under this Agreement.
14.2 The Intermediary is responsible for the actions of its agents as if they were the direct actions of the Intermediary.
15.0 Assignment
15.1 The appointment of the Intermediary is personal to the respective Intermediary which shall not be entitled to assign or otherwise transfer the benefit of the same to any other person whatsoever without the prior written consent of CI. If the Intermediary shall at any time during the continuance of this Agreement change its name, address, or other details it shall forthwith notify CI in writing of such change and shall provide CI with formal evidence thereof in the form of a copy of the Intermediary’s certificate of incorporation or equivalent documentation.
16.0 Notices
16.1 Notices to be given by you must be sent in writing by email to businessdevelopment@capital-iom.com; notices to be given by us will be uploaded to the CIL Portal or sent by email to the last email address you have provided to us for this purpose. In each case it will be deemed to have been received by midnight on the business day of sending it or uploading it to our systems.
17.0 Variation
17.1 We may vary the arrangements contained in these Terms of Business by notice in writing to you at any time. Such variations will become effective on a date specified in the notice which will be sent to you at least 5 working days before such variations become effective. No variation will affect any outstanding order or transaction or any legal rights or obligations that may have already arisen.
17.2 You are deemed to have consented to any alteration that may be effected to these Terms of Business if we do not receive notification otherwise from you, in writing, within the time that the changes were notified to you and their coming into effect.
18.0 Entire Agreement
18.1 These Intermediary Terms of Business embody the entire understanding between the parties with respect to the subject matter hereof and no modification or amendment or provision of the Agreement shall be effective unless the same shall be reduced to writing and signed by the parties hereto in accordance with Clause 17 above.
19.0 Waiver
19.1 Any waiver by either Party of any breach of any provision of the Agreement or these Intermediary Terms of Business shall not constitute a waiver of any subsequent breach or affect in any way the effectiveness of the Agreement.
20.0 Force Majeure
20.1 Neither Party will be held liable for any loss incurred by the other Party which rises either wholly or in part as a result of an event or state of affairs which is beyond the control of either Party to prevent and the effect of which is beyond their power to avoid 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, labour dispute, inability to communicate with market makers, or for any other reason and whereby the Parties are either unable to take or refrain from taking or shall not be obliged to take or refrain from taking any action as a consequence thereof.
20.2 Each Party (as relevant) will use all reasonable endeavours to avoid or overcome the cause affecting performance and shall fulfil all outstanding performance as soon as it becomes practicable to do so.
21.0 Anti-Bribery, Anti-Tax Evasion and Modern Slavery
21.1 In this Clause 21 “Applicable Laws” shall for the purposes of this Clause, but not by way of limitation, include the Bribery Act 2013 of the Isle of Man, the Bribery Act 2010 of the United Kingdom and the Foreign Corrupt Practices Act 1977 of the United States of America, The Criminal Finances Act 2017 of the United Kingdom and the Modern Slavery Act 2015 of the United Kingdom together with any similar statute from any other jurisdiction and as any of the same may be amended from time to time.
21.2 Both Parties represent and warrant that:
21.2.1 Each will comply with all Applicable Laws in respect of the performance of its obligations under these Terms of Business including without limitation all applicable laws and regulations relating to taxation, exchange controls, customs matters, anti-bribery, anti-corruption, anti-trust, anti-money laundering, modern slavery and human trafficking, trade sanctions, financial sanctions and criminal matters.
21.2.2 Each Party and its directors, employees, workers, contractors, agents, advisors, nominees, assignees and any other service providers (“Associated Persons”) will not engage in any activity, practice or conduct which could contravene the Applicable Laws if such activity, practice or conduct had been carried out anywhere in the world, or which could cause the other Party to contravene the Applicable Laws.
21.2.3 Each Party’s responses to the other Party’s request for due diligence and enquiries, if requested, in connection with the Applicable Laws are complete and accurate.
21.2.4 None of each Party’s officers or employees or any Associated Person who are performing services in connection with these Terms of Business is a foreign public official (as defined by the Bribery Act 2013), that no foreign public official owns a direct or indirect interest in the Party or any associated person, and that no foreign public official has any legal or beneficial interest in any payments made by each Party.
21.2.5 Each Party shall promptly notify the other if, at any time during the term of these Terms of Business, our circumstances, knowledge or awareness change such that each Party would not be able to repeat the warranties set out in this Clause 21 at the relevant time.
22.0 Rights of Third Parties
22.1 Subject to the provisions of the Contracts (Rights of Third Parties) Act 2001, a person who is not a party to this Agreement (other than a successor in title or a permitted assignee) has no right to enforce any term of the Terms of Business.
23.0 Indemnity & Liability
23.1 You shall indemnify and keep indemnified us and the Capital International group of companies’ officers, agents and employees against:
23.1.1 All actions, suits, proceedings, claims and demands whatsoever and howsoever arising which may be taken instigated or instituted by or against us (or any such person aforesaid); and
23.1.2 Costs, charges, and expenses whatsoever and howsoever arising which may be incurred or become payable by us (or any such person aforesaid) including but not limited to all legal and other fees and expenses, including experts’ fees, whatsoever and howsoever arising in connection with or arising out of inter alia:
23.1.3 Any omission of or act done or omitted to be done by you or any agent of yours in breach or potential breach of the terms hereof;
23.1.4 Any false information or declaration made to us or any third party;
23.1.5 Any act or omission or fraud by you or any agent of yours or by any person obtaining access to your account by using your designated account number, username or password, whether or not you authorised such access;
23.1.6 The taking of legal advice which we consider reasonably necessary to obtain arising from or in connection with the operation of your account or the activities of you or any agent of yours which touch or may touch, concern or relate to the operation of the account.
24.0 Telephones & Record Retention
24.1 Telephone calls with us may be monitored / recorded to maintain and improve our service, to assist in settling any dispute which may arise between us, and to assist security and staff training.
24.2 In accordance with legal and regulatory requirements, we will retain your records, for a minimum period of 6 years following the termination of any relationship between us.
24.3 This period may be extended by force of law, regulatory requirement or Agreement amongst us.
24.4 For further information please see our full privacy notice https://www.capital-iom.com/legal/group-privacy-notice.
25.0 Data Protection
25.1 In this Clause 25:
25.1.1 The term “Applicable Laws” means any law, enactment order, regulation, regulatory policy, guidelines, industry code, rule or requirement of any regulatory body or similar which applies from time to time to or in connection with the subject matter of this Agreement.
25.1.2 The term “Data Protection Laws” means the Isle of Man’s Data Protection Act 2018 read with the Data Protection Order (Applied GDPR) 2018 (“Applied GDPR”) and any associated regulations or instruments and any other data protection law, enactment order, regulation, regulatory policy, guideline or industry code or codes of practice applicable to our provision of the CI Solutions from time to time.
25.1.3 The terms “Personal Data”, “Data Processor”, “Supervisory Authority”, “Data Subject”, “process”, and “Data Controller” are as defined in the Data Protection Laws, and cognate terms shall be construed accordingly. “Sub-processor” means any person (including any third party, but excluding an employee of ours or any of our sub-contractors) appointed by or on behalf of us to process your Personal Data in connection with this Agreement.
25.1.4 “AI Systems” means any machine-based system used by CI which, for explicit or implicit objectives, infers from the inputs it receives how to generate outputs such as content, predictions, recommendations, classifications or decisions that can influence physical or virtual environments, provided that for the purposes of this Agreement AI Systems shall be limited to systems used by CI to support, enhance or improve CI’s internal processes and operations and shall not include any AI Systems made available for use by the Intermediary.
25.2 You shall be the Data Controller and we shall be the Data Processor in respect of Personal Data processed by us on your behalf in performing our obligations under this Agreement. Each Party shall comply at all times with the Data Protection Laws.
25.3 You acknowledge and agree that CI may from time to time use AI Systems for the purposes of supporting, enhancing or improving CI’s internal processes and operations in connection with the provision, administration, monitoring, compliance, risk management, servicing or development of the CI Solutions and related business activities, provided always that such use is undertaken by CI in accordance with Applicable Laws and Data Protection Laws. For the avoidance of doubt, nothing in this Agreement shall require CI to make any AI Systems available to the Intermediary, and any AI Systems made available for use by the Intermediary shall be subject to separate terms as may be notified by CI from time to time.
25.4 Where we process Personal Data on your behalf, we shall, in respect of such Personal Data:
25.4.1 Act only on the written instructions and directions from you.
25.4.2 Not process Personal Data for any purpose other than for the provision of the CI Solutions to you and only to the extent reasonably necessary for the performance of this Agreement, unless processing is required by applicable laws, including Data Protection Laws.
25.4.3 Process your Personal Data in accordance with the duration, purpose, type and categories of Data Subjects set out in our Privacy Notice which can be found on the Group Website.
25.4.4 Not disclose Personal Data to any employee, director, agent, contractor or affiliate of ours or any third party except as necessary for the performance of this Agreement , to comply with legal or regulatory obligations or with your prior written consent.
25.4.5 Not transfer Personal Data outside the European Economic Area without your prior written consent; or we may transfer Personal Data outside of the Protect the security and confidentiality of Personal Data processed by it in the provision of the CI Solutions under this Agreement.
25.4.6 Protect Personal Data against accidental or unlawful destruction or accidental loss, alteration, unauthorized disclosure, access, or processing.
25.5 Where we process Personal Data as Controller:
25.5.1 You will bring to the attention of any individuals that you make our products and services available to (or that you ask us to deal with in any capacity) any privacy notices we make available for those products and services;
25.5.2 You continue to act as Controller in respect of any Personal Data you choose to record or otherwise process as a result of your receipt and use of the CI Solutions; and
25.5.3 Only in limited circumstances might you and we be considered to be joint Controllers, and where this is the case, our respective responsibilities will be clearly set out in any relevant product information.
25.6 We shall ensure that any of our personnel with access to your Personal Data and any persons to whom we disclose your Personal Data under Clause 25.4.4:
25.6.1 Are bound by confidentiality obligations in respect of access, use and processing such Personal Data;
25.6.2 Do not process it except in accordance with this Clause 25.
25.7 You authorise us to appoint (and permits each Sub-processor appointed to appoint) Sub-processors.
25.7.1 Details of the Sub-processors can be found on the CI Website from time to time and they are deemed to be specifically authorised by you.
25.7.2 We shall give you prior written notice of the appointment of any new Sub-processor, including details of the processing to be undertaken by the Sub-processor.
25.7.3 If within 2 days of receipt of that notice, you notify us in writing of any objections (on reasonable grounds) to the proposed appointment, we shall not appoint (or disclose any of your Personal Data) to that proposed Sub-processor until steps have been taken by us to address the objections raised by you and you have been provided with a written explanation of the steps taken by us; or failing that we will have to consider whether or not the contract between us should be terminated in accordance with the terms of this Agreement.
25.7.4 With respect to each Sub-processor, we shall ensure that the arrangement between us and the relevant intermediate Sub-processor, or between the Sub- processor and its Sub-processor is governed by a written contract including terms which offer at least the same level of protection for your Personal Data as those set out in this Agreement and meet the requirements of Article 28(3) of the Applied GDPR.
25.8 You confirm that any Personal Data provided by you to us or on your behalf has been collected and disclosed in accordance with Data Protection Laws. When using our products or services you will take reasonable steps to ensure that you and your employees, agents and contractors do not input, upload or disclose to us any irrelevant or unnecessary information about individuals.
25.9 Each Party shall cooperate and provide the other with such reasonable assistance as the other reasonably requires in relation to any complaints made by Data Subjects or investigations or enquiries made by any regulator relating to your or our obligations under Data Protection Laws.
25.10 We shall notify you as soon as possible if we receive a request from an individual to exercise their rights in relation to your Personal Data. Taking into account the nature of the processing, we shall assist you by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of your obligations, as reasonably understood by you, to respond to requests to exercise Data Subject rights under the Data Protection Laws.
25.11 Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of processing as well as the risks of varying likelihood and severity for the rights and freedoms of natural persons, you and we will each maintain, and require your and our Processors (respectively) to implement and maintain appropriate physical, technical and organisational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the Applied GDPR; to protect Personal Data against accidental, unauthorised or unlawful destruction, loss, alteration, disclosure or access (Data Breach).
25.11.1 We shall notify you without undue delay upon us becoming aware of a Data Breach affecting your Personal Data, providing you with sufficient information and (at your cost) assistance as reasonably necessary to allow you to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
25.11.2 You will, without undue delay, tell us of any actual or suspected non–trivial Data Breach relating to Personal Data that may also affect us or the security of our systems, products or services.
25.12 At your cost, we shall provide reasonable assistance to you with any data protection impact assessments, and prior consultations with any Supervisory Authority or other competent data privacy authorities, which you reasonably consider to be required of you by Article 35 or 36 of the Applied GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to processing of your Personal Data by, and taking into account the nature of the processing and information available to, us.
25.13 Each Party shall make available to the other on request information necessary to demonstrate compliance with this Clause 25, and shall permit the other Party or its representatives to access any relevant premises, personnel or records of the that Party on reasonable notice to audit and otherwise verify compliance with this Clause 25.
25.14 We shall promptly and in any event within 30 days of the date of termination of this Agreement (the “Cessation Date”), to the extent technically possible delete and procure the deletion of all copies of your Personal Data, provided that:
25.14.1 You may in your absolute discretion by written notice to us within 30 Days of the Cessation Date require us within 30 days of such notice;
25.14.2 To return a complete copy of all your Personal Data to you by secure file transfer in such format as is reasonably notified by you to us; and
25.14.3 Where possible, to delete and procure the deletion of all other copies of your Personal Data Processed by any Sub-processor;
25.15 We may retain your Personal Data to the extent required by Applicable Law, including the Data Protection Laws.
26.0 Governing Law
26.1 These Intermediary Terms of Business shall be construed in accordance with the laws of the Isle of Man and you irrevocably submit to the jurisdiction of the Manx Courts.
26.2 If any provision of this Agreement is or becomes invalid the remaining provisions shall not become invalid.
